Title 9 VAC — Environment

Agency 5 State Air Pollution Control Board

Chapter 5 Public Participation Guidelines

Part I Purpose and Definitions

9VAC5-5-10 Purpose

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Air Pollution Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-5-20 Definitions

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

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

"Agency" means the State Air Pollution Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

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

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

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

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

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

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

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

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

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

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

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

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Part II Notification of Interested Persons

9VAC5-5-30 Notification list

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

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

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

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

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

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

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-5-40 Information to be sent to persons on the notification list

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC5-5-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

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

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Part III Public Participation Procedures

9VAC5-5-50 Public comment

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

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

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

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

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

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

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

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

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

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

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009; amended, Virginia Register Volume 34, Issue 5, eff. December 14, 2017.

9VAC5-5-60 Petition for rulemaking

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

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

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

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

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

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-5-70 Appointment of regulatory advisory panel

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

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

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-5-80 Appointment of negotiated rulemaking panel

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

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

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

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

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

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-5-90 Meetings

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

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-5-100 Public hearings on regulations

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

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

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

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-5-110 Periodic review of regulations

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

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

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

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Chapter 20 General Provisions

Part I Administrative

9VAC5-20-10 Applicability

A. The provisions of these regulations, unless specified otherwise, shall apply throughout the Commonwealth of Virginia.

B. The provisions of these regulations, unless specified otherwise, shall apply to only those pollutants for which ambient air quality standards are set forth in 9VAC5 Chapter 30 (9VAC5-30-10 et seq.) or for which emission standards are set forth in 9VAC5 Chapter 40 (9VAC5-40-10 et seq.), 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 60 (9VAC5-60-10 et seq.), or both.

C. No provision of these regulations shall limit the power of the board to take such appropriate action as necessary to control and abate air pollution in emergency situations.

D. By the adoption of these regulations, the board confers upon the department the administrative, enforcement and decision making authority enumerated therein.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-02-01, eff. May 1, 1990.

9VAC5-20-20 (Repealed.)

Historical Notes

Derived from VR120-02-02, eff. May 1, 1990; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-20-21 Documents incorporated by reference

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

1. United States Code.

2. Code of Virginia.

3. Code of Federal Regulations.

4. Federal Register.

5. Technical and scientific reference documents.

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

B. Any reference in these regulations to any provision of the Code of Federal Regulations (CFR) shall be considered as the adoption by reference of that provision. The specific version of the provision adopted by reference shall be that contained in the CFR (2022) in effect July 1, 2022. In making reference to the Code of Federal Regulations, 40 CFR Part 35 means Part 35 of Title 40 of the Code of Federal Regulations; 40 CFR 35.20 means § 35.20 in Part 35 of Title 40 of the Code of Federal Regulations.

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

D. Copies of materials incorporated by reference in this section may be examined by the public at the central office of the Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia, between 8:30 a.m. and 4:30 p.m. of each business day.

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

1. Code of Federal Regulations.

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

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

(a) Appendix A-1 -- Reference Measurement Principle and Calibration Procedure for the Measurement of Sulfur Dioxide in the Atmosphere (Ultraviolet Fluorescence Method).

(b) Appendix A-2 -- Reference Method for the Determination of Sulfur Dioxide in the Atmosphere (Pararosaniline Method).

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

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

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

(f) Appendix E -- Reserved.

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

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

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

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

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

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

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

(n) Appendix M -- Reserved.

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

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

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

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

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

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

(u) Appendix T -- Interpretation of the Primary National Ambient Air Quality Standards for Oxides of Sulfur (Sulfur Dioxide).

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

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

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

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

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

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

(3) 40 CFR Part 55 -- Outer Continental Shelf Air Regulations, except for §§ 55.5, 55.11, and 55.12.

(4) 40 CFR Part 58 -- Ambient Air Quality Surveillance.

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

(5) 40 CFR Part 59 -- National Volatile Organic Compound Emission Standards for Consumer and Commercial Products.

(a) Subpart C -- National Volatile Organic Compound Emission Standards for Consumer Products.

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

(6) 40 CFR Part 60 -- Standards of Performance for New Stationary Sources.

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

(7) 40 CFR Part 61 -- National Emission Standards for Hazardous Air Pollutants.

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

(8) 40 CFR Part 63 -- National Emission Standards for Hazardous Air Pollutants for Source Categories.

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

(9) 40 CFR Part 64 -- Compliance Assurance Monitoring.

(10) 40 CFR Part 72 -- Permits Regulation.

(11) 40 CFR Part 73 -- Sulfur Dioxide Allowance System.

(12) 40 CFR Part 74 -- Sulfur Dioxide Opt-Ins.

(13) 40 CFR Part 75 -- Continuous Emission Monitoring.

(14) 40 CFR Part 76 -- Acid Rain Nitrogen Oxides Emission Reduction Program.

(15) 40 CFR Part 77 -- Excess Emissions.

(16) 40 CFR Part 78 -- Appeal Procedures for Acid Rain Program.

(17) 40 CFR Part 81 -- Designation of Areas for Air Quality Planning Purposes.

(18) 40 CFR Part 82 -- Protection of Stratospheric Ozone.

(19) 40 CFR Part 152 Subpart I -- Classification of Pesticides.

(20) 49 CFR Part 172 -- Hazardous Materials Table. Special Provisions, Hazardous Materials Communications, Emergency Response Information, and Training Requirements, Subpart E, Labeling.

(21) 29 CFR Part 1926 Subpart F -- Fire Protection and Prevention.

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

2. U.S. Environmental Protection Agency.

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

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

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

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

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

3. United States government.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. American Petroleum Institute (API).

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

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

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

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

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

7. National Fire Prevention Association (NFPA).

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

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

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

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

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

8. American Society of Mechanical Engineers (ASME).

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

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

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

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

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

9. American Hospital Association (AHA).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12. California Air Resources Board (CARB).

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

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

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

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

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

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

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

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

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

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

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

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

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

13. American Architectural Manufacturers Association.

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

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

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

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

14. American Furniture Manufacturers Association.

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

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

15. Petroleum Equipment Institute.

a. The following document from the Petroleum Equipment Institute is incorporated herein by reference: Recommended Practices for Installation and Testing of Vapor-Recovery Systems at Vehicle-Fueling Sites, PEI/RP300-09 (2009).

b. Copies may be obtained from Petroleum Equipment Institute, 6931 S. 66th E. Avenue, Suite 310, Tulsa, OK 74133; telephone (918) 494-9696; www.pei.org.

16. American Architectural Manufacturers Association (AAMA).

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

(1) Voluntary Specification, Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels, publication number AAMA 2604-05.

(2) Voluntary Specification, Performance Requirements and Test Procedures for Superior Performing Organic Coatings on Aluminum Extrusions and Panels, publication number AAMA 2605-05.

b. Copies may be obtained from American Architectural Manufacturers Association, 1827 Walden Office Square, Suite 550, Schaumburg, IL 60173-4268; telephone (847) 303-5774.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 108, 109, 110, and 182 of the Clean Air Act; 40 CFR Parts 50, 53, and 58
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 13, Issue 5, eff. January 1, 1997; Volume 13, Issue 18, eff. July 1, 1997; Volume 15, Issue 12, eff. April 1, 1999; Volume 15, Issue 21, eff. August 4, 1999; Volume 16, Issue 17, eff. July 1, 2000; Volume 18, Issue 7, eff. February 1, 2002; Volume 20, Issue 12, eff. March 24, 2004; Volume 21, Issue 11, eff. March 9, 2005; Volume 22, Issue 26, eff. October 4, 2006; Errata, 23:5 VA.R. 791 November 13, 2006; amended, Virginia Register Volume 23, Issue 21, eff. August 1, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 25, Issue 19, eff. June 24, 2009; Volume 26, Issue 12, eff. March 17, 2010; Volume 26, Issue 23, eff. August 18, 2010; Volume 27, Issue 3, eff. November 10, 2010; Volume 27, Issue 17, eff. May 25, 2011; Volume 28, Issue 23, eff. August 15, 2012; Volume 29, Issue 24, eff. August 28, 2013; Volume 31, Issue 21, eff. July 30, 2015; Volume 32, Issue 7, eff. February 1, 2016; Volume 32, Issue 18, eff. June 1, 2016; Volume 33, Issue 4, eff. November 16, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 13, eff. February 19, 2018; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 13, eff. March 15, 2023.

9VAC5-20-30 (Repealed.)

Historical Notes

Derived from VR120-02-03 and VR120-02-04, eff. May 1, 1990; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-20-50 Variances

A. Fuel variance.

1. Regardless of any other provision of this section, the executive director may issue an order granting a fuel variance for fuel burning equipment from applicable provisions of these regulations if, after a thorough investigation and public hearing, he finds that:

a. The owner, in good faith and prior to the request for the fuel variance, has attempted to comply with applicable provisions of these regulations;

b. The owner has substantial cause to believe he will be unable to obtain the fuel to operate the equipment in compliance with applicable provisions of these regulations;

c. The maximum particulate and sulfur dioxide emissions from fuels permitted in the fuel variance would be the lowest that the available fuels will permit;

d. The need for the requested fuel variance could not have been avoided by the owner; and

e. The period of the fuel variance will not exceed the reasonably predicted shortage of fuel which would allow compliance with these regulations, or 180 days, whichever is less.

2. The owner requesting the fuel variance shall submit the following, where appropriate, to the executive director:

a. The requested commencement and termination dates of the fuel variance;

b. The type and quantity of fuel to be used under the requested fuel variance, along with the maximum ash and sulfur content, if any;

c. An affidavit stating why the owner is unable to, or has substantial cause to believe that he will be unable to, obtain fuel which would allow compliance with applicable provisions of these regulations;

d. An estimate of the amount of fuel to be conserved;

e. An estimate of the increased air pollutants that might cause violations of the ambient air quality standards;

f. An estimate, with reasons given, of the duration of the shortage of fuel which would allow compliance with applicable provisions of these regulations; and

g. Such other information as the executive director may require to make his findings as provided in subdivision 1 of this subsection.

3. Notice of public hearings on applications for fuel variances shall be advertised at least 10 days prior to the date of the hearing, in at least one major newspaper of general circulation in the air quality control region in which the affected source is located. The notice shall contain the subject, date, time and place of the public hearing. The public hearing shall be conducted to give the public an opportunity to comment on the variance.

4. Fuel variances may be granted only for individual sources, and not for categories or classes.

5. No fuel variance shall be granted for more than 180 days. Any request for a variance for a period beyond 180 days shall be governed by the provisions of 9VAC5-170-140, except that the board, where appropriate, may require compliance with any of the conditions and requirements here.

6. Fuel variances may be amended or revoked in the manner provided for in 9VAC5-170-140 except that only a 10-day notice shall be required.

B. Nothing in this section shall be construed to limit, alter or otherwise affect the obligation of any person to comply with any provision of these regulations not specifically affected by this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-02-05, eff. May 1, 1990; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993; Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-20-60 (Repealed.)

Historical Notes

Derived from VR120-02-06, eff. May 1, 1990; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-20-70 Circumvention

A. No owner or other person shall cause or permit the installation or use of any device or any means which, without resulting in reduction in the total amount of air pollutants emitted, conceals or dilutes an emission of air pollutants which would otherwise violate this chapter. Such concealment includes, but is not limited to, either of the following:

1. The use of gaseous diluents to achieve compliance with a visible emissions standard or with a standard which is based on the concentration of a pollutant in the gases discharged to the atmosphere.

2. The piecemeal carrying-out of an operation to avoid coverage by a standard that applies only to operations larger than a specified size.

B. This section does not prohibit the construction of a stack.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-02-07, eff. January 1, 1985.

9VAC5-20-80 Relationship of state regulations to federal regulations

A. In order for the Commonwealth to fulfill its obligations under the federal Clean Air Act, some provisions of these regulations are required to be approved by the U.S. Environmental Protection Agency and when approved those provisions become federally enforceable.

B. In cases where these regulations specify that procedures or methods shall be approved by, acceptable to or determined by the board or other similar phrasing or specifically provide for decisions to be made by the board or department, it may be necessary to have such actions (approvals, determinations, exemptions, exclusions, or decisions) reviewed and confirmed as acceptable or approved by the U.S. Environmental Protection Agency in order to make them federally enforceable. Determination of which state actions require federal confirmation or approval and the administrative mechanism for making associated confirmation or approval decisions shall be made on a case-by-case basis in accordance with U.S. Environmental Protection Agency regulations and policy.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-02-08, eff. May 1, 1990; amended, Virginia Register Volume 9, Issue 6, eff. July 1, 1991.

9VAC5-20-90 (Repealed.)

Historical Notes

Derived from VR120-02-09, VR120-02-10 and VR120-02-12, eff. May 1, 1990 and from VR120-02-11, eff. January 1, 1985; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-20-121 Air quality program policies and procedures

A. General.

1. In order for the Commonwealth to fulfill its obligations under the federal Clean Air Act, some provisions of these regulations are required to be approved by the U.S. Environmental Protection Agency as part of the State Implementation Plan, and when approved, those provisions become federally enforceable.

2. In cases where these regulations specify that procedures or methods shall be approved by, acceptable to or determined by the board or other similar phrasing or specifically provide for decisions to be made by the board or department, it may also be necessary to have such actions (approvals, determinations, exemptions, exclusions, or decisions) approved by the U.S. Environmental Protection Agency as part of the State Implementation Plan in order to make them federally enforceable. In accordance with U.S. Environmental Protection Agency regulations and policy, it has been determined that it is necessary for the procedures listed in subsection B of this section to be approved as part of the State Implementation Plan.

3. Failure to include in this section any procedure mentioned in the regulations shall not invalidate the applicability of the procedure.

4. Copies of materials listed in this section may be examined by the public at the central office of the Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia, between 8:30 a.m. and 4:30 p.m. of each business day.

B. Specific documents.

1. Procedures for Testing Facilities Subject to Emission Standards for Volatile Organic Compounds, AQP-1, July 1, 1991.

2. Procedures for Determining Compliance with Volatile Organic Compound Emission Standards Covering Surface Coating Operations, AQP-2, July 1, 1991.

3. Procedures for the Measurement of Capture Efficiency for Determining Compliance with Volatile Organic Compound Emission Standards Covering Surface Coating Operations, AQP-3, April 1, 1996.

4. Procedures for Maintaining Records for Surface Coating Operations and Graphic Arts Printing Processes, AQP-4, July 1, 1991.

5. Procedures for Preparing and Submitting Emission Statements for Stationary Sources, AQP-8, January 1, 1993.

6. Procedures for Implementation of Regulations Covering Stage II Vapor Recovery Systems for Gasoline Dispensing Facilities, AQP-9, January 1, 1993.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 34, Issue 13, eff. February 19, 2018.

9VAC5-20-130 (Repealed.)

Historical Notes

Derived from VR120-02-13, VR120-02-14, VR120-02-30, eff. May 1, 1990; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993; Volume 13, Issue 18, eff. July 1, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998; Errata, 14:7 VA.R. 1174, 1175 December 22, 1997.

Part II Air Quality Programs

9VAC5-20-160 Registration

A. The owner of any stationary source to which permits are issued under 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) or for which emission standards are given in 9VAC5 Chapter 40 (9VAC5-40-10 et seq.), 9VAC5 Chapter 50 (9VAC5-50-10 et seq.), and 9VAC5 Chapter 60 (9VAC5-60-10 et seq.) shall, upon request of the board, register such source operations with the board and update such registration information. The information required for registration shall be determined by the board and shall be provided in the manner specified by the board. Owners should review the emission standard for their respective source type to identify the exemption levels for purposes of this section.

B. The owner of any stationary source emitting 25 tons per year or more of volatile organic compounds or nitrogen oxides and located in any emissions control area designated in 9VAC5-20-206 shall submit an emissions statement to the board by April 15 of each year, beginning in 1993, for the emissions discharged during the previous calendar year. Emissions statements shall be prepared and submitted in accordance with the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-02-31, eff. May 1, 1990; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993.

9VAC5-20-170 Control programs

A. Under the provisions of 9VAC5-170-120, the board may require an owner of a stationary source to submit a control program, in a form and manner satisfactory to the board, showing how compliance shall be achieved as quickly as possible.

B. The board shall act within 90 days of receiving an acceptable control program. A public hearing will be held within this period. The hearing shall be held only after reasonable notice, at least 30 days prior to the hearing date, which shall include:

1. Notice given to the public by advertisement in at least one major newspaper of general circulation in the affected air quality control region;

2. Availability of the information in the control program (exclusive of confidential information under the provisions of 9VAC5-170-60) for public inspection in at least one location in the affected air quality control region; and

3. Notification to all local air pollution control agencies having State Implementation Plan responsibilities in the affected air quality control region, all states sharing the affected air quality control region, and the regional administrator of the U.S. Environmental Protection Agency.

C. When acting upon control programs, the board shall be guided by the provisions of the federal Clean Air Act.

D. The board may require owners submitting a control program to submit periodic progress reports in the form and manner acceptable to the board.

E. The board normally will take action on all control programs within 30 days after the date of the public hearing unless more information is required. The board shall notify the applicant in writing of its decision on the control program and shall set forth its reasons for that.

F. The owner may appeal the decision pursuant to 9VAC5-170-200.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-02-32, eff. May 1, 1990; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993.

9VAC5-20-180 Facility and control equipment maintenance or malfunction

A. The provisions of this section apply to periods of excess emissions resulting from (i) the shutdown or bypassing, or both, of air pollution control equipment for necessary scheduled maintenance and (ii) malfunctions or other equipment failures of any affected facility or related air pollution control equipment.

B. In case of shutdown or bypassing, or both, of air pollution control equipment for necessary scheduled maintenance which results in excess emissions for more than one hour, the intent to shut down such equipment shall be reported to the board and local air pollution control agency, if any, at least 24 hours prior to the planned shutdown. Such prior notice shall include, but is not limited to, the following:

1. Identification of the specific facility to be taken out of service as well as its location and permit or registration number;

2. The expected length of time that the air pollution control equipment will be out of service;

3. The nature and quantity of emissions of air pollutants likely to occur during the shutdown period; and

4. Measures that will be taken to minimize the length of the shutdown and to negate the effect of the outage of the air pollution control equipment.

C. In the event that any affected facility or related air pollution control equipment fails or malfunctions in such a manner that may cause excess emissions for more than one hour, the owner shall (i) no later than four daytime business hours after the malfunction is discovered notify the board of such failure or malfunction and (ii) within 14 days provide a written statement giving all pertinent facts, including the estimated duration of the breakdown and the demonstrations in subsection G of this section. Owners subject to the requirements of 9VAC5-40-50 C and 9VAC5-50-50 C are not required to provide the written statement prescribed in this subsection for facilities subject to the monitoring requirements of 9VAC5-40-40 and 9VAC5-50-40. When the condition causing the failure or malfunction has been corrected and the facility or control equipment is again in operation, the owner shall notify the board.

D. In the event that the breakdown period cited in subsection C of this section exists or is expected to exist for 30 days or more, the owner shall, as expeditiously as possible but no later than 30 days after the failure or malfunction and semi-monthly thereafter until the failure or malfunction is corrected, submit to the board a written report containing the following:

1. Identification of the specific facility that is affected as well as its location and permit or registration number;

2. The expected length of time that the air pollution control equipment will be out of service;

3. The nature and quantity of air pollutant emissions likely to occur during the breakdown period;

4. Measures to be taken to reduce emissions to the lowest amount practicable during the breakdown period;

5. A statement as to why the owner was unable to obtain repair parts or perform repairs which would allow compliance with the Regulations for the Control and Abatement of Air Pollution within 30 days of the malfunction or failure;

6. An estimate, with reasons given, of the duration of the shortage of repairs or repair parts which would allow compliance with the Regulations for the Control and Abatement of Air Pollution; and

7. Any other pertinent information as may be requested by the board.

E. The provisions of subsection D of this section shall not apply beyond three months of the date of the malfunction or failure. Should the breakdown period exist past the three-month period, the owner may apply for a variance in accordance with 9VAC5-20-50 A.

F. The following special provisions govern facilities which are subject to the provisions of Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5-50 or Article 1 (9VAC5-60-60 et seq.) or Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60:

1. For sources subject to the applicable subparts listed in 9VAC5-50-410, any provisions governing malfunctions shall be implemented through this section. In cases where there are differences between the provisions of this section and the provisions of 40 CFR Part 60, the more restrictive provisions shall apply.

2. For sources subject to the applicable subparts listed in 9VAC5-60-70, any provisions governing malfunctions shall be implemented through this section. In cases where there are differences between the provisions of this section and the provisions of 40 CFR Part 61, the more restrictive provisions shall apply.

3. For sources subject to the applicable subparts listed in 9VAC5-60-100, any provisions governing malfunctions shall be implemented through this section. In cases where there are differences between the provisions of this section and the provisions of 40 CFR Part 63, the more restrictive provisions shall apply.

G. In accordance with subsection C of this section, if the excess emissions or cessation of monitoring activities is due to a malfunction, the owner may demonstrate the following:

1. The cause of the excess emissions or cessation of monitoring activities meets the definition of malfunction provided in 9VAC5-10-20;

2. The procedural requirements of this section were met or the owner has submitted an acceptable application for a variance, which is subsequently granted;

3. The owner has taken expeditious and reasonable measures to minimize emissions during the breakdown period;

4. The owner has taken expeditious and reasonable measures to correct the malfunction and return the facility to a normal operation; and

5. The source is in compliance with related applicable emission standards or monitoring requirements at least 90% of the operating time over the most recent 12-month period.

H. Nothing in this section shall be construed as giving an owner the right to increase temporarily the emission of pollutants or to circumvent the emission standards or monitoring requirements otherwise provided in the Regulations for the Control and Abatement of Air Pollution.

I. Regardless of any other provision of this section, the owner of any facility subject to the Regulations for the Control and Abatement of Air Pollution shall, upon request of the board, reduce the level of operation at the facility if the board determines that this is necessary to prevent a violation of any primary ambient air quality standard. Under worst case conditions, the board may order that the owner shut down the facility if there is no other method of operation to avoid a violation of the primary ambient air quality standard. The board reserves the right to prescribe the method of determining if a facility will cause such a violation. In such cases, the facility shall not be returned to operation until it and the associated air pollution control equipment are able to operate without violation of any primary ambient air quality standard.

J. Any owner of an affected facility subject to the provisions of this section shall maintain records of the occurrence and duration of any bypass, malfunction, shutdown or failure of the facility or its associated air pollution control equipment that results in excess emissions for more than one hour. The records shall be maintained in a form suitable for inspection and maintained for at least two years (unless a longer period is specified in the applicable emission standard) following the date of the occurrence.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from VR120-02-34, eff. May 1, 1990; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 9, Issue 5, eff. January 1, 1993; Volume 9, Issue 6, eff. February 1, 1993; Volume 18, Issue 21, eff. August 1, 2002; Volume 32, Issue 18, eff. June 1, 2016.

9VAC5-20-190 [Reserved]. (Reserved)

9VAC5-20-200 Air quality control regions

Region 1 - Eastern Tennessee-Southwestern Virginia Interstate Air Quality Control Region (Virginia).

The Eastern Tennessee-Southwestern Virginia Interstate Air Quality Control Region (Virginia portion) consists of the territorial area encompassed by the boundaries of the following jurisdictions or described area (including the territorial area of all localities geographically located within the outermost boundaries of the area so delimited):

| | COUNTIES | CITIES | | --- | --- | --- | | | Bland Buchanan Carroll Dickenson Grayson Lee Russell Scott Smyth Tazewell Washington Wise Wythe | Bristol Galax Norton |

Region 2 - Valley of Virginia Intrastate Air Quality Control Region.

The Valley of Virginia Intrastate Air Quality Control Region consists of the territorial area encompassed by the boundaries of the following jurisdictions or described area (including the territorial area of all localities geographically located within the outermost boundaries of the area so delimited):

| | COUNTIES | CITIES | | --- | --- | --- | | | Alleghany Augusta Bath Botetourt Clarke Craig Floyd Frederick Giles Highland Montgomery Page Pulaski Roanoke Rockbridge Rockingham Shenandoah Warren | Buena Vista Clifton Forge Covington Harrisonburg Lexington Radford Roanoke Salem Staunton Waynesboro Winchester |

Region 3 - Central Virginia Intrastate Air Quality Control Region.

The Central Virginia Intrastate Air Quality Control Region consists of the territorial area encompassed by the boundaries of the following jurisdictions or described area (including the territorial area of all localities geographically located within the outermost boundaries of the area so delimited):

| | COUNTIES | CITIES | | --- | --- | --- | | | Amelia Amherst Appomattox Bedford Brunswick Buckingham Campbell Charlotte Cumberland Franklin Halifax Henry Lunenburg Mecklenberg Nottoway Patrick Pittsylvania Prince Edward | Bedford Danville Lynchburg Martinsville South Boston |

Region 4 - Northeastern Virginia Intrastate Air Quality Control Region.

The Northeastern Virginia Intrastate Air Quality Control Region consists of the territorial area encompassed by the boundaries of the following jurisdictions or described area (including the territorial area of all localities geographically located within the outermost boundaries of the area so delimited):

| | COUNTIES | CITIES | | --- | --- | --- | | | Accomack Albemarle Caroline Culpeper Essex Fauquier Fluvanna Gloucester Greene King and Queen King George King William Lancaster Louisa Madison Mathews Middlesex Nelson Northampton Northumberland Orange Rappahannock Richmond Spotsylvania Stafford Westmoreland | Charlottesville Fredericksburg |

Region 5 - State Capital Intrastate Air Quality Control Region

The State Capital Intrastate Air Quality Control Region consists of the territorial area encompassed by the boundaries of the following jurisdictions or described area (including the territorial area of all localities geographically located within the outermost boundaries of the area so delimited):

| | COUNTIES | CITIES | | --- | --- | --- | | | Charles City Chesterfield Dinwiddie Goochland Greensville Hanover Henrico New Kent Powhatan Prince George Surry Sussex | Colonial Heights Emporia Hopewell Petersburg Richmond |

Region 6 - Hampton Roads Intrastate Air Quality Control Region

The Hampton Roads Intrastate Air Quality Control Region consists of the territorial area encompassed by the boundaries of the following jurisdictions or described area (including the territorial area of all localities geographically located within the outermost boundaries of the area so delimited):

| | COUNTIES | CITIES | | --- | --- | --- | | | Isle of Wight James City Southampton York | Chesapeake Franklin Hampton Newport News Norfolk Poquoson Portsmouth Suffolk Virginia Beach Williamsburg |

Region 7 - National Capital Interstate Air Quality Control Region (Virginia).

The National Capital Interstate Air Quality Control Region (Virginia portion) consists of the territorial area encompassed by the boundaries of the following jurisdictions (including the territorial area of all localities geographically located within the outermost boundaries of the area so delimited):

| | COUNTIES | CITIES | | --- | --- | --- | | | Arlington Fairfax Loudoun Prince William | Alexandria Fairfax Falls Church Manassas Manassas Park |

NOTE: In addition to the air quality control regions delineated here which form the geographic basis for the legal applicability of the regulations and air quality programs, there are administrative regions for all types of administrative actions (such as permit processing and responding to public inquires). This is done because it is necessary for administrative purposes that certain localities be in regions other than those listed above. This administrative delineation in no way alters the applicability of the regulations. Maps showing boundaries for both air quality control regions and administrative regions, and lists showing the assignment of localities for both, are available from the department upon request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997.

9VAC5-20-201 Urban areas

Urban areas are geographically defined as follows:

| | Title | Geographical Area | | --- | --- | --- | | | Lynchburg Urban Area | Lynchburg City Campbell County | | | Newport News - Hampton Urban Area | Hampton City Newport News City Poquoson City Williamsburg City James City County York County | | | Norfolk - Portsmouth Urban Area | Chesapeake City Norfolk City Portsmouth City Suffolk City Virginia Beach City | | | Petersburg - Colonial Heights Urban Area | Colonial Heights City Hopewell City Petersburg City | | | Richmond Urban Area | Richmond City Chesterfield County Hanover County Henrico County | | | Roanoke Urban Area | Roanoke City Salem City †Roanoke County | | | National Capital Urban Area | Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City Arlington County Fairfax County Loudoun County Prince William County |

† Does not include those portions of the county designated as rural village or rural preserve in the Roanoke County Comprehensive Development Plan approved by the Roanoke County Board of Supervisors on June 25, 1985.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997.

9VAC5-20-202 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 16, Issue 17, eff. July 1, 2000; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-20-203 Maintenance areas

Maintenance areas are geographically defined below by locality for the criteria pollutants indicated.

1. Ozone.

Fredericksburg Ozone Maintenance Area.

| Spotsylvania County Stafford County Fredericksburg City | | --- |

Hampton Roads Ozone Maintenance Area.

| Gloucester County Isle of Wight County James City County York County Chesapeake City Hampton City Newport News City Norfolk City Poquoson City Portsmouth City Suffolk City Virginia Beach City Williamsburg City | | --- |

Richmond Ozone Maintenance Area.

| Charles City County Chesterfield County Hanover County Henrico County Prince George County Colonial Heights City Hopewell City Petersburg City Richmond City | | --- |

Shenandoah National Park Ozone Maintenance Area.

| Madison County (portions located in Shenandoah National Park) Page County (portions located in Shenandoah National Park) | | --- |

2. Carbon monoxide.

Northern Virginia Carbon Monoxide Maintenance Area.

| Arlington County Alexandria City | | --- |

3. PM_2.5 (particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers).

Northern Virginia PM_2.5 Maintenance Area.

| Arlington County Fairfax County Loudoun County Prince William County Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City | | --- |

4. All other pollutants.

None.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 110 and 182 of the federal Clean Air Act, 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 14, Issue 2, eff. January 1, 1998; Volume 14, Issue 11, eff. April 1, 1998; Volume 22, Issue 23, eff. September 1, 2006; Volume 24, Issue 5, eff. December 12, 2007; Volume 31, Issue 12, eff. March 11, 2015.

9VAC5-20-204 Nonattainment areas

A. Nonattainment areas are geographically defined in this subsection by locality for the criteria pollutants indicated. Following the name of each ozone nonattainment area, in parentheses, is the classification assigned pursuant to § 181(a) of the federal Clean Air Act (42 USC § 7511(a)), 40 CFR 51.903(a), and 40 CFR 51.1103(a).

1. Ozone (1-hour).

Northern Virginia Ozone Nonattainment Area (severe).

| Arlington County Fairfax County Loudoun County Prince William County Stafford County Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City | | --- |

2. Ozone (8-hour, 0.08 ppm).

Northern Virginia Ozone Nonattainment Area (moderate).

| Arlington County Fairfax County Loudoun County Prince William County Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City | | --- |

3. Ozone (8-hour, 0.075 ppm).

Northern Virginia Ozone Nonattainment Area (marginal).

| Arlington County Fairfax County Loudoun County Prince William County Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City | | --- |

4. Ozone (8-hour, 0.070 ppm).

Northern Virginia Ozone Nonattainment Area (marginal).

| Arlington County Fairfax County Loudoun County Prince William County Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City | | --- |

5. Sulfur dioxide.

Giles County Sulfur Dioxide Nonattainment Area (part).

That part of Giles County bounded by the lines connecting the coordinate points as designated in 40 CFR 81.347.

6. All other pollutants.

None.

B. Subdivision A 1 of this section shall not be effective after June 15, 2005.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the federal Clean Air Act, 40 CFR Parts 51 and 81.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 16, eff. June 1, 1996; amended, Virginia Register Volume 14, Issue 2, eff. January 1, 1998; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 2, eff. January 1, 1999; Volume 19, Issue 17, eff. June 4, 2003; Volume 20, Issue 23, eff. August 25, 2004; Errata, 20:26 VA.R. 3210-3211 September 6, 2004; amended, Virginia Register Volume 21, Issue 7, eff. January 12, 2005; Volume 21, Issue 15, eff. May 4, 2005; Volume 22, Issue 23, eff. September 1, 2006; Volume 24, Issue 5, eff. December 12, 2007; Volume 29, Issue 4, eff. November 21, 2012; Volume 31, Issue 12, eff. March 11, 2015; Volume 33, Issue 4, eff. November 16, 2016; Volume 36, Issue 12, eff. March 4, 2020; Volume 39, Issue 11, eff. February 15, 2023.

9VAC5-20-205 Prevention of significant deterioration areas

A. Prevention of significant deterioration areas are geographically defined below by locality for the following criteria pollutants:

1. Particulate matter.

All areas not designated nonattainment for particulate matter in 9VAC5-20-204.

2. Sulfur dioxide.

All areas not designated nonattainment for sulfur dioxide in 9VAC5-20-204.

3. Carbon monoxide.

All areas not designated nonattainment for carbon monoxide in 9VAC5-20-204.

4. Ozone (volatile organic compounds):

All areas not designated nonattainment for ozone in 9VAC5-20-204.

5. Nitrogen oxides.

All areas not designated nonattainment for nitrogen oxides in 9VAC5-20-204.

6. Lead.

All areas not designated nonattainment for lead in 9VAC5-20-204.

B. All areas of the state are geographically defined as prevention of significant deterioration areas for the following pollutants:

Fluorides

Sulfuric acid mist

Total reduced sulfur:

Hydrogen sulfide

Methyl mercaptan

Dimethyl sulfide

Dimethyl disulfide

Reduced sulfur compounds:

Hydrogen sulfide

Carbon disulfide

Carbonyl sulfide

Municipal waste combustor organics (measured as total tetra-chlorinated through octa-chlorinated dibenzo-p-dioxins and dibenzofurans)

Municipal waste combustor metals (measured as particulate matter)

Municipal waste combustor acid gases (measured as the sum of SO₂ and HCl)

C. The classification of prevention of significant deterioration areas is as follows:

1. Class I.

a. Federal -- James River Face Wilderness Area (located in AQCR 2) and Shenandoah National Park (located in AQCR 2 and AQCR 4).

b. State -- None.

2. Class II -- All areas of the state not designated in Class I.

3. Class III -- None.

D. The area classification prescribed in subsection C of this section may be redesignated in accordance with 40 CFR 52.21(e), (g), (u) and (t).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 16, eff. June 1, 1996; amended, Virginia Register Volume 14, Issue 2, eff. January 1, 1998; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 2, eff. January 1, 1999; Volume 20, Issue 23, eff. August 25, 2004; Errata, 20:26 VA.R. 3210-3211 September 6, 2004.

9VAC5-20-206 Volatile organic compound and nitrogen oxides emissions control areas

Emissions control areas are geographically defined below by locality for the pollutants indicated.

1. Volatile organic compounds.

a. Northern Virginia Emissions Control Area.

| | Arlington County Fairfax County Loudoun County Prince William County Stafford County Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City | | --- | --- |

b. Fredericksburg Emissions Control Area.

| | Spotsylvania County Fredericksburg City | | --- | --- |

c. Richmond Emissions Control Area.

| | Charles City County Chesterfield County Hanover County Henrico County Prince George County Colonial Heights City Hopewell City Petersburg City Richmond City | | --- | --- |

d. Hampton Roads Emissions Control Area.

| | Gloucester County Isle of Wight County James City County York County Chesapeake City Hampton City Newport News City Norfolk City Poquoson City Portsmouth City Suffolk City Virginia Beach City Williamsburg City | | --- | --- |

e. Western Virginia Emissions Control Area.

| | Botetourt County Frederick County Roanoke County Roanoke City Salem City Winchester City | | --- | --- |

2. Nitrogen oxides.

a. Northern Virginia Emissions Control Area.

| | Arlington County Fairfax County Loudoun County Prince William County Stafford County Alexandria City Fairfax City Falls Church City Manassas City Manassas Park City | | --- | --- |

b. Fredericksburg Emissions Control Area.

| | Spotsylvania County Fredericksburg City | | --- | --- |

c. Richmond Emissions Control Area.

| | Charles City County Chesterfield County Hanover County Henrico County Prince George County Colonial Heights City Hopewell City Petersburg City Richmond City | | --- | --- |

d. Hampton Roads Emissions Control Area.

| | Gloucester County Isle of Wight County James City County York County Chesapeake City Hampton City Newport News City Norfolk City Poquoson City Portsmouth City Suffolk City Virginia Beach City Williamsburg City | | --- | --- |

e. Western Virginia Emissions Control Area.

| | Botetourt County Frederick County Roanoke County Roanoke City Salem City Winchester City | | --- | --- |

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Volume 22, Issue 26, eff. October 4, 2006.

9VAC5-20-207 [Reserved]. (Reserved)

9VAC5-20-210 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-20-220 Shutdown of a stationary source

A. Upon a final decision by the board that a stationary source or emissions unit is shut down permanently, the board shall revoke any permits by written notification to the owner and remove the stationary source or emissions unit from the emission inventory or consider its emissions to be zero in any air quality analysis conducted; and the stationary source or emissions unit shall not commence operation without a permit being issued under the applicable provisions of 9VAC5 Chapter 80 (9VAC5-80-10 et seq.).

B. The final decision shall be rendered as follows:

1. Upon a determination that the stationary source or emissions unit has not operated for a year or more, the board shall provide written notification to the owner (i) of its proposed decision that the stationary source or emissions unit is considered to be shut down permanently and (ii) that if the owner fails to provide within three months of the notice written response to the board that the shutdown is not to be considered permanent, the decision shall become final within six months of the notice. The response from the owner shall include the basis for the assertion that the shutdown is not to be considered permanent and a projected date for restart-up of the stationary source or emissions unit.

2. If the board should find that the basis for the assertion is not sound or the projected restart-up date allows for an unreasonably long period of inoperation, the decision to consider the shutdown permanent shall become final one year after the date of the notice of the proposed decision.

C. Nothing in any regulation of the board shall be construed to prevent the board and the owner from making a mutual determination that a stationary source or emissions unit is shut down permanently prior to any final decision rendered under subsection B of this section.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998.

9VAC5-20-230 Certification of documents

A. The following documents submitted to the board shall be signed by a responsible official: (i) any emission statement, application, form, report, or compliance certification; (ii) any document required to be so signed by any provision of the regulations of the board; or (iii) any other document containing emissions data or compliance information the owner wishes the board to consider in the administration of its air quality programs. A responsible official is defined as follows:

1. For a business entity, such as a corporation, association or cooperative, a responsible official is either:

a. The president, secretary, treasurer, or a vice president of the business entity in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the business entity; or

b. A duly authorized representative of such business entity if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either (i) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars) or (ii) the authority to sign documents has been assigned or delegated to such representative in accordance with procedures of the business entity.

2. For a partnership or sole proprietorship, a responsible official is a general partner or the proprietor, respectively.

3. For a municipality, state, federal, or other public agency, a responsible official is either a principal executive officer or ranking elected official. A principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

B. Any person signing a document under subsection A of this section shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

C. Subsection B of this section shall be interpreted to mean that the signer must have some form of direction or supervision over the persons gathering the data and preparing the document (the preparers), although the signer need not personally nor directly supervise these activities. The signer need not be in the same line of authority as the preparers, nor do the persons gathering the data and preparing the form need to be employees (e.g., outside contractors can be used). It is sufficient that the signer has authority to assure that the necessary actions are taken to prepare a complete and accurate document.

D. Any person who fails to submit any relevant facts or who has submitted incorrect information in a document shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998.

Chapter 40 Existing Stationary Sources

Part I Special Provisions

9VAC5-40-10 Applicability

A. The provisions of this chapter, unless specified otherwise, shall apply to existing sources for which emission standards are prescribed under this chapter.

B. The provisions of this chapter shall not apply to sources specified below except in cases where the provisions of this chapter (i) specifically provide otherwise or (ii) are more restrictive than the provisions of 9VAC5-50, 9VAC5-80, or any permit issued pursuant to 9VAC5-80. Sources exempted under this subsection shall be subject to the provisions of 9VAC5-50 or 9VAC5-60, or both, as applicable.

1. Any stationary source (or portion of it), the construction, modification or relocation of which commenced on or after March 17, 1972.

2. Any stationary source (or portion of it), the reconstruction of which commenced on or after December 10, 1976.

C. If a facility becomes subject to any requirement in the Regulations for the Control and Abatement of Air Pollution because it exceeds an exemption level, the facility shall continue to be subject to all applicable requirements even if future conditions cause the facility to fall below the exemption level.

D. Any owner subject to the provisions of this chapter may provide any report, notification or other document by electronic media if acceptable to both the owner and board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-01, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002; Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-40-20 Compliance

A. Ninety days after the effective date of any emission standard prescribed under this chapter, no owner or other person shall operate any existing source in violation of such standard.

1. Compliance with standards in this chapter, other than opacity standards, shall be determined by emission tests established by 9VAC5-40-30, unless specified otherwise in the applicable standard.

2. Compliance with federal requirements in this chapter may be determined by alternative or equivalent methods only if approved by the administrator. For purposes of this subsection, federal requirements consist of the following:

a. New source performance standards established pursuant to § 111 of the federal Clean Air Act.

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

c. Limitations and conditions that are part of an implementation plan.

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

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

f. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

3. Compliance with opacity standards in this chapter may be determined by one or more of the following means:

a. Conducting observations in accordance with Reference Method 9 or any alternative method approved by EPA. For purposes of determining initial compliance, the minimum total time of observations shall be three hours (30 six-minute averages) for the emission test or other set of observations (meaning those fugitive-type emission sources subject only to an opacity standard). Opacity readings of portions of plumes which contain condensed, uncombined water vapor shall not be used for purposes of determining compliance with opacity standards.

b. Evaluation of data resulting from use of continuous monitoring by transmissometer, provided the instrument used meets Performance Specification 1 in Appendix B of 40 CFR Part 60 and has been properly maintained and that the resulting data have not been altered in any way.

c. Use of any other method approved by EPA.

4. The opacity standards prescribed under this chapter shall apply at all times except during periods of startup, shutdown, malfunction, and as otherwise provided in the applicable standard. This exception shall not apply to the following federal requirements:

a. Limitations and conditions that are part of an implementation plan.

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

c. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

B. No owner of an existing source subject to the provisions of this chapter shall fail to conduct emission tests as required under this chapter.

C. No owner of an existing source subject to the provisions of this chapter shall fail to install, calibrate, maintain and operate equipment for continuously monitoring and recording emissions or process parameters or both as required under this chapter.

D. No owner of an existing source subject to the provisions of this chapter shall fail to provide notifications and reports, revise reports, maintain records or report emission test or monitoring results as required under this chapter.

E. At all times, including periods of startup, shutdown, soot blowing and malfunction, owners shall, to the extent practicable, maintain and operate any affected facility including associated air pollution control equipment in a manner consistent with air pollution control practices for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the board, which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the source.

F. At all times the disposal of volatile organic compounds shall be accomplished by taking measures, to the extent practicable, consistent with air pollution control practices for minimizing emissions. Volatile organic compounds shall not be intentionally spilled, discarded in sewers which are not connected to a treatment plant, or stored in open containers or handled in any other manner that would result in evaporation beyond that consistent with air pollution control practices for minimizing emissions.

G. The following provisions apply with respect to demonstrating compliance with opacity standards.

1. For the purpose of demonstrating initial compliance, opacity observations shall be conducted concurrently with the initial emission test unless one of the following conditions apply:

a. If no emission test is required, then opacity observations shall be conducted within 60 days after achieving the maximum production rate at which the affected facility will be operated but no later than 180 days after the compliance date.

b. If visibility or other conditions prevent the opacity observations from being conducted concurrently with the initial emission test, the owner shall reschedule the opacity observations as soon after the initial emission test as possible, but not later than 30 days thereafter, and shall advise the board of the rescheduled date. In these cases, the 30-day prior notification to the board required by 9VAC5-40-50 A 3 shall be waived. The rescheduled opacity observations shall be conducted (to the extent possible) under the same operating conditions that existed during the initial emission test. The visible emissions observer shall determine whether visibility or other conditions prevent the opacity observations from being made concurrently with the initial emission test in accordance with procedures contained in Reference Method 9.

Opacity readings of portions of plumes which contain condensed, uncombined water vapor shall not be used for purposes of determining compliance with opacity standards. The owner of an affected facility shall make available, upon request by the board, such records as may be necessary to determine the conditions under which the visual observations were made and shall provide evidence indicating proof of current visible observer emission certification. The results of continuous monitoring by transmissometer which indicate that the opacity at the time visual observations were made was not in excess of the standard are probative but not conclusive evidence of the actual opacity of an emission, provided the source meets the burden of proving that the instrument used meets (at the time of the alleged violation) Performance Specification 1 in Appendix B of 40 CFR Part 60 and has been properly maintained and (at the time of the alleged violation) that the resulting data have not been altered in any way.

2. Except as provided in subdivision 3 of this subsection, the owner of an affected facility to which an opacity standard in this chapter applies shall conduct opacity observations in accordance with subdivision A 3 of this section, shall record the opacity of emissions, and shall report to the board the opacity results along with the results of the initial emission test. The inability of an owner to secure a visible emissions observer shall not be considered a reason for not conducting the opacity observations concurrent with the initial emission test.

3. The owner of an affected facility to which an opacity standard in this chapter applies may request the board to determine and to record the opacity of emissions from the affected facility during the initial emission test and at such times as may be required. The owner of the affected facility shall report the opacity results. Any request to the board to determine and to record the opacity of emissions from an affected facility shall be included in the notification required in 9VAC5-40-50 A 3. If, for some reason, the board cannot determine and record the opacity of emissions from the affected facility during the emission test, then the provisions of subdivision 1 of this subsection shall apply.

4. An owner of an affected facility using a continuous opacity monitor (transmissometer) shall record the monitoring data produced during the initial emission test and shall furnish the board a written report of the monitoring results along with the Reference Method 9 and initial emission test results.

H. The following provisions apply with respect to new or more stringent emission standards:

1. The following provisions apply with respect to emission standards for volatile organic compounds:

a. In the case of any emission standard for volatile organic compounds adopted by the board which is more stringent than the emission standard for the source in effect prior to such adoption, if any, or where there was no emission standard, the source shall not be considered in violation of the newly adopted emission standard provided that the owner accomplishes the following:

(1) Complies with the emission standard as expeditiously as possible but in no case later than one year after the effective date of the emission standard.

(2) Within one month of achieving compliance, notifies the board of same.

(3) Within six months of achieving compliance, demonstrates to the satisfaction of the board compliance with the emission standard.

b. The reprieve provided by subdivision 1 a of this subsection shall only apply in cases where it is necessary for the owner to:

(1) Install emission control equipment or other equipment that alters the facility in order to comply with the emission standard; or

(2) Switch fuel or raw materials or both in order to comply with the emission standard.

c. Owners of sources not in compliance with the newly adopted emission standard, but in compliance with the provisions of subdivision 1 a of this subsection shall not be subject to any penalties for violation of the newly adopted emission standard that may be required by the Virginia Air Pollution Control Law.

d. Any reprieve from the sanctions of any provision of the Virginia Air Pollution Control Law pursuant to subdivision 1 a of this subsection shall not extend beyond the date by which compliance is to be achieved.

e. Nothing in subdivision 1 a of this subsection shall prevent the board from promulgating a separate compliance schedule for any source if the board finds that it is technologically infeasible or it is infeasible due to the nonavailability of necessary equipment or materials or other circumstances beyond the owner's control for the source to achieve compliance within one year of the effective date of an emission standard.

f. All compliance schedules proposed or prescribed under this section shall provide for compliance with the applicable emission standards as expeditiously as practicable.

g. Any compliance schedule approved under this subsection may be revoked at any time if the source owner does not meet the stipulated increments of progress, and if the failure to meet an increment is likely to result in failure to meet the date for final compliance, and the failure to meet the increment is due to causes within the owner's control.

2. The following provisions apply with respect to emission standards for pollutants other than volatile organic compounds:

a. In the case of any emission standard adopted by the board which is more stringent than the emission standard for the source in effect prior to such adoption, if any, or where there was no emission standard, the source shall not be considered in violation of the newly adopted emission standard provided that the owner accomplishes the following:

(1) Submits in a form and manner satisfactory to the board, a control program showing how compliance shall be achieved within the time frame in the applicable compliance schedule prescribed under 9VAC5-40-21; or, where no applicable compliance schedule is prescribed under 9VAC5-40-21, how compliance shall be achieved as expeditiously as possible; but in no case later than three years after the effective date of such emission standard.

(2) Receives approval of the board of such control program.

(3) Complies with all provisions, terms and conditions of the control program including the increments of progress.

b. The reprieve provided by subdivision 2 a of this subsection shall only apply in cases where it is necessary for the owner to:

(1) Install emission control equipment or other equipment that alters the facility in order to comply with the emission standard; or

(2) Switch fuel or raw materials or both in order to comply with the emission standard.

c. Owners of sources not in compliance with the newly adopted emission standard, but in compliance with the provisions of subdivision 2 a of this subsection shall not be subject to any penalties for violation of the newly adapted emission standard that may be required by the Virginia Air Pollution Control Law.

d. Any reprieve from the sanctions of any provision of the Virginia Air Pollution Control Law pursuant to subdivision 2 a of this subsection shall not extend beyond the date, specified in the emission standard or approved control program, by which compliance is to be achieved.

e. Control programs submitted under the provisions of subdivision 2 a of this subsection shall be processed in accordance with the provisions of 9VAC5-20-170. However, if the control program contains a compliance schedule which conforms to the applicable schedule prescribed in 9VAC5-40-21, the public hearing provision of 9VAC5-20-170 shall not apply.

f. Nothing in this section shall prevent the board from promulgating a separate compliance schedule for any source if the board finds that the application of a compliance schedule in 9VAC5-40-21 is technologically infeasible, or if the board finds that the application of a compliance schedule in 9VAC5-40-21 is infeasible due to the nonavailability of necessary equipment or materials or other circumstances beyond the owner's control.

g. Nothing in this section shall prevent the owner of a source subject to a compliance schedule in 9VAC5-40-21 from submitting to the board a proposed alternative compliance schedule provided the following conditions are met:

(1) The proposed alternative compliance schedule is submitted within six months of the effective date of the emission standard;

(2) The final control plans for achieving compliance with the applicable emission standard are submitted simultaneously;

(3) The alternative compliance schedule contains the same increments of progress as the schedule for which it is proposed as an alternative; and

(4) Sufficient documentation is submitted by the owner of the source to justify the alternative dates proposed for the increments of progress.

h. All compliance schedules proposed or prescribed under this section shall provide for compliance with the applicable emission standards as expeditiously as practicable.

i. Any compliance schedule approved under this subsection may be revoked at any time if the source owner does not meet the stipulated increments of progress, and if the failure to meet an increment is likely to result in failure to meet the date for final compliance, and the failure to meet the increment is due to causes within the owner's control.

j. The provisions of 9VAC5-40-21 shall not apply to owners of sources which are in compliance with the applicable emission standard and for which the owners have determined and certified compliance to the satisfaction of the board within 12 months of the effective date of the applicable emission standard.

I. The following provisions apply with respect to stack heights:

1. The degree of emission limitation required of any source owner for control of any air pollutant shall not be affected in any manner by:

a. So much of the stack height of any source as exceeds good engineering practice; or

b. Any other dispersion technique.

2. The provisions of subdivision 1 of this subsection shall not apply to:

a. Stack heights in existence, or dispersion techniques implemented on or before December 31, 1970, except where pollutants are being emitted from such stacks or using such dispersion techniques by sources, as defined in § 111(a)(3) of the federal Clean Air Act, which were constructed, or reconstructed, or for which major modifications, as defined in Article 8 (9VAC5-80-1700 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5 Chapter 80, were carried out after December 31, 1970; or

b. Coal-fired steam electric generating units subject to the provisions of § 118 of the federal Clean Air Act, which commenced operation before July 1, 1957, and whose stacks were constructed under a construction contract awarded before February 8, 1974.

3. Prior to the adoption of a new or revised emission limitation that is based on a good engineering practice stack height that exceeds the height allowed by subdivision 1 or 2 of the GEP definition, the board shall notify the public of the availability of the demonstration study and shall provide the opportunity for public hearing on it.

4. For purposes of this subsection, such height shall not exceed the height allowed by subdivision 1 or 2 of the GEP definition unless the owner demonstrates to the satisfaction of the board, after 30 days notice to the public and opportunity for public hearing, that a greater height is necessary as provided under subdivision 3 of the GEP definition.

5. In no event may the board prohibit any increase in any stack height or restrict in any manner the maximum stack height of any source.

6. Compliance with emission standards in this chapter shall not be affected in any manner by the stack height of any source or any other dispersion technique.

J. For the purpose of submitting compliance certifications or establishing whether or not a person has violated or is in violation of any standard in this chapter, nothing in this chapter shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate emission or compliance test or procedure had been performed.

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

History

• Historical Notes: Derived from VR120-04-02, eff. July 1, 1986; amended, Virginia Register Volume 7, Issue 14, eff. July 1, 1991; Volume 18, Issue 21, eff. August 1, 2002; Volume 24, Issue 5, eff. December 12, 2007.

9VAC5-40-21 Compliance schedules

A. The provisions of this section are a supplement to and shall be applied in context with the provisions of 9VAC5-40-20 H 2.

B. Compliance by process and emission control equipment installations.

1. Owners proposing to comply with an emission standard by the installation and operation of emission control equipment or replacement process equipment or both shall adhere to the increments of progress contained in the following schedule:

a. Final plans for the installation and operation of emission control equipment or process equipment or both shall be submitted within six months of the effective date of the applicable emission standard.

b. Contracts for the installation of emission control equipment or process equipment shall be awarded, or orders shall be issued for purchase of component parts to accomplish installation, within 16 months of the effective date of the applicable emission standard.

c. Initiation of on-site construction for the installation of the emission control equipment or process equipment or both shall begin within 22 months of the effective date of the applicable emission standard.

d. On-site construction or installation of the emission control equipment or process equipment or both shall be completed within 30 months of the effective date of the applicable emission standard.

e. Final compliance, determined in accordance with test methods acceptable to the board, shall be achieved within 32 months of the effective date of the applicable emission standard.

2. Owners of sources subject to the compliance schedule in subdivision 1 of this subsection shall certify to the board within five days after deadline for each increment of progress, whether the required increment of progress has been met.

C. Compliance by process equipment modification.

1. Owners proposing to comply with an emission standard by the modification of existing processing equipment shall adhere to the increments of progress contained in the following schedule.

a. Final plans for the process equipment modification shall be submitted within six months of the effective date of the applicable emission standard.

b. Contracts for the process equipment modification shall be awarded, or orders shall be issued for the purchase of component parts to accomplish the process equipment modification, within 15 months of the effective date of the applicable emission standard.

c. Initiation of on-site construction for the modification of the process equipment shall begin within 18 months of the effective date of the emission standard.

d. On-site construction or installation of process modifications shall be completed within 22 months of the effective date of the applicable emission standard.

e. Final compliance, determined in accordance with test methods acceptable to the board, shall be achieved within 24 months of the effective date of the applicable emission standard.

2. Owners of sources subject to the compliance schedule in subdivision 1 of the subsection shall certify to the board within five days after the deadline for each increment of progress, whether the required increment of progress has been met.

D. Compliance by use of process materials modification.

1. Except as provided under subdivision D 3 of this section, owners proposing to comply with an emission standard by the use of new process materials shall adhere to the increments of progress contained in the following schedule:

a. Final plans for the use of new process materials shall be submitted within six months of the effective date of the applicable emission standard.

b. Research and development of new process materials shall be completed within 18 months of the effective date of the applicable emission standard.

c. Evaluation of new process materials product quality and commercial acceptance shall be completed within 24 months of the effective date of the applicable emission standard.

d. Purchase orders shall be issued for new process materials and process modifications within 26 months of the effective date of the applicable emission standard.

e. Initiation of process modifications shall begin within 28 months of the effective date of the applicable emission standard.

f. Process modifications shall be completed and use of new process materials shall begin within 34 months of the effective date of the applicable emission standard.

g. Final compliance, determined in accordance with test methods acceptable to the board, shall be achieved within 36 months of the effective date of the applicable emission standard.

2. Owners of sources subject to the compliance schedule in subdivision D 1 of this section shall certify to the board within five days after the deadline for each increment of progress, whether the required increment of progress has been met.

3. Where the board determines that the use of new process materials has been sufficiently researched and developed for a particular application, owners proposing to comply with an emission standard by the use of new process materials shall adhere to the increments of progress contained in the following schedule:

a. Final plans for the use of new process materials shall be submitted within six months of the effective date of the applicable emission standard.

b. Evaluation of new process materials product quality and commercial acceptance shall be completed within 16 months of the effective date of the applicable emission standard.

c. Purchase orders shall be issued for new process materials and process modifications within 18 months of the effective date of the applicable emission standard.

d. Initiation of process modifications shall begin within 22 months of the effective date of the applicable emission standard.

e. Process modifications shall be completed and use of new process materials shall begin within 30 months of the effective date of the applicable emission standard.

f. Final compliance, determined in accordance with test methods acceptable to the board, shall be achieved within 32 months of the effective date of the applicable emission standard.

4. Owners of sources subject to the compliance schedule in subdivision D 3 of this section shall certify to the board within five days after deadline for each increment of progress, whether the required increment of progress has been met.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997.

9VAC5-40-22 Interpretation of emission standards based on process weight rate tables

A. General. Unless otherwise approved by the board, interpretation of emission standards based on process weight rate tables shall be in accordance with this section.

B. Definitions.

1. For the purpose of these regulations and subsequent amendments of any orders issued by the board, the words or terms shall have the meaning given them in subdivision B 3 of this section.

2. As used in this section, all terms not defined here shall have the meaning given them in 9VAC5 Chapter 10 (9VAC5-10-10 et seq.), unless otherwise required by context.

3. Terms defined.

"Manufacturing operation" means any process operation or combination of physically connected dissimilar process operations which is operated to effect physical or chemical changes, or both, in an article.

"Materials handling equipment" means any equipment used as a part of a process operation or combination of process operations which does not effect a physical or chemical change in the material or in an article, such as, but not limited to, conveyors, elevators, feeders or weighers.

"Physically connected" means any combination of process operations connected by materials handling equipment and designed for simultaneous complementary operation.

"Process operations" means any method, from, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

(1) For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

(2) For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

"Production rate" means the weight of final product obtained per hour of operation. If the rate of product going to storage can vary, the production rate shall be determined by calculation from the feed rates of raw material.

C. Interpretation of standards.

1. The total process weight rate for each individual process unit at a plant or premises shall be used for determining the maximum allowable emission rate of particulate that passes through a stack or stacks.

2. Unless otherwise specified, the allowable particulate mass emission rate shall be determined for individual units of equipment.

3. Unless otherwise specified or unless an equation is provided, the particulate emission limit above the maximum process weight rate shall be determined by linear interpolation. For interpolation between two values on a process weight rate table the following equation should be used:

| | E = [E_G - E_L] | P - P_L | + E_L | | --- | --- | --- | --- | | | P_G - P_L | | |

where: E = emission rate being calculated.

E_L = emission rate for P_L as determined from the process weight rate table.

E_G = emission rate for P_G as determined from the process weight rate table.

P = process weight rate of the unit.

P_L = process weight rate in the process weight rate table which is closest to but less than the process weight rate of the unit.

P_G = process weight rate listed in the process weight rate table which is closest to but greater than the process weight rate of the unit.

4. Where the nature of any process or design of any equipment is such as to permit more than one interpretation of a regulation, the interpretation that results in the minimum value for allowable emissions shall apply.

5. The following are examples that illustrate how the requirements apply to similar units manifolded to a common stack and a number of process units that are combined in a row. (For the purposes of this illustration an emission rate of 0.551 pounds per hour for a process weight rate of 100 pounds per hour was used.)

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997.

9VAC5-40-30 Emission testing

A. Emission tests for existing sources shall be conducted and reported, and data shall be reduced as set forth in this chapter and in the appropriate reference methods unless the board (i) specifies or approves, in specific cases, the use of a reference method with minor changes in methodology; (ii) approves the use of an equivalent method; (iii) approves the use of an alternative method the results of which the board has determined to be adequate for indicating whether a specific source is in compliance; (iv) waives the requirement for emission tests because the owner of a source has demonstrated by other means to the board's satisfaction that the affected facility is in compliance with the standard; or (v) approves shorter sampling times and smaller sample volumes when necessitated by process variables or other factors. In cases where no appropriate reference method exists for an existing source subject to an emission standard for volatile organic compounds, the applicable test method in 9VAC5-20-121 may be considered appropriate.

B. Emission testing for existing sources shall be subject to testing guidelines approved by the board. Procedures may be adjusted or changed by the board to suit specific sampling conditions or needs based upon good practice, judgement and experience. When such tests are adjusted, consideration shall be given to the effect of such change on established emission standards. Tests shall be performed under the direction of persons whose qualifications are acceptable to the board.

C. Emission tests for existing sources shall be conducted under conditions which the board shall specify to the owner, based on representative performance of the source. The owner shall make available to the board such records as may be necessary to determine the conditions of the emission tests. Operations during periods of startup, shutdown and malfunction shall not constitute representative conditions for the purpose of an emission test. During the initial emission test, emissions in excess of the level of the applicable emission limit during periods of startup, shutdown, and malfunction shall not be considered a violation of the applicable emission limit unless otherwise specified in the applicable standard.

D. An owner may request that the board determine the opacity of emissions from an existing source during the emission tests required by this section.

E. Each emission test for an existing source shall consist of three separate runs using the applicable test method. Each run shall be conducted for the time and under the conditions acceptable to the board. For the purpose of determining compliance with an applicable standard, the arithmetic mean of the results of the three runs shall apply. In the event that a sample is accidentally lost, or if conditions occur in which one of the three runs must be discontinued because of forced shutdown, failure of an irreplaceable portion of the sample train, extreme meteorological conditions or other circumstances beyond the owner's control, compliance may, upon the approval of the board, be determined using the arithmetic mean of the results of the two other runs.

F. The board may test emissions of air pollutants from any existing source. Upon request of the board the owner shall provide, or cause to be provided, emission testing facilities as follows:

1. Sampling ports adequate for test methods applicable to such source. This includes (i) constructing the air pollution control system such that volumetric flow rates and pollutant emission rates can be accurately determined by applicable test methods and procedures and (ii) providing a stack or duct with acceptable flow characteristics during emission tests, as demonstrated by applicable test methods and procedures.

2. Safe sampling platforms.

3. Safe access to sampling platforms.

4. Utilities for sampling and testing equipment.

G. Upon request of the board the owner of any existing source subject to the provisions of this chapter shall conduct emission tests in accordance with procedures approved by the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-03, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002.

9VAC5-40-40 Monitoring

A. Unless otherwise approved by the board, owners of existing sources specified in the applicable emission standard shall install, calibrate, maintain and operate systems for continuously monitoring and recording emissions of specified pollutants. However, nothing in this chapter shall exempt any owner from complying with subsection F of this section.

B. All continuous monitoring systems and monitoring devices shall be installed and operational by July 5, 1983. Verification of operational status shall, as a minimum, consist of the completion of the conditioning period specified by applicable requirements in Appendix B of 40 CFR Part 60.

C. Within 30 days after the date set forth in subsection B of this section and at such other times as may be requested by the board, the owner of any existing source shall conduct continuous monitoring system performance evaluations and furnish the board within 60 days of them two or, upon request, more copies of a written report of the results of such tests.

D. Unless otherwise approved by the board, all continuous monitoring systems required by subsection A of this section shall be installed, calibrated, maintained and operated in accordance with applicable requirements in this section, 9VAC5-40-41, and the applicable emission standard.

E. After receipt and consideration of written application, the board may approve alternatives to any monitoring procedures or requirements of this chapter including, but not limited to, the following:

1. Alternative monitoring requirements when installation of a continuous monitoring system or monitoring device specified by this chapter would not provide accurate measurements due to liquid water or other interferences caused by substances within the effluent gases.

2. Alternative monitoring requirements when the source is infrequently operated.

3. Alternative monitoring requirements to accommodate continuous monitoring systems that require additional measurements to correct for stack moisture conditions.

4. Alternative locations for installing continuous monitoring systems or monitoring devices when the owner can demonstrate the installation at alternate locations will enable accurate and representative measurements.

5. Alternative methods of converting pollutant concentration measurements to units of the standards.

6. Alternative procedures for computing emission averages that do not require integration of data (e.g., some facilities may demonstrate that the variability of their emissions is sufficiently small to allow accurate reduction of data based upon computing averages from equally spaced data points over the averaging period).

7. Alternative monitoring requirements when the effluent from a single source or the combined effluent from two or more sources are released to the atmosphere through more than one point.

8. Alternative procedures for performing calibration checks.

9. Alternative monitoring requirements when the requirements of this section would impose an extreme economic burden on the owner.

10. Alternative monitoring requirements when the continuous monitoring systems cannot be installed due to physical limitations at the source.

11. Alternative continuous monitoring systems that do not meet the design or performance requirements in Performance Specification 1 of Appendix B of 40 CFR Part 60, but which adequately demonstrate a definite and consistent relationship between its measurements and the measurements of opacity by a system complying with the requirements in Performance Specification 1 of Appendix B of 40 CFR Part 60. The board may require that such demonstration be performed for each source.

12. Alternative monitoring systems that meet the requirements of 40 CFR Part 75 (i) if a source is subject to 40 CFR Part 75 or (ii) if the board determines that the requirements of 40 CFR Part 75 are more appropriate for the source than the pertinent provisions of this chapter.

F. Upon request of the board, the owner of an existing source subject to the provisions of this chapter shall install, calibrate, maintain and operate equipment for continuously monitoring and recording emissions or process parameters or both in accordance with methods and procedures acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-04, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002.

9VAC5-40-41 Emission monitoring procedures for existing sources

A. The provisions of this section shall apply to existing sources. These provisions may also apply, at the discretion of the board, to new and modified sources if the source type is not subject to Article 5 (9VAC5-50-400 et seq.) of 9VAC5 Chapter 50.

B. General procedures.

1. Continuous monitoring system performance evaluations shall be conducted in accordance with the requirements and procedures contained in the applicable performance specification in Appendix B of 40 CFR Part 60 as follows:

a. Continuous monitoring systems for measuring opacity of emissions shall comply with performance specification 1.

b. Continuous monitoring systems for measuring nitrogen oxides emissions shall comply with performance specification 2.

c. Continuous monitoring systems for measuring sulfur dioxide emissions shall comply with performance specification 2.

d. Continuous monitoring systems for measuring oxygen content or carbon dioxide content of effluent gases shall comply with performance specification 3.

2. Owners of all continuous monitoring systems installed in accordance with the provisions of this section shall check the zero and span drift at least once daily in accordance with the method prescribed by the manufacturer of such systems unless the manufacturer recommends adjustments at shorter intervals, in which case such recommendations shall be followed. The zero and span shall, as a minimum, be adjusted whenever the 24-hour zero drift or 24-hour calibration drift limits of the applicable performance specifications in Appendix B of 40 CFR Part 60 are exceeded. For continuous monitoring systems measuring opacity of emissions, the optical surfaces exposed to the effluent gases shall be cleaned prior to performing the zero or span drift adjustment except that for systems using automatic zero adjustments, the optical surfaces shall be cleaned when the cumulative automatic zero compensation exceeds 4% opacity. Unless otherwise approved by the board, the following procedures, as applicable, shall be followed:

a. For extractive continuous monitoring systems measuring gases, minimum procedures shall include introducing applicable zero and span gas mixtures into the measurement system as near the probe as is practical. Span and zero gases certified by their manufacturer to be traceable to National Bureau of Standards reference gases shall be used whenever these reference gases are available. The span and zero gas mixtures shall be the same composition as specified in Appendix B of 40 CFR Part 60. Every six months from date of manufacturer, span and zero gases shall be reanalyzed by conducting triplicate analyses with Reference Methods 6 for SO₂, 7 for NO_X, and 3 for O₂ and CO₂, respectively. The gases may be analyzed at less frequent intervals if longer shelf lives are guaranteed by the manufacturer.

b. For nonextractive continuous monitoring systems measuring gases, minimum procedures shall include upscale checks using a certified calibration gas cell or test cell which is functionally equivalent to a known gas concentration. The zero check may be performed by computing the zero value from upscale measurements or by mechanically producing zero condition.

c. For continuous monitoring systems measuring opacity of emissions, minimum procedures shall include a method for producing a simulated zero opacity condition and an upscale (span) opacity condition using a certified neutral density filter or other related technique to produce a known obscuration of the light beam. Such procedures shall provide a system check of the analyzer internal optical surfaces and all electronic circuitry including the lamp and photodetector assembly.

3. Except for system breakdowns, repairs, calibration checks, and zero and span adjustments required under subdivision B 2 of this section, all continuous monitoring systems shall be in continuous operation and shall meet minimum frequency of operation requirements as follows:

a. All continuous monitoring systems for measuring opacity of emissions shall complete a minimum of one cycle of sampling and analyzing for each successive 15-second period and one cycle of data recording for each successive six-minute period.

b. All continuous monitoring systems for measuring nitrogen oxides, sulfur dioxide, carbon dioxide or oxygen shall complete a minimum of one cycle of operation (sampling, analyzing and data recording) for each successive 15-minute period.

4. All continuous monitoring systems or monitoring devices shall be installed such that representative measurements of emissions or process parameters from the affected facility are obtained. Additional procedures for location of continuous monitoring systems contained in the applicable performance specifications in Appendix B of 40 CFR Part 60 shall be used.

5. When the effluents from a single affected facility or two or more affected facilities subject to the same standards are combined before being released to the atmosphere, the owner may install applicable continuous monitoring systems on each effluent or on the combined effluent. When the affected facilities are not subject to the same standards, separate continuous monitoring systems shall be installed on each effluent. When the effluent from one affected facility is released to the atmosphere through more than one point, the owner shall install applicable continuous monitoring systems on each separate effluent unless the installation of fewer systems is approved by the board.

6. Owners of all continuous monitoring systems for measurement of opacity shall reduce all data to six-minute averages for six-minute periods and for systems other than opacity to one-hour averages for one-hour periods. Six-minute opacity averages shall be calculated from 24 or more data points spaced at approximately equal intervals over each six-minute period. For systems other than opacity, one-hour averages shall be computed from four or more date points spaced at approximately equal intervals over each one-hour period. Data recorded during periods of system breakdowns, repairs, calibration checks and zero and span adjustments shall not be included in the data averages computed under this subdivision. An arithmetic or integrated average of all data may be used. The data output of all continuous monitoring systems may be recorded in reduced or nonreduced form (e.g., ppm pollutant and percent O₂ of lb or pollutant per million Btu). All excess emissions should be converted into units of the standard using the applicable conversion procedures specified in the applicable standard. After conversion into units of the standard, the data may be rounded to the same number of significant digits used to specify the applicable standard (e.g., rounded to the nearest one percent opacity).

C. Specific procedures. Specific procedures for emission monitoring may be found in the rule covering the source type in question.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997.

9VAC5-40-50 Notification, records and reporting

A. Any owner of an existing source subject to the provisions of this chapter shall provide written notifications to the board of the following:

1. The date upon which demonstration of the continuous monitoring system performance begins in accordance with 9VAC5-40-40 C. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

2. The date of any emission test the owner wishes the board to consider in determining compliance with a standard. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

3. The anticipated date for conducting the opacity observations required by 9VAC5-40-20 G 1. The notification shall also include, if appropriate, a request for the board to provide a visible emissions reader during an emission test. The notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

B. Any owner of an existing source subject to the provisions of 9VAC5-40-40 A shall maintain records of the occurrence and duration of any startup, shutdown or malfunction in the operation of such source; any malfunction of the air pollution control equipment; or any periods during which a continuous monitoring system or monitoring device is inoperative.

C. Each owner required to install a continuous monitoring system (CMS) or monitoring device shall submit a written report of excess emissions (as defined in the applicable emission standard) and either a monitoring systems performance report or a summary report form, or both, to the board semiannually, except when (i) more frequent reporting is specifically required by an applicable emission standard or the CMS data are to be used directly for compliance determination, in which case quarterly reports shall be submitted; or (ii) the board, on a case-by-case basis, determines that more frequent reporting is necessary to accurately assess the compliance status of the source. The summary report and form shall meet the requirements of 40 CFR 60.7(d). The frequency of reporting requirements may be reduced as provided in 40 CFR 60.7(e). All reports shall be postmarked or submitted electronically by the 30th day following the end of each calendar half (or quarter, as appropriate). Written reports of excess emissions shall include the following information:

1. The magnitude of excess emissions computed in accordance with 9VAC5-40-41 B 6, any conversion factors used, and the date and time of commencement and completion of each period of excess emissions. The process operating time during the reporting period.

2. Specific identification of each period of excess emissions that occurs during startups, shutdowns and malfunctions of the source. The nature and cause of any malfunction (if known), the corrective action taken or preventative measures adopted.

3. The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks and the nature of the system repairs or adjustments.

4. When no excess emissions have occurred or the continuous monitoring systems have not been inoperative, repaired or adjusted, such information shall be stated in the report.

D. Any owner of an existing source subject to the provisions of this chapter shall maintain a file of all measurements, including continuous monitoring system, monitoring device, and emission testing measurements; all continuous monitoring system performance evaluations; all continuous monitoring system or monitoring device calibration checks; adjustments and maintenance performed on these systems or devices; and all other information required by this chapter recorded in a permanent form suitable for inspection. The file shall be retained for at least two years (unless a longer period is specified in the applicable standards) following the date of such measurements, maintenance, reports and records.

E. Any data or information required by the Regulations for the Control and Abatement of Air Pollution, any permit or order of the board, or that the owner wishes the board to consider, to determine compliance with an emission standard shall be recorded or maintained in a timeframe consistent with the averaging period of the standard.

F. The owner of a stationary source shall keep records as may be necessary to determine its emissions. Any owner claiming that a facility is exempt from the provisions of the Regulations for the Control and Abatement of Air Pollution shall keep records as may be necessary to demonstrate to the satisfaction of the board its continued exempt status.

G. The owner of an existing source subject to any emission standard in Article 26 (9VAC5-40-3560 et seq.) through Article 36 (9VAC5-40-5060 et seq.) of 9VAC5-40 shall maintain records in accordance with the applicable procedure in 9VAC5-20-121.

H. Upon request of the board, the owner of an existing source subject to the provisions of this chapter shall provide notifications and report, revise reports, maintain records or report emission test or monitoring result in a manner and form and using procedures acceptable to board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-05, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002; Volume 40, Issue 14, eff. April 11, 2024.

Article 1 Visible Emissions and Fugitive Dust/Emissions (Rule 4‑1)

9VAC5-40-60 Applicability and designation of affected facility

Article 1 Visible Emissions and Fugitive Dust/Emissions (Rule 4‑1)

A. The affected facilities to which the provisions of this article apply are the following:

1. Each source of visible emissions; and

2. Each source of fugitive dust/emissions.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0101, eff. January 1, 1985.

9VAC5-40-70 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words and terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Fugitive dust" means particulate matter composed of soil or other materials, or both, of natural origin. Fugitive dust may include emissions from haul roads, wind erosion of exposed surfaces and storage piles and other activities in which the material is either removed, stored, transported or redistributed.

"Fugitive emissions" means emissions which are generated by industrial or other activities and which do not pass through a stack, chimney, vent or other functionally equivalent opening, but which may escape from openings (such as windows, doors, ill-fitting closures or poorly maintained equipment) or material handling equipment.

"Opacity" means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background, expressed as a percentage.

"Six-minute period" means any one of the 10 equal parts of one hour or a one-hour period, as may be applicable.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0102, eff. January 1, 1985.

9VAC5-40-80 Standard for visible emissions

Unless specified otherwise in this part, no owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any visible emissions which exhibit greater than 20% opacity, except for one six-minute period in any one hour of not more than 60% opacity. Failure to meet the requirements of this section because of the presence of water vapor shall not be a violation of this section.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120‑04‑0103, eff. January 1, 1985.

9VAC5-40-90 Standard for fugitive dust/emissions

No owner or other person shall cause or permit any materials or property to be handled, transported, stored, used, constructed, altered, repaired or demolished without taking reasonable precautions to prevent particulate matter from becoming airborne. Such reasonable precautions may include, but are not limited to, the following:

1. Use, where possible, of water or chemicals for control of dust in the demolition of existing buildings or structures, construction operations, the grading of roads or the clearing of land.

2. Application of asphalt, water, or suitable chemicals on dirt roads, materials stockpiles and other surfaces which may create airborne dust; the paving of roadways and maintaining them in a clean condition.

3. Installation and use of hoods, fans and fabric filters to enclose and vent the handling of dusty materials. Adequate containment methods shall be employed during sandblasting or other similar operations.

4. Open equipment for conveying or transporting materials likely to create objectionable air pollution when airborne shall be covered or treated in an equally effective manner at all times when in motion.

5. The prompt removal of spilled or tracked dirt or other materials from paved streets and of dried sediments resulting from soil erosion.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia and §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-04-0104, eff. January 1, 1985; amended, Virginia Register Volume 19, Issue 6, eff. February 1, 2003.

9VAC5-40-100 Monitoring

A. Unless otherwise approved by the board, all continuous monitoring systems required by this article shall be installed, calibrated, maintained and operated in accordance with applicable requirements in 9VAC5-40-40 and 9VAC5-40-41.

B. Each owner required to install a continuous monitoring system shall provide notifications and reports and maintain records and monitoring results in accordance with the requirements of 9VAC5-40-50.

C. In cases where the requirements of 9VAC5-40-40 and 9VAC5-40-41 are not appropriate for a particular source type, the owner shall comply with other procedures acceptable to the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0105, eff. January 1, 1985.

9VAC5-40-110 Test methods and procedures

The provisions of 9VAC5-40-20 A 2 apply to determine compliance with the standard prescribed in 9VAC5-40-80.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0106, eff. January 1, 1985.

9VAC5-40-120 Waivers

A. A waiver from the opacity emission limitation in 9VAC5-40-80 may be granted by the director, provided that a technical decision is reached that the plume opacity observations made in accordance with 9VAC5-40-20 and 9VAC5-40-110 are not representative of the pollutant loading of the plume.

B. Upon granting the above waiver, the director shall require one or more alternate source surveillance methods, which may include, but are not limited to, the following:

1. Requiring the owner to install, calibrate, maintain and operate systems for continuously monitoring and recording emissions of specified pollutants in accordance with 9VAC5-40-40 and 9VAC5-40-100.

2. Requiring the owner to conduct, at specified intervals, emission tests for measuring emissions of specified pollutants in accordance with 9VAC5-40-30.

3. Establishing an opacity emission limitation for the facility based on a correlation between tests of visible and other specified pollutant emissions.

C. The waiver may be granted for an indefinite period of time; however, approval may be withdrawn by the director:

1. For failure to adhere to any terms or conditions of the waiver;

2. If the affected facility is found to be in violation of any applicable emission standard; or

3. For failure to conduct or adhere to any alternate source surveillance method required for waiver approval.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia and §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-04-0107, eff. January 1, 1985; amended, Virginia Register Volume 19, Issue 6, eff. February 1, 2003.

Article 2 Emission Standards for Odor (Rule 4‑2)

9VAC5-40-130 Applicability and designation of affected facility

Article 2 Emission Standards for Odor (Rule 4‑2)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each facility that emits odor.

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

C. The provisions of this article do not apply to accidental or other infrequent emissions of odors.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120‑04‑0201, eff. January 1, 1985.

9VAC5-40-140 Standard for odor

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions which cause an odor objectionable to individuals of ordinary sensibility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0203, eff. January 1, 1985.

9VAC5-40-150 Determination of violation

A. The determination of objectionable odor shall be made after a thorough review of all data or evidence relating to the situation which may be obtained by an investigation directed by the board. As a part of the investigation, the board, at its discretion, may hold a public hearing in accordance with 9VAC5-20-40 A 1 to hear complaints. The investigation may also include use of an odor panel survey and other methods approved by the board, or both.

B. Upon determination that an odor violates 9VAC5-40-140 the owner shall use such measures as approved by the board for the economically and technologically feasible control of odorous emissions.

Article 3 Emission Standards for Toxic Pollutants (Rule 4-3) [Repealed]

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0204, eff. January 1, 1985.

Article 3 Emission Standards for Toxic Pollutants (Rule 4-3) [Repealed]

9VAC5-40-160 (Repealed.)

Article 3 Emission Standards for Toxic Pollutants (Rule 4-3) [Repealed]

Historical Notes

Derived from VR120-04-0301, eff. October 15, 1991; repealed, Virginia Register Volume 18, Issue 14, eff. May 1, 2002.

Article 4 Emission Standards for General Process Operations (Rule 4-4)

9VAC5-40-240 Applicability and designation of affected facility

Article 4 Emission Standards for General Process Operations (Rule 4-4)

A. Except as provided in subsections C and D of this section, the affected facility to which the provisions of this article apply is each process operation, each process gas stream and each combustion installation.

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

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

1. Process operations with a process weight rate capacity less than 100 pounds per hour.

2. Any combustion unit using solid fuel with a maximum heat input of less than 350,000 Btu per hour.

3. Any combustion unit using liquid fuel with a maximum heat input of less than 1,000,000 Btu per hour.

4. Any combustion unit using gaseous fuel with a maximum heat input of less than 10,000,000 Btu per hour.

D. The provisions of this article do not apply to a particular pollutant from an affected facility if the affected facility is subject to other emission standards in this chapter covering the same pollutant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia, §§ 110 and 182 of the Clean Air Act, and 40 CFR Part 51.
• Historical Notes: Derived from VR120-04-0401, eff. January 1, 1985; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 18, Issue 4, eff. January 1, 2002; Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-250 Definitions

A. For the purpose of the Regulations for the Control and Abatement of Air Pollution and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5 Chapter 10 (9VAC5-10-10 et seq.), unless otherwise required by context.

C. Terms defined.

"Combustion installation" means all combustion units within a stationary source in operation prior to October 5, 1979.

"Combustion unit" means any type of stationary equipment in which solid, liquid or gaseous fuels and refuse are burned, including, but not limited to, furnaces, ovens, and kilns.

"Heat input" means the total gross calorific value of all fuels burned.

"Manufacturing operation" means any process operation or combination of physically connected dissimilar process operations which is operated to effect physical or chemical changes or both in an article.

"Materials handling equipment" means any equipment used as a part of a process operation or combination of process operations which does not effect a physical or chemical change in the material or in an article, such as, but not limited to, conveyors, elevators, feeders or weighers.

"Physically connected" means any combination of process operations connected by materials handling equipment and designed for simultaneous complementary operation.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

"Rated capacity" means, the capacity as stipulated in the purchase contract for the condition of 100% load, or such other capacities as mutually agreed to by the board and owner using good engineering judgment.

"Total capacity" means with reference to a combustion installation, the sum of the rated capacities (expressed as heat input) of all units of the installation which must be operated simultaneously under conditions of 100% use load.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-04-0402, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 18, Issue 4, eff. January 1, 2002; Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-260 Standard for particulate matter (AQCR 1-6)

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any process unit any particulate emissions in excess of the limits in Table 4-4A.

| Process Weight Rate | Maximum Allowable Emission Rate | | | --- | --- | --- | | Lb/Hr | Tons/Hr | Lb/Hr | | 100 | 0.05 | 0.551 | | 200 | 0.10 | 0.877 | | 400 | 0.20 | 1.40 | | 600 | 0.30 | 1.83 | | 800 | 0.40 | 2.22 | | 1000 | 0.50 | 2.58 | | 1500 | 0.75 | 3.38 | | 2000 | 1.00 | 4.10 | | 2500 | 1.25 | 4.76 | | 3000 | 1.50 | 5.38 | | 3500 | 1.75 | 5.96 | | 4000 | 2.00 | 6.52 | | 5000 | 2.50 | 7.58 | | 6000 | 3.00 | 8.56 | | 7000 | 3.50 | 9.49 | | 8000 | 4.00 | 10.4 | | 9000 | 4.50 | 11.2 | | 10000 | 5.00 | 12.0 | | 12000 | 6.00 | 13.6 | | 16000 | 8.00 | 16.5 | | 18000 | 9.00 | 17.9 | | 20000 | 10.00 | 19.2 | | 30000 | 15.00 | 25.2 | | 40000 | 20.00 | 30.5 | | 50000 | 25.00 | 35.4 | | 60000 | 30.00 | 40.0 | | 70000 | 35.00 | 41.3 | | 80000 | 40.00 | 42.5 | | 90000 | 45.00 | 43.6 | | 100000 | 50.00 | 44.6 | | 120000 | 60.00 | 46.3 | | 140000 | 70.00 | 47.8 | | 160000 | 80.00 | 49.1 | | 200000 | 100.00 | 51.3 | | 1000000 | 500.00 | 69.0 | | 2000000 | 1000.00 | 77.6 | | 6000000 | 3000.00 | 92.7 |

B. Except as provided in subsections C and D of this section, interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

C. Interpolation of the data in Table 4-4A for process weight rates up to 60,000 lb/hr shall be accomplished by use of the following equation:

E = 4.10 P^0.67

where:

E = emission rate in lb/hr.

P = process weight rate in tons/hr.

D. Interpolation and extrapolation of the data for process weight rates in excess of 60,000 lb/hr shall be accomplished by use of the following equation:

E = 55.0 P^0.11- 40

where:

E = emission rate in lb/hr.

P = process weight rate in tons/hr.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0403, eff. January 1, 1985.

9VAC5-40-270 Standard for particulate matter (AQCR 7)

A. Noncombustion process operations. No owner or other person shall cause or permit to be discharged into the atmosphere from any process unit any particulate emissions in excess of the limits in Table 4-4B.

| TABLE 4-4B | | | | --- | --- | --- | | Process Weight Rate | Maximum Allowable Emission Rate | | | Lb/Hr | Tons/Hr | Lb/Hr | | 100 | 0.050 | 0.46 | | 150 | 0.075 | 0.66 | | 200 | 0.100 | 0.85 | | 250 | 0.125 | 1.03 | | 300 | 0.150 | 1.20 | | 350 | 0.175 | 1.35 | | 400 | 0.200 | 1.50 | | 450 | 0.225 | 1.63 | | 500 | 0.250 | 1.77 | | 550 | 0.275 | 1.85 | | 600 | 0.300 | 2.01 | | 650 | 0.325 | 2.12 | | 700 | 0.350 | 2.24 | | 750 | 0.375 | 2.34 | | 800 | 0.400 | 2.43 | | 850 | 0.425 | 2.53 | | 900 | 0.450 | 2.62 | | 950 | 0.475 | 2.72 | | 1000 | 0.500 | 2.80 | | 1100 | 0.55 | 2.97 | | 1200 | 0.60 | 3.12 | | 1300 | 0.65 | 3.26 | | 1400 | 0.70 | 3.40 | | 1500 | 0.75 | 3.54 | | 1600 | 0.80 | 3.66 | | 1700 | 0.85 | 3.79 | | 1800 | 0.90 | 3.91 | | 1900 | 0.95 | 4.03 | | 2000 | 1.00 | 4.14 | | 2100 | 1.05 | 4.24 | | 2200 | 1.10 | 4.34 | | 2300 | 1.15 | 4.44 | | 2400 | 1.20 | 4.55 | | 2500 | 1.25 | 4.64 | | 2600 | 1.30 | 4.74 | | 2700 | 1.35 | 4.84 | | 2800 | 1.40 | 4.92 | | 2900 | 1.45 | 5.02 | | 3000 | 1.50 | 5.10 | | 3100 | 1.55 | 5.18 | | 3200 | 1.60 | 5.27 | | 3300 | 1.65 | 5.36 | | 3400 | 1.70 | 5.44 | | 3500 | 1.75 | 5.52 | | 3600 | 1.80 | 5.61 | | 3700 | 1.85 | 5.69 | | 3800 | 1.90 | 5.77 | | 3900 | 1.95 | 5.85 | | 4000 | 2.00 | 5.93 | | 4100 | 2.05 | 6.01 | | 4200 | 2.10 | 6.08 | | 4300 | 2.15 | 6.15 | | 4400 | 2.20 | 6.22 | | 4500 | 2.25 | 6.30 | | 4600 | 2.30 | 6.37 | | 4700 | 2.35 | 6.45 | | 4800 | 2.40 | 6.52 | | 4900 | 2.45 | 6.60 | | 5000 | 2.50 | 6.67 | | 5500 | 2.75 | 7.03 | | 6000 | 3.00 | 7.37 | | 6500 | 3.25 | 7.71 | | 7000 | 3.50 | 8.05 | | 7500 | 3.75 | 8.39 | | 8000 | 4.00 | 8.71 | | 8500 | 4.25 | 9.03 | | 9000 | 4.50 | 9.36 | | 9500 | 4.75 | 9.67 | | 10000 | 5.00 | 10.00 | | 11000 | 5.50 | 10.63 | | 12000 | 6.00 | 11.28 | | 13000 | 6.50 | 11.89 | | 14000 | 7.00 | 12.50 | | 15000 | 7.50 | 13.13 | | 16000 | 8.00 | 13.74 | | 17000 | 8.50 | 14.36 | | 18000 | 9.00 | 14.97 | | 19000 | 9.50 | 15.58 | | 20000 | 10.00 | 16.19 | | 30000 | 15.00 | 22.22 | | 40000 | 20.00 | 28.30 | | 50000 | 25.00 | 34.30 | | 60000 or more | 30.00 or more | 40.00 |

B. Combustion installations. Interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0404, eff. January 1, 1985.

9VAC5-40-280 Standard for sulfur dioxide

A. Noncombustion process operations. No owner or other person shall cause or permit to be discharged into the atmosphere from any process operation any sulfur dioxide emissions in excess of an in-stack concentration of 2000 ppm by volume.

B. Combustion installations.

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

a. S = 2.64K (AQCR 1 through 6)

b. S = 1.06K (for liquid or gaseous fuels - AQCR 7)

c. S = 1.52K (for solid fuels - AQCR 7)

where:

S = allowable emission of sulfur dioxide

expressed in lbs/hr.

K = actual heat input at total capacity expressed in Btu X 10⁶ per hour.

2. Where there is more than one unit in a combustion installation and where the installation can be shown, to the satisfaction of the board, to be in compliance when the installation is operating at total capacity, the installation will be deemed to still be in compliance when the installation is operated at reduced load or one or more units are shut down for maintenance or repair, provided that the same type of fuel with the same sulfur content, or an equivalent, is continued in use.

3. For installations in AQCR 7 at which different fossil fuels are burned simultaneously, whether in the same or different units, the allowable emissions shall be determined by proration using the following formula:

| | PS = K | X(1.06) + Y(1.52) | | --- | --- | --- | | | X + Y | |

where:

PS = prorated allowable emissions of sulfur dioxide expressed in lb/hr.

X = percentage of actual heat input at total capacity derived from liquid or gaseous fuel.

Y = percentage of actual heat input at total capacity derived from solid fuels.

K = actual heat input at total capacity expressed in Btu X 10⁶ per hour.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0405, eff. January 1, 1985.

9VAC5-40-290 Standard for hydrogen sulfide

No owner or other person shall cause or permit to be discharged into the atmosphere from any process gas stream any hydrogen sulfide emissions in excess of a concentration greater than 15 grains per 100 cubic feet of gas without burning or removing H₂S in excess of this concentration, provided that SO₂ emissions in the burning operation meet the requirements of 9VAC5-40-280 A.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0406, eff. January 1, 1985.

9VAC5-40-300 (Repealed.)

Historical Notes

Derived from VR120-04-0407, eff. July 1, 1991, VR120-04-0408, eff. July 1, 1991 or Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 9, Issue 5, eff. January 1, 1993; Volume 12, Issue 11, eff. April 1, 1996; Volume 18, Issue 4, eff. January 1, 2002; Volume 19, Issue 17, eff. June 4, 2003; Volume 20, Issue 12, eff. March 24, 2004; Errata 20:15 VA.R. 1498-1504 April 5, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-320 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0409, eff. January 1, 1985.

9VAC5-40-330 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0410, eff. January 1, 1985.

9VAC5-40-340 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0411, eff. January 1, 1985.

9VAC5-40-350 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0412, eff. January 1, 1985.

9VAC5-40-360 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0413, eff. January 1, 1985.

9VAC5-40-370 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0414, eff. January 1, 1985.

9VAC5-40-380 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0415, eff. January 1, 1985.

9VAC5-40-390 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0416, eff. January 1, 1985.

9VAC5-40-400 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0417, eff. January 1, 1985.

9VAC5-40-410 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0418, eff. January 1, 1985.

9VAC5-40-420 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0419, eff. January 1, 1985; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

Article 5 Emission Standards for Synthesized Pharmaceutical Products Manufacturing Operations (Rule 4-5)

9VAC5-40-430 Applicability and designation of affected facility

Article 5 Emission Standards for Synthesized Pharmaceutical Products Manufacturing Operations (Rule 4-5)

A. The affected facility to which the provisions of this article apply is each process unit or operation.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0501, eff. July 1, 1991.

9VAC5-40-440 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Condenser" means a device which removes condensable vapors by a reduction in the temperature of the captured gases.

"Production equipment exhaust system" means a device for collecting and directing out of the work area volatile organic compound fugitive emissions from reactor openings, centrifuge openings and other vessel openings for the purpose of protecting workers from excessive volatile organic compound exposure.

"Reactor" means a vessel designed to carry out chemical reactions under controlled conditions.

"Synthesized pharmaceutical products manufacturing" means manufacture of pharmaceutical products by chemical synthesis.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0502, eff. January 1, 1985.

9VAC5-40-450 Standard for volatile organic compounds

A. Reactors, distillation operations, crystallizers, centrifuges and vacuum dryers.

1. No owner or other person shall use or permit the use of any reactor, distillation operation, crystallizer, centrifuge or vacuum dryer process unit unless such unit is equipped with a vapor control system that will remove, destroy or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection A 1 of this section by use of methods in 9VAC5-40-460 A and E will be acceptable to the board.

B. Air dryers and production equipment exhaust systems.

1. No owner or other person shall use or permit the use of any air dryer or production equipment exhaust system process unit unless such unit is equipped with a vapor control system that will remove, destroy or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection B 1 of this section by use of methods in 9VAC5-40-460 B and E will be acceptable to the board.

C. Filling of storage tanks.

1. No owner or other person shall use or permit the use of any stationary storage tank of more than 2,000 gallons capacity for storage of any volatile organic compound unless such tank is equipped with a vapor control system that will remove, destroy or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions during the filling of such tank.

2. Achievement of the emission standard in subsection C 1 of this section by use of the methods in 9VAC5-40-460 C and E will be acceptable to the board.

3. The provisions of subsection C of this section shall not be applicable to facilities using volatile organic compounds with a vapor pressure less than 4.1 pounds per square inch absolute at 68°F.

D. Volatile organic compound storage.

1. No owner or other person shall use or permit the use of any tank for storage of volatile organic compounds, unless such tank is equipped with a vapor control system which will remove, destroy or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection D 1 of this section by use of control methods in 9VAC5-40-460 D and E will be acceptable to the board.

3. The provisions of subsection D of this section shall not be applicable to facilities using volatile organic compounds with a vapor pressure less than 1.5 pounds per square inch absolute at 68°F.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0503, eff. July 1, 1991.

9VAC5-40-460 Control technology guidelines

A. Reactors, distillation operations, crystallizers, centrifuges and vacuum dryers. The control system should consist of one of the following:

1. Surface condensation system with an outlet temperature not greater than:

a. -13°F when condensing volatile organic compounds of vapor pressure greater than 5.8 psi;

b. 5°F when condensing volatile organic compounds of vapor pressure greater than 2.9 psi;

c. 32°F when condensing volatile organic compounds of vapor pressure greater than 1.5 psi;

d. 50°F when condensing volatile organic compounds of vapor pressure greater than 1.0 psi; or

e. 77°F when condensing volatile organic compounds of vapor pressure greater than 0.5 psi.

2. Any system of equal or greater control efficiency when compared to the standard in 9VAC5-40-450 A 1, provided such system is approved by the board.

B. Air dryers and production equipment exhaust systems. The control system should consist of one of the following:

1. Condensation system.

2. Wet scrubbing system.

3. Carbon adsorption system.

4. Incineration.

5. Any system of equal or greater control efficiency when compared to the standard in 9VAC5-40-450 B 1, provided such system is approved by the board.

C. Filling of storage tanks. The tank should be a pressure tank maintaining working pressure sufficient at all times to prevent vapor loss to the atmosphere, or be designed and equipped with one of the following vapor control systems:

1. A submerged fill pipe.

2. A vapor control system with the vapor recovery portion consisting of one of the following:

a. A vapor tight return line from the storage container to the tank truck which shall be connected before liquids are transferred into the container.

b. Any adsorption system or condensation system.

3. A vapor control system with the vapor balance portion meeting the following criteria:

a. There should be no leaks in the tank trucks' pressure vacuum relief valves and hatch covers, nor truck tanks, storage tanks and associated vapor return lines during loading or unloading operations.

b. The pressure relief valves on storage containers and tank trucks should be set to release at no less than 0.7 psi or the highest possible pressure in accordance with the following National Fire Prevention Association Standards: "Standard for Tank Vehicles for Flammable and Combustible Liquids," "Flammable and Combustible Liquids Code, "Code for Motor Fuel Dispensing Facilities and Repair Garages" (see 9VAC5-20-21).

c. Pressure in the vapor collection lines should not exceed tank truck pressure relief valve settings.

d. All loading and vapor lines should be equipped with fittings which make vapor tight connections and which close when disconnected.

4. Any system of equal or greater control efficiency when compared to the standard in 9VAC5-40-450 C 1, provided such system is approved by the board.

D. Volatile organic compound storage.

1. The tank should be a pressure tank maintaining working pressure sufficient at all times to prevent vapor loss to the atmosphere, or be designed and equipped with one of the following vapor control systems:

a. Use of pressure/vacuum conservation vent set at + or %68 .030 psi.

b. Vent condensation system.

c. Carbon adsorption system.

d. An internal floating roof resting on the surface of the liquid contents and equipped with a closure seal, or seals, to close the space between the roof edge and tank shell. All tank gauging and sampling devices should be vapor tight except when gauging or sampling is taking place.

e. Any system of equal or greater control efficiency when compared to the standard in 9VAC5-40-450 D 1, provided such system is approved by the board.

2. There should be no visible holes, tears or other openings in the seal or any seal fabric.

3. All openings, except stub drains, should be equipped with a cover, seal or lid. The cover, seal or lid should be in a closed position at all times except when the device is in actual use. Automatic bleeder vents should be closed at all times except when the roof is floated off or landed on the roof leg supports. Rim vents, if provided, should be set to open when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting.

4. The exterior aboveground surfaces (exposed to sunlight) should be painted white, light pastels or light metallic and such exterior paint should be periodically maintained in good condition. Repainting may be performed during normal maintenance periods.

E. General.

1. All centrifuges containing volatile organic compounds, rotary vacuum filters processing liquids containing volatile organic compounds and any other filters having an exposed liquid surface where the liquid contains volatile organic compounds should be enclosed. This applies to liquids exerting a total volatile organic compound vapor pressure of 0.5 psi or more at 68°F.

2. All in-process tanks should have covers. Covers should be closed when possible.

3. For liquids containing volatile organic compounds, all leaks in which liquids can be observed to be running or dripping from vessels and equipment (for example: pumps, valves, flanges) should be repaired as soon as is practical.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0504, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002.

9VAC5-40-470 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0505, eff. January 1, 1985.

9VAC5-40-480 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0506, eff. January 1, 1985.

9VAC5-40-490 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0507, eff. January 1, 1985.

9VAC5-40-500 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0508, eff. January 1, 1985.

9VAC5-40-510 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0509, eff. January 1, 1985.

9VAC5-40-520 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0510, eff. January 1, 1985.

9VAC5-40-530 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0511, eff. January 1, 1985.

9VAC5-40-540 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0512, eff. January 1, 1985.

9VAC5-40-550 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0513, eff. January 1, 1985.

9VAC5-40-560 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0514, eff. January 1, 1985.

9VAC5-40-570 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0515, eff. January 1, 1985.

Article 6 Emission Standards for Rubber Tire Manufacturing Operations (Rule 4-6)

9VAC5-40-580 Applicability and designation of affected facility

Article 6 Emission Standards for Rubber Tire Manufacturing Operations (Rule 4-6)

A. The affected facility to which the provisions of this article apply is each process unit or operation.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0601, eff. July 1, 1991.

9VAC5-40-590 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Bead dipping" means the dipping of an assembled tire bead into a solvent based cement.

"Green tires" means assembled tires before molding and curing have occurred.

"Green tire spraying" means the spraying of green tires, both inside and outside, with release compounds which help remove air from the tire during molding and prevent the tire from sticking to the mold after curing.

"Pneumatic rubber tire manufacture" means the production of passenger car tires, light and medium truck tires, and other tires manufactured on assembly lines using automated equipment.

"Tread end cementing" means the application of a solvent based cement to the tire tread ends.

"Undertread cementing" means the application of a solvent based cement to the underside of a tire tread.

"Water based sprays" means release compounds, sprayed on the inside and outside of green tires, in which solids, water and emulsifiers have been substituted for all organic solvents.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0602, eff. January 1, 1985.

9VAC5-40-600 Standard for volatile organic compounds

A. Undertread cementing.

1. No owner or other person shall use or permit the use of any undertread cementing process unit unless such unit is equipped with a vapor control system that will remove, destroy or prevent the discharge into the atmosphere of at least 85% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection A 1 of this section by use of methods in 9VAC5-40-610 A will be acceptable to the board.

B. Tread end cementing.

1. No owner or other person shall use or permit the use of any tread end cementing process unit unless such unit is equipped with a vapor control system that will remove, destroy or prevent the discharge into the atmosphere of at least 85% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection B 1 of this section by use of methods in 9VAC5-40-610 A will be acceptable to the board.

C. Bead dipping.

1. No owner or other person shall use or permit the use of any bead dipping process unit unless such unit is equipped with a vapor control system that will remove, destroy or prevent the discharge into the atmosphere of at least 85% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection C 1 of this section by use of methods in 9VAC5-40-610 A will be acceptable to the board.

D. Green tire spraying.

1. No owner or other person shall use or permit the use of any green tire spraying operation unless such vapor control methods are applied that will remove, destroy or prevent the discharge into the atmosphere of at least 95% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection D 1 of this section by use of methods in 9VAC5-40-610 B will be acceptable to the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0603, eff. July 1, 1991.

9VAC5-40-610 Control technology guidelines

A. Undertread cementing, tread end cementing and bead dipping. The control system should consist of one of the following:

1. Carbon adsorption system.

2. Incineration system.

3. Any system of equal or greater control efficiency when compared to the standard in 9VAC5-40-600 A 1, B 1, or C 1 as applicable, provided such system is approved by the board.

B. Green tire spraying. The control method should consist of one of the following:

1. Use of water based sprays;

2. Carbon adsorption;

3. Incineration; or

4. Any method of equal or greater control efficiency when compared to the standard in 9VAC5-40-600 D 1, of this section, provided such method is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0604, eff. July 1, 1991.

9VAC5-40-620 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0605, eff. January 1, 1985.

9VAC5-40-630 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0606, eff. January 1, 1985.

9VAC5-40-640 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0607, eff. January 1, 1985.

9VAC5-40-650 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0608, eff. January 1, 1985.

9VAC5-40-660 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0609, eff. January 1, 1985.

9VAC5-40-670 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0610, eff. January 1, 1985.

9VAC5-40-680 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0611, eff. January 1, 1985.

9VAC5-40-690 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0612, eff. January 1, 1985.

9VAC5-40-700 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0613, eff. January 1, 1985.

9VAC5-40-710 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0614, eff. January 1, 1985.

9VAC5-40-720 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0615, eff. January 1, 1985.

Article 7 Emission Standards for Incinerators (Rule 4-7)

9VAC5-40-730 Applicability and designation of affected facility

Article 7 Emission Standards for Incinerators (Rule 4-7)

A. The affected facility to which the provisions of this article apply is each incinerator.

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

C. The provisions of this article do not apply to facilities that are designed as boilers to produce steam or heated water and are designed to burn either fossil fuel or refuse derived fuel. It does apply to such facilities if designed to burn raw refuse.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0701, eff. January 1, 1985.

9VAC5-40-740 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Incinerator" means any furnace or device used in the process of burning waste for the primary purpose of destroying matter or reducing the volume, or both, of the waste by removing combustible matter.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0702, eff. January 1, 1985.

9VAC5-40-750 Standard for particulate matter

No owner or other person shall cause or permit to be discharged into the atmosphere from any incinerator any particulate emissions in excess of .14 grains per standard cubic foot of dry flue gas corrected to 12% carbon dioxide (without the contribution of auxiliary fuel).

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0703, eff. January 1, 1985.

9VAC5-40-760 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0704, eff. January 1, 1985.

9VAC5-40-770 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0705, eff. January 1, 1985.

9VAC5-40-780 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0706, eff. January 1, 1985.

9VAC5-40-790 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0707, eff. January 1, 1985.

9VAC5-40-800 Prohibition of flue-fed incinerators

Incinerators which use the same flue for feeding the refuse and discharging the gases of combustion are prohibited.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0708, eff. January 1, 1985.

9VAC5-40-810 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0709, eff. January 1, 1985.

9VAC5-40-820 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0710, eff. January 1, 1985.

9VAC5-40-830 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0711, eff. January 1, 1985.

9VAC5-40-840 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0712, eff. January 1, 1985.

9VAC5-40-850 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0713, eff. January 1, 1985.

9VAC5-40-860 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0714, eff. January 1, 1985.

9VAC5-40-870 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0715, eff. January 1, 1985.

Article 8 Emission Standards for Fuel Burning Equipment (Rule 4-8)

9VAC5-40-880 Applicability and designation of affected facility

Article 8 Emission Standards for Fuel Burning Equipment (Rule 4-8)

A. Except as provided in subsections C, D, and E of this section, the affected facility to which provisions of this article apply is fuel burning equipment.

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

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

1. Any fuel burning equipment unit using solid fuel with a maximum heat input of less than 350,000 Btu per hour.

2. Any fuel burning equipment unit using liquid fuel (exclusive of coal slurry mixtures) with a maximum input of less than 1,000,000 Btu per hour.

3. Any fuel burning equipment unit using gaseous fuel with a maximum heat input of less than 10,000,000 Btu per hour.

D. The provisions of this article do not apply to fuel burning equipment units that power mobile sources but are removed for maintenance or repair and testing.

E. The provisions of this article do not apply to stationary internal combustion engines.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0801, eff. January 1, 1985; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-890 Definitions

A. For the purpose of the Regulations for the Control and Abatement of Air Pollution and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Capacity factor" means the ratio of the average load on a machine or equipment for the period of time considered to the capacity rating of the machine or equipment.

"Fossil-fuel fired steam generator" means furnace or boiler, or both, used in the process of burning fossil fuel for the primary purpose of providing steam by heat transfer.

"Fuel burning equipment" means any furnace, with fuel burning equipment appurtenances thereto, used in the process of burning fuel for the primary purpose of producing heat to be utilized by indirect heat transfer, or by indirect production of power. This includes facilities that are designed as boilers to produce steam or heated water and are designed to burn either fossil fuel or refuse derived fuel. It does not include such facilities if designed primarily to burn raw refuse. This includes fuel burning equipment units (both permanently installed units and portable units) used to replace the power used by mobile sources. For the purposes of this article, stationary combustion turbines are considered to be fuel burning equipment.

"Fuel burning equipment installation" means all fuel burning equipment units within a stationary source in operation prior to October 5, 1979.

"Heat input" means the total gross calorific value of all fuels burned.

"Rated capacity" means the capacity as stipulated in the purchase contract for the condition of 100% load, or such other capacities as mutually agreed to by the board and owner using good engineering judgment.

"Refuse derived fuel (RDF)" means fuel produced from solid or liquid waste (includes materials customarily referred to as refuse and other discarded materials), or both, which has been segregated and classified, with the useable portions being put through a size reduction and classification process which results in a relatively homogeneous mixture.

"Stationary combustion turbine" means any air-breathing internal combustion engine consisting of an air compressor, combustion chamber, and a turbine wheel.

"Stationary internal combustion engine" means an engine in which fuel is burned within a machine in which energy is converted directly into mechanical motion or work. The energy is used directly for the production of power, locomotion or work. Internal combustion engines include, but are not limited to, diesel engines, gasoline engines, and diesel pumps. For the purposes of this article, stationary combustion turbines are not considered to be stationary internal combustion engines.

"Total capacity" means with reference to a fuel burning equipment installation, the sum of the rated capacities (expressed as heat input) of all units of the installation which must be operated simultaneously under conditions of 100% use load.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0802, eff. January 1, 1985; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 18, Issue 4, eff. January 1, 2002.

9VAC5-40-900 Standard for particulate matter

A. Fuel burning equipment installations.

No owner or other person shall cause or permit to be discharged into the atmosphere from any fuel burning equipment installation any gaseous products of combustion containing particulate emissions in excess of the following limits.

1. In AQCR 1 through 6.

a. For fuel burning equipment installations with total capacity less than 10 million (10 X 10⁶) Btu per hour, the maximum allowable emission ratio shall be 0.6 pounds of particulate per million Btu input.

b. For fuel burning equipment installations with total capacity between 10 million (10 X 10⁶) and 10 billion (10,000 X 10⁶) Btu per hour, the maximum allowable emission ration, E, in pounds of particulate per million Btu input, shall be determined by the following equation: E = 1.0906H^-0.2594, where H is the total capacity in millions of Btu per hour.

c. For fuel burning equipment installations with total capacity in excess of 10 billion (10,000 X 10⁶) Btu per hour, the maximum allowable emission ratio shall be 0.1 pounds of particulate per million Btu input.

2. In AQCR 7.

a. For fuel burning equipment installations with total capacity less than 100 million (100 X 10⁶) Btu per hour, the maximum allowable emission ratio shall be 0.3 pounds of particulate per million Btu input.

b. For fuel burning equipment installations with total capacity between 100 million (100 X 10⁶) and 10 billion (10,000 X 10⁶) Btu per hour, the maximum allowable emission ratio, E, in pounds of particulate per million Btu input, shall be determined by the following equation: E = .9000H^-0.2386, where H is the total capacity in millions of Btu per hour.

c. For fuel burning equipment installations with total capacity in excess of 10 billion (10,000 X 10⁶) Btu per hour, the maximum allowable emission ratio shall be 0.1 pounds of particulate per million Btu input.

B. Fuel burning equipment units.

1. The maximum allowable particulate emissions for each fuel burning equipment unit shall be the product of the rated capacity and the emission ratio (determined in accordance with subsection A of this section).

2. The allowable particulate emissions for each fuel burning equipment unit when operating at less than rated capacity shall be the product of the emission ratio, actual heat input and efficiency factor for the collection equipment. The efficiency factor for the collection equipment of each unit shall be determined using procedures set forth in 9VAC5-40-920.

3. For fuel burning equipment installations consisting of multiple fuel burning equipment units, except where all of the units burn liquid or gaseous fuels, or both, exclusively, the maximum allowable particulate emissions for each unit may be determined as provided in 9VAC5-40-910.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0803, eff. January 1, 1985; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-910 Emission allocation system

A. This section applies only to fuel burning equipment installations consisting of multiple fuel burning equipment units which do not burn liquid or gaseous fuels, or both, exclusively.

B. The maximum allowable particulate emissions for a fuel burning equipment installation shall be the product of the total capacity and the emission ratio (determined in accordance with 9VAC5-40-900 A).

C. The allowable particulate emissions for a fuel burning equipment installation when operating at less than total capacity, shall be the product of the percent load, emission allocation and efficiency factor for the collection equipment. The percent load shall be the quotient of the actual load and the rated capacity. The efficiency factor for the collection equipment of each unit shall be determined using procedures set forth in 9VAC5-40-920. The emission allocation shall be determined using procedures set forth in subsection D of this section.

D. The emission allocation for each of the fuel burning equipment units of the fuel burning equipment installation shall be its designated portion of the maximum allowable particulate emissions from the fuel burning equipment installation when operating at total capacity. The portions shall be proposed by the owner initially and determined in a manner mutually acceptable to the board and the owner. Once accepted by the board, the portions may not be changed without the consent of the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0804, eff. January 1, 1985.

9VAC5-40-920 Determination of collection equipment efficiency factor

The efficiency factor for the collection equipment shall be established as follows:

1. For all collection equipment, except mechanical collectors, the efficiency factor shall be 1.0.

2. For mechanical collectors, the efficiency factor shall be the quotient of the design efficiency of the collector at rated capacity and the actual efficiency of the collector at the reduced actual load. The actual efficiency shall be the product of the design efficiency and the correction factor where:

| | Correction Factor = | 1 + log₁₀ (actual load) | | --- | --- | --- | | | 1 + log₁₀ (rated capacity) | |

3. For collection equipment where the owner does not wish to accept the efficiency factor established by subdivision 1 or 2 of this section, the owner may provide information and data as a substitute. Such information and data may be emissions test results or other conclusive evidence. If such information and data is found acceptable by the board, it may be used to establish the efficiency factor for the collection equipment.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0805, eff. January 1, 1985.

9VAC5-40-930 Standard for sulfur dioxide

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any fuel burning equipment installation any sulfur dioxide emissions in excess of the following limits:

1. S = 2.64K (AQCR 1 through 6).

2. S = 1.06K (for liquid or gaseous fuels - AQCR 7).

3. S = 1.52K (for solid fuels - AQCR 7).

where:

S = allowable emission of sulfur dioxide expressed in pounds per hour.

K = heat input at total capacity expressed in Btu X 10⁶ per hour.

B. Where there is one or more units in a fuel burning equipment installation and where the installation can be shown, to the satisfaction of the board, to be in compliance when the installation is operating at total capacity, the installation will be deemed to still be in compliance when the installation is operated at reduced load or one or more units are shut down for maintenance or repair, provided that the same type of fuel with the same sulfur content, or an equivalent, is continued in use.

C. For installations in AQCR 7 at which different fossil fuels are burned simultaneously, whether in the same or different units, the allowable emissions shall be determined by proration using the following formula:

where

PS = prorated allowable emissions of sulfur dioxide expressed in pounds per hour.

X = percentage of heat input at total capacity derived from liquid or gaseous fuel.

Y = percentage of heat input at total capacity derived from solid fuels.

K = heat input at total capacity expressed in Btu x 10⁶ per hour.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0806, eff. January 1, 1985.

9VAC5-40-940 Standard for visible emissions

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of this part (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply except that the provisions in subsection B of this section apply instead of 9VAC5-40-80 A.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any fuel burning equipment unit any visible emissions which exhibit greater than 20% opacity, except for one, six-minute period in any one hour of not more than 60% opacity. Failure to meet the requirements of this section because of the presence of water vapor shall not be a violation of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0807, eff. January 1, 1985; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-950 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0808, eff. January 1, 1985.

9VAC5-40-960 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0809, eff. January 1, 1985.

9VAC5-40-970 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0810, eff. January 1, 1985.

9VAC5-40-980 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0811, eff. January 1, 1985.

9VAC5-40-990 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0812, eff. January 1, 1985.

9VAC5-40-1000 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply.

B. Unless otherwise approved by the board, owners of fossil-fuel fired steam generators specified in subsection C of this section shall install, calibrate, maintain and operate systems for continuously monitoring and recording specified emissions in accordance with 9VAC5-40-40 and 9VAC5-40-41.

C. Fossil-fuel fired steam generators of greater than 250 million Btu per hour maximum heat input with an annual average capacity factor of greater than 30% (as reported to the Federal Power Commission for calendar year 1974, or as otherwise demonstrated to the board by the owner) shall be monitored for opacity except where:

1. Gaseous fuel is the only fuel burned, or

2. Oil or a mixture of gas and oil are the only fuels burned and the facility is able to comply with applicable particulate matter and visible emission standards without utilization of particulate matter collection equipment, and where the facility has never been found, through any administrative or judicial proceedings, to be in violation of any visible emission standard.

D. The continuous monitoring system shall be spanned at 80, 90 or 100% opacity.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0813, eff. January 1, 1985.

9VAC5-40-1010 Notification, records and reporting

A. The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

B. For the purpose of reports required under 9VAC5-40-50 C periods of excess emissions that shall be reported are defined as any one-hour period during which there are two or more six-minute periods when the average opacity exceeds 20%.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0814, eff. January 1, 1985.

9VAC5-40-1020 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0815, eff. January 1, 1985.

9VAC5-40-1030 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0816, eff. January 1, 1985.

9VAC5-40-1040 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0817, eff. January 1, 1985; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

Article 9 Emission Standards for Coke Ovens (Rule 4-9)

9VAC5-40-1050 Applicability and designation of affected facility

Article 9 Emission Standards for Coke Ovens (Rule 4-9)

A. The affected facilities in coke plants to which the provisions of this article apply are: horizontal slot sole-flue nonrecovery ovens and horizontal slot nonrecovery ovens.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0901, eff. January 1, 1985.

9VAC5-40-1060 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Charging" means the process by which coal is introduced into a coke oven beginning when coal enters the oven and ending when the door is closed.

"Coking" means the process by which coal is converted to coke by means of destructive distillation using heat.

"Pushing" means the process by which coke is removed from a coke oven, including the period marked by the time when the doors are first removed from a coke oven until quench water is applied to the hot coke.

"Quenching" means the process by which the combustion of hot coke is stopped by application of water or any other procedure achieving the same affect.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0902, eff. January 1, 1985.

9VAC5-40-1070 Standard for particulate matter

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any horizontal slot sole-flue nonrecovery oven any particulate emissions from coking, charging and pushing operations in excess of a combined total of 0.15 pounds of particulate/hour/ton of coal, as charged.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any horizontal slot nonrecovery oven any particulate emissions from coking, charging and pushing operations in excess of a combined total of 0.13 pounds of particulate/hour/ton of coal, as charged.

C. No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility during the quenching operation any particulate emissions in excess of that resultant from use of a quench tower incorporating state-of-the-art engineering design.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0903, eff. January 1, 1985.

9VAC5-40-1080 Standard for sulfur dioxide

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

S = 2.64K

where:

S = allowable emission of sulfur dioxide expressed in pounds per hour.

K = actual heat input expressed in Btu X 10⁶ per hour.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0904, eff. January 1, 1985.

9VAC5-40-1090 Standard for visible emissions

No owner or other person shall cause to be discharged into the atmosphere from any affected facility any visible emissions in excess of the following limits:

1. The limits in 9VAC5-40-80 during the coking operation.

2. An average of 20% opacity from the coke side enclosure during the pushing operation.

3. An average of 20% opacity during the charging operation.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0905, eff. January 1, 1985.

9VAC5-40-1100 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0906, eff. January 1, 1985.

9VAC5-40-1110 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0907, eff. January 1, 1985.

9VAC5-40-1120 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0908, eff. January 1, 1985.

9VAC5-40-1130 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0909, eff. January 1, 1985.

9VAC5-40-1140 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply, except:

1. Compliance with particulate standards prescribed by 9VAC5-40-1070 A and B shall be determined by three or more emission tests conducted at different times during the total operation of the affected facility. The emission tests and times shall be acceptable to the board.

2. Compliance with opacity standards for fugitive visible emissions prescribed by 9VAC5-40-1090 B and C shall be determined by conducting observations in accordance with the test methods and procedures prescribed in subsections B 1 and 2 of this section.

a. The opacity of coke oven fugitive particulate emissions is determined by an observer, qualified in accordance with Reference Method 9, using the following procedures:

(1) The qualified observer shall, to the extent practicable, stand in a position meeting the guidelines of Reference Method 9. Notwithstanding any Method 9 guideline, the observer shall stand in a safe position with an unobstructed view of the emission source.

(2) Field records shall be in accordance with Reference Method 9.

(3) Each opacity observation shall be made at the point of greatest opacity after the emissions leave the coke oven. Observations shall be recorded at 15 second intervals for the entire duration of the charge or push. Observations which cannot be made due to the interference of another plume or any other obstruction shall be noted with an asterisk.

(4) Recording observations shall be in accordance with Reference Method 9, except that the minimum number of observations shall be determined by the duration of the operation being observed.

(5) Opacity shall be determined as an average of all 15 second observations recorded during either charging or pushing, as appropriate. Opacity of emissions shall be determined individually for each charge or push, and shall not be averaged over more than one coke oven. Missing observations due to interferences shall not affect the opacity determination.

b. All certification and testing requirements are identical to those of Reference Method 9.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0910, eff. January 1, 1985.

9VAC5-40-1150 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0911, eff. January 1, 1985.

9VAC5-40-1160 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0912, eff. January 1, 1985.

9VAC5-40-1170 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0913, eff. January 1, 1985.

9VAC5-40-1180 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0914, eff. January 1, 1985.

9VAC5-40-1190 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-0915, eff. January 1, 1985.

Article 10 Emission Standards for Asphalt Concrete Plants (Rule 4-10)

9VAC5-40-1200 Applicability and designation of affected facility

Article 10 Emission Standards for Asphalt Concrete Plants (Rule 4-10)

A. The affected facility to which the provisions of this article apply is each asphalt concrete plant. For the purpose of this article, an asphalt concrete plant is comprised only of any combination of the following: dryers; systems for screening, handling, storing, and weighing aggregate; systems for loading, transferring, and storing mineral filler; systems for mixing asphalt concrete; and the loading, transfer, and storage systems associated with emission control systems.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1001, eff. January 1, 1985.

9VAC5-40-1210 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Asphalt concrete plant" means any facility used to manufacture asphalt concrete by heating and drying aggregate and mixing with asphalt cements.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in emission of pollutants to the atmosphere.

"Process weight" means total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1002, eff. January 1, 1985.

9VAC5-40-1220 Standard for particulate matter

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any asphalt concrete plant any particulate emissions in excess of the limits in Table 4-10.

| TABLE 4-10 | | | --- | --- | | Process Weight Rate | Maximum Allowable Emission Rate | | Tons/Hr | Lb/Hr | | 5 or less | 10 | | 10 | 16 | | 15 | 22 | | 20 | 28 | | 25 | 31 | | 50 | 33 | | 100 | 37 | | 150 | 40 | | 200 | 43 | | 250 | 47 | | 300 or more | 50 |

B. Interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

C. The provisions of this section shall not apply to affected facilities identified in subsection A of this section and located in AQCR 7; however, the provisions of 9VAC5-40-270 shall apply to the facilities.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1003, eff. January 1, 1985.

9VAC5-40-1230 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1004, eff. January 1, 1985.

9VAC5-40-1240 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1005, eff. January 1, 1985.

9VAC5-40-1250 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1006, eff. January 1, 1985.

9VAC5-40-1260 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1007, eff. January 1, 1985.

9VAC5-40-1270 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1008, eff. January 1, 1985.

9VAC5-40-1280 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1009, eff. January 1, 1985.

9VAC5-40-1290 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1010, eff. January 1, 1985.

9VAC5-40-1300 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1011, eff. January 1, 1985.

9VAC5-40-1310 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1012, eff. January 1, 1985.

9VAC5-40-1320 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1013, eff. January 1, 1985.

9VAC5-40-1330 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1014, eff. January 1, 1985.

Article 11 Emission Standards for Petroleum Refinery Operations (Rule 4-11) [Repealed]

9VAC5-40-1340 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1101, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1350 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1102, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1360 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1103, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1370 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1104, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1380 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1105, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1390 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1106, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1400 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1107, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1410 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1108, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1420 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1109, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1430 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1110, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1440 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1111, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1450 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1112, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1460 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1113, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1470 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1114, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1480 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1115, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1490 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1116, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1500 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1117, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-1510 (Repealed.)

History

• Historical Notes: Derived from VR120-04-1118, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

Article 12 Emission Standards for Chemical Fertilizer Manufacturing Operations

9VAC5-40-1520 Applicability and designation of affected facility

Article 12 Emission Standards for Chemical Fertilizer Manufacturing Operations

A. The affected facility to which the provisions of this article apply is each chemical fertilizer manufacturing operation. For the purpose of this article, a chemical fertilizer manufacturing operation is comprised only of any combination of the following: grinders, dryers, coolers and ammoniator-granulators.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1201, eff. January 1, 1985.

9VAC5-40-1530 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Chemical fertilizer" means a compound or mixture, whose chief ingredients are nitrogen, phosphorous, potassium or any combination of these ingredients, which has agronomic value.

"Manufacturing operation" means any process operation or combination of physically connected dissimilar process operations which is operated to effect physical or chemical changes, or both, in an article.

"Materials handling equipment" means any equipment used as a part of a process operation or combination of process operations which does not effect a physical or chemical change in the material or in an article, such as, but not limited to, conveyors, elevators, feeders or weighers.

"Physically connected" means any combination of process operations connected by materials handling equipment and designed for simultaneous complementary operation.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

"Production rate" means the weight of final product obtained per hour of operation. If the rate of product going to storage can vary, the production rate shall be determined by calculation from the feed rates of raw material.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1202, eff. January 1, 1985.

9VAC5-40-1540 Standard for particulate matter

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any chemical fertilizer manufacturing operation, which utilizes recycle and physically connected dissimilar processes as a part of the manufacturing operation, any particulate emissions in excess of the limits in Table 4-12.

| TABLE 4-12 | | | --- | --- | | Process Weight Rate Tons/Hr | Maximum Allowable Emission Rate Lb/Hr | | 15 or less | 19.2 | | 30 | 30.5 | | 60 | 42.5 | | 90 | 46.3 | | 120 | 49.0 | | 150 | 51.2 | | 180 | 53.1 |

B. Except as provided in subsections C and D of this section, interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

C. The process weight rate entry to be used in Table 4-12 for chemical fertilizer manufacturing operations shall be considered as the production rate, or for chemical fertilizer manufacturing operations involving physically connected dissimilar process operations shall be the sum of the process weight rates of each of the dissimilar process operations. The materials handling and screening equipment shall not be considered as a part of the process operation for the determination of process weight rate. For a process weight rate between any two consecutive rates stated in Table 4-14 maximum allowable emissions of particulate matter shall be calculated by the following equation:

1. For process weight rates up to 45 tons per hour:

| | E = 4.10 ( | 2P^(0.67) | ) | | --- | --- | --- | --- | | | 3 | | |

where:

E = emission rate in lb/hr.

P = process weight rate in tons/hr.

2. For process weight rates over 45 tons per hour:

| | E = 55.0 ( | 2P^(0.11) | ) - 40 | | --- | --- | --- | --- | | | 3 | | |

where:

E = emission rate in lb/hr.

P = process weight rate in tons/hr

D. When one manufacturing operation, or combination of physically connected process operations, is vented through separate stacks, the allowable emission rate for each stack shall be such that the sum of the emission rates for all of the stacks from that operation is equal to the allowable rates from that operation vented through a single stack.

E. For purpose of emission testing, samples taken of separate stacks within a three-day period, on the same fertilizer grade, shall be considered as simultaneous for the purpose of determining total operation emissions.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1203, eff. January 1, 1985.

9VAC5-40-1550 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1204, eff. January 1, 1985.

9VAC5-40-1560 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1205, eff. January 1, 1985.

9VAC5-40-1570 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1206, eff. January 1, 1985.

9VAC5-40-1580 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1207, eff. January 1, 1985.

9VAC5-40-1590 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1208, eff. January 1, 1985.

9VAC5-40-1600 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1209, eff. January 1, 1985.

9VAC5-40-1610 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1210, eff. January 1, 1985.

9VAC5-40-1620 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1211, eff. January 1, 1985.

9VAC5-40-1630 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1212, eff. January 1, 1985.

9VAC5-40-1640 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1213, eff. January 1, 1985.

9VAC5-40-1650 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1214, eff. January 1, 1985.

Article 13 Emission Standards for Pulp and Paper Mills (Rule 4-13)

9VAC5-40-1660 Applicability and designation of affected facilities

Article 13 Emission Standards for Pulp and Paper Mills (Rule 4-13)

A. The affected facilities in pulp and paper mills to which the provisions of this article apply are: each recovery furnace, each smelt dissolving tank, each lime kiln, each slaker tank, and each kraft wood pulping operation. For the purpose of this article, a kraft wood pulping operation is comprised only of any combination of the following units: recovery furnaces, lime kilns, digester systems, multiple-effect evaporator systems, condensate stripper systems and smelt dissolving tanks.

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

C. The provisions of this article do not apply to affected facilities subject to Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50, except to the extent such pollutants are emitted which are not subject to standards of performance in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1301, eff. October 1, 1989; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-1670 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Black liquor solids" means the dry weight of the solids which enter the recovery furnace in the black liquor.

"Condensate stripper system" means a column, and associated condensers, used to strip, with air or steam, total reduced sulfur compounds from condensate streams from various processes within a kraft pulp mill.

"Cross recovery furnace" means a furnace used to recover chemicals consisting primarily of sodium and sulfur compounds by burning black liquor which on a quarterly basis contains more than 7.0% by weight of the total pulp solids from the neutral sulfite or other semichemical process and has a green liquor sulfidity of more than 28%.

"Digester system" means each continuous digester or each batch digester used for the cooking of wood in white liquor, and associated flash tanks, below tanks, chip steamers, and condensers.

"Green liquor sulfidity" means the sulfidity of the liquor which leaves the smelt dissolving tank.

"Kraft pulp mill" means any facility which produces pulp from wood by cooking (digesting) wood chips in a water solution of sodium hydroxide and sodium sulfide (white liquor) at high temperature and pressure. Regeneration of the cooking chemicals through a recovery process is also considered part of the kraft pulp mill.

"Lime kiln" means a unit used to calcine lime mud, which consists primarily of calcium carbonate, into quicklime, which is calcium oxide.

"Multiple-effect evaporator system" means the multiple-effect evaporators and associated condensers and hotwells used to concentrate the spent cooking liquid that is separated from the pulp (black liquor).

"Neutral sulfite semichemical pulping operation" means any operation in which pulp is produced from wood by cooking (digesting) wood chips in a solution of sodium sulfite and sodium bicarbonate, followed by mechanical defibrating (grinding).

"New design recovery furnace" means a straight kraft recovery furnace that has both membrane wall or welded wall construction and emission control designed air systems. A new design furnace shall have stated in its contract a TRS performance guarantee or that it was designed with air pollution control as an objective.

"Old design recovery furnace" means a straight kraft recovery furnace that does not have membrane wall or welded wall construction or emission control designed air systems.

"Pulp and paper mill" means any kraft pulp mill or any paper mill using a semichemical pulping process.

"Recovery furnace" means either a straight kraft recovery furnace or a cross recovery furnace, and includes the direct-contact evaporator for a direct-contact furnace.

"Semichemical pulping process" means any pulp manufacturing process in which the active chemicals of the liquor used in cooking (digesting) wood chips to their component parts in a pressurized vessel (digester) are primarily a liquor of sodium hydroxide and sodium carbonate. The major difference between all semichemical techniques and those of kraft and acid sulfite processes is that only a portion of the lignin is removed during the cooking (digesting), after which the pulp is further reduced by mechanical disintegration.

"Smelt dissolving tank" means a vessel used for dissolving the smelt collected from the recovery furnace.

"Straight kraft recovery furnace" means a furnace used to recover chemicals consisting primarily of sodium and sulfur compounds by burning black liquor which on a quarterly basis contains 7.0% by weight or less of the total pulp solids from the neutral sulfite or other semichemical process or has green liquor sulfidity of 28% or less.

"Total reduced sulfur" or "TRS" means the sum of the following sulfur compounds (hydrogen sulfide, methyl mercaptan, dimethyl sulfide and dimethyl disulfide, reported as hydrogen sulfide) that are released during any kraft wood pulping operation.

"Twenty-four hour average" means the average of data over a 24-hour period beginning at midnight.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1302, eff. October 1, 1989; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-1680 Standard for particulate matter

No owner or other person shall cause or permit to be discharged into the atmosphere from any group of similar affected facilities specified below any particulate emissions in excess of the following limits:

| Affected Facility | Maximum Allowable Emission of Particulate in Lb/Equivalent Ton of Air Dried Pulp | | --- | --- | | All Recovery Furnace Units | 3.00 | | All Smelt Dissolving Tank Units | 0.75 | | All Lime Kiln Units | 1.00 | | All Slaker Tank Units | 0.30 |

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1303, eff. January 1, 1985.

9VAC5-40-1690 Standard for total reduced sulfur

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any kraft wood pulping operation unit specified below any total reduced sulfur emissions in excess of the following limits:

1. Recovery furnaces.

a. Old design furnaces -- 20 ppm by volume on a dry basis, corrected to 8.0% oxygen.

b. New design furnaces -- 5 ppm by volume on a dry basis, corrected to 8.0% oxygen.

c. Cross recovery furnaces -- 25 ppm by volume on a dry basis, corrected to 8.0% oxygen.

2. Digester systems -- 5 ppm by volume on a dry basis, corrected to 10% oxygen.

3. Multiple-effect evaporator systems -- 5 ppm by volume on a dry basis, corrected to 10% oxygen.

4. Lime kilns -- 20 ppm by volume on a dry basis, corrected to 10% oxygen.

5. Condensate stripper systems -- 5 ppm by volume on a dry basis, corrected to 10% oxygen.

6. Smelt dissolving tanks -- 0.033 pounds per ton black liquor solids as H₂S.

B. Achievement of the emission standards in this section by use of methods in 9VAC5-40-1700 will be acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1304, eff. October 1, 1989; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-1700 Control technology guidelines

The control method should consist of one of the following:

1. Combustion of gases in a lime kiln or recovery furnace subject to the provisions of this article.

2. Combustion of gases in equipment or a device which is not subject to the provisions of this article and which is subjected to a minimum temperature of 1200°F for at least 0.5 seconds.

3. Any control method of equal or greater efficiency to the method in subsection B of this section, provided such method is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1305, eff. October 1, 1989.

9VAC5-40-1710 Standard for visible emissions

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of this chapter (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply except with regard to recovery furnaces; for such facilities the provisions in subsection B of this section apply instead of 9VAC5-40-80 A.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any recovery furnace any visible emissions which exhibit greater than 35% opacity. Failure to meet the requirements of this section because of the presence of water vapor shall not be a violation of this section.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1306, eff. January 1, 1985.

9VAC5-40-1720 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1307, eff. January 1, 1985.

9VAC5-40-1730 Standard for odor

The provisions of Article 2 ( 9VAC5-40-130 et seq.) of this chapter (Emission Standards for Odor, Rule 4-2) apply, except for total reduced sulfur emissions.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1308, eff. October 1, 1989.

9VAC5-40-1740 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1309, eff. January 1, 1985.

9VAC5-40-1750 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1310, eff. October 1, 1989; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-1760 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1311, eff. January 1, 1985.

9VAC5-40-1770 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply, with any addition or modification deemed appropriate to meet the needs of subsection B of this section.

B. The owner of a kraft pulp mill shall by October 1, 1990:

1. Install, certify, maintain and operate continuous monitoring equipment to monitor and record the concentration of TRS emissions on a dry basis and the percentage of oxygen by volume on a dry basis in the gases discharged into the atmosphere from any lime kiln or recovery furnace. The location of each monitoring system must be approved by the board.

2. Install, calibrate, maintain, and operate a monitoring device which measures the combustion temperature at the point of incineration of effluent gases which are emitted from any lime kiln, recovery furnace, digester system, multiple-effect evaporator system, or condensate stripper system. The monitoring device is to be certified by the manufacturer to be accurate within 1.0% of the temperature being measured.

C. The minimum data capture and validity requirements shall be as follows:

1. Valid TRS and oxygen data shall be obtained for no less than 75% of the operating hours of each quarter. Section 4 of Procedure 1 of Appendix F of 40 CFR Part 60 shall be used to determine valid data.

2. For TRS or oxygen concentrations, a valid data hour shall have at least 50% valid readings.

3. A 24-hour average TRS or oxygen concentration shall be considered valid if at least 50% of the operating hours in the 24-hour period are valid data hours.

4. Valid temperature data shall be obtained for no less than 90% of the operating time of each quarter.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1312, eff. October 1, 1989; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-1780 Notification, records, and reporting

A. The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

B. Any owner subject to the provisions of 9VAC5-40-1770 B shall:

1. Calculate and record on a daily basis the 24-hour average TRS concentration for each operating day for each recovery furnace and lime kiln. Each 24-hour average shall be determined as the arithmetic mean of the appropriate 24 contiguous 1-hour average TRS concentrations provided by each continuous monitoring system installed under 9VAC5-40-1770 B 1.

2. Calculate and record on a daily basis the 24-hour average oxygen concentration for each operating day for each recovery furnace and lime kiln. These 24-hour averages shall correspond to the 24-hour average TRS concentration under subsection B 1 of this section and shall be determined as an arithmetic mean of the appropriate 24 contiguous one-hour average oxygen concentrations provided by each continuous monitoring system installed under 9VAC5-40-1770 B 1.

3. Correct all 24-hour average TRS concentrations to 10 volume percent oxygen, except that all 24-hour average TRS concentrations from a recovery furnace shall be corrected to 8 volume percent using the following equation:

C_corr = C_uncorr x (21-X)/(21-Y)

where:

C_corr = the concentration corrected for oxygen.

C_uncorr = the concentration uncorrected for oxygen.

X = the volumetric oxygen concentration in percentage to be corrected (8.0 for recovery furnaces and 10 for lime kilns, incinerators, or other devices).

Y = the measured 24-hour average volumetric oxygen concentration.

4. Record continuously on a daily basis the temperature of any applicable point of incineration.

5. Record on a daily basis the periods of operation for each operating day for each recovery furnace and lime kiln.

C. For the purpose of reports required under 9VAC5-40-50 C, the following information shall be reported:

1. For emissions from any recovery furnace, all 24-hour average TRS concentrations above the applicable emission standard in 9VAC5-40-1690.

2. For emissions from any lime kiln, all 24-hour average TRS concentrations above the applicable emission standard in 9VAC5-40-1690.

3. For emissions from any digester system, multiple-effect evaporator system, or condensate stripper system, all periods in excess of five minutes and their duration during which the combustion temperature is less than 1200°F if the gases are combusted in an incinerator or other device approved by the board which does not generate TRS.

4. For each recovery furnace or lime kiln, the periods of operation.

D. Each owner subject to the provisions of 9VAC5-40-1770 B 1 shall develop and implement a quality assurance plan. At a minimum the plan shall provide for daily calibration drift checks, periodic preventive maintenance, and annual audits. Section 3 of Procedure 1 of Appendix F of 40 CFR Part 60 may be used as a guide by which to pattern the plan.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1313, eff. October 1, 1989; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-1790 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1314, eff. January 1, 1985.

9VAC5-40-1800 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1315, eff. January 1, 1985.

9VAC5-40-1810 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1316, eff. January 1, 1985; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

Article 14 Emission Standards for Sand and Gravel Processing Operations and Stone Quarrying and Processing Operations (Rule 4-14)

9VAC5-40-1820 Applicability and designation of affected facility

Article 14 Emission Standards for Sand and Gravel Processing Operations and Stone Quarrying and Processing Operations (Rule 4-14)

A. The affected facility to which the provisions of this article apply is each sand and gravel processing operation and each stone quarrying and processing operation.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1401, eff. January 1, 1985.

9VAC5-40-1830 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Process operation" means a method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1402, eff. January 1, 1985.

9VAC5-40-1840 Standard for particulate matter

A. No owner or other person shall cause or permit any material to be produced, handled, stockpiled or transported without taking measures to reduce to a minimum any particulate matter from becoming airborne. Where it is practical to measure the emission, the emission shall not exceed the limits established by Table 4-14. All such airborne particulate matter emanating from the yards, sidings or roads of such operations shall be considered fugitive dust and shall be controlled as stipulated in 9VAC5-40-1860. All crushers shall be fitted with liquid sprays or other appropriate systems which effectively limit the escape of airborne dust. Vibrating and shaker screens handling dry materials shall be enclosed or fitted with a collector system which will prevent the release of more than 0.05 grains per standard cubic foot. All feeders, elevators, conveyors, transfer points, discharge points and loading points shall be equipped with collectors, sprays or other means when necessary to minimize the escape of dust.

| TABLE 4-14 | | | | --- | --- | --- | | Process Weight | Maximum Allowable Emission Rate | | | Lb/Hr | Tons/Hr | Lb/Hr | | 100 or less | 0.05 or less | 0.551 | | 200 | 0.10 | 0.877 | | 400 | 0.20 | 1.40 | | 600 | 0.30 | 1.83 | | 800 | 0.40 | 2.22 | | 1000 | 0.50 | 2.58 | | 1500 | 0.75 | 3.38 | | 2000 | 1.00 | 4.10 | | 2500 | 1.25 | 4.76 | | 3000 | 1.50 | 5.38 | | 3500 | 1.75 | 5.96 | | 4000 | 2.00 | 6.52 | | 5000 | 2.50 | 7.58 | | 6000 | 3.00 | 8.56 | | 7000 | 3.50 | 9.49 | | 8000 | 4.00 | 10.4 | | 9000 | 4.50 | 11.2 | | 10000 | 5.00 | 12.0 | | 12000 | 6.00 | 13.6 | | 16000 | 8.00 | 16.5 | | 18000 | 9.00 | 17.9 | | 20000 | 10.00 | 19.2 | | 30000 | 15.00 | 25.2 | | 40000 | 20.00 | 30.5 | | 50000 | 25.00 | 35.4 | | 60000 | 30.00 | 40.0 | | 70000 | 35.00 | 41.3 | | 80000 | 40.00 | 42.5 | | 90000 | 50.00 | 44.6 | | 120000 | 60.00 | 46.3 | | 140000 | 70.00 | 47.8 | | 160000 | 80.00 | 49.1 | | 200000 | 100.00 | 51.3 | | 1000000 | 500.00 | 69.0 | | 2000000 | 1000.00 | 77.6 | | 6000000 | 3000.00 | 92.7 |

B. Interpretation of emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

C. The provisions of this section shall not apply to affected facilities identified in subsection A of this section and located in AQCR 7; however, the provisions of 9VAC5-40-270 shall apply to the facilities.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1403, eff. January 1, 1985.

9VAC5-40-1850 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1404, eff. January 1, 1985.

9VAC5-40-1860 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1405, eff. January 1, 1985.

9VAC5-40-1870 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1406, eff. January 1, 1985.

9VAC5-40-1880 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1407, eff. January 1, 1985.

9VAC5-40-1890 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1408, eff. January 1, 1985.

9VAC5-40-1900 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1409, eff. January 1, 1985.

9VAC5-40-1910 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1410, eff. January 1, 1985.

9VAC5-40-1920 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1411, eff. January 1, 1985.

9VAC5-40-1930 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1412, eff. January 1, 1985.

9VAC5-40-1940 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1413, eff. January 1, 1985.

9VAC5-40-1950 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1414, eff. January 1, 1985.

Article 15 Emission Standards for Coal Preparation Plants (Rule 4-15)

9VAC5-40-1960 Applicability and designation of affected facility

Article 15 Emission Standards for Coal Preparation Plants (Rule 4-15)

A. The affected facilities in coal preparation plants to which the provisions of this article apply are: thermal dryers, pneumatic coal- cleaning equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal storage systems, and coal transfer and loading systems.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1501, eff. January 1, 1985.

9VAC5-40-1970 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Coal preparation plant" means any facility (excluding underground mining operations) which prepares coal by one or more of the following processes: breaking, crushing, screening, wet or dry cleaning, and thermal drying.

"Coal processing and conveying equipment" means any machinery used to reduce the size of coal or to separate coal from refuse, and the equipment used to convey coal to or remove coal and refuse from the machinery. This includes, but is not limited to, breakers, crushers, screens and conveyor belts.

"Coal storage system" means any facility used to store coal except for open storage piles.

"Pneumatic coal-cleaning equipment" means any facility which classifies bituminous coal by size or separates bituminous coal from refuse by application of air streams.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means the total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

"Thermal drier" means any facility in which the moisture content of bituminous coal is reduced by contact with a heated gas stream which is exhausted to the atmosphere.

"Transfer and loading system" means any facility used to transfer and load coal for shipment.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1502, eff. January 1, 1985.

9VAC5-40-1980 Standard for particulate matter

A. Thermal driers.

1. No owner or other person shall cause or permit to be discharged into the atmosphere from any thermal drier any particulate emissions in excess of the limits in Table 4-15A.

| TABLE 4-15A | | | --- | --- | | Process Weight Rate Tons/Hr | Maximum Allowable Emission Rate Lb/Hr | | 100 or less | 45 | | 200 or more | 105 |

2. Interpretation of the emission standard in subdivision A 1 of this section shall be in accordance with 9VAC5-40-22.

B. Pneumatic coal-cleaning equipment.

1. No owner or other person shall cause or permit to be discharged into the atmosphere from any pneumatic coal-cleaning equipment any particulate emissions in excess of 0.05 grains per standard cubic foot of exhaust gas. In no event shall the emission rate exceed the appropriate limit in Table 4-15B.

2. Interpretation of the emission standard in subdivision B 1 of this section shall be in accordance with 9VAC5-40-22.

| TABLE 4-15B | | | | --- | --- | --- | | Process Weight Rate | Maximum Allowable Emission Rate | | | Lb/Hr | Tons/Hr | Lb/Hr | | 100 | 0.05 | 0.551 | | 200 | 0.10 | 0.877 | | 400 | 0.20 | 1.40 | | 600 | 0.30 | 1.83 | | 800 | 0.40 | 2.22 | | 1000 | 0.50 | 2.58 | | 1500 | 0.75 | 3.38 | | 2000 | 1.00 | 4.10 | | 2500 | 1.25 | 4.76 | | 3000 | 1.50 | 5.38 | | 3500 | 1.75 | 5.96 | | 4000 | 2.00 | 6.52 | | 5000 | 2.50 | 7.58 | | 6000 | 3.00 | 8.56 | | 7000 | 3.50 | 9.49 | | 8000 | 4.00 | 10.4 | | 9000 | 4.50 | 11.2 | | 10000 | 5.00 | 12.0 | | 12000 | 6.00 | 13.6 | | 16000 | 8.00 | 16.5 | | 18000 | 9.00 | 17.9 | | 20000 | 10.00 | 19.2 | | 30000 | 15.00 | 25.2 | | 40000 | 20.00 | 30.5 | | 50000 | 25.00 | 35.4 | | 60000 | 30.00 | 40.0 | | 70000 | 35.00 | 41.3 | | 80000 | 40.00 | 42.5 | | 90000 | 45.00 | 43.6 | | 100000 | 50.00 | 44.6 | | 120000 | 60.00 | 46.3 | | 140000 | 70.00 | 47.8 | | 160000 | 80.00 | 49.1 | | 200000 | 100.00 | 51.3 | | 1000000 | 500.00 | 69.0 | | 2000000 | 1000.00 | 77.6 | | 6000000 | 3000.00 | 92.7 |

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1503, eff. January 1, 1985.

9VAC5-40-1990 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1504, eff. January 1, 1985.

9VAC5-40-2000 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1505, eff. January 1, 1985.

9VAC5-40-2010 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1506, eff. January 1, 1985.

9VAC5-40-2020 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1507, eff. January 1, 1985.

9VAC5-40-2030 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1508, eff. January 1, 1985.

9VAC5-40-2040 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1509, eff. January 1, 1985.

9VAC5-40-2050 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1510, eff. January 1, 1985.

9VAC5-40-2060 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1511, eff. January 1, 1985.

9VAC5-40-2070 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1512, eff. January 1, 1985.

9VAC5-40-2080 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1513, eff. January 1, 1985.

9VAC5-40-2090 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1514, eff. January 1, 1985.

Article 16 Emission Standards for Portland Cement Plants (Rule 4-16)

9VAC5-40-2100 Applicability and designation of affected facility

Article 16 Emission Standards for Portland Cement Plants (Rule 4-16)

A. The affected facilities in Portland cement plants to which the provisions of this article apply are: kiln, clinker cooler, raw mill system, finish mill system, raw mill dryer, raw material storage, clinker storage, finished product storage, conveyor transfer points, bagging and bulk loading and unloading systems.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1601, eff. January 1, 1985.

9VAC5-40-2110 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Portland cement plant" means any facility manufacturing portland cement by either the wet or dry process.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means the total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1602, eff. January 1, 1985.

9VAC5-40-2120 Standard for particulate matter

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any particulate emissions in excess of the limits in Table 4-16.

| TABLE 4-16 | | | | --- | --- | --- | | Process Weight | Maximum Allowable Emission Rate | | | Lb/Hr | Tons/Hr | Lb/Hr | | 100 or less | 0.05 or less | 0.551 | | 200 | 0.10 | 0.877 | | 400 | 0.20 | 1.40 | | 600 | 0.30 | 1.83 | | 800 | 0.40 | 2.22 | | 1000 | 0.50 | 2.58 | | 1500 | 0.75 | 3.38 | | 2000 | 1.00 | 4.10 | | 2500 | 1.25 | 4.76 | | 3000 | 1.50 | 5.38 | | 3500 | 1.75 | 5.96 | | 4000 | 2.00 | 6.52 | | 5000 | 2.50 | 7.58 | | 6000 | 3.00 | 8.56 | | 7000 | 3.50 | 9.49 | | 8000 | 4.00 | 10.4 | | 9000 | 4.50 | 11.2 | | 10000 | 5.00 | 12.0 | | 12000 | 6.00 | 13.6 | | 16000 | 8.00 | 16.5 | | 18000 | 9.00 | 17.9 | | 20000 | 10.00 | 19.2 | | 30000 | 15.00 | 25.2 | | 40000 | 20.00 | 30.5 | | 50000 | 25.00 | 35.4 | | 60000 | 30.00 | 40.0 | | 70000 | 35.00 | 41.3 | | 80000 | 40.00 | 42.5 | | 90000 | 45.00 | 43.6 | | 100000 | 50.00 | 44.6 | | 120000 | 60.00 | 46.3 | | 140000 | 70.00 | 47.8 | | 160000 | 80.00 | 49.1 | | 200000 | 100.00 | 51.3 | | 1000000 | 500.00 | 69.0 | | 2000000 | 1000.00 | 77.6 | | 6000000 | 3000.00 | 92.7 |

B. Interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1603, eff. January 1, 1985.

9VAC5-40-2130 Standard for sulfur dioxide

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

S = 2.64K

where:

S = allowable emission of sulfur dioxide expressed in pounds per hour.

K = actual heat input expressed in Btu X 10⁶ per hour.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1604, eff. January 1, 1985.

9VAC5-40-2140 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1605, eff. January 1, 1985.

9VAC5-40-2150 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1606, eff. January 1, 1985.

9VAC5-40-2160 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1607, eff. January 1, 1985.

9VAC5-40-2170 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1608, eff. January 1, 1985.

9VAC5-40-2180 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1609, eff. January 1, 1985.

9VAC5-40-2190 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1610, eff. January 1, 1985.

9VAC5-40-2200 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1611, eff. January 1, 1985.

9VAC5-40-2210 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1612, eff. January 1, 1985.

9VAC5-40-2220 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1613, eff. January 1, 1985.

9VAC5-40-2230 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1614, eff. January 1, 1985.

9VAC5-40-2240 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1615, eff. January 1, 1985.

Article 17 Emission Standards for Woodworking Operations (Rule 4-17)

9VAC5-40-2250 Applicability and designation of affected facility

Article 17 Emission Standards for Woodworking Operations (Rule 4-17)

A. The affected facility to which the provisions of this article apply is each woodworking operation.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1701, eff. January 1, 1985.

9VAC5-40-2260 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Woodworking operation" means any operation involving the generation of small wood waste particles (shavings, sanderdust, sawdust, etc.) by any kind of mechanical manipulation of wood, bark, or wood byproducts. Includes, but is not limited to, sawing, planing, chipping, shaping, moulding, hogging, lathing and sanding. Also includes any woodworking waste collection operation.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1702, eff. January 1, 1985.

9VAC5-40-2270 Standard for particulate matter

A. No owner or other person shall cause or permit to be discharged into the atmosphere any particulate emissions caused by any woodworking operation without providing, as a minimum, for their collection, adequate duct work and properly designed collectors, or such other devices, as approved by the board.

B. Particulate emissions shall not exceed 0.05 grains per standard cubic feet of exhaust gas.

C. The provisions of this section shall not apply to affected facilities identified in subsection A of this section and located in AQCR 7; however, the provisions of 9VAC5-40-270 shall apply to the facilities.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1703, eff. January 1, 1985.

9VAC5-40-2280 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1704, eff. January 1, 1985.

9VAC5-40-2290 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1705, eff. January 1, 1985.

9VAC5-40-2300 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1706, eff. January 1, 1985.

9VAC5-40-2310 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1707, eff. January 1, 1985.

9VAC5-40-2320 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1708, eff. January 1, 1985.

9VAC5-40-2330 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1709, eff. January 1, 1985.

9VAC5-40-2340 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1710, eff. January 1, 1985.

9VAC5-40-2350 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1711, eff. January 1, 1985.

9VAC5-40-2360 Registration

The provisions of 9VAC5-40-60 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1712, eff. January 1, 1985.

9VAC5-40-2370 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-40-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1713, eff. January 1, 1985.

9VAC5-40-2380 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1714, eff. January 1, 1985.

Article 18 Emission Standards for Primary and Secondary Metal Operations (Rule 4-18)

9VAC5-40-2390 Applicability and designation of affected facility

Article 18 Emission Standards for Primary and Secondary Metal Operations (Rule 4-18)

A. The affected facility to which the provisions of this article apply is each primary metal operation and each secondary metal operation.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1801, eff. January 1, 1985.

9VAC5-40-2400 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Aluminum production operation" means the production of aluminum or aluminum alloys from aluminum pigs, foundry returns or scrap material by smelting or melting to the metallic form. Includes fluxing, alloying, degassing, and demagging operations.

"Brass or bronze" means any metal alloy containing copper as its predominant constituent and lesser amounts of zinc, tin, lead or other metals.

"Brass or bronze production" means the production of brass or bronze ingots from scrap material by, or through a combination of, melting, smelting, refining or alloying.

"Ferroalloy production operation" means the production of any ferroalloy by use of a smelting furnace.

"Gray iron foundry operation" means the production of gray iron castings by use of a melting furnace.

"Lead" means elemental lead or alloys in which the predominant component is lead.

"Magnesium production operation" means the production of magnesium from scrap material by use of a furnace.

"Melt time" means the time in which the metal is melting and available at the spout or tap hole, excluding any time the equipment is idle, preheating or preparing for shutdown.

"Primary copper smelter" means any installation or any intermediate process engaged in the production of copper from copper sulfide ore concentrates through the use of pyrometallurgical techniques.

"Primary lead smelter" means any installation or any intermediate process engaged in the production of lead from lead sulfide ore concentrates through the use of pyrometallurgical techniques.

"Primary metal operation" means any operation which involves the production of a metal from metal ore concentrates through the use of pyrometallurgical techniques.

"Primary zinc smelter" means any installation or any intermediate process engaged in the production of zinc or zinc oxide from zinc sulfide ore concentrates through the use of pyrometallurgical techniques.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means the total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

"Secondary lead production operation" means the production of lead from lead bearing scrap material by smelting to the metallic form.

"Secondary metal operation" means any aluminum production operation, brass or bronze production operation, ferroalloy production operation, gray iron foundry operation, secondary lead production operation, magnesium production operation, steel foundry operation or zinc process operation.

"Steel foundry operation" means the production of steel castings by use of a melting furnace.

"Zinc process operation" means zinc reclaiming, zinc oxide manufacturing and zinc galvanizing.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1802, eff. January 1, 1985.

9VAC5-40-2410 Standard for particulate matter

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any secondary metal operation any particulate emissions in excess of the limits in Table 4-18.

| TABLE 4-18 | | | --- | --- | | Process Weight Rate Lb/Hr | Maximum Allowable Emission Rate Lb/Hr | | 1,000 or less | 3.05 | | 2,000 | 4.70 | | 3,000 | 6.35 | | 4,000 | 8.00 | | 5,000 | 9.05 | | 6,000 | 11.30 | | 7,000 | 12.90 | | 8,000 | 14.30 | | 9,000 | 15.50 | | 10,000 | 16.65 | | 12,000 | 18.70 | | 16,000 | 21.60 | | 18,000 | 22.80 | | 20,000 | 24.00 | | 30,000 | 30.00 | | 40,000 | 36.00 | | 50,000 or more | 42.00 |

B. Interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

C. The permissible emission rates as shown in Table 4-18 shall apply during the melt time but shall not apply during the time of preheat or preparing for shutdown. The exemption for preheating and shutdown shall be limited to two 20-minute periods in a given eight-hour period for each furnace unit.

D. The provisions of this section shall not apply to affected facilities identified in subsection A of this section and located in AQCR 7; however, the provisions of 9VAC5-40-270 shall apply to the facilities.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1803, eff. January 1, 1985.

9VAC5-40-2420 Standard for sulfur oxides

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

Copper Smelters: Y = 0.2X

Zinc Smelters: Y = 0.564X^0.85

Lead Smelters: Y = 0.98X^0.77

where:

X = total sulfur fed to the smelter in lb/hr.

Y = allowable sulfur oxide emissions in lb/hr.

Note: This provision in effect requires removal of about 90% of the input-sulfur to the smelter.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1804, eff. January 1, 1985.

9VAC5-40-2430 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1805, eff. January 1, 1985.

9VAC5-40-2440 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1806, eff. January 1, 1985.

9VAC5-40-2450 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1807, eff. January 1, 1985.

9VAC5-40-2460 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1808, eff. January 1, 1985.

9VAC5-40-2470 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1809, eff. January 1, 1985.

9VAC5-40-2480 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1810, eff. January 1, 1985.

9VAC5-40-2490 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1811, eff. January 1, 1985.

9VAC5-40-2500 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1812, eff. January 1, 1985.

9VAC5-40-2510 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1813, eff. January 1, 1985.

9VAC5-40-2520 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1814, eff. January 1, 1985.

9VAC5-40-2530 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1815, eff. January 1, 1985.

Article 19 Emission Standards for Lightweight Aggregate Process Operations (Rule 4-19)

9VAC5-40-2540 Applicability and designation of affected facility

Article 19 Emission Standards for Lightweight Aggregate Process Operations (Rule 4-19)

A. The affected facility to which the provisions of this article apply is each lightweight aggregate process operation.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1901, eff. January 1, 1985.

9VAC5-40-2550 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or process operation which results in the emission of pollutants to the atmosphere.

"Process weight" means total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1902, eff. January 1, 1985.

9VAC5-40-2560 Standard for particulate matter

A. No owner or other person shall cause, or permit to be discharged into the atmosphere from any lightweight aggregate process operation any particulate emissions in excess of the limits in Table 4-19.

| TABLE 4-19 | | | --- | --- | | Process Weight Rate Tons/Hr | Maximum Allowable Emission Rate Lb/Hr | | .05 or less | .176 | | .10 | .351 | | .20 | .702 | | .30 | 1.053 | | .40 | 1.404 | | .50 | 1.76 | | .75 | 2.64 | | 1.0 | 3.51 | | 1.25 | 5.27 | | 1.75 | 6.15 | | 2.0 | 7.02 | | 4.0 | 14.0 | | 6.0 | 21.1 | | 8.0 | 28.1 | | 10.0 | 35.1 | | 15.0 | 52.7 | | 20.0 | 70.2 | | 25.0 | 87.8 | | 30.0 | 105.0 | | 35.0 | 123.0 | | 40.0 | 140.0 | | 45.0 | 158.0 | | 50.0 | 176.0 |

B. Except as provided in subsection C of this section, interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

C. For a process weight rate between any two consecutive rates in Table 4-19, or for rates over 50 tons per hour, the maximum allowable emission rate may be calculated by the following equation:

E = 3.51 P

where:

E = emission rate in lb/hr.

P = process weight rate in tons/hr.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1903, eff. January 1, 1985.

9VAC5-40-2570 Standard for sulfur oxides

No owner or other person shall cause, or permit fuel with a sulfur content in excess of three pounds per million Btu to be used in the processing of lightweight aggregate.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1904, eff. January 1, 1985.

9VAC5-40-2580 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1905, eff. January 1, 1985.

9VAC5-40-2590 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1906, eff. January 1, 1985.

9VAC5-40-2600 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1907, eff. January 1, 1985.

9VAC5-40-2610 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1908, eff. January 1, 1985.

9VAC5-40-2620 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1909, eff. January 1, 1985.

9VAC5-40-2630 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1910, eff. January 1, 1985.

9VAC5-40-2640 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1911, eff. January 1, 1985.

9VAC5-40-2650 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1912, eff. January 1, 1985.

9VAC5-40-2660 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1913, eff. January 1, 1985.

9VAC5-40-2670 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1914, eff. January 1, 1985.

9VAC5-40-2680 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-1915, eff. January 1, 1985.

Article 20 Emission Standards for Feed Manufacturing Operations (Rule 4-20)

9VAC5-40-2690 Applicability and designation of affected facility

Article 20 Emission Standards for Feed Manufacturing Operations (Rule 4-20)

A. The affected facility to which the provisions of this article apply is each feed manufacturing operation.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2001, eff. January 1, 1985.

9VAC5-40-2700 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Feed manufacturing" means receiving, conditioning (drying, sizing, cleaning), blending and pelleting of grains, and their subsequent bagging or bulk loading.

"Manufacturing operation" means any process operation or combination of physically connected dissimilar process operations which is operated to effect physical or chemical changes, or both, in an article.

"Materials handling equipment" means any equipment used as a part of a process operation or combination of process operations which does not effect a physical or chemical change in the material or in an article, such as, but not limited to, conveyors, elevators, feeders or weighters.

"Physically connected" means any combination of process operations connected by materials handling equipment and designed for simultaneous complementary operation.

"Process operation" means any method, form, action, operation or treatment of manufacturing or processing, including any storage or handling of materials or products before, during or after manufacturing or processing.

"Process unit" means any step in a manufacturing or processing operation which results in the emission of pollutants to the atmosphere.

"Process weight" means total weight of all materials introduced into any process unit which may cause any emission of pollutants. Process weight includes solid fuels charged, but does not include liquid and gaseous fuels charged or combustion air for all fuels.

"Process weight rate" means a rate established as follows:

a. For continuous or long-run steady-state process operations, the total process weight for the entire period of continuous operation or for a typical portion of it, divided by the number of hours of such period or portion of it.

b. For cyclical or batch process operations, the total weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period.

"Production rate" means the weight of final product obtained per hour of operation. If the rate of product going to storage can vary, the production rate shall be determined by calculation from the feed rates of raw material.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2002, eff. January 1, 1985.

9VAC5-40-2710 Standard for particulate matter

A. No owner or other person shall cause, or permit to be discharged into the atmosphere from any feed manufacturing operation any particulate emissions in excess of the limits in Table 4-20.

| TABLE 4-20 | | | | --- | --- | --- | | Process Weight | Maximum Allowable Emission Rate | | | Lb/Hr | Tons/Hr | Lb/Hr | | 100 or less | 0.05 or less | 0.551 | | 200 | 0.10 | 0.877 | | 400 | 0.20 | 1.40 | | 600 | 0.30 | 1.83 | | 800 | 0.40 | 2.22 | | 1000 | 0.50 | 2.58 | | 1500 | 0.75 | 3.38 | | 2000 | 1.00 | 4.10 | | 2500 | 1.25 | 4.76 | | 3000 | 1.50 | 5.38 | | 3500 | 1.75 | 5.96 | | 4000 | 2.00 | 6.52 | | 5000 | 2.50 | 7.58 | | 6000 | 3.00 | 8.56 | | 7000 | 3.50 | 9.49 | | 8000 | 4.00 | 10.4 | | 9000 | 4.50 | 11.2 | | 10000 | 5.00 | 12.0 | | 12000 | 6.00 | 13.6 | | 16000 | 8.00 | 16.5 | | 18000 | 9.00 | 17.9 | | 20000 | 10.00 | 19.2 | | 30000 | 15.00 | 25.2 | | 40000 | 20.00 | 30.5 | | 50000 | 25.00 | 35.4 | | 60000 | 30.00 | 40.0 | | 70000 | 35.00 | 41.3 | | 80000 | 40.00 | 42.5 | | 90000 | 45.00 | 43.6 | | 100000 | 50.00 | 44.6 | | 120000 | 60.00 | 46.3 | | 140000 | 70.00 | 47.8 | | 160000 | 80.00 | 49.1 | | 200000 | 100.00 | 51.3 | | 1000000 | 500.00 | 69.0 | | 2000000 | 1000.00 | 77.6 | | 6000000 | 3000.00 | 92.7 |

B. Except as provided in subsections C and D of this section, interpretation of the emission standard in subsection A of this section shall be in accordance with 9VAC5-40-22.

C. The process weight rate entry to be used in Table 4-20 for feed manufacturing process units shall be considered as the production rate.

D. The process weight rate entry to be used in Table 4-20 for feed manufacturing operations involving physically connected dissimilar process operations shall be the sum of the process weight rates of each of the dissimilar process operations. The materials handling equipment shall not be considered as a part of the process operation for determination of process weight rate.

E. The provisions of this section shall not apply to affected facilities identified in subsection A of this section and located in AQCR 7; however, the provisions of 9VAC5-40-270 shall apply to the facilities.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2003, eff. January 1, 1985.

9VAC5-40-2720 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2004, eff. January 1, 1985.

9VAC5-40-2730 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2005, eff. January 1, 1985.

9VAC5-40-2740 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2006, eff. January 1, 1985.

9VAC5-40-2750 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2007, eff. January 1, 1985.

9VAC5-40-2760 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2008, eff. January 1, 1985.

9VAC5-40-2770 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2009, eff. January 1, 1985.

9VAC5-40-2780 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2010, eff. January 1, 1985.

9VAC5-40-2790 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2011, eff. January 1, 1985.

9VAC5-40-2800 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2012, eff. January 1, 1985.

9VAC5-40-2810 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2013, eff. January 1, 1985.

9VAC5-40-2820 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2014, eff. January 1, 1985.

Article 21 Emissions Standards for Sulfuric Acid Production Units (Rule 4-21)

9VAC5-40-2830 Applicability and designation of affected facility

Article 21 Emissions Standards for Sulfuric Acid Production Units (Rule 4-21)

A. The affected facility to which the provisions of this article apply is each sulfuric acid production unit.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2101, eff. January 1, 1985.

9VAC5-40-2840 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Sulfuric acid mist" means sulfuric acid mist, as measured by Reference Method 8 or an equivalent or alternative method.

"Sulfuric acid production unit" means any facility producing sulfuric acid by the contact process by burning elemental sulfur, alkylation acid, hydrogen sulfide, organic sulfides and mercaptans, or acid sludge; but does not include facilities where conversion to sulfuric acid is utilized primarily as a means of preventing emissions to the atmosphere of sulfur dioxide or other sulfur compounds.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2102, eff. January 1, 1985.

9VAC5-40-2850 Standard for sulfur dioxide

No owner or other person shall cause or permit to be discharged into the atmosphere from any sulfuric acid production unit any sulfur dioxide emissions in excess of a concentration of 2000 parts per million by volume and a mass emission rate of 27 pounds per ton of 100% acid produced when elemental sulfur is used for feed material, or 3500 ppm by volume and a mass emission rate of 45 pounds per ton of 100% acid produced when other raw materials such as recycled spent acid and ores are used as feed. These emissions levels may be exceeded for a period not longer than 24 hours during start-up.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2103, eff. January 1, 1985.

9VAC5-40-2860 Standard for sulfuric acid mist

No owner or other person shall cause or permit to be discharged into the atmosphere from any sulfuric acid production unit any sulfuric acid mist emissions in excess of 0.5 pound per ton of sulfuric acid produced, the production being expressed as 100% H₂SO₄.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2104, eff. January 1, 1985.

9VAC5-40-2870 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2105, eff. January 1, 1985.

9VAC5-40-2880 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2106, eff. January 1, 1985.

9VAC5-40-2890 Standard for odor

The provision of Article 2 (9VAC5-40-130 et seq.) of this chapter (Emission Standard for Odor, Rule 4-2) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2107, eff. January 1, 1985.

9VAC5-40-2900 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2108, eff. January 1, 1985.

9VAC5-40-2910 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2109, eff. January 1, 1985.

9VAC5-40-2920 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2110, eff. January 1, 1985.

9VAC5-40-2930 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply.

B. Unless otherwise approved by the board, owners of sulfuric acid production units specified in subsection C of this section shall install, calibrate, maintain and operate systems for continuously monitoring and recording specified emissions in accordance with 9VAC5-40-40 and 9VAC5-40-41.

C. Sulfuric acid production units of greater than 300 tons per day production capacity (the production being expressed as 100% acid) shall be monitored for sulfur dioxide emissions.

D. The pollutant gas used to prepare calibration gas mixtures under paragraph 2.1, Performance Specifications 2 of Appendix B of 40 CFR 60 and for calibration checks under 9VAC5-40-41 shall be sulfur dioxide (SO₂). Reference Method 8 shall be used for conducting monitoring system performance evaluations under of 9VAC5-40-41 except that only the sulfur dioxide portion of the Reference Method 8 results shall be used. The span shall be set at 1,000 ppm of sulfur dioxide.

E. The owner shall establish a conversion factor for the purpose of converting monitoring data into units of the applicable standard (lb/short ton). The conversion factor shall be determined, as a minimum, three times daily by measuring the concentration of sulfur dioxide entering the converter using suitable methods (e.g., the Reich Test, "Atmospheric Emissions from Sulfuric Acid Manufacturing Processes," see 9VAC5-20-21) and calculating the appropriate conversion factor for each eight-hour period as follows:

| | CF = k | (1.000 - 0.15r) | | --- | --- | --- | | | (r - s) | |

where:

CF = conversion factor (lb/short ton per ppm).

k = constant derived from material balance. For determining CF in English units, k = 0.1306.

r = percentage of sulfur dioxide by volume entering the gas converter. Appropriate corrections must be made for air injection plants subject to the approval of the board.

s = percentage of sulfur dioxide by volume in the emission to the atmosphere determined by the continuous monitoring system.

F. The average sulfur dioxide concentration in the flue gases shall be multiplied by the conversion factor to obtain the average sulfur dioxide emissions in units of the applicable standard. The owner shall record all conversion factors and values under subsection E of this section from which they were computed (i.e., CF, r, and s).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2111, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002.

9VAC5-40-2940 Notification, records and reporting

A. The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

B. For the purpose of reports under 9VAC5-40-50 C, periods of excess emissions that shall be reported are defined as any three-hour period (or the arithmetic average of three consecutive one-hour periods) during which the integrated average sulfur dioxide emissions exceeds the applicable standard under 9VAC5-40-2850.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2112, eff. January 1, 1985.

9VAC5-40-2950 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2113, eff. January 1, 1985.

9VAC5-40-2960 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2114, eff. January 1, 1985.

9VAC5-40-2970 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2115, eff. January 1, 1985.

Article 22 Emission Standards for Sulfur Recovery Operations (Rule 4-22)

9VAC5-40-2980 Applicability and designation of affected facility

Article 22 Emission Standards for Sulfur Recovery Operations (Rule 4-22)

A. The affected facility to which the provisions of this article apply is each sulfur recovery operation.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2201, eff. January 1, 1985.

9VAC5-40-2990 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Production rate" means the weight of final product obtained per hour of operation. If the rate or product going to storage can vary, the production rate shall be determined by calculation from the feed rates of raw material.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2202, eff. January 1, 1985.

9VAC5-40-3000 Standard for sulfur dioxide

No owner or other person shall cause or permit to be discharged into the atmosphere from any sulfur recovery operation any sulfur dioxide emissions in excess of a concentration of 8000 parts per million by volume and in excess of the mass emission rate specified in Table 4-22.

| TABLE 4-22 | | | --- | --- | | Sulfur Production Rate (tons/day) | Maximum Allowable S0₂ Mass Emission Rate (lbs/hr) | | 50 or less | 415 | | 100 | 830 | | 200 | 1660 | | 300 | 2490 | | 400 | 3320 | | 500 or more | 4150 |

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2203, eff. January 1, 1985.

9VAC5-40-3010 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2204, eff. January 1, 1985.

9VAC5-40-3020 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2205, eff. January 1, 1985.

9VAC5-40-3030 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2206, eff. January 1, 1985.

9VAC5-40-3040 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2207, eff. January 1, 1985.

9VAC5-40-3050 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2208, eff. January 1, 1985.

9VAC5-40-3060 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2209, eff. January 1, 1985.

9VAC5-40-3070 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2210, eff. January 1, 1985.

9VAC5-40-3080 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2211, eff. January 1, 1985.

9VAC5-40-3090 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2212, eff. January 1, 1985.

9VAC5-40-3100 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2213, eff. January 1, 1985.

9VAC5-40-3110 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2214, eff. January 1, 1985.

Article 23 Emission Standards for Nitric Acid Production Units (Rule 4-23)

9VAC5-40-3120 Applicability and designation of affected facility

Article 23 Emission Standards for Nitric Acid Production Units (Rule 4-23)

A. The affected facility to which the provisions of this article apply is each nitric acid production unit.

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2301, eff. January 1, 1985.

9VAC5-40-3130 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Nitric acid production unit" means any facility producing nitric acid 30 to 70% in strength by either the pressure or atmospheric pressure process.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2302, eff. January 1, 1985.

9VAC5-40-3140 Standard for nitrogen oxides

No owner or other person shall cause or permit to be discharged into the atmosphere from any nitric acid production unit any emissions of nitrogen oxides (expressed as nitrogen dioxide) in excess of 5.5 pounds per ton of 100% acid produced.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2303, eff. January 1, 1985.

9VAC5-40-3150 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2304, eff. January 1, 1985.

9VAC5-40-3160 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2305, eff. January 1, 1985.

9VAC5-40-3170 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2306, eff. January 1, 1985.

9VAC5-40-3180 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2307, eff. January 1, 1985.

9VAC5-40-3190 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2308, eff. January 1, 1985.

9VAC5-40-3200 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2309, eff. January 1, 1985.

9VAC5-40-3210 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply.

B. Unless otherwise approved by the board, owners of existing sources specified in subsection C of this section shall install, calibrate, maintain and operate systems for continuously monitoring and recording emissions of specified pollutants.

C. Nitric acid plants of greater than 300 tons per day production capacity (the production capacity being expressed as 100% acid) shall be monitored for nitrogen oxides emissions.

D. The pollutant gas used to prepare calibration gas mixtures under paragraph 2.1, Performance Specification 2 of Appendix B of 40 CFR 60 and for calibration checks under 9VAC5-40-41 shall be nitrogen dioxide (NO₂). The span shall be set at 500 ppm of nitrogen dioxide. Reference Method 7 shall be used for conducting monitoring system performance evaluations under 9VAC5-40-41.

E. The owner shall establish a conversion factor for the purpose of converting monitoring data into units of the applicable standard (lb/short ton). The conversion factor shall be established by measuring emissions with the continuous monitoring system concurrent with measuring emissions with the applicable reference method tests. Using only that portion of the continuous monitoring emission data that represents emission measurements concurrent with the reference method test periods, the conversion factor shall be determined by dividing the reference method test data average by the monitoring data averages to obtain a ratio expressed in units of the applicable standard to units of the monitoring data, i.e., lb/short ton per ppm. The conversion factor shall be reestablished during any emission test under 9VAC5-40-30 or any continuous monitoring system performance evaluation under 9VAC5-40-41. The average nitrogen oxides concentration in the flue gases shall be multiplied by the conversion factor to obtain the average nitrogen oxides emissions in the units of the applicable standard.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2310, eff. January 1, 1985.

9VAC5-40-3220 Notification, records and reporting

A. The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

B. The owner shall record the production rate and hours of operation.

C. For the purpose of reports required under 9VAC5-40-50 C, periods of excess emissions that shall be reported are defined as any three-hour period during which the average nitrogen oxides emissions (arithmetic average of three contiguous one-hour periods) exceed the standard under 9VAC5-40-3140.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2311, eff. January 1, 1985.

9VAC5-40-3230 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2312, eff. January 1, 1985.

9VAC5-40-3240 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2313, eff. January 1, 1985.

9VAC5-40-3250 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2314, eff. January 1, 1985.

Article 24 Emission Standards for Solvent Metal Cleaning Operations Using Nonhalogenated Solvents (Rule 4-24)

9VAC5-40-3260 Applicability and designation of affected facility

Article 24 Emission Standards for Solvent Metal Cleaning Operations Using Nonhalogenated Solvents (Rule 4-24)

A. The affected facility to which the provisions of this article apply is each solvent metal cleaning operation using nonhalogenated solvents, including, but not limited to, cold or vapor degreasing at service stations; motor vehicle repair shops; automobile dealerships; machine shops; and any other metal refinishing, cleaning, repair, or fabrication facility.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206. They do not apply to sources in the Northern Virginia volatile organic compound emissions control area designated in 9VAC5-20-206. These sources are subject to Article 47 (9VAC5-40-6820 et seq.). of this part.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-04-2401, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 13, Issue 10, eff. April 1, 1997; Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-3270 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Cold cleaning" means the batch process of cleaning and removing foreign matter from metal surfaces by spraying, brushing, flushing or immersion while maintaining the solvent below its boiling point. Wipe cleaning is not included in this definition.

"Conveyorized degreasing" means the continuous process of cleaning and removing foreign matter from metal surfaces by operating with either cold or vaporized solvents.

"Freeboard height"

a. For cold cleaners, the distance from the liquid solvent level in the degreaser tank to the lip of the tank.

b. For open top vapor degreasers, the distance from the solvent-to-air interface in the tank to the lip of the tank.

c. For conveyerized degreasers, the distance from the solvent-to-air interface to the bottom of the entrance or exit opening, whichever is lower.

"Freeboard ratio" means the freeboard height divided by the width of the degreaser.

"Lower explosive limit" means the lower limit of flammability of a gas or vapor at ordinary ambient temperatures expressed in percent of the gas or vapor in air by volume.

"Nonhalogenated solvent" means any solvent other than methylene chloride, perchloroethylene, trichloroethylene, 1,1,1- trichloroethane, carbon tetrachloride, or chloroform. Nonhalogenated solvents may include trace quantities of halogenated solvents which are:

a. Unintended residues in recycled solvents, or

b. Unintended impurities resulting from chemical reaction in the manufacturing process.

"Open top vapor degreasing" means the batch process of cleaning and removing foreign matter from metal surfaces by condensing hot solvent vapor on the colder metal parts.

"Solvent" means organic materials which are liquid at standard conditions and which are used as dissolvers, viscosity reducers or cleaning agents.

"Solvent metal cleaning" means the process of cleaning foreign matter from metal surfaces by cold cleaning or open top vapor degreasing or conveyorized degreasing.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2402, eff. January 1, 1985; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-3280 Standard for volatile organic compounds

A. Conveyorized degreasing.

1. No owner or other person shall use or permit the use of any conveyorized degreaser unless such degreaser is equipped with a control method that will remove, destroy or prevent the discharge into the atmosphere of at least 70% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision A 1 of this section by use of the methods in 9VAC5-40-3290 A and D will be acceptable to the board.

B. Open top vapor degreasing.

1. No owner or other person shall use or permit the use of any open top vapor degreaser unless such degreaser is equipped with a control method that will remove, destroy or prevent the discharge into the atmosphere of at least 75% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision B 1 of this section by use of the methods in 9VAC5-40-3290 B and D will be acceptable to the board.

C. Cold cleaning.

1. No owner or other person shall use or permit the use of any cold cleaner unless such cleaner is equipped with a control method that will remove, destroy or prevent the discharge into the atmosphere of at least 85% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision C 1 of this section by use of the methods in 9VAC5-40-3290 C and D will be acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2403, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-3290 Control technology guidelines

A. Conveyorized degreasing.

1. Control requirements.

a. The degreaser (if the air/vapor interface is larger than 20 ft²) should be equipped with one of the following vapor control methods:

(1) Refrigerated chiller (a secondary set of condensing coils operating with a coolant of less than 40°F).

(2) Carbon adsorption system, with ventilation of 50 cfm/ft² or greater of conveyor opening area (when down-time covers are open), and exhausting less than 25 ppm of solvent by volume averaged over a complete adsorption cycle.

(3) Any method of equal or greater control efficiency to the methods in subdivisions A 1 a (1) and (2) of this section, provided such method is approved by the board.

b. The degreaser should be equipped with either a drying tunnel, or other means such as rotating (tumbling) basket, sufficient to prevent cleaned parts from carrying out solvent liquid or vapor.

c. The degreaser should be equipped with all of the following control devices:

(1) A device to prevent heat input unless there is adequate coolant.

(2) The spray shall be equipped with a device that will prevent spraying unless the degreaser is operating normally.

(3) A device to shut off the heat if the vapor level rises above a predetermined level.

d. Entrances and exits should silhouette work loads so that the average clearance (between the largest parts and the edge of the degreaser opening) is either four inches or 10% of the width of the opening, whichever is less.

e. Covers should be provided for closing off the entrance and exit during shutdown, heat-up and cool-down.

2. Operating requirements.

a. Exhausting ventilation should not exceed 65 cfm/ft² of degreaser open area, unless necessary to meet the requirements of any regulations promulgated by the U.S. Occupational Safety and Health Administration. Fans shall not be used near the degreaser opening.

b. Carry-out vapor losses should be minimized by racking parts to allow full drainage and maintaining vertical conveyor speed at less than 11 ft/min.

c. Waste solvent should not be disposed of or transferred to another party such that greater than 20% of the waste (by weight) can evaporate into the atmosphere. Waste solvent should only be stored in closed containers.

d. Solvent leaks should be repaired immediately or the degreaser should be shutdown.

e. Water should not be visibly detectable in the solvent exiting the water separator.

f. Down-time cover should be placed over entrances and exits of conveyorized degreaser immediately after the conveyor and exhaust are shutdown and removed just before they are started up.

B. Open top vapor degreasing.

1. Control requirements.

a. Covers should be provided that can be opened and closed easily without disturbing the vapor zone.

b. The degreaser should be equipped with all of the following control devices:

(1) A device to prevent heat input unless there is adequate coolant.

(2) The spray should be equipped with a method that will prevent spraying unless the degreaser is operating normally.

c. Degreaser should be equipped with one of the following vapor control methods:

(1) Freeboard ratio equal to or greater than 0.75. If the open area is larger than 10 ft², the cover should be powered.

(2) Refrigerated chiller (a secondary set of condensing coils operating with a coolant of less than 40°F).

(3) Enclosed design (cover or door opens only when the dry part is actually entering or exiting the degreaser).

(4) Carbon adsorption system, with ventilation of 50 cfm/ft² or greater of air/vapor area (when cover is open), and exhausting less than 25 ppm solvent by volume averaged over one complete adsorption cycle.

(5) Any method of equal or greater control efficiency to the methods in subdivisions B 1 c (1) through (4) of this section, provided such method is approved by the board.

d. A permanent label, summarizing operating procedures in subdivisions B 2 a through f of this section, should be placed in a conspicuous location on or near the degreaser.

2. Operating requirements.

a. The cover should be kept closed at all times except when processing work loads through the degreaser.

b. Carry-out vapor losses should be minimized by:

(1) Racking parts to allow full drainage;

(2) Moving parts in and out of the degreaser at less than 11 ft/min;

(3) Degreasing the work load in the vapor zone at least 30 seconds or until condensation ceases, whichever is longer;

(4) Tipping out any pools of solvent on the cleaned parts before removal; and

(5) Allowing parts to dry within the degreaser for at least 15 seconds or until visually dry, whichever is longer.

c. Porous or absorbent materials, such as cloth, leather, wood or rope should not be degreased.

d. Work loads should not occupy more than half of the degreaser's open top area.

e. The vapor level should not drop more than four inches when the work load enters the vapor zone. However, for certain specific solvent vapor degreasing operations where of necessity very large masses are required to be degreased at one time, such as large castings and fabricated assemblies, the manufacturers design should accommodate a drop of the vapor-air interface of more than four inches. This introduction of such large masses of necessity causes significant vapor-air interface drop and so the problem must be resolved by engineering of the degreaser in these cases rather than by limiting the amount of air-vapor interface drop.

f. Spraying above the vapor level should not be done.

g. Solvent leaks should be repaired immediately or the degreaser shutdown.

h. Waste solvent, still, and sump bottoms shall be collected and stored in closed containers. The closed containers may contain a device that would allow pressure relief, but would not allow liquid solvent to drain from the container.

i. Exhaust ventilation should not exceed 65 cfm/ft² of degreaser open area, unless necessary to meet OSHA requirements. Fans should not be used near the degreaser opening.

j. Water should not be visually detectable in solvent exiting the water separator.

C. Cold cleaning.

1. Control requirements.

a. Covers or enclosed remote reservoirs should be provided. Covers should be designed so that they can be easily operated with one hand. (Covers for larger degreasers may require mechanical assistance, by spring loading, counterweighting or powered systems). Enclosed remote reservoirs should be designed such that they provide reduction effectiveness equivalent to that of a cover.

b. External or internal drainage facilities should be provided to collect and return the solvent to a closed container or a solvent cleaning machine. If a solvent volatility is greater than 0.6 psi measured at 100°F, then the drainage facilities should be internal so that parts are enclosed under the cover while draining. Drainage facilities may be external for applications where an internal type cannot fit into the cleaning system.

c. A permanent label, summarizing the operating procedures in subdivisions C 2 a through c of this section, should be placed in a conspicuous location on or near the degreaser.

d. If used, the solvent spray should be a solid, fluid stream (not a fine, atomized or shower type spray) and at a pressure which does not cause excessive splashing.

e. If a solvent volatility is greater than 0.6 psi measured at 100°F, or if solvent is heated above 120°F, then the degreaser (if the open area is greater than 20 ft²) should be equipped with one of the following vapor control methods:

(1) Freeboard ratio that is equal to or greater than 0.7.

(2) Water cover (solvent should be insoluble in and heavier than water).

(3) Refrigerated chiller (a secondary set of condensing coils operating with a coolant of less than 40°F).

(4) Carbon adsorption system, with ventilation of 50 cfm/ft² or greater of air/vapor area (when down-time covers are open), and exhausting less than 25 ppm of solvent by volume averaged over a complete adsorption cycle.

(5) Any method of equal or greater control efficiency to the methods in subdivisions C 1 e (1) through (4) of this section, provided such method is approved by the board.

2. Operating requirements.

a. Waste solvent should not be disposed of or transferred to another party, such that greater than 20% of the waste (by weight) can evaporate into the atmosphere. Store waste solvent only in closed containers.

b. The degreaser cover should be closed whenever not handling parts in the cleaner.

c. Cleaned parts should drain for at least 15 seconds or until dripping ceases.

D. Disposal of waste solvent from solvent metal cleaning operations should be by one of the following methods:

1. Reclamation (either by outside services or in-house).

2. Incineration.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2404, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-3300 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2405, eff. January 1, 1985.

9VAC5-40-3310 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2406, eff. January 1, 1985.

9VAC5-40-3320 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2407, eff. January 1, 1985.

9VAC5-40-3330 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2408, eff. January 1, 1985.

9VAC5-40-3340 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2409, eff. January 1, 1985.

9VAC5-40-3350 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2410, eff. January 1, 1985.

9VAC5-40-3360 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2411, eff. January 1, 1985.

9VAC5-40-3370 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2412, eff. January 1, 1985.

9VAC5-40-3380 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2413, eff. January 1, 1985.

9VAC5-40-3390 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2414, eff. January 1, 1985.

9VAC5-40-3400 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2415, eff. January 1, 1985; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

Article 25 Emission Standards for Volatile Organic Compound Storage and Transfer Operations (Rule 4-25)

9VAC5-40-3410 Applicability and designation of affected facility

Article 25 Emission Standards for Volatile Organic Compound Storage and Transfer Operations (Rule 4-25)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each operation involving the storage or transfer of volatile organic compounds or both.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to:

1. Facilities subject to the provisions of the emission standards for storage or transfer of petroleum liquids (Article 37 (9VAC5-40-5200 et seq.) of this chapter); or

2. Facilities using volatile organic compounds with a vapor pressure less than 1.5 pounds per square inch absolute under actual storage conditions or, in the case of filling, under actual filling conditions.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2501, eff. July 1, 1991.

9VAC5-40-3420 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"External floating roof" means a storage vessel cover in an open top tank consisting of a double deck or pontoon single deck which rests upon and is supported by the liquid being contained and is equipped with a closure seal or seals to close the space between the roof edge and tank shell.

"Internal floating roof" means a cover or roof in a fixed roof tank which rests upon or is floated upon the liquid being contained and is equipped with a closure seal or seals to close the space between the roof edge and tank shell.

"Liquid-mounted" means a primary seal mounted so the bottom of the seal covers the liquid surface between the tank shell and the floating roof.

"Submerged fill pipe" means any fill pipe the discharge opening of which is entirely submerged when the liquid level is six inches above the bottom of the tank; or, when applied to a tank which is loaded from the side, any fill pipe the discharge opening of which is entirely submerged when at the minimum operating level.

"Vapor-mounted" means a primary seal mounted so there is an annular vapor space underneath the seal. The annular vapor space is bounded by the bottom of the primary seal, the tank shell, the liquid surface, and the floating roof.

"Vapor tight" means capable of holding a pressure of 18 inH₂0 and a vacuum of 6 inH₂0 without sustaining a pressure change of more than 3 inH₂0 in five minutes.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2502, eff. July 1, 1985.

9VAC5-40-3430 Standard for volatile organic compounds

A. Filling of storage tanks.

1. No owner or other person shall use or permit the use of any stationary storage tank for storage of any volatile organic compound unless such tank is equipped with a control method that will remove, destroy or prevent the discharge into the atmosphere of at least 60% by weight of volatile organic compound emissions during the filling of such tank.

2. Achievement of the emission standard in subsection A 1 of this section by use of the methods in 9VAC5-40-3440 A will be acceptable to the board.

3. Exempted from the provisions of this subsection are stationary storage tanks with a storage capacity of 2,000 gallons or less.

B. Volatile organic compound storage - fixed roof tanks.

1. No owner or other person shall use or permit the use of any fixed roof tank for storage of volatile organic compounds unless such tank is equipped with a control method which will remove, destroy or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection B 1 of this section by use of control methods in 9VAC5-40-3440 B will be acceptable to the board.

3. Exempted from the provisions of this subsection are stationary storage tanks with a storage capacity of 40,000 gallons or less.

4. The owner of a fixed roof tank subject to the provisions of subsection B 1 of this section shall:

a. When the fixed roof tank is equipped with an internal floating roof, perform a visual inspection annually of the floating cover through the roof hatches, to ascertain compliance with the specifications in subsection B 4 (1) and (2).

(1) The cover should be uniformly floating on or above the liquid and there should be no visible defects in the surface of the cover or liquid accumulated on the cover.

(2) The seal must be intact and uniformly in place around the circumference of the cover between the cover and tank wall.

b. Perform a complete inspection of the cover and seal and record the condition of the cover and seal when the tank is emptied for nonoperational reasons such as maintenance, an emergency, or other similar purposes.

c. Maintain records of the average monthly storage temperature and true vapor pressure of the liquid as stored, and the results of the inspection performed under the provisions of subsection B 4 a and b of this section.

C. Volatile organic compound storage - floating roof tanks.

1. No owner or other person shall use or permit the use of any floating roof tank for storage of volatile organic compounds, unless such tank is equipped with a control method which will remove, destroy or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subsection C 1 of this section by use of methods in 9VAC5-40-3440 C will be acceptable to the board.

3. Exempted from the provisions of this subsection are stationary storage tanks with a storage capacity of 40,000 gallons or less.

4. The owner of a floating roof tank subject to the provisions of subsection C 1 of this section shall:

a. Perform routine inspections annually which shall include a visual inspection of the secondary seal gap.

b. When the floating roof is equipped with a vapor-mounted primary seal, measure the secondary seal gap annually in accordance with subsections C 4 b (1) and (2) of this section.

(1) Physically measuring the length and width of all gaps around the entire circumference of the secondary seal in each place where a 1/8 inch uniform diameter probe passes freely (without forcing or binding against the seal) between the seal and tank wall; and

(2) Summing the area of the individual gaps.

c. Maintain records of the types of volatile organic compounds stored, the maximum true vapor pressure of the liquid as stored, and the results of the inspections performed under the provisions of subsection C 4 a and b of this section.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2503, eff. July 1, 1991.

9VAC5-40-3440 Control technology guidelines

A. Filling of storage tanks. The tank should be a pressure tank maintaining working pressure sufficient at all times to prevent vapor loss to the atmosphere, or be designed and equipped with one of the following vapor control systems:

1. Filling of the tank through the use of a submerged fill pipe.

2. Any system of equal or greater control efficiency to the system in subsection A 1 of this section, provided such system is approved by the board.

B. Volatile organic compound storage - fixed roof tanks.

1. The tank should be a pressure tank maintaining working pressure sufficient at all times to prevent vapor loss to the atmosphere, or be designed and equipped with one of the following vapor control systems:

a. An internal floating roof resting on the surface of the liquid contents and equipped with a closure seal, or seals, to close the space between the roof edge and tank shell. All tank gauging and sampling devices should be vapor tight except when gauging or sampling is taking place.

b. Any system of equal or greater control efficiency to the system in subsection B 1 a of this section, provided such system is approved by the board.

2. There should be no visible holes, tears or other openings in the seal or any seal fabric.

3. All openings, except stub drains, should be equipped with a cover, seal or lid. The cover, seal or lid should be in a closed position at all times except when the device is in actual use. Automatic bleeder vents should be closed at all times except when the roof is floated off or landed on the roof leg supports. Rim vents, if provided should be set to open when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting.

4. The exterior aboveground surfaces (exposed to sunlight) should be painted white, light pastels or light metallic and such exterior paint should be periodically maintained in good condition. Repainting may be performed during normal maintenance periods.

C. Volatile organic compound storage - floating roof tanks.

1. The tank should be designed and equipped with one of the following vapor control systems:

a. An external floating roof resting on the surface of the liquid contents and equipped with a seal closure device (meeting the specifications set forth in subsection C 2 and 3 of this section) to close the space between the roof edge and tank shell. All tank gauging and sampling devices should be vapor tight except when gauging or sampling is taking place.

b. Any system of equal or greater control efficiency to the system in subsection C 1 a of the section, provided such system is approved by the board.

2. Unless the tank is a welded tank fitted with a metallic-type shoe seal which has a secondary seal from the top of the shoe seal to the tank wall (a shoe-mounted secondary), the tank should be fitted with a continuous secondary seal extending from the floating roof to the tank wall (a rim-mounted secondary) if:

a. The tank is a welded tank, the true vapor pressure of the contained liquid is 4.0 psi or greater, and the primary seal is one of the following:

(1) A metallic-type shoe seal.

(2) A liquid-mounted foam seal.

(3) A liquid-mounted liquid-filled type seal.

(4) Any other seal closure device which can be demonstrated equivalent to the primary seals specified in subsection C 2 a (1) through (3) of this section.

b. The tank is a riveted tank, the true vapor pressure of the contained liquid is 1.5 psi, or greater, and the seal closure device is as described in subsection C 2 a of this section.

c. The tank is a welded or riveted tank, the true vapor pressure of the contained liquid is 1.5 psi, or greater, and the primary seal is vapor mounted. When such primary seal closure device can be demonstrated equivalent to the primary seals described in subsection C 2 a of this section the provisions of that subsection apply.

3. The seal closure devices should meet the following requirements:

a. There should be no visible holes, tears or other openings in the seal or any seal fabric.

b. The seal should be intact and uniformly in place around the circumference of the floating roof between the floating roof and the tank wall.

c. The areas where the gap between the secondary seal, installed pursuant to subsection C 2 c of this section, and the tank wall exceeds 1/8 inch in width shall be calculated in square inches. The sum of all such areas shall not exceed 1.0 square inch per foot of tank diameter.

4. All openings, except for automatic bleeder vents, rim space vents and leg sleeves, should provide a projection below the liquid surface. All openings, except stub drains, should be equipped with a cover, seal or lid. The cover, seal or lid should be in a closed position at all times except when the device is in actual use. Automatic bleeder vents should be closed at all times except when the roof is floated off or landed on the roof leg supports. Rim vents, if provided, should be set to open when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting. Any emergency roof drain should be provided with a slotted membrane fabric cover or equivalent cover that covers at least 90% of the area of the opening.

5. The exterior above ground surfaces (exposed to sunlight) should be painted white, light pastels, or light metallic and such exterior paint should be periodically maintained in good condition. Repainting may be performed during normal maintenance periods.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2504, eff. July 1, 1991.

9VAC5-40-3450 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2505, eff. January 1, 1985.

9VAC5-40-3460 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2506, eff. January 1, 1985.

9VAC5-40-3470 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2507, eff. January 1, 1985.

9VAC5-40-3480 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2508, eff. January 1, 1985.

9VAC5-40-3490 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2509, eff. January 1, 1985.

9VAC5-40-3500 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2510, eff. January 1, 1985.

9VAC5-40-3510 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2511, eff. January 1, 1985.

9VAC5-40-3520 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2512, eff. January 1, 1985.

9VAC5-40-3530 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2513, eff. January 1, 1985.

9VAC5-40-3540 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2514, eff. January 1, 1985.

9VAC5-40-3550 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate Regional Office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2515, eff. January 1, 1985.

Article 26 Emission Standards for Large Appliance Coating Application Systems (Rule 4-26) [Repealed]

9VAC5-40-3560 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2601, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3570 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2602, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3580 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2603, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3590 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2604, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3600 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2605, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3610 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2606, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3620 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2607, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3630 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2608, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3640 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2609, eff. July 1, 1991; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3650 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2610, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3660 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2611, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3670 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2612, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3680 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2613, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3690 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2614, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

9VAC5-40-3700 (Repealed.)

History

• Historical Notes: Derived from VR120-04-2615, eff. January 1, 1985; repealed, Virginia Register Volume 40, Issue 14, April 11, 2024.

Article 27 Emission Standards for Magnet Wire Coating Application Systems (Rule 4-27)

9VAC5-40-3710 Applicability and designation of affected facility

Article 27 Emission Standards for Magnet Wire Coating Application Systems (Rule 4-27)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each magnet wire coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to coating application systems used exclusively for determination of product quality and commercial acceptance provided:

1. The operation is not an integral part of the production process;

2. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

3. The exemption is approved by the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2701, eff. July 1, 1991.

9VAC5-40-3720 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Coating applicator" means an apparatus used to apply a surface coating.

"Coating application system" means any operation or system where a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Flashoff area" means the space between the application area and the oven.

"Magnet wire coating" means the process of applying a coating, electrically insulating varnish or enamel to aluminum or copper wire for use in electrical machinery.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of those.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2702, eff. July 1, 1991.

9VAC5-40-3730 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 1.7 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

B. Achievement of the emission standard in subsection A of this section by use of methods in 9VAC5-40-3740 will be acceptable to the board.

C. No owner or other person shall use any coating system or equipment unless reasonable precautions are taken to minimize the discharge of emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both.

2. The use of detergents, high pressure water, or other nonvolatile cleaning methods.

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment.

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2703, eff. July 1, 1991.

9VAC5-40-3740 Control technology guidelines

The control technology should consist of one or more of the following:

1. Use of waterborne coatings.

2. Use of powder coatings.

3. Incineration.

4. Any technology of equal or greater control efficiency when compared to the use of coating complying with 9VAC5-40-3730 A, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2704, eff. July 1, 1991.

9VAC5-40-3750 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2705, eff. January 1, 1985.

9VAC5-40-3760 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2706, eff. January 1, 1985.

9VAC5-40-3770 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2707, eff. January 1, 1985.

9VAC5-40-3780 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2708, eff. January 1, 1985.

9VAC5-40-3790 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-3730 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2709, eff. July 1, 1991.

9VAC5-40-3800 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2710, eff. January 1, 1985.

9VAC5-40-3810 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2711, eff. January 1, 1985.

9VAC5-40-3820 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2712, eff. January 1, 1985.

9VAC5-40-3830 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2713, eff. January 1, 1985.

9VAC5-40-3840 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2714, eff. January 1, 1985.

9VAC5-40-3850 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2715, eff. January 1, 1985.

Article 28 Emission Standards for Automobile and Light Duty Truck Coating Application Systems (Rule 4-28)

9VAC5-40-3860 Applicability and designation of affected facility

Article 28 Emission Standards for Automobile and Light Duty Truck Coating Application Systems (Rule 4-28)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each automobile or light duty truck coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to the following:

1. Coating application systems used exclusively for determination of product quality and commercial acceptance provided:

a. The operation is not an integral part of the production process;

b. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

c. The exemption is approved by the board.

2. Vehicle refinishing operations.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2801, eff. July 1, 1991.

9VAC5-40-3870 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Anti-chip coating" means a resilient coating applied over the prime coat and beneath the topcoat to body parts prone to chip damage for the purpose of protecting the topcoat from chipping.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Automobile" means any passenger car or passenger car derivative capable of seating 12 or fewer passengers.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Clear coating" means a coating which lacks color and opacity or is transparent and uses the undercoat or basecoat as a reflectant base or undertone color.

"Coating applicator" means an apparatus used to apply a surface coating.

"Coating application system" means any operation or system in which a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Electrocoat primer" means the initial coating on components of automobile or light-duty truck bodies that is applied by electrode position.

"Extreme environmental conditions" means exposure to any one of the following: weather all of the time, temperatures consistently above 95°C, detergents, scouring, solvents, corrosive atmospheres or similar environmental conditions.

"Extreme performance coatings" means coatings which are required to be used by design specification on products designed for harsh exposure or extreme environmental conditions.

"Flashoff area" means the space between the application area and the oven.

"Guidecoat" means the surface coating applied over the electrocoat primer and beneath the topcoat.

"Light-duty truck" means any motor vehicle rated at 8,500 pounds gross vehicle weight or less which is designed primarily for purposes of transportation of property or is a derivative of such a vehicle; includes pickups, vans and window vans.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of these.

"Topcoat" means the final coating applied to components of automobile or light-duty truck bodies.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2802, eff. July 1, 1991.

9VAC5-40-3880 Standard for volatile organic compounds

A. Prime application.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 1.2 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection A 1 of this section by use of methods in 9VAC5-40-3890 A will be acceptable to the board.

B. Guidecoat application.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 2.8 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection B 1 of this section by use of methods in 9VAC5-40-3890 B will be acceptable to the board.

C. Topcoat application.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 15.1 pounds per gallon of solids applied to the automobile or light-duty truck components or 2.8 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection C 1 of this section by use of methods in 9VAC5-40-3890 C will be acceptable to the board.

D. Final repair application.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 4.8 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection D 1 of this section by use of methods in 9VAC5-40-3890 D will be acceptable to the board.

E. Anti-chip coating application.

1. Except as provided in subsection E 2 of this section, no owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of:

a. 3.5 pounds per gallon of coating, excluding water, delivered to a coating applicator that applies extreme performance coatings; or

b. 3.0 pounds per gallon of coating, excluding water, delivered to a coating applicator for all other coatings and coating application systems.

2. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 2.8 pounds per gallon of coating, excluding water, delivered to a coating applicator that applies anti-chip coatings to the visible surface of main body parts.

3. Achievement of the emission standard in subsections E 1 and 2 of this section by use of methods in 9VAC5-40-3890 E will be acceptable to the board.

F. The provisions of subsections A, B, and C of this section shall not be applicable to the use of wheel enamels, anti-rust coatings, and sealers or other coating operations not associated with prime, guidecoat, or topcoat application to the vehicle body.

G. No owner or other person shall use any coating application system or equipment unless reasonable precautions are taken to minimize the discharge of emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other non-volatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; or

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2803, eff. July 1, 1991.

9VAC5-40-3890 Control technology guidelines

A. Prime application. The control technology should consist of one or more of the following:

1. Use of electrodeposited waterborne coatings.

2. Use of other waterborne coatings.

3. Use of lower solvent (higher solids) organic solvent-borne systems.

4. Carbon adsorption.

5. Incineration.

6. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-3880 A 1, provided such technology is approved by the board.

B. Guidecoat application. The control technology should consist of one or more of the following:

1. Use of waterborne coatings;

2. Use of lower solvent (higher solids) organic solvent-borne systems;

3. Carbon adsorption; and

4. Incineration; or

5. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-3880 B 1, provided such technology is approved by the board.

C. Topcoat application. The control technology should consist of one or more of the following:

1. Use of waterborne coatings;

2. Use of lower solvent (higher solids) organic solvent-borne systems;

3. Carbon adsorption; and

4. Incineration; or

5. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-3880 C 1, provided such technology is approved by the board.

D. Final repair application. The control technology should consist of one or more of the following:

1. Use of lower solvent (higher solids) organic solvent borne systems;

2. Carbon adsorption; and

3. Incineration; or

4. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-3880 D 1, provided such technology is approved by the board.

E. Anti-chip coating application. The control technology should consist of one or more of the following:

1. Use of electrodeposited waterborne coatings;

2. Use of other waterborne coatings;

3. Use of high solids coatings;

4. Use of powder coatings;

5. Carbon adsorption; and

6. Incineration; or

7. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-3880 E 1, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2804, eff. July 1, 1991.

9VAC5-40-3900 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2805, eff. January 1, 1985.

9VAC5-40-3910 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2806, eff. January 1, 1985.

9VAC5-40-3920 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2807, eff. January 1, 1985.

9VAC5-40-3930 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2808, eff. January 1, 1985.

9VAC5-40-3940 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-3880 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2809, eff. January 1, 1985.

9VAC5-40-3950 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2810, eff. January 1, 1985.

9VAC5-40-3960 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2811, eff. January 1, 1985.

9VAC5-40-3970 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2812, eff. January 1, 1985.

9VAC5-40-3980 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2813, eff. January 1, 1985.

9VAC5-40-3990 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2814, eff. January 1, 1985.

9VAC5-40-4000 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2815, eff. January 1, 1985.

Article 29 Emission Standards for Can Coating Application Systems (Rule 4-29)

9VAC5-40-4010 Applicability and designation of affected facility

Article 29 Emission Standards for Can Coating Application Systems (Rule 4-29)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each can coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to coating application systems used exclusively for determination of product quality and commercial acceptance provided:

1. The operation is not an integral part of the production process;

2. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

3. The exemption is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2901, eff. July 1, 1991.

9VAC5-40-4020 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Coating applicator" means an apparatus used to apply a surface coating.

"Coating application system" means any operation or system where a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and flashoff area or drying area to be included in this definition.

"Flashoff area" means the space between the application area and the oven.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of those.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2902, eff. July 1, 1991.

9VAC5-40-4030 Standard for volatile organic compounds

A. Sheet basecoat (exterior and interior) and overvarnish; two-piece can exterior (basecoat and overvarnish).

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 2.8 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection A 1 of this section by use of methods in 9VAC5-40-4040 A will be acceptable to the board.

B. Two-piece and three-piece can interior body spray; two-piece can exterior end (spray or roll coat).

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 4.2 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection B 1 of this section by use of methods in 9VAC5-40-4040 B will be acceptable to the board.

C. Three-piece can side-seam spray.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 5.5 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection C 1 of this section by use of methods in 9VAC5-40-4040 C will be acceptable to the board.

D. End sealing compound coating.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 3.7 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

2. Achievement of the emission standard in subsection D 1 of this section by use of methods in 9VAC5-40-4040 D will be acceptable to the board.

E. No owner or other person shall use any coating system or equipment unless reasonable precautions are taken to minimize the discharge of emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other non-volatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; and

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2903, eff. July 1, 1991.

9VAC5-40-4040 Control technology guidelines

A. Sheet basecoat (exterior and interior) and overvarnish; two-piece can exterior (basecoat and overvarnish). The control technology should consist of one or more of the following:

1. Use of electrodeposited waterborne coatings;

2. Use of ultraviolet coatings;

3. Use of high solids coatings;

4. Carbon adsorption; and

5. Incineration; or

6. Any technology of equal or greater control efficiency when compared to the use of coating complying with 9VAC5-40-4030 A 1, provided such technology is approved by the board.

B. Two-piece and three-piece can interior body spray; two-piece can exterior end (spray or roll coat). The control technology should consist of one or more of the following:

1. Use of waterborne coatings;

2. Use of powder coatings;

3. Use of high-solids coatings;

4. Carbon adsorption; and

5. Incineration; or

6. Any technology of equal or greater control efficiency when compared to the use of coating complying with 9VAC5-40-4030 B 1, provided such technology is approved by the board.

C. Three-piece can side-seam spray. The control technology should consist of one or more of the following:

1. Use of waterborne coatings;

2. Use of powder coatings; and

3. Use of high solids coatings; or

4. Any technology of equal or greater control efficiency when compared to the use of coating complying with 9VAC5-40-4030 C 1, provided such technology is approved by the board.

D. End sealing compound coating. The control technology should consist of one or more of the following:

1. Use of waterborne coatings;

2. Use of high-solids coatings; or

3. Any technology of equal or greater control efficiency when compared to the use of coating complying with 9VAC5-40-4030 D 1, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2904, eff. July 1, 1991.

9VAC5-40-4050 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2905, eff. January 1, 1985.

9VAC5-40-4060 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2906, eff. January 1, 1985.

9VAC5-40-4070 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2907, eff. January 1, 1985.

9VAC5-40-4080 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2908, eff. January 1, 1985.

9VAC5-40-4090 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4030 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2909, eff. July 1, 1991.

9VAC5-40-4100 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2910, eff. January 1, 1985.

9VAC5-40-4110 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2911, eff. January 1, 1985.

9VAC5-40-4120 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2912, eff. January 1, 1985.

9VAC5-40-4130 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2913, eff. January 1, 1985.

9VAC5-40-4140 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2914, eff. January 1, 1985.

9VAC5-40-4150 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-2915, eff. January 1, 1985.

Article 30 Emission Standards for Metal Coil Coating Application Systems (Rule 4-30)

9VAC5-40-4160 Applicability and designation of affected facility

Article 30 Emission Standards for Metal Coil Coating Application Systems (Rule 4-30)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each metal coil coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to coating application systems used exclusively for determination of product quality and commercial acceptance provided:

1. The operation is not an integral part of the production process;

2. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

3. The exemption is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3001, eff. July 1, 1991.

9VAC5-40-4170 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Coating applicator" means an apparatus used to apply a surface coating.

"Coating application system" means any operation or system wherein a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Coil coating" means the coating of any flat metal sheet or strip that comes in rolls or coils.

"Flashoff area" means the space between the application area and the oven.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of those.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3002, eff. July 1, 1991.

9VAC5-40-4180 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 2.6 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

B. Achievement of the emission standard in subsection A of this section by use of methods in 9VAC5-40-4190 will be acceptable to the board.

C. No owner or other person shall use any coating application system or equipment unless reasonable precautions are taken to minimize the discharge of emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other non-volatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; and

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3003, eff. July 1, 1991.

9VAC5-40-4190 Control technology guidelines

Control technology should consist of one of the following:

1. Use of electrodeposited waterborne coatings;

2. Use of other waterborne coatings;

3. Use of high-solids coatings;

4. Incineration; or

5. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-4180 A, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3004, eff. July 1, 1991.

9VAC5-40-4200 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3005, eff. January 1, 1985.

9VAC5-40-4210 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3006, eff. January 1, 1985.

9VAC5-40-4220 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3007, eff. January 1, 1985.

9VAC5-40-4230 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3008, eff. January 1, 1985.

9VAC5-40-4240 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4180 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3009, eff. July 1, 1991.

9VAC5-40-4250 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3010, eff. January 1, 1985.

9VAC5-40-4260 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3011, eff. January 1, 1985.

9VAC5-40-4270 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3012, eff. January 1, 1985.

9VAC5-40-4280 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3013, eff. January 1, 1985.

9VAC5-40-4290 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3014, eff. January 1, 1985.

9VAC5-40-4300 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3015, eff. January 1, 1985.

Article 31 Emission Standards for Paper and Fabric Coating Application Systems (Rule 4-31)

9VAC5-40-4310 Applicability and designation of affected facility

Article 31 Emission Standards for Paper and Fabric Coating Application Systems (Rule 4-31)

A. Except as provided in subsections C and D of this section, the affected facility to which the provisions of this article apply is each paper or fabric coating application system or both.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. Exempted from the provisions of this article are coating plants whose emissions of volatile organic compounds are not more than 2.7 tons per year, 15 pounds per day and three pounds per hour, based on the actual emissions rate. All volatile organic compound emissions from purging or washing solvents shall be considered in applying the exemption levels specified in this subsection.

D. The provisions of this article do not apply to coating application systems used exclusively for determination of product quality and commercial acceptance provided:

1. The operation is not an integral part of the production process;

2. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

3. The exemption is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3101, eff. July 1, 1991.

9VAC5-40-4320 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Coating applicator" means an apparatus used to apply a surface coating.

"Coating application system" means any operation or system wherein a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Fabric coating" means the coating of a textile substrate by knife, roll or rotogravure coating to impart properties that are not initially present, such as strength, stability, water or acid repellency, or appearance.

"Flashoff area" means the space between the application area and the oven.

"Knife coating" means the application of a coating material to a substrate by means of drawing the substrate beneath a knife that spreads the coating evenly over the full width of the substrate.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of those.

"Paper coating" means the coating of paper and pressure sensitive tapes regardless of substrate by knife, roll or rotogravure coating. Related wet coating process on plastic films and decorative coatings on metal foil are included in this definition.

"Roll coating" means the application of a coating material to a substrate by means of hard rubber or metal rolls.

"Rotogravure coating" means the application of a coating material to a substrate by means of a roll coating technique in which the pattern to be applied is etched on the coating roll. The coating material is picked up in these recessed areas and is transferred to the substrate.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3102, eff. July 1, 1991.

9VAC5-40-4330 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 2.9 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

B. Achievement of the emission standard in subsection A of this section by use of methods in 9VAC5-40-4340 will be acceptable to the board.

C. The provisions of this section shall not be applicable to the production of packaging materials and to printing (graphic arts) operations to the extent provided in subsection D of this section.

D. The production of packaging materials involves two principal operations which emit volatile organic compounds: the coating and laminating of paper, film and foil, and the printing of words, designs and pictures upon webs of paper, film and foil. For the purposes of applicability of the above emission standard, coating is the application of a layer of material across any portion of the web and printing is the formation of words, designs and pictures, usually by a series of application rolls each with only partial coverage. The above emission standard applies to coating and laminating operations in the production of packaging materials, but does not apply to printing operations in the production of packaging materials and to publication rotogravure printing operations (the emission standards in Article 36 (9VAC5-40-5060 et seq.) of this chapter apply to such operations). However, all units in a machine which have both coating and printing units will be considered as performing a printing operation. A typical operation is as follows: the first unit applies a uniform background color, subsequent units print additional colors, the final unit applies a varnish overcoat. Such a machine would not be subject to the above emission standard, but would be subject to the emission standards in Article 36 (9VAC5-40-5060 et seq.) of this chapter.

E. No owner or other person shall use any coating application system or equipment unless reasonable precautions are taken to minimize the discharge or emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other non-volatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; and

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3103, eff. July 1, 1991.

9VAC5-40-4340 Control technology guidelines

The control technology should consist of one of the following:

1. Use of waterborne coatings;

2. Use of high-solids coatings;

3. Use of other low solvent coatings, provided such coatings are approved by the board;

4. Carbon adsorption;

5. Incineration; or

6. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-4330 A, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3104, eff. July 1, 1991.

9VAC5-40-4350 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3105, eff. January 1, 1985.

9VAC5-40-4360 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3106, eff. January 1, 1985.

9VAC5-40-4370 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3107, eff. January 1, 1985.

9VAC5-40-4380 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3108, eff. January 1, 1985.

9VAC5-40-4390 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4330 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3109, eff. July 1, 1991.

9VAC5-40-4400 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3110, eff. January 1, 1985.

9VAC5-40-4410 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3111, eff. January 1, 1985.

9VAC5-40-4420 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3112, eff. January 1, 1985.

9VAC5-40-4430 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3113, eff. January 1, 1985.

9VAC5-40-4440 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3114, eff. January 1, 1985.

9VAC5-40-4450 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3115, eff. January 1, 1985.

Article 32 Emission Standards for Vinyl Coating Application Systems (Rule 4-32)

9VAC5-40-4460 Applicability and designation of affected facility

Article 32 Emission Standards for Vinyl Coating Application Systems (Rule 4-32)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each vinyl coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to coating application systems used exclusively for determination of product quality and commercial acceptance provided:

1. The operation is not an integral part of the production process;

2. The emissions from all product quality application systems do not exceed 400 pounds in any 30 day period; and

3. The exemption is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3201, eff. July 1, 1991.

9VAC5-40-4470 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Coating applicator" means an apparatus used to apply a surface coating.

"Coating application system" means any operation or system wherein a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Flashoff area" means the space between the application area and the oven.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of those.

"Vinyl coating" means applying a decorative or protective topcoat, or printing on vinyl coated fabric or vinyl sheets.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3202, eff. July 1, 1991.

9VAC5-40-4480 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 3.8 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

B. Achievement of the emission standard in subsection A of this section by use of methods in 9VAC5-40-4490 will be acceptable to the board.

C. No owner or other person shall use any coating system or equipment unless reasonable precautions are taken to minimize the discharge of emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other nonvolatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; and

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3203, eff. July 1, 1991.

9VAC5-40-4490 Control technology guidelines

The control technology should consist of one of the following:

1. Use of waterborne coatings;

2. Use of high-solids coatings;

3. Carbon adsorption;

4. Incineration; or

5. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-4480 A, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3204, eff. July 1, 1991.

9VAC5-40-4500 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3205, eff. January 1, 1985.

9VAC5-40-4510 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3206, eff. January 1, 1985.

9VAC5-40-4520 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3207, eff. January 1, 1985.

9VAC5-40-4530 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3208, eff. January 1, 1985.

9VAC5-40-4540 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4480 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3209, eff. July 1, 1991.

9VAC5-40-4550 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3210, eff. January 1, 1985.

9VAC5-40-4560 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3211, eff. January 1, 1985.

9VAC5-40-4570 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3212, eff. January 1, 1985.

9VAC5-40-4580 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3213, eff. January 1, 1985.

9VAC5-40-4590 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3214, eff. January 1, 1985.

9VAC5-40-4600 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3215, eff. January 1, 1985.

Article 33 Emission Standards for Metal Furniture Coating Application Systems (Rule 4-33)

9VAC5-40-4610 Applicability and designation of affected facility

Article 33 Emission Standards for Metal Furniture Coating Application Systems (Rule 4-33)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each metal furniture coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to coating application systems used exclusively for determination of product quality and commercial acceptance provided:

1. The operation is not an integral part of the production process;

2. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

3. The exemption is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3301, eff. July 1, 1991.

9VAC5-40-4620 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Coating applicator" means an apparatus used to apply a surface coating.

"Coating application system" means any operation or system where a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Flashoff area" means the space between the application area and the oven.

"Metal furniture coating" means the surface coating of any furniture made of metal or any metal part which will be assembled with other metal, wood, fabric, plastic or glass parts to form a furniture piece.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of those.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3302, eff. July 1, 1991.

9VAC5-40-4630 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 3.0 pounds per gallon of coating, excluding water, as delivered by the coating applicator.

B. Achievement of the emission standard in subsection A of this section by use of methods in 9VAC5-40-4640 will be acceptable to the board.

C. No owner or other person shall use any coating system or equipment unless reasonable precautions are taken to minimize the discharge of emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other nonvolatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; and

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3303, eff. July 1, 1991.

9VAC5-40-4640 Control technology guidelines

The control technology should consist of one or more of the following:

1. Use of electrodeposited waterborne coatings.

2. Use of other waterborne coatings.

3. Use of powder coatings.

4. Use of high-solids coatings.

5. Carbon adsorption.

6. Incineration.

7. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-4630 A, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3304, eff. July 1, 1991.

9VAC5-40-4650 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3305, eff. January 1, 1985.

9VAC5-40-4660 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3306, eff. January 1, 1985.

9VAC5-40-4670 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3307, eff. January 1, 1985.

9VAC5-40-4680 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3308, eff. January 1, 1985.

9VAC5-40-4690 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4630 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3309, eff. July 1, 1991.

9VAC5-40-4700 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3310, eff. January 1, 1985.

9VAC5-40-4710 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3311, eff. January 1, 1985.

9VAC5-40-4720 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3312, eff. January 1, 1985.

9VAC5-40-4730 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3313, eff. January 1, 1985.

9VAC5-40-4740 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3314, eff. January 1, 1985.

9VAC5-40-4750 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3315, eff. January 1, 1985.

Article 34 Emission Standards for Miscellaneous Metal Parts and Products Coating Application Systems (Rule 4-34)

9VAC5-40-4760 Applicability and designation of affected facility

Article 34 Emission Standards for Miscellaneous Metal Parts and Products Coating Application Systems (Rule 4-34)

A. Except as provided in subsections C and D of this section, the affected facility to which the provisions of this article apply is each miscellaneous metal parts and products coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206. On and after February 1, 2017, this article does not apply to sources in the Northern Virginia Volatile Organic Compound Emissions Control Area designated in 9VAC5-20-206. These sources are subject to Article 59 (9VAC5-40-8810 et seq.) of this part.

C. Exempted from the provisions of this article are coating plants whose emissions of volatile organic compounds are not more than 2.7 tons per year, 15 pounds per day and three pounds per hour, based on the actual emission rate. All volatile organic compound emissions from purging or washing solvents shall be considered in applying the exemption levels specified in this subsection.

D. The provisions of this article do not apply to the following:

1. Coating application systems used exclusively for determination of product quality and commercial acceptance provided:

a. The operation is not an integral part of the production process;

b. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

c. The exemption is approved by the board.

2. Vehicle refinishing operations.

3. Vehicle customized coating operations, if production is less than 20 vehicles per day.

4. Fully assembled aircraft and marine vessel exterior coating operations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-04-3401, eff. July 1, 1991; amended, Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-4770 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Clear coating" means a coating which lacks color and opacity or is transparent and uses the undercoat as a reflectant base or undertone color.

"Coating application system" means any operation or system where a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Coating applicator" means an apparatus used to apply a surface coating.

"Extreme environmental conditions" means exposure to any one of the following: the weather all of the time, temperatures consistently above 95°C, detergents, scouring, solvents, corrosive atmospheres or similar environmental conditions.

"Extreme performance coatings" means coatings which are required to be used by design specification on products designed for harsh exposure or extreme environmental conditions.

"Flashoff area" means the space between the application area and the oven.

"Miscellaneous metal parts and products" means any part or product from the following industrial categories:

a. Large farm machinery (harvesting, fertilizing and planting machines, tractors, combines, etc.);

b. Small farm machinery (lawn and garden tractors, lawn mowers, rototillers, etc.);

c. Small appliances (fans, mixers, blenders, crock pots, dehumidifiers, vacuum cleaners, etc.);

d. Commercial machinery (computers and auxiliary equipment, typewriters, calculators, vending machines, etc.);

e. Industrial machinery (pumps, compressors, conveyor components, fans, blowers, transformers, etc.);

f. Fabricated metal products (i.e., metal covered doors, frames); and

g. Any other industrial category which coats metal parts or products under the Standard Industrial Classification Code of Major Group 33 (primary metal industries), Major Group 34 (fabricated metal products), Major Group 35 (nonelectrical machinery), Major Group 36 (electrical machinery), Major Group 37 (transportation equipment), Major Group 38 (miscellaneous instruments), Major Group 39 (miscellaneous manufacturing industries), Major Group 40 (railroad transportation), and Major Group 41 (transit passenger transportation). "Major groups" (i.e., which have the same two-digit code) shall be described in the Standard Industrial Classification Manual (see 9VAC5-20-21).

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of those.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3402, eff. July 1, 1991.

9VAC5-40-4780 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of:

1. 4.3 pounds per gallon of coating, excluding water, delivered to the coating applicator that applies clear coatings;

2. 3.5 pounds per gallon of coating, excluding water, delivered to a coating applicator in a coating application system that utilizes air or forced air driers;

3. 3.5 pounds per gallon of coating, excluding water, delivered to a coating applicator that applies extreme performance coatings, or

4. 3.0 pounds per gallon of coating, excluding water, delivered to a coating applicator for all other coatings and coating application systems.

B. If more than one emission limitation in subsection A of this section applies to a specific coating, then the least stringent emission limitation shall be applied.

C. Achievement of the emission standard in subsection A of this section by use of methods in 9VAC5-40-4790 will be acceptable to the board.

D. No owner or other person shall use any coating application system or equipment unless reasonable precautions are taken to minimize the discharge or emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other non-volatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; and

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3403, eff. July 1, 1991.

9VAC5-40-4790 Control technology guidelines

The control technology should consist of one of the following:

1. Use of electrodeposited waterborne coatings;

2. Use of waterborne coatings;

3. Use of high-solids coatings;

4. Use of powder coatings;

5. Carbon adsorption;

6. Incineration; or

7. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-4780 A, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3404, eff. July 1, 1991.

9VAC5-40-4800 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3405, eff. January 1, 1985.

9VAC5-40-4810 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3406, eff. January 1, 1985.

9VAC5-40-4820 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3407, eff. January 1, 1985.

9VAC5-40-4830 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3408, eff. January 1, 1985.

9VAC5-40-4840 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4780 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3409, eff. July 1, 1991.

9VAC5-40-4850 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3410, eff. January 1, 1985.

9VAC5-40-4860 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3411, eff. January 1, 1985.

9VAC5-40-4870 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3412, eff. January 1, 1985.

9VAC5-40-4880 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3413, eff. January 1, 1985.

9VAC5-40-4890 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3414, eff. January 1, 1985.

9VAC5-40-4900 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3415, eff. January 1, 1985.

Article 35 Emission Standards for Flatwood Paneling Coating Application Systems (Rule 4-35)

9VAC5-40-4910 Applicability and designation of affected facility

Article 35 Emission Standards for Flatwood Paneling Coating Application Systems (Rule 4-35)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each flatwood paneling coating application system.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. The provisions of this article do not apply to the following:

1. Coating application systems used exclusively for determination of product quality and commercial acceptance provided:

a. The operation is not an integral part of the production process;

b. The emissions from all product quality coating application systems do not exceed 400 pounds in any 30 day period; and

c. The exemption is approved by the board.

2. Coating application systems involved in the manufacture of exterior siding, tileboard or particleboard used as a furniture component.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3501, eff. July 1, 1991.

9VAC5-40-4920 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Application area" means the area where the coating is applied by spraying, dipping or flow coating techniques.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Class II Hardboard paneling finishes" means finishes which meet the specifications of Voluntary Product Standard PS-59-73 as approved by the American National Standards Institute.

"Coating application system" means any operation or system where a surface coating of one type or function is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures a surface coating, including, but not limited to, spray booths, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a coating application system to have an oven, flashoff area or drying area to be included in this definition.

"Flashoff area" means the space between the application area and the oven.

"Hardboard" means a panel manufactured primarily from inter-felted lignocellulosic fibers which are consolidated under heat and pressure in hot-press.

"Hardwood plywood" means plywood whose surface layer is a veneer of hardwood.

"Natural finish hardwood plywood panels" means panels whose original grain pattern is enhanced by essentially transparent finishes frequently supplemented by fillers and toners.

"Oven" means a chamber within which heat is used to bake, cure, polymerize or dry a surface coating or any combination of these.

"Particleboard" means a manufactured board made of individual wood particles which have been coated with a binder and formed into flat sheets by pressure. Thin particleboard has a thickness of ¼ inch or less.

"Printed interior panels" means panels whose grain or natural surface is obscured by fillers and basecoats upon which a simulated grain or decorative pattern is printed.

"Tileboard" means paneling that has a colored waterproof surface coating.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3502, eff. July 1, 1991.

9VAC5-40-4930 Standard for volatile organic compounds

A. Printed interior panels made of hardwood plywood and thin particleboard.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 6.0 pounds per 1,000 ft² of coating surface, regardless of the number of coats applied.

2. Achievement of the emission standard in subsection A 1 of this section by use of methods in 9VAC5-40-4940 will be acceptable to the board.

B. Natural finish hardwood plywood panels.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 12.0 pounds per 1,000 ft² of coated surface, regardless of the number of coats applied.

2. Achievement of the emission standard in subsection B 1 of this section by use of methods in 9VAC5-40-4940 will be acceptable to the board.

C. Class II hardboard paneling finishes.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of 10.0 pounds per 1,000 ft² of coated surface, regardless of the number of coats applied.

2. Achievement of the emission standard in subsection C 1 of this section by use of methods in 9VAC5-40-4940 will be acceptable to the board.

D. No owner or other person shall use any coating application system or equipment unless reasonable precautions are taken to minimize the discharge of emissions from cleaning or purging operations. Reasonable precautions may include the following:

1. The use of capture or control devices or both;

2. The use of detergents, high pressure water, or other nonvolatile cleaning methods;

3. The minimization of the quantity of volatile organic compounds used to clean lines of equipment; and

4. The adjustment of production schedules to minimize coating changes thereby reducing the need for frequent cleaning or purging of a system.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3503, eff. July 1, 1991.

9VAC5-40-4940 Control technology guidelines

The control technology should consist of one or more of the following:

1. Use of waterborne coatings.

2. Use of high-solids coatings.

3. Use of ultraviolet curing systems.

4. Use of electron beam curing systems.

5. Carbon adsorption.

6. Incineration.

7. Any technology of equal or greater control efficiency when compared to the use of a coating complying with 9VAC5-40-4930 A, B, or C as applicable, provided such technology is approved by the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3504, eff. July 1, 1991.

9VAC5-40-4950 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3505, eff. January 1, 1985.

9VAC5-40-4960 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3506, eff. January 1, 1985.

9VAC5-40-4970 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3507, eff. January 1, 1985.

9VAC5-40-4980 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3508, eff. January 1, 1985.

9VAC5-40-4990 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4930 apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of volatile organic compounds per gallon solids or pounds of volatile organic compounds per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the board accepted baseline transfer efficiency if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3509, eff. July 1, 1991.

9VAC5-40-5000 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3510, eff. January 1, 1985.

9VAC5-40-5010 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3511, eff. January 1, 1985.

9VAC5-40-5020 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3512, eff. January 1, 1985.

9VAC5-40-5030 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3513, eff. January 1, 1985.

9VAC5-40-5040 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3514, eff. January 1, 1985.

9VAC5-40-5050 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3515, eff. January 1, 1985.

Article 36 Emission Standards for Flexographic, Packaging Rotogravure, and Publication Rotogravure Printing Lines (Rule 4-36)

9VAC5-40-5060 Applicability and designation of affected facility

Article 36 Emission Standards for Flexographic, Packaging Rotogravure, and Publication Rotogravure Printing Lines (Rule 4-36)

A. Except as provided in subsections C, D, and E of this section, the affected facility to which the provisions of this article apply is each flexographic, packaging rotogravure, or publication rotogravure printing line which uses a substrate other than a textile.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. Exempted from the provisions of this article are flexographic, packaging rotogravure, and publication rotogravure facilities in the Northern Virginia Volatile Organic Compound Emissions Control Area whose potential to emit is less than 25 tons per year of volatile organic compounds, provided the emission rates are determined in a manner acceptable to the board. All volatile organic compound emissions from printing inks and cleaning solutions shall be considered in applying the exemption levels specified in this subsection.

D. Exempted from the provisions of this article are flexographic, packaging rotogravure, and publication rotogravure facilities in all volatile organic compound emissions control areas, other than the Northern Virginia Volatile Organic Compound Emissions Control Area, whose potential to emit is less than 100 tons per year of volatile organic compounds, provided the emission rates are determined in a manner acceptable to the board. All volatile organic compound emissions from printing inks and cleaning solutions shall be considered in applying the exemption levels specified in this subsection.

E. The provisions of this article do not apply to the following:

1. Printing processes used exclusively for determination of product quality and commercial acceptance provided:

a. The operation is not an integral part of the production process;

b. The emissions from all product quality printing processes do not exceed 400 pounds in any 30 day period; and

c. The exemption is approved by the board.

2. Lithography or letterpress printing.

3. Electrostatic duplication.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from VR120-04-3601, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 22, Issue 26, eff. October 4, 2006.

9VAC5-40-5070 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Carbon adsorption system" means a device containing activated carbon as the adsorbent material, an inlet and outlet for exhaust gases, and a system to regenerate the saturated adsorbent. The carbon adsorption system must provide for the proper disposal or reuse of all volatile organic compounds in the adsorbate.

"Compliant ink or surface coating" means an ink or surface coating conforming to the definition of a high-solids, low-volatile organic compound or a waterborne ink or surface coating.

"Cleaning solutions" means any liquid used to remove ink and debris from the operating surface of a printing press and its parts.

"Electrostatic duplication" means a process using a plate or takeoff sheet that is electrically charged to attract developer to the image area only.

"Flexographic printing" means the application of words, designs or pictures by a rubber or elastomeric image carrier in which the image area is raised above the nonimage area.

"High-solids ink or surface coating" means an ink or surface coating which contains 60% or more nonvolatile compounds by volume.

"Letterpress printing" means a printing process which uses raised image transfer elements fixed upon a metal backing.

"Lithographic printing" means a planographic printing process in which the image and nonimage areas are chemically differentiated with the image area being oil receptive and the nonimage area being water receptive.

"Low-solvent ink or surface coating" means an ink or surface coating which contains not more than 0.5 pounds of volatile organic compounds per pound of nonvolatile compounds and is used on a packaging rotogravure printing or flexographic printing press.

"Noncompliant ink or surface coating" means an ink or surface coating which does not conform to the definition of a high-solids, low-volatile organic compound or waterborne ink or surface coating.

"Packaging rotogravure printing" means an intaglio printing process in which the ink is transferred from minute etched wells on an image carrier, typically a cylinder, to paper, paper board, metal foil, plastic film and other substrates, which are, in subsequent operations, formed into containers and labels for articles to be sold.

"Printing" means a photomechanical process in which a transfer of text, designs, and images occurs through contact of an image carrier with a substrate.

"Printing line" means all of the equipment between a web feed input and the finished rolled or cut and stacked product wherein printing ink or a combination of printing inks and surface coatings are applied, dried, or cured and which is subject to the same emission standard. Such equipment may include decks, stations, press units, devices, ink stations, and any other equipment which applies, conveys, dries, or cures surface inks or surface coatings. Such equipment may include but is not limited to flow coaters, flashoff areas, air dryers, drying areas, and ovens. It is not necessary for a printing line to have an oven, flashoff area, or drying area to be included in this definition.

"Printing process" means any operation or system wherein printing ink or a combination of printing ink and surface coating is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures inks or surface coatings, including, but not limited to, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a printing process to have an oven, flashoff area or drying area to be included in this definition.

"Publication rotogravure printing" means an intaglio printing process in which the ink is transferred from minute etched wells on an image carrier, typically a cylinder, to paper which is subsequently formed into books, magazines, catalogues, brochures, directories, newspaper supplements or any other types of printed materials not included under the definition of packaging rotogravure printing.

"Surface coating" means all nonink liquids and liquid-solid mixtures containing volatile organic compounds which are applied to the substrate by printing units.

"Waterborne ink" or "surface coating" means an ink or surface coating whose volatile portion consists of 75% or more by volume of water and 25% or less by volume of volatile organic compounds.

"Web" means a continuous roll of printing substrate.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3602, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5080 Standard for volatile organic compounds

A. No owner or other person shall use or permit the use of any packaging rotogravure, publication rotogravure or flexographic printing line employing an ink or surface coating containing volatile organic compounds unless:

1. The ink or surface coating, as it is applied to the substrate, is a waterborne ink or surface coating;

2. The ink or surface coating, as it is applied to the substrate, is a high-solids ink or surface coating;

3. The ink or surface coating, as it is applied to the substrate, is a low-solvent ink or surface coating; or

4. The owner installs and operates an emission control system which achieves the emission reductions specified below in subdivision A 4 a through c of this section. The reduction in volatile organic compound emissions from each printing line shall be at least:

a. 75% by weight of volatile organic compounds of all noncompliant inks and surface coatings where a publication rotogravure printing process is employed;

b. 65% by weight of volatile organic compounds of all noncompliant inks and surface coatings where a packaging rotogravure printing process is employed; or

c. 60% by weight of volatile organic compounds of all noncompliant inks and surface coatings where a flexographic printing process is employed.

B. All units in a machine which has printing units and coating or laminating units shall be subject to this article and exempt from Article 31 (9VAC5-40-4310 et seq.) of this chapter.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3603, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5090 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3605, eff. January 1, 1985.

9VAC5-40-5100 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3606, eff. January 1, 1985.

9VAC5-40-5110 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3607, eff. January 1, 1985.

9VAC5-40-5120 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3608, eff. January 1, 1985.

9VAC5-40-5130 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-5080 A apply ink by ink and coating by coating or to the volume weighted average of inks or surface coatings where the inks and surface coatings are used on a single printing line and the inks and surface coatings are of the same type or perform the same function.

C. Inks and surface coatings meeting the criteria in 9VAC5-40-5080 A 1 through 3 (compliant inks and coatings) may be used on the same printing line with inks and surface coatings subject to the control requirements in 9VAC5-40-5080 (noncompliant inks and coatings) to meet the control requirements of 9VAC5-40-5080 without the installation of an add-on control system. When this is the case, compliance is determined by credits generated by the weight of volatile organic compounds by which the compliant inks or coatings are less than the applicable criteria in 9VAC5-40-5080 A 1 through 3. Compliance is demonstrated if the total credits in pounds of volatile organic compounds is equal to or greater than the total weight of volatile organic compound reduction required of the noncompliant inks over a time period not exceeding 24 hours.

D. Compliance with the requirements of 9VAC5-40-5130 B and C and the emission standards in 9VAC5-40-5080 A shall apply as follows:

1. To each printing line, and to parts of a printing line individually designated by the owner; or

2. To multiple printing lines controlled by a single solvent recovery system. For this option, the most stringent standard applicable to any of the printing lines is applied to all the lines controlled by the same solvent recovery system.

E. The emission standards in 9VAC5-40-5080 A shall apply to each successive compliance averaging period. This compliance averaging period shall not exceed:

1. 24 hours; or

2. The minimum compliance averaging period acceptable to the board, provided that:

a. The owner demonstrates to the satisfaction of the board that an averaging period of 24 hours or less does not adequately represent the reduction of volatile organic compound emissions over the same time period because of the physical or operational characteristics of an add-on control system;

b. The owner demonstrates to the satisfaction of the board the minimum compliance averaging period which adequately represents the reduction of volatile organic compound emissions; and

c. The owner determines compliance for each day or partial day of operation using the minimum compliance averaging period acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3609, eff. July 1, 1991; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5140 Test methods and procedures

A. The provisions of 9VAC5-40-30 (Emission Testing) apply.

B. Testing for compliance with the emission standards in 9VAC5-40-5080 A 4 shall be performed using the applicable methods and procedures specified in 9VAC5-20-121.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3610, eff. January 1, 1985; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5150 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3611, eff. January 1, 1985.

9VAC5-40-5160 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3612, eff. January 1, 1985.

9VAC5-40-5170 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3613, eff. January 1, 1985.

9VAC5-40-5180 Facility and control equipment maintenance of malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3614, eff. January 1, 1985.

9VAC5-40-5190 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3615, eff. January 1, 1985; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

Article 37 Emission Standards for Petroleum Liquid Storage and Transfer Operations (Rule 4-37)

9VAC5-40-5200 Applicability and designation of affected facility

Article 37 Emission Standards for Petroleum Liquid Storage and Transfer Operations (Rule 4-37)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each operation involving the storage or transfer of petroleum liquids or both.

B. Except as provided in subdivisions 1, 2 and 3 of this subsection, the provisions of this article apply to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

1. The emission standards in 9VAC5-40-5220 C, D, E, and G shall not apply to affected facilities in the following localities: Botetourt County, Frederick County, and Winchester City.

2. The emission standard in 9VAC5-40-5220 F shall apply only to affected facilities in the Northern Virginia and Richmond Volatile Organic Compound Emissions Control Areas. For the purposes of applicability of 9VAC5-40-5220 F only, the Richmond Emissions Control Area does not include Prince George County and Petersburg City.

3. The emission standard in 9VAC5-40-5220 C shall apply to affected facilities in Bedford County.

C. The provisions of this article do not apply to affected facilities using petroleum liquids with a vapor pressure less than 1.5 pounds per square inch absolute under actual storage conditions or, in the case of loading or processing, under actual loading or processing conditions. (Kerosene and fuel oil have vapor pressures of less than 1.5 pounds per square inch absolute under actual storage conditions; therefore, kerosene and fuel oil are not subject to the provisions of this article when used or stored at ambient temperatures).

D. The burden of proof of eligibility for exemption from this article is on the owner. Owners seeking such an exemption shall maintain adequate records of average monthly throughput and furnish these records to the board upon request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from VR120-04-3701, eff. January 1, 1993; amended, Virginia Register Volume 14, Issue 2, eff. January 1, 1998; Volume 16, Issue 24, eff. October 1, 2000; Volume 20, Issue 12, eff. March 24, 2004; Volume 22, Issue 26, eff. October 4, 2006.

9VAC5-40-5210 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Average monthly throughput" means the average monthly amount of gasoline pumped at a gasoline dispensing facility during the two most recent consecutive calendar years or some other two-year period which is representative of normal source operation. If the board determines that no two-year period is representative of normal source operation, the board shall allow the use of an alternative period of time upon a determination by the board that it is more representative of normal source operation. Downtime, such as a full or significant shutdown of a facility's operation due to construction, shall not be included when calculating average monthly throughput.

"Begin actual construction" means initiation of permanent physical on-site construction of a new gasoline dispensing facility. This includes, but is not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures.

"Bulk gasoline plant" means a secondary distribution point for delivering gasoline to local farms, businesses, service stations and other distribution points, where the total gasoline throughput is 20,000 gallons or less per working day, based on the daily average for the most recent 12-month period.

"Bulk gasoline terminal" means a primary distribution point for delivering gasoline to bulk plants, service stations and other distribution points, where the total gasoline throughput is greater than 20,000 gallons per working day, based on the daily average for the most recent 12-month period.

"Certified Stage II vapor recovery system" means any system certified by California Air Resources Board as having a vapor recovery or removal efficiency of at least 95%, and approved under the provisions of AQP-9, Procedures for Implementation of Regulations Covering Stage II Vapor Recovery Systems for Gasoline Dispensing Facilities (see 9VAC5-20-121).

"Condensate" means a hydrocarbon liquid separated from natural gas which condenses due to changes in the temperature or pressure or both and remains liquid at standard conditions.

"Crude oil" means a naturally occurring mixture which consists of any combination of hydrocarbons, sulfur, nitrogen or oxygen derivatives of hydrocarbons and which is a liquid at standard conditions.

"Custody transfer" means the transfer of produced crude oil or condensate, after processing or treating or both in the producing operations, from storage tanks or automatic transfer facilities to pipelines or any other forms of transportation.

"Defective equipment" means any absence, disconnection, or malfunctioning of a Stage II vapor recovery system component required by this article including, but not limited to, the following:

a. A vapor return line that is crimped, flattened, blocked, or that has any hole or slit that allows vapors to leak out;

b. A nozzle bellows that has any hole large enough to allow a ¼-inch diameter cylindrical rod to pass through it or any slit one inch or more in length;

c. A nozzle faceplate or cone that is torn or missing over 25% of its surface;

d. A nozzle with no automatic overfill control mechanism, or an inoperable overfill control mechanism; and

e. An inoperable or malfunctioning vapor processing unit, vacuum generating device, pressure or vacuum relief valve, vapor check valve or any other equipment normally used to dispense gasoline or is required by this article.

"External floating roof" means a storage vessel cover in an open top consisting of a double deck or pontoon single deck which rests upon and is supported by the liquid being contained and is equipped with a closure seal or seals to close the space between the roof edge and tank shell.

"Gasoline" means any petroleum distillate having a Reid vapor pressure of four pounds per square inch or greater.

"Gasoline dispensing facility" means any site where gasoline is dispensed to motor vehicle tanks from stationary storage tanks.

"Independent small business gasoline marketer" means a person engaged in the marketing of gasoline who owns one or more gasoline dispensing facilities and is required to pay for procurement and installation of vapor recovery equipment, unless such owner:

a. Is a refiner; controls, or is controlled by, or is under common control with, a refiner; or is otherwise directly or indirectly affiliated with a refiner or with a person who controls, is controlled by, or is under a common control with a refiner (unless the sole affiliation is by means of a supply contract or an agreement or contract to use a trademark, tradename, service mark, or other identifying symbol or name owned by such refiner or any such person); or

b. Receives less than 50% of his annual income from refining or marketing of gasoline.

For the purposes of this definition, "control" of a corporation means ownership of more than 50% of its stock and "control" of a partnership, joint venture or other nonstock entity means ownership of more than a 50% interest in such partnership, joint venture or other nonstock entity. The lessee of a gasoline dispensing facility, for which the owner of such outlet does not sell, trade in, or otherwise dispense any product at wholesale or retail at such outlet, shall be considered an independent small business marketer if the lessee by lease agreement with the owner is required to pay for the cost of procurement and installation of vapor recovery equipment over a reasonable period.

"Internal floating roof" means a cover or roof in a fixed roof tank which rests upon or is floated upon the liquid being contained and is equipped with a closure seal or seals to close the space between the roof edge and tank shell.

"Liquid-mounted" means a primary seal mounted so the bottom of the seal covers the liquid surface between the tank shell and the floating roof.

"Major system modification" means the replacement, repair or upgrade of 75% of a facility's Stage II vapor recovery system equipment.

"Owner" means, for the purposes of this article, any person, including bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals who own, lease, operate, control or supervise an operation involving the storage or transfer of petroleum liquids or both.

"Petroleum liquids" means crude oil, condensate, and any finished or intermediate products manufactured or extracted in a petroleum refinery.

"Petroleum refinery" means any facility engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants or other products through distillation of petroleum or through redistillation, cracking, rearrangement or reforming of unfinished petroleum derivatives.

"Refiner" means any person or entity that owns or operates a facility engaged in the production of gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants or similar products through distillation of petroleum or through redistillation, cracking, or reforming of unfinished petroleum derivatives and whose total refinery capacity (including the refinery capacity of any person or entity who controls, is controlled by or is under common control with, such refiner) is greater than 65,000 barrels per day.

"Stage II vapor recovery system" means any equipment designed and used to collect, recover, or destroy, or any combination of those, gasoline vapors displaced during the transfer of gasoline into a motor vehicle fuel tank.

"Submerged fill pipe" means any fill pipe the discharge opening of which is entirely submerged when the liquid level is six inches above the bottom of the tank; or, when applied to a tank which is loaded from the side, any fill pipe the discharge opening of which is entirely submerged when at the minimum operating level.

"Vapor-mounted" means a primary seal mounted so there is an annular vapor space underneath the seal. The annular vapor space is bounded by the bottom of the primary seal, the tank shell, the liquid surface, and the floating roof.

"Vapor tight" means capable of holding a pressure of 18 inH₂0 and a vacuum of 6 inH₂O without sustaining a pressure change of more than 3 inH₂O in five minutes.

"Waxy, heavy pour crude oil" means a crude oil with a pour point of 50°F or higher as determined by the American Society for Testing and Materials publication, "Test for Pour Point of Petroleum Oils" (see 9VAC5-20-21).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3702, eff. January 1, 1993; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002.

9VAC5-40-5220 Standard for volatile organic compounds

A. Petroleum liquid storage-fixed roof tanks.

1. No owner or other person shall use or permit the use of any fixed roof tank of more than 40,000 gallons capacity for storage of petroleum liquids, unless such tank is equipped with a control method that will remove, destroy, or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision 1 of this subsection by use of methods in 9VAC5-40-5230 A will be acceptable to the board.

3. The provisions of this subsection shall not be applicable to fixed roof tanks having capacities less than 400,000 gallons for crude oil or condensate stored, processed, or treated at a drilling and production facility prior to custody transfer.

4. The owner of a fixed roof tank subject to the provisions of subdivision 1 of this subsection shall:

a. When the fixed roof tank is equipped with an internal floating roof, perform a visual inspection annually of the floating cover through roof hatches to ascertain compliance with the specifications in subdivisions (1) and (2) of this subdivision A 4 a.

(1) The cover should be uniformly floating on or above the liquid and there should be no visible defects in the surface of the cover or liquid accumulated on the cover.

(2) The seal must be intact and uniformly in place around the circumference of the cover between the cover and tank wall.

b. Perform a complete inspection of the cover and seal and record the condition of the cover and seal when the tank is emptied for nonoperational reasons such as maintenance, an emergency, or other similar purposes.

c. Maintain records of the throughput quantities and types of petroleum liquids stored, the average monthly storage temperature and true vapor pressure of the liquid as stored, and the results of the inspections performed under the provisions of subdivisions 4 a and 4 b of this subsection.

B. Petroleum liquid storage--floating roof tanks.

1. No owner or other person shall use or permit the use of any floating roof tank of more than 40,000 gallons capacity for storage of petroleum liquids, unless such tank is equipped with a control method that will remove, destroy, or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision 1 of this subsection by use of methods in 9VAC5-40-5230 B will be acceptable to the board.

3. The provisions of this subsection shall not be applicable to the following:

a. Floating roof tanks having capacities less than 400,000 gallons for crude oil or condensate stored, processed, or treated at a drilling and production facility prior to custody transfer.

b. Floating roof tanks storing waxy, heavy pour crude oil.

4. The owner of a floating roof tank subject to the provisions of subdivision 1 of this subsection shall:

a. Perform routine inspections annually which shall include a visual inspection of the secondary seal gap.

b. When the floating roof is equipped with a vapor-mounted primary seal, measure the secondary seal gap annually in accordance with subdivisions (1) and (2) of this subdivision B 4 b.

(1) Physically measure the length and width of all gaps around the entire circumference of the secondary seal in each place where a 1/8-inch uniform diameter probe passes freely (without forcing or binding against the seal) between the seal and tank wall; and

(2) Sum the area of the individual gaps.

c. Maintain records of the types of petroleum liquids stored, the maximum true vapor pressure of the liquid as stored, and the results of the inspections performed under the provisions of subdivisions a and b of this subdivision B 4.

C. Gasoline bulk loading--bulk terminals.

1. No owner or other person shall cause or permit the discharge into the atmosphere from a bulk gasoline terminal (including any appurtenant equipment necessary to load the tank truck compartments) any volatile organic compound in excess of.67 pounds per 1,000 gallons of gasoline loaded.

2. Achievement of the emission standard in subdivision 1 of this subsection by use of methods in 9VAC5-40-5230 C will be acceptable to the board.

D. Gasoline bulk loading--bulk plants.

1. No owner or other person shall use or permit the use of any bulk gasoline plant (including any appurtenant equipment necessary to load or unload tank trucks and account trucks) unless such plant is equipped with a vapor control system that will remove, destroy, or prevent the discharge into the atmosphere of at least 77% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision 1 of this subsection by use of methods in 9VAC5-40-5230 D will be acceptable to the board.

3. The provisions of this subsection shall not be applicable to facilities whose average daily throughput of gasoline is less than 4,000 gallons per working day when based on a 30-day rolling average. Average daily throughput means the average daily amount of gasoline pumped at a gasoline dispensing facility during the most recent 30-day period. Average daily throughput shall be calculated for the two most recent consecutive calendar years. If during this two-year period or any period thereafter, the average daily throughput exceeds 4,000 gallons per working day, the facility is no longer exempt from the provisions of subdivision 1 of this subsection.

E. Transfer of gasoline--gasoline dispensing facilities--Stage I vapor control systems.

1. No owner or other person shall transfer or permit the transfer of gasoline from any tank truck into any stationary storage tank unless such tank is equipped with a vapor control system that will remove, destroy, or prevent the discharge into the atmosphere of at least 90% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision 1 of this subsection by use of methods in 9VAC5-40-5230 E will be acceptable to the board.

3. The provisions of this subsection shall not apply to the following:

a. Transfers made to storage tanks that are either less than 250 gallons in capacity or located at facilities whose average monthly throughput of gasoline is less than 10,000 gallons.

b. Transfers made to storage tanks equipped with floating roofs or their equivalent.

F. Transfer of gasoline--gasoline dispensing facilities--Stage II vapor recovery systems.

1. No owner or other person shall transfer or permit the transfer of gasoline into the fuel tank of any motor vehicle at any affected gasoline dispensing facility unless the transfer is made using a certified Stage II vapor recovery system that is designed, operated, and maintained such that the vapor recovery system removes, destroys, or prevents the discharge into the atmosphere of at least 95% by weight of volatile organic compound emissions.

2. Achievement of the emission standard in subdivision 1 of this subsection by use of methods in 9VAC5-40-5230 F will be acceptable to the board.

3. The affected gasoline facilities shall be in compliance with the emissions standard in subdivision 1 of this subsection according to the following schedule:

a. Facilities which begin actual construction on or after January 1, 1993, must comply upon startup unless the facility can prove it is exempt under the provisions of subdivision 4 of this subsection.

b. Facilities which begin actual construction after November 15, 1990, and before January 1, 1993, must comply by May 15, 1993.

c. Facilities which begin actual construction on or before November 15, 1990, and dispense an average monthly throughput of 100,000 gallons or more of gasoline must comply by November 15, 1993.

d. All other affected facilities which begin actual construction on or before November 15, 1990, must comply by November 15, 1994.

4. The provisions of this subsection shall not apply to the following facilities:

a. Gasoline dispensing facilities with an average monthly throughput of 10,000 gallons or less.

b. Gasoline dispensing facilities owned by independent small business gasoline marketers with an average monthly throughput of 50,000 gallons or less.

c. Gasoline dispensing devices that are used exclusively for refueling marine vehicles, aircraft, farm equipment, and emergency vehicles.

5. Any gasoline dispensing facility subject to the provisions of this subsection shall also comply with the provisions of subsection E of this section (Stage I vapor controls).

6. In accordance with the provisions of AQP-9, Procedures for Implementation of Regulations Covering Stage II Vapor Recovery Systems for Gasoline Dispensing Facilities (see 9VAC5-20-121), owners of affected gasoline dispensing facilities shall:

a. Register the Stage II system with the board and submit Stage II vapor recovery equipment specifications at least 90 days prior to installation of the Stage II vapor recovery system. Owners of gasoline dispensing facilities in existence as of January 1, 1993, shall contact the board by February 1, 1993, and register the Stage II vapor recovery system according to the schedule outlined in AQP-9. Any repair or modification to an existing Stage II vapor recovery system that changes the approved configuration shall be reported to the board no later than 30 days after completion of such repair or modification.

b. Perform tests, before the equipment is made available for use by the public, on the entire Stage II vapor recovery system to ensure the proper functioning of nozzle automatic shut-off mechanisms and flow prohibiting mechanisms where applicable, and perform a pressure decay/leak test, a vapor space tie test, and a liquid blockage test. In cases where use of one of the test methods in AQP-9 is not feasible for a particular Stage II vapor recovery system, the owner may, upon approval of the board, use an alternative test method.

c. No later than 15 days after system testing is completed, submit to the board documentation showing the results of the tests outlined in subdivision 6 b of this subsection.

d. Ensure that the Stage II vapor recovery system is vapor tight by performing a pressure decay/leak test and a liquid blockage test at least every five years, upon major system replacement or modification, or if requested by the board after evidence of a system malfunction which compromises the efficiency of the system.

e. Notify the board at least two days prior to Stage II vapor recovery system testing as required by subdivisions 6 b and 6 d of this subsection.

f. Conspicuously post operating instructions for the vapor recovery system on each gasoline dispensing pump which includes the following information:

(1) A statement, as described in Part III F 1 of AQP-9 (see 9VAC5-20-121), describing the benefits of the Stage II vapor recovery system.

(2) A clear description of how to correctly dispense gasoline with the vapor recovery nozzles.

(3) A warning that repeated attempts to continue dispensing gasoline after the system has indicated that the vehicle fuel tank is full (by automatically shutting off) may result in spillage or recirculation of gasoline.

(4) A telephone number to report problems experienced with the vapor recovery system to the board.

g. Promptly and conspicuously post "Out Of Order" signs on any nozzle associated with any part of the vapor recovery system that is defective if use of that nozzle would allow escape of gasoline vapors to the atmosphere. "Out of order" signs shall not be removed from affected nozzles until said system has been repaired.

h. Provide adequate training and written instructions for facility personnel to assure proper operation of the vapor recovery system.

i. Perform routine maintenance inspections of the Stage II vapor recovery system on a daily and monthly basis and record the monthly inspection results as specified in Part III E of AQP-9 (see 9VAC5-20-121).

j. Maintain records on site, in a form and manner acceptable to the board, of operator training, system registration and equipment approval, and maintenance, repair and testing of the system. Original documents may be maintained at a centralized location only if copies of these documents are maintained on site according to the requirements set forth in AQP-9. Records shall be retained for a period of at least two years, unless specified otherwise, and shall be made immediately available for inspection by the board upon request.

7. The requirements of this subsection shall apply to the localities specified in 9VAC5-40-5200 B 2 until the following dates, after which the decommissioning or maintenance requirements of subdivision 8 or 9 of this subsection shall be followed.

a. For the Northern Virginia Volatile Organic Compound Control Area: January 1, 2014.

b. For the Richmond Volatile Organic Compound Control Area (which shall not include Prince George County and Petersburg City): January 1, 2017.

8. No owner or other person decommissioning any Stage II equipment shall be relieved from the continuing proper operation and maintenance of Stage I vapor control systems. In order to assure the proper operation and maintenance of Stage I equipment, all of the Stage II decommissioning procedures in this subdivision F 8 shall be completed:

a. Notify the board in writing prior to removing or discontinuing all or part of an existing Stage II system. All notifications shall include:

(1) Name, address, contact name, telephone number, and registration number;

(2) Details and cost of project, and the name of the service provider for the project; and

(3) Start date and projected completion date.

A copy of this notification shall be maintained with on-site records.

b. Decommission the discontinued Stage II system or, in the case of removal and replacement of an existing dispenser system, decommission each dispenser system piping in accordance with all applicable steps provided in the Recommended Practices for Installation and Testing of Vapor-Recovery Systems at Vehicle-Fueling Sites, PEI/RP300-09, Petroleum Equipment Institute (PEI) (see 9VAC5-20-21), or an alternative procedure as approved by the board.

c. Notify the board in writing no more than 30 days after decommissioning all or part of a Stage II system. All notifications shall include:

(1) Name, address, contact name, telephone number, and registration number;

(2) Name and telephone number of the qualified technician or qualified service provider or both who decommissioned the Stage II equipment;

(3) Date decommissioning was complete and type of Stage II system;

(4) Steps used in decommissioning or a completed PEI checklist form (Appendix C of PEI/RP300-09);

(5) Copy of pressure decay test conducted after decommissioning was complete; and

(6) Statement from the service provider verifying the storage system has been left in a condition that will reliably prevent the release of any vapors or liquids from any component of the storage system associated with the Stage II system.

A copy of this notification shall be maintained with on-site records.

9. No owner or other person that continues to operate Stage II equipment in lieu of following the decommissioning procedures in subdivision 8 of this subsection shall be relieved from the continuing proper operation and maintenance of the Stage II equipment in compliance with this article.

G. Tank trucks/account trucks and vapor collection systems.

1. No owner or other person shall use or permit the use of any tank truck or account truck that is loaded or unloaded at facilities subject to the provisions of subsection C, D, or E of this section unless such truck is designed, maintained, and certified to be vapor tight. In addition, there shall be no avoidable visible liquid leaks. Invariably there will be a few drops of liquid from disconnection of dry breaks in liquid lines even when well maintained; these drops are allowed.

2. Vapor-laden tank trucks or account trucks exclusively serving facilities subject to subsection D or E of this section may be refilled only at facilities in compliance with subsection C of this section.

3. Tank truck and account truck hatches shall be closed at all times during loading and unloading operations (periods during which there is liquid flow into or out of the truck) at facilities subject to the provisions of subsection C, D, or E of this section.

4. During loading or unloading operations at facilities subject to the provisions of subsection C, D, or E of this section, there shall be no volatile organic compound concentrations greater than or equal to 100% of the lower explosive limit (LEL, measured as propane) at 2.5 centimeters around the perimeter of a potential leak source as detected by a combustible gas detector. In addition, there shall be no avoidable visible liquid leaks. Invariably there will be a few liquid drops from the disconnection of well-maintained bottom loading dry breaks and the raising of well-maintained top loading vapor heads; these few drops are allowed. The vapor collection system includes all piping, seals, hoses, connection, pressure-vacuum vents, and other possible leak sources between the truck and the vapor disposal unit and between the storage tanks and vapor recovery unit.

5. The vapor collection and vapor disposal equipment must be designed and operated to prevent gauge pressure in the tank truck from exceeding 18 in H₂0 and prevent vacuum from exceeding 6 in H₂0.

6. Testing to determine compliance with subdivision 1 of this subsection shall be conducted and reported and data shall be reduced as set forth in procedures approved by the board using test methods specified there. All tests shall be conducted by, or under the direction of, a person qualified by training or experience in the field of air pollution testing, or tank truck maintenance and testing and approved by the board.

7. Monitoring to confirm the continuing existence of leak tight conditions specified in subdivision 4 of this subsection shall be conducted as set forth in procedures approved by the board using test methods specified there.

8. Owners of tank trucks and account trucks subject to the provisions of subdivision 1 of this subsection shall certify each year that the trucks are vapor tight in accordance with test procedures specified in subdivision 6 of this subsection. Trucks that are not vapor tight must be repaired within 15 days of the test and be tested and certified as vapor tight.

9. Each truck subject to the provisions of subdivision 1 of this subsection shall have information displayed on the tank indicating the expiration date of the certification and such other information as may be needed by the board to determine the validity of the certification. The means of display and location of this information shall be in a manner acceptable to the board.

10. An owner of a vapor collection/control system shall repair and retest the system within 15 days of the testing, if it exceeds the limit specified in subdivision 4 of this subsection.

11. The owner of a tank/account truck or vapor collection/control system or both subject to the provisions of this section shall maintain records of all certification testing and repairs. The records must identify the tank/account truck, vapor collection system, or vapor control system; the date of the test or repair; and, if applicable, the type of repair and the date of retest. The records must be maintained in a legible, readily available condition for at least two years after the date testing or repair was completed.

12. The records of certification tests required by subdivision 11 of this subsection shall, as a minimum, contain the following:

a. The tank/account truck tank identification number;

b. The initial test pressure and the time of the reading;

c. The final test pressure and the time of the reading;

d. The initial test vacuum and the time of the reading;

e. The final test vacuum and the time of the reading; and

f. Name and the title of the person conducting the test.

13. Copies of all records and reports required by this section shall immediately be made available to the board, upon verbal or written request, at any reasonable time.

14. The board may, at any time, monitor a tank/account truck, vapor collection system, or vapor control system by the method referenced in subdivision 6 or 7 of this subsection to confirm continuing compliance with subdivision 1 or 4 of this subsection.

15. If, after over one year of monitoring (i.e., at least two complete annual checks), the owner of a truck subject to the provisions of subdivision 6 of this subsection feels that modification of the requirements are in order, the owner may request in writing to the board that a revision be made. The request should include data that have been developed to justify any modifications in the monitoring schedule. On the other hand, if the board finds an excessive number of leaks during an inspection, or if the owner finds an excessive number of leaks during scheduled monitoring, consideration shall be given to increasing the frequency of inspection.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-04-3703, eff. January 1, 1993; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-40-5230 Control technology guidelines

A. Petroleum liquid storage-fixed roof tanks.

1. The tank should be a pressure tank maintaining working pressure sufficient at all times to prevent vapor loss to the atmosphere, or be designed and equipped with one of the following vapor control systems:

a. An internal floating roof resting on the surface of the liquid contents and equipped with a closure seal, or seals, to close the space between the roof edge and tank shell. All tank gauging and sampling devices should be vapor tight except when gauging or sampling is taking place.

b. Any system of equal or greater control efficiency to the system in subdivision A 1 a of this section, provided such system is approved by the board.

2. There should be no visible holes, tears or other openings in the seal or any seal fabric.

3. All openings, except stub drains, should be equipped with a cover, seal or lid. The cover, seal or lid should be in a closed position at all times except when the device is in actual use. Automatic bleeder vents should be closed at all times except when the roof is floated off or landed on the roof leg supports. Rim vents, if provided, should be set to open when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting.

4. The exterior above ground surfaces (exposed to sunlight) should be painted white, light pastels, or light metallic and such exterior paint should be periodically maintained in good condition. Repainting may be performed during normal maintenance periods.

B. Petroleum liquid storage-floating roof tanks.

1. The tank should be designed and equipped with one of the following vapor control systems:

a. An external floating roof resting on the surface of the liquid contents and equipped with a seal closure device (meeting the specifications set forth in subdivisions B 2 and 3 of this section) to close the space between the roof edge and tank shell. All tank gauging and sampling devices should be vapor tight except when gauging or sampling is taking place.

b. Any system of equal or greater control efficiency to the system in subdivision B 1 a of this section, provided such system is approved by the board.

2. Unless the tank is a welded tank fitted with a metallic-type shoe seal which has a secondary seal from the top to the shoe seal to the tank wall (a shoe-mounted secondary), the tank should be fitted with a continuous secondary seal extending from the floating roof to the tank wall (a rim-mounted secondary) if:

a. The tank is a welded tank, the true vapor pressure of the contained liquid is 4.0 psi or greater, and the primary seal is one of the following:

(1) A metallic-type shoe seal.

(2) A liquid-mounted foam seal.

(3) A liquid-mounted liquid-filled type seal.

(4) Any other seal closure device which can be demonstrated equivalent to the primary seals specified in subdivisions B 2 a (1) through (3) of this section.

b. The tank is a riveted tank, the true vapor pressure of the contained liquid is 1.5 psi, or greater, and the seal closure device is as described in subdivision B 2 a of this section.

c. The tank is a welded or riveted tank, the true vapor pressure of the contained liquid is 1.5 psi, or greater, and the primary seal is vapor mounted. When such primary seal closure device can be demonstrated equivalent to the primary seals described in subdivision B 2 a of this section, the provisions of that subdivision apply.

3. The seal closure devices should meet the following requirements:

a. There should be no visible holes, tears or other openings in the seal or any seal fabric.

b. The seal should be intact and uniformly in place around the circumference of the floating roof between the floating roof and the tank wall.

c. The areas where the gap between the secondary seal, installed pursuant to subdivision B 2 c of this section, and the tank wall exceeds 1/8 inch in width shall be calculated in square inches. The sum of all such areas shall not exceed 1.0 square inch per foot of tank diameter.

4. All openings, except for automatic bleeder vents, rim space vents and leg sleeves, should provide a projection below the liquid surface. All openings, except stub drains, should be equipped with a cover, seal or lid. The cover, seal or lid should be in a closed position at all times except when the device is in actual use. Automatic bleeder vents should be closed at all times except when the roof is floated off or landed on the roof leg supports. Rim vents, if provided, should be set to open when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting. Any emergency roof drain should be provided with a slotted membrane fabric cover or equivalent cover that covers at least 90% of the area of the opening.

5. The exterior above ground surfaces (exposed to sunlight) should be painted white, light pastels, or light metallic and such exterior paint should be periodically maintained in good condition. Repainting may be performed during normal maintenance periods.

C. Gasoline bulk loading-bulk terminals. The control system should consist of the following:

1. A vapor collection and disposal system with the vapor disposal portion consisting of one of the following:

a. Compression-refrigeration-adsorption system;

b. Refrigeration system;

c. Oxidation system; or

d. Any system of equal or greater control efficiency to the systems in subdivisions C 1 a through c of this section, provided such system is approved by the board.

2. A vapor collection and disposal system with the vapor collection portion meeting the following criteria:

a. Loading should be accomplished in such manner that all displaced vapor and air will be vented only to the vapor disposal system. Measures should be taken to prevent liquid drainage from the loading device when it is not in use or to accomplish substantially complete drainage before the loading device is disconnected;

b. The pressure relief valves on storage containers and tank trucks should be set to release at no less than 0.7 psi or the highest possible pressure in accordance with the following National Fire Prevention Association Standards: "Standard for Tank Vehicles for Flammable and Combustible Liquids," "Flammable and Combustible Liquids Code," "Code for Motor Fuel Dispensing Facilities and Repair Garages" (see 9VAC5-20-21);

c. Pressure in the vapor collection lines should not exceed tank truck pressure relief valve settings; and

d. All loading and vapor lines should be equipped with fittings which make vapor tight connections and which close when disconnected.

D. Gasoline bulk loading-bulk plants.

1. The control system should consist of one of the following:

a. Submerged filling of account trucks and storage tanks (either top-submerged or bottom-fill) plus a vapor balance (displacement) system to control volatile organic compounds displaced by gasoline delivery to the storage tank and account truck;

b. Top loading vapor recovery method of filling account trucks and storage tanks plus a vapor balance (displacement) system to control volatile organic compounds displaced by gasoline delivery to the storage tank and account truck; or

c. Any system of equal or greater control efficiency to the system in subdivision D 1 a or b of this section, provided such system is approved by the board.

2. The control system in subdivisions D 1 a and b of this section should meet the following equipment specifications and operating procedures:

a. For top-submerged and bottom-fill. The fill pipe should extend to within six inches of the bottom of the storage tank and account truck during top-submerged filling operations. Any bottom fill is acceptable if the inlet is flush with the tank bottom; and

b. For the balance system:

(1) There should be no leaks in the account trucks' and tank trucks' pressure vacuum relief valves and hatch covers, nor tank trucks, account trucks, storage tanks or associated vapor return lines during loading or unloading operations.

(2) The pressure relief valves on storage tanks, account trucks and tank trucks should be set to release at no less than 0.7 psi or the highest possible pressure in accordance with the following National Fire Prevention Association Standards: "Standard for Tank Vehicles for Flammable and Combustible Liquids," "Flammable and Combustible Liquids Code," "Code for Motor Fuel Dispensing Facilities and Repair Garages" (see 9VAC5-20-21).

(3) Pressure in the vapor collection lines should not exceed account truck or tank truck pressure relief valve settings.

(4) All loading and vapor lines should be equipped with fittings which make vapor tight connections and which close when disconnected.

E. Transfer of gasoline-gasoline dispensing facilities-stage I vapor control systems. The control system should consist of the following:

1. A submerged fill pipe;

2. A vapor control system with the vapor recovery portion consisting of one of the following:

a. A vapor tight return line from the storage container to the tank truck which shall be connected before gasoline is transferred into the container;

b. Any adsorption system or condensation system; or

c. Any system of equal or greater control efficiency to the systems in subdivision E 2 a or b of this section, provided such system is approved by the board.

3. A vapor control system with the vapor balance portion meeting the following criteria:

a. There should be no leaks in the tank truck's pressure vacuum relief valves and hatch covers, nor truck tanks, storage tanks and associated vapor return lines during loading or unloading operations;

b. The pressure relief valves on storage containers and tank trucks should be set to release at no less than 0.7 psi or the highest possible pressure in accordance with the following National Fire Prevention Association Standards: "Standard for Tank Vehicles for Flammable and Combustible Liquids," "Flammable and Combustible Liquids Code," "Code for Motor Fuel Dispensing Facilities and Repair Garages" (see 9VAC5-20-21);

c. Pressure in the vapor collection lines should not exceed tank truck pressure relief valve settings; and

d. All loading and vapor lines should be equipped with fittings which make vapor tight connections and which close when disconnected.

F. Transfer of gasoline-gasoline dispensing facilities-Stage II vapor recovery systems.

1. Stage II vapor recovery systems shall be limited to those certified systems approved under the provisions of AQP-9, Procedures for Implementation of Regulations Covering Stage II Vapor Recovery Systems for Gasoline Dispensing Facilities (see 9VAC5-20-121), which utilize coaxial hoses and vapor check valves in the nozzle or remote vapor check valves which do not impede the performance of the functional tests required in subdivision F 6 b of 9VAC5-40-5220.

2. Stage II vapor recovery systems installed prior to January 1, 1993, must meet the specifications of a system certified by the California Air Resources Board. Owners of Stage II vapor recovery systems utilizing remote check valves which will impede the performance of the functional tests required in subdivision F 6 b of 9VAC5-40-5220 and dual vapor recovery hoses shall replace these components with check valves in the nozzle and with coaxial hoses by January 1, 1995.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3704, eff. January 1, 1993; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002.

9VAC5-40-5240 Standard for visible emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3705, eff. January 1, 1985.

9VAC5-40-5250 Standard for fugitive dust/emissions

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3706, eff. January 1, 1985.

9VAC5-40-5260 Standard for odor

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

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3707, eff. January 1, 1985.

9VAC5-40-5270 Standard for toxic pollutants

The provisions of Article 4, Emission Standards for Toxic Pollutants from Existing Sources, (9VAC5-60-200 et seq.) of Part I of Hazardous Air Pollutant Sources apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-04-3708, eff. January 1, 1985; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-40-5280 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3709, eff. January 1, 1985.

9VAC5-40-5290 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3710, eff. January 1, 1985.

9VAC5-40-5300 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3711, eff. January 1, 1985.

9VAC5-40-5310 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3712, eff. January 1, 1985.

9VAC5-40-5320 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3713, eff. January 1, 1985.

9VAC5-40-5330 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3714, eff. January 1, 1985.

9VAC5-40-5340 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3715, eff. January 1, 1985.

Article 38 Emission Standards for Dry Cleaning Systems (Rule 4-38) [Repealed]

9VAC5-40-5350 (Repealed.)

Article 38 Emission Standards for Dry Cleaning Systems (Rule 4-38) [Repealed]

Historical Notes

Derived from VR120-04-3801, eff. July 1, 1991, and from VR120-04-3802 to VR120-04-3814, eff. January 1, 1985; repealed, Virginia Register Volume 15, Issue 12, eff. April 1, 1999.

9VAC5-40-5490 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3901, eff. July 1, 1991; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5500 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3902, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5510 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3903, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5520 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3904, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5530 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3905, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5540 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3906, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5550 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3907, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5560 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3908, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5570 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3909, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5580 (Repealed.)

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-3910, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5590 (Repealed.)

History

• Historical Notes: Derived from VR120-04-3911, eff. January 1, 1985; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

Article 40 Emission Standards for Open Burning (Rule 4-40) (Repealed)

9VAC5-40-5600 (Repealed.)

Article 40 Emission Standards for Open Burning (Rule 4-40) (Repealed)

History

• Historical Notes: Derived from VR120-04-4001, eff. January 1, 1988; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 23, Issue 1, eff. October 18, 2006; repealed, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-40-5610 (Repealed.)

History

• Historical Notes: Derived from VR120-04-4002, eff. January 1, 1988; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 23, Issue 1, eff. October 18, 2006; repealed, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-40-5620 (Repealed.)

History

• Historical Notes: Derived from VR120-04-4003, eff. January 1, 1988; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 23, Issue 1, eff. October 18, 2006; repealed, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-40-5630 (Repealed.)

History

• Historical Notes: Derived from VR120-04-4004, eff. January 1, 1988; amended, Virginia Register Volume 12, Issue 11, eff. April 1, 1996; Volume 23, Issue 1, eff. October 18, 2006; repealed, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-40-5631 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 1, eff. October 18, 2006; repealed, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-40-5640 (Repealed.)

Historical Notes

Derived from VR120-04-4005, eff. January 1, 1988; repealed, Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5641 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 1, eff. October 18, 2006; Errata, 23:5 VA.R. 791 November 13, 2006; repealed, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-40-5645 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; repealed, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

Article 41 Emission Standards for Mobile Sources (Rule 4-41)

9VAC5-40-5650 Applicability and designation of affected facility

Article 41 Emission Standards for Mobile Sources (Rule 4-41)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each mobile source.

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

C. The provisions of this article do not apply to mobile sources used solely for ceremonial purposes, antiques and others of historical significance.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-4101, eff. January 1, 1985.

9VAC5-40-5660 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Mobile sources" means any vehicle, including, but not limited to, any motor vehicle (automobile, truck, bus, etc.) or other landcraft; airplane or other aircraft; locomotive or other rail vehicle; ship, boat or other watercraft, which emits or may emit any air pollutant.

"Motor vehicle" means any powered conveyance of a type normally licensed by the Virginia Department of Motor Vehicles.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-4102, eff. January 1, 1985.

9VAC5-40-5670 Motor vehicles

A. Emission control systems.

1. No owner or other person shall cause or permit the removal, disconnection or disabling of a crankcase emission control system or device, exhaust emission control system or device, fuel evaporative emission control system or device, or other air pollution control system or device which has been installed on a motor vehicle in accordance with federal laws and regulations while such motor vehicle is operating in the Commonwealth of Virginia.

2. No owner or other person shall attempt to defeat the purpose of any such motor vehicle pollution control system or device by installing any part or component which is not a standard factory replacement part or component of the device.

3. No motor vehicle or engine shall be operated with the motor vehicle pollution control system or device removed or otherwise rendered inoperable.

4. The provisions of this section shall not prohibit or prevent shop adjustments or replacement of equipment for maintenance or repair, or the conversion of engines to low polluting fuels such as, but not limited to, natural gas or propane.

B. Visible emissions.

1. No owner or other person shall cause or permit the emission of visible air pollutants from gasoline-powered motor vehicles for longer than five consecutive seconds after the engine has been brought up to operating temperature.

2. No owner or other person shall cause or permit the emission of visible air pollutants from diesel-powered motor vehicles of a density equal to or greater than 20% opacity for longer than 10 consecutive seconds after the engine has been brought up to operating temperature.

C. In commercial or residential urban areas, propulsion engines of motor vehicles licensed for commercial or public service use shall not be left running for more than three minutes when the vehicle is parked, unless the propulsion engine is providing auxiliary power for other than heating or air conditioning; except that:

1. Tour buses may idle for up to 10 minutes during hot weather in order to maintain power to the air conditioning system; and

2. Diesel powered vehicles may idle for up to 10 minutes to minimize restart problems.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-4103, eff. January 1, 1985.

9VAC5-40-5680 Other mobile sources

A. General. All mobile sources operating within Virginia, including the air space over this Commonwealth, shall control their emissions in strict accordance with the applicable federal laws and regulations.

B. Visible emissions. The provisions of 9VAC5-40-80 shall apply to the discharge of visible emissions from all mobile sources, unless specified otherwise in subsection C of this section.

C. Exceptions.

1. Aircraft. Subsection B of this section shall not apply to aircraft.

2. Diesel locomotives. Visible emissions from operating diesel-powered locomotives shall not exceed a density greater than 30% opacity unless the locomotive is operating under any of the following conditions:

a. Accelerating under load, and then only for a maximum of 40 consecutive seconds for stabilization of the new operating condition;

b. Being loaded after a period of idle, and then only for a maximum period of four consecutive minutes after the changed condition;

c. Started cold, and then only for a maximum of 30 consecutive minutes after such a start; or

d. Being tested, adjusted, or broken in after rebuilding or repair, and then only for maximum periods of 3 consecutive minutes for an aggregate of no more than 10 minutes in any 60-minute period.

3. Ships and other watercraft. Visible emissions in excess of subsection B of this section are authorized when not at dock and for brief periods when at dock under the following conditions:

a. During dock trials as required to test and calibrate the ship's machinery control systems;

b. When lighting off a cold machinery plant and getting under way;

c. When used on shore to simulate dock or sea trials; or

d. When soot blowing. Soot blowing shall be limited to once in each 24-hour period and shall be allowed only when wind conditions and direction are such as to prevent a public nuisance or hazard to the health and safety of persons and property both ashore and afloat.

4. Other diesel-powered mobile sources. Visible emissions from diesel-powered mobile sources which are not otherwise governed by these regulations shall not exceed 20% opacity for longer than 10 consecutive seconds after the engine has been brought up to operating temperature.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-4104, eff. January 1, 1985.

9VAC5-40-5690 Export/import of motor vehicles

A. Any person may remove the catalyst and restrictive filler inlet from used motor vehicles scheduled for shipment overseas provided that:

1. The export/import of the motor vehicle meets the provisions of subsection B of this section; and

2. The removal of the emission control devices does not take place prior to 10 days before the vehicle is turned in to the port authorities and the reinstallation of the emission control devices takes place within 10 days after receipt of the vehicle by the owner from the port authorities.

B. To be exempted under the provisions of subsection A of this section, the motor vehicle must:

1. Be exported/imported under a U.S. Environmental Protection Agency (EPA) approved catalyst control program; or

2. If not under an EPA program, upon reimportation to the United States must be entered through U.S. Customs under cash bond and formal entry procedures (19 CFR 12 - Special classes of merchandise) and must be modified to bring it into conformity with applicable federal motor vehicle emission standards (40 CFR 86 - Control of air pollution from new motor vehicle engines: Certification and test procedures).

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-04-4105, eff. October 1, 1986.

9VAC5-40-5700 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5710 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5720 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5730 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5740 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5750 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5760 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-5770 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Volume 28, Issue 25, eff. September 27, 2012.

Article 43 Emission Standards for Municipal Solid Waste Landfills (Rule 4-43)

9VAC5-40-5800 Applicability and designation of affected facility

Article 43 Emission Standards for Municipal Solid Waste Landfills (Rule 4-43)

A. The affected facility to which the provisions of this article apply is each municipal solid waste (MSW) landfill which commenced construction, reconstruction, or modification before May 30, 1991.

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

C. For purposes of obtaining a federal operating permit, the owner of an MSW landfill subject to this article with a design capacity less than 2.5 million megagrams or 2.5 million cubic meters is not subject to the requirement to obtain a federal operating permit for the landfill, unless the landfill is otherwise subject to federal operating permit requirements. For purposes of submitting a timely application for a federal operating permit, the owner of an MSW landfill subject to this article with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters on the effective date of EPA approval of the board's program under § 111(d) of the federal Clean Air Act, and otherwise not subject to federal operating permit requirements, shall submit an operating permit application as provided in 9VAC5-80-80 C, even if the design capacity report is submitted earlier.

D. When an MSW landfill subject to this article becomes closed, the owner is no longer subject to the requirement to maintain a federal operating permit for the landfill if the landfill is not otherwise subject to federal operating permit requirements and if either of the following conditions is met:

1. The landfill was never subject to the requirement for a control system under 9VAC5-40-5820 C 2; or

2. The owner meets the conditions for control system removal specified in 9VAC5-40-5820 C 2 e.

E. Activities required by or conducted pursuant to a CERCLA, RCRA, or board remedial action are not considered construction, reconstruction, or modification for the purposes of this article.

F. Each affected facility with a design capacity greater than 2.5 million megagrams or 2.5 million cubic meters shall demonstrate compliance with this article by demonstrating compliance with the provisions of Article 43.1 (9VAC5-40-5925 et seq.) of this chapter.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004; Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5810 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Active collection system" means a gas collection system that uses gas mover equipment.

"Active landfill" means a landfill in which solid waste is being placed or a landfill that is planned to accept waste in the future.

"CERCLA" means the federal Comprehensive Environmental Response, Compensation and Liability Act (42 USC § 9601 et seq.).

"Closed landfill" means a landfill in which solid waste is no longer being placed, and in which no additional solid wastes will be placed without first filing a notification of modification, as prescribed under 40 CFR 60.7(a)(4), with the board. Once a notification of modification has been filed, and additional solid waste is placed in the landfill, the landfill is no longer closed.

"Closure" means that point in time when a landfill becomes a closed landfill.

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

"Commercial waste" means all types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding construction, household, and industrial wastes.

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

"Controlled landfill" means any landfill at which collection and control systems are required under this article as a result of the nonmethane organic compounds emission rate. The landfill is considered controlled at the time a collection and control system design plan is submitted in compliance with 9VAC5-40-5820 C 2 a.

"Design capacity" means the maximum amount of solid waste a landfill can accept, as indicated in terms of volume or mass in the most recent permit issued by the department under Part V (9VAC20-81-400 et seq.) of the Solid Waste Management Regulations, plus any in-place waste not accounted for in the most recent permit, or as calculated using good engineering practices acceptable to the board. If the owner chooses to convert the design capacity from volume to mass or from mass to volume to demonstrate that its design capacity is less than (i) 1.0 million megagrams or 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams or 2.5 million cubic meters in the remaining areas of the Commonwealth, the calculation must include a site-specific density, which must be recalculated annually.

"Disposal facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for the disposal of solid waste.

"Emission rate cutoff" means the threshold annual emission rate to which a landfill compares its estimated emission rate to determine if control under the regulation is required.

"Enclosed combustor" means an enclosed firebox which maintains a relatively constant limited peak temperature generally using a limited supply of combustion air. An enclosed flare is considered an enclosed combustor.

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

"Flare" means an open combustor without enclosure or shroud.

"Gas mover equipment" means the equipment (i.e., fan, blower, compressor) used to transport landfill gas through the header system.

"Household waste" mean any solid waste, including garbage, trash and refuse, derived from households (including, but not limited to, single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreational areas). For the purposes of determining capacity as required by 9VAC5-40-5820 and NMOC emission rates as required by 9VAC5-40-5860, household waste includes sanitary waste (septage) in septic tanks.

"Industrial solid waste" means any solid waste generated by manufacturing or industrial processes that is not a hazardous waste regulated under Subtitle C (42 USC § 6921 et seq.) of RCRA (as reflected in 40 CFR Parts 264 and 265) and implemented by the department in 9VAC20 Chapter 60 (9VAC20-60, Virginia Hazardous Waste Management Regulations). Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer and agricultural chemicals; food and related products and byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing and foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Interior well" means any well or similar collection component located inside the perimeter of the landfill waste. A perimeter well located outside the landfilled waste is not an interior well.

"Landfill" means an area of land or an excavation in which wastes are placed for permanent disposal, and that is not a land application unit, surface impoundment, injection well, or waste pile as those terms are defined under 9VAC20-81.

"Landfill gas" means any gas derived from the decomposition of organic waste deposited in an MSW landfill or from the evolution of volatile organic species in the waste. Emissions from MSW landfills is equivalent to landfill gas emissions.

"Lateral expansion" means a horizontal expansion of the waste boundaries of an existing MSW landfill. A lateral expansion is not a modification unless it results in an increase in the design capacity of the landfill.

"Modification" means an increase in the permitted volume design capacity of the landfill by either horizontal or vertical expansion based on its permitted design capacity as of May 30, 1991. Modification does not occur until the owner commences construction on the horizontal or vertical expansion.

"Municipal solid waste landfill" or "MSW landfill" means an entire disposal facility in a contiguous geographical space where household waste is placed in or on land. An MSW landfill may also receive other types of solid wastes regulated under Subtitle D (42 USC § 6941 et seq.) of RCRA (as reflected in 40 CFR 257.2) and implemented by the department in 9VAC20-81 (Solid Waste Management Regulations) such as commercial solid waste, nonhazardous sludge, conditionally exempt small quantity generator waste, and nonhazardous industrial solid waste. Portions of an MSW landfill may be separated by access roads. An MSW landfill may be publicly or privately owned. An MSW landfill may be a new MSW landfill, an existing MSW landfill, or a lateral expansion.

"Municipal solid waste landfill emissions" or "MSW landfill emissions" means gas generated by the decomposition of organic waste deposited in an MSW landfill or derived from the evolution of organic compounds in the waste.

"NMOC" means nonmethane organic compounds, as measured according to the provisions of 9VAC5-40-5860 B through E.

"Nondegradable waste" means any waste that does not decompose through chemical breakdown or microbiological activity. Examples include, but are not limited to, concrete, municipal waste combustor ash, and metals.

"Passive collection system" means a gas collection system that solely uses positive pressure within the landfill to move the gas rather than using gas mover equipment.

"RCRA" means the federal Resource Conservation and Recovery Act (42 USC § 6901 et seq.).

"Refuse" means trash, rubbish, garbage, and other forms of solid or liquid waste, including, but not limited to, wastes resulting from residential, agricultural, commercial, industrial, institutional, trade, construction, land clearing, forest management, and emergency operations.

"Sludge" means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.

"Solid waste" means any garbage, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under 33 USC § 1342, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC § 2011 et seq.). For more detail, see 9VAC20-81-95 of the Solid Waste Management Regulations.

"Sufficient density" means any number, spacing, and combination of collection system components, including vertical wells, horizontal collectors, and surface collectors, necessary to maintain emission and migration control as determined by measures of performance set forth in this part.

"Sufficient extraction rate" means a rate sufficient to maintain a negative pressure at all wellheads in the collection system without causing air infiltration, including any wellheads connected to the system as a result of expansion or excess surface emissions, for the life of the blower.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004; Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-40-5820 Standard for air emissions

A. This section shall apply to affected facilities that have accepted waste any time since November 8, 1987, or have additional design capacity available for future waste deposition, and meet the design capacity and emission rate applicability criteria in subdivisions A 1 or A 2 of this section.

1. For affected facilities located in the Northern Virginia Volatile Organic Compound Emissions Control Area as designated in 9VAC5-20-206:

a. A design capacity greater than or equal to 1.0 million megagrams and 1.0 million cubic meters; and

b. A nonmethane organic compound emission rate of 23 megagrams per year or more as determined using test procedures under 9VAC5-40-5860.

2. For affected facilities located in the remaining areas of the Commonwealth:

a. A design capacity greater than or equal to 2.5 million megagrams or 2.5 million cubic meters; and

b. A nonmethane organic compound emission rate of 50 megagrams per year or more as determined using test procedures under 9VAC5-40-5860.

B. Each owner of an MSW landfill having a design capacity less than (i) 1.0 million megagrams or 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams or 2.5 million cubic meters in the remaining areas of the Commonwealth shall submit an initial design capacity report to the board as provided in 9VAC5-40-5880 C no later than June 30, 1999. The landfill may calculate design capacity in either megagrams or cubic meters for comparison with the design capacity applicability criteria in subsection A of this section. Any density conversions shall be documented and submitted with the report. Submittal of the initial design capacity report shall fulfill the requirements of this article except as provided for in subdivisions B 1 and B 2 of this section.

1. The owner shall submit to the board an amended design capacity report, as provided for in 9VAC5-40-5880 C 3. If the design capacity increase is the result of a modification, as defined in 9VAC5-40-5810 C, that was commenced on or after May 30, 1991, the landfill is subject to the new source performance standard in Article 5 of 9VAC5 Chapter 50 (9VAC5-50-410) instead of this article. If the design capacity increase is the result of a change in operating practices, density, or some other change that is not a modification, the landfill remains subject to this article.

2. When an increase in the maximum design capacity of a landfill exempted from the provisions of 9VAC5-40-5820 C, 9VAC5-40-5822, 9VAC5-40-5824, 9VAC5-40-5850, 9VAC5-40-5860, 9VAC5-40-5870, 9VAC5-40-5880, and 9VAC5-40-5890 on the basis of the design capacity applicability criteria in subsection A of this section results in a revised maximum design capacity equal to or greater than (i) 1.0 million megagrams or 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams or 2.5 million cubic meters in the remaining areas of the Commonwealth, the owner shall comply with the provisions of subsection C of this section.

C. Each owner of an MSW landfill having a design capacity greater than or equal to (i) 1.0 million megagrams and 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams and 2.5 million cubic meters in the remaining areas of the Commonwealth shall either install a collection and control system as provided in subdivision C 2 of this section or calculate an initial NMOC emission rate for the landfill using the procedures specified in 9VAC5-40-5860. The NMOC emission rate shall be recalculated annually, except as provided in 9VAC5-40-5880 D 1 b.

1. If the calculated NMOC emission rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall:

a. Submit an annual emission report to the board, except as provided for in 9VAC5-40-5880 D 1 b; and

b. Recalculate the NMOC emission rate annually using the procedures specified in 9VAC5-40-5860 B 1 until such time as the calculated NMOC emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, or the landfill is closed.

(1) If the NMOC emission rate, upon initial calculation or annual recalculation required in subdivision C 1 b of this section, is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall install a collection and control system in compliance with subdivision C 2 of this section.

(2) If the landfill is permanently closed, a closure notification shall be submitted to the board as provided for in 9VAC5-40-5880 F.

2. If the calculated NMOC emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall:

a. Submit a collection and control system design plan prepared by a professional engineer to the board within one year:

(1) The collection and control system as described in the plan shall meet the design requirements of subdivision C 2 b of this section.

(2) The collection and control system design plan shall include any alternatives to the operational standards, test methods, procedures, compliance measures, monitoring, recordkeeping or reporting provisions of 9VAC5-40-5822, 9VAC5-40-5850, 9VAC5-40-5860, 9VAC5-40-5870, 9VAC5-40-5880, and 9VAC5-40-5890 proposed by the owner.

(3) The collection and control system design plan shall either conform with specifications for active collection systems in 9VAC5-40-5824 or include a demonstration to the board's satisfaction of the sufficiency of the alternative provisions to 9VAC5-40-5824.

(4) The board will review the information submitted under subdivisions C 2 a (1), (2) and (3) of this section and either approve it, disapprove it, or request that additional information be submitted. Because of the many site-specific factors involved with landfill gas system design, alternative systems may be necessary. A wide variety of system designs are possible, such as vertical wells, combination horizontal and vertical collection systems, or horizontal trenches only, leachate collection components, and passive systems. All design plan changes shall be submitted to the board and may be implemented only upon approval of the board.

b. Install a collection and control system that captures the gas generated within the landfill as required by subdivision C 2 b (1) or (2) of this section within 30 months after the first annual report in which the emission rate equals or exceeds (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, unless Tier 2 or Tier 3 sampling demonstrates that the emission rate is less than (a) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (b) 50 megagrams per year in the remaining areas of the Commonwealth, as specified in 9VAC5-40-5880 E 1 or E 2.

(1) An active collection system shall:

(a) Be designed to handle the maximum expected gas flow rate from the entire area of the landfill that warrants control over the intended use period of the gas control or treatment system equipment;

(b) Collect gas from each area, cell, or group of cells in the landfill in which the initial solid waste has been placed for a period of:

(i) Five years or more if active; or

(ii) Two years or more if closed or at final grade;

(c) Collect gas at a sufficient extraction rate;

(d) Be designed to minimize off-site migration of subsurface gas.

(2) A passive collection system shall:

(a) Comply with the provisions specified in subdivisions C 2 b (1) (a), (b), and (d) of this section.

(b) Be installed with liners on the bottom and all sides in all areas in which gas is to be collected. The liners shall be installed as required under 9VAC20-81-130.

c. Route all the collected gas to a control system that complies with the requirements in either subdivision C 2 c (1), (2) or (3) of this section.

(1) An open flare designed and operated in accordance with 40 CFR 60.18.

(2) A control system designed and operated to reduce NMOC by 98 weight-percent, or, when an enclosed combustion device is used for control, to either reduce NMOC by 98 weight-percent or reduce the outlet NMOC concentration to less than 20 parts per million by volume, dry basis as hexane at 3.0% oxygen. The reduction efficiency or parts per million by volume shall be established by an initial compliance test to be completed no later than 180 days after the initial startup of the approved control system using the test methods specified in 9VAC5-40-5860 E.

(a) If a boiler or process heater is used as the control device, the landfill gas stream shall be introduced into the flame zone.

(b) The control device shall be operated within the parameter ranges established during the initial or most recent compliance test. The operating parameters to be monitored are specified in 9VAC5-40-5870.

(3) Route the collected gas to a treatment system that processes the collected gas for subsequent sale or use. All emissions from any atmospheric vent from the gas treatment system shall be subject to the requirements of subdivision C 2 c (1) or (2) of this section.

d. Operate the collection and control device installed to comply with this article in accordance with the provisions of 9VAC5-40-5822, 9VAC5-40-5850, and 9VAC5-40-5870.

e. The collection and control system may be capped or removed provided that all the conditions of subdivisions C 2 e (1), (2), and (3) of this section are met:

(1) The landfill shall be a closed landfill as defined in 9VAC5-40-5810 and under the requirements of 9VAC20-81-160. A closure report shall be submitted to the board as provided in 9VAC5-40-5880 F;

(2) The collection and control system shall have been in operation a minimum of 15 years; and

(3) Following the procedures specified in 9VAC5-40-5860 C, the calculated NMOC gas produced by the landfill shall be less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth on three successive test dates. The test dates shall be no less than 90 days apart and no more than 180 days apart.

D. When an MSW landfill subject to this article is closed, the owner is no longer subject to the requirement to maintain a federal operating permit for the landfill if the landfill is not otherwise subject to federal operating permit requirements if either of the following conditions are met:

1. The landfill was never subject to the requirement for a control system under 9VAC5-40-5820 C 2; or

2. The owner meets the conditions for control system removal specified in 9VAC5-40-5820 C 2 e.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004; Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-40-5822 Operational standards for collection and control systems

A. Each owner of an MSW landfill with a gas collection and control system used to comply with the provisions of 9VAC5-40-5820 C 2 b shall comply with the following requirements:

1. Operate the collection system such that gas is collected from each area, cell, or group of cells in the MSW landfill in which solid waste has been in place for:

a. Five years or more if active; or

b. Two years or more if closed or at final grade.

2. Operate the collection system with negative pressure at each wellhead except under the following conditions:

a. A fire or increased well temperature. The owner shall record instances when positive pressure occurs in efforts to avoid a fire. These records shall be submitted with the annual reports as provided in 9VAC5-40-5880 H 1;

b. Use of a geomembrane or synthetic cover. The owner shall develop acceptable pressure limits in the design plan; and

c. A decommissioned well. A well may experience a static positive pressure after shut down to accommodate for declining flows. All design changes shall be approved by the board.

3. Operate each interior wellhead in the collection system with a landfill gas temperature less than 55 degrees Celsius and with either a nitrogen level less than 20% or an oxygen level less than 5.0%. The owner may establish a higher operating temperature, nitrogen, or oxygen value at a particular well. A higher operating value demonstration shall show supporting data that the elevated parameter does not cause fires or significantly inhibit anaerobic decomposition by killing methanogens.

a. The nitrogen level shall be determined using Reference Method 3C in Appendix A of 40 CFR Part 60, unless an alternative method is established as allowed by 9VAC5-40-5820 C 2 a.

b. Unless an alternative method is established as allowed by 9VAC5-40-5820 C 2 a, the oxygen shall be determined by an oxygen meter using Reference Method 3A in Appendix A of 40 CFR Part 60 except that:

(1) The span shall be set so that the regulatory limit is between 20 and 50% of the span;

(2) A data recorder is not required;

(3) Only two calibration gases are required, a zero and span, and ambient air may be used as the span;

(4) A calibration error check is not required; and

(5) The allowable sample bias, zero drift, and calibration drift are ±10%.

4. Operate the collection system so that the methane concentration is less than 500 parts per million above background at the surface of the landfill. To determine if this level is exceeded, the owner shall conduct surface testing around the perimeter of the collection area and along a pattern that traverses the landfill at 30-meter intervals and where visual observations indicate elevated concentrations of landfill gas, such as distressed vegetation and cracks or seeps in the cover. The owner may establish an alternative traversing pattern that ensures equivalent coverage. A surface monitoring design plan shall be developed that includes a topographical map with the monitoring route and the rationale for any site-specific deviations from the 30-meter intervals. Areas with steep slopes or other dangerous areas may be excluded from the surface testing.

5. Operate the system such that all collected gases are vented to a control system designed and operated in compliance with 9VAC5-40-5820 C 2 c. In the event the collection or control system is inoperable, the gas mover system shall be shut down and all valves in the collection and control system contributing to venting of the gas to the atmosphere shall be closed within one hour.

6. Operate the control or treatment system at all times when the collected gas is routed to the system.

B. If monitoring demonstrates that the operational requirement in subdivision A 2, 3 or 4 of this section are not met, corrective action shall be taken as specified in 9VAC5-40-5850 C 3 through 5 or 9VAC5-40-5850 E. If corrective actions are taken as specified in 9VAC5-40-5850, the monitored exceedance is not a violation of the operational requirements in this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 12, eff. April 1, 1999; amended, Virginia Register Volume 20, Issue 8, eff. January 29, 2004.

9VAC5-40-5824 Specifications for active collection systems

A. Each owner seeking to comply with 9VAC5-40-5820 C 2 a shall site active collection wells, horizontal collectors, surface collectors, or other extraction devices at a sufficient density throughout all gas producing areas using the following procedures unless alternative procedures have been approved by the board as provided in 9VAC5-40-5820 C 2 a (3) and (4):

1. The collection devices within the interior and along the perimeter areas shall be certified to achieve comprehensive control of surface gas emissions by a professional engineer. The following issues shall be addressed in the design: depths of refuse, refuse gas generation rates and flow characteristics, cover properties, gas system expandability, leachate and condensate management, accessibility, compatibility with filling operations, integration with closure end use, air intrusion control, corrosion resistance, fill settlement, and resistance to the refuse decomposition heat.

2. The sufficient density of gas collection devices determined in subdivision A 1 of this section shall address landfill gas migration issues and augmentation of the collection system through the use of active or passive systems at the landfill perimeter or exterior.

3. The placement of gas collection devices determined in subdivision A 1 of this section shall control all gas producing areas, except as provided by subdivisions A 3 a and A 3 b of this section.

a. Any segregated area of asbestos or nondegradable material may be excluded from collection if documented as provided under 9VAC5-40-5890 F. The documentation shall provide the nature, date of deposition, location and amount of asbestos or nondegradable material deposited in the area, and shall be provided to the board upon request.

b. Any nonproductive area of the landfill may be excluded from control, provided that the total of all excluded areas can be shown to contribute less than 1.0% of the total amount of NMOC emissions from the landfill. The amount, location, and age of the material shall be documented and provided to the board upon request. A separate NMOC emissions estimate shall be made for each section proposed for exclusion, and the sum of all such sections shall be compared to the NMOC emissions estimate for the entire landfill. Emissions from each section shall be computed using the following equation:

Q_i = 2kL₀M_i(e^-kti)(C_NMOC)(3.6 X 10^-9)

where

Q_i = NMOC emission rate from the i^th section, megagrams per year

k = methane generation rate constant, year^-1

L₀ = methane generation potential, cubic meters per megagram solid waste

M_i = mass of the degradable solid waste in the i^th section, megagrams

t_i = age of the solid waste in the i^th section, years

C_NMOC = concentration of nonmethane organic compounds, parts per million by volume

3.6 X 10^-9 = conversion factor

The values for k and C_NMOC determined in field testing shall be used, if field testing has been performed in determining the NMOC emission rate or the radii of influence (this is distance from the well center to a point in the landfill where the pressure gradient applied by the blower or compressor approaches zero). If field testing has not been performed, the default values for k, L₀ and C_NMOC provided in 9VAC5-40-5860 B 1 or the alternative values from 9VAC5-40-5860 B 5 shall be used. The mass of nondegradable solid waste contained within the given section may be subtracted from the total mass of the section when estimating emissions provided the nature, location, age, and amount of the nondegradable material is documented as provided in subdivision A 3 a of this section.

B. Each owner seeking to comply with 9VAC5-40-5820 C 2 a (1) shall construct the gas collection devices using the following equipment or procedures:

1. The landfill gas extraction components shall be constructed of polyvinyl chloride (PVC), high density polyethylene (HDPE) pipe, fiberglass, stainless steel, or other nonporous, corrosion-resistant material of suitable dimensions to: convey projected amounts of gases; withstand installation, static, and settlement forces; and withstand planned overburden or traffic loads. The collection system shall extend as necessary to comply with emission and migration standards. Collection devices such as wells and horizontal collectors shall be perforated to allow gas entry without head loss sufficient to impair performance across the intended extent of control. Perforations shall be situated with regard to the need to prevent excessive air infiltration.

2. Vertical wells shall be placed so as not to endanger underlying liners and shall address the occurrence of water within the landfill. Holes and trenches constructed for piped wells and horizontal collectors shall be of sufficient cross section so as to allow for their proper construction and completion including, for example, centering of pipes and placement of gravel backfill. Collection devices shall be designed so as not to allow indirect short circuiting of air into the cover or refuse into the collection system or gas into the air. Any gravel used around pipe perforations should be of a dimension so as not to penetrate or block perforations.

3. Collection devices may be connected to the collection header pipes below or above the landfill surface. The connector assembly shall include a positive closing throttle valve, any necessary seals and couplings, access couplings and at least one sampling port. The collection devices shall be constructed of PVC, HDPE, fiberglass, stainless steel, or other nonporous material of suitable thickness.

C. Each owner seeking to comply with 9VAC5-40-5820 C 2 a (1) shall convey the landfill gas to a control system in compliance with 9VAC5-40-5820 C 2 c through the collection header pipe(s). The gas mover equipment shall be sized to handle the maximum gas generation flow rate expected over the intended use period of the gas moving equipment using the following procedures:

1. For existing collection systems, the flow data shall be used to project the maximum flow rate. If no flow data exists, the procedures in subdivision C 2 of this section shall be used.

2. For new collection systems, the maximum flow rate shall be in accordance with 9VAC5-40-5850 C 1.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 12, eff. April 1, 1999; amended, Virginia Register Volume 20, Issue 8, eff. January 29, 2004.

9VAC5-40-5830 Standard for fugitive dust/emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5840 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5850 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. Owners subject to 9VAC5-40-5820 shall comply with the provisions of Part III (9VAC20-81-100 et seq.) of 9VAC20 Chapter 81 (Solid Waste Management Regulations) pertaining to the control of landfill gases.

C. Except as provided in 9VAC5-40-5820 C 2 a (2), the specified methods in subdivisions C 1 through C 6 of this section shall be used to determine whether the gas collection system is in compliance with 9VAC5-40-5820 C 2 b.

1. For the purposes of calculating the maximum expected gas generation flow rate from the landfill to determine compliance with 9VAC5-40-5820 C 2 b (1) (a), one of the following equations shall be used. The k and L sub0 kinetic factors should be those published in the "Compilation of Air Pollutant Emission Factors (AP-42)" (see 9VAC5-20-21) or other site-specific values demonstrated to be appropriate and approved by the board. If k has been determined as specified in 9VAC5-40-5860 B 4, the value of k determined from the test shall be used. A value of no more than 15 years shall be used for the intended use period of the gas mover equipment. The active life of the landfill is the age of the landfill plus the estimated number of years until closure.

a. For sites with unknown year-to-year solid waste acceptance rate:

Q_M = 2L₀R(e^-kc - e^-kt)

where

Q_M = maximum expected gas generation flow rate, cubic meters per year

L₀ = methane generation potential, cubic meters per megagram solid waste

R = average annual acceptance rate, megagrams per year

k = methane generation rate constant, year^-1

t = age of the landfill at equipment installation plus the time the owner or operator intends to use the gas mover equipment or active life of the landfill, whichever is less. If the equipment is installed after closure, t is the age of the landfill at installation, years

c = time since closure, years (for an active landfill c = 0 and e^-kc = 1)

b. For sites with known year-to-year solid waste acceptance rate:

where

Q_M = maximum expected gas generation flow rate, cubic meters per year

k = methane generation rate constant, year^-1

L₀ = methane generation potential, cubic meters per megagram solid waste

M_i = mass of solid waste in the i^th section, megagrams

t_i = age of the i^th section, years

c. If a collection and control system has been installed, actual flow data may be used to project the maximum expected gas generation flow rate instead of, or in conjunction with, the equations in subdivisions C 1 a and b of this section. If the landfill is still accepting waste, the actual measured flow data will not equal the maximum expected gas generation rate, so calculations using the equations in subdivisions C 1 a or b of this section or other methods acceptable to the board shall be used to predict the maximum expected gas generation rate over the intended period of use of the gas control system equipment.

2. For the purposes of determining sufficient density of gas collectors for compliance with 9VAC5-40-5820 C 2 b (1) (b), the owner shall design a system of vertical wells, horizontal collectors, or other collection devices, acceptable to the board, capable of controlling and extracting gas from all portions of the landfill sufficient to meet all operational and performance standards.

3. For the purpose of demonstrating whether the gas collection system flow rate is sufficient to determine compliance with 9VAC5-40-5820 C 2 b (1) (c), the owner shall measure gauge pressure in the gas collection header at each individual well, monthly. If a positive pressure exists, action shall be initiated to correct the exceedance within five calendar days, except for the three conditions allowed under 9VAC5-40-5822 A 2. If negative pressure cannot be achieved without excess air infiltration within 15 calendar days of the first measurement, the gas collection system shall be expanded to correct the exceedance within 120 days of the initial measurement of positive pressure. Any attempted corrective measure shall not cause exceedances of other operational or performance standards. An alternative timeline for correcting the exceedance may be submitted to the board for approval.

4. Owners are not required to expand the system as required in subdivision C 3 of this section during the first 180 days after gas collection system startup.

5. For the purpose of identifying whether excess air infiltration into the landfill is occurring, the owner shall monitor each well monthly for temperature and nitrogen or oxygen as provided in 9VAC5-40-5822 A 3. If a well exceeds one of these operating parameters, action shall be initiated to correct the exceedance within five calendar days. If correction of the exceedance cannot be achieved within 15 calendar days of the first measurement, the gas collection system shall be expanded to correct the exceedance within 120 days of the initial exceedance. Any attempted corrective measure shall not cause exceedances of other operational or performance standards. An alternative timeline for correcting the exceedance may be submitted to the board for approval.

6. An owner seeking to demonstrate compliance with 9VAC5-40-5820 C 2 b (1) (d) through the use of a collection system not conforming to the specifications provided in 9VAC5-40-5824 shall provide information acceptable to the board as specified in 9VAC5-40-5820 C 2 a (3) demonstrating that off-site migration is being controlled.

D. For purposes of compliance with 9VAC5-40-5822 A 1, each owner of a controlled landfill shall place each well or design component as specified in the approved design plan as provided in 9VAC5-40-5820 C 2 a. Each well shall be installed no later than 60 days after the date on which the initial solid waste has been in place for a period of:

1. Five years or more if active; or

2. Two years or more if closed or at final grade.

E. The following procedures shall be used for compliance with the surface methane operational standard as provided in 9VAC5-40-5822 A 4.

1. After installation of the collection system, the owner shall monitor surface concentrations of methane along the entire perimeter of the collection area and along a pattern that traverses the landfill at 30-meter intervals (or a site-specific established spacing) for each collection area on a quarterly basis using an organic vapor analyzer, flame ionization detector, or other portable monitor meeting the specifications provided in subsection F of this section.

2. The background concentration shall be determined by moving the probe inlet upwind and downwind outside the boundary of the landfill at a distance of at least 30 meters from the perimeter wells.

3. Surface emission monitoring shall be performed in accordance with § 4.3.1 of Reference Method 21 of Appendix A of 40 CFR Part 60, except that the probe inlet shall be placed within 5 to 10 centimeters of the ground. Monitoring shall be performed during typical meteorological conditions.

4. Any reading of 500 parts per million or more above background at any location shall be recorded as a monitored exceedance and the actions specified in subdivisions E 4 a through e of this section shall be taken. As long as the specified actions are taken, the exceedance is not a violation of the operational requirements of 9VAC5-40-5822 A 4.

a. The location of each monitored exceedance shall be marked and the location recorded.

b. Cover maintenance or adjustments to the vacuum of the adjacent wells to increase the gas collection in the vicinity of each exceedance shall be made and the location shall be remonitored within 10 calendar days of detecting the exceedance.

c. If the remonitoring of the location shows a second exceedance, additional corrective action shall be taken and the location shall be monitored again within 10 days of the second exceedance. If the remonitoring shows a third exceedance for the same location, the action specified in subdivision E 4 e of this section shall be taken, and no further monitoring of that location is required until the action specified in subdivision E 4 e of this section has been taken.

d. Any location that initially showed an exceedance but has a methane concentration less than 500 parts per million methane above background at the 10-day remonitoring specified in subdivision E 4 b or c of this section shall be remonitored one month from the initial exceedance. If the one-month remonitoring shows a concentration less than 500 parts per million above background, no further monitoring of that location is required until the next quarterly monitoring period. If the 1-month remonitoring shows an exceedance, the actions specified in subdivision E 4 c or e of this section shall be taken.

e. For any location where monitored methane concentration equals or exceeds 500 parts per million above background three times within a quarterly period, a new well or other collection device shall be installed within 120 calendar days of the initial exceedance. An alternative remedy to the exceedance, such as upgrading the blower, header pipes or control device, and a corresponding timeline for installation may be submitted to the board for approval.

5. The owner shall implement a program to monitor for cover integrity and implement cover repairs as necessary on a monthly basis.

F. Each owner seeking to comply with the provisions in subsection E of this section shall comply with the following instrumentation specifications and procedures for surface emission monitoring devices:

1. The portable analyzer shall meet the instrument specifications provided in § 3 of Reference Method 21 of Appendix A of 40 CFR Part 60, except that "methane" shall replace all references to VOC.

2. The calibration gas shall be methane, diluted to a nominal concentration of 500 parts per million in air.

3. To meet the performance evaluation requirements in § 3.1.3 of Reference Method 21 of Appendix A of 40 CFR Part 60, the instrument evaluation procedures of § 4.4 of Reference Method 21 of Appendix A of 40 CFR Part 60 shall be used.

4. The calibration procedures provided in § 4.2 of Reference Method 21 of Appendix A of 40 CFR Part 60 shall be followed immediately before commencing a surface monitoring survey.

G. The provisions of this article apply at all times, except during periods of startup, shutdown, or malfunction, provided that the duration of startup, shutdown, or malfunction shall not exceed five days for collection systems and shall not exceed one hour for treatment or control devices. This subsection shall not apply to the emission standards set forth in 9VAC5-40-5830 and 9VAC5-40-5840.

H. With regard to startup, shutdown, and malfunction, the provisions of 9VAC5-40-5850 A and 9VAC5-40-5910 shall apply to the emission standards set forth in 9VAC5-40-5830 and 9VAC5-40-5840.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004; Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-40-5855 Compliance schedule

A. Except as provided for under subsection B of this section, the owner of a municipal solid waste landfill subject to this article located outside the Northern Virginia Volatile Organic Compound Emissions Control Area and with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters shall plan, award contracts, and install emission collection and control equipment capable of meeting the standards established under 9VAC5-40-5820 within specific periods after the date the initial NMOC emission rate report under 9VAC5-40-5880 D 1 a shows NMOC emissions equal or exceed 50 megagrams per year, as follows:

1. The collection and control design plan shall be submitted to the board within 12 months.

2. Construction contracts shall be awarded within 18 months.

3. Construction shall be initiated within 20 months.

4. Construction shall be completed within 28 months.

5. Final compliance shall be achieved within 30 months after the date the initial annual emission rate report shows NMOC emissions greater than or equal to 50 megagrams per year.

B. For each MSW landfill located outside of the Northern Virginia Volatile Organic Compound Emissions Control Area with a design capacity of 2.5 million megagrams and 2.5 million cubic meters and with an NMOC rate less than 50 megagrams per year on April 1, 1999, installation of collection and control systems capable of meeting the standards established under 9VAC5-40-5820 shall be accomplished within 30 months of the date when the condition in 9VAC5-40-5820 C is met (i.e., the date of the first annual NMOC emission rate which equals or exceeds 50 megagrams per year), as follows:

1. The collection and control design plan shall be submitted to the board within 12 months.

2. Construction contracts shall be awarded within 18 months.

3. Construction shall be initiated within 20 months.

4. Construction shall be completed within 28 months.

5. Final compliance shall be achieved within 30 months after the date the initial annual emission rate report shows NMOC emissions greater than or equal to 50 megagrams per year.

C. Except as provided for under subsection D of this section, the owner of a municipal solid waste landfill subject to this article in the Northern Virginia Volatile Organic Compound Emissions Control Area, with a design capacity greater than or equal to 1.0 million megagrams and 1.0 million cubic meters shall plan, award contracts, and install emission collection and control equipment capable of meeting the standards established under 9VAC5-40-5820 by December 30, 1999, provided the initial NMOC emission rate report shows NMOC emissions equal or exceed 23 megagrams per year.

D. For each MSW landfill in the Northern Virginia Volatile Organic Compound Emissions Control Area, with a design capacity greater than or equal to 1.0 million megagrams and 1.0 million cubic meters and with an NMOC rate less than 23 megagrams per year on April 1, 1999, installation of collection and control systems capable of meeting the standards established under 9VAC5-40-5820 shall be accomplished within 30 months of the date when the condition in 9VAC5-40-5820 C is met (i.e., the date of the first annual NMOC emission rate which equals or exceeds 23 megagrams per year), as follows:

1. The collection and control design plan shall be submitted to the board within 12 months.

2. Construction contracts shall be awarded within 18 months.

3. Construction shall be initiated within 20 months.

4. Construction shall be completed within 28 months.

5. Final compliance shall be achieved within 30 months after the date the initial annual emission rate report shows NMOC emissions greater than or equal to 23 megagrams per year.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 12, eff. April 1, 1999; amended, Virginia Register Volume 20, Issue 8, eff. January 29, 2004.

9VAC5-40-5860 Test methods and procedures

A. The provisions of 9VAC5-40-30 (Emission testing) or 40 CFR 60.8, whichever is more restrictive, apply.

B. 1. The owner shall calculate the NMOC emission rate using either the equation provided in subdivision B 1 a of this section or the equation provided in subdivision B 1 b of this section. Both equations may be used if the actual year-to-year solid waste acceptance rate is known, as specified in subdivision B 1 a of this section, for part of the life of the landfill and the actual year-to-year solid waste acceptance rate is unknown, as specified in subdivision B 1 b of this section, for part of the life of the landfill. The values to be used in both equations are 0.05 per year for k, 170 cubic meters per megagram for L₀, and 4,000 parts per million by volume as hexane for the C_NMOC. For landfills located in geographical areas with a 30-year average annual precipitation of less than 25 inches, as measured at the nearest representative official meteorological site, the k value to be used is 0.02 per year.

a. The following equation shall be used if the actual year-to-year solid waste acceptance rate is known.

M_NMOC = 2kL₀M_i(e^-kti) (C_NMOC) (3.6 X 10^-9)

where

M_NMOC = Total NMOC emission rate from the landfill, megagrams per year

k = methane generation rate constant, year^-1

L₀ = methane generation potential, cubic meters per megagram solid waste

M_i = mass of solid waste in the i^th section, megagrams

t_i = age of the i^th section, years

C_NMOC = concentration of NMOC, parts per million by volume as hexane

3.6 X 10^-9 = conversion factor

The mass of nondegradable solid waste may be subtracted from the total mass of solid waste in a particular section of the landfill when calculating the value for M_i if documentation of the nature and amounts of such wastes is obtained.

b. The following equation shall be used if the actual year-to-year solid waste acceptance rate is unknown.

M_NMOC = 2L₀ R(e^-kc -e^-kt)(C_NMOC)(3.6 X 10^-9)

where

M_NMOC = mass emission rate of NMOC, megagrams per year

L₀ = methane generation potential, cubic meters per megagram solid waste

R = average annual acceptance rate, megagrams per year

k = methane generation rate constant, year^-1

t = age of landfill, years

C_NMOC = concentration of NMOC, parts per million by volume as hexane

c = time since closure, years. For active landfill c = 0 and e^-kc = 1

3.6 X 10^-9 = conversion factor

The mass of nondegradable solid waste may be subtracted from the total mass of solid waste in a particular section of the landfill when calculating the value of R if documentation of the nature and amounts of such waste is maintained.

2. Tier 1. The owner shall compare the calculated NMOC mass emission rate to the following emission rate applicability criteria: (i) in the Northern Virginia Volatile Organic Compound Emissions Control Area, 23 megagrams per year or (ii) in the remaining areas of the Commonwealth, 50 megagrams per year.

a. If the NMOC emission rate calculated in subdivision B 1 of this section is (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, then the owner shall submit an emission rate report as provided in 9VAC5-40-5880 D 1, and shall recalculate the NMOC mass emission rate annually as required under 9VAC5-40-5820 C 1.

b. If the calculated NMOC emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, then the owner shall either comply with 9VAC5-40-5820 C 2, or determine a site-specific NMOC concentration and recalculate the NMOC emission rate using the procedures provided in subdivision B 3 of this section.

3. Tier 2. The owner shall determine the NMOC concentration using the following sampling procedure. The owner shall install at least two sample probes per hectare of landfill surface that has retained waste for at least two years. If the landfill is larger than 25 hectares in area, only 50 samples are required. The sample probes should be located to avoid known areas of nondegradable solid waste. The owner shall collect and analyze one sample of landfill gas from each probe to determine the NMOC concentration using Reference Method 25C of Appendix A of 40 CFR Part 60 or Reference Method 18 of Appendix A of 40 CFR Part 60. If using Reference Method 18 of Appendix A of 40 CFR Part 60, the minimum list of compounds to be tested shall be those published in the "Compilation of Air Pollutant Emission Factors (AP-42)" (see 9VAC5-20-21). If composite sampling is used, equal volumes shall be taken from each sample probe. If more than the required number of samples are taken, all samples shall be used in the analysis. The owner shall divide the NMOC concentration from Reference Method 25C of Appendix A of 40 CFR Part 60 by six to convert from C_NMOC as carbon to C_NMOC as hexane.

a. The owner shall recalculate the NMOC mass emission rate using the equations provided in subdivision B 1 a or B 1 b of this section and using the average NMOC concentration from the collected samples instead of the default value in the equation provided in subdivision B 1 of this section.

b. If the resulting mass emission rate calculated using the site-specific NMOC concentration is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, then the owner shall either comply with 9VAC5-40-5820 C 2, or determine the site-specific methane generation rate constant and recalculate the NMOC emission rate using the site-specific methane generation rate using the procedure specified in subdivision B 4 of this section.

c. If the resulting NMOC mass emission rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall submit a periodic estimate of the emission rate report as provided in 9VAC5-40-5880 D 1 and retest the site-specific NMOC concentration every five years using the methods specified in this section.

4. Tier 3. The site-specific methane generation rate constant shall be determined using the procedures provided in Reference Method 2E of Appendix A of 40 CFR Part 60. The owner shall estimate the NMOC mass emission rate using equations in subdivision B 1 a or B 1 b of this section and using a site-specific methane generation rate constant k, and the site-specific NMOC concentration as determined in subdivision B 3 of this section instead of the default values provided in subdivision B 1 of this section. The owner shall compare the resulting NMOC mass emission rate to the following emission rate applicability criteria: (i) in the Northern Virginia Volatile Organic Compound Emissions Control Area, 23 megagrams per year or (ii) in the remaining areas of the Commonwealth, 50 megagrams per year.

a. If the NMOC mass emission rate as calculated using the site-specific methane generation rate and concentration of NMOC is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, the owner shall comply with 9VAC5-40-5820 C 2.

b. If the NMOC mass emission rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, then the owner shall submit a periodic emission rate report as provided in 9VAC5-40-5880 D 1 and shall recalculate the NMOC mass emission rate annually, as provided in 9VAC5-40-5880 D 1 using the equations in subdivision B 1 of this section and using the site-specific methane generation rate constant and NMOC concentration obtained in subdivision B 3 of this section. The calculation of the methane generation rate constant is performed only once, and the value obtained from this test shall be used in all subsequent annual NMOC emission rate calculations.

5. The owner may use other methods to determine the NMOC concentration or a site-specific k as an alternative method required in subdivisions B 3 and B 4 of this section if the method has been approved by the board.

C. After the installation of a collection and control system in compliance with 9VAC5-40-5850, the owner shall calculate the NMOC emission rate for purposes of determining when the system can be removed as provided in 9VAC5-40-5820 C 2 e, using the following equation:

M_NMOC = 1.89 X 10^-3 Q_LFG C_NMOC

where

M_NMOC = mass emission rate of NMOC, megagrams per year

Q_LFG = flow rate of landfill gas, cubic meters per minute

C_NMOC = NMOC concentration, parts per million by volume as hexane

1. The flow rate of landfill gas, Q_LFG, shall be determined by measuring the total landfill gas flow rate at the common header pipe that leads to the control device using a gas flow measuring device calibrated according to the provisions of § 4 of Reference Method 2E of Appendix A of 40 CFR Part 60.

2. The average NMOC concentration, C_NMOC, shall be determined by collecting and analyzing landfill gas sampled from the common header pipe before the gas moving or condensate removal equipment using the procedures in Reference Method 25C or Reference Method 18 of Appendix A of 40 CFR Part 60. If using Reference Method 18 of Appendix A of 40 CFR Part 60, the minimum list of compounds to be tested shall be those published in the "Compilation of Air Pollutant Emission Factors (AP-42)" (see 9VAC5-20-21). The sample location on the common header pipe shall be before any condensate removal or other gas refining units. The owner shall divide the NMOC concentration from Reference Method 25C of Appendix A of 40 CFR Part 60 by six to convert from C_NMOC as carbon to C_NMOC as hexane.

3. The owner may use an alternative method to determine landfill gas flow rate and NMOC concentration if the method has been approved by the board.

D. When calculating emissions for prevention of significant deterioration purposes, the owner of each MSW landfill subject to the provisions of this article shall estimate the NMOC emission rate for comparison to the prevention of significant deterioration major source and significance levels in Article 8 (9VAC5-80-1700 et seq.) of Part II of 9VAC5 Chapter 80 using the "Compilation of Air Pollutant Emission Factors (AP-42)" (see 9VAC5-20-21) or other measurement procedures acceptable to the board. If a collection system, which complies with the provisions in 9VAC5-40-5820 C 2 is already installed, the owner shall estimate the NMOC emission rate using the procedures provided in subsection C of this section.

E. For the compliance test required in 9VAC5-40-5820 C 2 c (2), Reference Method 25 or Reference Method 18 of Appendix A of 40 CFR Part 60 shall be used to determine compliance with 98 weight-percent efficiency or the 20 ppmv outlet concentration level, unless an alternative method to demonstrate compliance has been approved by the board as provided by 9VAC5-40-5820 C 2 a (2). If using Reference Method 18 of Appendix A of 40 CFR Part 60, the minimum list of compounds to be tested shall be those published in the "Compilation of Air Pollutant Emission Factors (AP-42)" (see 9VAC5-20-21). The following equation shall be used to calculate efficiency:

Control Efficiency = (NMOC_in - NMOC_out)/(NMOC_in)

where

NMOC_in = mass of NMOC entering control device

NMOC_out = mass of NMOC exiting control device

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004.

9VAC5-40-5870 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply.

B. Except as provided in 9VAC5-40-5820 C 2 a (2), the provisions of subsections C through H of this section apply.

C. Each owner seeking to comply with 9VAC5-40-5820 C 2 b (1) for an active gas collection system shall install a sampling port and a thermometer, other temperature measuring device, or an access port for temperature measurements at each wellhead and:

1. Measure the gauge pressure in the gas collection header on a monthly basis as provided in 9VAC5-40-5850 C 3; and

2. Monitor nitrogen or oxygen concentration in the landfill gas on a monthly basis as provided in 9VAC5-40-5850 C 5; and

3. Monitor temperature of the landfill gas on a monthly basis as provided in 9VAC5-40-5850 C 5.

D. Each owner seeking to comply with 9VAC5-40-5820 C 2 c using an enclosed combustor shall calibrate, maintain, and operate according to the manufacturer's specifications, the following equipment.

1. A temperature monitoring device equipped with a continuous recorder and having a minimum accuracy of ± 1.0 percent of the temperature being measured expressed in degrees Celsius or ± 0.5 degrees Celsius, whichever is greater. A temperature monitoring device is not required for boilers or process heaters with design heat input capacity equal to or greater than 44 megawatts.

2. A device that records flow to or bypass of the control device. The owner shall either:

a. Install, calibrate, and maintain a gas flow rate measuring device that shall record the flow to the control device at least every 15 minutes; or

b. Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration. A visual inspection of the seal or closure mechanism shall be performed at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.

E. Each owner seeking to comply with 9VAC5-40-5820 C 2 c using an open flare shall install, calibrate, maintain, and operate according to the manufacturer's specifications the following equipment:

1. A heat sensing device, such as an ultraviolet beam sensor or thermocouple, at the pilot light or the flame itself to indicate the continuous presence of a flame.

2. A device that records flow to or bypass of the flare. The owner shall either:

a. Install, calibrate, and maintain a gas flow rate measuring device that shall record the flow to the control device at least every 15 minutes; or

b. Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration. A visual inspection of the seal or closure mechanism shall be performed at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.

F. Each owner seeking to demonstrate compliance with 9VAC5-40-5820 C 2 c using a device other than an open flare or an enclosed combustor shall provide information acceptable to the board as provided in 9VAC5-40-5820 C 2 a (2) describing the operation of the control device, the operating parameters that would indicate proper performance, and appropriate monitoring procedures. The board will review the information and either approve it, or request that additional information be submitted. The board may specify additional appropriate monitoring procedures.

G. Each owner seeking to install a collection system that does not meet the specifications in 9VAC5-40-5824 or seeking to monitor alternative parameters to those required by 9VAC5-40-5822, 9VAC5-40-5850, 9VAC5-40-5860, and 9VAC5-40-5870 shall provide information acceptable to the board as provided in 9VAC5-40-5820 C 2 a (2) and (3) describing the design and operation of the collection system, the operating parameters that would indicate proper performance, and appropriate monitoring procedures. The board may specify additional appropriate monitoring procedures.

H. Each owner seeking to demonstrate compliance with 9VAC5-40-5850 E, shall monitor surface concentrations of methane according to the instrument specifications and procedures provided in 9VAC5-40-5850 F. Any closed landfill that has no monitored exceedances of the operational standard in three consecutive quarterly monitoring periods may skip to annual monitoring. Any methane reading of 500 parts per million or more above background detected during the annual monitoring returns the frequency for that landfill to quarterly monitoring.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004.

9VAC5-40-5880 Reporting

A. The provisions of 9VAC5-40-5840 (Notification, records and reporting) apply.

B. Except as provided in 9VAC5-40-5820 C 2 a (2), the provisions of subsections C through I of this section apply.

C. Each owner subject to the requirements of this article shall submit an initial design capacity report to the board.

1. The initial design capacity report shall be submitted no later than June 30, 1999.

2. The initial design capacity report shall contain the following information:

a. A map or plot of the landfill, providing the size and location of the landfill, and identifying all areas where solid waste may be landfilled according to the permit issued by the department under Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 81 (Solid Waste Management Regulations);

b. The maximum design capacity of the landfill. Where the maximum design capacity is specified in a permit issued by the department under Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 81 (Solid Waste Management Regulations), a copy of the permit specifying the maximum design capacity may be submitted as part of the report. If the maximum design capacity of the landfill is not specified in the permit, the maximum design capacity shall be calculated using good engineering practices acceptable to the board. The calculations shall be provided, along with the relevant parameters as part of the report. The board may request other reasonable information as may be necessary to verify the maximum design capacity of the landfill.

3. An amended design capacity report shall be submitted to the board providing notification of an increase in the design capacity of the landfill within 90 days of an increase in the maximum design capacity of the landfill to or above (i) 1.0 million megagrams and 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams and 2.5 million cubic meters in the remaining areas of the Commonwealth. This increase in design capacity may result from an increase in the permitted volume of the landfill or an increase in the density as documented in the annual recalculation required in 9VAC5-40-5890 H.

D. Each owner subject to the requirements of this article shall submit an NMOC emission rate report to the board initially and annually thereafter, except as provided for in subdivisions D 1 b or D 3 of this section. The board may request such additional information as may be necessary to verify the reported NMOC emission rate.

1. The NMOC emission rate report shall contain an annual or five-year estimate of the NMOC emission rate calculated using the formula and procedures provided in 9VAC5-40-5860 B or C, as applicable.

a. The initial NMOC emission rate report shall be submitted by June 30, 1999, and may be combined with the initial design capacity report required in subsection C of this section. Subsequent NMOC emission rate reports shall be submitted annually thereafter, except as provided for in subdivisions D 1 b and D 3 of this section.

b. If the estimated NMOC emission rate as reported in the annual report to the board is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth in each of the next five consecutive years, the owner may elect to submit an estimate of the NMOC emission rate for the next five-year period in lieu of the annual report. This estimate shall include the current amount of solid waste-in-place and the estimated waste acceptance rate for each year of the five years for which an NMOC emission rate is estimated. All data and calculations upon which this estimate is based shall be provided to the board. This estimate shall be revised at least once every five years. If the actual waste acceptance rate exceeds the estimated waste acceptance rate in any year reported in the five-year estimate, a revised five-year estimate shall be submitted to the board. The revised estimate shall cover the five-year period beginning with the year in which the actual waste acceptance rate exceeded the estimated waste acceptance rate.

2. The NMOC emission rate report shall include all the data, calculations, sample reports and measurements used to estimate the annual or five-year emissions.

3. Each owner subject to the requirements of this article is exempted from the requirements of subdivisions D 1 and 2 of this section, after the installation of a collection and control system in compliance with 9VAC5-40-5820 C 2, during such time as the collection and control system is in operation and in compliance with 9VAC5-40-5822 and 9VAC5-40-5850.

E. Each owner subject to the provisions of 9VAC5-40-5820 C 2 a shall submit a collection and control system design plan to the board within one year of the first report, required under subdivision D of this section, in which the emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, except as follows:

1. If the owner elects to recalculate the NMOC emission rate after Tier 2 NMOC sampling and analysis as provided in 9VAC5-40-5860 B 3 and the resulting rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, annual periodic reporting shall be resumed, using the Tier 2 determined site-specific NMOC concentration, until the calculated emission rate is greater than or equal to (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, or the landfill is closed. The revised NMOC emission rate report, with the recalculated emission rate based on NMOC sampling and analysis, shall be submitted within 180 days of the first calculated exceedance of the emission rate applicability criteria.

2. If the owner elects to recalculate the NMOC emission rate after determining a site-specific methane generation rate constant (k), as provided in Tier 3 in 9VAC5-40-5860 B 4, and the resulting NMOC emission rate is less than (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth, annual periodic reporting shall be resumed. The resulting site-specific methane generation rate constant (k) shall be used in the emission rate calculation until such time as the emissions rate calculation results in an exceedance. The revised NMOC emission rate report based on the provisions of 9VAC5-40-5860 B 4 and the resulting site-specific methane generation rate constant (k) shall be submitted to the board within one year of the first calculated emission rate exceeding (i) 23 megagrams per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams per year in the remaining areas of the Commonwealth.

F. Each owner of a controlled landfill shall submit a closure report to the board within 30 days of waste acceptance cessation. The board may request additional information as may be necessary to verify that permanent closure has taken place in accordance with the requirements of 9VAC20-81-160. If a closure report has been submitted to the board, no additional wastes may be placed into the landfill without obtaining a permit issued by the department under Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 81 (Solid Waste Management Regulations).

G. Each owner of a controlled landfill shall submit an equipment removal report to the board 30 days prior to removal or cessation of operation of the control equipment.

1. The equipment removal report shall contain all of the following items:

a. A copy of the closure report submitted in accordance with subsection F of this section;

b. A copy of the initial compliance test report demonstrating that the 15-year minimum control period has expired; and

c. Dated copies of three successive NMOC emission rate reports demonstrating that the landfill is no longer producing (i) 23 megagrams or greater of NMOC per year in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 50 megagrams or greater of NMOC per year in the remaining areas of the Commonwealth.

2. The board may request such additional information as may be necessary to verify that all of the conditions for removal in 9VAC5-40-5820 C 2 e have been met.

H. Each owner of a landfill seeking to comply with 9VAC5-40-5820 C 2 using an active collection system designed in accordance with 9VAC5-40-5820 C 2 b shall submit to the board annual reports of the recorded information in subdivisions H 1 through H 6 of this section. The initial annual report shall be submitted within 180 days of installation and startup of the collection and control system, and shall include the initial compliance test report. For enclosed combustion devices and flares, reportable exceedances are defined under 9VAC5-40-5890 E.

1. Value and length of time for exceedance of applicable parameters monitored under 9VAC5-40-5870 C, D, E, and F.

2. Description and duration of all periods when the gas stream is diverted from the control device through a bypass line or the indication of bypass flow as specified under 9VAC5-40-5870.

3. Description and duration of all periods when the control device was not operating for a period exceeding one hour and length of time the control device was not operating.

4. All periods when the collection system was not operating in excess of five days.

5. The location of each exceedance of the 500 parts per million methane concentration as provided in 9VAC5-40-5822 A 4 and the concentration recorded at each location for which an exceedance was recorded in the previous month.

6. The date of installation and the location of each well or collection system expansion added pursuant to subdivisions C 3, D, and E 4 of 9VAC5-40-5850.

I. Each owner seeking to comply with 9VAC5-40-5820 C 2 a shall include the following information with the initial compliance test report:

1. A diagram of the collection system showing collection system positioning including all wells, horizontal collectors, surface collectors, or other gas extraction devices, including the locations of any areas excluded from collection and the proposed sites for the future collection system expansion;

2. The data upon which the sufficient density of wells, horizontal collectors, surface collectors, or other gas extraction devices and the gas mover equipment sizing are based;

3. The documentation of the presence of asbestos or nondegradable material for each area from which collection wells have been excluded based on the presence of asbestos or nondegradable material;

4. The sum of the gas generation flow rates for all areas from which collection wells have been excluded based on nonproductivity and the calculations of gas generation flow rate for each excluded area; and

5. The provisions for increasing gas mover equipment capacity with increased gas generation flow rate, if the present gas mover equipment is inadequate to move the maximum flow rate expected over the life of the landfill; and

6. The provisions for the control of off-site migration.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004; Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-40-5890 Recordkeeping

A. The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

B. Except as provided in 9VAC5-40-5820 C 2 a (2), the provisions of subsections C through G of this section apply.

C. Each owner of an MSW landfill subject to the provisions of 9VAC5-40-5820 C shall keep for at least five years up-to-date, readily accessible, on-site records of the design capacity report which triggered 9VAC5-40-5820 C, the current amount of solid waste in-place, and the year-by-year waste acceptance rate. Off-site records may be maintained if they are retrievable within four hours. Either paper copy or electronic formats are acceptable.

D. Each owner of a controlled landfill shall keep up-to-date, readily accessible records for the life of the control equipment of the data listed in subdivisions D 1 through D 4 of this section as measured during the initial compliance test or compliance determination. Records of subsequent tests or monitoring shall be maintained for a minimum of five years. Records of the control device vendor specifications shall be maintained until removal.

1. Where an owner subject to the provisions of this article seeks to demonstrate compliance with 9VAC5-40-5820 C 2 b:

a. The maximum expected gas generation flow rate as calculated in 9VAC5-40-5850 C 1. The owner may use an alternative method to determine the maximum gas generation flow rate, if the method has been approved by the board.

b. The density of wells, horizontal collectors, surface collectors, or other gas extraction devices determined using the procedures specified in 9VAC5-40-5824 A 1.

2. Where an owner subject to the provisions of this article seeks to demonstrate compliance with 9VAC5-40-5820 C 2 c through use of an enclosed combustion device other than a boiler or process heater with a design heat input capacity equal to or greater than 44 megawatts:

a. The average combustion temperature measured at least every 15 minutes and averaged over the same time period of the compliance test.

b. The percent reduction of NMOC determined as specified in 9VAC5-40-5820 C 2 c (2) achieved by the control device.

3. Where an owner subject to the provisions of this article seeks to demonstrate compliance with 9VAC5-40-5820 C 2 c (2) (a) through use of a boiler or process heater of any size: a description of the location at which the collected gas vent stream is introduced into the boiler or process heater over the same time period of the compliance testing.

4. Where an owner subject to the provisions of this article seeks to demonstrate compliance with 9VAC5-40-5820 C 2 c (1) through use of an open flare, the flare type (i.e., steam-assisted, air-assisted, or nonassisted), all visible emission readings, heat content determination, flow rate or bypass flow rate measurements, and exit velocity determinations made during the compliance test as specified in 40 CFR 60.18; continuous records of the flare pilot flame or flare flame monitoring and records of all periods of operations during which the pilot flame of the flare flame is absent.

E. Each owner of a controlled landfill subject to the provisions of this article shall keep for five years up-to-date, readily accessible continuous records of the equipment operating parameters specified to be monitored in 9VAC5-40-5870 as well as up-to-date, readily accessible records for periods of operation during which the parameter boundaries established during the most recent compliance test are exceeded.

1. The following constitute exceedances that shall be recorded and reported under 9VAC5-40-5880 H:

a. For enclosed combustors except for boilers and process heaters with design heat input capacity of 44 megawatts (150 million British thermal units per hour) or greater, all three-hour periods of operation during which the average combustion temperature was more than 28 degrees Celsius below the average combustion temperature during the most recent compliance test at which compliance with 9VAC5-40-5820 C 2 c was determined.

b. For boilers or process heaters, whenever there is a change in the location at which the vent stream is introduced into the flame zone as required under subdivision D 3 of this section.

2. Each owner subject to the provisions of this article shall keep up-to-date, readily accessible continuous records of the indication of flow to the control device or the indication of bypass flow or records of monthly inspections of car-seals or lock-and-key configurations used to seal bypass lines, specified under 9VAC5-40-5870.

3. Each owner subject to the provisions of this article who uses a boiler or process heater with a design heat input capacity of 44 megawatts or greater to comply with 9VAC5-40-5820 C 2 c shall keep an up-to-date, readily accessible record of all periods of operation of the boiler or process heater. (Examples of such records could include records of steam use, fuel use, or monitoring data collected pursuant to other state or federal regulatory requirements.)

4. Each owner seeking to comply with the provisions of this article by use of an open flare shall keep up-to-date, readily accessible continuous records of the flame or flare pilot flame monitoring specified under 9VAC5-40-5870 E, and up-to-date, readily accessible records of all periods of operation in which the flame or flare pilot flame is absent.

F. Each owner subject to the provisions of this article shall keep for the life of the collection system an up-to-date, readily accessible plot map showing each existing and planned collector in the system and providing a unique identification location label for each collector.

1. Each owner subject to the provisions of this article shall keep up-to-date, readily accessible records of the installation date and location of all newly installed collectors as specified under 9VAC5-40-5850 D.

2. Each owner subject to the provisions of this article shall keep readily accessible documentation of the nature, date of deposition, amount, and location of asbestos-containing or nondegradable waste excluded from collection as provided in 9VAC5-40-5824 A 3 a as well as any nonproductive areas excluded from collection as provided in 9VAC5-40-5824 A 3 b.

G. Each owner subject to the provisions of this article shall keep for at least five years up-to-date, readily accessible records of all collection and control system exceedances of the operational standards in 9VAC5-40-5822, the reading in the subsequent month whether or not the second reading is an exceedance, and the location of each exceedance.

H. Landfill owners who convert design capacity from volume to mass or from mass to volume to demonstrate that the landfill design capacity is less than (i) 1.0 million megagrams or 1.0 million cubic meters in the Northern Virginia Volatile Organic Compound Emissions Control Area or (ii) 2.5 million megagrams or 2.5 million cubic meters in the remaining areas of the Commonwealth, as provided in the definition of "design capacity," shall keep readily accessible, on-site records of the annual recalculation of site-specific density, design capacity, and the supporting documentation. Off-site records may be obtained if they are retrievable within four hours. Either paper copy or electronic formats are acceptable.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004.

9VAC5-40-5900 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-5910 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply except that the provisions of 9VAC5-20-180 E, F, and G shall apply only to the emission standards set forth in 9VAC5-40-5830 and 9VAC5-40-5840.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 20, Issue 8, eff. January 29, 2004.

9VAC5-40-5920 Permits

A. A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5 Chapter 50 (9VAC5-50) and 9VAC5 Chapter 60 (9VAC5-60) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

B. MSW landfills required to install a collection and control system according to the provisions of 9VAC5-40-5820 shall apply for a permit amendment in accordance with Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 81 (Solid Waste Management Regulations).

C. Physical or operational changes made to an MSW landfill solely to comply with this article are not considered construction, reconstruction, or modification for the purposes of 40 CFR 60 Subpart WWW.

D. The owner of an MSW landfill subject to this article with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters is subject to Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80. When a landfill is closed, and either never needed control or meets the conditions for control system removal specified in 9VAC5-40-5820 C 2 e, an operating permit under Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80 is no longer required.

E. A landfill with a design capacity less than 2.5 million megagrams or 2.5 million cubic meters does not require an operating permit under Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 15, Issue 12, eff. April 1, 1999; Volume 20, Issue 8, eff. January 29, 2004; Volume 27, Issue 23, eff. August 17, 2011.

Article 43.1 Emission Standards for Municipal Solid Waste Landfills for which Construction, Reconstruction, or Modification was Commenced on or before July 17, 2014 (Rule 4-43.1)

9VAC5-40-5925 Applicability and designation of affected facility

Article 43.1 Emission Standards for Municipal Solid Waste Landfills for which Construction, Reconstruction, or Modification was Commenced on or before July 17, 2014 (Rule 4-43.1)

A. The affected facility to which the provisions of this article apply is each existing municipal solid waste (MSW) landfill for which construction, reconstruction, or modification was commenced on or before July 17, 2014, and as further defined in Subpart Cf (40 CFR 60.30f et seq.) of 40 CFR Part 60.

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

C. The owner of an MSW landfill shall obtain a federal operating permit as required by 40 CFR 60.31f(c). When an MSW landfill is closed, the owner is no longer subject to the requirement to maintain a federal operating permit if the conditions of 40 CFR 60.31f(d) are met.

D. For each MSW landfill in the closed landfill subcategory, the reporting provisions of 9VAC5-40-5975 may be met as provided in 40 CFR 60.31f(e).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5930 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms shall have the meanings given them in 40 CFR 60.41f, except for the following:

"Administrator" means the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5935 Emission limits and emission standards

A. The owner of each MSW landfill having a design capacity greater than or equal to 2.5 million megagrams by mass and 2.5 million cubic meters by volume that meets the conditions of 40 CFR 60.33f(a)(1) through (4) shall collect and control MSW landfill emissions in accordance with the provisions of 40 CFR 60.33f(b)(1) through (3), and 40 CFR 60.33f(c)(1) through (4) except as provided in 40 CFR 60.24.

B. The owner of each MSW landfill with a design capacity less than 2.5 million megagrams and 2.5 million cubic meters shall submit an initial design capacity report to the administrator as provided in 40 CFR 60.38f(a).The landfill may calculate design capacity in either megagrams or cubic meters for comparison with the exemption values. Any density conversions shall be documented and submitted with the report. Submittal of the initial design capacity report fulfills the requirements of this article except as provided in 40 CFR 60.33f(d)(1) and (2).

C. The owner of each MSW landfill with a design capacity greater than 2.5 million megagrams and 2.5 million cubic meters shall either install a collection and control system as provided in subsection A of this section or calculate an initial NMOC emission rate for the landfill using the procedures specified in 40 CFR 60.35f(a). The NMOC emission rate shall be recalculated annually, except as provided in 40 CFR 60.38f(c)(3). The owner shall follow the procedures specified in 40 CFR 60.33f(e)(1) through (3).

D. The owner of each MSW landfill may cap, remove, or decommission the collection and control system used to comply with subsection A of this section if the criteria of 40 CFR 60.33f(f)(1) through (4) are met.

E. An active collection system used to comply with subsection A of this section shall meet the specifications for active collection system of 40 CFR 60.40f(a) through (c).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5940 Standard for visible emissions and fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5-40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply, with the exception of 9VAC5-40-80 (Standard for visible emissions), 9VAC5-40-100 (Monitoring), 9VAC5-40-110 (Test methods and procedures), and 9VAC5-40-120 (Waivers).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5945 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5950 Compliance schedule

The provisions of 40 CFR 60.32f apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5955 Operating requirements

The owner of an MSW landfill with a gas collection and control system used to comply with the provisions of 40 CFR 60.33f(b) and (c) shall meet the requirements of 40 CFR 60.34f(a) through (g).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5960 Compliance

A. With regard to the emissions limits in 9VAC5-40-5940 and 9VAC5-40-5945, the provisions of 9VAC5-40-20 (Compliance) apply.

B. With regard to the emission limits in 9VAC5-40-5935 and 9VAC5-40-5955, the following provisions apply:

1. 9VAC5-40-20 B, C, D, and E;

2. To the extent specified in the federal regulations cited in subdivision 3 of this subsection, 40 CFR 60.7, 40 CFR 60.8, 40 CFR 60.11, and 40 CFR 60.13; and

3. 40 CFR 60.32f and 40 CFR 60.36f(a) through (e).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5965 Test methods and procedures, monitoring of operations

A. With regard to the emissions standards in 9VAC5-40-5940 and 9VAC5-40-5945, the provisions of 9VAC5-40-30 (Emission testing) and 9VAC5-40-40 (Monitoring) apply.

B. With regard to the emission limits in 9VAC5-40-5935 and 9VAC5-40-5955, the following provisions apply:

1. 9VAC5-40-30 D and G;

2. 9VAC5-40-40 A and F;

3. 40 CFR 60.8(b) through (f), with the exception of paragraph (a);

4. 40 CFR 60.13; and

5. 40 CFR 60.35f(a) through (e), and 40 CFR 60.37f(a) through (h), except as provided in 40 CFR 60.38f(d)(2).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5970 Reporting and recordkeeping

A. With regard to the emissions standards in 9VAC5-40-5940 and 9VAC5-40-5945, the provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

B. With regard to the emission limits in 9VAC5-40-5935 and 9VAC5-40-5955, the following provisions apply:

1. 9VAC5-40-50 F and H;

2. 40 CFR 60.7; and

3. 40 CFR 60.38f(a) through (n) except as provided in 40 CFR 60.24 and 40 CFR 60.38f(d)(2), and 40 CFR 60.39f(a) through (j).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017; amended, Virginia Register Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-40-5975 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5980 Facility and control equipment maintenance or malfunction

A. With regard to the emissions standards in 9VAC5-40-5940 and 9VAC5-40-5945, the provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

B. With regard to the emission limits in 9VAC5-40-5935 and 9VAC5-40-5955, the following provisions apply:

1. 9VAC5-20-180 with the exception of subsections E, F, and G; and

2. 40 CFR 60.36f(e) and 40 CFR 60.37f(h).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5985 Other permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-5990 Documents incorporated by reference

The U.S. Environmental Protection Agency regulations promulgated at Subpart Cf (40 CFR 60.30f et seq., Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills) of 40 CFR Part 60 are incorporated by reference into this article. The specific version of the provisions incorporated by reference shall be that contained in the CFR in effect as specified in 9VAC5-20-21.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 10, eff. February 22, 2017.

9VAC5-40-6000 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6010 (Repealed.)

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia and 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6020 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6030 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6040 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6050 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6060 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6070 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6080 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6090 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6100 (Repealed.)

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia and 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6110 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6120 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6130 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6140 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6150 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6160 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6170 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6180 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; Errata, 16:19 VA.R. 2399 June 5, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6190 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6200 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6210 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6220 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-6230 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 16, Issue 17, eff. July 1, 2000; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

Article 45 Emission Standards for Commercial/Industrial Solid Waste Incinerators (Rule 4-45)

9VAC5-40-6250 Applicability and designation of affected facility

Article 45 Emission Standards for Commercial/Industrial Solid Waste Incinerators (Rule 4-45)

A. The affected facilities to which the provisions of this article apply are (i) commercial/industrial solid waste incinerator (CISWI) units and air curtain incinerators that commenced construction on or before November 30, 1999; (ii) CISWI units and air curtain incinerators that commenced construction after November 30, 1999, but on or before June 4, 2010, or that commenced reconstruction or modification on or after June 1, 2001, but no later than August 7, 2013; or (iii) CISWI units other than incinerator units that commenced construction before June 4, 2010.

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

C. Exempted from the provisions of this article are those units that meet the criteria listed in 40 CFR 60.2555.

D. The provisions of this article do not apply to a CISWI unit if the owner makes changes that meet the definition of modification or reconstruction after August 7, 2013, at which point the CISWI unit becomes subject to subpart CCCC of 40 CFR Part 60.

E. If the owner makes physical or operational changes to an existing CISWI unit primarily to comply with this article, subpart CCCC of 40 CFR Part 60 does not apply to that unit. Such changes do not qualify as modifications or reconstructions under subpart CCCC of 40 CFR Part 60.

F. Each owner shall submit an application for a federal operating permit in accordance with the provisions of 40 CFR 60.2805. Owners to whom this section applies should contact the appropriate regional office for guidance on applying for a federal (Title V) operating permit.

G. The requirement under 40 CFR 60.2555(g)(1) with regard to obtaining a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.) may be met by obtaining a permit from the department as required by 9VAC5-60 (Hazardous Air Pollutant Sources).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013; Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-40-6260 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms shall have the meaning given them in 40 CFR 60.2875, except for the following:

"Administrator" means the board.

"Table 1" means 9VAC5-40-6420.

"You" means the owner of an affected CISWI unit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6270 Emission limits and emission standards

No owner or other person shall cause or permit to be discharged into the atmosphere from any CISWI any emissions in excess of that allowed under 40 CFR 60.2670.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6280 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6290 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6300 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6310 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6320 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6330 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6340 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6350 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6360 Standard for visible emissions

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

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any CISWI any visible emissions that exhibit greater than 10% opacity.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6370 Standard for fugitive dust/emissions

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5-40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply, with the exception of 9VAC5-40-80 (Standard for visible emissions), 9VAC5-40-100 (Monitoring), 9VAC5-40-110 (Test methods and procedures), and 9VAC5-40-120 (Waivers).

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any ash conveying system (including conveyor transfer points) any visible emissions for more than 5.0% of hourly observation period, measured at three, 1-hour observation periods.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6380 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6390 Standard for toxic pollutants

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6400 Operator training and qualification

The provisions of 40 CFR 60.2635 through 40 CFR 60.2665 apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6410 Waste management plan

The owner of an affected facility shall prepare a written waste management plan in accordance with the provisions of 40 CFR 60.2620 through 40 CFR 60.2630.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6420 Compliance schedule

A. All CISWI units regardless of category shall achieve final compliance as expeditiously as practicable but not later than February 7, 2018.

B. The owner shall submit a final control plan no later than February 7, 2015.

C. The provisions of 40 CFR 60.2575 through 40 CFR 60.2615 apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; Errata, 19:25 VA.R. 3844 August 25, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6421 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6422 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6430 Operating limits

No owner or other person shall operate any CISWI unit in a manner that does not comply with the provisions of 40 CFR 60.2675 through 40 CFR 60.2680.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6440 Facility and control equipment maintenance or malfunction

A. With regard to the emission standards set forth in 9VAC5-40-6360 A, 9VAC5-40-6370 A, 9VAC5-40-6380, and 9VAC5-40-6390, the provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

B. With regard to the emission limits in 9VAC5-40-6270, 9VAC5-40-6360 B, and 9VAC5-40-6370 B, the provisions of 9VAC5-20-180 apply, with the exception of subsections E, F, and G.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013; Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-40-6450 Performance testing

A. With regard to the emissions standards in 9VAC5-40-6360 A, 9VAC5-40-6370 A, 9VAC5-40-6380, and 9VAC5-40-6390, the provisions of 9VAC5-40-30 (Emission testing) apply.

B. With regard to the emission limits in 9VAC5-40-6270, 9VAC5-40-6360 B, and 9VAC5-40-6370 B, the following provisions apply:

1. 9VAC5-40-30 D and G;

2. 40 CFR 60.8, with the exception of paragraph (a); and

3. 40 CFR 60.2690 through 40 CFR 60.2695.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6460 Compliance

A. With regard to the emissions standards in 9VAC5-40-6360 A, 9VAC5-40-6370 A, 9VAC5-40-6380, and 9VAC5-40-6390, the provisions of 9VAC5-40-20 (Compliance) apply.

B. With regard to the emission limits in 9VAC5-40-6270, 9VAC5-40-6360 B, and 9VAC5-40-6370 B, the following provisions apply:

1. 9VAC5-40-20 B, C, D, and E;

2. 40 CFR 60.11; and

3. 40 CFR 60.2700 through 40 CFR 60.2725.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6470 Monitoring

A. With regard to the emissions standards in 9VAC5-40-6360 A, 9VAC5-40-6370 A, 9VAC5-40-6380, and 9VAC5-40-6390, the provisions of 9VAC5-40-40 (Monitoring) apply.

B. With regard to the emission limits in 9VAC5-40-6270, 9VAC5-40-6360 B, and 9VAC5-40-6370 B, the following provisions apply:

1. 9VAC5-40-40 A and F;

2. 40 CFR 60.13; and

3. 40 CFR 60.2730 through 40 CFR 60.2735.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6480 Recordkeeping and reporting

A. With regard to the emissions standards in 9VAC5-40-6360 A, 9VAC5-40-6370 A, 9VAC5-40-6380, and 9VAC5-40-6390, the provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

B. With regard to the emission limits in 9VAC5-40-6270, 9VAC5-40-6260 B, and 9VAC5-40-6370 B, the following provisions apply:

1. 9VAC5-40-50 F and H;

2. 40 CFR 60.7; and

3. 40 CFR 60.2740 through 40 CFR 60.2800.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6490 Air curtain incinerators

The provisions of 40 CFR 60.2810 through 40 CFR 60.2870 apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6500 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6510 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-40-6520 Documents incorporated by reference

A. The U.S. Environmental Protection Agency (EPA) regulations promulgated at Subpart DDDD (Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units) of 40 CFR Part 60 and designated in subsection B of this section are incorporated by reference into this article. The 40 CFR section numbers appearing in subsection B of this section identify the specific provisions incorporated by reference. The specific version of the provisions incorporated by reference shall be that contained in the CFR in effect as specified in 9VAC5-20-21 B.

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

Model Rule, Increments of Progress

§ 60.2575, What are my requirements for meeting increments of progress and achieving final compliance?

§ 60.2580, When must I complete each increment of progress?

§ 60.2585, What must I include in the notifications of achievement of increments of progress?

§ 60.2590, When must I submit the notifications of achievement of increments of progress?

§ 60.2595, What if I do not meet an increment of progress?

§ 60.2600, How do I comply with the increment of progress for submittal of a control plan?

§ 60.2605, How do I comply with the increment of progress for achieving final compliance?

§ 60.2610, What must I do if I close my CISWI unit and then restart it?

§ 60.2615, What must I do if I plan to permanently close my CISWI unit and not restart it?

Model Rule, Waste Management Plan

§ 60.2620, What is a waste management plan?

§ 60.2625, When must I submit my waste management plan?

§ 60.2630, What should I include in my waste management plan?

Model Rule, Operator Training and Qualification

§ 60.2635, What are the operator training and qualification requirements?

§ 60.2640, When must the operator training course be completed?

§ 60.2645, How do I obtain my operator qualification?

§ 60.2650, How do I maintain my operator qualification?

§ 60.2655, How do I renew my lapsed operator qualification?

§ 60.2660, What site-specific documentation is required?

§ 60.2665, What if all the qualified operators are temporarily not accessible?

Model Rule, Emission Limitations and Operating Limits

§ 60.2670, What emission limitations must I meet and by when?

§ 60.2675, What operating limits must I meet and by when?

§ 60.2680, What if I do not use a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the emission limitations?

Model Rule, Performance Testing

§ 60.2690, How do I conduct the initial and annual performance test?

§ 60.2695, How are the performance test data used?

Model Rule, Initial Compliance Requirements

§ 60.2700, How do I demonstrate initial compliance with the amended emission limitations and establish the operating limits?

§ 60.2705, By what date must I conduct the initial performance test?

§ 60.2706, By what date must I conduct the initial air pollution control device inspection?

Model Rule, Continuous Compliance Requirements

§ 60.2710, How do I demonstrate continuous compliance with the amended emission limitations and the operating limits?

§ 60.2715, By what date must I conduct the annual performance test?

§ 60.2716, By what date must I conduct the annual air pollution control device inspection?

§ 60.2720, May I conduct performance testing less often?

§ 60.2725, May I conduct a repeat performance test to establish new operating limits?

Model Rule, Monitoring

§ 60.2730, What monitoring equipment must I install and what parameters must I monitor?

§ 60.2735, Is there a minimum amount of monitoring data I must obtain?

Model Rule, Recordkeeping and Reporting

§ 60.2740, What records must I keep?

§ 60.2745, Where and in what format must I keep my records?

§ 60.2750, What reports must I submit?

§ 60.2755, When must I submit my waste management plan?

§ 60.2760, What information must I submit following my initial performance test?

§ 60.2765, When must I submit my annual report?

§ 60.2770, What information must I include in my annual report?

§ 60.2775, What else must I report if I have a deviation from the operating limits or the emission limitations?

§ 60.2780, What must I include in the deviation report?

§ 60.2785, What else must I report if I have a deviation from the requirement to have a qualified operator accessible?

§ 60.2790, Are there any other notifications or reports that I must submit?

§ 60.2795, In what form can I submit my reports?

§ 60.2800, Can reporting dates be changed?

Model Rule, Title V Operating Permits

§ 60.2805, Am I required to apply for and obtain a Title V operating permit for my unit?

Model Rule, Air Curtain Incinerators

§ 60.2810, What is an air curtain incinerator?

§ 60.2815, What are my requirements for meeting increments of progress and achieving final compliance?

§ 60.2820, When must I complete each increment of progress?

§ 60.2825, What must I include in the notifications of achievement of increments of progress?

§ 60.2830, When must I submit the notifications of achievement of increments of progress?

§ 60.2835, What if I do not meet an increment of progress?

§ 60.2840, How do I comply with the increment of progress for submittal of a control plan?

§ 60.2845, How do I comply with the increment of progress for achieving final compliance?

§ 60.2850, What must I do if I close my air curtain incinerator and then restart it?

§ 60.2855, What must I do if I plan to permanently close my air curtain incinerator and not restart it?

§ 60.2860, What are the emission limitations for air curtain incinerators?

§ 60.2865, How must I monitor opacity for air curtain incinerators?

§ 60.2870, What are the recordkeeping and reporting requirements for air curtain incinerators?

Model Rule, Definitions

§ 60.2875, What definitions must I know?

TABLES

Table 2 to Subpart DDDD of Part 60, Model Rule, Emission Limitations that Apply to Incinerators Before February 7, 2018.

Table 3 to Subpart DDDD of Part 60, Model Rule, Operating Limits for Wet Scrubbers.

Table 4 to Subpart DDDD of Part 60, Model Rule, Toxic Equivalency Factors.

Table 5 to Subpart DDDD of Part 60, Model Rule, Summary of Reporting Requirements.

Table 6 to Subpart DDDD of Part 60, Emission Limitations that Apply to Incinerators on and after February 7, 2018.

Table 7 to Subpart DDDD of Part 60, Emission Limitations that Apply to Energy Recovery Units After May 20, 2011, on or after February 7, 2018.

Table 8 to Subpart DDDD of Part 60, Emission Limitations that Apply to Waste-Burning Kilns after February 7, 2018.

Table 9 to Subpart DDDD of Part 60, Emission Limitations that Apply to Small, Remote Incinerators after February 7, 2018.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013; amended, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

Article 46 Emission Standards for Small Municipal Waste Combustors (Rule 4-46)

9VAC5-40-6550 Applicability and designation of affected facility

Article 46 Emission Standards for Small Municipal Waste Combustors (Rule 4-46)

A. Except as provided in subsections C and D of this section, the affected facilities to which the provisions of this article apply are small municipal waste combustion units that (i) have the capacity to combust at least 35 tons per day of municipal solid waste but no more than 250 tons per day of municipal solid waste or refuse-derived fuel, and (ii) have commenced construction on or before August 30, 1999.

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

C. The following provisions govern changes to municipal waste combustion units.

1. If the owner of a municipal waste combustion unit makes changes that meet the definition of modification or reconstruction after June 6, 2001, for subpart AAAA of 40 CFR Part 60, the municipal waste combustion unit becomes subject to subpart AAAA of 40 CFR Part 60 and the provisions of this article no longer apply to that unit.

2. If the owner of a municipal waste combustion unit makes physical or operational changes to an existing municipal waste combustion unit primarily to comply with the provisions of this article, subpart AAAA of 40 CFR Part 60 does not apply to that unit. Such changes do not constitute modifications or reconstructions under subpart AAAA of 40 CFR Part 60.

D. Exempt from the provisions of this article are the following.

1. Small municipal waste combustion units that combust less than 11 tons per day and meet the following conditions.

a. The unit is subject to a federally enforceable permit limiting the amount of municipal solid waste combusted to less than 11 tons per day.

b. The owner notifies the board that the unit qualifies for the exemption.

c. The owner provides the board with a copy of the federally enforceable permit.

d. The owner keeps daily records of the amount of municipal solid waste combusted.

2. Small power production units that meet the following conditions.

a. The unit qualifies as a small power production facility under § 3(17)(C) of the Federal Power Act (16 USC § 796(17)(C)).

b. The unit combusts homogeneous waste (excluding refuse-derived fuel) to produce electricity.

c. The owner notifies the board that the unit qualifies for the exemption.

d. The board receives documentation from the owner that the unit qualifies for the exemption.

3. Cogeneration units that meet the following conditions.

a. The unit qualifies as a cogeneration facility under § 3(18)(B) of the Federal Power Act (16 USC § 796(18)(B)).

b. The unit combusts homogeneous waste (excluding refuse-derived fuel) to produce electricity and steam or other forms of energy used for industrial, commercial, heating, or cooling purposes.

c. The owner notifies the board that the unit qualifies for the exemption.

d. The board receives documentation from the owner that the unit qualifies for the exemption.

4. Municipal waste combustion units that combust only tires and meet the following conditions.

a. The unit combusts a single-item waste stream of tires and no other municipal waste (the unit can co-fire coal, fuel oil, natural gas, or other nonmunicipal solid waste).

b. The owner notifies the board that the unit qualifies for the exemption.

c. The board receives documentation from the owner that the unit qualifies for the exemption.

5. Hazardous waste combustion units that have received a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.).

6. Materials recovery units that combust waste mainly to recover metals. Primary and secondary smelters may qualify.

7. Co-fired units that meet the following conditions.

a. The unit has a federally enforceable permit limiting municipal solid waste combustion to 30% of the total fuel input by weight.

b. The board is notified by the owner that the unit qualifies for the exemption.

c. The owner provides the board with a copy of the federally enforceable permit.

d. The owner records the weights, each quarter, of municipal solid waste and of all other fuels combusted.

8. Plastics/rubber recycling units that meet the following conditions.

a. The pyrolysis/combustion unit is an integrated part of a plastics/rubber recycling unit.

b. The owner records the weight, each quarter, of plastics, rubber, and rubber tires processed.

c. The owner records the weight, each quarter, of feed stocks produced and marketed from chemical plants and petroleum refineries.

d. The owner maintains the name and address of the purchaser of the feed stocks.

9. Units that combust fuels made from products of plastics/rubber recycling plants and meet the following criteria.

a. The unit combusts gasoline, diesel fuel, jet fuel, fuel oils, residual oil, refinery gas, petroleum coke, liquefied petroleum gas, propane, or butane produced by chemical plants or petroleum refineries that use feed stocks produced by plastics/rubber recycling units.

b. The unit does not combust any other municipal solid waste.

10. Cement kilns that combust municipal solid waste.

11. Air curtain incinerators that combust 100% yard waste are exempt from the requirements of this article except they shall meet the requirements of 9VAC5-40-6780.

12. Affected municipal waste combustion units that meet the following criteria.

a. The owner reduces, by the final compliance dates in 9VAC5-40-6710, the maximum combustion capacity of the unit to less than 35 tons per day of municipal solid waste. A permit restriction or a change in the method of operation does not qualify as a reduction in capacity.

b. The owner submits a final control plan and the notifications of achievement of increments of progress as specified in 9VAC5-40-6710 B. The final control plan shall, at a minimum, include the following.

(1) A description of the physical changes that will be made to accomplish the reduction.

(2) Calculations of the current maximum combustion capacity and the planned maximum combustion capacity after the reduction. The combustion capacity of a municipal waste combustion unit shall be calculated as specified in 9VAC5-40-6730 F.

E. Each owner shall submit an application for a federal operating permit no later than December 6, 2003. If the unit is subject to the federal operating permit program as a result of some triggering requirement(s) other than this article (for example, being a major source), then the unit may be required to apply for and obtain a federal operating permit prior to the deadline in this subsection. If more than one requirement triggers the requirement to apply for a federal operating permit, the 12-month timeframe for filing a permit application is triggered by the requirement which first causes the source to be subject to the federal operating permit program.

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

G. The requirement of subdivision D 5 of this section with regard to obtaining a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.) may be met by obtaining a permit from the department as required by 9VAC20 Chapter 60.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6560 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Air curtain incinerator" means an incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. Incinerators of that type can be constructed above or below ground and with or without refractory walls and floor.

"Batch municipal waste combustion unit" means a municipal waste combustion unit designed so it cannot combust municipal solid waste continuously 24 hours per day because the design does not allow waste to be fed to the unit or ash to be removed during combustion.

"Calendar quarter" means three consecutive months (nonoverlapping) beginning on January 1, April 1, July 1, or October 1.

"Calendar year" means 365 (or 366 consecutive days in leap years) consecutive days starting on January 1 and ending on December 31.

"Chief facility operator" means the person in direct charge and control of the operation of a municipal waste combustion unit. That person is responsible for daily onsite supervision, technical direction, management, and overall performance of the municipal waste combustion unit.

"Class I units" mean small municipal waste combustion units subject to this article that are located at municipal waste combustion plants with an aggregate plant combustion capacity greater than 250 tons per day of municipal solid waste. See the definition in this section of "municipal waste combustion plant capacity" for specification of which units at a plant site are included in the aggregate capacity calculation.

"Class II units" mean small municipal combustion units subject to this article that are located at municipal waste combustion plants with aggregate plant combustion capacity less than or equal to 250 tons per day of municipal solid waste. See the definition in this section of "municipal waste combustion plant capacity" for specification of which units at a plant site are included in the aggregate capacity calculation.

"Clean wood" means untreated wood or untreated wood products including clean untreated lumber, tree stumps (whole or chipped), and tree limbs (whole or chipped). Clean wood does not include: (i) yard waste, or (ii) construction, renovation, or demolition wastes (for example, railroad ties and telephone poles) that are exempt from the definition of "municipal solid waste" in this section.

"Co-fired combustion unit" means a unit that combusts municipal solid waste with nonmunicipal solid waste fuel (for example, coal, industrial process waste). To be considered a co-fired combustion unit, the unit shall be subject to a federally enforceable permit that limits it to combusting a fuel feed stream that is 30% or less (by weight) municipal solid waste as measured each calendar quarter.

"Continuous burning" means the continuous, semicontinuous, or batch feeding of municipal solid waste to dispose of the waste, produce energy, or provide heat to the combustion system in preparation for waste disposal or energy production. Continuous burning does not mean the use of municipal solid waste solely to thermally protect the grate or hearth during the startup period when municipal solid waste is not fed to the grate or hearth.

"Continuous emission monitoring system" means a monitoring system that continuously measures the emissions of a pollutant from a municipal waste combustion unit.

"Dioxins/furans" mean tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans.

"Eight-hour block average" means the average of all hourly emission concentrations or parameter levels when the municipal waste combustion unit operates and combusts municipal solid waste measured over any of three eight-hour periods of time: (i) midnight to 8 a.m., (ii) 8 a.m. to 4 p.m., and (iii) 4 p.m. to midnight.

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

"First calendar half" means the period that starts on January 1 and ends on June 30 in any year.

"Fluidized bed combustion unit" means a unit where municipal waste is combusted in a fluidized bed of material. The fluidized bed material may remain in the primary combustion zone or may be carried out of the primary combustion zone and returned through a recirculation loop.

"Four-hour block average" means the average of all hourly emission concentrations or parameter levels when the municipal waste combustion unit operates and combusts municipal solid waste measured over any of six four-hour periods: (i) midnight to 4 a.m., (ii) 4 a.m. to 8 a.m., (iii) 8 a.m. to noon, (iv) noon to 4 p.m., (v) 4 p.m. to 8 p.m., and (vi) 8 p.m. to midnight.

"Mass burn refractory municipal waste combustion unit" means a field-erected municipal waste combustion unit that combusts municipal solid waste in a refractory wall furnace. Unless otherwise specified, that includes municipal waste combustion units with a cylindrical rotary refractory wall furnace.

"Mass burn rotary waterwall municipal waste combustion unit" means a field-erected municipal waste combustion unit that combusts municipal solid waste in a cylindrical rotary waterwall furnace.

"Mass burn waterwall municipal waste combustion unit" means a field-erected municipal waste combustion unit that combusts municipal solid waste in a waterwall furnace.

"Maximum demonstrated load of a municipal waste combustion unit" means the highest four-hour block arithmetic average municipal waste combustion unit load achieved during four consecutive hours in the course of the most recent dioxins/furans emission test that demonstrates compliance with the applicable emission limit for dioxins/furans specified in this article.

"Maximum demonstrated temperature of the particulate matter control device" means the highest four-hour block arithmetic average flue gas temperature measured at the inlet of the particulate matter control device during four consecutive hours in the course of the most recent emission test for dioxins/furans emissions that demonstrates compliance with the limits specified in this article.

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

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

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

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

a. Liquid human blood;

b. Products of blood;

c. Items containing unabsorbed or free-flowing blood;

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

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

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

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

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

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

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

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

"Mixed fuel-fired (pulverized coal/refuse-derived fuel) combustion unit" means a combustion unit that combusts coal and refuse-derived fuel simultaneously, in which pulverized coal is introduced into an air stream that carries the coal to the combustion chamber of the unit where it is combusted in suspension. That includes both conventional pulverized coal and micropulverized coal.

"Modification" or "modified municipal waste combustion unit" means a municipal waste combustion unit that has been modified after June 6, 2001, and that meets one of the following criteria: (i) the cumulative cost of the changes over the life of the unit exceeds 50% of the original cost of building and installing the unit (not including the cost of land) updated to current costs; or (ii) any physical change in the municipal waste combustion unit or change in the method of operating it that increases the emission level of any air pollutant for which new source performance standards have been established under § 129 or § 111 of the federal Clean Air Act. Increases in the emission level of any air pollutant are determined when the municipal waste combustion unit operates at 100% of its physical load capability and are measured downstream of all air pollution control devices. Load restrictions based on permits or other nonphysical operational restrictions cannot be considered in the determination.

"Modular excess-air municipal waste combustion unit" means a municipal waste combustion unit that combusts municipal solid waste, is not field-erected, and has multiple combustion chambers, all of which are designed to operate at conditions with combustion air amounts in excess of theoretical air requirements.

"Modular starved-air municipal waste combustion unit" means a municipal waste combustion unit that combusts municipal solid waste, is not field-erected, and has multiple combustion chambers in which the primary combustion chamber is designed to operate at substoichiometric conditions.

"Municipal solid waste or municipal-type solid waste" means household, commercial/retail, or institutional waste. Household waste includes material discarded by residential dwellings, hotels, motels, and other similar permanent or temporary housing. Commercial/retail waste includes material discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities. Institutional waste includes materials discarded by schools, by hospitals (nonmedical), by nonmanufacturing activities at prisons and government facilities, and other similar establishments or facilities. Household, commercial/retail, and institutional waste does include yard waste and refuse-derived fuel. Household, commercial/retail, and institutional waste does not include used oil; sewage sludge; wood pallets; construction, renovation, and demolition wastes (which include railroad ties and telephone poles); clean wood; industrial process or manufacturing wastes; medical waste; or motor vehicles (including motor vehicle parts or vehicle fluff).

"Municipal waste combustion plant" means one or more municipal waste combustion units at the same location.

"Municipal waste combustion plant capacity" means the aggregate municipal waste combustion capacity of all municipal waste combustion units at the plant that are not subject to subparts Ea, Eb, or AAAA of 40 CFR Part 60.

"Municipal waste combustion unit" means any setting or equipment that combusts solid, liquid, or gasified municipal solid waste including, but not limited to, field-erected combustion units (with or without heat recovery), modular combustion units (starved-air or excess-air), boilers (for example, steam generating units), furnaces (whether suspension-fired, grate-fired, mass-fired, air curtain incinerators, or fluidized bed-fired), and pyrolysis/combustion units. Municipal waste combustion units do not include pyrolysis or combustion units located at a plastics or rubber recycling unit. Municipal waste combustion units do not include cement kilns that combust municipal solid waste. Municipal waste combustion units do not include internal combustion engines, gas turbines, or other combustion devices that combust landfill gases collected by landfill gas collection systems. The municipal waste combustion unit includes, but is not limited to, the municipal solid waste fuel feed system, grate system, flue gas system, bottom ash system, and the combustion unit water system. The municipal waste combustion unit does not include air pollution control equipment, the stack, water treatment equipment, or the turbine-generator set. The municipal waste combustion unit boundary starts at the municipal solid waste pit or hopper and extends through: (i) the combustion unit flue gas system, which ends immediately after the heat recovery equipment or, if there is no heat recovery equipment, immediately after the combustion chamber; (ii) the combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. It includes all ash handling systems connected to the bottom ash handling system; and (iii) the combustion unit water system, which starts at the feed water pump and ends at the piping that exits the steam drum or superheater.

"Particulate matter" means total particulate matter emitted from municipal waste combustion units as measured using Reference Method 5 and the procedures specified in 9VAC5-40-6740 D.

"Plastics or rubber recycling unit" means an integrated processing unit for which plastics, rubber, or rubber tires are the only feed materials (incidental contaminants may be in the feed materials). The feed materials are processed and marketed to become input feed stock for chemical plants or petroleum refineries. Each calendar quarter, the combined weight of the feed stock that a plastics or rubber recycling unit produces shall be more than 70% of the combined weight of the plastics, rubber, and rubber tires that recycling unit processes. The plastics, rubber, or rubber tires fed to the recycling unit may originate from separating or diverting plastics, rubber, or rubber tires from municipal or industrial solid waste. The feed materials may include manufacturing scraps, trimmings, and off-specification plastics, rubber, and rubber tire discards. The plastics, rubber, and rubber tires fed to the recycling unit may contain incidental contaminants (for example, paper labels on plastic bottles or metal rings on plastic bottle caps).

"Potential hydrogen chloride emissions" means the level of emissions from a municipal waste combustion unit that would occur from combusting municipal solid waste without emission controls for acid gases.

"Potential mercury emissions" means the level of emissions from a municipal waste combustion unit that would occur from combusting municipal solid waste without controls for mercury emissions.

"Potential sulfur dioxide emissions" means the level of emissions from a municipal waste combustion unit that would occur from combusting municipal solid waste without emission controls for acid gases.

"Pyrolysis/combustion unit" means a unit that produces gases, liquids, or solids by heating municipal solid waste. The gases, liquids, or solids produced are combusted and the emissions vented to the atmosphere.

"Reconstruction" means rebuilding a municipal waste combustion unit and meeting two criteria: (i) the reconstruction begins after June 6, 2001; and (ii) the cumulative cost of the construction over the life of the unit exceeds 50% of the original cost of building and installing the municipal waste combustion unit (not including land) updated to current costs (current dollars). To determine what systems are within the boundary of the municipal waste combustion unit used to calculate the costs, see the definition in this section of "municipal waste combustion unit."

"Refractory unit" or "refractory wall furnace" means a municipal waste combustion unit that has no energy recovery (such as through a waterwall) in the furnace of the municipal waste combustion unit.

"Refuse-derived fuel" means a type of municipal solid waste produced by processing municipal solid waste through shredding and size classification. Refuse-derived fuel includes all classes of refuse-derived fuel, including low-density fluff refuse-derived fuel through densified refuse-derived fuel, and pelletized refuse-derived fuel.

"Same location" means the same or contiguous properties under common ownership or control, including those separated only by a street, road, highway, or other public right-of-way. Common ownership or control includes properties that are owned, leased, or operated by the same entity, parent entity, subsidiary, subdivision, or any combination thereof. Entities may include a municipality, other governmental unit, or any quasi-governmental authority (for example, a public utility district or regional authority for waste disposal).

"Second calendar half" means the period that starts on July 1 and ends on December 31 in any year.

"Shift supervisor" means the person who is in direct charge and control of operating a municipal waste combustion unit and who is responsible for onsite supervision, technical direction, management, and overall performance of the municipal waste combustion unit during an assigned shift.

"Spreader stoker, mixed fuel-fired (coal/refuse-derived fuel) combustion unit" means a municipal waste combustion unit that combusts coal and refuse-derived fuel simultaneously, in which coal is introduced to the combustion zone by a mechanism that throws the fuel onto a grate from above. Combustion takes place both in suspension and on the grate.

"Standard conditions," when referring to units of measure, means a temperature of 20°C and a pressure of 101.3 kilopascals.

"Startup period" means the period when a municipal waste combustion unit begins the continuous combustion of municipal solid waste. It does not include any warmup period during which the municipal waste combustion unit combusts fossil fuel or other solid waste fuel but receives no municipal solid waste.

"Stoker (refuse-derived fuel) combustion unit" means a steam generating unit that combusts refuse-derived fuel in a semisuspension combusting mode, using air-fed distributors.

"Total mass dioxins/furans or total mass" means the total mass of tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans as determined using Reference Method 23 and the procedures specified in 9VAC5-40-6740 D.

"Twenty-four hour daily average" or "24-hour daily average" means either the arithmetic mean or geometric mean (as specified) of all hourly emission concentrations when the municipal waste combustion unit operates and combusts municipal solid waste measured during the 24 hours between midnight and the following midnight.

"Untreated lumber" means wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Untreated lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote.

"Waterwall furnace" means a municipal waste combustion unit that has energy (heat) recovery in the furnace (for example, radiant heat transfer section) of the combustion unit.

"Yard waste" means grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs that come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include: (i) construction, renovation, and demolition wastes that are exempt from the definition of "municipal solid waste" in this section; or (ii) clean wood that is exempt from the definition of "municipal solid waste" in this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6570 Standard for particulate matter

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class I unit any particulate emissions in excess of 27 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class II unit any particulate emissions in excess of 70 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6580 Standard for carbon monoxide

No owner or other person shall cause or permit to be discharged into the atmosphere from any small municipal waste combustion unit any carbon monoxide emissions in excess of the following.

1. For fluidized bed units: 100 parts per million by dry volume, measured at 7.0% oxygen, four-hour block average, arithmetic mean.

2. For fluidized bed, mixed fuel (wood/refuse-derived fuel) units: 200 parts per million by dry volume measured at 7.0% oxygen, 24-hour block average, geometric mean.

3. For mass burn rotary refractory units: 100 parts per million by dry volume measured at 7.0% oxygen, four-hour block average, arithmetic mean.

4. For mass burn rotary waterwall units: 250 parts per million by dry volume measured at 7.0% oxygen, 24-hour block average, arithmetic mean.

5. For mass burn waterwall and refractory units: 100 parts per million by dry volume measured at 7.0% oxygen, four-hour block average, arithmetic mean.

6. For mixed fuel-fired (pulverized coal/refuse-derived fuel) units: 150 parts per million by dry volume measured at 7.0% oxygen, four-hour block average, arithmetic mean.

7. For modular starved-air and excess air units: 50 parts per million by dry volume measured at 7.0% oxygen, four-hour block average, arithmetic mean.

8. For spreader stoker, mixed fuel-fired (coal/refuse-derived fuel) units: 200 parts per million by dry volume measured at 7.0% oxygen, 24-hour daily block average, arithmetic mean.

9. For stoker, refuse-derived fuel units: 200 parts per million by dry volume measured at 7.0% oxygen, 24-hour daily block average, arithmetic mean.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6590 Standard for dioxins/furans

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class I unit any dioxin/furan (total mass basis) emissions in excess of the following.

1. For units that do not use an electrostatic precipitator-based emission control system: 30 nanograms per dry standard cubic meter, measured at 7.0% oxygen, three-run average (minimum run duration of four hours).

2. For units that use electrostatic precipitator-based emission control system: 60 nanograms per dry standard cubic meter, measured at 7.0% oxygen, three-run average (minimum run duration of four hours).

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class II unit any dioxin/furan emissions (total mass basis) in excess of 125 nanograms per dry standard cubic meter, measured at 7.0% oxygen, three-run average (minimum run duration of four hours).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6600 Standard for hydrogen chloride

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class I unit any hydrogen chloride emissions in excess of 31 parts per million by dry volume or 95% reduction of potential emissions, measured at 7.0% oxygen, three-run average (minimum run duration of one hour).

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class II unit any hydrogen chloride emissions in excess of 250 parts per million by dry volume or 50% reduction of potential emissions, measured at 7.0% oxygen, three-run average (minimum run duration of one hour).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6610 Standard for sulfur dioxide

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class I unit any sulfur dioxide emissions in excess of 31 parts per million by dry volume or 75% reduction of potential emissions, measured at 7.0% oxygen, 24-hour daily block geometric average concentration or percent reduction.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class II unit any sulfur dioxide emissions in excess of 77 parts per million by dry volume or 50% reduction of potential emissions, measured at 7.0% oxygen, 24-hour daily block geometric average concentration or percent reduction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6620 Standard for nitrogen oxides

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

1. For mass burn waterwall units: 200 parts per million by dry volume, measured at 7.0% oxygen, 24-hour daily block arithmetic average concentration.

2. For mass burn rotary waterwall units: 170 parts per million by dry volume measured at 7.0% oxygen, 24-hour daily block arithmetic average concentration.

3. For refuse-derived fuel units: 250 parts per million by dry volume, measured at 7.0% oxygen, 24-hour daily block arithmetic average concentration.

4. For fluidized bed units: 220 parts per million by dry volume, measured at 7.0% oxygen, 24-hour daily block arithmetic average concentration.

5. For mass burn refractory units: 350 parts per million by dry volume, measured at 7.0% oxygen, 24-hour daily block arithmetic average concentration.

6. For modular excess air units: 190 parts per million by dry volume, measured at 7.0% oxygen, 24-hour daily block arithmetic average concentration.

7. For modular starved air units: 380 parts per million by dry volume, measured at 7.0% oxygen, 24-hour daily block arithmetic average concentration.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003; amended, Virginia Register Volume 21, Issue 15, eff. May 4, 2005.

9VAC5-40-6630 Standard for lead

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class I unit any lead emissions in excess of 0.490 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class II unit any lead emissions in excess of 1.6 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6640 Standard for cadmium

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class I unit any cadmium emissions in excess of 0.040 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class II unit any cadmium emissions in excess of 0.10 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6650 Standard for mercury

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class I unit any mercury emissions in excess of 0.080 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any Class II unit any mercury emissions in excess of 0.080 milligrams per dry standard cubic meter, measured at 7.0% oxygen, three-run average.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6660 Standard for visible emissions

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

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any small municipal waste combustion unit any visible emissions that exhibit greater than 10% opacity, measured at 30 six-minute averages.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6670 Standard for fugitive dust/emissions

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

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any small municipal waste combustion unit any fugitive ash visible emissions for more than 5.0% of hourly observation period, measured at three one-hour observation periods.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6680 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6690 Standard for toxic pollutants

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6700 Operator training and certification

A. Each chief facility operator, shift supervisor, and control room operator shall complete a training course as follows.

1. The operator training course shall be completed by the later of (i) January 31, 2004, (ii) six months after the municipal waste combustion unit starts up, or (iii) the date before an employee assumes responsibilities that affect operation of the municipal waste combustion unit.

2. The requirement in subdivision A 1 of this section does not apply to chief facility operators, shift supervisors, and control room operators who have obtained full certification from the American Society of Mechanical Engineers on or before January 31, 2003.

3. The owner may request that the board waive the requirement in subdivision A 1 of this section for chief facility operators, shift supervisors, and control room operators who have obtained provisional certification from the American Society of Mechanical Engineers on or before January 31, 2003.

B. A plant-specific training course and operating manual shall be established as follows.

1. All employees with responsibilities that affect how a municipal waste combustion unit operates, including but not limited to, chief facility operators, shift supervisors, control room operators, ash handlers, maintenance personnel, and crane or load handlers, shall complete the plant-specific training course.

2. A plant-specific operating manual shall be developed by the later of (i) six months after the municipal waste combustor unit starts up, or (ii) January 31, 2004.

3. A program to review the plant-specific operating manual with people whose responsibilities affect the operation of the municipal waste combustion unit shall be established. Initial review of the program shall be completed by the later of (i) January 31, 2004, (ii) six months after the municipal waste combustor unit starts up, or (iii) the date before an employee assumes responsibilities that affect operation of the municipal waste combustion unit.

4. The manual shall be updated and reviewed with staff annually.

5. The following information shall be included in the plant-specific operating manual.

a. A summary of all applicable requirements in this article.

b. A description of the basic combustion principles that apply to municipal waste combustion units.

c. Procedures for receiving, handling, and feeding municipal solid waste.

d. Procedures to be followed during periods of startup, shutdown, and malfunction of the municipal waste combustion unit.

e. Procedures for maintaining a proper level of combustion air supply.

f. Procedures for operating the municipal waste combustion unit in compliance with the requirements contained in this article.

g. Procedures for responding to periodic upset or off-specification conditions.

h. Procedures for minimizing carryover of particulate matter.

i. Procedures for handling ash.

j. Procedures for monitoring emissions from the municipal waste combustion unit.

k. Procedures for recordkeeping and reporting.

6. The operating manual shall be maintained in an easily accessible location at the plant. It shall be available for review or inspection by all employees who are required to review it and by the board.

C. Each chief facility operator and shift supervisor shall obtain operator certification as follows.

1. Each chief facility operator and shift supervisor shall obtain and maintain one of the following:

a. A current provisional operator certification from the American Society of Mechanical Engineers (QRO-1-1994); or

b. A current provisional operator certification approved by the board.

2. The certification and licensing required in subdivision 1 of this subsection shall be obtained by the later of the following:

a. For Class I units, January 31, 2004; for Class II units, July 31, 2004.

b. Six months after the municipal waste combustion unit starts up.

c. Six months after being transferred to the municipal waste combustion unit or six months after they are hired to work at the municipal waste combustion unit.

3. Each chief facility operator and shift supervisor shall take one of the following actions:

a. Obtain a full certification from the American Society of Mechanical Engineers or a certification approved by the board.

b. Schedule a full certification exam with the American Society of Mechanical Engineers (QRO-1-1994).

c. Schedule a full certification exam to obtain a certification approval by the board.

4. The chief facility operator and shift supervisor shall obtain the full certification or be scheduled to take the certification exam as required in subdivision C 3 of this section by the later of the following dates.

a. For Class I units, January 31, 2004; for Class II units, July 31, 2004.

b. Six months after the municipal waste combustion unit starts up.

c. Six months after they transfer to the municipal waste combustion unit or 6 months after they are hired to work at the municipal waste combustion unit.

D. After the required date for full or provisional certification, no municipal waste combustion unit shall be operated unless one of the following employees is on duty:

1. A fully certified chief facility operator.

2. A provisionally certified chief facility operator who is scheduled to take the full certification exam.

3. A fully certified shift supervisor.

4. A provisionally certified shift supervisor who is scheduled to take the full certification exam.

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

F. If the certified chief facility operator and certified shift supervisor both are unavailable, a provisionally certified control room operator at the municipal waste combustion unit may fulfill the certified operator requirement. Depending on the length of time that a certified chief facility operator and certified shift supervisor are away, the owner shall meet one of the following:

1. When the certified chief facility operator and certified shift supervisor are both offsite for 12 hours or less and no other certified operator is onsite, the provisionally certified control room operator may perform those duties without notice to, or approval by, the board.

2. When the certified chief facility operator and certified shift supervisor are offsite for more than 12 hours, but for two weeks or less, and no other certified operator is onsite, the provisionally certified control room operator may perform those duties without notice to, or approval by, the board. The periods when the certified chief facility operator and certified shift supervisor are offsite shall be recorded and included in the annual report as specified under 9VAC5-40-6770 B 2 l.

3. When the certified chief facility operator and certified shift supervisor are offsite for more than two weeks, and no other certified operator is onsite, the provisionally certified control room operator may perform those duties without notice to, or approval by, the board, and the owner shall:

a. Notify the board in writing what caused the absence and what is being done to ensure that a certified chief facility operator or certified shift supervisor is onsite; and

b. Submit a status report and corrective action summary to the board every four weeks following the initial notification. If the board notifies the owner that the status report or corrective action summary is disapproved, the municipal waste combustion unit shall cease operation after 90 days. If corrective actions are taken in the 90-day period such that the board withdraws the disapproval, municipal waste combustion unit operation may continue.

G. The requirements of this section with regard to scheduling and obtaining certification through a program approved by the board may be met by obtaining a license from the Board for Waste Management Facility Operators. All training and licensing shall be conducted in accordance with Chapter 22.1 (54.1-2209 et seq.) of Title 54.1 of the Code of Virginia and with 18VAC155 Chapter 20.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6710 Compliance schedule

A. Small municipal waste combustion units shall achieve final compliance or cease operation as expeditiously as practicable but not later than November 6, 2005.

B. The enforceable increments of progress shall be met as follows.

1. If a Class I unit plans to achieve compliance later than January 3, 2004, and a permit modification is not required, or more than one year following the date of issuance of a revised construction or operation permit if a permit modification is required, the Class I unit shall:

a. Submit a final control plan no later than August 6, 2003.

b. Submit a notification of retrofit contract award no later than April 6, 2004.

c. Initiate onsite construction no later than October 6, 2004.

d. Complete onsite construction no later than October 6, 2005.

e. Achieve final compliance no later than November 6, 2005.

2. Class I units that commenced construction after June 26, 1987, shall comply with the dioxins/furans and mercury limits specified in 9VAC5-40-6590 and 9VAC5-40-6650 no later than January 31, 2004, or one year following the issuance of a revised construction or operation permit, if a permit modification is required. Final compliance shall be achieved no later than November 6, 2005, even if the date one year after the issuance of a revised construction or operation permit is later than November 6, 2005.

3. If a Class II unit plans to achieve compliance later than January 31, 2004, and a permit modification is not required, or more than one year following the date of issuance of a revised construction or operation permit if a permit modification is required, the Class II unit shall:

a. Submit a final control plan no later than September 6, 2003.

b. Achieve final compliance no later than May 6, 2005.

C. The following provisions govern municipal waste combustor closure.

1. If a municipal waste combustion unit is closed but will reopen prior to the final compliance date, the increments of progress specified in subdivision B 1 of this section shall be met. If a municipal waste combustion unit is closed but will be restarted after the final compliance date, emission control retrofit shall be completed and emission limits and good combustion practices shall be met on the date the municipal waste combustion unit restarts operation.

2. If a municipal waste combustion unit will be closed rather than comply with this article, the owner shall submit a closure notification, including the date of closure, to the board by August 6, 2003. If the closure date is later than January 31, 2004, the owner shall enter into a legally binding closure agreement with the board by August 6, 2003. The agreement shall specify (i) the date by which operation will cease, which shall be no later than November 6, 2005, and (ii) for Class I units only, dioxin/furan emission test results as specified under 9VAC5-40-6740 B.

D. Notification of achievement of increments of progress shall be prepared and submitted as follows.

1. The notification shall state that the increment of progress has been achieved and shall include any items required to be submitted with the increment of progress listed in subdivision 3 of this subsection. The notification shall be signed by the owner or operator of the municipal waste combustion unit, and shall be postmarked no later than 10 days after the compliance date for the increment.

2. If an increment of progress is not met, the owner shall submit a notification to the board postmarked within 10 business days after the specified date in subsection B of this section for achieving that increment of progress. The notification shall inform the board that the increment was not met, explain why, and include a plan for meeting the increment as expeditiously as possible. Reports shall be submitted each subsequent month until the increment of progress is met.

3. Individual increments of progress shall be reported as follows.

a. For the control plan increment of progress, the owner shall submit the final control plan, including a description of the devices for air pollution control and process changes that will be used to comply with the emission limits and other requirements of this article. An onsite copy of the final control plan shall be maintained.

b. For the awarding contracts increment of progress, the owner shall submit a signed copy of the contracts awarded to initiate onsite construction, initiate onsite installation of emission control equipment, and incorporate process changes. A copy of the contracts shall be included with the notification that the increment of progress has been achieved, exclusive of documents incorporated by reference or attachments to the contracts.

c. For the initiating onsite construction increment of progress, the owner shall initiate onsite construction and installation of emission control equipment and initiate the process changes outlined in the final control plan.

d. For the completing onsite construction increment of progress, the owner shall complete onsite construction and installation of emission control equipment and complete process changes outlined in the final control plan.

e. For the final compliance increment of progress, the owner shall complete all process changes and complete retrofit construction as specified in the final control plan; and connect the air pollution control equipment with the municipal waste combustion unit identified in the final control plan and complete process changes to the municipal waste combustion unit so that if the affected municipal waste combustion unit is brought online, all necessary process changes and air pollution control equipment are operating as designed.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6720 Operating requirements

A. No owner shall operate any municipal waste combustion unit at loads greater than 110% of the maximum demonstrated load of the municipal waste combustion unit (four-hour block average).

B. The municipal waste combustion unit shall be operated such that the temperature at the inlet of the particulate matter control device does not exceed 17°C above the maximum demonstrated temperature of the particulate matter control device (four-hour block average).

C. If the municipal waste combustion unit uses activated carbon to control dioxins/furans or mercury emissions, an eight-hour block average carbon feed rate at or above the highest average level established during the most recent dioxins/furans or mercury test shall be maintained.

D. If the municipal waste combustion unit uses activated carbon to control dioxins/furans or mercury emissions, the total carbon usage for each calendar quarter shall be evaluated. The total amount of carbon purchased and delivered to the municipal waste combustion plant shall be at or above the required quarterly usage of carbon. The owner may choose to evaluate required quarterly carbon usage on a municipal waste combustion unit basis for each individual municipal waste combustion unit. The quarterly usage of carbon shall be calculated as required in 9VAC5-40-6760 F 1 e (1) and (2).

E. A municipal waste combustion unit is exempt from limits on load level, temperature at the inlet of the particulate matter control device, and carbon feed rate during any of the following.

1. Annual tests for dioxins/furans.

2. Annual mercury tests (for carbon feed rate requirements only).

3. The two weeks preceding annual tests for dioxins/furans.

4. The two weeks preceding annual mercury tests (for carbon feed rate requirements only).

5. Whenever the board allows any of the following.

a. Evaluation of system performance.

b. Testing of new technology or control technologies.

c. Performance of diagnostic testing.

d. Performance of other activities to improve unit performance.

e. Performance of other activities to advance the state of the art for emission controls for the municipal waste combustion unit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6730 Compliance

A. The provisions governing compliance shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6670 A, 9VAC5-40-6680, and 9VAC5-40-6690, the provisions of 9VAC5-40-20 (Compliance) apply.

2. With regard to the emission limits in 9VAC5-40-6570 through 9VAC5-40-6660 and 9VAC5-40-6670 B, the following provisions apply:

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

b. 40 CFR 60.11; and

c. Subsections B through F of this section.

B. After the date the initial emission test and continuous emission monitoring system evaluation are required or completed, whichever is earlier, the owner shall meet the applicable emission limits specified in 9VAC5-40-6570 through 9VAC5-40-6660.

C. Initial and annual emission tests shall be conducted to measure the emission levels of dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash. The results of emission tests for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash shall be used to demonstrate compliance with the applicable emission limits. Compliance for carbon monoxide, nitrogen oxides, and sulfur dioxide shall be demonstrated as provided in subsection E of this section.

D. The owner shall (i) install continuous emission monitoring systems for certain gaseous pollutants, (ii) operate continuous emission monitoring systems correctly, (iii) obtain the minimum amount of monitoring data, and (iv) install a continuous opacity monitoring system.

E. The owner shall use data from the continuous emission monitoring systems for sulfur dioxide, nitrogen oxides, and carbon monoxide in order to demonstrate continuous compliance with the applicable emission limits specified in 9VAC5-40-6610, 9VAC5-40-6620, and 9VAC5-40-6580.

F. Municipal waste combustion unit capacity shall be determined as follows.

1. For a municipal waste combustion unit that can operate continuously for 24-hour periods, the municipal waste combustion unit capacity shall be calculated based on 24 hours of operation at the maximum charge rate. The maximum charge rate shall be determined by one of the following methods.

a. For municipal waste combustion units with a design based on heat input capacity, the maximum charging rate shall be calculated based on the maximum heat input capacity and one of the following heating values:

(1) If the municipal waste combustion unit combusts refuse-derived fuel, a heating value of 12,800 kilojoules per kilogram (5,500 British thermal units per pound) shall be used; or

(2) If the municipal waste combustion unit combusts municipal solid waste, a heating value of 10,500 kilojoules per kilogram (4,500 British thermal units per pound) shall be used.

b. For municipal waste combustion units with a design not based on heat input capacity, the maximum designed charging rate shall be used.

2. Batch municipal waste combustion unit capacity shall be determined by calculating the maximum design amount of municipal solid waste that can be charged per batch multiplied by the maximum number of batches that can be processed in 24 hours. The maximum number of batches shall be calculated by dividing 24 by the number of hours needed to process one batch. Fractional batches shall be retained in the calculation; for example, if one batch requires 16 hours, the municipal waste combustion unit can combust 24/16, or 1.5 batches, in 24 hours.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6740 Test methods and procedures

A. The provisions governing test methods and procedures shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6670 A, 9VAC5-40-6680, and 9VAC5-40-6690, the provisions of 9VAC5-40-30 (Emission testing) apply.

2. With regard to the emission limits in 9VAC5-40-6570 through 9VAC5-40-6660 and 9VAC5-40-6670 B, the following provisions apply:

a. 9VAC5-40-30 D and G;

b. 40 CFR 60.8 (b) through (f) with the exception of paragraph (a); and

c. Subsections B through F of this section.

B. Class I units shall submit dioxin/furan emission test results for at least one test conducted during or after 1990. The emission tests shall have been conducted according to the procedures specified under subsection D of this section.

C. Emission testing shall be conducted on the following schedule.

1. Initial emission tests for the pollutants listed in 9VAC5-40-6730 C shall be conducted no later than 180 days after the final compliance date specified in 9VAC5-40-6710 A.

2. Annual emission tests for the pollutants listed in 9VAC5-40-6730 C shall be conducted no later than 13 months after the initial emission test and no later than 13 months after the previous emission test thereafter.

D. Emission testing shall be conducted as follows.

1. Specific testing requirements are as follows.

a. For dioxins/furans: Reference Method 1 shall be used to determine the sampling location. Reference Method 23 shall be used to measure the pollutant concentration; oxygen (or carbon dioxide) shall be measured simultaneously using Reference Method 3A or 3B. The minimum sampling time shall be four hours per test run while the municipal waste combustion unit is operating at full load.

b. For cadmium: Reference Method 1 shall be used to determine the sampling location. Reference Method 29 shall be used to measure the pollutant concentration; oxygen (or carbon dioxide) shall be measured simultaneously using Reference Method 3A or 3B. Compliance testing shall be performed while the municipal waste combustion unit is operating at full load.

c. For lead: Reference Method 1 shall be used to determine the sampling location. Reference Method 29 shall be used to measure the pollutant concentration; oxygen (or carbon dioxide) shall be measured simultaneously using Reference Method 3A or 3B. Compliance testing shall be performed while the municipal waste combustion unit is operating at full load.

d. For mercury: Reference Method 1 shall be used to determine the sampling location. Reference Method 29 shall be used to measure the pollutant concentration; oxygen (or carbon dioxide) shall be measured simultaneously using Reference Method 3A or 3B. Compliance testing shall be performed while the municipal waste combustion unit is operating at full load.

e. For opacity: Reference Method 9 shall be used to determine the sampling location, and Reference Method 9 shall be used to measure the pollutant concentration. Reference Method 9 shall be used to determine compliance with the opacity limits, using a three-hour observation period (30 six-minute averages).

f. For particulate matter: Reference Method 1 shall be used to determine the sampling location, and Reference Method 5 or 29 shall be used to measure the pollutant concentration. The minimum sample probe volume shall be 1.0 cubic meters. The probe and filter holder heating systems in the sampling train shall be set to provide a gas temperature no greater than 160 ± 14°C. The minimum sampling time is one hour.

g. For hydrogen chloride: Reference Method 1 shall be used to determine the sampling location. Reference Method 26 or 26A shall be used to measure the pollutant concentration; oxygen (or carbon dioxide) shall be measured simultaneously using Reference Method 3A or 3B. Test runs shall be at least one hour long while the municipal waste combustion unit is operating at full load.

h. For fugitive ash: No sampling location applies. Reference Method 22 (visible emissions) shall be used to measure the pollutant concentration. The three one-hour observation periods shall include periods when the facility transfers fugitive ash from the municipal waste combustion unit to the area where the fugitive ash is stored or loaded onto containers or trucks.

i. For sulfur dioxide, nitrogen oxide, and carbon monoxide, continuous emission monitoring systems shall be used. Emission tests are not required except for quality assurance requirements in appendix F of 40 CFR Part 60.

2. Emission tests for all pollutants shall consist of at least three test runs as specified in 40 CFR 60.8. The average of the pollutant emission concentrations from the three test runs shall be used to determine compliance with the applicable emission limits.

3. Oxygen (or carbon dioxide) measurements shall be obtained at the same time as the pollutant measurements to determine diluent gas levels, as specified in 9VAC5-40-6750 B.

4. The percent reduction in potential hydrogen chloride emission shall be calculated using the following equation:

%P_HCI = (E_i – E_o) * (100/E_i)

where:

%P_HCI = percent reduction of the potential hydrogen chloride emissions

E_i = hydrogen chloride emission concentration as measured at the air pollution control device inlet, corrected to 7.0% oxygen, dry basis

E_o = hydrogen chloride emission concentration as measured at the air pollution control device outlet, corrected to 7.0% oxygen, dry basis

5. The reduction efficiency for mercury emissions shall be calculated using the following equation:

_Hg = (E_i – E_o)*(100/E_i)

where:

_Hg = percent reduction of potential mercury emissions

E_i = mercury emission concentration as measured at the air pollution control device inlet, corrected to 7.0% oxygen, dry basis

E_o = mercury emission concentration as measured at the air pollution control device outlet, corrected to 7.0% oxygen, dry basis

6. The owner may apply to the board for approval under 40 CFR 60.8(b) to use a reference method with minor changes in methodology, use an equivalent method, use an alternative method the results of which the board has determined are adequate for demonstrating compliance, waive the requirement for an emission test because the owner has demonstrated compliance by other means, or use a shorter sampling time or smaller sampling volume.

E. Alternative emission testing schedules may be established as follows.

1. A Class II unit that has conducted emission tests for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash over three consecutive years, and has demonstrated compliance with the emission limits is not required to conduct an emission test for that pollutant for the next two years. An emission test shall be conducted within 36 months of the anniversary date of the third consecutive emission test that shows compliance with the emission limit. Thereafter, emission tests shall be performed every third year but no later than 36 months following the previous emission tests. If an emission test shows noncompliance with an emission limit, annual emission tests for that pollutant shall be conducted until all emission tests over three consecutive years show compliance with the emission limit for that pollutant.

2. An alternative test schedule for dioxins/furans emissions may be established if the following criteria are met: (i) the affected facility contains multiple municipal waste combustion units onsite that are subject to this article; and (ii) those municipal waste combustion units have demonstrated levels of dioxins/furans emissions less than or equal to 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, for two consecutive years. If these criteria are met, annual emission tests shall be conducted on only one municipal waste combustion unit per year. emission tests conducted under the provisions of this subdivision shall be conducted as follows.

a. The annual emission test shall be conducted no more than 13 months following an emission test on any municipal waste combustion unit subject to this article. Each year a different municipal waste combustion unit subject to this article shall be tested. All municipal waste combustion units subject to this article shall be tested in a sequence determined by the owner. Once a testing sequence has been determined it shall not be changed without approval of the board.

b. If each annual emission test shows levels of dioxins/furans emissions less than or equal to 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, emission tests may be conducted on only one municipal waste combustion unit subject to this article per year.

c. If any annual emission test indicates levels of dioxins/furans emissions greater than 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, subsequent annual emission tests shall be conducted on all municipal waste combustion units subject to this article. The owner may return to testing one municipal waste combustion unit subject to this article per year if it can demonstrate dioxins/furans emissions levels less than or equal to 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, for all municipal waste combustion units at a stationary source subject to this article for two consecutive years.

F. No owner of an affected facility shall deviate from the 13-month testing schedules specified in 9VAC5-40-6740 C and 9VAC5-40-6740 E 2 a without applying to the board for an alternative schedule, and the board approves the request for alternate scheduling prior to the date on which the owner would otherwise have been required to conduct the next emission test.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6750 Monitoring

A. The provisions governing monitoring shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6670 A, 9VAC5-40-6680, and 9VAC5-40-6690, the provisions of 9VAC5-40-40 (Monitoring) apply.

2. With regard to the emission limits in 9VAC5-40-6570 through 9VAC5-40-6660 and 9VAC5-40-6670 B, the following provisions apply:

a. 9VAC5-40-40 A and F;

b. 40 CFR 60.13; and

c. Subsections B through L of this section.

B. Continuous emission monitoring systems for gaseous pollutants shall be installed as follows.

1. Each affected municipal waste combustion unit shall install, calibrate, maintain, and operate continuous emission monitoring systems for oxygen (or carbon dioxide), sulfur dioxide, and carbon monoxide. Class I municipal waste combustion units shall also install, calibrate, maintain, and operate a continuous emission monitoring system for nitrogen oxides. The continuous emission monitoring systems for sulfur dioxide, nitrogen oxides, and oxygen (or carbon dioxide) shall be installed at the outlet of the air pollution control device.

2. Each continuous emission monitoring system shall be installed, evaluated, and operated according to the monitoring requirements in 40 CFR 60.13.

3. The oxygen (or carbon dioxide) concentration shall be monitored at each location where sulfur dioxide and carbon monoxide are monitored. Class I units shall also monitor the oxygen (or carbon dioxide) concentration at the location where nitrogen oxides are monitored.

4. Carbon dioxide may be monitored instead of oxygen as a diluent gas. If carbon dioxide is monitored, then an oxygen monitor is not required and the requirements in 9VAC5-40-6750 F shall be met.

5. If compliance is demonstrated by monitoring the percent reduction of sulfur dioxide, continuous emission monitoring systems for sulfur dioxide and oxygen (or carbon dioxide) shall be installed at the inlet of the air pollution control device.

6. If an alternative sulfur dioxide monitoring method is used, such as parametric monitoring, or if the source cannot monitor emissions at the inlet of the air pollution control device to determine percent reduction, an alternative monitoring method may be used on approval of the board under 40 CFR 60.13(i).

C. Continuous emission monitoring systems shall be operated as follows.

1. Initial, daily, quarterly, and annual evaluations of the continuous emission monitoring systems that measure oxygen (or carbon dioxide), sulfur dioxide, nitrogen oxides (Class I units only), and carbon monoxide shall be conducted.

2. The initial evaluation of the continuous emission monitoring systems shall be completed within 180 days after the final compliance date specified in 9VAC5-40-6710 A.

3. For initial and annual evaluations, data shall be collected concurrently (or within 30 to 60 minutes) using the oxygen (or carbon dioxide) continuous emission monitoring system, the sulfur dioxide, nitrogen oxides, or carbon monoxide continuous emission monitoring systems, as appropriate, using the following test methods:

a. For nitrogen oxides as monitored by Class I units, the pollutant concentration levels shall be validated using Reference Method 7, 7A, 7B, 7C, 7D, or 7E; oxygen (or carbon monoxide) shall be measured using Reference Method 3 or 3A.

b. For sulfur dioxide, the pollutant concentration levels shall be validated using Reference Method 6 or 6C; oxygen (or carbon monoxide) shall be measured using Reference Method 3 or 3A.

c. For carbon monoxide, the pollutant concentration levels shall be validated using Reference Method 10, 10A, or 10B; oxygen (or carbon monoxide) shall be measured using Reference Method 3 or 3A.

4. Data shall be collected during each initial and annual evaluation of the continuous emission monitoring systems as follows.

a. For opacity: the span value shall be 100%, and Performance Specification 1 shall be used. Reference Method 9 shall be used if needed to meet minimum data requirements.

b. For nitrogen oxides as monitored by Class I units: the span value for the control device outlet shall be 125% of the maximum expected hourly potential nitrogen oxides emissions of the municipal waste combustion unit, and Performance Standard 2 shall be used. Reference Method 7E shall be used if needed to meet minimum data requirements.

c. For sulfur dioxide:

(1) For the inlet to the control device: the span value shall be 125% of the maximum expected hourly potential sulfur dioxide emissions of the municipal waste combustion unit, and Performance Standard 2 shall be used. Reference Method 6C shall be used if needed to meet minimum data requirements.

(2) For the control device outlet: the span value shall be 50% of the maximum expected hourly potential sulfur dioxide emissions of the municipal waste combustion unit, and Performance Standard 2 shall be used. Reference Method 6C shall be used if needed to meet minimum data requirements.

d. For carbon monoxide: the span value shall be 125% of the maximum expected hourly potential carbon monoxide emissions of the municipal waste combustion unit, and Performance Specification 4A shall be used. Reference Method 10 with alternative interference trap shall be used if needed to meet minimum data requirements.

e. For oxygen or carbon dioxide: the span value shall be 25% oxygen or 25% carbon dioxide, and Performance Specification 3 shall be used. Reference Method 3A or 3B shall be used if needed to meet minimum data requirements.

5. The quality assurance procedures in Procedure 1 of appendix F of 40 CFR Part 60 shall be followed for each continuous emission monitoring system.

D. The accuracy tests for the sulfur dioxide continuous emission monitoring system require evaluation of the oxygen (or carbon dioxide) continuous emission monitoring system. Therefore, the oxygen (or carbon dioxide) continuous emission monitoring system is exempt from Section 2.3 of Performance Specification 3 in appendix B of 40 CFR Part 60 (relative accuracy requirement) and Section 5.1.1 of appendix F of 40 CFR Part 60 (relative accuracy test audit).

E. The following schedule for evaluating continuous emission monitoring systems shall be met.

1. Annual evaluations of the continuous emission monitoring systems shall be conducted no more than 13 months after the previous evaluation was conducted.

2. Continuous emission monitoring systems shall be evaluated daily and quarterly as specified in appendix F of 40 CFR Part 60.

F. The relationship between oxygen and carbon dioxide shall be established during the initial evaluation of the continuous emission monitoring systems, and may be reestablished during annual evaluations. The relationship shall be established as follows.

1. Reference Method 3A or 3B shall be used to determine oxygen concentration at the location of the carbon dioxide monitor.

2. At least three test runs for oxygen shall be conducted. Each test run shall represent a one-hour average, and sampling shall continue for at least 30 minutes in each hour.

3. The fuel-factor equation in Reference Method 3B shall be used to determine the relationship between oxygen and carbon dioxide.

G. The following monitoring data shall be collected.

1. Where continuous emission monitoring systems are required, one-hour arithmetic averages shall be obtained. The averages for sulfur dioxide, nitrogen oxides (Class I units only), and carbon monoxide shall be in parts per million by dry volume at 7.0% oxygen (or the equivalent carbon dioxide level). The one-hour averages of oxygen (or carbon dioxide) data from the continuous emission monitoring system shall be used to determine the actual oxygen (or carbon dioxide) level and to calculate emissions at 7.0% oxygen (or the equivalent carbon dioxide level).

2. At least two data points per hour shall be obtained in order to calculate a valid one-hour arithmetic average. 40 CFR 60.13(e)(2) requires the continuous emission monitoring systems to complete at least one cycle of operation (sampling, analyzing, and data recording) for each 15-minute period.

3. Valid one-hour averages shall be obtained for 75% of the operating hours per day for 90% of the operating days per calendar quarter. An operating day is any day the unit combusts any municipal solid waste or refuse-derived fuel.

4. Failure to obtain the minimum data required in subdivisions G 1 through 3 of this section constitutes a violation of the data collection requirement regardless of the emission level monitored. In such case the board shall be notified according to 9VAC5-40-6770 B 2 e.

5. If the minimum data required in subdivisions G 1 through 3 of this section is not obtained, the owner shall nevertheless use all valid data from the continuous emission monitoring systems in calculating emission concentrations and percent reductions in accordance with subsection H of this section.

H. One-hour arithmetic averages shall be converted into averaging times and units as follows.

1. Emissions shall be calculated at 7.0% oxygen using the following equation:

C_7%=C_unc(13.9)(1/(20.9–CO₂))

where:

C_7% = concentration corrected to 7.0% oxygen.

C_unc = uncorrected pollutant concentration.

CO₂ = concentration of oxygen (percent).

2. Reference Method 19 shall be used to calculate the daily geometric average concentrations of sulfur dioxide emissions. Owners monitoring the percent reduction of sulfur dioxide shall use Reference Method 19 to determine the daily geometric average percent reduction of potential sulfur dioxide emissions.

3. Class I units shall use Reference Method 19 to calculate the daily arithmetic average for concentrations of nitrogen oxides.

4. Reference Method 19 shall be used to calculate the four-hour or 24-hour daily block averages (as applicable) for concentrations of carbon monoxide.

I. Operating parameters required for continuous monitoring are as follows.

1. Municipal waste combustion unit load shall be monitored as follows:

a. Municipal waste combustion units that generate steam shall install, calibrate, maintain, and operate a steam flowmeter or a feed water flowmeter as follows.

(1) The measurements of steam (or feed water) shall be continuously measured and recorded in kilograms (or pounds) per hour.

(2) The steam (or feed water) flow shall be calculated in four-hour block averages.

(3) The steam (or feed water) flow rate shall be calculated using the method in "American Society of Mechanical Engineers Power Test Codes: Test Code for Steam Generating Units, Power Test Code 4.1—1964 (R1991)," section 4 (see 9VAC5-20-21).

(4) Nozzles or orifices for flow rate measurements shall be designed, constructed, installed, calibrated, and used following the recommendations in "American Society of Mechanical Engineers Interim Supplement 19.5 on Instruments and Apparatus: Application, Part II of Fluid Meters," 6th Edition (1971), chapter 4 (see 9VAC5-20-21).

(5) Before each dioxins/furans emission test, or at least once a year, all signal conversion elements associated with steam (or feed water) flow measurements shall be calibrated according to the manufacturer's instructions.

b. If the municipal waste combustion units do not generate steam, or if the municipal waste combustion units have shared steam systems and steam load cannot be estimated per unit, the owner shall determine, to the satisfaction of the board, one or more operating parameters that can be used to continuously estimate load level (for example, the feed rate of municipal solid waste or refuse-derived fuel). The selected parameters shall be monitored continuously.

2. The owner shall install, calibrate, maintain, and operate a device to continuously measure the temperature of the flue gas stream at the inlet of each particulate matter control device.

3. Municipal waste combustion units that use activated carbon to control dioxins/furans or mercury emissions shall perform the following.

a. A carbon injection system operating parameter that can be used to calculate carbon feed rate (for example, screw feeder speed) shall be selected.

b. During each dioxins/furans and mercury emission test, the average carbon feed rate in kilograms (or pounds) per hour and the average operating parameter level that correlates to the carbon feed rate shall be determined. A relationship between the operating parameter and the carbon feed rate in order to calculate the carbon feed rate based on the operating parameter level shall be established.

c. The selected operating parameter shall be continuously monitored during all periods when the municipal waste combustion unit is operating and combusting waste, and the eight-hour block average carbon feed rate shall be calculated in kilograms (or pounds) per hour, based on the selected operating parameter. When calculating the eight-hour block average, (i) hours when the municipal waste combustion unit is not operating shall be excluded, and (ii) hours when the municipal waste combustion unit is operating but the carbon feed system is not working correctly shall be included.

4. Continuous parameter monitoring systems shall meet the following requirements.

a. One-hour arithmetic averages shall be obtained for the following parameters:

(1) Load level of the municipal waste combustion unit;

(2) Temperature of the flue gases at the inlet of the particulate matter control device; and

(3) Carbon feed rate if activated carbon is used to control dioxins/furans or mercury emissions.

b. In order to calculate a valid one-hour arithmetic average, at least two data points per hour shall be obtained.

c. Valid one-hour averages shall be obtained for at least 75% of the operating hours per day for 90% of the operating days per calendar quarter. An operating day is any day the unit combusts any municipal solid waste or refuse-derived fuel.

d. If the minimum data required in subdivisions 4 a through c of this subsection are not obtained, the owner is in violation of the data collection requirement, and shall notify the board according to 9VAC5-40-6770 B 2 e.

J. An initial evaluation of the continuous opacity monitoring system shall be completed according to Performance Specification 1 in appendix B of 40 CFR Part 60 no later than 180 days after the final compliance date specified in 9VAC5-40-6710 A. Each annual evaluation of the continuous opacity monitoring system shall be completed no more than 13 months after the previous evaluation. Tests shall be conducted according to Reference Method 9, as specified in 9VAC5-40-6740 D, to determine compliance with the opacity limit in 9VAC5-40-6660. The data obtained from the continuous opacity monitoring system are not used to determine compliance with the opacity limit.

K. Operation of the continuous emission monitoring systems and continuous opacity monitoring system shall use the required span values and applicable performance specifications in 9VAC5-40-6750 C.

L. If any continuous emission monitoring systems are temporarily unavailable to meet the data collection requirements due to systems malfunction or when repairs, calibration checks, or zero and span checks prevent collection of the minimum amount of data, the alternate methods found in 9VAC5-40-6740 D shall be used.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6760 Recordkeeping

A. The provisions governing recordkeeping shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6670 A, 9VAC5-40-6680, and 9VAC5-40-6690, the provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

2. With regard to the emission limits in 9VAC5-40-6570 through 9VAC5-40-6660 and 9VAC5-40-6670 B, the following provisions apply:

a. 9VAC5-40-50 F and H;

b. 40 CFR 60.7; and

c. Subsections B through F of this section.

B. All records shall be kept onsite in paper copy or electronic format unless the board approves another format. All records on each municipal waste combustion unit shall be kept for at least five years, and shall be available for submittal to the board or for onsite review by an inspector.

C. The following records for operator training and certification shall be maintained.

1. Records of provisional certifications, including:

a. For the municipal waste combustion plant, names of the chief facility operator, shift supervisors, and control room operators who are provisionally certified by the American Society of Mechanical Engineers, or an equivalent board-approved certification program.

b. Dates of the initial provisional certifications.

c. Documentation showing current provisional certifications.

2. Records of full certifications and licenses, including:

a. For the municipal waste combustion plant, names of the chief facility operator, shift supervisors, and control room operators who are fully certified by the American Society of Mechanical Engineers or an equivalent board-approved program.

b. Dates of initial and renewal of full certifications and licenses.

c. Documentation showing current full certifications and licenses.

3. Records showing completion of the operator training course, including:

a. For the municipal waste combustion plant, names of the chief facility operator, shift supervisors, and control room operators who have completed the EPA municipal waste combustion operator training course or or an equivalent board-approved program.

b. Dates of completion of the operator training course.

c. Documentation showing completion of the operator training course.

4. Records of reviews for plant-specific operating manuals, including:

a. Names of persons who have reviewed the operating manual.

b. Date of the initial review.

c. Dates of subsequent annual reviews.

5. Records of when a certified operator is temporarily offsite, including:

a. If the certified chief facility operator and certified shift supervisor are offsite for more than 12 hours, but for two weeks or less, and no other certified operator is onsite, the dates that the certified chief facility operator and certified shift supervisor were offsite shall be recorded.

b. When all certified chief facility operators and certified shift supervisors are offsite for more than two weeks and no other certified operator is onsite, the following records shall be kept:

(1) The notice that all certified persons are offsite.

(2) The conditions that cause those people to be offsite.

(3) The corrective actions being taken to ensure a certified chief facility operator or certified shift supervisor is onsite.

(4) Copies of the written reports submitted every four weeks that summarize the actions taken to ensure that a certified chief facility operator or certified shift supervisor will be onsite.

6. Records of calendar dates. Include the calendar date on each record.

D. For emission tests required under 9VAC5-40-6730 C, the following records shall be kept.

1. Emission test results for dioxins/furans, cadmium, lead, mercury, opacity, particulate matter, hydrogen chloride, and fugitive ash.

2. Test reports, including supporting calculations that document the results of all emission tests.

3. The maximum demonstrated load of the municipal waste combustion units and maximum temperature at the inlet of the particulate matter control device during all emission tests for dioxins/furans emissions.

4. The calendar date of each record.

E. For continuously monitored pollutants or parameters, the following records shall be maintained.

1. Records of monitoring data, including the following parameters measured using continuous monitoring systems:

a. All six-minute average levels of opacity.

b. All one-hour average concentrations of sulfur dioxide emissions.

c. For Class I units, all one-hour average concentrations of nitrogen oxides emissions.

d. All one-hour average concentrations of carbon monoxide emissions.

e. All one-hour average load levels of the municipal waste combustion unit.

f. All one-hour average flue gas temperatures at the inlet of the particulate matter control device.

2. Records of average concentrations and percent reductions.

a. All 24-hour daily block geometric average concentrations of sulfur dioxide emissions or average percent reductions of sulfur dioxide emissions.

b. For Class I units, all 24-hour daily arithmetic average concentrations of nitrogen oxides emissions.

c. All four-hour block or 24-hour daily block arithmetic average concentrations of carbon monoxide emissions.

d. All four-hour block arithmetic average load levels of the municipal waste combustion unit.

e. All four-hour block arithmetic average flue gas temperatures at the inlet of the particulate matter control device.

3. Records of exceedances, including:

a. Calendar dates whenever any of the pollutant or parameter levels recorded in subdivision 2 of this subsection or the opacity level recorded in subdivision 1 of this subsection did not meet the emission limits or operating levels specified in this article.

b. Reasons why the applicable emission limits or operating levels were exceeded.

c. Corrective actions taken or being taken to meet the emission limits or operating levels.

4. Records of minimum data, including the following:

a. Calendar dates for which the minimum amount of data required under 9VAC5-40-6750 G and I 4 were not collected for the following types of pollutants and parameters:

(1) Sulfur dioxide emissions.

(2) For Class I units, nitrogen oxides emissions.

(3) Carbon monoxide emissions.

(4) Load levels of the municipal waste combustion unit.

(5) Temperatures of the flue gases at the inlet of the particulate matter control device.

b. Reasons why the minimum data were not collected.

c. Corrective actions taken or being taken to obtain the required amount of data.

5. Records of exclusions, including documentation of each time data was excluded from the calculation of averages for any of the following pollutants or parameters and the reasons why the data were excluded:

a. Sulfur dioxide emissions.

b. For Class I units, nitrogen oxides emissions.

c. Carbon monoxide emissions.

d. Load levels of the municipal waste combustion unit.

e. Temperatures of the flue gases at the inlet of the particulate matter control device.

6. Records of drift and accuracy, including documentation of the results of daily drift tests and quarterly accuracy determinations according to procedure 1 of appendix F of 40 CFR Part 60, for the sulfur dioxide, nitrogen oxides (Class I units only), and carbon monoxide continuous emissions monitoring systems.

7. Records of the relationship between oxygen and carbon dioxide. If carbon dioxide is monitored instead of oxygen as a diluent gas, document the relationship between oxygen and carbon dioxide, as specified in 9VAC5-40-6750 F.

8. Records of calendar dates shall be included on each record.

F. Municipal waste combustion units that use activated carbon to control dioxins/furans or mercury emissions shall maintain the following records.

1. Records of average carbon feed rate, including documentation of the following:

a. Average carbon feed rate in kilograms (or pounds) per hour during all emission tests for dioxins/furans and mercury emissions, with supporting calculations.

b. For the operating parameter chosen to monitor carbon feed rate, average operating level during all emission tests for dioxins/furans and mercury emissions. Supporting data that document the relationship between the operating parameter and the carbon feed rate shall be included in the records.

c. All eight-hour block average carbon feed rates in kilograms (or pounds) per hour calculated from the monitored operating parameter.

d. Total carbon purchased and delivered to the municipal waste combustion plant for each calendar quarter. If the total carbon purchased and delivered is evaluated on a municipal waste combustion unit basis, the total carbon purchased and delivered for each individual municipal waste combustion unit shall be recorded. Supporting documentation shall be included in the records.

e. Required quarterly usage of carbon for the municipal waste combustion plant. If the required quarterly usage for carbon is evaluated on a municipal waste combustion unit basis, the required quarterly usage for each municipal waste combustion unit shall be recorded. Supporting calculations shall be included in the records.

(1) The following equation shall be used for calculation on a plant basis:

where:

C = required quarterly carbon usage for the plant in kilograms (or pounds).

f_i = required carbon feed rate for the municipal waste combustion unit in kilograms (or pounds) per hour. That is, the average carbon feed rate during the most recent mercury or dioxins/furans emission tests (whichever has a higher feed rate).

h_i = number of hours the municipal waste combustion unit was in operation during the calendar quarter (hours).

n = number of municipal waste combustion units, i, located at the plant.

(2) The following equation shall be used for calculation on a unit basis:

C=f*h

where:

C = required quarterly carbon usage for the unit in kilograms (or pounds).

f = required carbon feed rate for the municipal waste combustion unit in kilograms (or pounds) per hour. That is, the average carbon feed rate during the most recent mercury or dioxins/furans emission tests (whichever has a higher feed rate).

h = number of hours the municipal waste combustion unit was in operation during the calendar quarter (hours).

2. Records of low carbon feed rates, including the following:

a. The calendar dates when the average carbon feed rate over an eight-hour block was less than the average carbon feed rates determined during the most recent emission test for dioxins/furans or mercury emissions (whichever has a higher feed rate).

b. Reasons for the low carbon feed rates.

c. Corrective actions taken or being taken to meet the eight-hour average carbon feed rate requirement.

3. Records of minimum carbon feed rate data, including the following:

a. Calendar dates for which the minimum amount of carbon feed rate data required under 9VAC5-40-6750 I 4 were not collected.

b. Reasons why the minimum data was not collected.

c. Corrective actions taken or being taken to obtain the required amount of data.

4. Records of exclusions, including documentation of each time data were excluded from the calculation of average carbon feed rates and the reasons why.

5. Records of calendar dates, including the calendar date on each record.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6770 Reporting

A. The provisions governing reporting shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-6670 A, 9VAC5-40-6680, and 9VAC5-40-6690, the provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

2. With regard to the emission limits in 9VAC5-40-6570 through 9VAC5-40-6660 and 9VAC5-40-6670 B, the following provisions apply:

a. 9VAC5-40-50 F and H;

b. 40 CFR 60.7; and

c. Subsections B and C of this section.

B. The owner of an affected facility shall submit (i) an initial report; (ii) annual reports; and (iii) semiannual reports for any emission or parameter level that does not meet the provisions of this article, as described in subdivisions B 1 through 3 of this subsection. All reports shall be submitted on paper, postmarked on or before the submittal dates in subdivisions B 1 through 3. Electronic reports may be submitted with the board's prior approval. All reports required by subdivisions B 1 a, 2, and 3 shall be maintained onsite for five years.

1. As specified in 40 CFR 60.7(c), the initial report shall be submitted no later than 180 days after the final compliance date specified in 9VAC5-40-6710 A. The initial report shall include the following:

a. The emission levels measured on the date of the initial evaluation of the continuous emission monitoring systems for all of the following pollutants or parameters as recorded in accordance with 9VAC5-40-6760 E 2:

(1) The 24-hour daily geometric average concentration of sulfur dioxide emissions or the 24-hour daily geometric percent reduction of sulfur dioxide emissions.

(2) For Class I units, the 24-hour daily arithmetic average concentration of nitrogen oxides emissions.

(3) The four-hour block or 24-hour daily arithmetic average concentration of carbon monoxide emissions.

(4) The four-hour block arithmetic average load level of the municipal waste combustion unit.

(5) The four-hour block arithmetic average flue gas temperature at the inlet of the particulate matter control device.

b. The results of the initial emission tests as required by 9VAC5-40-6730 C and recorded in 9VAC5-40-6760 D.

c. The test report that documents the initial emission tests, including supporting calculations.

d. The initial performance evaluation of the continuous emissions monitoring systems, using the applicable performance specifications in appendix B of 40 CFR Part 60 to conduct the evaluation.

e. The maximum demonstrated load of the municipal waste combustion unit and the maximum demonstrated temperature of the flue gases at the inlet of the particulate matter control device, using values established during the initial emission test for dioxins/furans emissions, and including supporting calculations.

f. If activated carbon is used to control dioxins/furans or mercury emissions, the average carbon feed rates recorded during the initial emission tests for dioxins/furans and mercury emissions, including supporting calculations as specified in 9VAC5-40-6760 F 1 a and b.

g. If carbon dioxide is monitored instead of oxygen as a diluent gas, the relationship between oxygen and carbon dioxide as specified in 9VAC5-40-6750 F.

2. The annual report shall be submitted no later than February 1 of each year that follows the calendar year in which the data is collected. If the facility has a federal operating permit for any unit, the permit may require submittal of semiannual reports. The annual report shall summarize data collected for all pollutants and parameters regulated under this article, and shall include:

a. The results of the annual emission test as required by 9VAC5-40-6730 C and as recorded under 9VAC5-40-6760 D 1.

b. A list of the highest average levels recorded, in the appropriate units, for the following pollutants and parameters:

(1) Sulfur dioxide emissions.

(2) For Class I units, nitrogen oxides emissions.

(3) Carbon monoxide emissions.

(4) Load level of the municipal waste combustion unit.

(5) Temperature of the flue gases at the inlet of the particulate matter air pollution control device (four-hour block average).

c. The highest six-minute opacity level measured. The value shall be based on all six-minute average opacity levels recorded by the continuous opacity monitoring system as required by 9VAC5-40-6760 E 1 a.

d. For municipal waste combustion units that use activated carbon for controlling dioxins/furans or mercury emissions, the following records shall be included:

(1) The average carbon feed rates recorded during the most recent dioxins/furans and mercury emission tests.

(2) The lowest eight-hour block average carbon feed rate recorded during the year.

(3) The total carbon purchased and delivered to the municipal waste combustion plant for each calendar quarter. If the total carbon purchased and delivered is evaluated on a municipal waste combustion unit basis, the total carbon purchased and delivered for each individual municipal waste combustion unit shall be recorded.

(4) The required quarterly carbon usage of the municipal waste combustion plant calculated using the equations in 9VAC5-40-6760 F 1 e (1) and (2). If the required quarterly usage for carbon is evaluated on a municipal waste combustion unit basis, the required quarterly usage for each municipal waste combustion unit shall be recorded.

e. The total number of days the minimum number of hours of data for the following pollutants or parameters were not obtained, including the reasons why data were not obtained and corrective actions taken to obtain the data in the future:

(1) Sulfur dioxide emissions.

(2) For Class I units, nitrogen oxides emissions.

(3) Carbon monoxide emissions.

(4) Load level of the municipal waste combustion unit.

(5) Temperature of the flue gases at the inlet of the particulate matter air pollution control device.

(6) Carbon feed rate.

f. The number of hours data have been excluded from the calculation of average levels (include the reasons for excluding it), for the following pollutants and parameters:

(1) Sulfur dioxide emissions.

(2) For Class I units, nitrogen oxides emissions.

(3) Carbon monoxide emissions.

(4) Load level of the municipal waste combustion unit.

(5) Temperature of the flue gases at the inlet of the particulate matter air pollution control device.

(6) Carbon feed rate.

g. A notice of intent to begin a reduced emission testing schedule for dioxins/furans emissions during the following calendar year if the facility is eligible for alternative scheduling as provided in 9VAC5-40-6740 E 1 or 2.

h. A notice of intent to begin a reduced emission testing schedule for other pollutants during the following calendar year if the facility is eligible for alternative scheduling as provided in 9VAC5-40-6740 E 1.

i. A summary of any emission or parameter level that did not meet the limits specified in this article.

j. A summary of the data in subdivisions B 2 a through d of this section from the year preceding the reporting year, which gives the board a summary of the performance of the municipal waste combustion unit over a two-year period.

k. If carbon dioxide is monitored instead of oxygen as a diluent gas, documentation of the relationship between oxygen and carbon dioxide, as specified in 9VAC5-40-6750 F.

l. Documentation of periods when all certified chief facility operators and certified shift supervisors are offsite for more than 12 hours.

3. A semiannual report on any recorded emission or parameter level that does not meet the requirements specified in this article shall be submitted. For data collected during the first half of a calendar year, the report shall be submitted by August 1 of that year. For data collected during the second half of the calendar year, the report shall be submitted by February 1 of the following year. The following information shall be included:

a. For any of the following pollutants and parameters that exceeded the limits specified in this article, the calendar date they exceeded the limits, the averaged and recorded data for that date, the reasons for exceeding the limits, and corrective actions taken:

(1) Concentration or percent reduction of sulfur dioxide emissions.

(2) For Class I units, concentration of nitrogen oxides emissions.

(3) Concentration of carbon monoxide emissions.

(4) Load level of the municipal waste combustion unit.

(5) Temperature of the flue gases at the inlet of the particulate matter air pollution control device.

(6) Average six-minute opacity level. The data obtained from the continuous opacity monitoring system are not used to determine compliance with the limit on opacity emissions.

b. If the results of the annual emission tests (as recorded in 9VAC5-40-6760 D 1) show emissions above the limits for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash, a copy of the test report that documents the emission levels and corrective actions taken shall be included.

c. Municipal waste combustion units that apply activated carbon to control dioxins/furans or mercury emissions shall include the following.

(1) Documentation of all dates when the eight-hour block average carbon feed rate (calculated from the carbon injection system operating parameter) is less than the highest carbon feed rate established during the most recent mercury and dioxins/furans emission test, as specified in 9VAC5-40-6760 F 1 a, including (i) eight-hour average carbon feed rate, (ii) reasons for occurrences of low carbon feed rates, (iii) corrective actions taken to meet the carbon feed rate requirement, and (iv) the calendar date.

(2) Documentation of each quarter when total carbon purchased and delivered to the municipal waste combustion plant is less than the total required quarterly usage of carbon. If the total carbon purchased and delivered is evaluated on a municipal waste combustion unit basis, the total carbon purchased and delivered for each individual municipal waste combustion unit shall be recorded. The following information shall be included: (i) amount of carbon purchased and delivered to the plant, (ii) required quarterly usage of carbon, (iii) reasons for not meeting the required quarterly usage of carbon, (iv) corrective actions taken to meet the required quarterly usage of carbon, and (v) the calendar date.

C. Changes to semiannual or annual reporting dates may be pursued in accordance with the procedures of 40 CFR 60.19(c), and with the approval of the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6780 Requirements for air curtain incinerators that burn 100% yard waste

A. The owner of an air curtain incinerator subject to the provisions of this article shall meet the following opacity requirements no later than 180 days after the final compliance date specified in 9VAC5-40-6710 A.

1. The opacity limit is 10% (six-minute average) for air curtain incinerators that can combust at least 35 tons per day of municipal solid waste and no more than 250 tons per day of municipal solid waste.

2. The opacity limit is 35% (six-minute average) during the startup period that is within the first 30 minutes of operation.

3. Except during malfunctions, the requirements of this article apply at all times. Each malfunction shall not exceed three hours.

4. Compliance with the opacity limit shall be achieved as follows.

a. Reference Method 9 shall be used to determine compliance with the opacity limit.

b. An initial test for opacity as specified in 40 CFR 60.8 shall be conducted no later than 180 days after the final compliance date specified in 9VAC5-40-6710 A.

c. After the initial test for opacity, annual tests shall be conducted no more than 13 calendar months following the date of the previous test.

B. The owner of an air curtain incinerator subject to the provisions of this article shall meet the following recordkeeping and reporting requirements.

1. A notice of construction shall be provided that includes the following:

a. The intent to construct the air curtain incinerator.

b. The planned initial startup date.

c. Types of fuels planned to combust.

d. Incinerator capacity, including supporting capacity calculations, as specified in 9VAC5-40-6730 F.

2. Records of results of all opacity tests shall be maintained onsite in either paper copy or electronic format unless the board approves another format.

3. All records for each incinerator shall be maintained for at least five years.

4. All records shall be available to the board or for onsite review by an inspector.

5. The results (each six-minute average) of the opacity tests shall be submitted no later than February 1 of the year following the year of the opacity emission test.

6. Reports shall be submitted as a paper copy on or before the applicable submittal date. Reports may be submitted on electronic media with prior approval of the board.

7. Annual reporting dates may be revised with the prior approval of the board (see 40 CFR 60.19(c)).

8. All reports shall be maintained onsite for a period of five years.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6790 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6800 Facility and control equipment maintenance or malfunction

A. The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply to the emission standards set forth in 9VAC5-40-6670 A, 9VAC5-40-6680, and 9VAC5-40-6690.

B. The provisions of 9VAC5-20-180 A, B, C, D, H, and I and subsections C through E of this section apply to the emission limits in 9VAC5-40-6530 through 9VAC5-40-6660 and 9VAC5-40-6670 B.

C. The emission limitations and operating limits apply at all times except during periods of municipal waste combustion unit startup, shutdown, or malfunction. No startup, shutdown, or malfunction shall last for longer than three hours. This subsection shall not apply to the emission standards set forth in 9VAC5-40-6670 A, 9VAC5-40-6680, and 9VAC5-40-6690.

D. A maximum of three hours of test data may be dismissed from compliance calculations during periods of startup, shutdown, or malfunction.

E. During startup, shutdown, or malfunction periods longer than three hours, emissions data shall not be discarded from compliance calculations, and all provisions under 40 CFR 60.11(d) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

9VAC5-40-6810 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5-50 and 9VAC5-80 apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 24, eff. September 10, 2003.

Article 47 Emission Standards for Solvent Metal Cleaning Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area (Rule 4-47)

9VAC5-40-6820 Applicability and designation of affected facility

Article 47 Emission Standards for Solvent Metal Cleaning Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area (Rule 4-47)

A. The affected facility to which the provisions of this article apply is each solvent metal cleaning operation, including, but not limited to, cold or vapor degreasing at service stations; motor vehicle repair shops; automobile dealerships; machine shops; and any other metal refinishing, cleaning, repair, or fabrication facility. Certain provisions of this article also apply to sellers of solvents for use in a cold cleaning machine.

B. The provisions of this article apply only to sources and persons in the Northern Virginia volatile organic compounds emissions control area designated in 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6830 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Airless cleaning system" means a solvent cleaning machine that is automatically operated and seals at a differential pressure of 0.50 pounds per square inch gauge (psig) or less, prior to the introduction of solvent or solvent vapor into the cleaning chamber and maintains differential pressure under vacuum during all cleaning and drying cycles.

"Air-tight cleaning system" means a solvent cleaning machine that is automatically operated and seals at a differential pressure no greater than 0.50 psig, prior to the introduction of solvent or solvent vapor into the cleaning chamber and during all cleaning and drying cycles.

"Batch vapor cleaning machine" means a vapor cleaning machine in which individual parts or a set of parts move through the entire cleaning cycle before new parts are introduced into the cleaning machine. The term includes solvent cleaning machines, such as ferris wheel cleaners or cross rod machines, that clean multiple loads simultaneously and are manually loaded. The term does not include machines that do not have a solvent/air interface, such as airless and air-tight cleaning systems.

"Carbon adsorber" means a bed of activated carbon into which an air/solvent gas-vapor stream is routed and which adsorbs the solvent on the carbon.

"Cold cleaning machine" means a device or piece of equipment, containing or using an unheated liquid that contains greater than 5.0% volatile organic compound or 5.0% hazardous air pollutant (HAP) by weight, where parts are placed to remove dirt, grease, oil or other contaminants and coatings, from the surfaces of the parts or to dry the parts. The term does not include machines that do not have a solvent/air interface, such as airless and air-tight cleaning systems.

"Dwell" means holding parts within the freeboard area of a solvent cleaning machine but above the solvent vapor zone. Dwell occurs after cleaning to allow solvent to drain from the parts or parts baskets back into the solvent cleaning machine.

"Dwell time" means the period of time between when a parts basket is placed in the vapor zone of a batch vapor or in-line vapor cleaning machine and when solvent dripping ceases. Dwell time is determined by placing a basket of parts in the vapor zone and measuring the amount of time between when the parts are placed in the vapor zone and dripping ceases.

"Freeboard ratio" means for a cold cleaning machine, the distance from the liquid solvent to the top edge of the cold cleaning machine divided by the width of the cold cleaning machine; for an operating batch vapor cleaning machine or an in-line vapor cleaning machine, the distance from the top of the solvent vapor layer to the top edge of the vapor cleaning machine divided by the width of the vapor cleaning machine.

"Freeboard refrigeration device" means a set of secondary coils mounted in the freeboard area of a solvent cleaning machine that carries a refrigerant or other chilled substance to provide a chilled air blanket above the solvent vapor. A solvent cleaning machine primary condenser that is capable of maintaining a temperature in the center of the chilled air blanket at not more than 30% of the solvent boiling point is both a primary condenser and a freeboard refrigeration device.

"Immersion cold cleaning machine" means a cold cleaning machine in which the parts are immersed in the solvent when being cleaned.

"In-line vapor cleaning machine" means a vapor cleaning machine that uses an automated parts handling system, typically a conveyor, to automatically provide a supply of parts to be cleaned. In-line vapor cleaning machines are fully enclosed except for the conveyor inlet and exit portals.

"Reduced room draft" means decreasing the flow or movement of air across the top of the freeboard area of a solvent cleaning machine to less than 50 feet per minute (15.2 meters per minute) by methods including redirecting fans or air vents, moving a machine to a corner where there is less room draft, or constructing a partial or complete enclosure.

"Remote reservoir cold cleaning machine" means a machine in which liquid solvent is pumped to a sink-like work area that immediately drains solvent back into an enclosed container while parts are being cleaned, allowing no solvent to pool in the work area.

"Solvent/air interface" means the location of contact between the concentrated solvent vapor layer and the air. This location of contact is defined as the midline height of the primary condenser coils. For a cold cleaning machine, it is the location of contact between the liquid solvent and the air.

"Solvent cleaning machine" means a device or piece of equipment that uses solvent liquid or vapor to remove contaminants, such as dirt, grease, oil, and coatings, from the surfaces of materials. Types of solvent cleaning machines include batch vapor cleaning machines, in-line vapor cleaning machines, immersion cold cleaning machines, remote reservoir cold cleaning machines, airless cleaning systems and air-tight cleaning systems.

"Solvent cleaning machine automated parts handling system" means a mechanical device that carries all parts and parts baskets at a controlled speed from the initial loading of soiled or wet parts through the removal of the cleaned or dried parts.

"Solvent cleaning machine down time" means the period when a solvent cleaning machine is not cleaning parts and the sump heating coils, if present, are turned off.

"Solvent cleaning machine idle time" means the period when a solvent cleaning machine is not actively cleaning parts and the sump heating coil, if present, is turned on.

"Solvent metal cleaning operation" means the process of cleaning foreign matter from metal surfaces by using solvents, including, but not limited to, cold cleaning machines that process metal parts and contain more than one liter of volatile organic compounds; batch vapor cleaning machines that process metal parts; in-line vapor cleaning machines; and airless cleaning machines and air-tight cleaning machines that process metal parts.

"Superheated vapor system" means a system that heats the solvent vapor to a temperature 10 degrees Farenheit above the solvent's boiling point. Parts are held in the superheated vapor before exiting the machine to evaporate the liquid solvent on the parts.

"Vapor cleaning machine" means a solvent cleaning machine that boils liquid solvent, generating a vapor, or that heats liquid solvent that is used as part of the cleaning or drying cycle. The term does not include machines that do not have a solvent/air interface, such as airless and air-tight cleaning systems.

"Vapor cleaning machine primary condenser" means a series of circumferential cooling coils on a vapor cleaning machine through which a chilled substance is circulated or recirculated to provide continuous condensation of rising solvent vapors, and thereby, create a concentrated vapor zone.

"Vapor up control switch" means a thermostatically controlled switch that shuts off or prevents condensate from being sprayed when there is no vapor. On in-line vapor cleaning machines the switch also prevents the conveyor from operating when there is no vapor.

"Working mode cover" means any cover or solvent cleaning machine design that allows the cover to shield the cleaning machine openings from outside air disturbances while parts are being cleaned in the cleaning machine. A cover that is used during the working mode is opened only during parts entry and removal.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6840 Standard for volatile organic compounds

A. No owner or other person shall use or permit the use of a cold cleaning machine that processes metal parts and contains more than one liter of volatile organic compounds unless the machine complies with this article. The board may make an exception if the owner demonstrates and the board approves in writing that compliance with the article will result in unsafe operating conditions.

1. Immersion cold cleaning machines shall have a freeboard ratio of 0.75 or greater unless the machines are equipped with covers that are kept closed except when parts are being placed into or being removed from the machine.

2. Immersion cold cleaning machines and remote reservoir cold cleaning machines shall:

a. Have a permanent, conspicuous label summarizing the operating requirements in subdivision 3 of this subsection.

b. Be equipped with a cover that shall be closed at all times except during cleaning of parts or the addition or removal of solvent. For remote reservoir cold cleaning machines that drain directly into the solvent storage reservoir, a perforated drain with a diameter of not more than six inches shall constitute an acceptable cover.

3. Cold cleaning machines shall be operated in accordance with the following procedures:

a. Waste solvent shall be collected and stored in closed containers. The closed containers may contain a device that allows pressure relief, but does not allow liquid solvent to drain from the container.

b. Cleaned parts shall be drained at least 15 seconds or until dripping ceases, whichever is longer. Parts having cavities or blind holes shall be tipped or rotated while the part is draining. During the draining, tipping or rotating, the parts shall be positioned so that solvent drains directly back to the cold cleaning machine.

c. Flushing of parts using a flexible hose or other flushing device shall be performed only within the freeboard area of the cold cleaning machine. The solvent spray shall be a solid fluid stream, not an atomized or shower spray.

d. The owner shall ensure that when the cover is open the cold cleaning machine is not exposed to drafts greater than 40 meters per minute (132 feet per minute), as measured between 1 and 2 meters (3.3 and 6.6 feet) upwind and at the same elevation as the tank lip.

e. Sponges, fabric, wood, leather, paper products and other absorbent materials shall not be cleaned in the cold cleaning machine.

f. When a pump-agitated solvent bath is used, the agitator shall be operated to produce a rolling motion of the solvent with no observable splashing of the solvent against the tank walls or the parts being cleaned. Air agitated solvent baths may not be used.

g. Spills during solvent transfer and use of the cold cleaning machine shall be cleaned up immediately, and the wipe rags or other sorbent material shall be immediately stored in covered containers for disposal or recycling.

h. Work area fans shall be located and positioned so that they do not blow across the opening of the degreaser unit.

i. The owner shall ensure that the solvent level does not exceed the fill line.

4. No person shall use, sell, or offer for sale for use in a cold cleaning machine any solvent with a vapor pressure of 1.0 millimeters of mercury (mm Hg) or greater, measured at 20 degrees Centigrade (68 degrees Fahrenheit containing volatile organic compounds.

5. Any person who sells or offers for sale any solvent containing volatile organic compounds for use in a cold cleaning machine shall provide to the purchaser the following written information:

a. The name and address of the solvent supplier.

b. The type of solvent including the product or vendor identification number.

c. The vapor pressure of the solvent measured in mm Hg at 20 degrees Centigrade (68 degrees Fahrenheit.

6. A person who operates a cold cleaning machine shall maintain for not less than two years and shall provide to the board, on request, the information specified in subdivision A 5 of this section. An invoice, bill of sale, certificate that corresponds to a number of sales, Material Safety Data Sheet (MSDS), or other appropriate documentation acceptable to the board may be used to comply with this section.

B. No owner or other person shall use or permit the use of a batch vapor cleaning machine that processes metal parts unless the machine complies with this article.

1. Batch vapor cleaning machines shall be equipped with:

a. Either a fully enclosed design or a working and downtime mode cover that completely covers the cleaning machine openings when in place, is free of cracks, holes and other defects, and can be readily opened or closed without disturbing the vapor zone. If the solvent cleaning machine opening is greater than 10 square feet, the cover shall be powered. If a lip exhaust is used, the closed cover shall be below the level of the lip exhaust.

b. Sides that result in a freeboard ratio greater than or equal to 0.75.

c. A safety switch (thermostat and condenser flow switch) that shuts off the sump heat if the coolant is not circulating.

d. A vapor up control switch that shuts off the spray pump if vapor is not present.

e. An automated parts handling system that moves the parts or parts baskets at a speed of 11 feet (3.4 meters) per minute or less when the parts are entering or exiting the vapor zone. If the parts basket or parts being cleaned occupy more than 50% of the solvent/air interface area, the speed of the parts basket or parts shall not exceed three feet per minute.

f. A device that shuts off the sump heat if the sump liquid solvent level drops to the sump heater coils.

g. A vapor level control device that shuts off the sump heat if the vapor level in the vapor cleaning machine rises above the height of the primary condenser.

h. Each vapor cleaning machine shall have a primary condenser.

i. Each vapor cleaning machine that uses a lip exhaust shall be designed and operated to route all collected solvent vapors through a properly operated and maintained carbon adsorber such that the concentration of organic solvent in the exhaust does not exceed 100 parts per million.

j. A permanent, conspicuous label summarizing the operating requirements found in subdivision B 4 of this section.

2. In addition to the requirements of subdivision B 1 of this section, the owner of a batch vapor cleaning machine with a solvent/air interface area of 13 square feet or less shall implement one of the following options:

a. A working mode cover, freeboard ratio of 1.0, and superheated vapor.

b. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point and superheated vapor.

c. A working mode cover and a freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point.

d. Reduced room draft, freeboard ratio of 1.0 and superheated vapor;

e. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point and reduced room draft.

f. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point and a freeboard ratio of 1.0.

g. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point and dwell. Dwell shall be not less than 35% of the dwell time determined for the part or parts.

h. Reduced room draft, dwell and a freeboard ratio of 1.0.

i. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point and a carbon adsorber that reduces solvent emissions in the exhaust to a level not to exceed 100 ppm at any time.

j. A freeboard ratio of 1.0, superheated vapor and a carbon adsorber that reduces solvent emissions in the exhaust to a level not to exceed 100 ppm at any time.

3. In addition to the requirements of subdivision B 1 of this section, the owner of a batch vapor cleaning machine with a solvent/air interface area of greater than 13 square feet shall use one of the following devices or strategies:

a. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point, a freeboard ratio of 1.0 and superheated vapor.

b. Dwell, a freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point, and reduced room draft. Dwell shall be not less than 35% of the dwell time determined for the part or parts.

c. A working mode cover and a freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30%6c; of the solvent's boiling point and superheated vapor.

d. Reduced room draft, freeboard ratio of 1.0 and superheated vapor.

e. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point, reduced room draft and superheated vapor.

f. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point, reduced room draft and a freeboard ratio of 1.0.

g. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point, superheated vapor, and a carbon adsorber which reduces solvent emissions in the exhaust to a level not to exceed 100 ppm at any time.

4. Batch vapor cleaning machines shall be operated in accordance with the following procedures:

a. Waste solvent, still bottoms and sump bottoms shall be collected and stored in closed containers. The closed containers may contain a device that allows pressure relief, but does not allow liquid solvent to drain from the container.

b. Cleaned parts shall be drained at least 15 seconds or until dripping ceases, whichever is longer. Parts having cavities or blind holes shall be tipped or rotated while the part is draining. A superheated vapor system shall be an acceptable alternate technology.

c. Parts baskets or parts shall not be removed from the batch vapor cleaning machine until dripping has ceased.

d. Flushing or spraying of parts using a flexible hose or other flushing device shall be performed within the vapor zone of the batch vapor cleaning machine or within a section of the machine that is not exposed to the ambient air. The solvent spray shall be a solid fluid stream, not an atomized or shower spray.

e. When the cover is open, the batch vapor cleaning machine shall not be exposed to drafts greater than 40 meters per minute (132 feet per minute), as measured between 1 and 2 meters (3.3 and 6.6 feet) upwind and at the same elevation as the tank lip.

f. Sponges, fabric, wood, leather, paper products and other absorbent materials shall not be cleaned in the batch vapor cleaning machine.

g. Spills during solvent transfer and use of the batch vapor cleaning machine shall be cleaned up immediately or the machine shall be shut down. Wipe rags or other sorbent material shall be immediately stored in covered containers for disposal or recycling.

h. Work area fans shall be located and positioned so that they do not blow across the opening of the batch vapor cleaning machine.

i. During startup of the batch vapor cleaning machine, the primary condenser shall be turned on before the sump heater.

j. During shutdown of the batch vapor cleaning machine, the sump heater shall be turned off and the solvent vapor layer allowed to collapse before the primary condenser is turned off.

k. When solvent is added to or drained from the batch vapor cleaning machine, the solvent shall be transferred using threaded or other leakproof couplings and the end of the pipe in the solvent sump shall be located beneath the liquid solvent surface.

l. The working and downtime covers shall be closed at all times except during parts entry and exit from the machine, during maintenance of the machine when the solvent has been removed, and during addition of solvent to the machine.

m. If a lip exhaust is used on the open top vapor degreaser, the ventilation rate shall not exceed 20 m³/min/m² (65 ft³/min/ft²) of degreaser open area, unless a higher rate is necessary to meet OSHA requirements.

C. No owner or other person shall use or permit the use of an in-line vapor cleaning machine unless the machine complies with this article.

1. In-line vapor cleaning machines shall be equipped with:

a. Either a fully enclosed design or a working and downtime mode cover that completely covers the cleaning machine openings when in place, is free of cracks, holes and other defects, and can be readily opened or closed without disturbing the vapor zone.

b. A switch (thermostat and condenser flow switch) that shuts off the sump heat if the coolant is not circulating.

c. Sides that result in a freeboard ratio greater than or equal to 0.75.

d. A vapor up control switch.

e. An automated parts handling system that moves the parts or parts baskets at a speed of 11 feet (3.4 meters) per minute or less when the parts are entering or exiting the vapor zone. If the parts basket or parts being cleaned occupy more than 50% of the solvent/air interface area, the speed of the parts basket or parts shall not exceed three feet per minute.

f. A device that shuts off the sump heat if the sump liquid solvent level drops to the sump heater coils.

g. A vapor level control device that shuts off the sump heat if the vapor level in the vapor cleaning machine rises above the height of the primary condenser.

h. A permanent, conspicuous label summarizing these operating requirements.

i. A primary condenser.

j. Each machine that uses a lip exhaust shall be designed and operated to route all collected solvent vapors through a properly operated and maintained carbon adsorber such that the concentration of organic solvent in the exhaust does not exceed 100 parts per million.

2. In addition to the requirements of subdivision C 1 of this section, the owner of an in-line vapor cleaning machine shall use one of the following devices or strategies:

a. A freeboard ratio of 1.0 and superheated vapor.

b. A freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point and a freeboard ratio of 1.0.

c. Dwell and a freeboard refrigeration device operated to ensure that the chilled air blanket temperature is no greater than 30% of the solvent's boiling point. Dwell shall be not less than 35% of the dwell time determined for the part or parts.

d. Dwell and a carbon adsorber that reduces solvent emissions in the exhaust to a level not to exceed 100 ppm at any time. Dwell shall be not less than 35% of the dwell time determined for the part or parts.

3. In-line vapor cleaning machines shall be operated in accordance with the following procedures:

a. Waste solvent, still bottoms, and sump bottoms shall be collected and stored in closed containers. The closed containers may contain a device that allows pressure relief, but does not allow liquid solvent to drain from the container.

b. Parts shall be oriented so that the solvent drains freely from the parts. Cleaned parts shall be drained at least 15 seconds or until dripping ceases, whichever is longer. Parts having cavities or blind holes shall be tipped or rotated while the part is draining.

c. Parts baskets or parts shall not be removed from the in-line vapor cleaning machine until dripping has ceased.

d. Flushing or spraying of parts using a flexible hose or other flushing device shall be performed within the vapor zone of the in-line vapor cleaning machine or within a section of the machine that is not exposed to the ambient air. The solvent spray shall be a solid fluid stream, not an atomized or shower spray.

e. Sponges, fabric, wood, leather, paper products and other absorbent materials shall not be cleaned in the in-line vapor cleaning machine.

f. Spills during solvent transfer and use of the in-line vapor cleaning machine shall be cleaned up immediately, and the wipe rags or other sorbent material shall be immediately stored in covered containers for disposal or recycling.

g. Workplace fans shall not be used near the degreaser opening, and ensure that exhaust ventilation shall not exceed 20 m³/min/m² of degreaser opening, unless a higher rate is necessary to meet OSHA requirements.

h. During startup of the in-line vapor cleaning machine the primary condenser shall be turned on before the sump heater.

i. During shutdown of the in-line vapor cleaning machine, the sump heater shall be turned off and the solvent vapor layer allowed to collapse before the primary condenser is turned off.

j. Spraying operations shall be done in the vapor zone or within a section of the machine that is not exposed to the ambient air.

k. When solvent is added to or drained from the in-line vapor cleaning machine, the solvent shall be transferred using threaded or other leakproof couplings and the end of the pipe in the solvent sump shall be located beneath the liquid solvent surface.

l. Openings shall be minimized during operation so that entrances and exits silhouette workloads with an average clearance between the parts and the edge of the degreaser opening of less than 10 cm (4 in) or less than 10% of the width of the opening.

D. No owner or other person shall use or permit the use of an airless cleaning machine or air-tight cleaning machine that processes metal parts unless the machine complies with this article.

1. The owner of each machine shall maintain a log of solvent additions and deletions for each machine including the weight of solvent contained in activated carbon or other sorbent material used to control emissions from the cleaning machine.

2. The owner of each machine shall demonstrate that the emissions from each machine, on a three-month rolling average, are equal to or less than the allowable limit determined by the use of Table 4-47A or the following equation if the volume of the cleaning machine exceeds 2.95 cubic meters:

EL = 330 (vol)^0.6

where:

EL = the three-month rolling average monthly emission limit (kilograms/month)

vol = the cleaning capacity of machine (cubic meters)

| Table 4-47A Emission Limits for Cleaning Machines Without a Solvent/Air Interface | | | | | | | --- | --- | --- | --- | --- | --- | | Cleaning capacity (cubic meters) | 3-Month rolling average monthly emission limit (kilograms/month) | Cleaning capacity (cubic meters) | 3-Month rolling average monthly emission limit (kilograms/month) | Cleaning capacity (cubic meters) | 3-Month rolling average monthly emission limit (kilograms/month) | | 0.00 | 0 | 1.00 | 330 | 2.00 | 500 | | 0.05 | 55 | 1.05 | 340 | 2.05 | 508 | | 0.10 | 83 | 1.10 | 349 | 2.10 | 515 | | 0.15 | 106 | 1.15 | 359 | 2.15 | 522 | | 0.20 | 126 | 1.20 | 368 | 2.20 | 530 | | 0.25 | 144 | 1.25 | 377 | 2.25 | 537 | | 0.30 | 160 | 1.30 | 386 | 2.30 | 544 | | 0.35 | 176 | 1.35 | 395 | 2.35 | 551 | | 0.40 | 190 | 1.40 | 404 | 2.40 | 558 | | 0.45 | 204 | 1.45 | 412 | 2.45 | 565 | | 0.50 | 218 | 1.50 | 421 | 2.50 | 572 | | 0.55 | 231 | 1.55 | 429 | 2.55 | 579 | | 0.60 | 243 | 1.60 | 438 | 2.60 | 585 | | 0.65 | 255 | 1.65 | 446 | 2.65 | 592 | | 0.70 | 266 | 1.70 | 454 | 2.70 | 599 | | 0.75 | 278 | 1.75 | 462 | 2.75 | 605 | | 0.80 | 289 | 1.80 | 470 | 2.80 | 612 | | 0.85 | 299 | 1.85 | 477 | 2.85 | 619 | | 0.90 | 310 | 1.90 | 485 | 2.90 | 625 | | 0.95 | 320 | 1.95 | 493 | 2.95 | 632 |

3. The owner of each machine shall operate the machine in conformance with the manufacturer's instructions and good air pollution control practices.

4. The owner of each machine equipped with a solvent adsorber shall measure and record the concentration of solvent in the exhaust of the carbon adsorber weekly with a colorimetric detector tube designed to measure a concentration of 100 ppm by volume of solvent to air at an accuracy of plus or minus 25 ppm by volume. This test shall be conducted while the solvent cleaning machine is in the working mode and is venting to the adsorber.

5. The owner of each machine equipped with a solvent adsorber shall maintain and operate the machine and adsorber system so that emissions from the adsorber exhaust do not exceed 100 ppm by volume measured while the solvent cleaning machine is in the working mode and is venting to the adsorber.

6. The machine shall be equipped with a permanent, conspicuous label summarizing the operating requirements in subdivision 7 of this subsection.

7. Airless cleaning machines and air-tight cleaning machines shall be operated in accordance with the following procedures:

a. Waste solvent, still bottoms, and sump bottoms shall be collected and stored in closed containers. The closed containers may contain a device that allows pressure relief, but does not allow liquid solvent to drain from the container.

b. Parts shall be oriented so that the solvent drains freely from the parts. Cleaned parts shall be drained at least 15 seconds or until dripping ceases, whichever is longer. Parts having cavities or blind holes shall be tipped or rotated while the part is draining.

c. Parts baskets or parts shall not be removed from the in-line vapor cleaning machine until dripping has ceased.

d. Sponges, fabric, wood, leather, paper products and other absorbent materials shall not be cleaned in the airless cleaning machines and air-tight cleaning machines.

e. Spills during solvent transfer and use of the airless cleaning machines and air-tight cleaning machines shall be cleaned up immediately, and the wipe rags or other sorbent material shall be immediately stored in covered containers for disposal or recycling.

f. Work area fans shall be located and positioned so that they do not blow across the airless cleaning machine and air-tight cleaning machine.

g. Spraying operations shall be done in the vapor zone or within a section of the machine that is not exposed to the ambient air.

h. When solvent is added to or drained from the airless cleaning machine and air-tight cleaning machine, the solvent shall be transferred using threaded or other leakproof couplings and the end of the pipe in the solvent sump shall be located beneath the liquid solvent surface.

E. As an alternative to complying with the provisions of subsections B through D of this section the owner of a solvent cleaning machine may demonstrate compliance with subdivision 1 or 2 of this subsection. The owner shall maintain records sufficient to demonstrate compliance. The records shall include, at a minimum, the quantity of solvent added to and removed from the solvent cleaning machine, the dates of the addition and removal and shall be maintained for not less than two years.

1. If the cleaning machine has a solvent/air interface, the owner shall:

a. Maintain a log of solvent additions and removals for each solvent cleaning machine.

b. Ensure that emissions from each solvent cleaning machine are equal to or less than the applicable emission limit presented in Table 4-47B.

| | Table 4-47B Emission Limits for Batch Vapor and In-Line Solvent Cleaning Machines with a Solvent/Air Interface | | | | --- | --- | --- | --- | | | Solvent cleaning machine | 3-month rolling average monthly emission limit | | | | kg/m²/month | lb/ft²/month | | | | Batch vapor solvent cleaning machines | 150 | 30.7 | | | Existing in-line solvent cleaning machines | 153 | 31.3 | | | New in-line solvent cleaning machines | 99 | 20.2 |

2. If the cleaning machine is a batch vapor cleaning machine and does not have a solvent/air interface, the owner shall:

a. Maintain a log of solvent additions and deletions for each solvent cleaning machine.

b. Ensure that the emissions from each solvent cleaning machine are equal to or less than the appropriate limits as described in subdivisions 3 and 4 of this subsection. Each owner of a batch vapor or in-line cleaning machine complying with this section shall demonstrate compliance with the applicable three-month rolling average monthly emission limit on a monthly basis.

3. For cleaning machines with a cleaning capacity that is less than or equal to 2.95 cubic meters, the emission limit shall be determined using Table 4-47A or the equation in subdivision 4 of this subsection. If the table is used and the cleaning capacity of the cleaning machine falls between two cleaning capacity sizes, then the lower of the two emission limits applies.

4. For cleaning machines with a cleaning capacity that is greater than 2.95 cubic meters, the emission limit shall be determined using the following equation:

EL = 330 (vol)^0.6

where:

EL = the three-month rolling average monthly emission limit (kilograms/month)

vol = the cleaning capacity of machine (cubic meters)

5. Each owner of a batch vapor or in-line solvent cleaning machine complying with this subsection shall demonstrate compliance with the applicable three-month rolling average monthly emission limit on a monthly basis. If the applicable three-month rolling average emission limit is not met, an exceedance has occurred. All exceedances shall be reported to the board within 30 days of the determination of the exceedance.

F. The owner of a batch vapor or in-line solvent cleaning machine complying with subsection E shall maintain records and determine compliance with the applicable provisions in accordance with the following.

1. On the first operating day of every month ensure that the solvent cleaning machine system contains only clean liquid solvent. This includes, but is not limited to, fresh unused solvent, recycled solvent and used solvent that has been cleaned of soils. A fill line shall be indicated during the first month the measurements are made. The solvent level within the machine shall be returned to the same fill-line each month, immediately prior to calculating monthly emissions as specified in subdivision 2 of this subsection. The solvent cleaning machine does not have to be emptied and filled with fresh unused solvent prior to the calculations.

2. Using the records of all solvent additions and deletions for the previous monthly reporting period, determine solvent emissions (E) using one of the following equations:

For cleaning machines with a solvent/air interface:

| | E = | SA - LSR - SSR | | --- | --- | --- | | | AREA | |

where:

E = the total halogenated hazardous air pollutant (HAP) solvent emissions from the solvent cleaning machine during the most recent monthly reporting period (kilograms of solvent per square meter of solvent/air interface area per month)

SA = the total amount of halogenated HAP liquid solvent added to the solvent cleaning machine during the most recent monthly reporting period (kilograms of solvent per month)

LSR = the total amount of halogenated HAP liquid solvent removed from the solvent cleaning machine during the most recent monthly reporting period (kilograms of solvent per month)

SSR = the total amount of halogenated HAP solvent removed from the solvent cleaning machine in solid waste during the most recent monthly reporting period (kilograms of solvent per month) determined from tests conducted using EPA Reference Method 25d or by engineering calculations included in the compliance report

Area = the solvent/air interface area of the solvent cleaning machine (square meters)

For cleaning machines without a solvent/air interface:

E = SA - LSR - SSR

where:

E = the total halogenated HAP solvent emissions from the solvent cleaning machine during the most recent monthly reporting period i, (kilograms of solvent per month)

SA = the total amount of halogenated HAP liquid solvent added to the solvent cleaning machine during the most recent monthly reporting period (kilograms of solvent per month)

LSR = the total amount of halogenated HAP liquid solvent removed from the solvent cleaning machine during the most recent monthly reporting period (kilograms of solvent per month)

SSR = the total amount of halogenated HAP solvent removed from the solvent cleaning machine in solid waste during the most recent monthly reporting period (kilograms of solvent per month) determined from tests conducted using EPA reference method 25d or by engineering calculations included in the compliance report

3. Determine the monthly rolling average, EA, for the three-month period ending with the most recent reporting period using one of the following equations:

For cleaning machines with a solvent/air interface:

where:

EA = the average halogenated HAP solvent emissions over the preceding three-monthly reporting periods (kilograms of solvent per square meter of solvent/air interface area per month)

E = halogenated HAP solvent emissions for each month (j) for the most recent three-monthly reporting periods (kilograms of solvent per square meter of solvent/air interface area)

j=1 = the most recent monthly reporting period

j=2 = the monthly reporting period immediately prior to j=1

j=3 = the monthly reporting period immediately prior to j=2

For cleaning machines without a solvent/air interface:

where:

EA = the average halogenated HAP solvent emissions over the preceding three monthly reporting periods (kilograms of solvent per month)

E = halogenated HAP solvent emissions for each month (j) for the most recent three monthly reporting periods (kilograms of solvent per month)

j=1 = the most recent monthly reporting period

j=2 = the monthly reporting period immediately prior to j=1

j=3 = the monthly reporting period immediately prior to j=2

G. The owner of a solvent cleaning machine subject to the provisions of subsections B through D of this section shall conduct monitoring and recordkeeping as follows.

1. If a freeboard refrigeration device is used to comply with these standards, the owner shall use a thermometer or thermocouple to measure the temperature at the center of the air blanket during the idling mode. Measurements and recordings shall be made weekly.

2. If a superheated vapor system is used to comply with these standards, the owner shall use a thermometer or thermocouple to measure the temperature at the center of the superheated solvent vapor zone while the solvent cleaning machine is in the idling mode. Measurements and recordings shall be made weekly.

3. If a cover (working-mode, downtime-mode, or idling-mode cover) is used to comply with these standards, the owner shall conduct a visual inspection to determine if the cover is opening and closing properly, completely covers the cleaning machine openings when closed, and is free of cracks, holes, and other defects. Observations and recordings shall be made weekly.

4. If dwell is used, the owner shall determine the actual dwell time by measuring the period of time that parts are held within the freeboard area of the solvent cleaning machine after cleaning. Observations and recordings shall be made monthly.

5. The owner shall determine the hoist speed by measuring the time it takes for the hoist to travel a measured distance. The speed is equal to the distance in meters divided by the time in minutes (meters per minute). Measurements and recordings shall be made monthly.

6. The owner of a batch vapor or in-line solvent cleaning machine complying using reduced room draft, maintained by controlling room parameters (i.e., redirecting fans, closing doors and windows, etc.), shall conduct monitoring and record the results as follows.

a. Initially measure the windspeed within six inches above the top of the freeboard area of the solvent cleaning machine in accordance with the following:

(1) Determine the direction of the wind current by slowly rotating a velometer or similar device until the maximum speed is located.

(2) Orient a velometer in the direction of the wind current at each of the four corners of the machine.

(3) Record the reading for each corner.

(4) Average the values obtained at each corner and record the average wind speed.

b. Record the room parameters established during the initial compliance test to achieve the reduced room draft.

c. Quarterly monitoring of the windspeed in accordance with subdivision 6 a of this subsection.

d. Weekly monitoring of the room parameters as specified in subdivision 6 b of this subsection.

7. If an enclosure (full or partial) is used to achieve reduced room draft, the owner shall conduct an initial monitoring test and, thereafter, monthly monitoring tests of the windspeed within the enclosure by slowly rotating a velometer inside the entrance to the enclosure until the maximum speed is located and record the maximum wind speed. The owner shall also conduct a monthly visual inspection of the enclosure to determine if it is free of cracks, holes and other defects.

8. The owner of a machine using a carbon adsorber to comply with this section shall measure and record the concentration of halogenated HAP solvent in the exhaust of the carbon adsorber weekly with a colorimetric detector tube. This test shall be conducted while the solvent cleaning machine is in the working mode and is venting to the carbon adsorber. The exhaust concentration shall be determined using a colorimetric detector tube designed to measure a concentration of 100 parts per million by volume of solvent in air to an accuracy of plus or minus 25 parts per million by volume. The concentration shall be determined through a sampling port for monitoring within the exhaust outlet that is easily accessible and located at least eight stack or duct diameters downstream and two stack or duct diameters upstream from any flow disturbance such as a bend, expansion, contraction, or outlet, and downstream from no other inlet.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Errata, 20:18 VA.R. 2027 May 17, 2004.

9VAC5-40-6850 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6860 Standard for fugitive dust/emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6870 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6880 Standard for toxic pollutants

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6890 Compliance

The provisions of subsections B, D, F, and J of 9VAC5-40-20 (Compliance) apply. The other provisions of 9VAC5-40-20 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6900 Compliance schedules

Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than January 1, 2005.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6910 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission testing) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6920 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6930 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6940 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6950 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6960 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5 Chapter 50 (9VAC5-50) and 9VAC5 Chapter 80 (9VAC5-80) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

Article 48 Emission Standards for Mobile Equipment Repair and Refinishing Operations (Rule 4-48)

9VAC5-40-6970 Applicability and designation of affected facility

Article 48 Emission Standards for Mobile Equipment Repair and Refinishing Operations (Rule 4-48)

A. Except as provided in 9VAC5-40-6975, the affected facility to which the provisions of this article apply is each mobile equipment repair and refinishing operation. Certain provisions also apply to each person providing or selling affected coatings.

B. The provisions of this article apply only to sources and persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-40-6975 Exemptions

The provisions of this article do not apply under any of the following circumstances:

1. The mobile equipment repair and refinishing operation is subject to Article 28 (9VAC5-40-3860 et seq.) of 9VAC5-40 (Emission Standards for Automobile and Light Duty Truck Coating Application Systems).

2. The mobile equipment repair and refinishing operation is subject to Article 34 (9VAC5-40-4760 et seq.) of 9VAC5-40 (Emission Standards for Miscellaneous Metal Parts and Products Coating Application Systems).

3. The person applying the coatings does not receive compensation for the application of the coatings.

4. The mobile equipment repair and refinishing operation uses coatings required to meet military specifications (MILSPEC) where no other existing coating can be used that meets the provisions of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-40-6980 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Airless spray" means a spray coating method in which the coating is atomized by forcing it through a small nozzle opening at high pressure. The coating is not mixed with air before exiting from the nozzle opening.

"Antique motor vehicle" means a motor vehicle, but not a reproduction thereof, manufactured more than 25 years prior to the current year that has been maintained in or restored to a condition that is substantially in conformance with manufacturer specifications.

"Automotive elastomeric coating" means a coating designed for application over surfaces of flexible mobile equipment and mobile equipment components, such as elastomeric bumpers.

"Automotive impact-resistant coating" means a coating designed to resist chipping caused by road debris.

"Automotive jambing clearcoat" means a fast-drying, ready-to-spray clearcoat applied to surfaces such as door jambs and trunk and hood edges to allow for quick closure.

"Automotive lacquer" means a thermoplastic coating applied directly to bare metal surfaces of mobile equipment and mobile equipment components that dries primarily by solvent evaporation and that is resoluble in its original solvent.

"Automotive low-gloss coating" means a coating that exhibits a gloss reading less than or equal to 25 on a 60 degree glossmeter.

"Automotive multicolored topcoat" means a topcoat that exhibits more than one color, is packaged in a single container, and camouflages surface defects on areas of heavy use, such as cargo beds and other surfaces of trucks and other utility vehicles.

"Automotive pretreatment" means a primer that contains a minimum of 0.5% acid, by weight, that is applied directly to bare metal surfaces of mobile equipment and mobile equipment components to provide corrosion resistance and to promote adhesion of subsequent coatings.

"Automotive primer-sealer" means a coating applied to mobile equipment and mobile equipment components prior to the application of a topcoat for the purpose of providing corrosion resistance, promoting adhesion of subsequent coatings, promoting color uniformity, and promoting the ability of the undercoat to resist penetration by the topcoat.

"Automotive primer-surfacer" means a coating applied to mobile equipment and mobile equipment components prior to the application of topcoat for the purpose of filling surface imperfections in the substrate, providing corrosion resistance, or promoting adhesion of subsequent coatings.

"Automotive specialty coating" means coatings including, but not limited to, elastomeric coatings, adhesion promoters, low gloss coatings, bright metal trim repair coatings, jambing clearcoats, impact resistant coatings, rubberized asphaltic underbody coatings, uniform finish blenders, weld-through primers applied to automotive surfaces and lacquer topcoats applied to a classic motor vehicle or to an antique motor vehicle.

"Automotive topcoat" means a coating or series of coatings applied over an automotive primer-surfacer, automotive primer-sealer or existing finish on the surface of mobile equipment and mobile equipment components for the purpose of protection or beautification.

"Automotive touch up repair" means the application of automotive topcoat finish materials to cover minor finishing imperfections equal to or less than one inch in diameter.

"Classic motor vehicle" means a motor vehicle, but not a reproduction thereof, manufactured at least 15 years prior to the current year that has been maintained in or restored to a condition that is substantially in conformity with manufacturer specifications and appearance.

"Mobile equipment" means equipment that may be driven or is capable of being driven on a roadway including, but not limited to, automobiles; trucks, truck cabs, truck bodies and truck trailers; buses; motorcycles; utility bodies; camper shells; mobile cranes; bulldozers; street cleaners; golf carts; ground support vehicles, used in support of aircraft activities at airports; and farm equipment.

"Mobile equipment repair and refinishing operation" means any facility that applies automotive pretreatment, automotive primer-surface, automotive primer-sealer, automotive topcoat, or automotive specialty or color matched coatings to mobile equipment or mobile equipment components.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-6990 Standard for volatile organic compounds

A. No owner or other person may apply to mobile equipment or mobile equipment components any automotive pretreatment, automotive primer-surface, automotive primer-sealer, automotive topcoat, or automotive specialty coatings, including any VOC-containing materials added to the original coating supplied by the manufacturer, that contain VOCs in excess of the limits specified in Table 4-48A.

| Table 4-48A. Allowable Content of VOCs in Mobile Equipment Repair and Refinishing Coatings (as applied) | | | | --- | --- | --- | | Weight of VOC per Volume of Coating (minus water and non-VOC solvents) | | | | Coating Type | Limit | | | | Pounds per gallon | Grams per Liter | | Automotive pretreatment primer | 6.5 | 780 | | Automotive primer-surfacer | 4.8 | 575 | | Automotive primer-sealer | 4.6 | 550 | | Automotive topcoat: | | | | Single stage-topcoat | 5.0 | 600 | | 2 stage basecoat/clearcoat | 5.0 | 600 | | 3 or 4-stage basecoat/clearcoat | 5.2 | 625 | | Automotive Multi-colored Topcoat | 5.7 | 680 | | Automotive specialty | 7.0 | 840 |

B. A person who provides mobile equipment repair and refinishing coatings subject to this section shall provide documentation concerning the VOC content of the coatings calculated in accordance with the following:

1. The mass of VOC per combined volume of VOC and coating solids, less water and exempt compounds shall be calculated by the following equation:

| | VOC = | (Wv - Ww - Wec) | | --- | --- | --- | | (V - Vw - Vec) | | |

where:

VOC = VOC content in grams per liter (g/l) of coating less water and non-VOC solvents;

Wv = Mass of total volatiles, in grams;

Ww = Mass of water, in grams;

Wec = Mass of exempt compounds, in grams;

V = Volume of coating, in liters;

Vw = Volume of water, in liters; and

Vec = Volume of exempt compounds, in liters.

To convert from grams per liter to pounds per gallon (lb/gal), multiply the result (VOC content) by 8.345 x 10^-3 (lb/gal/g/l).

2. The VOC content of a multi-stage topcoat shall be calculated by the following equation:

where:

VOCmulti = VOC content of multistage topcoat, g/l

VOCbc = VOC content of basecoat, g/l

VOCmci = VOC content of the midcoat(s), g/l

VOCcc = VOC content of the clear coat, g/l

M = number of midcoats

C. A person subject to the provisions of this section shall use one or more of the following application techniques to apply any finish material listed in Table 4-48A:

1. Flow/curtain coating;

2. Dip coating;

3. Roller coating;

4. Brush coating;

5. Cotton-tipped swab application;

6. Electrodeposition coating;

7. High volume low pressure (HVLP) spraying;

8. Electrostatic spray;

9. Airless spray; or

10. Other coating application methods that achieve emission reductions equivalent to or greater than those achieved by HVLP or electrostatic spray application methods.

D. The following activities are exempt from the application equipment requirements listed in subsections E and F of this section:

1. The use of airbrush application methods for stenciling, lettering, and other identification markings;

2. The application of coatings sold in nonrefillable aerosol containers; and

3. The application of automotive touch-up repair finish materials.

E. Spray guns used to apply mobile equipment repair and refinishing coatings shall be cleaned by one of the following:

1. An enclosed spray gun cleaning system that is kept closed when not in use;

2. Unatomized discharge of solvent into a paint waste container that is kept closed when not in use;

3. Disassembly of the spray gun and cleaning in a vat that is kept closed when not in use; or

4. Atomized spray into a paint waste container that is fitted with a device designed to capture atomized solvent emissions.

F. The owner of a facility subject to the provisions of this article shall implement the following housekeeping and pollution prevention and training measures:

1. Fresh and used coatings, solvent, and cleaning solvents, shall be stored in nonabsorbent, nonleaking containers. The containers shall be kept closed at all times except when filling or emptying;

2. Cloth and paper, or other absorbent applicators, moistened with coatings, solvents, or cleaning solvents, shall be stored in closed, nonabsorbent, nonleaking containers;

3. Handling and transfer procedures shall minimize spills during the transfer of coatings, solvents, and cleaning solvents; and

4. Ensure that a person who applies mobile equipment repair and refinishing coatings has completed training approved by the manufacturer of the coatings in the proper use and handling of the mobile equipment repair and refinishing coatings, solvents and waste products in order to minimize the emission of air contaminants and to comply with this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Errata, 20:18 VA.R. 2027 May 17, 2004.

9VAC5-40-7000 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7010 Standard for fugitive dust/emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7020 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7030 Standard for toxic pollutants

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7040 Compliance

The provisions of subsections B, D, F, and J of 9VAC5-40-20 (Compliance) apply. The other provisions of 9VAC5-40-20 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7050 Compliance schedules

Affected persons and facilities shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area;

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area; or

3. March 1, 2014, in the Richmond VOC Emissions Control Area.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-40-7060 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission testing) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7070 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7080 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7090 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7100 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7110 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5 Chapter 50 (9VAC5-50) and 9VAC5 Chapter 80 (9VAC5-80) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act, 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC5-40-7120 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7130 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7140 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Errata 20:18 VA.R. 2027 May 17, 2004; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; Errata, 23:5 VA.R. 791 November 13, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7150 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7160 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7170 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7180 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7190 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7200 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7210 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; amended, Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7220 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Errata 20:18 VA.R. 2027 May 17, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7230 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 12, eff. March 24, 2004; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7240 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7250 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7260 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; Errata 21:13 VA.R. 1941 March 7, 2005; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; Errata 23:5 VA.R. 791 November 13, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7270 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; Errata, 21:13 VA.R. 1941 March 7, 2005; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7280 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7290 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7300 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7310 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7320 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7330 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7340 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7350 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-40-7360 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 21, Issue 11, eff. March 9, 2005; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

Article 51 Emission Standards for Stationary Sources Subject to Case-by-Case RACT Determination (Rule 4-51)

9VAC5-40-7370 Applicability and designation of affected facility

Article 51 Emission Standards for Stationary Sources Subject to Case-by-Case RACT Determination (Rule 4-51)

A. The affected facility to which the provisions of this article apply is each facility that is within a stationary source that has a theoretical potential to emit equal to or greater than the applicable source threshold specified in Table 4-51A or 4-51B, and Table 4-51C or 4-51E.

B. The provisions of this article apply to all Emission Control Areas as defined in 9VAC5-20-206 and indicated in Table 4-51A or 4-51B, and Table 4-51C or 4-51E.

C. The provisions of this article do not apply to a particular pollutant from an affected facility if the affected facility is subject to other emission standards in this chapter covering the same pollutant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7380 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Capacity factor" means the ratio of the average load on a machine or equipment for the period of time considered to be the capacity rating of the machine or equipment.

"Combustion modification" means any change to the configuration of the burners or the firing method or mechanism of any combustion equipment for the purpose of reducing the emissions of nitrogen oxides. Acceptable combustion equipment changes within the context of this term include, but are not limited to, reburning, burners out of service, flue gas recirculation, fuel substitution, engine adjustments, engine modifications, fuel modifications and the addition of over fire air and low nitrogen oxides burner systems.

"Fossil fuel" means natural gas, petroleum, coal and any form of solid, liquid or gaseous fuel derived from such materials for the purpose of creating useful heat.

"Fuel burning equipment" means any furnace, with fuel burning equipment appurtenances thereto, used in the process of burning fuel for the primary purpose of producing heat to be utilized by indirect heat transfer or producing power. This includes facilities that are designed as boilers to produce steam or heated water and are designed to burn either fossil fuel or refuse derived fuel. It does not include such facilities if designed primarily to burn raw refuse.

"Gas turbine" means a rotary internal combustion engine fueled by liquid or gaseous fuel.

"Heat input" means the total gross calorific value of all fuels burned.

"Incinerator" means any device, apparatus, equipment, or structure using combustion or pyrolysis for destroying, or reducing the volume of any material or substance.

"Internal combustion engine" means a reciprocating engine that is fueled by liquid or gaseous fuel.

"Presumptive RACT" means the emission limit that a particular source is capable of meeting by the application of reasonably available control technology that is defined in 9VAC5-40-7430.

"Process heater" means any fuel burning equipment that is used to produce heat for use in a manufacturing process. This term includes boilers that use a heat transfer medium other than water, but does not include drying ovens, steam generating units, or other drying apparatus.

"Rated capacity" means the capacity as stipulated in the purchase contract for the condition of 100% load, or such other capacities as mutually agreed to by the board and owner using good engineering judgment.

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

"Refuse derived fuel (RDF)" means fuel produced from solid or liquid waste (includes materials customarily referred to as refuse and other discarded materials) or both that has been segregated and classified, with the useable portions being put through a size reduction and classification process which results in a relatively homogeneous mixture.

"Steam generating unit" means any furnace, boiler or other device used for combusting fuel for the purpose of producing steam.

"Theoretical potential to emit" means the maximum capacity of a stationary source to emit a pollutant based on emissions at design capacity or maximum production and maximum operating hours (8,760 hours/year) before add-on controls, unless the facility is subject to state and federally enforceable permit conditions that limit production rates or hours of operation. Emissions from all facilities, including facilities exempt from any other emission standard for volatile organic compounds or nitrogen oxides in this chapter, shall be added together to determine theoretical potential to emit.

"Tpy" means tons per year.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7390 Standard for volatile organic compounds (one-hour ozone standard)

A. No owner or other person shall cause or permit to be discharged from any affected facility any volatile organic compounds (VOCs) emissions in excess of that resultant from using RACT.

B. The provisions of this section apply to all facilities that (i) are within a stationary source in the emissions control areas specified in Table 4-51A and (ii) are within a stationary source that has a theoretical potential to emit at the applicable source thresholds specified Table 4-51A.

| TABLE 4-51A. Notification and Compliance Dates for Facilities Located in VOC Emissions Control Areas. | | | | | --- | --- | --- | --- | | Emissions Control Area | Source Threshold | Notification Date | Compliance Date | | Richmond | ≥ 100 tpy | October 1, 1991 | May 31, 1995 | | Northern Virginia | ≥ 100 tpy | October 1, 1991 | May 31, 1995 | | Northern Virginia | ≥ 50 tpy and < 100 tpy | April 1, 1993 | May 31, 1995 | | Northern Virginia | ≥ 25 tpy and < 50 tpy | July 1, 1996 | May 31, 1996 |

C. For facilities subject to the provisions of this section, the owners shall, by the notification dates specified in Table 4-51A, (i) notify the board of their applicability status, (ii) commit to making a determination as to what constitutes RACT for the facilities and (iii) provide a schedule acceptable to the board for making this determination and for achieving compliance with the emission standard as expeditiously as possible but no later than the compliance dates specified in Table 4-51A.

D. For the purposes of this section only, the Richmond Emissions Control Area shall not include Prince George County and Petersburg City.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7400 Standard for volatile organic compounds (eight-hour ozone standard)

A. No owner or other person shall cause or permit to be discharged from any affected facility any volatile organic compounds (VOCs) emissions in excess of that resultant from using RACT.

B. The provisions of this section apply to all facilities that (i) are within a stationary source in the emissions control areas specified in Table 4-51B and (ii) are within a stationary source that has a theoretical potential to emit at the applicable source thresholds specified Table 4-51B.

| | TABLE 4-51B. Notification and Compliance Dates for Facilities Located in VOC Emissions Control Areas. | | | | | --- | --- | --- | --- | --- | | Standard | Emissions Control Area | Source Threshold | Notification Date | Compliance Date | | 1997 (0.08 ppm) | Northern Virginia | ≥ 50 tpy | March 1, 2007 | April 1, 2009 | | 2008 (0.075 ppm) | Northern Virginia | ≥ 50 tpy | February 1, 2016 | January 1, 2017 |

C. For facilities subject to the provisions of this section, the owners shall, by the notification dates specified in Table 4-51B, (i) notify the board of their applicability status, (ii) commit to making a determination as to what constitutes RACT for the facilities, and (iii) provide a schedule acceptable to the board for making this determination and for achieving compliance with the emission standard as expeditiously as possible but no later than the compliance dates specified in Table 4-51B.

D. Nothing in this article shall exempt any facility subject to the provisions of 9VAC5-40-7390 from being subject to the provisions of this section. The board may reevaluate any RACT determination made under 9VAC5-40-7390 and require compliance with a new RACT determination as necessary to implement this section.

E. Upon the request of the board, the owner of a facility subject to or exempt from the provisions of 9VAC5-40-7390 shall provide such information as the board deems necessary to determine if the facility is subject to this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006; amended, Virginia Register Volume 32, Issue 5, eff. December 2, 2015.

9VAC5-40-7410 Standard for nitrogen oxides (one-hour ozone standard)

A. No owner or other person shall cause or permit to be discharged from any affected facility any nitrogen oxides (NO_X) emissions in excess of that resultant from using RACT.

B. Unless the owner demonstrates otherwise to the satisfaction of the board, facilities to which the presumptive RACT provisions of 9VAC5-40-7430 are applicable shall comply with the provisions of subsection A of this section by the use of presumptive RACT.

C. The provisions of this section apply to all facilities that (i) are within a stationary source in the emissions control areas specified in Table 4-51C and (ii) are within a stationary source that has a theoretical potential to emit at the applicable source thresholds specified in Table 4-51C.

| TABLE 4-51C. Notification and Compliance Dates for Facilities Located in NO_X Emissions Control Areas for Which There is No Presumptive RACT. | | | | | --- | --- | --- | --- | | Emissions Control Area | Source Threshold | Notification Date | Compliance Date | | Northern Virginia | ≥ 50 tpy | April 1, 1993 | May 31, 1995 | | Northern Virginia | ≥ 25 tpy and < 50 tpy | September 4, 2003 | November 15, 2005 | | Western Virginia | ≥ 100 tpy | June 24, 2004 | November 15, 2005 |

D. For facilities subject to the provisions of this section and for which there is no presumptive RACT definition, the owners shall, by the notification dates specified in Table 4-51C, (i) notify the board of their applicability status, (ii) commit to making a determination as to what constitutes RACT for the facilities and (iii) provide a schedule acceptable to the board for making this determination and for achieving compliance with the emission standard as expeditiously as possible but no later than the compliance dates specified in Table 4-51C.

E. For facilities subject to the provisions of this section and for which there is a presumptive RACT definition, the owners shall, by the notification dates specified in Table 4-51D, (i) notify the board of their applicability status, (ii) commit to accepting the presumptive RACT emission limits as RACT for the applicable facilities or to submitting a demonstration as provided in subsection B of this section and (iii) provide a schedule acceptable to the board for submitting the demonstration no later than the demonstration dates specified in Table 4-51D, and for achieving compliance with the emission standard as expeditiously as possible but no later than the compliance dates specified in Table 4-51D.

| TABLE 4-51D. Notification and Compliance Dates for Facilities Located in NO_X Emissions Control Areas for Which Presumptive RACT is Defined. | | | | | | --- | --- | --- | --- | --- | | Emissions Control Area | Source Threshold | Notification Date | Demonstration Date | Compliance Date | | Northern Virginia | ≥ 50 tpy | April 1, 1993 | January 1, 1994 | May 31, 1995 | | Northern Virginia | ≥ 25 tpy and < 50 tpy | September 4, 2003 | January 1, 2004 | November 15, 2005 | | Western Virginia | ≥ 100 tpy | June 24, 2004 | January 1, 2004 | November 15, 2005 |

F. No owner or other person shall cause or permit to be discharged from any facility any NO_X emissions in excess of those necessary to achieve emissions reductions identified in any attainment or maintenance plan or any other legally enforceable document submitted to the U.S. Environmental Protection Agency as a revision to the state implementation plan.

1. The facilities to which the provisions of this subsection apply are facilities within any emissions control area (see 9VAC5-20-206) identified in any attainment or maintenance plan submitted to the U.S. Environmental Protection Agency as a revision to the state implementation plan.

2. The board may establish case-by-case emission limits and other requirements as may be necessary to achieve the required emission reductions via permits, consent orders, or other legally enforceable means.

3. Facilities subject to this subsection shall be in compliance with any limits and other requirements established pursuant to subdivision 2 of this subsection within the timeframes established in any state plan revision, permit, or other legally enforceable document.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7420 Standard for nitrogen oxides (eight-hour ozone standard)

A. No owner or other person shall cause or permit to be discharged from any affected facility any nitrogen oxides (NO_X) emissions in excess of that resultant from using RACT.

B. Unless the owner demonstrates otherwise to the satisfaction of the board, facilities to which the presumptive RACT provisions of 9VAC5-40-7430 are applicable shall comply with the provisions of subsection A of this section by the use of presumptive RACT.

C. The provisions of this section apply to all facilities that (i) are within a stationary source in the emissions control areas specified in Table 4-51E and (ii) are within a stationary source that has a theoretical potential to emit at the applicable source thresholds specified in Table 4-51E.

| TABLE 4-51E. Notification and Compliance Dates for Facilities Located in NO_X Emissions Control Areas for Which There is No Presumptive RACT. | | | | | | --- | --- | --- | --- | --- | | Standard | Emissions Control Area | Source Threshold | Notification Date | Compliance Date | | 1997 (0.08 ppm) | Northern Virginia | ≥ 100 tpy | March 1, 2007 | April 1, 2009 | | 2008 (0.075 ppm) | Northern Virginia | ≥ 100 tpy | February 1, 2016 | January 1, 2017 |

D. For facilities subject to the provisions of this section and for which there is no presumptive RACT definition, the owners shall, by the notification dates specified in Table 4-51E, (i) notify the board of their applicability status, (ii) commit to making a determination as to what constitutes RACT for the facilities, and (iii) provide a schedule acceptable to the board for making this determination and for achieving compliance with the emission standard as expeditiously as possible but no later than the compliance dates specified in Table 4-51E.

E. For facilities subject to the provisions of this section and for which there is a presumptive RACT definition, the owners shall, by the notification dates specified in Table 4-51F, (i) notify the board of their applicability status, (ii) commit to accepting the presumptive RACT emission limits as RACT for the applicable facilities or to submitting a demonstration as provided in subsection B of this section, and (iii) provide a schedule acceptable to the board for submitting the demonstration no later than the demonstration dates specified in Table 4-51F and for achieving compliance with the emission standard as expeditiously as possible but no later than the compliance dates specified in Table 4-51F.

| TABLE 4-51F. Notification and Compliance Dates for Facilities Located in NO_X Emissions Control Areas for Which Presumptive RACT is Defined. | | | | | | | --- | --- | --- | --- | --- | --- | | Standard | Emissions Control Area | Source Threshold | Notification Date | Demonstration Date | Compliance Date | | 1997 (0.08 ppm) | Northern Virginia | ≥ 100 tpy | March 1, 2007 | June 1, 2007 | April 1, 2009 | | 2008 (0.075 ppm) | Northern Virginia | ≥ 100 tpy | February 1, 2016 | February 1, 2016 | January 1, 2017 |

F. Nothing in this article shall exempt any facility subject to the provisions of 9VAC5-40-7410 from being subject to the provisions of this section. The board may reevaluate any RACT determination made under 9VAC5-40-7410 and require compliance with a new RACT determination as necessary to implement this section.

G. Upon the request of the board, the owner of a facility subject to or exempt from the provisions of 9VAC5-40-7410 shall provide such information as the board deems necessary to determine if the facility is subject to this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006; amended, Virginia Register Volume 26, Issue 8, eff. January 20, 2010; Volume 32, Issue 5, eff. December 2, 2015.

9VAC5-40-7430 Presumptive reasonably available control technology guidelines for stationary sources of nitrogen oxides

A. Unless otherwise approved by the board, this section defines presumptive RACT for the purposes of compliance with 9VAC5-40-7410 A or 9VAC5-20-7420 A for the source types specified here.

B. Presumptive RACT is defined as follows.

1. For the source types listed below, RACT is defined as the emission limits specified below based upon the application of combustion modification; however, owners may elect to use any alternative control technology, provided such alternative is capable of achieving the prescribed emission limits.

a. The maximum allowable emission rate for NO_X from steam generating units and process heaters is as follows:

| TABLE 4-51G. Maximum Allowable Emission Rates for NO_X Emissions from Steam Generating Units and Process Heaters (pounds per million Btu heat input). | | | | | --- | --- | --- | --- | | Fuel Type | Firing Method | | | | Face* and Tangential | Cyclone | Stokers | | | Coal – wet bottom | 1.0 | .55 | N/A | | Coal – dry bottom | .38 | N/A | 0.4 | | Oil or Gas or both | .25 | .43 | N/A | | Gas only | .20 | N/A | N/A | | *Includes wall, opposed and vertical firing methods | | | |

b. The maximum allowable emission rate for NO_X from gas turbines is as follows:

| TABLE 4-51H. Maximum Allowable Emission Rates for NO_X Emissions from Gas Turbines (parts per million by dry volume corrected to 15% oxygen). | | | | --- | --- | --- | | Fuel Type | Turbine Type | | | Simple Cycle | Combined Cycle | | | Gas | 42 | 42 | | Oil | 65/77* | 65/77* | | *Limit shall be 65 ppm for fuel bound nitrogen (FBN) <0.015% and 77 ppm for FBN ≥ .015%. | | |

2. Any demonstration of compliance with the limits in subdivision B 1 of this section shall be on a daily basis.

3. The following sources are not required to make demonstration of RACT as required by 9VAC5-40-7410 B or 9VAC5-40-7420 B.

a. Any steam generating unit, process heater or gas turbine with an annual capacity factor of less than 5.0%, except that three months following any calendar year during which the capacity factor is 5.0% or greater, the facility shall be subject to 9VAC5-40-7410 A or B, or 9VAC5-40 7420 A or B, as applicable, and the owner shall comply with 9VAC5-40-7410 D or E, or 9VAC5-40-7420 D or E, as applicable, except the compliance date shall be two years after approval of the schedule by the board. Time periods during which a stand-by unit is used to provide replacement services for a unit being altered to comply with the provisions of 9VAC5-40-7410 A or B, or 9VAC5-40-7420 A or B, shall not be used as the basis for a determination that the stand-by unit exceeded the annual capacity factor criteria of 5.0%.

b. Any stationary internal combustion engine with a rated capacity of less than 450 hp of output power.

c. Any incinerator with a maximum capacity of less than 50 tons of waste per day.

d. Any incinerator or thermal or catalytic oxidizer used exclusively as air pollution control equipment.

e. Any generator used solely to supply emergency power to buildings during periods when normal power supplies are interrupted and during periods of scheduled maintenance.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7440 Standard for visible emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7450 Standard for fugitive dust/emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7460 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7470 Standard for toxic pollutants

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7480 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7490 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission Testing) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7500 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7510 Notification, records and reporting

The provisions of 9VAC5-40-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7520 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7530 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

9VAC5-40-7540 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5-50 and 9VAC5-80 may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 5, eff. December 15, 2006.

Article 52 Emission Standards for Stationary Sources Subject to Case-by-Case BART Determinations

9VAC5-40-7550 Applicability and designation of affected facility

Article 52 Emission Standards for Stationary Sources Subject to Case-by-Case BART Determinations

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each BART-eligible source that emits any air pollutant that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory federal class I area.

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

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

1. Any BART-eligible source with the potential to emit less than 40 tons per year of SO₂ or NO_X, or less than 15 tons per year of PM₁₀.

2. Any existing stationary facility subject to the requirement under 9VAC5-40-7580 to install, operate, and maintain BART for which the board has granted an exemption in accordance with 9VAC5-40-7560 or for which the administrator has granted an exemption under 40 CFR 51.303 with which the board concurs.

3. The provisions of this article do not apply to sources subject to Part IV (9VAC5-140-3010 et seq.) of 9VAC5-140, Regulation for Emissions Trading.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7560 Exemptions from control

A. Any existing stationary facility subject to the requirement to install, operate, and maintain BART may apply to the board for an exemption from that requirement. An application under this subsection shall include all available documentation relevant to the impact of the source's emissions on visibility in any mandatory federal class I area and a demonstration by the existing stationary facility that it does not or will not, by itself or in combination with other sources, emit any air pollutant that may be reasonably anticipated to cause or contribute to a significant impairment of visibility in any mandatory federal class I area.

B. Any fossil-fuel fired power plant with a total generating capacity of 750 megawatts or more may receive an exemption from BART only if the owner demonstrates to the satisfaction of the board that the power plant is located at such a distance from all mandatory federal class I areas that it does not or will not, by itself or in combination with other sources, emit any air pollutant that may reasonably be anticipated to cause or contribute to significant impairment of visibility in any such mandatory federal class I area.

C. The existing stationary facility shall give prior written notice to all affected federal land managers of any application for exemption under this section. The federal land manager may provide an initial recommendation or comment on the disposition of such application. Such recommendation, where provided, must be part of the exemption application. This recommendation is not to be construed as the concurrence required under subsection D of this section. The board, within 90 days of receipt of an application for exemption from control, will provide notice of receipt of an exemption application and notice of opportunity for public hearing on the application. After notice and opportunity for public hearing, the board may grant or deny the exemption.

D. An exemption granted by the board will be effective only upon concurrence by all affected federal land managers and the administrator with the board's determination.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7570 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

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

"BART-eligible source" means an existing stationary facility as defined in this subsection.

"Best available retrofit technology" or "BART" means an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant that is emitted by an existing stationary facility. The emission limitation shall be established, on a case-by-case basis, taking into consideration the technology available, the costs of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use or in existence at the source, the remaining useful life of the source, and the degree of improvement in visibility that may reasonably be anticipated to result from the use of such technology.

"Existing stationary facility" means any of the following stationary sources of air pollutants, including any reconstructed source, which were not in operation prior to August 7, 1962, and were in existence on August 7, 1977, and have the potential to emit 250 tons per year or more of any air pollutant. In determining potential to emit, fugitive emissions, to the extent quantifiable, must be counted.

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

2. Coal cleaning plants (thermal dryers),

3. Kraft pulp mills,

4. Portland cement plants,

5. Primary zinc smelters,

6. Iron and steel mill plants,

7. Primary aluminum ore reduction plants,

8. Primary copper smelters,

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

10. Hydrofluoric, sulfuric, and nitric acid plants,

11. Petroleum refineries,

12. Lime plants,

13. Phosphate rock processing plants,

14. Coke oven batteries,

15. Sulfur recovery plants,

16. Carbon black plants (furnace process),

17. Primary lead smelters,

18. Fuel conversion plants,

19. Sintering plants,

20. Secondary metal production facilities,

21. Chemical process plants,

22. Fossil-fuel boilers of more than 250 million British thermal units per hour heat input,

23. Petroleum storage and transfer facilities with a capacity exceeding 300,000 barrels,

24. Taconite ore processing facilities,

25. Glass fiber processing plants, and

26. Charcoal production facilities.

"Federal class I area" means any federal land that is classified or reclassified class I.

"Federal land manager" or "FLM" means the secretary of the department with authority over the federal class I area (or the secretary's designee).

"Federally enforceable" means all limitations and conditions that are enforceable by the administrator under the federal Clean Air Act including those requirements developed pursuant to 40 CFR Parts 60 and 61, requirements within any applicable implementation plan, and any permit requirements established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Parts 51, 52, or 60.

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

"In existence" means that the owner has obtained all necessary preconstruction approvals or permits required by federal, state, or local air pollution emissions and air quality laws or regulations and either has (i) begun, or caused to begin, a continuous program of physical on-site construction of the facility or (ii) entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner, to undertake a program of construction of the facility to be completed in a reasonable time.

"In operation" means engaged in activity related to the primary design function of the source.

"Integral vista" means a view perceived from within the mandatory federal class I area of a specific landmark or panorama located outside the boundary of the mandatory federal class I area.

"Mandatory federal class I area" means any area identified in subpart D of 40 CFR Part 81.

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

"Reasonably attributable" means attributable by visual observation or any other technique the board deems appropriate.

"Regional haze" means visibility impairment that is caused by the emission of air pollutants from numerous sources located over a wide geographic area. Such sources include, but are not limited to, major and minor stationary sources, mobile sources, and area sources.

"Secondary emissions" means emissions that occur as a result of the construction or operation of an existing stationary facility but do not come from the existing stationary facility. Secondary emissions may include, but are not limited to, emissions from ships or trains coming to or from the existing stationary facility.

"State operating permit" means a permit issued under the Article 5 (9VAC5-80-800 et seq.) of Part II of 9VAC5-80, Permits for Stationary Sources.

"State operating permit program" means the permit program established by and codified in Article 5 (9VAC5-80-800 et seq.) of Part II of 9VAC5-80, Permits for Stationary Sources.

"Visibility-impairing pollutants" means sulfur dioxide (SO₂), nitrogen oxides (NO_X), and particulate matter. PM₁₀ may be used as an indicator for particulate matter. Volatile organic compounds (VOCs) and ammonia and ammonia compounds may be considered to be visibility-impairing pollutants if the board determines that emissions of these pollutants may have an impact on visibility impairment in an area.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7580 Standard for regional haze pollutants

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any visibility-impairing pollutants in excess of emission limitations representing BART, as reflected in any term or condition that may be placed upon a permit for the facility.

B. State operating permits may be issued at the discretion of the board containing such terms and conditions, including schedules for compliance, as may be necessary to implement a BART determination under 9VAC5-40-7590 for the emissions of any visibility-impairing pollutant that may be emitted from the affected facility.

C. A permit may be issued under subsection B of this section regardless of any other permits in force provided that it does not contravene any more restrictive provision of any of the other permits.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7590 Criteria and procedures for making BART determinations

The criteria and procedures for making BART determinations shall be as follows.

1. The determination of BART shall be based on an analysis of the best system of continuous emission control technology available and associated emission reductions achievable for each BART-eligible source that is subject to BART. In this analysis, the board will take into consideration the technology available, the costs of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use at the source, and the remaining useful life of the source, and the degree of improvement in visibility that may reasonably be anticipated to result from the use of such technology.

2. The determination of BART for fossil-fuel fired power plants having a total generating capacity greater than 750 megawatts shall be made pursuant to the guidelines in Appendix Y of 40 CFR Part 51 (see 9VAC5-20-21).

3. If the board determines in establishing BART that technological or economic limitations on the applicability of measurement methodology to a particular source would make the imposition of an emission standard infeasible, it may instead prescribe a design, equipment, work practice, or other operational standard, or combination thereof, to require the application of BART. Such standard, to the degree possible, is to set forth the emission reduction to be achieved by implementation of such design, equipment, work practice or operation, and must provide for compliance by means that achieve equivalent results.

4. Each source subject to BART shall install and operate BART as expeditiously as practicable, but in no event later than August 1, 2012.

5. Each source subject to BART shall maintain the control equipment required by this article and establish procedures to ensure such equipment is properly operated and maintained.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7600 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of this part apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7610 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of this part apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7620 Standard for odor

The provisions of Article 2 (9VAC5-40-130 et seq.) of this part apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7630 Standard for toxic pollutants

The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60, Hazardous Air Pollutant Sources, apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7640 Compliance

The provisions of 9VAC5-40-20, Compliance, apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7650 Compliance schedules

A. Owners shall comply with the emission standards in this article as expeditiously as possible but in no event later than August 1, 2012.

B. Owners of affected facilities shall comply with the provisions of subsection A of this section by adhering to the increments of progress contained in a permit issued under 9VAC5-30-7580 B.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7660 Test methods and procedures

The provisions of 9VAC5-40-30, Emission testing, apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7670 Monitoring

The provisions of 9VAC5-40-40, Monitoring, apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7680 Notifications, records and reporting

The provisions of 9VAC5-40-50, Notification, records and reporting, apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7690 Registration

The provisions of 9VAC5-20-160, Registration, apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7700 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180, Facility and control equipment maintenance or malfunction, apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

9VAC5-40-7710 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5-50, New and Modified Sources, and 9VAC5-80, Permits for Stationary Sources, apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. August 1, 2007.

Article 53 Emission Standards for Lithographic Printing Processes (Rule 4-53)

9VAC5-40-7800 Applicability and designation of affected facility

Article 53 Emission Standards for Lithographic Printing Processes (Rule 4-53)

A. Except as provided in subsections C, D, and E of this section, the affected facility to which the provisions of this article apply is each lithographic printing process that uses a substrate other than a textile.

B. The provisions of this article apply only to sources of volatile organic compounds in volatile organic compound emissions control areas designated in 9VAC5-20-206.

C. Exempted from the provisions of this article are offset lithographic printing operations in the Northern Virginia Volatile Organic Compound Emissions Control Area. Provisions applicable to offset lithographic printing operations in the Northern Virginia Volatile Organic Compound Emissions Control Area are provided in Article 56.1 (9VAC5-40-8420 et seq.) of this part.

D. Exempted from the provisions of this article are facilities in all volatile organic compound emissions control areas, other than the Northern Virginia Volatile Organic Compound Emissions Control Area, whose potential to emit is less than 100 tons per year of volatile organic compounds, provided the emission rates are determined in a manner acceptable to the board. All volatile organic compound emissions from printing inks, coatings, cleaning solutions, and fountain solutions shall be considered in applying the exemption levels specified in this subsection.

E. The provisions of this article do not apply to the following:

1. Printing processes used exclusively for determination of product quality and commercial acceptance provided:

a. The operation is not an integral part of the production process;

b. The emissions from all product quality printing processes do not exceed 400 pounds in any 30-day period; and

c. The exemption is approved by the board.

2. Photoprocessing, typesetting, or imagesetting equipment using water-based chemistry to develop silver halide images.

3. Platemaking equipment using water-based chemistry to remove unhardened image-producing material from an exposed plate.

4. Equipment used to make blueprints.

5. Any sheet-fed offset lithographic press with a cylinder width of 26 inches or less.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006; Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-7810 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Alcohol" means any of the following compounds when used as a fountain solution additive: ethanol, n-propanol, and isopropanol.

"Alcohol substitute" means any nonalcohol additive that contains volatile organic compounds and is used in the fountain solution.

"Batch" means a supply of fountain solution that is prepared and used without alteration until completely used or removed from the printing process.

"Cleaning solution" means any blanket or roller wash used to remove ink and debris from the operating surface of a printing press.

"Composite partial vapor pressure" means the sum of the partial pressures of the compounds defined as volatile organic compounds. Composite partial vapor pressure is calculated as follows:

where:

W_i = Weight of the "i"th VOC compound, in grams.

W_w = Weight of water, in grams.

W_e = Weight of exempt compound, in grams.

MW_i = Molecular weight of the "i"th VOC compound, in g/g-mole

MW_w = Molecular weight of water, in g/g-mole

MW_e = Molecular weight of exempt compound, in g/g-mole

PP_c = VOC composite partial pressure at 20°C, in mm Hg.

VP_i = Vapor pressure of the "i"th VOC compound at 20°C, in mm Hg.

"Fountain solution" means any mixture of water, volatile and nonvolatile chemicals, and additives applied to a lithographic plate to repel ink from the non-image area on the plate.

"Heatset" means a lithographic printing process in which heat from a dryer is used to evaporate ink oils from the substrate.

"Lithographic printing" means a planographic printing process in which the image and nonimage areas are chemically differentiated with the image area being oil-receptive and the nonimage area being water-receptive.

"Non-heatset" means a lithographic printing process in which the printing inks are set and dried by absorption or oxidation rather than heat. For the purposes of this article, UV-cured and electron beam-cured inks are considered non-heatset.

"Press" means a printing production assembly composed of one or more units to produce a printed substrate (sheet or web).

"Printing" means a photomechanical process in which a transfer of text, designs, and images occurs through contact of an image carrier with a substrate.

"Printing process" means any operation or system wherein printing ink or a combination of printing ink and surface coating is applied, dried or cured and which is subject to the same emission standard. May include any equipment which applies, conveys, dries or cures inks or surface coatings, including, but not limited to, flow coaters, flashoff areas, air dryers, drying areas and ovens. It is not necessary for a printing process to have an oven, flashoff area or drying area to be included in this definition.

"Sheet-fed" means a lithographic printing process in which individual sheets of substrate are fed into the press sequentially.

"Unit" means the smallest complete printing component, composed of an inking and dampening system, of a printing press.

"Web" means a continuous roll of printing substrate.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7820 Standard for volatile organic compounds

A. No owner or other person shall use or permit the use of any lithographic printing process employing a fountain solution containing volatile organic compounds unless the fountain solution as applied to each lithographic press meets the following requirements:

1. For each heatset web press:

a. When the fountain solution contains alcohol:

(1) The fountain solution shall contain no more than a daily average of 1.6% volatile organic compounds by weight; or

(2) The temperature of the fountain solution shall be maintained at or below 60°F and the fountain solution shall contain no more than a daily average of 3.0° volatile organic compounds by weight; or

b. When the fountain solution contains no alcohol, the fountain solution shall contain no more than a daily average of 5.0° volatile organic compounds by weight.

2. For each non-heatset web press and each newspaper press, the fountain solution shall contain no alcohol and shall contain no more than a daily average 5.0° volatile organic compounds by weight.

3. For each sheet-fed press:

a. The fountain solution shall contain no more than a daily average of 5.0% volatile organic compounds by weight; or

b. The temperature of the fountain solution shall be maintained at or below 60°F and the fountain solution shall contain no more than a daily average of 8.5% volatile organic compounds by weight.

B. No owner or other person shall use or permit the use of any heatset web offset lithographic printing process unless:

1. A system is installed which achieves an emission reduction from the press dryer exhaust vent of 90% by weight of volatile organic compounds (minus methane and ethane); or

2. The maximum dryer exhaust outlet concentration is maintained at 50 ppmv as carbon (minus methane and ethane).

C. No owner or other person shall use or permit the use of any lithographic printing process employing a cleaning solution containing volatile organic compounds unless:

1. The daily average of the cleaning solution as applied contains no more than 30% volatile organic compounds by weight; or

2. The daily average of the volatile organic compound portion of the cleaning solution as applied has a composite partial vapor pressure of 10 millimeters of mercury or less at 68°F (20°C).

D. All printing inks, fountain solutions, cleaning solutions, and other products containing 25% or more volatile organic compounds by weight shall be disposed of by one of the following methods:

1. Reclamation, either in-house or by outside services; or

2. Incineration.

E. All cleaning solution and applicators shall be stored in covered containers or machines with remote reservoirs when not in use.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7830 [Reserved]

Historical Notes

Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7840 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of this chapter (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) shall not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7850 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of this chapter (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) shall not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7860 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7870 Standard for toxic pollutants

The provisions of Article 3 (9VAC5-40-160 et seq.) of this chapter (Emission Standards for Toxic Pollutants, Rule 4-3) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7880 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. All affected facilities in the Northern Virginia and Richmond VOC Emissions Control Areas shall be in compliance with the provisions of this rule by April 1, 1998.

C. All affected facilities in VOC emission control areas, other than the Northern Virginia and Richmond VOC Emissions Control Areas, shall be in compliance with the provisions of this rule by October 4, 2007.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110 and 182 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996; amended, Virginia Register Volume 22, Issue 26, eff. October 4, 2006.

9VAC5-40-7890 Test methods and procedures

A. The provisions of 9VAC5-40-30 (Emission testing) apply.

B. For the purpose of demonstrating compliance with the emission control requirements of this rule, the affected facility shall be run under typical operating conditions and flow rates compatible with scheduled production during any emission testing.

C. Emissions tests shall include an initial test within 90 days of start-up when the control device is installed and operating that demonstrates compliance with the emission standard in 9VAC5-40-7820.

D. The following reference methods (cited in 40 CFR Part 60, Appendix A) shall be used to demonstrate compliance with the emission limit or percent reduction efficiency requirement in 9VAC5-40-7820. Alternate methods may be used with the approval of the board.

1. Reference Method 1 or 1A, as appropriate, shall be used to select the sampling sites. The control device sampling sites for determining efficiency in reducing volatile organic compounds (excluding methane and ethane) from the dryer exhaust shall be placed before the control device inlet (after the dryer) and at the outlet of the control device.

2. Reference Method 2, 2A, 2C, or 2D, as appropriate, shall be used to determine the velocity and volumetric flow rate of the exhaust stream.

3. Reference Method 18, 25, or 25A shall be used to determine the volatile organic compound concentration of the exhaust stream entering and exiting the control device. Good judgment is required in determining the best applicable volatile organic compound test method for each situation. The method selected shall be based on consideration of the diversity of organic species present and their total concentration and on consideration of the potential presence of interfering gases. Because of the different response factors for the many organic compounds formed during the combustion process, only Reference Method 25, which measures volatile organic compounds as a carbon, shall be used; except in cases where the expected outlet volatile organic compound concentration of the control device is less than 100 ppmv as carbon, in which case Reference Method 25A shall be used.

a. If average, nonmethane volatile organic compound concentrations in the outlet of a thermal or catalytic oxidizer measured by Reference Method 25A are found to be greater than 100 ppmv as carbon, the board may request a repeat test to be conducted using Reference Method 18 or 25.

b. A test shall consist of three separate runs, each lasting a minimum of 60 minutes, unless the board determines that process variables dictates shorter sampling times.

c. Reference Method 25 specifies a minimum probe and temperature of 265°F. To prevent condensation, the probe should be heated to at least the gas stream temperature, typically close to 350°F.

E. The volatile organic compound content of each batch of fountain solution shall be determined by one of the following procedures:

1. Analysis by Reference Method 24 of a sample of the batch of fountain solution; or

2. Calculation which combines Reference Method 24 analytical volatile organic compound content data for the concentrated materials used to prepare the press-ready batch based on records of the proportions in which they are mixed to make the batch. The analysis of the concentrated materials may be performed by the supplier of the materials. Mix proportions may be used to determine the volatile organic compound content of the fountain solution as a substitute for Method 24 if the supplier has provided Method 24 information for the volatile organic compound content of the concentrates.

F. A thermometer or other temperature detection device capable of reading to 0.5°F shall be used to ensure that any refrigerated fountain solution recirculating reservoirs are maintained at or below 60°F at all times.

G. The volatile organic compound or volatile organic compound partial vapor pressure of each cleaning solution shall be determined by one of the following procedures:

1. Analysis by Reference Method 24 for volatile organic compound content or by an appropriate method for composite partial vapor pressure of a sample of the cleaning solution; or

2. Calculation for volatile organic compound content which combines Reference Method 24 analytical volatile organic compound content data for the concentrated materials used to prepare the press-ready batch based on records of the proportions in which they are mixed to make the batch. The analysis of the concentrated materials may be performed by the supplier of the material. Mix proportions may be used to determine the volatile organic compound content of the cleaning solution as a substitute for Method 24 if the supplier has provided Method 24 information for the volatile organic compound content of the concentrates.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7900 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply.

B. Add-on dryer exhaust control device.

1. The owner of a subject heatset web offset lithographic printing press shall install, calibrate, maintain, and operate a temperature monitoring device according to the manufacturer's instructions at the outlet of the control device. The monitoring temperature shall be set during the testing required to demonstrate compliance with the emission standard in 9VAC5-40-7820 B. Monitoring shall be performed only when the unit is operational.

2. The temperature monitoring device shall be equipped with a continuous recorder. Both the temperature monitoring device and the continuous recorder shall have an accuracy of 0.5°F.

3. The dryer pressure shall be maintained lower than the pressroom air pressure so that air flows into the dryer at all times when the press is operating. A 100% emissions capture efficiency for the dryer shall be established using an air flow direction indicator, such as a smoke stick or aluminum ribbons.

C. Fountain solution volatile organic compound concentration.

1. The purpose of monitoring the volatile organic compound concentration in the fountain is to provide data that can be correlated to the amount of material used when the fountain solution contains alcohol and complies with the limits listed in 9VAC5-40-7820. The following methods may be used to determine the concentration of alcohol in the fountain solution in lieu of calculating the alcohol concentration using the protocol of 9VAC5-40-7890 E. The monitoring requirements of subdivisions 1 a through c of this subsection shall be required only if noncompliance with 9VAC5-40-7820 A is established.

a. The owner of any offset lithographic printing press shall monitor the alcohol concentration of the fountain solution with a refractometer that is corrected for temperature at least once for each eight-hour shift or once per batch, whichever is longer. The refractometer shall have a visual, analog, or digital readout with an accuracy of 0.5%. A standard solution shall be used to calibrate the refractometer for the type of alcohol used in the fountain. Alternatively, the refractometer shall be standardized against measurements performed to determine compliance according to the procedures described in 9VAC5-40-7890 D.

b. Alternatively, the owner of any offset lithographic printing press shall monitor fountain solution alcohol concentration with a hydrometer equipped with a temperature correction at least once for each eight-hour shift or once per batch, whichever is longer. The hydrometer shall have a visual, analog, or digital readout with an accuracy of 0.5%. A standard solution shall be used to calibrate the hydrometer for the type of alcohol used in the fountain. Alternatively, the hydrometer shall be standardized against measurements performed to determine compliance according to the procedures described in 9VAC5-40-7890 D.

c. The volatile organic compound content of the fountain solution may be monitored with a conductivity meter if it is determined that a refractometer or hydrometer cannot be used for monitoring the type of volatile organic compounds in the fountain solution. The conductivity meter reading for the fountain solution shall be referenced to the conductivity of the incoming water.

2. If, through recordkeeping for a period of six months or more, the printing process is shown to consistently meet the requirements in 9VAC5-40-7890 D, the monitoring requirement may be waived or extended to a longer period of time.

D. Fountain solution temperature.

1. The owner of any offset lithographic printing press using refrigeration equipment on the fountain shall install, maintain, and continuously operate a temperature monitor of the fountain solution reservoir.

2. The temperature on the temperature monitor shall be read and recorded at least once per operating day to verify that the refrigeration system is operating properly.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7910 Notification, records and reporting

A. The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

B. The owner of any offset lithographic printing press shall record and report the following key parameters on a monthly basis:

1. The type of control device operating on the heatset offset lithographic printing press and the operating parameters specified in 9VAC5-40-7900 B;

2. The equipment standard selected to comply with the requirements listed in 9VAC5-40-7820 B;

3. The volatile organic compound content of the fountain and cleaning solutions, to comply with 9VAC5-40-7820;

4. The temperature of the fountain solution, to comply with the requirements listed in 9VAC5-40-7820 A, if applicable;

5. For manual cleaning, the amount of cleaning solution concentrate and water per batch of cleaning solution mixed;

6. For automatic cleaning, the flow rates of cleaning solution concentrate and water, as specified in 9VAC5-40-7820 C; and

7. Corrective actions taken when exceedances of any parameters monitored according to the requirements of 9VAC5-40-7890 and 9VAC5-40-7900 occur.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7920 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7930 Facility and control equipment maintenance of malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

9VAC5-40-7940 Permits

A permit may be required prior to beginning any of the activities specified below and the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. April 1, 1996.

Article 54 Emission Standards for Large Municipal Waste Combustors (Rule 4-54)

9VAC5-40-7950 Applicability and designation of affected facility

Article 54 Emission Standards for Large Municipal Waste Combustors (Rule 4-54)

A. Except as provided in subsections D and E of this section, the affected facility to which the provisions of this article apply is each municipal waste combustor unit with a combustion capacity greater than 250 tons per day of municipal solid waste for which construction was commenced on or before September 20, 1994.

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

C. Air curtain incinerators that meet the capacity specifications in subsection A of this section and that combust municipal solid waste other than yard waste are subject to all provisions of this article.

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

1. Any waste combustion unit that is capable of combusting more than 250 tons per day of municipal solid waste and is subject to a federally enforceable permit limiting the maximum amount of municipal solid waste that may be combusted in the unit to less than or equal to 11 tons per day is not subject to this article if the owner:

a. Notifies the board of an exemption claim;

b. Provides a copy of the federally enforceable permit that limits the firing of municipal solid waste to less than 11 tons per day; and

c. Keeps records of the amount of municipal solid waste fired on a daily basis.

2. Physical or operational changes made to an existing municipal waste combustor unit primarily for the purpose of complying with this article are not considered in determining whether the unit is a modified or reconstructed facility under subpart Ea or subpart Eb of 40 CFR Part 60.

3. A qualifying small power production facility, as defined in § 3(17)(C) of the Federal Power Act (16 USC § 796(17)(C)), that burns homogeneous waste (such as automotive tires or used oil, but not including refuse-derived fuel) for the production of electric energy is not subject to this article if the owner of the facility notifies the board of this exemption and provides data documenting that the facility qualifies for this exemption.

4. A qualifying cogeneration facility, as defined in § 3(18)(B) of the Federal Power Act (16 §USC 796(18)(B)), that burns homogeneous waste (such as automotive tires or used oil, but not including refuse-derived fuel) for the production of electric energy and steam or forms of useful energy (such as heat) that are used for industrial, commercial, heating, or cooling purposes, is not subject to this article if the owner of the facility notifies the board of this exemption and provides data documenting that the facility qualifies for this exemption.

5. Any unit combusting a single-item waste stream of tires is not subject to this article if the owner of the unit notifies the board of an exemption claim, and provides data documenting that the unit qualifies for this exemption.

6. Any cofired combustor located at a plant that meets the capacity specifications in subsection A of this section is not subject to this article if the owner of the cofired combustor:

a. Notifies the board of an exemption claim;

b. Provides a copy of the federally enforceable permit (specified in the definition of cofired combustor in 9VAC5-40-7960); and

c. Keeps a record on a calendar quarter basis of the weight of municipal solid waste combusted at the cofired combustor and the weight of all other fuels combusted at the cofired combustor.

7. Air curtain incinerators that meet the capacity specifications in subsection A of this section and that combust a fuel stream composed of 100% yard waste are exempt from all provisions of this article except the opacity limit under 9VAC5-40-8060 C, the testing procedures under 9VAC5-40-8140, and the reporting and recordkeeping provisions under 9VAC5-40-8160.

8. Pyrolysis/combustion units that are an integrated part of a plastics/rubber recycling unit are not subject to this article if the owner of the plastics/rubber recycling unit keeps records of:

a. The weight of plastics, rubber, and rubber tires, or a combination thereof, processed on a calendar quarter basis;

b. The weight of chemical plant feedstocks and petroleum refinery feedstocks produced and marketed on a calendar quarter basis; and

c. The name and address of the purchaser of the feedstocks. The combustion of gasoline, diesel fuel, jet fuel, fuel oils, residual oil, refinery gas, petroleum coke, liquefied petroleum gas, propane, or butane produced by chemical plants or petroleum refineries that use feedstocks produced by plastics/rubber recycling units are not subject to this article.

E. The provisions of this article do not apply to the following:

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

2. Any materials recovery facility (including primary or secondary smelters) that combusts waste for the primary purpose of recovering metals.

3. Any cement kiln firing municipal solid waste.

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

G. The requirement of subdivision E 1 of this section with regard to obtaining a permit under § 3005 of the Solid Waste Disposal Act (42 USC § 6901 et seq.) may be met by obtaining a permit from the department as required by 9VAC20 Chapter 60.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-7960 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Air curtain incinerator" means an incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which burning occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor.

"Batch municipal waste combustor" means a municipal waste combustor unit designed so that it cannot combust municipal solid waste continuously 24 hours per day because the design does not allow waste to be fed to the unit or ash to be removed while combustion is occurring.

"Bubbling fluidized bed combustor" means a fluidized bed combustor in which the majority of the bed material remains in a fluidized state in the primary combustion zone.

"Calendar quarter" means a consecutive three-month period (nonoverlapping) beginning on January 1, April 1, July 1, and October 1.

"Calendar year" means the period including 365 days (or 336 consecutive days in leap years) starting January 1 and ending on December 31.

"Chief facility operator" means the person in direct charge and control of the operation of a municipal waste combustor and who is responsible for daily onsite supervision, technical direction, management, and overall performance of the facility.

"Circulating fluidized bed combustor" means a fluidized bed combustor in which the majority of the fluidized bed material is carried out of the primary combustion zone and is transported back to the primary zone through a recirculation loop.

"Clean wood" means untreated wood or untreated wood products including clean untreated lumber, tree stumps (whole or chipped), and tree limbs (whole or chipped). Clean wood does not include yard waste, which is defined elsewhere in this section, or construction, renovation, and demolition wastes (including but not limited to railroad ties and telephone poles), which are exempt from the definition of municipal solid waste in this section.

"Cofired combustor" means a unit combusting municipal solid waste with nonmunicipal solid waste fuel (e.g., coal, industrial process waste) and subject to a federally enforceable permit limiting the unit to combusting a fuel feed stream, 30% or less of the weight of which is comprised, in aggregate, of municipal solid waste as measured on a calendar quarter basis.

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

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

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

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

"Dioxin/furan" means tetra- through octa- chlorinated dibenzo-p-dioxins and dibenzofurans.

"First calendar half" means the period starting on January 1 and ending on June 30 in any year.

"Four-hour block average" means the average of all hourly emission concentrations when the affected facility is operating and combusting municipal solid waste measured over four-hour periods of time from midnight to 4 a.m., 4 a.m. to 8 a.m., 8 a.m. to noon, noon to 4 p.m., 4 p.m. to 8 p.m., and 8 p.m. to midnight.

"Increments of process" means steps to achieve compliance which must be taken by an owner of an affected facility, including:

1. Submittal of a final control plan for the affected facility to the board;

2. Awarding of contracts for emission control systems or for process modifications or issuance of orders for the purchase of component parts to accomplish emission control or process modification;

3. Initiation of on-site construction or installation of emission control equipment or process change;

4. Completion of on-site construction or installation or emission control equipment or process change; and

5. Final compliance.

"Mass burn refractory municipal waste combustor" means a field-erected combustor that combusts municipal solid waste in a refractory wall furnace. Unless otherwise specified, this includes combustors with a cylindrical rotary refractory wall furnace.

"Mass burn rotary waterwall municipal waste combustor" means a field-erected combustor that combusts municipal solid waste in a cylindrical rotary waterwall furnace or on a tumbling-tile grate.

"Mass burn waterwall municipal waste combustor" means a field-erected combustor that combusts municipal solid waste in a waterwall furnace.

"Materials separation plan" means a plan that identifies both a goal and an approach to separate certain components of municipal solid waste for a given service area in order to make the separated materials available for recycling. A materials separation plan may include elements such as dropoff facilities, buy-back or deposit-return incentives, curbside pickup programs, or centralized mechanical separation systems. A materials separation plan may include different goals or approaches for different subareas in the service area, and may include no materials separation activities for certain subareas or, if warranted, an entire service area.

"Maximum demonstrated municipal waste combustor unit load" means the highest four-hour arithmetic average municipal waste combustor unit load achieved during four consecutive hours during the most recent dioxin/furan emission test demonstrating compliance with the applicable limit for municipal waste combustor organics specified under 9VAC5-40-8040.

"Maximum demonstrated particulate matter control device temperature" means the highest four-hour arithmetic average flue gas temperature measured at the particulate matter control device inlet during four consecutive hours during the most recent dioxin/furan emission test demonstrating compliance with the applicable limit for municipal waste combustor organics specified under 9VAC5-40-8040.

"Modification" or "modified municipal waste combustor unit" means a municipal waste combustor unit to which changes have been made after June 19, 1996, if (i) the cumulative cost of the changes, over the life of the unit, exceed 50% of the original cost of construction and installation of the unit (not including the cost of any land purchased in connection with such construction or installation) updated to current costs or (ii) any physical change in the municipal waste combustor unit or change in the method of operation of the municipal waste combustor unit increases the amount of any air pollutant emitted by the unit for which standards have been established under § 129 or § 111 of the federal Clean Air Act. Increases in the amount of any air pollutant emitted by the municipal waste combustor unit are determined at 100% physical load capability and downstream of all air pollution control devices, with no consideration given for load restrictions based on permits or other nonphysical operational restrictions.

"Modular excess-air municipal waste combustor" means a combustor that combusts municipal solid waste and that is not field-erected and has multiple combustion chambers, all of which are designed to operate at conditions with combustion air amounts in excess of theoretical air requirements.

"Modular starved-air municipal waste combustor" means a combustor that combusts municipal solid waste and that is not field-erected and has multiple combustion chambers in which the primary combustion chamber is designed to operate at substoichiometric conditions.

"Municipal solid waste" or "municipal-type solid waste" means household, commercial/retail, and institutional waste, or a combination thereof. Household waste includes material discarded by single and multiple residential dwellings, hotels, motels, and other similar permanent or temporary housing establishments or facilities. Commercial/retail waste includes material discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities. Institutional waste includes material discarded by schools, nonmedical waste discarded by hospitals, material discarded by nonmanufacturing activities at prisons and government facilities, and material discarded by other similar establishments or facilities. Household, commercial/retail, and institutional waste does not include used oil; sewage sludge; wood pallets; construction, renovation, and demolition wastes (which includes but is not limited to railroad ties and telephone poles); clean wood; industrial process or manufacturing wastes; medical waste; or motor vehicles (including motor vehicle parts or vehicle fluff). Household, commercial/retail, and institutional wastes include (i) yard waste, (ii) refuse-derived fuel, and (iii) motor vehicle maintenance materials limited to vehicle batteries and tires except as specified in 9VAC5-40-7950 D 5.

"Municipal waste combustor" or "municipal waste combustor unit" means any setting or equipment that combusts solid, liquid, or gasified municipal solid waste including, but not limited to, field-erected incinerators (with or without heat recovery), modular incinerators (starved-air or excess-air), boilers (i.e., steam generating units), furnaces (whether suspension-fired, grate-fired, mass-fired, air curtain incinerators, or fluidized bed-fired), and pyrolysis/combustion units. Municipal waste combustors do not include pyrolysis/combustion units located at a plastics/rubber recycling unit (as specified in 9VAC5-40-7950 D 8). Municipal waste combustors do not include cement kilns firing municipal solid waste (as specified in 9VAC5-40-7950 E 3). Municipal waste combustors do not include internal combustion engines, gas turbines, or other combustion devices that combust landfill gases collected by landfill gas collection systems.

The boundaries of a municipal solid waste combustor are defined as follows. The municipal waste combustor unit includes, but is not limited to, the municipal solid waste fuel feed system, grate system, flue gas system, bottom ash system, and the combustor water system. The municipal waste combustor boundary starts at the municipal solid waste pit or hopper and extends through:

1. The combustor flue gas system, which ends immediately following the heat recovery equipment or, if there is no heat recovery equipment, immediately following the combustion chamber;

2. The combustor bottom ash system, which ends at the truck loading station or similar ash handling equipment that transfer the ash to final disposal, including all ash handling systems that are connected to the bottom ash handling system; and

3. The combustor water system, which starts at the feed water pump and ends at the piping exiting the steam drum or superheater.

The municipal waste combustor unit does not include air pollution control equipment, the stack, water treatment equipment, or the turbine-generator set.

"Municipal waste combustor acid gases" means all acid gases emitted in the exhaust gases from municipal waste combustor units including, but not limited to, sulfur dioxide and hydrogen chloride gases.

"Municipal waste combustor metals" means metals and metal compounds emitted in the exhaust gases from municipal waste combustor units.

"Municipal waste combustor organics" means organic compounds emitted in the exhaust gases from municipal waste combustor units and includes tetra- through octa- chlorinated dibenzo-p-dioxins and dibenzofurans.

"Municipal waste combustor plant" means one or more affected facilities (as specified in 9VAC5-40-7950) at the same location.

"Municipal waste combustor unit capacity" means the maximum charging rate of a municipal waste combustor unit expressed in tons per day of municipal solid waste combusted, calculated according to the procedures under 9VAC5-40-8100 C. 9VAC5-40-8100 C includes procedures for determining municipal waste combustor unit capacity for continuous and batch feed municipal waste combustors.

"Municipal waste combustor unit load" means the steam load of the municipal waste combustor unit measured as specified in 9VAC5-40-8150 C 6.

"Particulate matter" means total particulate matter emitted from municipal waste combustor units as measured by Reference Method 5 (see 9VAC5-40-8140 B).

"Plastics/rubber recycling unit" means an integrated processing unit where plastics, rubber, and rubber tires, or a combination thereof, are the only feed materials (incidental contaminants may be included in the feed materials) and they are processed into a chemical plant feedstock or petroleum refinery feedstock, where the feedstock is marketed to and used by a chemical plant or petroleum refinery as input feedstock. The combined weight of the chemical plant feedstock and petroleum refinery feedstock produced by the plastics/rubber recycling unit on a calendar quarter basis shall be more than 70% of the combined weight of the plastics, rubber, and rubber tires processed by the plastics/rubber recycling unit on a calendar quarter basis. The plastics, rubber, or rubber tire feed materials to the plastics/rubber recycling unit may originate from the separation or diversion of plastics, rubber, or rubber tires from MSW or industrial solid waste, and may include manufacturing scraps, trimmings, and off-specification plastics, rubber, and rubber tire discards. The plastics, rubber, and rubber tire feed materials to the plastics/rubber recycling unit may contain incidental contaminants (e.g., paper labels on plastic bottles, metal rings on plastic bottle caps, etc.).

"Potential hydrogen chloride emission concentration" means the hydrogen chloride emission concentration that would occur from combustion of municipal solid waste in the absence of any emission controls for municipal waste combustor acid gases.

"Potential mercury emission concentration" means the mercury emission concentration that would occur from combustion of municipal solid waste in the absence of any mercury emissions control.

"Potential sulfur dioxide emissions" means the sulfur dioxide emission concentration that would occur from combustion of municipal solid waste in the absence of any emission controls for municipal waste combustor acid gases.

"Pulverized coal/refuse-derived fuel mixed fuel-fired combustor" means a combustor that fires coal and refuse-derived fuel simultaneously, in which pulverized coal is introduced into an air stream that carries the coal to the combustion chamber of the unit where it is fired in suspension. This includes both conventional pulverized coal and micropulverized coal.

"Pyrolysis/combustion unit" means a unit that produces gases, liquids, or solids through the heating of municipal solid waste, and the gases, liquids, or solids produced are combusted and emissions vented to the atmosphere.

"Reconstruction" means rebuilding a municipal waste combustor unit for which the reconstruction commenced after June 19, 1996, and the cumulative costs of the construction over the life of the unit exceed 50% of the original cost of construction and installation of the unit (not including any cost of land purchased in connection with such construction or installation) updated to current costs (current dollars).

"Refractory unit" or "refractory wall furnace" means a combustion unit having no energy recovery (e.g., via a waterwall) in the furnace (i.e., radiant heat transfer section) of the combustor.

"Refuse-derived fuel" means a type of municipal solid waste produced by processing municipal solid waste through shredding and size classification. This includes all classes of refuse-derived fuel including low-density fluff refuse-derived fuel through densified refuse-derived fuel and pelletized refuse-derived fuel.

"Refuse-derived fuel stoker" means a steam generating unit that combusts refuse-derived fuel in a semisuspension firing mode using air-fed distributors.

"Same location" means the same or contiguous property that is under common ownership or control including properties that are separated only by a street, road, highway, or other public right-of-way. Common ownership or control includes properties that are owned, leased, or operated by the same entity, parent entity, subsidiary, subdivision, or any combination thereof including any municipality or other governmental unit, or any quasi-governmental authority (e.g., a public utility district or regional waste disposal authority).

"Second calendar half" means the period starting July 1 and ending on December 31 in any year.

"Shift supervisor" means the person who is in direct charge and control of the operation of a municipal waste combustor and who is responsible for onsite supervision, technical direction, management, and overall performance of the facility during an assigned shift.

"Spreader stoker coal/refuse-derived fuel mixed fuel-fired combustor" means a combustor that fires coal and refuse-derived fuel simultaneously, in which coal is introduced to the combustion zone by a mechanism that throws the fuel onto a grate from above. Combustion takes place both in suspension and on the grate.

"Standard conditions" means a temperature of 20 degrees Centigrade and a pressure of 101.3 kilopascals.

"Total mass dioxin/furan" or "total mass" means the total mass of tetra- through octa- chlorinated dibenzo-p-dioxins and dibenzofurans, as determined using Reference Method 23 and the procedures specified under 9VAC5-40-8140 F.

"Tumbling-tile" means a grate tile hinged at one end and attached to a ram at the other end. When the ram extends, the grate tile rotates around the hinged edge.

"Twenty-four-hour daily average" means either the arithmetic mean or geometric mean (as specified) of all hourly emission concentrations when the affected facility is operating and combusting municipal solid waste measured over a 24-hour period between midnight and the following midnight.

"Untreated lumber" means wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Untreated lumber does not include wood products that have been painted, pigment-stained, or "pressure-treated." Pressure-treating compounds include, but are not limited to, chromate copper arsenate, pentachlorophenol, and creosote.

"Waterwall furnace" means a combustion unit having energy (heat) recovery in the furnace (i.e., radiant heat transfer section) of the combustor.

"Yard waste" means grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs that are generated by residential, commercial/retail, institutional, and industrial sources, or combination thereof, as part of maintenance activities associated with yards or other private or public lands. Yard waste does not include construction, renovation, and demolition wastes, which are exempt from the definition of municipal solid waste in this section. Yard waste does not include clean wood, which is exempt from the definition of municipal solid waste in this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-7970 Standard for particulate matter

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain particulate matter in excess of 27 milligrams per dry standard cubic meter, corrected to 7.0% oxygen.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-7980 Standard for carbon monoxide

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain carbon monoxide in excess of the following limits:

1. For mass burn waterwall units: 100 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (four-hour average).

2. For mass burn refractory units: 100 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (four-hour average).

3. For mass burn rotary refractory units: 100 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (24-hour average).

4. For mass burn rotary waterwall units: 250 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (24-hour average).

5. For modular starved air units: 50 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (four-hour average).

6. For modular excess air units: 50 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (four-hour average).

7. For refuse-derived fuel stokers: 200 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (24-hour average).

8. For bubbling fluidized bed combustors: 100 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (four-hour average).

9. For circulating fluidized bed combustors: 100 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (four-hour average).

10. For pulverized coal/refuse-derived fuel mixed fuel-fired combustors: 150 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (four-hour average).

11. For spreader stoker coal/refuse-derived fuel mixed fuel-fired combustors: 200 parts per million by volume, corrected to 7.0% oxygen, dry basis, calculated as an arithmetic average (24-hour average).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-7990 Standard for cadmium

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain cadmium in excess of 0.040 milligrams per dry standard cubic meter, corrected to 7.0% oxygen.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8000 Standard for lead

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain lead in excess of 0.44 milligrams per dry standard cubic meter, corrected to 7.0% oxygen.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8010 Standard for mercury

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain mercury in excess of 0.080 milligrams per dry standard cubic meter or 15% of the potential mercury emission concentration (85% reduction by weight), corrected to 7.0% oxygen, whichever is less stringent.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8020 Standard for sulfur dioxide

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain sulfur dioxide in excess of 29 parts per million by volume or 25% of the potential sulfur dioxide emission concentration (75% reduction by weight or volume), corrected to 7.0% oxygen (dry basis), whichever is less stringent. Compliance with this emission limit is based on a 24-hour daily geometric mean.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8030 Standard for hydrogen chloride

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain hydrogen chloride in excess of 29 parts per million by volume or 5.0% of the potential hydrogen chloride emission concentration (95% reduction by weight or volume), corrected to 7.0% oxygen (dry basis), whichever is less stringent.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8040 Standard for dioxin/furan

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain municipal waste combustor organics, expressed as total mass dioxins/furans, in excess of the following limits:

1. For facilities that employ an electrostatic precipitator-based emission control system, 60 nanograms per dry standard cubic meter (total mass), corrected to 7.0% oxygen.

2. For facilities that do not employ an electrostatic precipitator-based emission control system, 30 nanograms per dry standard cubic meter (total mass), corrected to 7.0% oxygen.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8050 Standard for nitrogen oxides

No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that contain nitrogen oxides in excess of the following limits:

1. For facilities not engaged in an emissions averaging plan as described in 9VAC5-40-8100 D:

a. For mass burn waterwall units: 205 parts per million by volume corrected to 7.0% oxygen, dry basis.

b. For mass burn rotary waterwall units: 250 parts per million by volume corrected to 7.0% oxygen, dry basis.

c. For refuse-derived fuel combustors: 250 parts per million by volume corrected to 7.0% oxygen, dry basis.

d. For fluidized bed combustors: 180 parts per million by volume corrected to 7.0% oxygen, dry basis.

e. For mass burn refractory combustors: no limit.

2. For facilities engaged in an emissions averaging plan as described in 9VAC5-40-8100 D:

a. For mass burn waterwall units: 185 parts per million by volume, corrected to 7.0% oxygen, dry basis.

b. For mass burn rotary waterwall units: 220 parts per million by volume, corrected to 7.0% oxygen, dry basis.

c. For refuse-derived fuel combustors: 230 parts per million by volume, corrected to 7.0% oxygen, dry basis.

d. For fluidized bed combustors: 165 parts per million by volume, corrected to 7.0% oxygen, dry basis.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8060 Standard for visible emissions

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply except that the provisions in subsections B and C of this section apply instead of 9VAC5-40-80.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any gases that exhibit greater than 10% opacity (6-minute average).

C. The owner of an air curtain incinerator with the capacity to combust greater than 250 tons per day of municipal solid waste and that combusts a fuel feed stream composed of 100% yard waste and no other municipal solid waste materials shall at no time cause to be discharged into the atmosphere from that incinerator any gases that exhibit greater than 10% opacity (6-minute average), except that an opacity level of up to 35% (6-minute average) is permitted during startup periods during the first 30 minutes of operation of the unit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8070 Standard for fugitive dust/emissions

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5 Chapter 40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply except as provided in subsections B through D of this section.

B. No owner or other person shall cause to be discharged to the atmosphere visible emissions of combustion ash from an ash conveying system (including conveyor transfer points) in excess of 5.0% of the observation period (i.e., 9 minutes per 3-hour period), as determined by Reference Method 22 observations as specified in 9VAC5-40-8140 H, except as provided in subsections C and D of this section.

C. The emission limit specified in subsection B of this section shall not cover visible emissions discharged inside buildings or enclosures of ash conveying systems; however, the emission limit specified in subsection B of this section shall cover visible emissions discharged to the atmosphere from buildings or enclosures of ash conveying systems.

D. The provisions specified in subsection B of this section shall not apply during maintenance and repair of ash conveying systems.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8080 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8090 Standard for toxic pollutants

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8100 Compliance

A. The provisions governing compliance shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-8080 and 9VAC5-40-8090, the provisions of 9VAC5-40-20 (Compliance), apply.

2. With regard to the emission limits in 9VAC5-40-7970 through 9VAC5-40-8070, the following provisions apply:

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

b. 40 CFR 60.11.

c. Subsections B through F of this section.

B. The provisions for startup, shutdown, and malfunction in subdivisions 1 and 2 of this subsection apply. Test methods and procedures for determining compliance shall be performed as specified in 9VAC5-40-8140.

1. Except as provided by 9VAC5-40-8060 C, the standards under this article apply at all times except during periods of startup, shutdown, or malfunction. Duration of startup, shutdown, or malfunction periods are limited to three hours per occurrence, except as provided in subdivision 1 c of this subsection.

a. The startup period commences when the affected facility begins the continuous burning of municipal solid waste and does not include any warmup period when the affected facility is combusting fossil fuel or other nonmunicipal solid waste fuel, and no municipal solid waste is being fed to the combustor.

b. Continuous burning is the continuous, semicontinuous, or batch feeding of municipal solid waste for purposes of waste disposal, energy production, or providing heat to the combustion system in preparation for waste disposal or energy production. The use of municipal solid waste solely to provide thermal protection of the grate or hearth during the startup period when municipal solid waste is not being fed to the grate is not considered to be continuous burning.

c. For the purpose of compliance with the carbon monoxide emission limits in 9VAC5-40-7980, if a loss of boiler water level control (e.g., boiler waterwall tube failure) or a loss of combustion air control (e.g., loss of combustion air fan, induced draft fan, combustion grate bar failure) is determined to be a malfunction, the duration of the malfunction period is limited to 15 hours per occurrence.

2. The opacity limits for air curtain incinerators specified in 9VAC5-40-8060 apply at all times as specified under 9VAC5-40-8060 except during periods of malfunction. Duration of malfunction periods are limited to three hours per occurrence.

C. The procedures specified in subdivisions 1 and 2 of this subsection shall be used for calculating municipal waste combustor unit capacity.

1. For municipal waste combustor units capable of combusting municipal solid waste continuously for a 24-hour period, municipal waste combustor unit capacity shall be calculated based on 24 hours of operation at the maximum charging rate. The maximum charging rate shall be determined as specified in subdivisions 1 a and 1 b of this subsection as applicable.

a. For combustors that are designed based on heat capacity, the maximum charging rate shall be calculated based on the maximum design heat input capacity of the unit and a heating value of 12,800 kilojoules per kilogram for combustors firing refuse-derived fuel and a heating value of 10,500 kilojoules per kilogram for combustors firing municipal solid waste that is not refuse-derived fuel.

b. For combustors that are not designed based on heat capacity, the maximum charging rate shall be the maximum design charging rate.

2. For batch feed municipal waste combustor units, municipal waste combustor unit capacity shall be calculated as the maximum design amount of municipal solid waste that can be charged per batch multiplied by the maximum number of batches that could be processed in a 24-hour period. The maximum number of batches that could be processed in a 24-hour period is calculated as 24 hours divided by the design number of hours required to process one batch of municipal solid waste, and may include fractional batches (e.g., if one batch requires 16 hours, then 24/16, or 1.5 batches, could be combusted in a 24-hour period). For batch combustors that are designed based on heat capacity, the design heating value of 12,800 kilojoules per kilogram for combustors firing refuse-derived fuel and a heating value of 10,500 kilojoules per kilogram for combustors firing municipal solid waste that is not refuse-derived fuel.

D. Nitrogen oxides emissions averaging is allowed as specified in this subsection.

1. The owner of a municipal waste combustor plant may elect to implement a nitrogen oxides emissions averaging plan for the affected facilities that are located at that plant and that are subject to this article, except as specified in subdivisions 1 a and 1 b of this subsection.

a. Municipal waste combustor units subject to subpart Ea or subpart Eb of 40 CFR Part 60 cannot be included in the emissions averaging plan.

b. Mass burn refractory municipal waste combustor units and other municipal waste combustion technologies not listed in 9VAC5-40-8050 B cannot be included in the emissions averaging plan.

2. The affected facilities included in the nitrogen oxides emissions averaging plan must be identified in the initial compliance report specified in 9VAC5-40-8160 J or in the annual report specified in 9VAC5-40-8160 D, as applicable, prior to implementing the averaging plan. The affected facilities being included in the averaging plan may be redesignated each calendar year. Partial year redesignation is allowable with board approval.

3. To implement the emissions averaging plan, the average daily (24-hour) nitrogen oxides emission concentration level for gases discharged from the affected facilities being included in the emissions averaging plan must be no greater than the levels specified in 9VAC5-40-8050 B.

4. Under the emissions averaging plan, the average daily nitrogen oxides emissions specified in 9VAC5-40-8050 B shall be calculated using the following equation. Affected facilities that are offline shall not be included in calculating the average daily nitrogen oxides emission level.

For Compliance, see Virginia Administrative Code print product.

5. For any day in which any affected facility included in the emissions averaging plan is offline, the owner of the municipal waste combustor plant must demonstrate compliance according to either subdivision 5 a of this subsection or both subdivisions 5 b and 5 c of this subsection.

a. Compliance with the applicable limits specified in 9VAC5-40-8050 B shall be demonstrated using the averaging procedure specified in subdivision 4 of this subsection for the affected facilities that are online.

b. For each of the affected facilities included in the emissions averaging plan, the nitrogen oxides emissions on a daily average basis shall be calculated and shall be equal to or less than the maximum daily nitrogen oxides emission level achieved by that affected facility on any of the days during which the emissions averaging plan was achieved with all affected facilities online during the most recent calendar quarter. The requirements of this subsection do not apply during the first quarter of operation under the emissions averaging plan.

c. The average nitrogen oxides emissions (kilograms per day) calculated according to subdivision 5 c (2) of this subsection shall not exceed the average nitrogen oxides emissions (kilograms per day) calculated according to subdivision 5 c (1) of this subsection.

(1) For all days during which the emissions averaging plan was implemented and achieved and during which all affected facilities were online, the average nitrogen oxides emissions shall be calculated. The average nitrogen oxides emissions (kilograms per day) shall be calculated on a calendar year basis according to subdivisions 5 c (1) (a) through 5 c (1) (c) of this subsection.

(a) For each affected facility included in the emissions averaging plan, the daily amount of nitrogen oxides emitted (kilograms per day) shall be calculated based on the hourly nitrogen oxides data specified under 9VAC5-40-8140 G 5, the flue gas flow rate determined using Table 19-1 of Reference Method 19 or a board-approved method, and the hourly average steam or feedwater flow rate.

(b) The daily total nitrogen oxides emissions shall be calculated as the sum of the daily nitrogen oxides emissions from each affected facility calculated under subdivision 5 c (1) (a) of this subsection.

(c) The average nitrogen oxides emissions (kilograms per day) on a calendar year basis shall be calculated as the sum of all daily total nitrogen oxides emissions calculated under subdivision 5 c (1) (b) of this subsection divided by the number of calendar days for which a daily total was calculated.

(2) For all days during which one or more of the affected facilities under the emissions averaging plan was offline, the average nitrogen oxides emissions shall be calculated. The average nitrogen oxides emissions (kilograms per day) shall be calculated on a calendar year basis according to subdivisions 5 c (2) (a) through 5 c (2) (c) of this subsection.

(a) For each affected facility included in the emissions averaging plan, the daily amount of nitrogen oxides emitted (kilograms per day) shall be calculated based on the hourly nitrogen oxides data specified under 9VAC5-40-8140 G 5, the flue gas flow rate determined using Table 19-1 of Reference Method 19, and the hourly average steam or feedwater flow rate.

(b) The daily total nitrogen oxides emissions shall be calculated as the sum of the daily nitrogen oxides emissions from each affected facility calculated under subdivision 5 c (2) (a) of this subsection.

(c) The average nitrogen oxides emissions (kilograms per day) on a calendar year basis shall be calculated as the sum of all daily total nitrogen oxides emissions calculated under subdivision 5 c (2) (b) of this subsection divided by the number of calendar days for which a daily total was calculated.

E. Owners of municipal waste combustor plants may engage in trading of nitrogen oxides emission credits. A trading program must be approved by the board before implementation.

F. The initial emission test shall be completed within 180 days after the final compliance date specified in 9VAC5-40-8110 A.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8110 Compliance schedules

A. The compliance schedule provisions of 40 CFR 62.14108 (40 CFR, July 1, 2002) and 40 CFR 62.14109(e) through (m) (40 CFR, July 1, 2002) apply.

B. All affected sources shall comply with the municipal waste combustor operator training and certification requirements under 9VAC5-40-8130 according to the schedule specified in subdivisions 1 and 2 of this subsection.

1. Affected facilities shall comply with the municipal waste combustor operator training and certification requirements specified in 9VAC5-40-8130 A through D by August 4, 2000.

2. Affected facilities shall comply with the requirements specified in 9VAC5-40-8130 E through H no later than August 4, 2000.

a. The requirement specified in 9VAC5-40-8130 E does not apply to chief facility operators, shift supervisors, and control room operators who have obtained full certification from the American Society of Mechanical Engineers on or before the effective date of this article.

b. The owner of an affected facility may request that the board waive the requirement specified in 9VAC5-40-8130 E for chief facility operators, shift supervisors, and control room operators who have obtained provisional certification from the American Society of Mechanical Engineers on or before the effective date of this article.

c. The initial training requirements specified in 9VAC5-40-8130 G 1 shall be completed no later than the date specified in subdivision 2 c (1) or 2 c (2) of this subsection, whichever is later.

(1) August 4, 2000; or

(2) The date prior to the day when the person assumes responsibilities affecting municipal waste combustor unit operation.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8120 Operating practices

A. No owner of an affected facility shall cause such facility to operate at a load level greater than 110% of the maximum demonstrated municipal waste combustor unit load, except as specified in subdivisions 1 and 2 of this subsection. The averaging time is specified under 9VAC5-40-8150 C.

1. During the annual dioxin/furan emission test and the two weeks preceding the annual dioxin/furan emission test, no municipal waste combustor unit load limit is applicable.

2. The municipal waste combustor unit load limit may be waived in accordance with permission granted by the board for the purpose of evaluating system performance, testing new technology or control technologies, diagnostic testing, or related activities for the purpose of improving facility performance or advancing the state-of-the-art for controlling facility emissions.

B. No owner of an affected facility shall cause such facility to operate at a temperature, measured at the particulate matter control device inlet, exceeding 17 degrees Centigrade above the maximum demonstrated particulate matter control device temperature as defined in 9VAC5-40-7960, except as specified in subdivisions 1 and 2 of this subsection. The averaging time is specified under 9VAC5-40-8150 C. The requirements specified in this subsection apply to each particulate matter control device utilized at the affected facility.

1. During the annual dioxin/furan emission test and the two weeks preceding the annual dioxin/furan emission test, no particulate matter control device temperature limitations are applicable.

2. The particulate matter control device temperature limits may be waived in accordance with permission granted by the board for the purpose of evaluating system performance, testing new technology or control technologies, diagnostic testing, or related activities for the purpose of improving facility performance or advancing the state-of-the-art for controlling facility emissions.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8130 Operator training and certification

A. Each chief facility operator and shift supervisor of an affected facility shall obtain and maintain a current provisional operator training certification from the American Society of Mechanical Engineers as provided in the "Standard for the Qualification and Certification of Resource Recovery Facility Operators" (see 9VAC5-20-21) or a board-approved certification program.

B. Each chief facility operator and shift supervisor of an affected facility shall have completed full certification or scheduled a full certification exam with either the American Society of Mechanical Engineers as provided in the "Standard for the Qualification and Certification of Resource Recovery Facility Operators" (see 9VAC5-20-21) or a board-approved certification program.

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

D. No owner of an affected facility shall allow the facility to be operated at any time unless one of the following persons is on duty and at the affected facility: a fully certified chief facility operator, a provisionally certified chief facility operator who is scheduled to take the full certification exam according to the schedule specified in 9VAC5-40-8110 B 1, a fully certified shift supervisor, or a provisionally certified shift supervisor who is scheduled to take the full certification exam according to the schedule specified in 9VAC5-40-8110 B 1.

If one of the persons listed in this subsection must leave the affected facility during that person's operating shift, a provisionally certified control room operator who is onsite at the affected facility may fulfill the requirement in this subsection.

E. All chief facility operators, shift supervisors, and control room operators at affected facilities must complete the board-approved municipal waste combustor operator training course.

F. The owner of an affected facility shall develop and update on a yearly basis a site-specific operating manual that shall, at a minimum, address the elements of municipal waste combustor unit operation specified in this subsection.

1. A summary of the applicable standards under this article;

2. A description of basic combustion theory applicable to a municipal waste combustor unit;

3. Procedures for receiving, handling, and feeding municipal solid waste;

4. Municipal waste combustor unit startup, shutdown, and malfunction procedures;

5. Procedures for maintaining proper combustion air supply levels;

6. Procedures for operating the municipal waste combustor unit within the standards established under this article;

7. Procedures for responding to periodic upset or off-specification conditions;

8. Procedures for minimizing particulate matter carryover;

9. Procedures for handling ash;

10. Procedures for monitoring municipal waste combustor unit emissions; and

11. Reporting and recordkeeping procedures.

G. The owner of an affected facility shall establish a training program to review the operating manual according to the schedule specified in this subsection with each person who has responsibilities affecting the operation of an affected facility including, but not limited to, chief facility operators, shift supervisors, control room operators, ash handlers, maintenance personnel, and crane/load handlers.

1. Each person specified in this subsection shall undergo initial training no later than the date specified in subdivision 1 a or 1 b of this subsection, whichever is later.

a. The date prior to the day the person assumes responsibilities affecting municipal waste combustor unit operation; or

b. August 4, 2000.

2. Each person specified in this subsection shall undergo initial training annually, following the initial review required by subdivision 1 of this subsection.

H. The operating manual required by subsection F of this section shall be kept in a readily accessible location for all persons required to undergo training under subsection G of this section. The operating manual and records of training shall be available for inspection by the board upon request.

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8140 Test methods and procedures

A. The provisions governing test methods and procedures shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-8080 and 9VAC5-40-8090, the provisions of 9VAC5-40-30 (Emission testing) apply.

2. With regard to the emission limits in 9VAC5-40-7970 through 9VAC5-40-8070, the following provisions apply:

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

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

c. 40 CFR 60.11 and 40 CFR 60.13.

d. Subsections B through J of this section.

B. The procedures and test methods specified in this subsection shall be used to determine compliance with the emission limits for particulate matter and opacity under 9VAC5-40-7970 and 9VAC5-40-8060.

1. Reference Method 1 shall be used to select sampling site and number of traverse points.

2. Reference Method 3, 3A, or 3B, as applicable, shall be used for gas analysis.

3. Reference Method 5 shall be used for determining compliance with the particulate matter emission limit. The minimum sample volume shall be 1.7 cubic meters. The probe and filter holder heating systems in the sample train shall be set to provide a gas temperature no greater than 160 ± 14 degrees Centigrade. An oxygen or carbon dioxide measurement shall be obtained simultaneously with each Reference Method 5 run.

4. The owner of an affected facility may request that compliance with the particulate matter emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in 9VAC5-40-8150 B 6.

5. As specified in 40 CFR 60.8, all emission tests shall consist of three test runs. The average of the particulate matter emission concentrations from the three test runs is used to determine compliance.

6. In accordance with subdivisions 7 and 10 of this subsection, Reference Method 9 shall be used for determining compliance with the opacity limit except as provided in 40 CFR 60.11(e).

7. The owner of an affected facility shall conduct an initial emission test for particulate matter emissions and opacity as required in 9VAC5-40-8100.

8. The owner of an affected facility shall install, calibrate, maintain, and operate a continuous opacity monitoring system for measuring opacity and shall follow the methods and procedures specified in subdivisions 8 a through 8 d of this subsection.

a. The output of the continuous opacity monitoring system shall be recorded on a 6-minute average basis.

b. The continuous opacity monitoring system shall be installed, evaluated, and operated in accordance with 40 CFR 60.13.

c. The continuous opacity monitoring system shall conform to Performance Specification 1 in Appendix B of 40 CFR Part 60.

d. The initial performance evaluation shall be completed as specified in 9VAC5-40-8100.

9. Following the date that the initial emission test for particulate matter is completed or is required to be completed in 9VAC5-40-8100 for an affected facility, the owner shall conduct an emission test for particulate matter on an annual basis (no more than 12 calendar months following the previous emission test).

10. Following the date that the initial emission test for opacity is completed or is required to be completed in 9VAC5-40-8100 for an affected facility, the owner shall conduct an emission test for opacity on an annual basis (no more than 12 calendar months following the previous emission test) using the test method specified in subdivision 6 of this subsection.

C. The procedures and test methods specified in this subsection shall be used to determine compliance with the emission limits for cadmium, lead, and mercury under 9VAC5-40-7990, 9VAC5-40-8000, and 9VAC5-40-8010.

1. The procedures and test methods specified in subdivisions 1 a through 1 g of this subsection shall be used to determine compliance with the emission limits for cadmium and lead under 9VAC5-40-7990 and 9VAC5-40-8000.

a. Reference Method 1 shall be used for determining the location and number of sampling points.

b. Reference Method 3, 3A, or 3B, as applicable, shall be used for flue gas analysis.

c. Reference Method 29 shall be used for determining compliance with the cadmium and lead emission limits.

d. An oxygen or carbon dioxide measurement shall be obtained simultaneously with each Reference Method 29 test run for cadmium and lead required under subdivision 1 c of this subsection.

e. The owner of an affected facility may request that compliance with the cadmium or lead emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in 9VAC5-40-8150 B 6.

f. All emission tests shall consist of a minimum of three test runs conducted under representative full load operating conditions. The average of the cadmium or lead emission concentrations from three test runs or more shall be used to determine compliance.

g. Following the date of the initial emission test or the date on which the initial emission test is required to be completed in 9VAC5-40-8100, the owner of an affected facility shall conduct an emission test for compliance with the emission limits for cadmium and lead on an annual basis (no more than 12 calendar months following the previous emission test).

2. The procedures and test methods specified in subdivisions 2 a through 2 j of this subsection shall be used to determine compliance with the mercury emission limit under 9VAC5-40-8010.

a. Reference Method 1 shall be used for determining the location and number of sampling points.

b. Reference Method 3, 3A, or 3B, as applicable, shall be used for flue gas analysis.

c. Reference Method 29 shall be used to determine the mercury emission concentration. The minimum sample volume when using Reference Method 29 for mercury shall be 1.7 cubic meters.

d. An oxygen (or carbon dioxide) measurement shall be obtained simultaneously with each Reference Method 29 test run for mercury required under subdivision 2 c of this subsection.

e. The percent reduction in the potential mercury emissions (% p_Hg) is computed using the following equation:

where:

%P_Hg = percent reduction of the potential mercury emissions achieved.

E_i = potential mercury emission concentration measured at the control device inlet, corrected to 7.0% oxygen (dry basis).

E_O = controlled mercury emission concentration measured at the mercury control device outlet, corrected to 7.0% oxygen (dry basis).

f. All emission tests shall consist of a minimum of three test runs conducted under representative full load operating conditions. The average of the mercury emission concentrations or percent reductions from three test runs or more is used to determine compliance.

g. The owner of an affected facility may request that compliance with the mercury emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in 9VAC5-40-8150 B 6.

h. The owner of an affected facility shall conduct an initial emission test for mercury emissions as required in 9VAC5-40-8100.

i. Following the date that the initial emission test for mercury is completed or is required to be completed in 9VAC5-40-8100, the owner of an affected facility shall conduct an emission test for mercury emissions on an annual basis (no more than 12 calendar months from the previous emission test).

j. The owner of an affected facility where activated carbon injection is used to comply with the mercury emission limit shall follow the procedures specified in subsection J of this section for measuring and calculating carbon usage.

D. The procedures and test methods specified in this subsection shall be used for determining compliance with the sulfur dioxide emission limit under 9VAC5-40-8020.

1. Reference Method 19, section 4.3, shall be used to calculate the daily geometric average sulfur dioxide emission concentration.

2. Reference Method 19, section 5.4, shall be used to determine the daily geometric average percent reduction in the potential sulfur dioxide emission concentration.

3. The owner of an affected facility may request that compliance with the sulfur dioxide emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in 9VAC5-40-8150 B 6.

4. The owner of an affected facility shall conduct an initial emission test for sulfur dioxide emissions as required in 9VAC5-40-8100. Compliance with the sulfur dioxide emission limit (concentration or percent reduction) shall be determined by using the continuous emission monitoring system specified in subdivision 5 of this subsection to measure sulfur dioxide and calculating a 24-hour daily geometric average emission concentration or a 24-hour daily geometric average percent reduction using Reference Method 19, sections 4.3 and 5.4, as applicable.

5. The owner of an affected facility shall install, calibrate, maintain, and operate a continuous emission monitoring system for measuring sulfur dioxide emissions discharged to the atmosphere and record the output of the system.

6. Following the date that the initial emission test for sulfur dioxide is completed or is required to be completed in 9VAC5-40-8100, compliance with the sulfur dioxide emission limit shall be determined based on the 24-hour daily geometric average of the hourly arithmetic average emission concentrations using continuous emission monitoring system outlet data if compliance is based on an emission concentration, or continuous emission monitoring system inlet and outlet data if compliance is based on a percent reduction.

7. At a minimum, valid continuous monitoring system hourly averages shall be obtained as specified in subdivisions 7 a and 7 b of this subsection for 75% of the operating hours per day for 90% of the operating days per calendar quarter that the affected facility is combusting municipal solid waste.

a. At least two data points per hour shall be used to calculate each one-hour arithmetic average.

b. Each sulfur dioxide one-hour arithmetic average shall be corrected to 7.0% oxygen on an hourly basis using the one-hour arithmetic average of the oxygen (or carbon dioxide) continuous emission monitoring system data.

8. The one-hour arithmetic averages required under subdivision 6 of this subsection shall be expressed in parts per million corrected to 7.0% oxygen (dry basis) and used to calculate the 24-hour daily geometric average emission concentrations and daily geometric average emission percent reductions. The one-hour arithmetic averages shall be calculated using the data points required in 40 CFR 60.13(e)(2).

9. All valid continuous emission monitoring system data shall be used in calculating average emission concentrations and percent reductions even if the minimum continuous emission monitoring system data requirements of subdivision 7 of this subsection are not met.

10. The procedures in 40 CFR 60.13 shall be followed for installation, evaluation, and operation of the continuous emission monitoring system.

11. The initial performance evaluation shall be completed as specified in 9VAC5-40-8100.

12. The continuous emission monitoring system shall be operated according to Performance Specification 2 in Appendix B of 40 CFR Part 60.

a. During each relative accuracy test run of the continuous emission monitoring system required by Performance Specification 2 in Appendix B of 40 CFR Part 60, sulfur dioxide and oxygen (or carbon dioxide) data shall be collected concurrently (or within a 30- to 60-minute period) by both the continuous emission monitors and the test methods specified in subdivisions 12 a (1) and 12 a (2) of this subsection.

(1) For sulfur dioxide, Reference Method 6, 6A, or 6C shall be used.

(2) For oxygen (or carbon dioxide), Reference Method 3, 3A, or 3B, as applicable, shall be used.

b. The span value of the continuous emissions monitoring system at the inlet to the sulfur dioxide control device shall be 125% of the maximum estimated hourly potential sulfur dioxide emissions of the municipal waste combustor unit. The span value of the continuous emission monitoring system at the outlet of the sulfur dioxide control device shall be 50% of the maximum estimated hourly potential sulfur dioxide emissions of the municipal waste combustor unit.

13. Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with procedure 1 in Appendix F of 40 CFR Part 60.

14. When sulfur dioxide emissions data are not obtained because of continuous emission monitoring system breakdowns, repairs, calibration checks, and zero and span adjustments, emissions data shall be obtained by using other monitoring systems as approved by the board or Reference Method 19 to provide, as necessary, valid emissions data for a minimum of 75% of the hours per day that the affected facility is operated and combusting municipal solid waste for 90% of the days per calendar quarter that the affected facility is operated and combusting municipal solid waste.

E. The procedures and test methods specified in this subsection shall be used for determining compliance with the hydrogen chloride emission limit under 9VAC5-40-8030.

1. Reference Method 26 or 26A, as applicable, shall be used to determine the hydrogen chloride emission concentration. The minimum sampling time for Reference Method 26 shall be one hour.

2. An oxygen (or carbon dioxide) measurement shall be obtained simultaneously with each Reference Method 26 test run for hydrogen chloride required by subdivision 1 of this subsection.

3. The percent reduction in potential hydrogen chloride emissions (%P_HCl) is computed using the following equation:

where:

%P_HCl = percent reduction of the potential hydrogen chloride emissions achieved.

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

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

4. The owner of an affected facility may request that compliance with the hydrogen chloride emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in 9VAC5-40-8150 B 6.

5. As specified in 40 CFR 60.8, all emission tests shall consist of three test runs. The average of the hydrogen chloride emission concentrations or percent reductions from the three test runs is used to determine compliance.

6. The owner of an affected facility shall conduct an initial emission test for hydrogen chloride as required in 9VAC5-40-8100.

7. Following the date that the initial emission test for hydrogen chloride is completed or is required to be completed in 9VAC5-40-8100, the owner of an affected facility shall conduct an emission test for hydrogen chloride emissions on an annual basis (no more than 12 calendar months following the previous emission test).

F. The procedures and test methods specified in this subsection shall be used to determine compliance with the limits for dioxin/furan emissions under 9VAC5-40-8040.

1. Reference Method 1 shall be used for determining the location and number of sampling points.

2. Reference Method 3, 3A, or 3B, as applicable, shall be used for flue gas analysis.

3. Reference Method 23 shall be used for determining the dioxin/furan emission concentration.

a. The minimum sample time shall be four hours per test run.

b. An oxygen (or carbon dioxide) measurement shall be obtained simultaneously with each Reference Method 23 test run for dioxins/furans.

4. The owner of an affected facility shall conduct an initial emission test for dioxin/furan emissions in accordance with subdivision 3 of this subsection, as required in 9VAC5-40-8100.

5. Following the date that the initial emission test for dioxins/furans is completed or is required to be completed in 9VAC5-40-8100, the owner of an affected facility shall conduct emission tests for dioxin/furan emissions in accordance with subdivision 3 of this subsection, according to one of the schedules specified in subdivision 5 a or 5 b of this subsection.

a. For affected facilities, emission tests shall be conducted on an annual basis (no more than 12 calendar months following the previous emission test).

b. Where all emission tests over a two-year period indicate that dioxin/furan emissions are less than or equal to 15 nanograms per dry standard cubic meter (total mass) for all affected facilities located within a municipal waste combustor plant, the owner of the municipal waste combustor plant may elect to conduct annual emission tests for one affected facility (i.e., unit) per year at the municipal waste combustor plant. At a minimum, an emission test for dioxin/furan emissions shall be conducted annually (no more than 12 months following the previous emission test) for one affected facility at the municipal waste combustor plant. Each year a different affected facility at the municipal waste combustor plant shall be tested, and the affected facilities at the plant shall be tested in sequence (e.g., unit 1, unit 2, unit 3, as applicable). If each annual emission test continues to indicate a dioxin/furan emission level less than or equal to 15 nanograms per dry standard cubic meter (total mass), the owner may continue conducting an emission test on only one affected facility per year. If any annual emission test indicates a dioxin/furan emission level greater than 15 nanograms per dry standard cubic meter (total mass), emission tests thereafter shall be conducted annually on all affected facilities at the plant until and unless all annual emission tests for all affected facilities at the plant over a two-year period indicate a dioxin/furan emission level less than or equal to 15 nanograms per dry standard cubic meter (total mass).

6. The owner of an affected facility that selects to follow the emission testing schedule specified in subdivision 5 a or 5 b of this subsection shall follow the procedures specified in 9VAC5-40-8160 D 4 for reporting the selection of this schedule.

7. The owner of an affected facility where activated carbon is used to comply with the dioxin/furan emission limits specified in 9VAC5-40-8040 or the dioxin/furan emission level specified in subdivision 5 a or 5 b of this subsection shall follow the procedures specified in subsection J of this section for measuring and calculating the carbon usage rate.

8. The owner may request that compliance with the dioxin/furan emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in 9VAC5-40-8150 B 6.

9. As specified in 40 CFR 60.8, all emission tests shall consist of three test runs. The average of the dioxin/furan emission concentrations from the three test runs is used to determine compliance.

G. The procedures and test methods specified in this subsection shall be used to determine compliance with the nitrogen oxides emission limit for affected facilities under 9VAC5-40-8050.

1. Reference Method 19, section 4.1, shall be used for determining the daily arithmetic average nitrogen oxides emission concentration.

2. The owner of an affected facility may request that compliance with the nitrogen oxides emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in 9VAC5-40-8150 B 6.

3. The owner of an affected facility subject to the nitrogen oxides limit under 9VAC5-40-8050 shall conduct an initial emission test for nitrogen oxides as required in 9VAC5-40-8100. Compliance with the nitrogen oxides emission limit shall be determined by using the continuous emission monitoring system specified in subdivision 4 of this subsection for measuring nitrogen oxides and calculating a 24-hour daily arithmetic average emission concentration using Reference Method 19, section 4.1.

4. The owner of an affected facility subject to the nitrogen oxides emission limit under 9VAC5-40-8050 shall install, calibrate, maintain, and operate a continuous emission monitoring system for measuring nitrogen oxides discharged to the atmosphere, and record the output of the system.

5. Following the date that the initial emission test for nitrogen oxides is completed or is required to be completed in 9VAC5-40-8100, compliance with the emission limit for nitrogen oxides required under 9VAC5-40-8050 shall be determined based on the 24-hour daily arithmetic average of the hourly emission concentrations using continuous emission monitoring system outlet data.

6. At a minimum, valid continuous emission monitoring system hourly averages shall be obtained as specified in subdivisions 6 a and 6 b of this subsection for 75% of the operating hours per day for 90% of the operating days per calendar quarter that the affected facility is combusting municipal solid waste.

a. At least two data points per hour shall be used to calculate each one-hour arithmetic average.

b. Each nitrogen oxides one-hour arithmetic average shall be corrected to 7.0% oxygen on an hourly basis using the one-hour arithmetic average of the oxygen (or carbon dioxide) continuous emission monitoring system data.

7. The one-hour arithmetic averages required by subdivision 5 of this subsection shall be expressed in parts per million by volume (dry basis) and used to calculate the 24-hour daily arithmetic average concentrations. The one-hour arithmetic averages shall be calculated using the data points required in 40 CFR 60.13(e)(2).

8. All valid continuous emission monitoring system data must be used in calculating emission averages even if the minimum continuous emission monitoring system data requirements of subdivision 6 of this subsection are not met.

9. The procedures in 40 CFR 60.13 shall be followed for installation, evaluation, and operation of the continuous emission monitoring system. The initial performance evaluation shall be completed as specified in 9VAC5-40-8100.

10. The owner of an affected facility shall operate the continuous emission monitoring system according to Performance Specification 2 in Appendix B of 40 CFR Part 60 and shall follow the procedures and methods specified in subdivisions 10 a and 10 b of this subsection.

a. During each relative accuracy test run of the continuous emission monitoring system required by Performance Specification 2 of Appendix B of 40 CFR Part 60, nitrogen oxides and oxygen (or carbon dioxide) data shall be collected concurrently (or within a 30- to 60-minute period) by both the continuous emission monitors and the test methods specified in subdivisions 10 a (1) and 10 a (2) of this subsection.

(1) For nitrogen oxides, Reference Method 7, 7A, 7C, 7D, or 7E shall be used.

(2) For oxygen (or carbon dioxide), Reference Method 3, 3A, or 3B, as applicable, shall be used.

b. The span value of the continuous emission monitoring system shall be 125% of the maximum estimated hourly potential nitrogen oxide emissions of the municipal waste combustor unit.

11. Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with procedure 1 in Appendix F of 40 CFR Part 60.

12. When nitrogen oxides continuous emissions data are not obtained because of continuous emission monitoring system breakdowns, repairs, calibration checks, and zero and span adjustments, emissions data shall be obtained using other monitoring systems as approved by the board or Reference Method 19 to provide, as necessary, valid emissions data for a minimum of 75% of the hours per day for 90% of the days per calendar quarter the unit is operated and combusting municipal solid waste.

H. The procedures specified in this subsection shall be used for determining compliance with the fugitive ash emission limit under 9VAC5-40-8070.

1. Reference Method 22 shall be used for determining compliance with the fugitive ash emission limit under 9VAC5-40-8070. The minimum observation time shall be a series of three one-hour observations. The observation period shall include times when the facility is transferring ash from the municipal waste combustor unit to the area where ash is stored or loaded into containers or trucks.

2. The average duration of visible emissions per hour shall be calculated from the three one-hour observations. The average shall be used to determine compliance with 9VAC5-40-8070.

3. The owner of an affected facility shall conduct an initial emission test for fugitive ash emissions as required in 9VAC5-40-8100.

4. Following the date that the initial emission test for fugitive ash emissions is completed or is required to be completed in 9VAC5-40-8100 for an affected facility, the owner shall conduct an emission test for fugitive ash emissions on an annual basis (no more than 12 calendar months following the previous emission test).

I. The procedures specified in this subsection shall be used to determine compliance with the opacity limit for air curtain incinerators under 9VAC5-40-8060 C.

1. Reference Method 9 shall be used for determining compliance with the opacity limit.

2. The owner of the air curtain incinerator shall conduct an initial emission test for opacity as required in 9VAC5-40-8100.

3. Following the date that the initial emission test is completed or is required to be completed in 9VAC5-40-8100, the owner of the air curtain incinerator shall conduct an emission test for opacity on an annual basis (no more than 12 calendar months following the previous emission test).

J. The owner of an affected facility where activated carbon injection is used to comply with the mercury emission limit under 9VAC5-40-8010, or the dioxin/furan emission limits under 9VAC5-40-8040, or the dioxin/furan emission level specified in subdivision F 5 b of this section shall follow the procedures specified in this subsection.

1. During the emission tests for dioxins/furans and mercury, as applicable, the owner shall estimate an average carbon mass feed rate based on carbon injection system operating parameters such as the screw feeder speed, hopper volume, hopper refill frequency, or other parameters appropriate to the feed system being employed, as specified in subdivisions 1 a and 1 b of this subsection.

a. An average carbon mass feed rate in kilograms per hour or pounds per hour shall be estimated during the initial emission test for mercury emissions and each subsequent emission test for mercury emissions.

b. An average carbon mass feed rate in kilograms per hour or pounds per hour shall be estimated during the initial emission test for dioxin/furan emissions and each subsequent emission test for dioxin/furan emissions.

2. During operation of the affected facility, the carbon injection system operating parameter(s) that are the primary indicator(s) of the carbon mass feed rate (e.g., screw feeder setting) must equal or exceed the level(s) documented during the emission tests specified under subdivisions 1 a and 1 b of this subsection.

3. The owner of an affected facility shall estimate the total carbon usage of the plant (kilograms or pounds) for each calendar quarter by two independent methods, according to the procedures in subdivisions 3 a and 3 b of this subsection.

a. The weight of carbon delivered to the plant.

b. Estimate the average carbon mass feed rate in kilograms per hour or pounds per hour for each hour of operation for each affected facility based on the parameters specified under subdivision 1 of this subsection, and sum the results for all affected facilities at the plant for the total number of hours of operation during the calendar quarter.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8150 Monitoring

A. The provisions governing monitoring shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-8080 and 9VAC5-40-8090, the provisions of 9VAC5-40-40 (Monitoring) apply.

2.With regard to the emission limits in 9VAC5-40-7970 through 9VAC5-40-8070, the following provisions apply:

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

b. 40 CFR 60.13.

c. Subsections B and C of this section.

B. The owner of an affected facility shall install, calibrate, maintain, and operate a continuous emission monitoring system and record the output of the system for measuring the oxygen or carbon dioxide content of the flue gas at each location where carbon monoxide, sulfur dioxide, or nitrogen oxides emissions are monitored and shall comply with the test procedures and test methods specified in this subsection.

1. The span value of the oxygen (or carbon dioxide) monitor shall be 25% oxygen (or carbon dioxide).

2. The monitor shall be installed, evaluated, and operated in accordance with 40 CFR 60.13.

3. The initial performance evaluation shall be completed prior to the initial emission test as specified in 9VAC5-40-8100.

4. The monitor shall conform to Performance Specification 3 in Appendix B of 40 CFR Part 60 except for section 2.3 (relative accuracy requirement).

5. The quality assurance procedures of Appendix F of 40 CFR Part 60 except for section 5.1.1 (relative accuracy test audit) shall apply to the monitor.

6. If carbon dioxide is selected for use in diluent corrections, the relationship between oxygen and carbon dioxide levels shall be established during the initial emission test according to the procedures and methods specified in subdivisions 6 a through 6 d of this subsection. This relationship may be reestablished during performance compliance tests.

a. The fuel factor equation in Reference Method 3B shall be used to determine the relationship between oxygen and carbon dioxide at a sampling location. Reference method 3, 3A, or 3B, as applicable, shall be used to determine the oxygen concentration at the same location as the carbon dioxide monitor.

b. Samples shall be taken for at least 30 minutes in each hour.

c. Each sample shall represent a one-hour average.

d. A minimum of three runs shall be performed.

7. The relationship between carbon dioxide and oxygen concentrations that is established in accordance with subdivision 6 of this subsection shall be submitted to the board as part of the initial emission test report and, if applicable, as part of the annual test report if the relationship is reestablished during the annual emission test.

C. The procedures specified in this subsection shall be used for determining compliance with the operating requirements under 9VAC5-40-8120.

1. Compliance with the carbon monoxide emission limits in 9VAC5-40-7980 shall be determined using a four-hour block arithmetic average for all types of affected facilities except mass burn rotary waterwall municipal waste combustors and refuse-derived fuel stokers.

2. For affected mass burn rotary waterwall municipal waste combustors and refuse-derived fuel stokers, compliance with the carbon monoxide emission limits in 9VAC5-40-7980 shall be determined using a 24-hour daily arithmetic average.

3. The owner of an affected facility shall install, calibrate, maintain, and operate a continuous emission monitoring system for measuring carbon monoxide at the combustor outlet and record the output of the system and shall follow the procedures and methods specified in subdivisions 3 a through 3 c of this subsection.

a. The continuous emission monitoring system shall be operated according to Performance Specification 4A in Appendix B of 40 CFR Part 60.

b. During each relative accuracy test run of the continuous emission monitoring system required by Performance Specification 4A in Appendix B of 40 CFR Part 60, carbon monoxide and oxygen (or carbon dioxide) data shall be collected concurrently (or within a 30- to 60-minute period) by both the continuous emission monitors and the test methods specified in subdivisions 3 b (1) and 3 b (2) of this subsection.

(1) For carbon monoxide, Reference Method 10, 10A, or 10B shall be used.

(2) For oxygen (or carbon dioxide), Reference Method 3, 3A, or 3B, as applicable, shall be used.

c. The span value of the continuous emission monitoring system shall be 125% of the maximum estimated hourly potential carbon monoxide emissions of the municipal waste combustor unit.

4. The four-hour block and 24-hour daily arithmetic averages specified in subdivisions 1 and 2 of this subsection shall be calculated from one-hour arithmetic averages expressed in parts per million by volume corrected to 7.0% oxygen (dry basis). The one-hour arithmetic averages shall be calculated using the data points generated by the continuous emission monitoring system. At least two data points shall be used to calculate each one-hour arithmetic average.

5. The owner of an affected facility may request that compliance with the carbon monoxide emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7.0% oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility shall be established as specified in subdivision B 6 of this section.

6. The procedures specified in subdivisions 6 a through 6 d of this subsection shall be used to determine compliance with load level requirements under 9VAC5-40-8120 A.

a. The owner of an affected facility with steam generation capability shall install, calibrate, maintain, and operate a steam flow meter or a feedwater flow meter; measure steam (or feedwater) flow in kilograms per hour (or pounds per hour) on a continuous basis; and record the output of the monitor. Steam (or feedwater) flow shall be calculated in four-hour block arithmetic averages.

b. The method included in section 4 of the American Society of Mechanical Engineers publication, "Power Test Codes: Steam Generating Units" (see 9VAC5-20-21) shall be used for calculating the steam (or feedwater) flow required under subdivision 6 a of this subsection. The recommendations in chapter 4 of the American Society of Mechanical Engineers publication, "Interim Supplement 19.5 on Instruments and Apparatus: Application, Part II of Fluid Meters" (see 9VAC5-20-21) shall be followed for design, construction, installation, calibration, and use of nozzles and orifices except as specified in subdivision 6 c of this subsection.

c. Measurement devices such as flow nozzles and orifices are not required to be recalibrated after they are installed.

d. All signal conversion elements associated with steam (or feedwater flow) measurements must be calibrated according to the manufacturer's instructions before each dioxin/furan emission test, and at least once per year.

7. To determine compliance with the maximum particulate matter control device temperature requirements under 9VAC5-40-8120 B, the owner of an affected facility shall install, calibrate, maintain, and operate a device for measuring on a continuous basis the temperature of the flue gas stream at the inlet to each particulate matter control device utilized by the affected facility. Temperature shall be calculated in four-hour block arithmetic averages.

8. The maximum demonstrated municipal waste combustor unit load shall be determined during the initial emission test for dioxins/furans and each subsequent emission test during which compliance with the dioxin/furan emission limit specified in 9VAC5-40-8040 is achieved. The maximum demonstrated municipal waste combustor unit load shall be the highest four-hour arithmetic average load achieved during four consecutive hours during the most recent test during which compliance with the dioxin/furan emission limit was achieved.

9. For each particulate matter control device employed at the affected facility, the maximum demonstrated particulate matter control device temperature shall be determined during the initial emission test for dioxins/furans and each subsequent emission test during which compliance with the dioxin/furan emission limit specified in 9VAC5-40-8040 is achieved. The maximum demonstrated particulate matter control device temperature shall be the highest four-hour arithmetic average temperature achieved at the particulate matter control device inlet during four consecutive hours during the most recent test during which compliance with the dioxin/furan limit was achieved.

10. At a minimum, valid continuous emission monitoring system hourly averages shall be obtained as specified in subdivisions 10 a and 10 b of this subsection for 75% of the operating hours per day for 90% of the operating days per calendar quarter that the affected facility is combusting municipal solid waste.

a. At least two data points per hour shall be used to calculate each one-hour arithmetic average.

b. At a minimum, each carbon monoxide one-hour arithmetic average shall be corrected to 7.0% oxygen on an hourly basis using the one-hour arithmetic average of the oxygen (or carbon dioxide) continuous emission monitoring system data.

11. All valid continuous emission monitoring system data must be used in calculating the parameters specified under this section even if the minimum data requirements of subdivision 10 of this subsection are not met. When carbon monoxide continuous emission data are not obtained because of continuous emission monitoring system breakdowns, repairs, calibration checks, and zero and span adjustments, emissions data shall be obtained using other monitoring systems as approved by the board or Reference Method 10 to provide, as necessary, the minimum valid emission data.

12. Quarterly accuracy determinations and daily calibration drift tests for the carbon monoxide continuous emission monitoring system shall be performed in accordance with procedure 1 in Appendix F of 40 CFR Part 60.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8160 Notification, records and reporting

A. The provisions governing notification, records and reporting shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-8080 and 9VAC5-40-8090, the provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

2. With regard to the emission limits in 9VAC5-40-7970 through 9VAC5-40-8070, the following provisions apply:

a. 9VAC5-40-50 F and H.

b. 40 CFR 60.7.

c. Subsections B through J of this section.

B. The owner of an affected facility shall maintain records of the information specified in this subsection, as applicable, for each affected facility for a period of at least five years.

1. The calendar date of each record.

2. The emission concentrations and parameters measured using continuous monitoring systems as specified under subdivisions 2 a and 2 b of this subsection.

a. The measurements specified in subdivisions 2 a (1) through 2 a (4) of this subsection shall be recorded and be available for submittal to the board or review onsite by an inspector.

(1) All six-minute average opacity levels as specified under 9VAC5-40-8140 B.

(2) All one-hour average sulfur dioxide emission concentrations as specified under 9VAC5-40-8140 D.

(3) All one-hour average nitrogen oxides emission concentrations as specified under 9VAC5-40-8140 G.

(4) All one-hour average carbon monoxide emission concentrations, municipal waste combustor unit load measurements, and particulate matter control device inlet temperatures as specified under 9VAC5-40-8150 C.

b. The average concentrations and percent reductions, as applicable, specified in subdivisions 2 b (1) through 2 b (4) of this subsection shall be computed and recorded, and shall be available for submittal to the board or review on-site by an inspector.

(1) All 24-hour daily geometric average sulfur dioxide emission concentrations and all 24-hour daily geometric average percent reductions in sulfur dioxide emissions as specified under 9VAC5-40-8140 D.

(2) All 24-hour daily arithmetic average nitrogen oxides emission concentrations as specified under 9VAC5-40-8140 G.

(3) All four-hour block or 24-hour daily arithmetic average carbon monoxide emission concentrations, as applicable, as specified under 9VAC5-40-8150 C.

(4) All four-hour block arithmetic average municipal waste combustor unit load levels and particulate matter control device inlet temperatures as specified under 9VAC5-40-8150 C.

3. Identification of the calendar dates when any of the average emission concentrations, percent reductions, or operating parameters recorded under subdivisions 2 b (1) through 2 b (4) of this subsection, or the opacity levels recorded under subdivision 2 a (1) of this subsection are above the applicable limits, with reasons for such exceedances and a description of corrective actions taken.

4. For affected facilities that apply activated carbon for mercury or dioxin/furan control, the records specified in subdivisions 4 a through 4 e of this subsection.

a. The average carbon mass feed rate (in kilograms per hour or pounds per hour) estimated as required under 9VAC5-40-8140 J 1 a during all annual emission tests for mercury emissions, with supporting calculations.

b. The average carbon mass feed rate (in kilograms per hour or pounds per hour) estimated as required under 9VAC5-40-8140 J 1 b during all annual emission tests for dioxin/furan, with supporting calculations.

c. The average carbon mass feed rate (in kilograms per hour or pounds per hour) estimated for each hour of operation as required under 9VAC5-40-8140 J 3 b, with supporting calculations.

d. The total carbon usage for each calendar quarter estimated as specified by 9VAC5-40-8140 J 3, with supporting calculations.

e. Carbon injection system operating parameter data for the parameter(s) that are the primary indicator(s) of carbon feed rate (e.g., screw feeder speed).

5. Identification of the calendar dates for which the minimum number of hours of any of the data specified in subdivisions 5 a through 5 e of this subsection have not been obtained including reasons for not obtaining sufficient data and a description of corrective actions taken.

a. Sulfur dioxide emissions data;

b. Nitrogen oxides emissions data;

c. Carbon monoxide emissions data;

d. Municipal waste combustor unit load data; and

e. Particulate matter control device temperature data.

6. Identification of each occurrence that sulfur dioxide emissions data, nitrogen oxides emissions data, or operational data (i.e., carbon monoxide emissions, unit load, and particulate matter control device temperature) have been excluded from the calculation of average emission concentrations or parameters, and the reasons for excluding the data.

7. The results of daily drift tests and quarterly accuracy determinations for sulfur dioxide, nitrogen oxides (large municipal waste combustors only), and carbon monoxide continuous emission monitoring systems, as required under Appendix F of 40 CFR Part 60, procedure 1.

8. The test reports documenting the results of all annual emission tests listed in subdivisions 8 a and 8 b of this subsection shall be recorded along with supporting calculations.

a. The results of all annual emission tests conducted to determine compliance with the particulate matter, opacity, cadmium, lead, mercury, dioxins/furans, hydrogen chloride, and fugitive ash emission limits.

b. For all dioxin/furan emission tests recorded under subdivision 8 a of this subsection, the maximum demonstrated municipal waste combustor unit load and maximum demonstrated particulate matter control device temperature (for each particulate matter control device).

9. The records specified in subdivisions 9 a through 9 c of this subsection.

a. Records showing the names of the municipal waste combustor chief facility operator, shift supervisors, and control room operators who have been provisionally certified by the American Society of Mechanical Engineers or an equivalent board-approved certification program as required by 9VAC5-40-8130 A, including the dates of initial and renewal certifications and documentation of current certification.

b. Records showing the names of the municipal waste combustor chief facility operator, shift supervisors, and control room operators who have been fully certified by the American Society of Mechanical Engineers or an equivalent board-approved certification program as required by 9VAC5-40-8130 B, including the dates of initial and renewal certifications and documentation of current certification.

c. Records showing the names of the municipal waste combustor chief facility operator, shift supervisors, and control room operators who have completed the EPA municipal waste combustor operator training course or a board-approved equivalent course as required by 9VAC5-40-8130 E, including documentation of training completion.

10. Records showing the names of persons who have completed a review of the operating manual as required by 9VAC5-40-8130 G, including the date of the initial review and subsequent annual reviews.

11. For affected facilities that apply activated carbon for mercury or dioxin/furan control, identification of the calendar dates when the average carbon mass feed rates recorded under subdivision 4 c of this subsection were less than either of the hourly carbon feed rates estimated during emission tests for mercury or dioxin/furan emissions and recorded under subdivisions 4 a and 4 b of this subsection, respectively, with reasons for such feed rates and a description of corrective actions taken.

12. For affected facilities that apply activated carbon for mercury or dioxin/furan control, identification of the calendar dates when the carbon injection system operating parameter(s) that are the primary indicator(s) of carbon mass feed rate (e.g., screw feeder speed) recorded under subdivision 4 d of this subsection are below the level(s) estimated during the emission tests as specified in 9VAC5-40-8140 J 1 a and 9VAC5-40-8140 J 1 b, with reasons for such occurrences and a description of corrective actions taken.

C. The owner of an air curtain incinerator subject to the opacity limit under 9VAC5-40-8060 shall maintain records of results of the opacity emission tests required by 9VAC5-40-8140 I for a period of at least five years.

D. The owner of an affected facility shall submit an annual report including the information specified in this subsection, as applicable, no later than February 1 of each year following the calendar year in which the data were collected (once the unit is subject to permitting requirements in a federal operating permit, the owner of an affected facility must submit these reports semiannually).

1. A summary of data collected for all pollutants and parameters regulated under this article, which includes the information specified in subdivisions 1 a through 1 e of this subsection.

a. A list of the particulate matter, opacity, cadmium, lead, mercury, dioxins/furans, hydrogen chloride, and fugitive ash emission levels achieved during the emission tests recorded under subdivision B 8 of this section.

b. A list of the highest emission level recorded for sulfur dioxide, nitrogen oxides, carbon monoxide, municipal waste combustor unit load level, and particulate matter control device inlet temperature based on the data recorded under subdivisions B 2 b (1) through B 2 b (4) of this section.

c. List the highest opacity level measured, based on the data recorded under subdivision B 2 a (1) of this section.

d. The total number of days that the minimum number of hours of data for sulfur dioxide, nitrogen oxides, carbon monoxide, municipal waste combustor unit load, and particulate matter control device temperature data were not obtained based on the data recorded under subdivision B 5 of this section.

e. The total number of hours that data for sulfur dioxide, nitrogen oxides, carbon monoxide, municipal waste combustor unit load, and particulate matter control device temperature were excluded from the calculation of average emission concentrations or parameters based on the data recorded under subdivision B 6 of this section.

2. The summary of data reported under subdivision 1 of this subsection shall also provide the types of data specified in subdivision 1 of this subsection for the calendar year preceding the year being reported, in order to provide the board with a summary of the performance of the affected facility over a two-year period.

3. The summary of data including the information specified in subdivisions 1 and 2 of this subsection shall highlight any emission or parameter levels that did not achieve the emission or parameter limits specified under this article.

4. A notification of intent to begin the reduced dioxin/furan emission testing schedule specified in 9VAC5-40-8140 F 5 b during the following calendar year.

E. The owner of an affected facility shall submit a semiannual report that includes the information specified in subdivisions 1 through 5 of this subsection for any recorded pollutant or parameter that does not comply with the pollutant or parameter limit specified under this article, according to the schedule specified under subdivision 6 of this subsection.

1. The semiannual report shall include information recorded under subdivision B 3 of this section for sulfur dioxide, nitrogen oxides, carbon monoxide, municipal waste combustor unit load level, particulate matter control device inlet temperature, and opacity.

2. For each date recorded as required by subdivision B 3 of this section and reported as required by subdivision 1 of this subsection, the semiannual report shall include the sulfur dioxide, nitrogen oxides, carbon monoxide, municipal waste combustor unit load level, particulate matter control device inlet temperature, or opacity data, as applicable, recorded under subdivisions B 2 b (1) through B 2 b (4) and B 2 a (1) of this section, as applicable.

3. If the test reports recorded under subdivision B 8 of this section document any particulate matter, opacity, cadmium, lead, mercury, dioxins/furans, hydrogen chloride, and fugitive ash emission levels that were above the applicable pollutant limits, the semiannual report shall include a copy of the test report documenting the emission levels and the corrective actions taken.

4. The semiannual report shall include the information recorded under subdivision B 12 of this section for the carbon injection system operating parameter(s) that are the primary indicator(s) of carbon mass feed rate.

5. For each operating date reported as required by subdivision 4 of this subsection, the semiannual report shall include the carbon feed rate data recorded under subdivision B 4 c of this section.

6. Semiannual reports required by this subsection shall be submitted according to the schedule specified in subdivisions 6 a and 6 b of this subsection.

a. If the data reported in accordance with subdivisions 1 through 5 of this subsection were collected during the first calendar half, then the report shall be submitted by August 1 following the first calendar half.

b. If the data reported in accordance with subdivisions 1 through 5 of this subsection were collected during the second calendar half, then the report shall be submitted by February 1 following the second calendar half.

F. The owner of an air curtain incinerator subject to the opacity limit under 9VAC5-40-8060 shall submit the results of all annual emission tests for opacity recorded under subsection C of this section. Annual emission tests shall be submitted by February 1 of the year following the year of the emission test.

G. All reports specified under subsections D, E, and F of this section shall be submitted as a paper copy, postmarked on or before the submittal dates specified under these subsections, and maintained onsite as a paper copy for a period of five years.

H. All records specified under subsections B and C of this section shall be maintained onsite in either paper copy or computer-readable format, unless an alternative format is approved by the board.

I. If the owner of an affected facility would prefer to select a different annual or semiannual date for submitting the periodic reports required by subsections D, E, and F of this section, then the dates may be changed by mutual agreement between the owner and the board.

J. The owner of an affected facility shall submit the information specified in subdivisions 1 through 6 of this subsection in the initial emission test report.

1. The initial performance test data as recorded under subdivisions B 2 b (1) through (4) of this section for the initial emission test for sulfur dioxide, nitrogen oxides, carbon monoxide, MWC combustor unit load level, and particulate matter control device inlet temperature.

2. The test report documenting the initial emission test recorded under subdivision B 8 of this section for particulate matter, opacity, cadmium, lead, mercury, dioxins/furans, hydrogen chloride, and fugitive ash emissions.

3. The performance evaluation of the continuous emission monitoring system using the applicable performance specifications in Appendix B of 40 CFR Part 60.

4. The maximum demonstrated MWC unit load and maximum demonstrated particulate matter control device inlet temperatures established during the initial dioxin/furan emission test as recorded in subdivision B 8 of this section.

5. For affected facilities that apply activated carbon injection for mercury control, the owner shall submit the average carbon mass feed rate recorded under subdivision B 4 a of this section.

6. For affected facilities that apply activated carbon injection for dioxin/furan control, the owner shall submit the average carbon mass feed rate recorded under subdivision B 4 b of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8170 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

9VAC5-40-8180 Facility and control equipment maintenance or malfunction

The provisions governing facility and control equipment maintenance or malfunction shall be as follows:

1. With regard to the emissions standards in 9VAC5-40-8080 and 9VAC5-40-8090, the provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

2. With regard to the emission limits in 9VAC5-40-7970 through 9VAC5-40-8070, the following provisions apply:

a. 9VAC5-20-180 A, B, C, D, H, and I.

b. 9VAC5-40-8100 B.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999; amended, Virginia Register Volume 19, Issue 17, eff. July 1, 2003.

9VAC5-40-8190 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) and 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 21, eff. August 4, 1999.

Article 55 Emission Standards for Sewage Sludge Incineration Units (Rule 4-55)

9VAC5-40-8200 Applicability and designation of affected facility

Article 55 Emission Standards for Sewage Sludge Incineration Units (Rule 4-55)

A. The affected facilities to which the provisions of this article apply are sewage sludge incineration (SSI) units that meet all of the following criteria:

1. SSI units that commenced construction on or before October 14, 2010.

2. SSI units that meet the definition of a SSI unit as defined in 9VAC5-40-8210.

3. SSI units not exempt under subsection D of this section.

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

C. The following provisions govern changes to SSI units.

1. If the owner of a SSI unit makes changes that meet the definition of modification after September 21, 2011, the SSI unit becomes subject to Subpart LLLL of 40 CFR Part 60 and the provisions of this article no longer apply to that unit.

2. If the owner of a SSI unit makes physical or operational changes to a SSI unit for which construction commenced on or before September 21, 2011, primarily to comply with the provisions of this article, Subpart LLLL of 40 CFR Part 60 does not apply to that unit. Such changes do not qualify as modifications under Subpart LLLL of 40 CFR Part 60.

D. Exempt from the provisions of this article are combustion units that incinerate sewage sludge and are not located at a wastewater treatment facility designed to treat domestic sewage sludge. These units may be subject to 40 CFR Part 60 (e.g., Subpart CCCC of 40 CFR Part 60). The owner of such a combustion unit shall notify the board of an exemption claim under this subsection.

E. The provisions of 40 CFR Part 60 (other than Subpart MMMM of 40 CFR Part 60) cited in this article are applicable only to the extent that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources).

F. The provisions of Subpart MMMM (Emission Guidelines and Compliance Times for Existing Sewage Sludge Incineration Units) of 40 CFR Part 60 cited in this article are applicable only to the extent that they are incorporated by reference in 9VAC5-40-8370.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8210 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms shall have the meanings given them in 40 CFR 60.5250, except for the following:

"Administrator" means the board.

"Performance test as defined in 40 CFR 63.2" means the collection of data resulting from the execution of a test method (usually three emission test runs) used to demonstrate compliance with a relevant emission standard as specified in the performance test section of the relevant standard.

"Table 1" means 9VAC5-40-8280 A and B.

"You" means the owner of an affected SSI unit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012; Errata, 28:25 VA.R. 2076 August 13, 2012.

9VAC5-40-8220 Emission limits and emission standards

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any SSI unit any emissions in excess of that allowed under subsection B of this section.

B. The provisions of 40 CFR 60.5165 apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8230 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5-40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply, with the exception of 9VAC5-40-90 (Standard for fugitive dust/emissions).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8240 Standard for fugitive dust/emissions

A. The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5-40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply, with the exception of 9VAC5-40-80 (Standard for visible emissions), 9VAC5-40-100 (Monitoring), 9VAC5-40-110 (Test methods and procedures), and 9VAC5-40-120 (Waivers).

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any ash conveying system (including conveyor transfer points) any visible emissions for more than 5.0% of hourly observation period, measured at three, one-hour observation periods.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8250 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8260 Standard for toxic pollutants

The provisions of Article 4 (9VAC5-60-200 et seq.) of 9VAC5-60 (Emissions Standards for Toxic Pollutants from Existing Sources, Rule 6-4) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8270 Operator training and certification

The provisions of 40 CFR 60.5130, 40 CFR 60.5135, 40 CFR 60.5140, 40 CFR 60.5145, 40 CFR 60.5150, 40 CFR 60.5155, and 40 CFR 60.5160 apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012; Errata, 28:25 VA.R. 2076 August 13, 2012.

9VAC5-40-8280 Compliance schedule

A. SSI units shall achieve final compliance or cease operation as expeditiously as practicable but not later than March 21, 2016.

B. The owner shall submit a final control plan no later than March 21, 2013.

C. The provisions of 40 CFR 60.5085, 40 CFR 60.5090, 40 CFR 60.5095, 40 CFR 60.5100, 40 CFR 60.5105, 40 CFR 60.5110, 40 CFR 60.5115, 40 CFR 60.5120, and 40 CFR 60.5125 apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8290 Operating requirements

A. No owner or other person shall operate any SSI unit in a manner that does not comply with the provisions of subsection B of this section.

B. The provisions of 40 CFR 60.5170 and 40 CFR 60.5175 apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8300 Compliance

A. With regard to the emissions standards in 9VAC5-40-8240 A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-40-20 (Compliance) apply.

B. With regard to the emission limits in 9VAC5-40-8220, 9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:

1. 9VAC5-40-20 B, C, D, and E;

2. To the extent specified in the federal regulations cited in subdivision 3 of this subsection, 40 CFR 60.7, 40 CFR 60.8, 40 CFR 60.11, and 40 CFR 60.13; and

3. 40 CFR 60.5185, 40 CFR 60.5190, 40 CFR 60.5195, 40 CFR 60.5200, 40 CFR 60.5205, 40 CFR 60.5210, and 40 CFR 60.5215.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8310 Performance testing, monitoring, and calibration requirements

A. With regard to the emissions standards in 9VAC5-40-8240 A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-40-30 (Emission testing) and 9VAC5-40-40 (Monitoring) apply.

B. With regard to the emission limits in 9VAC5-40-8220, 9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:

1. 9VAC5-40-30 D and G;

2. 9VAC5-40-40 A and F;

3. 40 CFR 60.8(b) through (f), with the exception of paragraph (a);

4. 40 CFR 60.13; and

5. 40 CFR 60.5220 and 40 CFR 60.5225.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8320 Recordkeeping and reporting

A. With regard to the emissions standards in 9VAC5-40-8240 A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

B. With regard to the emission limits in 9VAC5-40-8220, 9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:

1. 9VAC5-40-50 F and H;

2. 40 CFR 60.7; and

3. 40 CFR 60.5230 and 40 CFR 60.5235.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8330 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8340 Facility and control equipment maintenance or malfunction

A. With regard to the emissions standards in 9VAC5-40-8240 A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

B. With regard to the emission limits in 9VAC5-40-8220, 9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:

1. 9VAC5-20-180 with the exception of subsections E, F, and G; and

2. 40 CFR 60.5180 and 40 CFR 60.5181.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8350 Federal (Title V) operating permits

A. The provisions of 40 CFR 60.5240 and 40 CFR 60.5245 apply.

B. Owners to which this section applies should contact the appropriate regional office for guidance on applying for a federal (Title V) operating permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8360 Other permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-40-8370 Documents incorporated by reference

A. The United States Environmental Protection Agency (EPA) regulations promulgated at Subpart MMMM (Emission Guidelines and Compliance Times for Existing Sewage Sludge Incineration Units) of 40 CFR Part 60 and designated in subsection B of this section are incorporated by reference into this article. The 40 CFR section numbers appearing in subsection B of this section identify the specific provisions incorporated by reference. The specific version of the provisions incorporated by reference shall be that contained in the CFR in effect as specified in 9VAC5-20-21 B.

B. The following documents from the United States Environmental Protection Agency are incorporated herein by reference:

Model Rule, Increments of Progress

40 CFR 60.5085, What are my requirements for meeting increments of progress and achieving final compliance?

40 CFR 60.5090, When must I complete each increment of progress?

40 CFR 60.5095, What must I include in the notifications of achievement of increments of progress?

40 CFR 60.5100, When must I submit the notifications of achievement of increments of progress?

40 CFR 60.5105, What if I do not meet an increment of progress?

40 CFR 60.5110, How do I comply with the increment of progress for submittal of a control plan?

40 CFR 60.5115, How do I comply with the increment of progress for achieving final compliance?

40 CFR 60.5120, What must I do if I close my SSI unit and then restart it?

40 CFR 60.5125, What must I do if I plan to permanently close my SSI unit and not restart it?

Model Rule, Operator Training and Qualification

40 CFR 60.5130, What are the operator training and qualification requirements?

40 CFR 60.5135, When must the operator training course be completed?

40 CFR 60.5140, How do I obtain my operator qualification?

40 CFR 60.5145, How do I maintain my operator qualification?

40 CFR 60.5150, How do I renew my lapsed operator qualification?

40 CFR 60.5155, What if all the qualified operators are temporarily not accessible?

40 CFR 60.5160, What site-specific documentation is required and how often must it be reviewed by qualified SSI operators and other plant personnel who may operate the unit according to the provisions of 40 CFR 60.5155(a)?

Model Rule, Emission Limits, Emission Standards, and Operating Limits and Requirements

40 CFR 60.5165, What emission limits and standards must I meet and by when?

40 CFR 60.5170, What operating limits and requirements must I meet and by when?

40 CFR 60.5175, How do I establish operating limits if I do not use a wet scrubber, fabric filter, electrostatic precipitator, activated carbon injection, or afterburner, or if I limit emissions in some other manner, to comply with the emission limits?

40 CFR 60.5180, Do the emission limits, emission standards, and operating limits apply during periods of startup, shutdown, and malfunction?

40 CFR 60.5181, How do I establish affirmative defense for exceedance of an emission limit or standard during malfunction?

Model Rule, Initial Compliance Requirements

40 CFR 60.5185, How and when do I demonstrate initial compliance with the emission limits and standards?

40 CFR 60.5190, How do I establish my operating limits?

40 CFR 60.5195, By what date must I conduct the initial air pollution control device inspection and make any necessary repairs?

40 CFR 60.5200, How do I develop a site-specific monitoring plan for my continuous monitoring systems, bag leak detection system, and ash handling system, and by what date must I conduct an initial performance evaluation of my continuous monitoring systems and bag leak detection system?

Model Rule, Continuous Compliance Requirements

40 CFR 60.5205, How and when do I demonstrate continuous compliance with the emission limits and standards?

40 CFR 60.5210, How do I demonstrate continuous compliance with my operating limits?

40 CFR 60.5215, By what date must I conduct annual air pollution control device inspections and make any necessary repairs?

Model Rule, Performance Testing, Monitoring, and Calibration Requirements

40 CFR 60.5220, What are the performance testing, monitoring, and calibration requirements for compliance with the emission limits and standards?

40 CFR 60.5225, What are the monitoring and calibration requirements for compliance with my operating limits?

Model Rule, Recordkeeping and Reporting

40 CFR 60.5230, What records must I keep?

40 CFR 60.5235, What reports must I submit?

Model Rule, Title V Operating Permits

40 CFR 60.5240, Am I required to apply for and obtain a Title V operating permit for my existing SSI unit?

40 CFR 60.5245, When must I submit a Title V permit application for my existing SSI unit?

Model Rule, Definitions

40 CFR 60.5250, What definitions must I know?

TABLES

Table 2 to Subpart MMMM of 40 CFR Part 60, Model Rule, Emission Limits and Standards for Existing Fluidized Bed Sewage Sludge Incineration Units.

Table 3 to Subpart MMMM of 40 CFR Part 60, Model Rule, Emission Limits and Standards for Existing Multiple Hearth Sewage Sludge Incineration Units.

Table 4 to Subpart MMMM of 40 CFR Part 60, Model Rule, Operating Parameters for Existing Sewage Sludge Incineration Units.

Table 5 to Subpart MMMM of 40 CFR Part 60, Model Rule, Toxic Equivalency Factors.

Table 6 to Subpart MMMM of 40 CFR Part 60, Model Rule, Summary of Reporting Requirements for Existing Sewage Sludge Incineration Units.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and 182); 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

Article 56 Emission Standards for Letterpress Printing Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-56)

9VAC5-40-8380 Applicability and designation of affected facility

Article 56 Emission Standards for Letterpress Printing Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-56)

A. The affected facility to which the provisions of this article apply is any letterpress printing operation at a stationary source where the actual emissions of volatile organic compounds (VOCs) from all aspects of letterpress printing operations, including related cleaning activities, before the consideration of controls, are equal to or exceed 3.0 tons per 12-month rolling period.

B. The provisions of this article apply only to sources of VOCs located in the Northern Virginia VOC Emissions Control Area designated in subdivision 1 a of 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8382 Definitions

A. For the purpose of applying this article in the context of the regulations for the control and abatement of air pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. Unless otherwise required by context, all terms not defined in this section shall have the meanings given them in 9VAC5-170 (Regulation for General Administration), 9VAC5-10 (General Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Cleaning materials" means any washes, cleaners, solvents, or rejuvenators that are used to remove excess printing inks, oils, and residual paper from a press, press equipment, or press parts, or used to remove dried ink from areas around a press. Cleaning materials include solvents and cleaners used for manual cleaning, and cleaning solutions used by automatic cleaning systems such as roller wash and type wash. Cleaning materials do not include cleaners used for cleaning electronic components of a press, pre-press cleaning operations (e.g., platemaking), post-press cleaning operations (e.g., binding), cleaning supplies such as detergents used to clean the floor (other than to remove dried ink from areas around a press), and cleaning performed in parts washers and cold cleaners subject to Article 47 (9VAC5-40-6820 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources).

"Composite partial vapor pressure" means the sum of the partial pressures of the compounds defined as volatile organic compounds. Composite partial vapor pressure is calculated as follows:

where:

| W_i | = | Weight of the "i"th VOC compound, in grams. | | --- | --- | --- | | W_w | = | Weight of water, in grams. | | W_e | = | Weight of exempt compound, in grams. | | MW_i | = | Molecular weight of the "i"th VOC compound, in grams/gram-mole. | | MW_w | = | Molecular weight of water, in grams/gram-mole. | | MW_e | = | Molecular weight of exempt compound, in grams/gram-mole. | | PP_c | = | VOC composite partial pressure at 20°C, in millimeters of mercury (mm Hg). | | VP_i | = | Vapor pressure of the "i"th VOC compound at 20°C, in mm Hg. |

"First installation date" means the date that a control device is first installed for the purpose of controlling emissions. The first installation date does not change if the control device is later moved to a new location or installed on a different press.

"Heatset" means a printing process in which heat from a dryer is used to evaporate ink oils from the substrate.

"Letterpress printing" means a printing process in which the image area is raised relative to the nonimage area and paste ink is transferred to the substrate directly from the image surface.

"Letterpress printing operation" means one or more printing processes employing letterpress printing on printing presses and the related processes necessary to directly support the operation of those presses including, but not limited to, cleaning, pre-press, and post-press operations.

"Non-heatset" means a printing process in which the printing inks are set and dried by absorption or oxidation rather than heat. For the purposes of this article, UV-cured and electron beam-cured inks are considered non-heatset.

"Press" means a printing production assembly composed of one or more units to produce a printed substrate (sheet or web).

"Printing" means a photomechanical process in which a transfer of text, designs, and images occurs through contact of an image carrier with a substrate.

"Printing process" means any operation or system wherein printing ink or a combination of printing ink and surface coating is applied, dried, or cured and that is subject to the same emission standard. A printing process may include any equipment that applies, conveys, dries, or cures inks or surface coatings, including, but not limited to, flow coaters, flashoff areas, presses, digital output devices, heaters, dryers, drying areas, and ovens.

"Sheet-fed" means a printing process in which individual sheets of substrate are fed into the press sequentially.

"Theoretical potential to emit" means for the purposes of this article the maximum capacity of a letterpress printing process to emit VOC and shall be based on emissions at design capacity or maximum production and maximum operating hours (8,760 hours/year) before add-on controls, unless the letterpress printing process is subject to state and federally enforceable permit conditions that limit production rates or hours of operation.

"12-month rolling period" means a period that is determined monthly and consists of the previous 12 consecutive calendar months.

"Unit" means, for the purposes of this article, the smallest complete printing component, composed of an inking system, of a letterpress printing press.

"VOC" means volatile organic compound.

"Web" means a continuous roll of printing substrate.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8384 Standard for volatile organic compounds

A. No owner or other person shall use or permit the use of any letterpress printing press, letterpress printing process, or other letterpress printing operation that is subject to this article unless that press, process, or operation meets the requirements of this section.

B. The following provisions apply to each dryer on each heatset web letterpress printing process, except that these provisions do not apply to (i) any heatset web letterpress printing process with a theoretical potential to emit less than 25 tons per year of VOC (petroleum ink oil) from the dryer, prior to controls; (ii) any heatset web letterpress printing process used exclusively for book printing; or (iii) any heatset web letterpress printing process with a maximum web width of 22 inches or less. These provisions also do not apply to non-heatset web letterpress printing processes or to sheet-fed letterpress printing processes.

1. VOC emissions from the heatset web letterpress printing process dryer shall be controlled as follows:

a. The dryer shall operate at a lower air pressure than the pressroom air pressure at all times when the printing process is operating.

b. Exhaust air from the dryer shall be collected and sent to a control device that operates at all times when the printing process is operating.

c. For a control device whose first installation date is prior to February 1, 2016, the control device shall reduce VOC emissions in the dryer air exhaust by at least 90%.

d. For a control device whose first installation date is on or after February 1, 2016, the control device shall reduce VOC emissions in the dryer air exhaust by at least 95%.

2. Where the heatset web letterpress printing process control device inlet VOC concentration is too low to achieve the control device efficiency requirements specified in subdivisions 1 c and 1 d of this subsection or there is no identifiable measurable inlet, the control device shall reduce the VOC concentration of the heatset web letterpress printing process dryer exhaust air to 20 parts per million volume (ppmv) or less, as hexane on a dry basis.

3. Federally enforceable limitations on (i) the VOC (petroleum ink oil) content of inks and coatings applied prior to the dryer, (ii) the total amounts of inks and coatings applied, (iii) the press application rates of inks and coatings, or (iv) the hours of press operation may be used to meet the 25 ton per year exception to this subsection.

C. Cleaning materials used at each letterpress printing operation shall meet one of the following limits, as applied:

1. A VOC content of 70% by weight; or

2. A composite vapor pressure of 10 mm Hg at 20°C.

The use of cleaning materials not meeting the limits in subdivision 1 or 2 of this subsection is permitted provided that the quantity of cleaning material used does not exceed 110 gallons over any 12-month rolling period.

D. The following work practices shall be implemented:

1. Cleaning materials, inks, and coatings containing VOCs shall be kept in closed containers at all times unless filling, draining, or performing cleaning operations.

2. Shop towels, sponges, and other manual cleaning aids (i) that have been used for picking up excess ink and other coatings containing VOCs or (ii) that have been used with cleaning materials containing VOCs shall be kept in closed containers.

3. Spills of cleaning materials, fountain solution, inks, varnishes, and other coatings containing VOCs shall be minimized and shall be cleaned up promptly.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8386 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8388 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8390 Standard for odor

The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8394 Standard for toxic pollutants

The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8396 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. If requested by the board, an emission test of the control device installed on a heatset web letterpress printing process dryer shall be performed to demonstrate compliance with the provisions of 9VAC5-40-8384 B. The negative dryer pressure shall be established during the initial test using an airflow direction indicator, such as a smoke stick or aluminum ribbons, or a differential pressure gauge. The board may accept the results of an emission test conducted prior to February 1, 2016, if the owner or operator provides information and data that demonstrate that the test demonstrated compliance with the provisions of 9VAC5-40-8384 B.

C. Continuing compliance with the heatset web letterpress printing process dryer control requirements in 9VAC5-40-8384 B shall be demonstrated for the catalytic or thermal oxidation control device by monitoring the control device in accordance with 9VAC5-40-8410 B. The owner shall maintain the three-hour average of the monitored temperature at a temperature no less than 50°F below the three-hour average temperature that was recorded during the most recent performance test during which compliance was demonstrated. In the absence of performance test results acceptable to the board that provide dryer control device temperatures that demonstrate continuing compliance with the requirements in 9VAC5-40-8384 B, control device temperatures that demonstrate compliance with manufacturer recommendations may be considered by the board to demonstrate compliance with heatset web offset letterpress printing process dryer control requirements in 9VAC5-40-8384 B.

D. A portion of the volatile organic compounds contained in inks and cleaning solution is retained in the printed web and in the shop towels used for cleaning. When applicable, the following retention factors may be used in determining volatile organic compounds emissions from letterpress printing operations:

1. A 20% volatile organic compound retention factor may be used for petroleum ink oils contained in heatset inks that are printed on absorptive substrates, meaning that 80% of the VOC (petroleum ink oil) in the ink is emitted during the printing process and is available for capture and control by an add-on pollution control device.

2. A 100% volatile organic compound retention factor may be used for vegetable ink oils contained in heatset inks that are printed on absorptive substrates, meaning that none of the VOC (vegetable ink oil) in the ink is emitted during the printing process and available for capture and control by an add-on pollution control device.

3. A 95% volatile organic compound retention factor may be used for petroleum ink oils contained in sheet-fed and non-heatset web inks printed on absorptive substrates, meaning that 5.0% of the VOC (petroleum ink oil) in the ink is emitted during the printing process.

4. A 100% volatile organic compound retention factor may be used for vegetable ink oils contained in sheet-fed and non-heatset web inks printed on absorptive substrates, meaning that none of the VOC (vegetable ink oil) in the ink is emitted during the printing process.

5. A 50% volatile organic compound retention factor may be used for cleaning solution VOC in shop towels for those cleaning solutions with a volatile organic compounds composite vapor pressure of no more than 10 millimeters of mercury (Hg) at 20°C (68°F) provided that the cleaning materials and used shop towels are kept in closed containers.

E. A portion of the volatile organic compounds contained in inks is captured for control by add-on air pollution control equipment. When applicable, the following capture efficiencies may be used in determining volatile organic compounds emissions from letterpress printing operations:

1. A 100% volatile organic compound capture efficiency may be used for VOC (petroleum ink oils) from oil-based paste inks and oil-based paste varnishes (coatings) when the dryer is demonstrated to be operating at negative pressure relative to the surrounding pressroom.

2. Conventional letterpress inks and varnishes are paste-type materials. If other types of inks or coating materials are used on a letterpress press (e.g., fluid inks or coatings), capture efficiency testing shall be conducted for the VOC from these other materials if the printer wants to take into account the effect that the dryer controls have on VOC emissions from these other types of inks or coatings.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8398 Compliance schedule

The owner shall comply with the provisions of this article as expeditiously as possible but in no case later than February 1, 2017.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8400 Test methods and procedures

A. The provisions of 9VAC5-40-30 (Emission testing) apply.

B. The following EPA test methods shall be used to demonstrate compliance with the heatset web letterpress printing process dryer control device control requirements in 9VAC5-40-8384 B.

1. Reference Method 1 or 1A, as appropriate, shall be used to select the sampling sites.

2. Reference Method 2, 2A, 2C, or 2D, as appropriate, shall be used to determine the velocity and volumetric flow rate of the exhaust stream.

3. Reference Method 3 or 3A, as appropriate, shall be used to determine the concentration of O₂ and CO₂.

4. Reference Method 4 shall be used to determine moisture content.

5. Reference Methods 18, 25, or 25A shall be used to determine the VOC concentration of the dryer exhaust stream entering and exiting the control device, unless the alternate limit in 9VAC5-40-8384 B 2 is being met, in which case only the VOC concentration of the dryer exhaust control device outlet shall be determined.

6. Reference Method 25A shall be used to determine the dryer exhaust control device inlet and outlet VOC concentrations when the control device outlet concentration is less than 50 parts per million volume (ppmv) VOC as carbon.

7. If the control device is an oxidizer, the combustion chamber temperature or catalyst bed inlet temperature corresponding to destruction efficiencies that meet the requirements of 9VAC5-40-8384 B shall be recorded.

C. The VOC content of as-applied inks, coatings, and cleaning materials shall be determined using Reference Method 24.

1. The analysis of as-supplied materials may be performed by the manufacturer or the supplier. Formulation information from the manufacturer may be used in lieu of Reference Method 24 analysis unless the board or the owner has reason to believe that the formulation information provided by the manufacturer is inaccurate.

2. The owner may use VOC content information provided by the manufacturer or supplier, such as the container label, the product data sheet, or the Safety Data Sheet (SDS) to document the VOC content of the as-supplied material.

3. If cleaning materials are diluted by the owner prior to use, a calculation that combines the as-supplied VOC content information provided by the manufacturer or supplier, the VOC content of the diluent, and the proportions in which they are mixed may be used to make a determination of VOC content of the as-applied cleaning material in lieu of Reference Method 24.

4. The owner shall conduct Reference Method 24 testing of any as-applied cleaning material used for letterpress printing operations at any time at the board's request. The owner shall be prepared to sample as-applied fountain solution or cleaning materials at all times.

D. The VOC composite partial vapor pressure of cleaning solutions shall be determined using the formula provided in 9VAC5-40-8382 C or by an appropriate test method approved by the board.

1. The determination VOC composite partial vapor pressure for as-supplied cleaning solutions may be performed by the manufacturer or the supplier. The determination of as-applied composite vapor pressure based upon the manufacturer's instructions for dilution may be performed by the manufacturer or supplier.

2. The owner may use VOC composite partial vapor pressure information provided by the manufacturer or supplier, such as the container label, the product data sheet, or the Safety Data Sheet (SDS) to document the VOC composite partial vapor pressure of the as-supplied or as-applied cleaning materials.

3. The following provisions apply to the determination of VOC composite partial vapor pressure for cleaning materials that are diluted by the owner prior to use:

a. If the dilution is made according to the manufacturer's instructions, the VOC composite partial vapor pressure for the as-applied cleaning material provided by the manufacturer or supplier may be used.

b. If a dilution is made and an as-applied VOC composite partial vapor pressure has not been provided by the manufacturer or supplier, or if the dilution is not made according to the manufacturer's instructions, then the owner shall determine the VOC composite partial vapor pressure using the calculation method provided in 9VAC5-40-8382 C or by an appropriate test method approved by the board.

4. The owner shall conduct testing of any as-applied cleaning materials used for letterpress printing operations at any time at the board's request. The owner shall be prepared to sample as-applied cleaning materials at all times.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8410 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply.

B. Periodic monitoring of letterpress printing operations shall be conducted as follows:

1. The temperature of a catalytic or thermal oxidation control device shall be monitored at least once every 15 minutes while the printing process is operating, and that temperature shall be recorded by an analog or digital recording device.

a. For a catalytic oxidizer, the dryer exhaust temperature upstream of the catalyst bed shall be monitored and recorded.

b. For a thermal oxidizer, the combustion chamber temperature of the oxidizer shall be monitored and recorded.

2. Catalyst bed material in a catalytic oxidation control device shall be inspected annually for general catalyst condition and any signs of potential catalyst depletion. Sampling and evaluation of the catalyst bed material shall be conducted whenever the results of the inspection indicate signs of potential catalyst depletion or poor catalyst condition based on manufacturer's recommendations, but not less than once per year.

3. If a heatset web letterpress printing process is interlocked to ensure that the control device is operating and airflow is present when the printing process is operating, then periodic monitoring of dryer air flow is not required. If no interlock is present, then the printing process dryer air flow shall be verified and recorded once per operating day.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8412 Notification, records, and reporting

The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8414 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8416 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8418 Permits

A permit may be required prior to beginning any of the activities specified in this section if the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

Article 56.1 Emission Standards for Offset Lithographic Printing Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-56.1)

9VAC5-40-8420 Applicability and designation of affected facility

Article 56.1 Emission Standards for Offset Lithographic Printing Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-56.1)

A. The affected facility to which the provisions of this article apply is any offset lithographic printing operation at a stationary source where the actual emissions of volatile organic compounds (VOCs) from all aspects of offset lithographic printing operations, including related cleaning activities, before the consideration of controls are equal to or exceed 3.0 tons per 12-month rolling period.

B. The provisions of this article apply only to sources of VOCs located in the Northern Virginia VOC Emissions Control Area designated in subdivision 1 a of 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8422 Definitions

A. For the purpose of applying this article in the context of the regulations for the control and abatement of air pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. Unless otherwise required by context, all terms not defined in this section shall have the meanings given them in 9VAC5-170 (Regulation for General Administration), 9VAC5-10 (General Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Alcohol" means any of the following compounds when used as a fountain solution additive: ethanol, n-propanol, and isopropanol.

"Alcohol substitute" means any nonalcohol additive that contains volatile organic compounds and is used in the fountain solution.

"Batch" means a supply of fountain solution or cleaning solution that is prepared and used without alteration until completely used or removed from the printing process.

"Cleaning materials" means any washes, cleaners, solvents, or rejuvenators that are used to remove (i) excess printing inks, oils, and residual paper from a press, press equipment, or press parts or (ii) dried ink from areas around a press. Cleaning materials include solvents and cleaners used for manual cleaning and cleaning solutions used by automatic cleaning systems such as blanket wash, plate cleaner, metering roller cleaner, impression cylinder washes, rubber rejuvenators, and roller wash. Cleaning materials do not include cleaners used for cleaning electronic components of a press, pre-press cleaning operations (e.g., platemaking), post-press cleaning operations (e.g., binding), cleaning supplies such as detergents used to clean the floor (other than to remove dried ink from areas around a press), and cleaning performed in parts washers and cold cleaners subject to Article 47 (9VAC5-40-6820 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources).

"Composite partial vapor pressure" means the sum of the partial pressures of the compounds defined as volatile organic compounds. Composite partial vapor pressure is calculated as follows:

where:

| W_i | = | Weight of the "i"th VOC compound, in grams. | | --- | --- | --- | | W_w | = | Weight of water, in grams. | | W_e | = | Weight of exempt compound, in grams. | | MW_i | = | Molecular weight of the "i"th VOC compound, in grams/gram-mole. | | MW_w | = | Molecular weight of water, in grams/gram-mole. | | MW_e | = | Molecular weight of exempt compound, in grams/gram-mole. | | PP_c | = | VOC composite partial pressure at 20°C, in millimeters of mercury (mm Hg). | | VP_i | = | Vapor pressure of the "i"th VOC compound at 20°C, in mm Hg. |

"First installation date" means the date that a control device is first installed for the purpose of controlling emissions. The first installation date does not change if the control device is later moved to a new location or installed on a different press.

"Fountain solution" means any mixture of water, volatile and nonvolatile chemicals, and additives applied to a lithographic plate to repel ink from the nonimage area on the plate.

"Heatset" means a printing process in which heat from a dryer is used to evaporate ink oils from the substrate.

"Heatset web offset lithographic printing dryer" means the dryer or dryers installed as part of a heatset web offset lithographic printing process that dries inks or surface coatings.

"Lithographic printing" means a planographic printing process in which the image and nonimage areas are chemically differentiated with the image area being oil receptive and the nonimage area being water receptive. This process differs from other printing processes, where the image is a raised or recessed surface.

"Non-heatset" means a printing process in which the printing inks are set and dried by absorption or oxidation rather than heat. For the purposes of this article, UV-cured and electron beam-cured inks are considered non-heatset.

"Offset lithographic printing" means a printing process that transfers the ink film from the lithographic plate to an intermediary surface (blanket), which, in turn, transfers the ink film to the substrate.

"Offset lithographic printing operation" means one or more printing processes employing offset lithographic printing on printing presses and includes the related processes necessary to directly support the operation of those offset lithographic printing processes including, but not limited to, pre-press and post-press operations. Varnishes, glues, and other coatings that are applied by an offset lithographic printing process are part of offset lithographic printing operations and are not considered as a separate process (e.g., paper coating).

"Press" means a printing production assembly composed of one or more units to produce a printed substrate (sheet or web).

"Printing" means a photomechanical process in which a transfer of text, designs, and images occurs through contact of an image carrier with a substrate.

"Printing process" means any operation or system wherein printing ink or a combination of printing ink and surface coating is applied, dried, or cured and that is subject to the same emission standard. A printing process may include any equipment that applies, conveys, dries, or cures inks or surface coatings, including, but not limited to, flow coaters, flashoff areas, presses, digital output devices, fountain solutions, heaters, dryers, drying areas, and ovens.

"Sheet-fed" means a printing process in which individual sheets of substrate are fed into the press sequentially.

"Theoretical potential to emit" means for the purposes of this article the maximum capacity of a heatset web offset lithographic printing process to emit VOC and shall be based on emissions at design capacity or maximum production and maximum operating hours (8,760 hours/year) before add-on controls, unless the heatset web offset lithographic printing process is subject to state and federally enforceable permit conditions that limit production rates or hours of operation.

"12-month rolling period" means a period that is determined monthly and consists of the previous 12 consecutive calendar months.

"Unit" means the smallest complete printing component, composed of an inking system, of a printing press.

"VOC" means volatile organic compound.

"Web" means a continuous roll of printing substrate.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8424 Standard for volatile organic compounds

A. No owner or other person shall use or permit the use of any offset lithographic printing press, offset lithographic printing process, or other offset lithographic printing operation that is subject to this article unless that press, process, or operation meets the requirements of this section.

B. Except as provided in subdivision 3 of this subsection, the following provisions apply to each heatset offset lithographic printing process at a facility whose potential to emit is greater than or equal to 10 tons per year of VOC, provided that the emission rates are determined in a manner acceptable to the board. All VOC emissions from printing inks, coatings, cleaning solutions, and fountain solutions shall be considered in determining the potential to emit for this subsection.

1. VOC emissions from the heatset web offset lithographic printing process dryer shall be controlled as follows:

a. The dryer shall operate at a lower air pressure than the pressroom air pressure at all times when the printing process is operating.

b. Exhaust air from the dryer shall be collected and sent to a control device that operates at all times when the printing process is operating.

c. The control device shall reduce VOC emissions in the dryer air exhaust by at least 90%.

2. Where the heatset web offset lithographic printing process control device inlet VOC concentration is too low to achieve the control device efficiency requirements specified in subdivision 1 c of this subsection or there is no identifiable measurable inlet, the control device shall reduce the VOC concentration of the heatset web offset lithographic printing process dryer exhaust air to 50 parts per million volume (ppmv) or less, as carbon (minus methane and ethane).

3. The provisions in subdivisions 1 and 2 of this subsection do not apply to the following:

a. Any heatset web offset lithographic printing process with a theoretical potential to emit of 25 tons per year of VOC (petroleum ink oil) or more from the heatset web offset lithographic printing dryer. VOC standards for heatset web offset lithographic printing process with a theoretical potential to emit of 25 tons per year of VOC (petroleum ink oil) or more are provided in subsection C of this section.

b. Printing processes used exclusively for determination of product quality and commercial acceptance provided:

(1) The operation is not an integral part of the production process;

(2) The emissions from all product quality printing processes do not exceed 400 pounds in any 30-day period; and

(3) The exemption is approved by the board.

c. Photoprocessing, typesetting, or imagesetting equipment using water-based chemistry to develop silver halide images.

d. Platemaking equipment using water-based chemistry to remove unhardened image-producing material from an exposed plate.

e. Equipment used to make blueprints.

f. Any sheet-fed offset lithographic press with a cylinder width of 26 inches or less.

C. Except as provided in subdivisions 3, 4, and 5 of this subsection, the following provisions apply to each heatset web offset lithographic printing process with a theoretical potential to emit of 25 tons per year of VOC (petroleum ink oil) or more from the dryer. These provisions do not apply to non-heatset web offset lithographic printing processes or to sheet-fed offset lithographic printing processes.

1. VOC emissions from the heatset web offset lithographic printing process dryer shall be controlled as follows:

a. The dryer shall operate at a lower air pressure than the pressroom air pressure at all times when the printing process is operating.

b. Exhaust air from the dryer shall be collected and sent to a control device that operates at all times when the printing process is operating.

c. For a control device whose first installation date is prior to February 1, 2016, the control device shall reduce VOC emissions in the dryer air exhaust by at least 90%.

d. For a control device whose first installation date is on or after February 1, 2016, the control device shall reduce VOC emissions in the dryer air exhaust by at least 95%.

2. Where the heatset web offset lithographic printing process control device inlet VOC concentration is too low to achieve the control device efficiency requirements specified in subdivisions 1 c and 1 d of this subsection or there is no identifiable measurable inlet, the control device shall reduce the VOC concentration of the heatset web offset lithographic printing process dryer exhaust air to 20 parts per million volume (ppmv) or less, as hexane on a dry basis.

3. Federally enforceable limitations on (i) the VOC (petroleum ink oil) content of inks, varnishes, and other coatings applied prior to the dryer; (ii) the total amounts of inks, varnishes, and other coatings applied; (iii) the press application rates of inks, varnishes, and other coatings; or (iv) the hours of press operation may be used to meet the 25 ton per year exception to this subsection.

4. The provisions of subdivisions 1 and 2 of this subsection do not apply to (i) any heatset web offset lithographic printing process constructed on or after February 1, 2016, and used exclusively for book printing or (ii) any heatset web offset lithographic printing process constructed on or after February 1, 2016, with a maximum web width of 22 inches or less.

5. The heatset web offset lithographic printing process dryer control device provisions of subdivision 1 d of this subsection do not apply to (i) any heatset web offset lithographic printing process used exclusively for book printing; or (ii) any heatset web offset lithographic printing process with a maximum web width of 22 inches or less.

D. The following provisions shall apply to fountain solution applied to each offset lithographic printing press, except that these provisions shall not apply to (i) sheet-fed offset lithographic printing processes with a sheet size of 11 inches by 17 inches or smaller or (ii) sheet-fed offset lithographic printing processes with a total fountain solution reservoir of less than one gallon.

1. For each heatset web press:

a. When the fountain solution contains alcohol:

(1) The fountain solution, as applied, shall contain no more than 1.6% volatile organic compounds by weight; or

(2) The temperature of the fountain solution shall be maintained at or below 60°F and the fountain solution, as applied, shall contain no more than 3.0% VOCs by weight; or

b. When the fountain solution contains no alcohol, the fountain solution, as applied, shall contain no more than 5.0% VOCs by weight.

2. For each non-heatset web press, the fountain solution, as applied, shall contain no alcohol and shall contain no more than 5.0% VOCs by weight.

3. For each sheet-fed press:

a. The fountain solution, as applied, shall contain no more than 5.0% VOCs by weight; or

b. The temperature of the fountain solution shall be maintained at or below 60°F and the fountain solution, as applied, shall contain no more than 8.5% VOCs by weight.

E. Cleaning materials used at each offset lithographic printing operation shall meet one of the following limits, as applied:

1. A VOC content of 30% by weight; or

2. A composite vapor pressure of 10 mm Hg at 20°C (68°F).

The use of cleaning materials not meeting the limits in subdivision 1 or 2 of this subsection is permitted provided that the quantity of cleaning material used does not exceed 110 gallons over any 12-month rolling period.

F. The following work practices shall be implemented.

1. Cleaning materials, fountain solution, inks, varnishes, and coatings containing VOCs shall be kept in closed containers at all times unless filling, draining, or performing cleaning operations.

2. Shop towels, sponges, and other manual cleaning aids that (i) have been used for picking up excess ink, fountain solution, varnishes, and other coatings containing VOCs or (ii) have been used with cleaning materials containing VOCs shall be kept in closed containers.

3. Spills of cleaning materials, fountain solution, inks, varnishes, and other coatings containing VOCs shall be minimized and shall be cleaned up promptly.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8426 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8428 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8430 Standard for odor

The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8432 Standard for toxic pollutants

The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8434 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. If requested by the board, an emission test of the control device installed on a heatset web offset lithographic printing process dryer shall be performed to demonstrate compliance with the provisions of 9VAC5-40-8424 B and C. The negative dryer pressure shall be established during the initial test using an airflow direction indicator, such as a smoke stick or aluminum ribbons, or a differential pressure gauge. The board may accept the results of an emission test conducted prior to the compliance date specified in 9VAC5-40-8436 if the owner or operator provides information and data that demonstrate that the test demonstrated compliance with the provisions of 9VAC5-40-8424 B and C.

C. Continuing compliance with the heatset web offset lithographic printing process dryer control requirements in 9VAC5-40-8424 B and C shall be demonstrated for the catalytic or thermal oxidation control device by monitoring the control device in accordance with 9VAC5-40-8440 B 3, B 4, and B 5. The owner shall maintain the three-hour average of the monitored temperature at a temperature no less than 50°F below the three-hour average temperature that was recorded during the most recent performance test during which compliance was demonstrated. In the absence of performance test results acceptable to the board that provide dryer control device temperatures that demonstrate continuing compliance with the requirements in 9VAC5-40-8424 B and C, control device temperatures that demonstrate compliance with manufacturer recommendations may be considered by the board to demonstrate compliance with heatset web offset lithographic printing process dryer control requirements in 9VAC5-40-8424 B and C.

D. A portion of the volatile organic compounds contained in inks and cleaning solution is retained in the printed web and in the shop towels used for cleaning. When applicable, the following retention factors may be used in determining volatile organic compounds emissions from offset lithographic printing operations:

1. A 20% volatile organic compound retention factor may be used for petroleum ink oils contained in heatset inks that are printed on absorptive substrates, meaning that 80% of the VOC (petroleum ink oil) in the ink is emitted during the printing process and is available for capture and control by an add-on pollution control device.

2. A 100% volatile organic compound retention factor may be used for vegetable ink oils contained in heatset inks that are printed on absorptive substrates, meaning that none of the VOC (vegetable ink oil) in the ink is emitted during the printing process and available for capture and control by an add-on pollution control device.

3. A 95% volatile organic compound retention factor may be used for petroleum ink oils contained in sheet-fed and non-heatset web inks printed on absorptive substrates, meaning that 5.0% of the VOC (petroleum ink oil) in the ink is emitted during the printing process.

4. A 100% volatile organic compound retention factor may be used for vegetable ink oils contained in sheet-fed and non-heatset web inks printed on absorptive substrates, meaning that none of the VOC (vegetable ink oil) in the ink is emitted during the printing process.

5. A 50% volatile organic compound retention factor may be used for cleaning solution VOC in shop towels for those cleaning solutions with a volatile organic compounds composite vapor pressure of no more than 10 millimeters of mercury (Hg) at 20°C (68°F) provided that the cleaning materials and used shop towels are kept in closed containers.

E. A portion of the volatile organic compounds contained in inks, fountain solutions, and automatic blanket washes is captured for control by add-on air pollution control equipment. When applicable, the following capture efficiencies may be used in determining volatile organic compounds emissions from offset lithographic printing operations:

1. A 40% volatile organic compound capture efficiency may be used for automatic blanket washing when the VOC composite vapor pressure of the cleaning material is less than 10 millimeters of mercury (Hg).

2. A 70% volatile organic compound capture efficiency may be used for alcohol substitutes in fountain solutions.

3. A 100% volatile organic compound capture efficiency may be used for VOC (petroleum ink oils) from oil-based paste inks and oil-based paste varnishes (coatings) when the dryer is demonstrated to be operating at negative pressure relative to the surrounding pressroom.

4. Conventional heatset lithographic inks and varnishes are paste-type materials. If other types of inks or coating materials are used on a heatset lithographic press (e.g., fluid inks or coatings), capture efficiency testing shall be conducted for the VOC from these other materials if the printer wants to take into account the effect that the dryer controls have on VOC emissions from these other types of inks or coatings.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8436 Compliance schedule

The owner shall comply with the provisions of this article as expeditiously as possible but in no case later than February 1, 2017.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8438 Test methods and procedures

A. The provisions of 9VAC5-40-30 (Emission testing) apply.

B. The following EPA test methods shall be used to demonstrate compliance with the heatset web offset lithographic printing process dryer control device control requirements in 9VAC5-40-8424 B and C.

1. Reference Method 1 or 1A, as appropriate, shall be used to select the sampling sites.

2. Reference Method 2, 2A, 2C, or 2D, as appropriate, shall be used to determine the velocity and volumetric flow rate of the exhaust stream.

3. Reference Method 3 or 3A, as appropriate, shall be used to determine the concentration of O₂ and CO₂.

4. Reference Method 4 shall be used to determine moisture content.

5. Reference Methods 18, 25, or 25A shall be used to determine the VOC concentration of the dryer exhaust stream entering and exiting the control device, unless the alternate limit in 9VAC5-40-8424 B 2 or C 2 is being met, in which case only the VOC concentration of the dryer exhaust control device outlet shall be determined.

6. Reference Method 25A shall be used to determine the dryer exhaust control device inlet and outlet VOC concentrations when the control device outlet concentration is less than 50 parts per million volume (ppmv) VOC as carbon.

7. If the control device is an oxidizer, the combustion chamber temperature or catalyst bed inlet temperature corresponding to destruction efficiencies that meet the requirements of 9VAC5-40-8424 B or C, as appropriate, shall be recorded.

C. The VOC content of as-applied inks, varnishes and other coatings, fountain solutions, and cleaning materials shall be determined using Reference Method 24.

1. The analysis of as-supplied materials may be performed by the manufacturer or the supplier. Formulation information from the manufacturer may be used in lieu of Reference Method 24 analysis unless the board or the owner has reason to believe that the formulation information provided by the manufacturer is inaccurate.

2. The owner may use VOC content information provided by the manufacturer or supplier, such as the container label, the product data sheet, or the Safety Data Sheet (SDS) to document the VOC content of the as-supplied material.

3. If fountain solution or cleaning materials are diluted by the owner prior to use, a calculation that combines the as-supplied VOC content information provided by the manufacturer or supplier, the VOC content of the diluent, and the proportions in which they are mixed may be used to make a determination of VOC content of the as-applied fountain solution or cleaning material in lieu of Reference Method 24.

4. The owner shall conduct Reference Method 24 testing of any as-applied fountain solution or cleaning material used for offset lithographic printing operations at any time at the board's request. The owner shall be prepared to sample as-applied fountain solution or cleaning materials at all times.

D. A thermometer or other temperature detection device capable of reading the temperature of the fountain solution to within 0.5°F shall be used to determine compliance with fountain solution temperature requirements in 9VAC5-40-8424 D.

E. The VOC composite partial vapor pressure of cleaning solutions shall be determined using the formula provided in 9VAC5-40-8422 C or by an appropriate test method approved by the board.

1. The determination VOC composite partial vapor pressure for as-supplied cleaning solutions may be performed by the manufacturer or the supplier. The determination of as-applied composite vapor pressure based upon the manufacturer's instructions for dilution may be performed by the manufacturer or supplier.

2. The owner may use VOC composite partial vapor pressure information provided by the manufacturer or supplier, such as the container label, the product data sheet, or the Safety Data Sheet (SDS), to document the VOC composite partial vapor pressure of the as-supplied or as-applied cleaning materials.

3. The following provisions apply to the determination of VOC composite partial vapor pressure for cleaning materials that are diluted by the owner prior to use:

a. If the dilution is made according to the manufacturer's instructions, the VOC composite partial vapor pressure for the as-applied cleaning material provided by the manufacturer or supplier may be used.

b. If a dilution is made and an as-applied VOC composite partial vapor pressure has not been provided by the manufacturer or supplier, or if the dilution is not made according to the manufacturer's instructions, then the owner shall determine the VOC composite partial vapor pressure using the calculation method provided in 9VAC5-40-8422 C.

4. The owner shall conduct testing of any as-applied cleaning materials used for offset lithographic printing operations at any time at the board's request. The owner shall be prepared to sample as-applied cleaning materials at all times.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8440 Monitoring

A. The provisions of 9VAC5-40-40 (Monitoring) apply.

B. Periodic monitoring of offset lithographic printing operations shall be conducted as follows:

1. The alcohol concentration of offset lithographic printing process fountain solution shall be monitored with a hydrometer, equipped with temperature correction or with readings adjusted for temperature, and recorded at least once per shift or once per batch, whichever is longer. A standard solution shall be used to calibrate the hydrometer for the type of alcohol used in the fountain.

2. The temperature of refrigerated fountain solution shall be measured at the recirculating tank at least once per operating day.

3. The temperature of a catalytic or thermal oxidation control device shall be monitored at least once every 15 minutes while the printing process is operating, and that temperature shall be recorded by an analog or digital recording device.

a. For a catalytic oxidizer, the dryer exhaust temperature upstream of the catalyst bed shall be monitored and recorded.

b. For a thermal oxidizer, the combustion chamber temperature of the oxidizer shall be monitored and recorded.

4. Catalyst bed material in a catalytic oxidation control device shall be inspected annually for general catalyst condition and any signs of potential catalyst depletion. Sampling and evaluation of the catalyst bed material shall be conducted whenever the results of the inspection indicate signs of potential catalyst depletion or poor catalyst condition based on manufacturer's recommendations, but not less than once per year.

5. If a heatset web offset lithographic printing process is interlocked to ensure that the control device is operating and airflow is present when the printing process is operating, then periodic monitoring of dryer air flow is not required. If no interlock is present, then the printing process dryer air flow shall be verified and recorded once per operating day.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8450 Notification, records, and reporting

The provisions of 9VAC5-40-50 (Notification, records, and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8460 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8470 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8480 Permits

A permit may be required prior to beginning any of the activities specified in this section if the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

Article 57 Emission Standards for Industrial Solvent Cleaning Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-57)

9VAC5-40-8510 Applicability and designation of affected facility

Article 57 Emission Standards for Industrial Solvent Cleaning Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-57)

A. Except as provided in subsections C and D of this section, the affected facility to which the provisions of this article apply is each facility that uses organic solvent for cleaning unit operations such as mixing vessels (tanks), spray booths, and parts cleaners and that emits, before consideration of controls, at least 6.8 kilograms per day (15 pounds per day) of volatile organic compounds (VOCs). Such operations include, but are not limited to, spray gun cleaning, spray booth cleaning, large manufactured components cleaning, parts cleaning, equipment cleaning, line cleaning, floor cleaning, tank cleaning, and small manufactured components cleaning.

B. The provisions of this article apply only to affected facilities located in the Northern Virginia VOC Emissions Control Area designated in subdivision 1 a of 9VAC5-20-206.

C. Exempted from the provisions of this article are solvent cleaning operations (i) for cleaning of electrical and electronic components; (ii) for cleaning of high precision optics and cleaning of cotton swabs to remove cottonseed oil before cleaning of high precision optics; (iii) for cleaning of numismatic dies; (iv) for cleaning of resin, coating, ink, and adhesive mixing, molding, and application equipment; (v) in research and development laboratories; (vi) in manufacturing medical devices or pharmaceutical products; (vii) related to performance or quality assurance testing of coatings, inks, or adhesives.

D. The provisions of this article do not apply to the following:

1. Surface preparation and solvent cleaning operations associated with the surface coating, application of adhesive, sealants and their primers or printing operations subject to Article 26 (Large Appliance Coatings, 9VAC5-40-3560 et seq.), Article 28 (Automobile and Light Duty Truck Coating Applications, 9VAC5-40-3860 et seq.), Article 33 (Metal Furniture Coating Application Systems, 9VAC5-40-4610 et seq.), Article 34 (Miscellaneous Metal Parts/Products Coating Application, 9VAC5-40-4760), Article 35 (Flatwood Paneling Coating Application Systems, 9VAC5-40-4910 et seq.), Article 53 (Lithographic Printing Processes, 9VAC5-40-7800 et seq.), Article 56 (Letterpress Printing Operations, 9VAC5-40-8380 et seq.), Article 56.1 (Lithographic Printing Operations, 9VAC5-40-8420 et seq.), Article 58 (Miscellaneous Industrial Adhesive Application Processes, 9VAC5-40-8660 et seq.), and Article 59 (Miscellaneous Metal Parts and Products Coating Application Systems, 9VAC5-40-8810 et seq.) of 9VAC5-40 (Existing Stationary Sources).

2. The use of janitorial supplies used for cleaning offices, bathrooms, or other similar areas.

3. Stripping of cured inks, coatings, and adhesives.

4. Surface preparation and solvent cleaning operations associated with the surface coating, application of adhesive, sealants and their primers, or printing operations of the following product categories or processes: aerospace coatings, wood furniture coatings, shipbuilding and repair coatings, flexible packaging printing materials, paper film and foil coating, plastic parts coating, and fiberglass boat manufacturing materials.

5. Solvent metal cleaning operations subject to Article 47 (Emission Standards for Solvent Metal Cleaning Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area, 9VAC5-40-6820 et seq.) of 9VAC5-40 (Existing Stationary Sources).

6. The use of cleaning solvent in a digital printing operation in which an electronic output device transfers variable data, in the form of an image, from a computer to a substrate.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8520 Definitions

A. For the purpose of applying this article in the context of the regulations for the control and abatement of air pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. Unless otherwise required by context, all terms not defined in this section shall have the meanings given them in 9VAC5-170 (Regulation for General Administration), 9VAC5-10 (General Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Aerospace coatings" means materials that are applied to the surface of an aerospace vehicle or component to form a decorative, protective, or functional solid film, or the solid film itself at a facility that produces, reworks, or repairs in any amount any commercial, civil, or military aerospace vehicle or component.

"Electrical and electronic components" means components and assemblies of components that generate, convert, transmit, or modify electrical energy. Electrical and electronic components include, but are not limited to, wires, windings, stators, rotors, magnets, contacts, relays, printed circuit boards, printed wire assemblies, wiring boards, integrated circuits, resistors, capacitors, and transistors but does not include the cabinets in which electrical and electronic components are housed.

"Fiberglass boat manufacturing materials" means materials utilized at facilities that manufacture hulls or decks of boats from fiberglass or build molds to make fiberglass boat hulls or decks. Fiberglass boat manufacturing materials are not materials used at facilities that manufacture solely parts of boats (such as hatches, seats, or lockers) or boat trailers, but do not (i) manufacture hulls or decks of boats from fiberglass or (ii) build molds to make fiberglass boat hulls or decks.

"Flexible packaging printing materials" means materials used in the manufacture of any package or part of a package the shape of which can be readily changed. Flexible packaging includes, but is not limited to, bags, pouches, liners, and wraps utilizing paper, plastic, film, aluminum foil, metalized or coated paper or film, or any combination of these materials.

"High precision optics" means an optical element used in an electro-optical device and is designed to sense, detect, or transmit light energy, including specific wavelengths of light energy and changes in light energy levels.

"Industrial cleaning solvents" means products used to remove contaminants such as adhesives, inks, paint, dirt, soil, oil, and grease from parts, products, tools, machinery, equipment, vessels, floors, walls, and other work production related work areas for reasons such as safety, operability, and to avoid product contamination. The cleaning solvents used in these operations may be generally available bulk solvents that are used for a multitude of applications in addition to cleaning, such as for paint thinner, or as an ingredient used in the manufacture of a coating, such as paint.

"Medical device" means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar article, including any component or accessory that is (i) intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of diseases; or (ii) intended to affect the structure or any function of the body.

"Paper, film, and foil coating" means coating that is applied to paper, film, or foil surfaces in the manufacturing of several major product types for the following industry sectors: pressure sensitive tape and labels (including fabric coated for use in pressure sensitive tapes and labels); photographic film; industrial and decorative laminates; abrasive products (including fabric coated for use in abrasive products); and flexible packaging (including coating of nonwoven polymer substrates for use in flexible packaging). Paper and film coating also includes coatings applied during miscellaneous coating operations for several products including: corrugated and solid fiber boxes; die-cut paper paperboard, and cardboard; converted paper and paperboard not elsewhere classified; folding paperboard boxes, including sanitary boxes; manifold business forms and related products; plastic aseptic packaging; and carbon paper and inked ribbons.

"Pharmaceutical product" means a preparation or compound, which includes any drug, analgesic, decongestant, antihistamine, cough suppressant, vitamin, mineral or herb supplement intended for human or animal consumption and used to cure, mitigate or treat disease or improve or enhance health.

"Plastic parts coating" means a coating that is applied to the surfaces of a varied range of plastic parts and products. Such parts or products are constructed either entirely or partially from metal or plastic. These parts include, but are not limited to, metal and plastic components of the following types of products as well as the products themselves: fabricated metal products, molded plastic parts, small and large farm machinery, commercial and industrial machinery and equipment, automotive or transportation equipment, interior or exterior automotive parts, construction equipment, motor vehicle accessories, bicycles and sporting goods, toys, recreational vehicles, pleasure craft (recreational boats), extruded aluminum structural components, railroad cars, heavier vehicles, lawn and garden equipment, business machines, laboratory and medical equipment, electronic equipment, steel drums, metal pipes, and numerous other industrial and household products.

"Shipbuilding and repair coating" means material that can be applied as a thin layer to a substrate and which cures to form a continuous solid film, and is used in the building, repair, repainting, converting, or alteration of ships.

"Solvent cleaning operation" means the employment of industrial cleaning solvents to remove loosely held uncured adhesives, uncured inks, uncured coatings, and contaminants, which include, but are not limited to, dirt, soil, and grease, from parts, products, tools, machinery, equipment, and general work areas and includes but is not limited to activities such as wipe cleaning, solvent flushing, or spraying. Each distinct method of cleaning in a cleaning process, which consists of a series of cleaning methods, shall constitute a separate solvent cleaning operation.

"Solvent flushing" means the use of a solvent to remove uncured adhesives, uncured inks, uncured coatings, or contaminants from the internal surfaces and passages of the equipment by flushing solvent through the equipment.

"Surface preparation" means the cleaning of surfaces prior to coating, further treatment, sale, or intended use.

"VOC" means volatile organic compound.

"Wipe cleaning" means the method of cleaning a surface by physically rubbing it with a material such as a rag, paper, sponge, or a cotton swab moistened with a solvent.

"Wood furniture coatings" means protective, decorative, or functional films applied in thin layers to a surface used in the manufacture of wood furniture or wood furniture components. Such coatings include, but are not limited to, paints, topcoats, varnishes, sealers, stains, washcoats, basecoats, enamels, inks, and temporary protective coatings.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8530 Standard for volatile organic compounds

A. No owner or other person shall cause or permit to be discharged into the atmosphere any VOC emissions from any solvent cleaning operation employing industrial cleaning solvents in excess of both of the following limits:

1. A VOC content limit of 50 grams per liter (0.42 pounds per gallon) of industrial cleaning solvent shall apply unless emissions are controlled by an emission control system with an overall control efficiency of at least 85%; and

2. A composite vapor pressure limit of eight millimeters of mercury at 20°C.

B. VOC emissions from the use, handling, storage, and disposal of industrial cleaning solvents and shop towels shall be controlled by the following work practices:

1. Open containers and used applicators shall be covered.

2. Air circulation around cleaning operations shall be minimized.

3. Used solvent and shop towels shall be disposed of properly.

4. Equipment practices that minimize emissions (including but not limited to keeping arts cleaners covered and maintaining cleaning equipment to repair solvent leaks) shall be implemented.

C. In lieu of complying with the requirements of subsections A and B of this section, a manufacturer of coatings, inks, resin, or adhesives may comply with the following requirements:

1. Clean portable or stationary mixing vats, high dispersion mills, grinding mills, tote tanks, and roller mills by one or more of the following methods:

a. Use a cleaning solvent that either contains less than 1.67 pounds per gallon of VOC or has a composite vapor pressure no more than eight mmHg at 20°C.

b. Comply with the following work practices:

(1) Equipment being cleaned shall be maintained leak free;

(2) VOC-containing cleaning materials shall be drained from the cleaned equipment upon completion of cleaning;

(3) VOC-containing cleaning materials, including waste solvent, shall not be stored or disposed of in such a manner that will cause or allow evaporation into the atmosphere; and

(4) All VOC-containing cleaning materials shall be stored in closed containers.

c. Collect and vent the emissions from equipment cleaning to a VOC emission control system that has an overall capture and control efficiency of at least 80%, by weight, for the VOC emissions. Where such reduction is achieved by incineration, at least 90% of the organic carbon shall be oxidized to carbon dioxide.

d. Use organic solvents other than those allowed in subdivision 1 a of this subsection provided no more than 60 gallons of fresh solvent shall be used per month. Organic solvent that is reused or recycled (either on site or off site) for further use in equipment cleaning or the manufacture of coating, ink, or adhesive shall not be included in this limit. All VOC-containing cleaning materials shall be stored in closed containers.

2. When using solvent for wipe cleaning, the owner shall not (i) use open containers for the storage or disposal of cloth or paper impregnated with organic compounds that is used for cleanup, or coating, ink, or adhesive removal and (ii) store spent or fresh organic compounds to be used for cleanup or coating, ink, resin, or adhesive removal in open containers.

3. Any manufacturer of coatings, inks, resin, or adhesives that complies with subdivision 1 d of this subsection shall record the following information each month for each cleaning material and shall maintain the information at the facility for a period of five years: (i) the total volume of fresh cleaning solvent material used for equipment cleaning and (ii) the total volume of cleaning solvent material recovered for either on-site or off-site recycling.

D. The control requirements for screen printing shall be either use of solvent technology at 4.2 pounds of VOC per gallon, or the use of a product with a vapor pressure of eight mm Hg.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8540 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8550 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8560 Standard for odor

The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8570 Standard for toxic pollutants

The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8580 Compliance

The provisions of 9VAC5-40-20 (Compliance) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8590 Compliance schedule

The owner shall comply with the provisions of this article as expeditiously as possible but in no case later than February 1, 2017.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8600 Test methods and procedures

A. The provisions of 9VAC5-40-30 (Emission testing) apply.

B. The composite vapor pressure of organic compounds in cleaning materials shall be determined by quantifying the amount of each compound in the blend using ASTM "Standard Practice for Packed Column Gas Chromatography" for organics and ASTM "Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph" for water content (see 9VAC5-20-21), as applicable, and the following equation:

where:

Ppc = VOC composite partial pressure at 20ºC, in mm Hg.

Wi = Weight of the "i"th VOC compound, in grams, as determined by

ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-

21).

Ww = Weight of water, in grams as determined by ASTM "Standard Test

Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph"

(see 9VAC5-20-21).

We = Weight of the "i"th exempt compound, in grams, as determined by

ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21).

Mwi = Molecular weight of the "i"th VOC compound, in grams per g-mole,

as given in chemical reference literature.

Mww = Molecular weight of water, 18 grams per g-mole.

Mwe = Molecular weight of the "i"th exempt compound, in grams per g-mole,

as given in chemical reference literature.

VPi = Vapor pressure of the "i"th VOC compound at 20ºC, in mm Hg, as determined by subsection C of this section.

C. The vapor pressure of each single component compound may be determined from ASTM "Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope" (see 9VAC5-20-21), from chemical reference literature, or from additional sources acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8610 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8620 Notification, records, and reporting

The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8630 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8640 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8650 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8660 Applicability and designation of affected facility

Article 58 Emission Standards for Miscellaneous Industrial Adhesive Application Processes in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-58)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each miscellaneous industrial adhesive application process at a facility where the total actual volatile organic compound (VOC) emissions from all miscellaneous industrial adhesive application processes, including related cleaning activities and related application of adhesive primers, are, before consideration of controls, either (i) equal to or exceed 6.8 kilograms per day (15 pounds per day) or (ii) three tons per 12-month rolling period.

B. The provisions of this article apply only to sources of VOCs located in the Northern Virginia VOC Emissions Control Area designated in subdivision 1 a of 9VAC5-20-206.

C. The provisions of this article do not apply to the following.

1. Miscellaneous industrial adhesive application process operations subject to Article 6 (Rubber Tire Manufacturing Operations, 9VAC5-40-5810 et seq.), Article 26 (Large Appliance Coatings, 9VAC5-40-3560 et seq.), Article 28 (Automobile and Light Duty Truck Coating Applications, 9VAC5-40-3860 et seq.), Article 30 (Metal Coil Coating Application Systems, 9VAC5-40-4160 et seq.), Article 31 (Paper and Fabric Coating Application Systems, 9VAC5-40-4310 et seq.) Article 33 (Metal Furniture Coating Application Systems, 9VAC5-40-4610 et seq.), Article 35 (Flatwood Paneling Coating Application Systems, 9VAC5-40-4910 et seq.), Article 53 (Lithographic Printing Processes, 9VAC5-40-7800 et seq.), Article 56 (Letterpress Printing Operations, 9VAC5-40-8380 et seq.), Article 56.1 (Lithographic Printing Operations, 9VAC5-40-8420 et seq.), and Article 57 (Industrial Solvent Cleaning Operations, 9VAC5-40-8510 et seq.) of 9VAC5-40 (Existing Stationary Sources).

2. Miscellaneous industrial adhesive application process operations associated with the following product categories or processes: aerospace coatings, flexible packaging printing materials, paper film and foil coating, and fiberglass boat manufacturing materials.

D. The provisions of Article 6 (Emission Standards for Adhesives and Sealants, 9VAC5-45-620 et seq.) of 9VAC5-45 (Consumer and Commercial Products) may apply. In the case of a conflict between these articles, the more restrictive provisions shall apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8670 Definitions

A. For the purpose of applying this article in the context of the regulations for the control and abatement of air pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. Unless otherwise required by context, all terms not defined in this section shall have the meanings given them in 9VAC5-170 (Regulation for General Administration), 9VAC5-10 (General Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"ABS welding" means any process to weld acrylonitrile-butadiene-styrene pipe.

"Adhesive" means any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

"Adhesive primer" means any product intended by the manufacturer for application to a substrate, prior to the application of an adhesive, to provide a bonding surface.

"Aerosol adhesive or adhesive primer" means an adhesive or adhesive primer packaged as an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for handheld application without the need for ancillary hoses or spray equipment.

"Aerospace coatings" means materials that are applied to the surface of an aerospace vehicle or component to form a decorative, protective, or functional solid film, or the solid film itself at a facility that produces, reworks, or repairs in any amount any commercial, civil, or military aerospace vehicle or component.

"Application process" means a series of one or more adhesive applicators and any associated drying area or oven in which an adhesive is applied, dried, or cured. An application process ends at the point where the adhesive is dried or cured, or prior to any subsequent application of a different adhesive. It is not necessary for an application process to have an oven or flash-off area.

"Ceramic tile installation adhesive" means any adhesive intended by the manufacturer for use in the installation of ceramic tiles.

"Chlorinated polyvinyl chloride plastic" or "CPVC plastic welding" means a polymer of the vinyl chloride monomer that contains 67% chlorine and is normally identified with a CPVC marking.

"Chlorinated polyvinyl chloride welding" or "CPVC welding" means an adhesive labeled for welding of chlorinated polyvinyl chloride plastic.

"Cleaning activities" means activities other than surface preparation and priming that use cleaning materials to remove adhesive residue or other unwanted materials from equipment related to application operations, as well as the cleaning of spray guns, transfer lines (such as tubing or piping), tanks, and the interior of spray booths.

"Contact adhesive" means an adhesive that (i) is designed for application to both surfaces to be bonded together, (ii) is allowed to dry before the two surfaces are placed in contact with each other, (iii) forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other, and (iv) does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces. Contact adhesive does not include rubber cements that are primarily intended for use on paper substrates or vulcanizing fluids that are designed and labeled for tire repair only.

"Cove base" means a flooring trim unit, generally made of vinyl or rubber, having a concave radius on one edge and a convex radius on the opposite edge that is used in forming a junction between the bottom wall course and the floor or to form an inside corner.

"Cove base installation adhesive" means any adhesive intended by the manufacturer to be used for the installation of cove base or wall base on a wall or vertical surface at floor level.

"Cyanoacrylate adhesive" means any adhesive with a cyanoacrylate content of at least 95% by weight.

"Fiberglass boat manufacturing facility" means a facility that manufactures hulls or decks of boats from fiberglass or builds molds to make fiberglass boat hulls or decks and does not include a facility that solely manufactures parts of boats (such as hatches, seats, or lockers) or boat trailers, that is, which does not also manufacture hulls or decks of boats from fiberglass or builds molds to make fiberglass boat hulls or decks.

"Fiberglass boat manufacturing materials" means materials utilized at fiberglass boat manufacturing facilities to manufacture hulls or decks of boats from fiberglass, and parts of boats (such as hatches, seats, or lockers), or to build molds to make fiberglass boat hulls or decks.

"Flexible packaging printing materials" means materials used in the manufacture of any package or part of a package the shape of which can be readily changed. Flexible packaging includes, but is not limited to, bags, pouches, liners, and wraps utilizing paper, plastic, film, aluminum foil, metalized or coated paper or film, or any combination of these materials.

"Flexible vinyl" means nonrigid polyvinyl chloride plastic with a 5.0% by weight plasticizer content.

"Indoor floor covering installation adhesive" means any adhesive intended by the manufacturer for use in the installation of wood flooring, carpet, resilient tile, vinyl tile, vinyl backed carpet, resilient sheet and roll, or artificial grass. Adhesives used to install ceramic tile and perimeter bonded sheet flooring with vinyl backing onto a nonporous substrate, such as flexible vinyl, are excluded from this category.

"Industrial adhesives" means adhesives used for joining surfaces in assembly and construction of a large variety of products. Adhesives may be generally classified as solution/waterborne, solvent-borne, solventless or solid (such as hot melt adhesives), pressure sensitive, hot-melt, or reactive (such as epoxy adhesives and ultraviolet-curable adhesives). Adhesives may also be generally classified according to whether they are structural or nonstructural. Structural adhesives are commonly used in industrial assembly processes and are designed to maintain product structural integrity.

"Medical equipment manufacturing" means the manufacture of medical devices, such as, but not limited to, catheters, heart valves, blood cardioplegia machines, tracheostomy tubes, blood oxygenators, and cardiatory reservoirs.

"Metal to urethane/rubber molding or casting adhesive" means any adhesive intended by the manufacturer to bond metal to high density or elastomeric urethane or molded rubber materials, in heater molding or casting processes, to fabricate products such as rollers for computer printers or other paper handling equipment.

"Motor vehicle adhesive" means an adhesive, including glass bonding adhesive, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied for the purpose of bonding two vehicle surfaces together without regard to the substrates involved.

"Motor vehicle glass bonding primer" means a primer, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to windshield or other glass, or to body openings, to prepare the glass or body opening for the application of glass bonding adhesives or the installation of adhesive bonded glass. Motor vehicle glass bonding primer includes glass bonding/cleaning primers that perform both functions (cleaning and priming of the windshield or other glass, or body openings) prior to the application of adhesive or the installation of adhesive bonded glass.

"Motor vehicle weatherstrip adhesive" means an adhesive, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to weatherstripping materials for the purpose of bonding the weatherstrip material to the surface of the vehicle.

"Multipurpose construction adhesive" means any adhesive intended by the manufacturer for use in the installation or repair of various construction materials, including but not limited to drywall, subfloor, panel, fiberglass reinforced plastic (FRP), ceiling tile, and acoustical tile.

"Outdoor floor covering installation adhesive" means any adhesive intended by the manufacturer for use in the installation of floor covering that is not in an enclosure and that is exposed to ambient weather conditions during normal use.

"Paper, film, and foil coating" means coating that is applied to paper, film, or foil surfaces in the manufacturing of several major product types for the following industry sectors: pressure sensitive tape and labels (including fabric coated for use in pressure sensitive tapes and labels); photographic film; industrial and decorative laminates; abrasive products (including fabric coated for use in abrasive products); and flexible packaging (including coating of nonwoven polymer substrates for use in flexible packaging). Paper and film coating also includes coatings applied during miscellaneous coating operations for several products including: corrugated and solid fiber boxes; die-cut paper paperboard, and cardboard; converted paper and paperboard not elsewhere classified; folding paperboard boxes, including sanitary boxes; manifold business forms and related products; plastic aseptic packaging; and carbon paper and inked ribbons.

"Perimeter bonded sheet flooring installation" means the installation of sheet flooring with vinyl backing onto a nonporous substrate using an adhesive designed to be applied only to a strip of up to four inches wide around the perimeter of the sheet flooring.

"Plastic" means a synthetic material chemically formed by the polymerization of organic (carbon-based) substances. Plastics are usually compounded with modifiers, extenders, and/or reinforcers and are capable of being molded, extruded, cast into various shapes and films or drawn into filaments.

"Plastic solvent welding adhesive" means any adhesive intended by the manufacturer for use to dissolve the surface of plastic to form a bond between mating surfaces.

"Plastic solvent welding adhesive primer" means any primer intended by the manufacturer for use to prepare plastic substrates prior to bonding or welding.

"Polyvinyl chloride plastic" or "PVC" means a polymer of the chlorinated vinyl monomer that contains 57% chlorine.

"Polyvinyl chloride welding adhesive" or "PVC welding adhesive" means any adhesive intended by the manufacturer for use in the welding of PVC plastic pipe.

"Porous material" means a substance that has tiny openings, often microscopic, in which fluids may be absorbed or discharged, including, but not limited to, paper and corrugated paperboard. For the purposes of this article, porous materialdoes not include wood.

"Reactive adhesive" means adhesive systems composed, in part, of volatile monomers that react during the adhesive curing reaction, and, as a result, do not evolve from the film during use. These volatile components instead become integral parts of the adhesive through chemical reaction. At least 70% of the liquid components of the system, excluding water, react during the process.

"Reinforced plastic composite" means a composite material consisting of plastic reinforced with fibers.

"Rubber" means any natural or manufactured rubber substrate, including but not limited to, styrene-butadiene rubber, polychloroprene (neoprene), butyl rubber, nitrile rubber, chlorosulfonated polyethylene, and ethylene propylene diene terpolymer.

"Sheet rubber lining installation" means the process of applying sheet rubber liners by hand to metal or plastic substrates to protect the underlying substrate from corrosion or abrasion. These operations also include laminating sheet rubber to fabric by hand.

"Single-ply roof membrane" means a prefabricated single sheet of rubber, normally ethylene-propylenediene terpolymer, that is field-applied to a building roof using one layer of membrane material. For the purposes of this article, single-ply roof membrane does not include membranes prefabricated from ethylene-propylenediene monomer (EPDM).

"Single-ply roof membrane adhesive primer" means any primer labeled for use to clean and promote adhesion of the single-ply roof membrane seams or splices prior to bonding.

"Single-ply roof membrane installation and repair adhesive" means any adhesive labeled for use in the installation or repair of single-ply roof membrane. Installation includes, as a minimum, attaching the edge of the membrane to the edge of the roof and applying flashings to vents, pipes, and ducts that protrude through the membrane. Repair includes gluing the edges of torn membrane together, attaching a patch over a hole and reapplying flashings to vents, pipes, or ducts installed through the membrane.

"Structural glazing" means a process that includes the application of adhesive to bond glass, ceramic, metal, stone, or composite panels to exterior building frames.

"Thin metal laminating adhesive" means any adhesive intended by the manufacturer for use in bonding multiple layers of metal to metal or metal to plastic in the production of electronic or magnetic components in which the thickness of the bond line or lines is less than 0.25 mils.

"Tire repair" means a process that includes expanding a hole, tear, fissure, or blemish in a tire casing by grinding, gouging, or applying adhesive and filling the hole or crevice with rubber.

"Undersea-based weapons systems components" means the fabrication of parts, assembly of parts or completed units of any portion of a missile launching system used on undersea ships.

"VOC" means volatile organic compound.

"Waterproof resorcinol glue" means a two-part resorcinol-resin-based adhesive designed for applications where the bond line must be resistant to conditions of continuous immersion in fresh or salt water.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8680 Standard for volatile organic compounds

A. No owner or other person shall perform miscellaneous industrial adhesive application processes in excess of the following limits.

1. Facilities opting to meet specific emissions limits in lieu of the control efficiency in subdivision 2 of this subsection shall meet the applicable emissions limits in Table 4-58A.

| | TABLE 4-58A. VOC EMISSION LIMITS FOR GENERAL AND SPECIALTY ADHESIVE APPLICATION PROCESSES | | | | | --- | --- | --- | --- | --- | | | General Adhesive Application Processes | VOC Emission Limit | | | | | grams per liter (g/l) | pounds per gallon (lb/gal) | | | | | Reinforced plastic composite | 200 | 1.7 | | | | Flexible vinyl | 250 | 2.1 | | | | Metal | 30 | 0.3 | | | | Porous material (except wood) | 120 | 1.0 | | | | Rubber | 250 | 2.1 | | | | Wood | 30 | 0.3 | | | | Other substrates | 250 | 2.1 | | | | | | | | | | Specialty Adhesive Application Processes | VOC Emission Limit | | | | | (g/l) | (lb/gal) | | | | | Ceramic tile installation adhesive | 130 | 1.1 | | | | Contact adhesive | 250 | 2.1 | | | | Cove base installation adhesive | 150 | 1.3 | | | | Indoor floor covering installation adhesive | 150 | 1.3 | | | | Outdoor floor covering installation adhesive | 250 | 2.1 | | | | Perimeter bonded sheet floor covering installation | 660 | 5.5 | | | | Metal to urethane/rubber molding or casting adhesive | 850 | 7.1 | | | | Motor vehicle adhesive | 250 | 2.1 | | | | Motor vehicle weatherstrip adhesive | 750 | 6.3 | | | | Multipurpose construction | 200 | 1.7 | | | | ABS welding adhesive | 400 | 3.3 | | | | Plastic solvent welding (except ABS) adhesive | 500 | 4.2 | | | | Sheet rubber lining installation | 850 | 7.1 | | | | Single-ply roof membrane installation and repair adhesive (except EPDM) | 250 | 2.1 | | | | Structural glazing | 100 | 0.8 | | | | Thin metal laminating adhesive | 780 | 6.5 | | | | Tire repair | 100 | 0.8 | | | | Waterproof resorcinol glue | 170 | 1.4 | | | | | | | | | | Adhesive Primer Application Processes | VOC Emission Limit | | | | | (g/l) | (lb/gal) | | | | | Motor vehicle glass bonding primer | 900 | 7.5 | | | | Plastic solvent welding adhesive primer | 650 | 5.4 | | | | Single-ply roof membrane adhesive primer | 250 | 2.1 | | | | Other adhesive primer | 250 | 2.1 | | | | For the purposes of this table, emission limits are mass of VOC per volume of adhesive or adhesive primer excluding water and exempt compounds, as applied. | | | | | | | | | |

a. The VOC content limits in Table 4-58A for adhesives applied to particular substrates shall apply as follows:

(1) If an owner or other person uses an adhesive or sealant subject to a specific VOC content limit for such adhesive or sealant in Table 4-58A, such specific limit is applicable rather than an adhesive-to-substrate limit.

(2) If an adhesive is used to bond dissimilar substrates together, the applicable substrate category with the highest VOC content shall be the limit for such use.

b. The emission limits in Table 4-58A shall be met by averaging the VOC content of materials used on a single application process unit for each day (i.e., daily within-application process unit averaging). Cross-application process unit averaging (i.e., averaging across multiple application units) shall not be used to determine these emission limits.

c. VOC content shall be determined as follows:

(1) For adhesives that are not reactive adhesives, VOC content shall be determined using Reference Method 24.

(2) For reactive adhesives, VOC content shall be determined using the procedure for reactive adhesives in Appendix A of subpart PPPP of 40 CFR Part 63.

(3) As an alternative to the methods in subdivisions (1) and (2) of this subdivision A 1 c, the manufacturer's formulation data may be used. If there is a disagreement between manufacturer's formulation data and the results of a subsequent test, the test method results shall be used unless the facility can demonstrate to the board's satisfaction that the manufacturer's formulation data are correct.

2. Facilities opting to meet a control efficiency in lieu of the specific emission limits in subdivision 1 of this subsection shall meet an overall control efficiency of 85%.

3. The following materials shall not be subject to the limits and controls found in subdivisions 1 and 2 of this subsection but shall be subject to the work practices found in subdivision B 3 of this section:

a. Adhesives or adhesive primers being tested or evaluated in any research and development, quality assurance, or analytical laboratory.

b. Adhesives or adhesive primers used in the assembly, repair, or manufacture of aerospace or undersea-based weapon systems.

c. Adhesives or adhesive primers used in medical equipment manufacturing operations.

d. Cyanoacrylate adhesive application processes.

e. Application of aerosol adhesives and adhesive primers applied with a handheld, disposable can that is pressured and that dispenses an adhesive or adhesive primer by means of a propellant. Aerosol adhesives are regulated by VOC Emission Standards for Consumer Products, subpart C of 40 CFR Part 59. Aerosol adhesive primers are regulated as "primers" under VOC Emission Standards for Aerosol Coatings, subpart E of 40 CFR Part 59.

f. Processes using polyester bonding putties to assemble fiberglass parts at fiberglass boat manufacturing facilities and at other reinforced plastic composite manufacturing facilities.

g. Processes using adhesives and adhesive primers that are supplied by the manufacturer in containers with a net volume of 16 ounces or less, or a net weight of one pound or less.

h. Cleaning materials.

B. The owner of a facility subject to this article shall implement the following control options as applicable:

1. A facility using low-VOC adhesives or adhesive primers shall use one of the following application methods:

a. Electrostatic spray;

b. HVLP spray;

c. Flow coat;

d. Roll coat or hand application, including nonspray application methods similar to hand or mechanically powered caulking gun, brush, or direct hand application;

e. Dip coat, including electrodeposition;

f. Airless spray;

g. Air-assisted airless spray; or

h. Other adhesive application method capable of achieving a transfer efficiency equivalent to or better than that achieved by HVLP spraying.

2. A facility with product performance requirements or other needs that dictate the use of higher-VOC materials than those that would meet the emission limits in Table 4-58A shall either (i) use add-on control equipment with an overall control efficiency of 85% or (ii) use a combination of adhesives and add-on control equipment on an application process unit to meet the emission limits in Table 4-58A. Add-on devices may include oxidizers, adsorbers, absorbers, and concentrators.

3. The following work practices for the application of adhesives, adhesive primers, and process-related waste materials, shall be used:

a. All VOC-containing adhesives, adhesive primers, and process-related waste materials shall be stored in closed containers.

b. Mixing and storage containers used for VOC-containing adhesives, adhesive primers, and process-related waste materials shall be kept closed at all times except when these materials are being deposited or removed.

c. Spills of VOC-containing adhesives, adhesive primers, and process-related waste materials shall be minimized.

d. VOC-containing adhesives, adhesive primers, and process-related waste materials shall be conveyed from one location to another in closed containers or pipes.

4. The following work practices for cleaning activities shall be used:

a. All VOC-containing cleaning materials and used shop towels shall be stored in closed containers.

b. Storage containers used for VOC-containing cleaning materials shall be kept closed at all times except when these materials are deposited or removed.

c. Spills of VOC-containing cleaning materials shall be minimized.

d. VOC-containing cleaning materials shall be conveyed from one location to another in closed containers or pipes.

e. VOC emissions from cleaning of application, storage, mixing, and conveying equipment shall be minimized by performing equipment cleaning without atomizing the cleaning solvent and by capturing all spent solvent in closed containers.

5. The application of adhesives and adhesive primers applied with a handheld, disposable can that is pressured and that dispenses an adhesive or adhesive primer by means of a propellant shall not be subject to the application method limits and controls found in subdivisions 1, 2, and 4 of this subsection but shall be subject to the work practices found in subdivisions 3 and 4 of this subsection.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8690 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8700 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8710 Standard for odor

The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8720 Standard for toxic pollutants

The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8730 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. The emission standards in 9VAC5-40-4330 apply to coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

C. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable standard in terms of pounds of VOCs per gallon solids or pounds of VOCs per gallon solids applied according to the applicable procedure in 9VAC5-20-121. Compliance may also be based on transfer efficiency greater than the baseline transfer efficiency of 9VAC5-40-8680 B if demonstrated by methods acceptable to the board according to the applicable procedure in 9VAC5-20-121.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8740 Compliance schedule

The owner shall comply with the provisions of this article as expeditiously as possible but in no case later than February 1, 2017.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8750 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission testing) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8760 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8770 Notification, records, and reporting

The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8780 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8790 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8800 Permits

A permit may be required prior to beginning any of the activities specified in this section if the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

Article 59 Emission Standards for Miscellaneous Metal Parts and Products Coating Application Systems in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-59)

9VAC5-40-8810 Applicability and designation of affected facility

Article 59 Emission Standards for Miscellaneous Metal Parts and Products Coating Application Systems in the Northern Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-59)

A. Except as provided in subsections C through H of this section, the affected facility to which the provisions of this article apply is each miscellaneous metal product and plastic parts surface coating operation at a facility where the total actual emissions of volatile organic compounds (VOCs) from all miscellaneous metal product and plastic parts surface coating operations, including related cleaning activities, at that facility are equal to or exceed 6.8 kilograms per day (15 pounds per day), or an equivalent level of 2.7 tons per 12-month rolling period, before consideration of controls.

B. The provisions of this article apply only to affected facilities located in the Northern Virginia VOC Emissions Control Area designated in subdivision 1 a of 9VAC5-20-206.

C. Facilities that coat bodies or body parts for new heavier vehicles (including all vehicles that meet the definition of the term "other motor vehicles" as defined in 40 CFR 63.3176 of the National Emission Standards for Surface Coating of Automobile and Light-Duty Trucks) may, in lieu of complying with the provisions of this article, opt to comply with Article 28 (Emission Standards for Automobile and Light Duty Truck Coating Application Systems, 9VAC5-40-3860 et seq.) of 9VAC5-40 (Existing Stationary Sources).

D. The provisions of this article do not apply to the following:

1. Miscellaneous metal product and plastic parts surface coating operations subject to Article 26 (Emissions Standards for Large Appliance Coating Application Systems, 9VAC5-40-3560 et seq.), Article 27 (Emission Standards for Magnet Wire Coating Application Systems, 9VAC5-40-3710 et seq.), Article 29 (Emission Standards for Can Coating Application Systems, 9VAC5-40-4010 et seq.), Article 30 (Emission Standards for Metal Coil Coating Application Systems, 9VAC5-40-4160), Article 31 (Emission Standards for Paper and Fabric Coating Application Systems, 9VAC5-40-4310), Article 33 (Emissions Standards for Metal Furniture Coating Application Systems, 9VAC5-40-4610 et seq.), and Article 48 (Emission Standards for Mobile Equipment Repair and Refinishing Operations, 9VAC5-40-6970 et seq.) of 9VAC5-40 (Existing Stationary Sources); and Article 5 (Emission Standards for Architectural and Industrial Maintenance Coatings, 9VAC5-45-520 et seq.) of 9VAC5-45 (Consumer and Commercial Products).

2. Coating application systems used exclusively for determination of product quality and coatings that are applied to test panels and coupons as part of research and development, quality control, or performance testing activities at paint research or manufacturing facilities.

3. Coatings applied using a handheld, pressurized, nonrefillable container that expels coatings from the container in a finely divided spray when a valve on the container is depressed.

4. Miscellaneous metal product and plastic parts surface coating operations associated with the following product categories or processes: aerospace coatings; wood furniture coatings; fiberglass boat manufacturing materials; and paper, film, and foil coatings not otherwise regulated under Article 31 (Emission Standards for Paper and Fabric Coating Application Systems, 9VAC5-40-4310) of 9VAC5-40 (Existing Stationary Sources).

5. Recommended VOC limits and application methods do not apply to aerosol coating products or powder coatings.

E. For metal coatings:

1. Recommended work practices still apply; however, the VOC limits and application methods for provisions of this article do not apply to the following:

a. Stencil coatings;

b. Safety-indicating coatings;

c Solid-film lubricants;

d. Electric-insulating and thermal conducting coatings;

e. Magnetic data storage disk coatings; and

f. Plastic extruded onto metal parts to form a coating.

2. Recommended VOC limits and work practices still apply to these coatings and coating operations; however, the application methods for provisions of this article do not apply to the following:

a. Touch-up coatings;

b. Repair coatings; and

c. Textured finishes.

F. For plastic coatings:

1. Recommended application and work practices still apply to these coatings and coating operations; however, the VOC limits for provisions of this article do not apply to the following:

a. Touch-up and repair coatings;

b. Stencil coatings applied on clear or transparent substrates;

c. Clear or translucent coatings;

d. Coatings applied at a paint manufacturing facility while conducting performance tests on the coatings;

e. Any individual coating category used in volumes less than 50 gallons in any one year, if substitute complaint coatings are not available, provided that the total usage of all such coatings does not exceed 200 gallons per year, per facility;

f. Reflective coating applied to highway cones;

g. Mask coatings that are less than 0.5 millimeter thick (dried) and the area coated is less than 25 square inches;

h. EMI/RF shielding coatings; and

i. Heparin-benzalkonium chloride (HBAC)-contained coatings applied to medical devices, provided that the total usage of all such coatings does not exceed 100 gallons per year, per facility.

2. The application methods for provisions of this article do not apply to airbrush methods using five gallons or less per year of coating; however, VOC limits and work practices do apply.

G. For automotive/transportation and business machine plastic part coatings:

1. The VOC limits for provisions of this article do not apply to the following:

a. Texture coatings;

b. Vacuum metalizing coatings;

c. Gloss reducers;

d. Texture topcoats;

e. Adhesion primers;

f. Electrostatic preparation coatings;

g. Resist coatings; and

h. Stencil coatings.

2. Recommended application and work practices still apply to these coatings and coating operations.

H. For pleasure craft surface coating operations, VOC limits and work practices do apply to extreme high gloss coatings; however, recommended application methods do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8820 Definitions

A. For the purpose of this article and subsequent amendments or any orders issued by the board, the words or terms shall have the meaning given them in subsection C of this section.

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

C. Terms defined.

"Aerospace coatings" means materials that are applied to the surface of an aerospace vehicle or component to form a decorative, protective, or functional solid film, or the solid film itself at a facility that produces, reworks, or repairs in any amount any commercial, civil, or military aerospace vehicle or component.

"Air-dried coating" means:

1. For general use, a coating that is cured at a temperature below 90°C (194°F).

2. For automotive/transportation and business machine use, a coating that is dried by the use of air or forced warm air at temperatures up to 90°C (194°F).

"Antifoulant coating" means any coating applied to the underwater portion of a pleasure craft to prevent or reduce the attachment of biological organisms, and registered with the U.S. Environmental Protection Agency (EPA) as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136).

"Antifouling sealer/tie coat" means any coating applied over biocidal antifouling coating for the purpose of preventing release of biocides into the environment or to promote adhesion between an antifouling and a primer or other antifoulings.

"Baked coating" means a coating that is cured at a temperature at or above 90°C (194°F).

"Biocide" means a chemical substance or microorganism that can deter, render harmless, or exert a controlling effect on any harmful organism by chemical or biological means.

"Black automotive coating" means a coating that meets both of the following criteria: (i) maximum lightness of 23 units and (ii) saturation of less than 2.8, where saturation equals the square root of A² + B². These criteria are based on Cielab color space, 0/45 geometry. For spherical geometry, specular included, maximum lightness is 33 units.

"Business machine" means a device that uses electronic or mechanical methods to process information, perform calculations, print or copy information, or convert sound into electrical impulses for transmission, including devices listed in National American Industry Classification System (NAICS) codes 333318, 334111, 339940, 334112, 334118, 334210, 334418, 334519, 334613, and photocopying equipment in 333316.

"Camouflage coating" means a coating used, principally by the military, to conceal equipment from detection.

"Clear coating" means:

1. For general use, a colorless coating that contains binders, but no pigment, and is formulated to form a transparent film.

2. For automotive/transportation and business machine use, a coating that lacks color and opacity or is transparent and that uses the undercoat as a reflectant base or undertone color.

"Coating unit" means a series of one or more coating applicators and any associated drying area or oven wherein a coating is applied, dried, or cured. A coating unit ends at the point where the coating is dried or cured, or prior to any subsequent application of a different coating. It is not necessary for a coating unit to have an oven or flash-off area.

"Drum" means any cylindrical metal shipping container larger than 12 gallons capacity but no larger than 110 gallons capacity.

"Electric dissipating coating" means a coating that rapidly dissipates a high-voltage electric charge.

"Electric-insulating varnish" means a nonconvertible-type coating applied to electric motors, components of electric motors, or power transformers to provide electrical, mechanical, and environmental protection or resistance.

"EMF/RFI shielding" means a coating used on electrical or electronic equipment to provide shielding against electromagnetic interference, radio frequency interference, or static discharge.

"Etching filler" means a coating that contains less than 23% solids by weight and at least 0.5% acid by weight and is used instead of applying a pretreatment coating followed by a primer.

"Extreme high-gloss coating" means:

1. For general use, a coating that when tested by the American Society for Testing and Materials (ASTM) Standard Test Method for Specular Gloss (see 9VAC5-20-21) shows a reflectance of 75 or more on a 60° meter.

2. For pleasure craft surface coating, any coating that achieves at least 95% reflectance on a 60° meter when tested by ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Extreme performance coating" means a coating used on a metal or plastic surface where the coated surface is, in its intended use, subject to the following:

1. Chronic exposure to corrosive, caustic, or acidic agents, chemicals, chemical fumes, chemical mixtures, or solutions;

2. Repeated exposure to temperatures in excess of 250°F; or

3. Repeated heavy abrasion, including mechanical wear and repeated scrubbing with industrial grade solvents, cleansers, or scouring agents.

Extreme performance coatings include, but are not limited to, coatings applied to locomotives, railroad cars, farm machinery, and heavy duty trucks.

"Fiberglass boat manufacturing materials" means materials utilized at facilities that manufacture hulls or decks of boats from fiberglass or build molds to make fiberglass boat hulls or decks. Fiberglass boat manufacturing materials are not materials used at facilities that manufacture solely parts of boats (i.e., hatches, seats, or lockers) or boat trailers, but do not (i) manufacture hulls or decks of boats from fiberglass or (ii) build molds to make fiberglass boat hulls or decks.

"Finish primer/surfacer" means a coating applied with a wet film thickness of less than 10 mils prior to the application of a topcoat for purposes of providing corrosion resistance, adhesion of subsequent coatings, a moisture barrier, or promotion of a uniform surface necessary for filling in surface imperfections.

"Flexible coating" means any coating that is required to comply with engineering specifications for impact resistance, mandrel bend, or elongation as defined by the original equipment manufacturer.

"Fog coat" means a coating that is applied to a plastic part for the purpose of color matching without masking a molded-in texture. A fog coat shall not be applied at a thickness of more than 0.5 mils of coating solids.

"Heat-resistant coating" means a coating that must withstand a temperature of at least 400°F during normal use.

"High bake coating" means a coating that is designed to cure only at temperatures of more than 90°C (194°F).

"High build primer/surfacer" means a coating applied with a wet film thickness of 10 mils or more prior to the application of a topcoat for purposes of providing corrosion resistance, adhesion of subsequent coatings, or a moisture barrier, or promoting a uniform surface necessary for filling in surface imperfections.

"High gloss" means any coating that achieves at least 85% reflectance on a 60° meter when tested by ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"High performance architectural coating" means a coating used to protect architectural subsections and that meets the requirements of the Architectural Aluminum Manufacturer Association's publication number AAMA 2604-05 (Voluntary Specification, Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels) or 2605-05 (Voluntary Specification, Performance Requirements and Test Procedures for Superior Performing Organic Coatings on Aluminum Extrusions and Panels).

"High temperature coating" means a coating that is certified to withstand a temperature of 1000°F for 24 hours.

"Metallic coating" means a coating that contains more than five grams of metal particles per liter of coating as applied. "Metal particles" are pieces of a pure elemental metal or a combination of elemental metals.

"Military specification coating" means a coating that has a formulation approved by a United States military agency for use on military equipment.

"Miscellaneous metal parts and products" means a varied range of metal and plastic parts and products that are constructed either entirely or partially from metal or plastic. These miscellaneous metal products and plastic parts include, but are not limited to, metal and plastic components of the following types of products as well as the products themselves: fabricated metal products, molded plastic parts, small and large farm machinery, commercial and industrial machinery and equipment, automotive or transportation equipment, interior or exterior automotive parts, construction equipment, motor vehicle accessories, bicycles and sporting goods, toys, recreational vehicles, pleasure craft (recreational boats), extruded aluminum structural components, railroad cars, heavier vehicles (as defined in 40 CFR 63.3176), lawn and garden equipment, business machines, laboratory and medical equipment, electronic equipment, steel drums, metal pipes, and numerous other industrial and household products.

"Miscellaneous metal product and plastic parts coating" means coatings that include paints, sealants, caulks, inks, and maskants (decorative, protective, or functional materials that consist only of protective oils for metal, acids, bases, or any combination of these substances are not considered miscellaneous metal or plastic part coatings). The paints include several categories of primers, topcoats, and specialty coatings, typically defined by the coating's function. The types of coating technologies used by miscellaneous metal product and plastic part surface coating facilities include higher solids, waterborne, and powder coatings, as well as conventional solvent-borne coatings. Decorative, protective, or functional materials that consist only of protective oils for metal, acids, bases, or any combination of these substances are not considered miscellaneous metal or plastic part coatings.

"Miscellaneous metal product and plastic parts surface coating operation" means the application of surface coatings by the manufacturer of miscellaneous metal and plastic parts to the parts it produces, and by facilities that perform surface coating of miscellaneous metal and plastic parts on a contract basis.

"Mold seal coating" means the initial coating applied to a new mold or a repaired mold to provide a smooth surface that, when coated with a mold release coating, prevents products from sticking to the mold.

"Motor vehicle bedliner" means a multi-component coating, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to a cargo bed after the application of topcoat to provide additional durability and chip resistance.

"Motor vehicle cavity wax" means a coating, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied into the cavities of the vehicle primarily for the purpose of enhancing corrosion protection.

"Motor vehicle deadener" means a coating, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to selected vehicle surfaces primarily for the purpose of reducing the sound of road noise in the passenger compartment.

"Motor vehicle gasket/sealing material" means a fluid, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to coat a gasket or replace and perform the same function as a gasket. Automobile and light-duty truck gasket/gasket sealing material includes room temperature vulcanization (RTV) seal material.

"Motor vehicle lubricating wax/compound" means a protective lubricating material, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to vehicle hubs and hinges.

"Motor vehicle sealer" means a high viscosity material, used at a facility that is not an automobile or light-duty truck assembly coating facility, generally, but not always, applied in the paint shop after the body has received an electrodeposition primer coating and before the application of subsequent coatings (e.g., primer-surfacer). The primary purpose of automobile and light-duty truck sealer is to fill body joints completely so that there is no intrusion of water, gases or corrosive materials into the passenger area of the body compartment. Such materials are also referred to as sealant, sealant primer, or caulk.

"Motor vehicle trunk interior coating" means a coating, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to the trunk interior to provide chip protection.

"Motor vehicle underbody coating" means a coating, used at a facility that is not an automobile or light-duty truck assembly coating facility, applied to the undercarriage or firewall to prevent corrosion or provide chip protection.

"Multi-colored coating" means a coating that exhibits more than one color when applied, and which is packaged in a single container and applied in a single coat.

"Multi-component coating" means a coating requiring the addition of a separate reactive resin, commonly known as a catalyst or hardener, before application to form an acceptable dry film.

"One-component coating" means a coating that is ready for application as it comes out of its container to form an acceptable dry film. A thinner, necessary to reduce the viscosity, is not considered a component.

"Optical coating" means a coating applied to an optical lens.

"Pan-backing coating" means a coating applied to the surface of pots, pans, or other cooking implements that are exposed directly to a flame or other heating elements.

"Paper, film, and foil coating" means coating that is applied to paper, film, or foil surfaces in the manufacturing of several major product types for the following industry sectors: pressure sensitive tape and labels (including fabric coated for use in pressure sensitive tapes and labels); photographic film; industrial and decorative laminates; abrasive products (including fabric coated for use in abrasive products); and flexible packaging (including coating of nonwoven polymer substrates for use in flexible packaging). Paper and film coating also includes coatings applied during miscellaneous coating operations for several products including: corrugated and solid fiber boxes; die-cut paper paperboard, and cardboard; converted paper and paperboard not elsewhere classified; folding paperboard boxes, including sanitary boxes; manifold business forms and related products; plastic aseptic packaging; and carbon paper and inked ribbons.

"Pleasure craft" means vessels that are manufactured or operated primarily for recreational purposes, or leased, rented, or chartered to a person or business for recreational purposes. The owner of such vessels shall be responsible for certifying that the intended use is for recreational purposes.

"Pleasure craft coating" means any marine coating, except unsaturated polyester resin (fiberglass) coatings, applied by brush, spray, roller, or other means to a pleasure craft.

"Prefabricated architectural component coatings" means coatings applied to metal parts and products that are to be used as an architectural structure.

"Pretreatment coating" means a coating that contains no more than 12% solids by weight, and at least 0.5% acid, by weight, is used to provide surface etching, and is applied directly to metal surfaces to provide corrosion resistance, adhesion, and ease of stripping.

"Pretreatment wash primer" means a coating that contains no more than 12% solids, by weight, and at least 0.5% acids, by weight; is used to provide surface etching; and is applied directly to fiberglass and metal surfaces to provide corrosion resistance and adhesion of subsequent coatings.

"Red automotive coating" means a coating that meets all of the following criteria:

1. Yellow limit: the hue of hostaperm scarlet.

2. Blue limit: the hue of monastral red-violet.

3. Lightness limit for metallics: 35% aluminum flake.

4. Lightness limit for solids: 50% titanium dioxide white.

5. Solid reds: hue angle of -11 to 38 degrees and maximum lightness of 23 to 45 units.

6. Metallic reds: hue angle of -16 to 35 degrees and maximum lightness of 28 to 45 units.

These criteria are based on Cielab color space, 0/45 geometry. For spherical geometry, specular included, the upper limit is 49 units. The maximum lightness varies as the hue moves from violet to orange. This is a natural consequence of the strength of the colorants, and real colors show this effect.

"Repair coating" means a coating used to re-coat portions of a previously coated product that has sustained mechanical damage to the coating following normal coating operations.

"Shock-free coating" means a coating applied to electrical components to protect the user from electric shock. The coating has characteristics of being of low capacitance and high resistance, and having resistance to breaking down under high voltage.

"Silicone release coating" means any coating that contains silicone resin and is intended to prevent food from sticking to metal surfaces such as baking pans.

"Solar-absorbent coating" means a coating that has as its prime purpose the absorption of solar radiation.

"Texture coating" means a coating that is applied to a plastic part that, in its finished form, consists of discrete raised spots of the coating.

"Topcoat" means any final coating applied to the interior or exterior of a pleasure craft.

"Touchup coating" means a coating used to cover minor coating imperfections appearing after the main coating operation.

"Vacuum-metalizing coating" means:

1. For general use, the undercoat applied to the substrate on which the metal is deposited or the overcoat applied directly to the metal film. Vacuum metalizing/physical vapor deposition (PVD) is the process whereby metal is vaporized and deposited on a substrate in a vacuum chamber.

2. For automotive/transportation and business machine use, topcoats and basecoats that are used in the vacuum-metalizing process.

"VOC" means volatile organic compound.

"Wood furniture coatings" means protective, decorative, or functional films applied in thin layers to a surface used in the manufacture of wood furniture or wood furniture components. Such coatings include, but are not limited to, paints, topcoats, varnishes, sealers, stains, washcoats, basecoats, enamels, inks, and temporary protective coatings.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8830 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of the limits contained in Tables 4-59A through 4-59E. The VOC content limits are mass VOC per gallon of coating less water and exempt solvents and are based on low-VOC coatings. If more than one emission limitation in this subsection applies to a specific coating, then the least-stringent emission limitation shall be applied.

| TABLE 4-59A. METAL PARTS AND PRODUCTS VOC CONTENT LIMITS | | | | | | --- | --- | --- | --- | --- | | Coating Category | Air-dried Coating | Baked Coating | | | | kg VOC/l coating | lb VOC/gal coating | kg VOC/l coating | lb VOC/gal coating | | | General one component | 0.34 | 2.8 | 0.28 | 2.3 | | General multi-component | 0.34 | 2.8 | 0.28 | 2.3 | | Camouflage | 0.42 | 3.5 | 0.42 | 3.5 | | Electric-insulating varnish | 0.42 | 3.5 | 0.42 | 3.5 | | Etching filler | 0.42 | 3.5 | 0.42 | 3.5 | | Extreme high-gloss | 0.42 | 3.5 | 0.36 | 3.0 | | Extreme performance | 0.42 | 3.5 | 0.36 | 3.0 | | Heat-resistant | 0.42 | 3.5 | 0.36 | 3.0 | | High performance architectural | 0.74 | 6.2 | 0.74 | 6.2 | | High temperature | 0.42 | 3.5 | 0.42 | 3.5 | | Metallic | 0.42 | 3.5 | 0.42 | 3.5 | | Military specification | 0.34 | 2.8 | 0.28 | 2.3 | | Mold seal | 0.42 | 3.5 | 0.42 | 3.5 | | Pan-backing | 0.42 | 3.5 | 0.42 | 3.5 | | Prefabricated architectural multi-component | 0.42 | 3.5 | 0.28 | 2.3 | | Prefabricated architectural one-component | 0.42 | 3.5 | 0.28 | 2.3 | | Pretreatment coatings | 0.42 | 3.5 | 0.42 | 3.5 | | Repair and touch-up | 0.42 | 3.5 | 0.36 | 3.0 | | Silicone release | 0.42 | 3.5 | 0.42 | 3.5 | | Solar-absorbent | 0.42 | 3.5 | 0.36 | 3.0 | | Vacuum-metalizing | 0.42 | 3.5 | 0.42 | 3.5 | | Drum coating, new, exterior | 0.34 | 2.8 | 0.34 | 2.8 | | Drum coating, new, interior | 0.42 | 3.5 | 0.42 | 3.5 | | Drum coating, reconditioned, exterior | 0.42 | 3.5 | 0.42 | 3.5 | | Drum coating, reconditioned, interior | 0.50 | 4.2 | 0.50 | 4.2 |

| TABLE 4-59B. PLASTIC PARTS AND PRODUCTS VOC CONTENT LIMITS | | | | --- | --- | --- | | Coating Category | kg VOC/liter coating | lbs VOC/gal coating | | General one component | 0.28 | 2.3 | | General multi-component | 0.42 | 3.5 | | Electric dissipating and shock-free | 0.80 | 6.7 | | Extreme performance | 0.42 (2-pack coatings/multi-component) | 3.5 (2-pack coatings/multi-component) | | Metallic | 0.42 | 3.5 | | Military specification | 0.34 (1 pack/1 component) 0.42 (2 pack/multi-component) | 2.8 (1 pack/1 component) 3.5 (2 pack/multi-component) | | Mold seal | 0.76 | 6.3 | | Multi-colored | 0.68 | 5.7 | | Optical | 0.80 | 6.7 | | Vacuum-metalizing | 0.80 | 6.7 |

| TABLE 4-59C. AUTOMOTIVE/TRANSPORTATION AND BUSINESS MACHINE PLASTIC PARTS VOC CONTENT LIMITS | | | | --- | --- | --- | | Coating Category | kg VOC/liter coating | lbs VOC/gal coating | | Automotive/Transportation Coatings (For red, yellow, and black automotive coatings, except touch up and repair coatings, the recommended limit is determined by multiplying the appropriate limit in this table by 1.15.) | | | | I. High Bake Coatings - Interior and Exterior Parts | | | | Flexible | 0.54 | 4.5 | | Nonflexible | 0.42 | 3.5 | | Base coating | 0.52 | 4.3 | | Clear coating | 0.48 | 4.0 | | Non-basecoat/clear coat | 0.52 | 4.3 | | II. Low Bake/Air-dried Coatings - Exterior Parts | | | | Primers | 0.58 | 4.8 | | Base coating | 0.60 | 5.0 | | Clear coating | 0.54 | 4.5 | | Non-basecoat/clear coat | 0.60 | 5.0 | | III. Low Bake/Air-dried Coatings - Interior Parts | 0.60 | 5.0 | | IV. Touchup and Repair Coatings | 0.62 | 5.2 | | Business Machine Coatings | | | | I. Primers | 0.35 | 2.9 | | II. Topcoat | 0.35 | 2.9 | | III. Texture Coat | 0.35 | 2.9 | | IV. Fog Coat | 0.26 | 2.2 | | V. Touchup and Repair | 0.35 | 2.9 |

| TABLE 4-59D. PLEASURE CRAFT SURFACE COATING VOC CONTENT LIMITS | | | | --- | --- | --- | | Coating Category | kg VOC/liter coating | lbs VOC/gal coating | | Extreme high-gloss topcoat | 0.60 | 5.0 | | High gloss topcoat | 0.42 | 3.5 | | Pretreatment wash primers | 0.78 | 6.5 | | Finish primer/surfacer | 0.42 | 3.5 | | High build primer/surfacer | 0.34 | 2.8 | | Aluminum substrate antifoulant coating | 0.56 | 4.7 | | Antifouling sealer/tie coat | 0.42 | 3.5 | | Other substrate antifoulant coating | 0.33 | 2.8 | | All other pleasure craft surface coatings for metal or plastic | 0.42 | 3.5 |

| TABLE 4-59E. MOTOR VEHICLE MATERIALS VOC CONTENT LIMITS | | | | --- | --- | --- | | Coating Category | kg VOC/liter coating | lbs VOC/gal coating | | Motor vehicle cavity wax | 0.65 | 5.4 | | Motor vehicle sealer | 0.65 | 5.4 | | Motor vehicle deadener | 0.65 | 5.4 | | Motor vehicle gasket/gasket sealing material | 0.20 | 1.7 | | Motor vehicle underbody coating | 0.65 | 5.4 | | Motor vehicle trunk interior coating | 0.65 | 5.4 | | Motor vehicle bedliner | 0.20 | 1.7 | | Motor vehicle lubricating wax/compound | 0.70 | 5.8 |

B. No owner or other person shall cause or permit the discharge into the atmosphere from a coating application system any volatile organic compound in excess of the limits contained in Tables 4-59F through 4-59I. The emission rate limits are based on low-VOC coatings and add-on controls on a VOC per volume solids basis. If more than one emission limitation in this subsection applies to a specific coating, then the least stringent emission limitation shall be applied.

| TABLE 4-59F. METAL PARTS AND PRODUCTS VOC EMISSION RATE LIMITS (VOC PER VOLUME SOLIDS) | | | | | | --- | --- | --- | --- | --- | | Coating Category | Air-dried | Baked | | | | kg VOC/l solids | lb VOC/gal solids | Kg VOC/l solids | lb VOC/gal solids | | | General one component | 0.54 | 4.52 | 0.40 | 3.35 | | General multi-component | 0.54 | 4.52 | 0.40 | 3.35 | | Camouflage | 0.80 | 6.67 | 0.80 | 6.67 | | Electric-insulating varnish | 0.80 | 6.67 | 0.80 | 6.67 | | Etching filler | 0.80 | 6.67 | 0.80 | 6.67 | | Extreme high-gloss | 0.80 | 6.67 | 0.61 | 5.06 | | Extreme performance | 0.80 | 6.67 | 0.61 | 5.06 | | Heat-resistant | 0.80 | 6.67 | 0.61 | 5.06 | | High performance architectural | 4.56 | 38.0 | 4.56 | 38.0 | | High temperature | 0.80 | 6.67 | 0.80 | 6.67 | | Metallic | 0.80 | 6.67 | 0.80 | 6.67 | | Military specification | 0.54 | 4.52 | 0.40 | 3.35 | | Mold-seal | 0.80 | 6.67 | 0.80 | 6.67 | | Pan-backing | 0.80 | 6.67 | 0.80 | 6.67 | | Prefabricated architectural multi-component | 0.80 | 6.67 | 0.40 | 3.35 | | Prefabricated architectural one-component | 0.80 | 6.67 | 0.40 | 3.35 | | Pretreatment coatings | 0.80 | 6.67 | 0.80 | 6.67 | | Silicone release 0.80 | 0.80 | 6.67 | 0.80 | 6.67 | | Solar-absorbent | 0.80 | 6.67 | 0.61 | 5.06 | | Vacuum-metalizing | 0.80 | 6.67 | 0.80 | 6.67 | | Drum coating, new, exterior | 0.54 | 4.52 | 0.54 | 4.52 | | Drum coating, new, interior | 0.80 | 6.67 | 0.80 | 6.67 | | Drum coating, reconditioned, exterior | 0.80 | 6.67 | 0.80 | 6.67 | | Drum coating, reconditioned, interior | 1.17 | 9.78 | 1.17 | 9.78 |

| TABLE 4-59G. PLASTIC PARTS AND PRODUCTS VOC EMISSION RATE LIMITS (VOC PER VOLUME SOLIDS) | | | | --- | --- | --- | | Coating Category | kg VOC/liter solids | lbs VOC/gal solids | | General one component | 0.40 | 3.35 | | General multi-component | 0.80 | 6.67 | | Electric dissipating coatings and shock-free | 8.96 | 74.7 | | Extreme performance | 0.80 (2-pack coatings/multi-component) | 6.67 (2-pack coatings/multi-component) | | Metallic | 0.80 | 6.67 | | Military specification | 0.54 (1 pack/1 component) 0.80 (2 pack/multi-component | 4.52 (1 pack/1 component) 6.67 (2 pack/multi-component) | | Mold seal | 5.24 | 43.7 | | Multi-colored | 3.04 | 25.3 | | Optical | 8.96 | 74.7 | | Vacuum-metalizing | 8.96 | 74.7 |

| TABLE 4-59H. AUTOMOTIVE/TRANSPORTATION AND BUSINESS MACHINE PLASTIC PARTS VOC EMISSION RATE LIMITS (VOC PER VOLUME SOLIDS) | | | | --- | --- | --- | | Coating Category | kg VOC/liter solids | lbs VOC/gal solids | | Automotive/Transportation Coatings (For red, yellow, and black automotive coatings, except touch up and repair coatings, the recommended limit is determined by multiplying the appropriate limit in this table by 1.15.) | | | | I. High Bake Coatings - Interior and Exterior Parts | | | | Flexible primer | 1.39 | 11.58 | | Nonflexible primer | 0.80 | 6.67 | | Base coats | 1.24 | 10.34 | | Clear coat | 1.05 | 8.76 | | Non-basecoat/clear coat | 1.24 | 10.34 | | II. Low Bake/Air-dried Coatings - Exterior Parts | | | | Primers | 1.66 | 13.80 | | Basecoat | 1.87 | 15.59 | | Clear coat | 1.39 | 11.58 | | Non-basecoat/clear coat | 1.87 | 15.59 | | III. Low Bake/Air-dried Coatings - Interior Parts | 1.87 | 15.59 | | IV. Touchup and Repair Coatings | 2.13 | 17.72 | | Business Machine Coatings | | | | I. Primers | 0.57 | 4.80 | | II. Topcoat | 0.57 | 4.80 | | III. Texture Coat | 0.57 | 4.80 | | IV. Fog Coat | 0.38 | 3.14 | | V. Touchup and Repair | 0.57 | 4.80 |

| TABLE 4-59I. PLEASURE CRAFT SURFACE COATING VOC EMISSION RATE LIMITS (VOC PER VOLUME SOLIDS) | | | | --- | --- | --- | | Coating Category | kg VOC/liter solids | lbs VOC/gal solids | | Extreme high-gloss topcoat | 1.88 | 15.6 | | High gloss topcoat | 0.80 | 6.7 | | Pretreatment wash primer | 6.67 | 55.6 | | Finish primer/surfacer | 0.80 | 6.7 | | High build primer surfacer | 0.55 | 4.6 | | Aluminum substrate antifoulant coating | 1.53 | 12.8 | | Antifouling sealer/tie coat | 0.8 | 6.7 | | Other substrate antifoulant coating | 0.53 | 4.4 | | All other pleasure craft surface coatings for metal or plastic | 0.80 | 6.7 |

C. Should product performance requirements or other needs dictate the use of higher-VOC materials than those that would meet the emission limits of subsections A and B of this section, an affected facility may opt to use add-on control equipment with an overall control efficiency of 90% in lieu of using low-VOC coatings and required application methods in subsection E of this section. Add-on devices include but are not limited to oxidizers, adsorbers, absorbers, and concentrators. Add-on devices coupled with capture systems to collect the VOC being released at the affected facilities shall achieve an overall control efficiency of no less than 90%.

D. In addition to the emissions limitations described in subsections A, B, and C of this section, the following work practices for storage, mixing operations, and handling operations for coatings, thinners, and coating-related waste materials shall be utilized:

1. All VOC-containing coatings, thinners, and coating-related waste materials shall be stored in closed containers.

2. Mixing and storage containers used for VOC-containing coatings, thinners, and coating-related waste materials shall be kept closed at all times except when depositing or removing these materials.

3. Spills of VOC-containing coatings, thinners, and coating-related waste materials shall be minimized.

4. VOC-containing coatings, thinners, and coating-related waste materials shall be conveyed from one location to another in closed containers or pipes.

E. In addition to the work practices described in subsection D of this section, the following work practices for cleaning materials, used to clean surfaces before coating (surface preparation) and to clean application equipment between coating jobs, shall be utilized:

1. All VOC-containing cleaning materials and used shop towels shall be stored in closed containers.

2. Storage containers used for VOC-containing cleaning materials shall be kept closed at all times except when depositing or removing these materials.

3. Spills of VOC-containing cleaning materials shall be minimized.

4. VOC-containing cleaning materials shall be conveyed from one location to another in closed containers or pipes.

5. VOC emissions from cleaning of application, storage, mixing, and conveying equipment shall be minimized by ensuring that equipment cleaning is performed without atomizing the cleaning solvent and all spent solvent is captured in closed containers.

F. One or more of the following application techniques shall be used to apply any finish material listed in Tables 4-59A through 4-59I:

1. Flow/curtain coating;

2. Dip coating;

3. Roller coating;

4. Brush coating;

5. Electrodeposition coating;

6. High volume low pressure (HVLP) spraying;

7. Electrostatic spray;

8. Airless spray;

9. Air-assisted airless spray; or

10. Other coating application methods that achieve emission reductions equivalent to or greater than those achieved by HVLP or electrostatic spray application methods.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8840 Standard for visible emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8850 Standard for fugitive dust/emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8860 Standard for odor

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8870 Standard for toxic pollutants

The provisions of Article 4 (9VAC5-60-200 et seq.) of 9VAC5-60 (Hazardous Air Pollutant Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8880 Compliance

A. The provisions of 9VAC5-40-20 (Compliance) apply.

B. Compliance may be demonstrated (i) on a mass VOC per gallon of coating less water and exempt solvents basis under 9VAC5-40-8830 A, (ii) on a mass VOC per volume of solids basis under 9VAC5-40-8830 B, or (iii) the overall control basis under 9VAC5-40-8830 C.

C. The emission standards in 9VAC5-40-8830 A and 9VAC5-40-8830 B apply coating by coating or to the volume weighted average of coatings where the coatings are used on a single coating application system and the coatings are the same type or perform the same function. Such averaging shall not exceed 24 hours.

D. Compliance determinations for control technologies not based on compliant coatings (i.e., coating formulation alone) shall be based on the applicable emission standards in 9VAC5-40-8830 B and the procedures of 9VAC5-20-121.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8890 Compliance schedule

The owner shall comply with the provisions of this article as expeditiously as possible but in no case later than February 1, 2017.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8900 Test methods and procedures

The provisions of 9VAC5-40-30 (Emission testing) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8910 Monitoring

The provisions of 9VAC5-40-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8920 Notification, records, and reporting

The provisions of 9VAC5-40-50 (Notification, records and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8930 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-8940 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

Article 60 Emissions Guidelines for Existing Crude Oil and Natural Gas Facilities (Rule 4-60)

9VAC5-40-8950 Permits

A permit may be required prior to beginning any of the activities specified in this section and the provisions of 9VAC5-50 (New and Modified Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) may apply. Owners contemplating such action should contact the appropriate regional office for guidance.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (re-startup) of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the federal Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 7, eff. February 1, 2016.

9VAC5-40-9000 Applicability and designation of affected facility

A. The affected facility to which the provisions of this article apply is each designated facility in the crude oil and natural gas source category that commenced construction, modification, or reconstruction on or before December 6, 2022.

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

C. An affected facility is not subject to the requirement to obtain a federal operating permit, unless the facility is otherwise subject to federal operating permit requirements.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 111(d) of the federal Clean Air Act; 40 CFR Part 60.
• Historical Notes: Derived from Virginia Register Volume 42, Issue 22, eff. July 15, 2026.

9VAC5-40-9010 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms shall have the meanings given them in 40 CFR 60.5430c, except for the following:

"Administrator" means the board, except when context otherwise clearly indicates that the "administrator" is the Administrator of the EPA.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 111(d) of the federal Clean Air Act; 40 CFR Part 60.
• Historical Notes: Derived from Virginia Register Volume 42, Issue 22, eff. July 15, 2026.

9VAC5-40-9020 Designated standards of performance

The owner of each affected facility shall meet EPA greenhouse gas standards in the form of a limitation on emissions of methane in accordance with the provisions of 40 CFR 60.5379c through 40 CFR 60.5430c.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 111(d) of the federal Clean Air Act; 40 CFR Part 60.
• Historical Notes: Derived from Virginia Register Volume 42, Issue 22, eff. July 15, 2026.

9VAC5-40-9030 Compliance schedule

All affected units shall achieve final compliance as expeditiously as practicable but not later than March 9, 2029.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 111(d) of the federal Clean Air Act; 40 CFR Part 60.
• Historical Notes: Derived from Virginia Register Volume 42, Issue 22, eff. July 15, 2026.

9VAC5-40-9040 Documents incorporated by reference

The U.S. Environmental Protection Agency regulation promulgated at Subpart OOOOc of 40 CFR Part 60 (Emissions Guidelines for Greenhouse Gas Emissions from Existing Crude Oil and Natural Gas Facilities) is incorporated by reference into this article. The specific version of the provisions incorporated by reference into Article 60 (9VAC5-9000 et seq.) of 9VAC5-40 shall be that contained in the CFR in effect on July 1, 2024. The following documents from the EPA are incorporated by reference into this article:

Model Rule - Increments of Progress

§ 60.5379c What are my requirements for meeting increments of progress and achieving final compliance?

§ 60.5380c What if I do not meet the final control plan increment of progress compliance date?

§ 60.5381c How do I comply with the increment of progress for submittal of a final compliance control plan?

Model Rule - Applicability

§ 60.5385c What is the purpose of this subpart?

§ 60.5386c Am I subject to this subpart?

§ 60.5387c When must I comply with this subpart?

Model Rule - Emission and Work Practice Standards

§ 60.5390c What GHG standards apply to gas well liquids unloading operations at well designated facilities?

§ 60.5391c What GHG standards apply to associated gas wells at well designated facilities?

§ 60.5392c What GHG standards apply to centrifugal compressor designated facilities?

§ 60.5393c What GHG standards apply to reciprocating compressor designated facilities?

§ 60.5394c What GHG standards apply to process controller designated facilities?

§ 60.5395c What GHG standards apply to pump designated facilities?

§ 60.5396c What GHG standards apply to storage vessel designated facilities?

§ 60.5397c What GHG standards apply to fugitive emissions components designated facilities?

§ 60.5398c What alternative GHG standards apply to fugitive emissions components designated facilities and what inspection and monitoring requirements apply to covers and closed vent systems when using an alternative technology?

§ 60.5400c What GHG standards apply to process unit equipment designated facilities?

§ 60.5401c What are the alternative GHG standards for process unit equipment designated facilities?

§ 60.5402c What are the exceptions to the GHG standards for process unit equipment designated facilities?

Model Rule - Test Methods and Performance Testing

§ 60.5405c What test methods and procedures must I use for my centrifugal compressor and reciprocating compressor designated facilities?

§ 60.5406c What test methods and procedures must I use for my process unit equipment designated facilities?

Model Rule - Initial Compliance Requirements

§ 60.5410c How do I demonstrate initial compliance with the standards for each of my designated facilities?

§ 60.5411c What additional requirements must I meet to determine initial compliance for my covers and closed vent systems?

§ 60.5412c What additional requirements must I meet for determining initial compliance of my control devices?

§ 60.5413c What are the performance testing procedures for control devices?

Model Rule - Continuous Compliance Requirements

§ 60.5415c How do I demonstrate continuous compliance with the standards for each of my designated facilities?

§ 60.5416c What are the initial and continuous cover and closed vent system inspection and monitoring requirements?

§ 60.5417c What are the continuous monitoring requirements for my control devices?

Model Rule - Recordkeeping and Reporting

§ 60.5420c What are my notification, reporting, and recordkeeping requirements?

§ 60.5421c What are my additional recordkeeping requirements for process unit equipment designated facilities?

§ 60.5422c What are my additional reporting requirements for process unit equipment designated facilities?

§ 60.5424c What are my additional recordkeeping and reporting requirements if I comply with the alternative GHG standards for fugitive emissions components designated facilities and covers and closed vent systems?

§ 60.5425c What parts of the General Provisions apply to me?

Model Rule - Definitions

§ 60.5430c What definitions apply to this subpart?

§§ 60.5431c-60.5439c [Reserved]

Tables

Table 1 to Subpart OOOOc of Part 60 - Designated Facility Presumptive Standards and Regulated Entity Compliance Dates

Table 2 to Subpart OOOOc of Part 60 - Alternative Technology Periodic Screening Frequency at Well Sites, Centralized Production Facilities, and Compressor Stations Subject to AVO Inspections With Quarterly OGI or EPA Method 21 Monitoring

Table 3 to Subpart OOOOc of Part 60 - Alternative Technology Periodic Screening Frequency at Well Sites and Centralized Production Facilities Subject to AVO Inspections and/or Semiannual OGI or EPA Method 21 Monitoring

Table 4 to Subpart OOOOc of Part 60 - Applicability of General Provisions to Subpart OOOOc

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 111(d) of the federal Clean Air Act; 40 CFR Part 60.
• Historical Notes: Derived from Virginia Register Volume 42, Issue 22, eff. July 15, 2026.

Chapter 45 Consumer and Commercial Products

Part I Special Provisions

9VAC5-45-10 Applicability

A. The provisions of this chapter, unless specified otherwise, shall apply to:

1. Any product for which an emission standard or other requirement is prescribed under this chapter; and

2. Any owner or other person that engages in or permits an operation that is subject to the provisions of this chapter. Such operations may include the manufacture, packaging, distribution, marketing, application, sale or use, or contracting for the application, sale, or use of the products specified in subdivision 1 of this subsection.

B. The provisions set forth in subdivisions 1 through 6 of this subsection, unless specified otherwise, shall not apply to any product or operation for which emission standards are prescribed under this chapter.

1. The provisions of 9VAC5-20-160 (Registration).

2. The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction).

3. The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) and Article 1 (9VAC5-50-60 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources).

4. The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) and Article 2 (9VAC5-50-130 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources).

5. The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) and Article 5 (9VAC5-60-300 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

6. The provisions of Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources).

C. Nothing in this chapter shall be interpreted to exempt a stationary source from any provision of 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), 9VAC5-60 (Hazardous Air Pollutant Sources) or 9VAC5-80 (Permits for Stationary Sources) that may apply.

D. Any owner or other person subject to the provisions of this chapter may provide any report, notification, or other document by electronic media if acceptable to both the owner and board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-45-20 Compliance

A. Unless otherwise specified in this chapter, no owner or other person shall engage in or permit any applicable operation (such as the manufacture, packaging, distribution, marketing, application, sale or use, or contracting for the application, sale or use, of any product) in violation of a standard prescribed under this chapter after the effective date of such standard.

1. Compliance with standards in this chapter, other than opacity standards, shall be determined by emission tests established by 9VAC5-45-30, unless specified otherwise in the applicable standard.

2. Compliance with federal requirements in this chapter may be determined by alternative or equivalent methods only if approved by the administrator. For purposes of this subsection, federal requirements consist of the following:

a. New source performance standards established pursuant to § 111 of the federal Clean Air Act.

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

c. Limitations and conditions that are part of an implementation plan.

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

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

f. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

3. Compliance with opacity standards in this chapter shall be determined by conducting observations in accordance with Reference Method 9 or any alternative method. For purposes of determining initial compliance, the minimum total time of observations shall be three hours (30 six-minute averages) for the emission test or other set of observations (meaning those fugitive-type emission sources subject only to an opacity standard). Opacity readings of portions of plumes that contain condensed, uncombined water vapor shall not be used for purposes of determining compliance with opacity standards.

4. The opacity standards prescribed under this chapter shall apply at all times except during periods of startup, shutdown, malfunction, and as otherwise provided in the applicable standard. This exception shall not apply to the following federal requirements:

a. Limitations and conditions that are part of an implementation plan.

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

c. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

B. No owner or other person subject to the provisions of this chapter shall fail to conduct emission tests as required under this chapter.

C. No owner or other person subject to the provisions of this chapter shall fail to install, calibrate, maintain, and operate equipment for continuously monitoring and recording emissions or process parameters or both as required under this chapter.

D. No owner or other person subject to the provisions of this chapter shall fail to provide notifications and reports, revise reports, maintain records, or report emission test or monitoring results as required under this chapter.

E. At all times, including periods of startup, shutdown, soot blowing and malfunction, owners shall, to the extent practicable, maintain and operate any equipment associated with an operation subject to the provisions of this chapter including associated air pollution control equipment in a manner consistent with air pollution control practices for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the board, which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the operation.

F. At all times the disposal of volatile organic compounds shall be accomplished by taking measures, to the extent practicable, consistent with air pollution control practices for minimizing emissions. Volatile organic compounds shall not be intentionally spilled, discarded in sewers that are not connected to a treatment plant, or stored in open containers or handled in any other manner that would result in evaporation beyond that consistent with air pollution control practices for minimizing emissions.

G. For the purpose of submitting compliance certifications or establishing whether or not an owner or other person has violated or is in violation of any standard in this chapter, nothing in this chapter shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate emission or compliance test or procedure had been performed.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-30 Emission testing

A. Emission tests for operations and products subject to standards prescribed under this chapter shall be conducted and reported, and data shall be reduced as set forth in this chapter and in the appropriate reference methods unless the board (i) specifies or approves, in specific cases, the use of a reference method with minor changes in methodology; (ii) approves the use of an equivalent method; (iii) approves the use of an alternative method the results of which the board has determined to be adequate for indicating whether such operation or product is in compliance; (iv) waives the requirement for emission tests because the owner or other person has demonstrated by other means to the board's satisfaction that such operation or product is in compliance with the standard; or (v) approves shorter sampling times and smaller sample volumes when necessitated by process variables or other factors. In cases where no appropriate reference method exists for an operation or product subject to an emission standard for volatile organic compounds, the applicable test method in 9VAC5-20-121 may be considered appropriate.

B. Emission testing for operations and products subject to standards prescribed under this chapter shall be subject to testing guidelines approved by the board. Procedures may be adjusted or changed by the board to suit specific sampling conditions or needs based upon good practice, judgment, and experience. When such tests are adjusted, consideration shall be given to the effect of such change on established emission standards. Tests shall be performed under the direction of persons whose qualifications are acceptable to the board.

C. Emission tests for operations and products subject to standards prescribed under this chapter shall be conducted under conditions that the board shall specify to the owner, based on representative performance of such operation or product. The owner shall make available to the board such records as may be necessary to determine the conditions of the emission tests. Operations during periods of startup, shutdown, and malfunction shall not constitute representative conditions for the purpose of an emission test unless otherwise specified in the applicable standard.

D. An owner may request that the board determine the opacity of emissions from operations or control devices that are subject to the provisions of this chapter during the emission tests required by this section.

E. Except as otherwise specified in the applicable test method or procedure, each emission test for an operation or product subject to standards prescribed under this chapter shall consist of three separate runs using the applicable test method. Each run shall be conducted for the time and under the conditions acceptable to the board. For the purpose of determining compliance with an applicable standard, the arithmetic mean of the results of the three runs shall apply. In the event that a sample is accidentally lost, or if conditions occur in which one of the three runs must be discontinued because of forced shutdown, failure of an irreplaceable portion of the sample train, extreme meteorological conditions, or other circumstances beyond the owner's control, compliance may, upon the approval of the board, be determined using the arithmetic mean of the results of the two other runs.

F. The board may test emissions of volatile organic compounds from any operation or product subject to standards prescribed under this chapter. Upon request of the board the owner shall provide, or cause to be provided, emission testing facilities as follows:

1. Sampling ports adequate for test methods applicable to such source. This includes (i) constructing the air pollution control system such that volumetric flow rates and pollutant emission rates can be accurately determined by applicable test methods and procedures and (ii) providing a stack or duct with acceptable flow characteristics during emission tests, as demonstrated by applicable test methods and procedures.

2. Safe sampling platforms.

3. Safe access to sampling platforms.

4. Utilities for sampling and testing equipment.

5. Test enclosures for determining capture efficiency.

G. The board may, at its discretion, accept other demonstrations of compliance in lieu of emission testing, such as the results of manufacturer emission testing of a product batch or manufacturer product batch formulation records.

H. Upon request of the board, any owner or other person causing or permitting any operation subject to the provisions of this chapter shall conduct emission tests in accordance with procedures approved by the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-40 Monitoring

A. Unless otherwise approved by the board, owners or other persons subject the provisions of an standard under this chapter shall install, calibrate, maintain, and operate systems for continuously monitoring and recording emissions of specified pollutants as specified in the applicable article of this chapter. However, nothing in this chapter shall exempt any owner from complying with subsection F of this section.

B. All continuous monitoring systems and monitoring devices shall be installed and operational prior to conducting emission tests required under 9VAC5-45-30. Verification of operational status shall, as a minimum, include completion of the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device and completion of any conditioning period specified by the appropriate specification in Appendix B of 40 CFR Part 60.

C. During any emissions tests required under 9VAC5-45-30 or within 30 days thereafter and at such other times as may be requested by the board, the owner or other person subject to the requirements of subsection A of this section shall conduct continuous monitoring system performance evaluations and furnish the board within 60 days of them two or, upon request, more copies of a written report of the results of such tests. These continuous monitoring system performance evaluations shall be conducted in accordance with the requirements and procedures specified in the applicable emission standard, the requirements contained in applicable procedures in 9VAC5-20-121, and the requirements and procedures equivalent to those contained in the appropriate specification of Appendix B of 40 CFR Part 60.

D. Unless otherwise approved by the board, all continuous monitoring systems required by subsection A of this section shall be installed, calibrated, maintained, and operated in accordance with (i) applicable requirements in this section, (ii) requirements in the applicable emission standard, and (iii) requirements equivalent to those in 40 CFR 60.13.

E. After receipt and consideration of written application, the board may approve alternatives to any monitoring procedures or requirements of this chapter including, but not limited to, the following:

1. Alternative monitoring requirements when installation of a continuous monitoring system or monitoring device specified by this chapter would not provide accurate measurements due to liquid water or other interferences caused by substances within the effluent gases.

2. Alternative monitoring requirements when the source is infrequently operated.

3. Alternative monitoring requirements to accommodate continuous monitoring systems that require additional measurements to correct for stack moisture conditions.

4. Alternative locations for installing continuous monitoring systems or monitoring devices when the owner can demonstrate the installation at alternate locations will enable accurate and representative measurements.

5. Alternative methods of converting pollutant concentration measurements to units of the standards.

6. Alternative procedures for computing emission averages that do not require integration of data (e.g., some facilities may demonstrate that the variability of their emissions is sufficiently small to allow accurate reduction of data based upon computing averages from equally spaced data points over the averaging period).

7. Alternative monitoring requirements when the effluent from a single source or the combined effluent from two or more sources are released to the atmosphere through more than one point.

8. Alternative procedures for performing calibration checks.

9. Alternative monitoring requirements when the requirements of this section would impose an extreme economic burden on the owner.

10. Alternative monitoring requirements when the continuous monitoring systems cannot be installed due to physical limitations at the source.

F. Upon request of the board, the owner or other person subject to the provisions of this chapter shall install, calibrate, maintain, and operate equipment for continuously monitoring and recording emissions or process parameters or both in accordance with methods and procedures acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-50 Notification, records and reporting

A. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 C shall provide written notifications to the board of the following:

1. The date upon which demonstration of the continuous monitoring system performance begins in accordance with 9VAC5-45-40 C. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

2. The date of any emission test the owner wishes the board to consider in determining compliance with a standard. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

3. The anticipated date for conducting the opacity observations required by 9VAC5-45-20 A 3. The notification shall also include, if appropriate, a request for the board to provide a visible emissions reader during an emission test. The notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

B. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 A shall maintain records of the occurrence and duration of any startup, shutdown, or malfunction of the operation subject to the provisions of an article under this chapter; any malfunction of the air pollution control equipment; or any periods during which a continuous monitoring system or monitoring device is inoperative.

C. Each owner or other person required to install a continuous monitoring system (CMS) or monitoring device shall submit a written report of excess emissions (as defined in the applicable emission standard) and either a monitoring systems performance report or a summary report form, or both, to the board semiannually, except when (i) more frequent reporting is specifically required by an applicable emission standard or the CMS data are to be used directly for compliance determination, in which case quarterly reports shall be submitted; or (ii) the board, on a case-by-case basis, determines that more frequent reporting is necessary to accurately assess the compliance status of the source. The summary report and form shall meet the requirements of 40 CFR 60.7(d). The frequency of reporting requirements may be reduced as provided in 40 CFR 60.7(e). All reports shall be postmarked or submitted electronically by the 30th day following the end of each calendar half (or quarter, as appropriate). Written reports of excess emissions shall include the following information:

1. The magnitude of excess emissions computed in accordance with 9VAC5-40-41 B 6, any conversion factors used, and the date and time of commencement and completion of each period of excess emissions.

2. The process operating time during the reporting period.

3. Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the source.

4. The nature and cause of any malfunction (if known), the corrective action taken or preventative measures adopted.

5. The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks and the nature of the system repairs or adjustments.

6. When no excess emissions have occurred or the continuous monitoring systems have not been inoperative, repaired, or adjusted, such information shall be stated in the report.

D. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 or monitoring requirements of an article under this chapter shall maintain a file of all measurements, including continuous monitoring system, monitoring device, and emission testing measurements; all continuous monitoring system performance evaluations; all continuous monitoring system or monitoring device calibration checks; adjustments and maintenance performed on these systems or devices; and all other information required by this chapter recorded in a permanent form suitable for inspection. The file shall be retained for at least two years (unless a longer period is specified in the applicable standard) following the date of such measurements, maintenance, reports, and records.

E. Any data or information required by the Regulations for the Control and Abatement of Air Pollution, any permit or order of the board, or that the owner wishes the board to consider, to determine compliance with an emission standard shall be recorded or maintained in a timeframe consistent with the averaging period of the standard.

F. Any owner or other person that is subject to the provisions of this chapter shall keep records as may be necessary to determine its emissions. Any owner or other person claiming that an operation or product is exempt from the provisions of the Regulations for the Control and Abatement of Air Pollution shall keep records as may be necessary to demonstrate to the satisfaction of the board its continued exempt status.

G. Unless otherwise specified by the provisions of an article under this chapter, all records required to determine compliance with the provisions of an article under this chapter shall be maintained by the owner or other person subject to such provision for two years from the date such record is created and shall be made available to the board upon request.

H. Upon request of the board, the owner or other person subject to the provisions of this chapter shall provide notifications and report, revise reports, maintain records, or report emission test or monitoring results in a manner and form and using procedures acceptable to board.

I. Information submitted to the board to meet the requirements of this chapter shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

Article 1 Emission Standards for Portable Fuel Containers and Spouts Manufactured before August 1, 2010

9VAC5-45-60 Applicability

Article 1 Emission Standards for Portable Fuel Containers and Spouts Manufactured before August 1, 2010

A. Except as provided in 9VAC5-45-70, the provisions of this article apply to any portable fuel container or spout manufactured before August 1, 2010. The provisions of Article 2 (9VAC5-45-160 et seq.) of this part apply to portable fuel containers and spouts manufactured on or after August 1, 2010.

B. Except as provided in 9VAC5-45-70, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale, or manufactures for sale portable fuel containers or spouts.

C. The provisions of this article apply only to owners and other persons in the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-70 Exemptions

A. The provisions of this article do not apply to any portable fuel container or spout manufactured for shipment, sale, and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60.

B. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale a portable fuel container or spout that does not comply with the emission standards specified in 9VAC5-45-90, as long as the manufacturer or distributor can demonstrate that: (i) the portable fuel container or spout is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60 C; and (ii) the manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout is not distributed within the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60 C. This subsection does not apply to portable fuel containers or spouts that are sold, supplied, or offered for sale to retail outlets.

C. The provisions of this article do not apply to safety cans meeting the requirements of 29 CFR Part 1926 Subpart F.

D. The provisions of this article do not apply to portable fuel containers with a nominal capacity less than or equal to one quart.

E. The provisions of this article do not apply to rapid refueling devices with nominal capacities greater than or equal to four gallons, provided (i) such devices are designed for use in officially sanctioned off-highway motor sports such as car racing or motorcycle competitions, and (ii) such devices either create a leak-proof seal against a stock target fuel tank, or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank.

F. The provisions of this article do not apply to portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine.

G. The provisions of this article do not apply to closed-system portable fuel containers that are used exclusively for fueling remote control model airplanes.

H. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-80 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"ASTM" means the American Society for Testing and Materials.

"CARB" means California Air Resources Board.

"Consumer" means any person who purchases or otherwise acquires a new portable fuel container or spout for personal, family, household, or institutional use. Persons acquiring a portable fuel container or spout for resale are not "consumers" for that product.

"Distributor" means any person to whom a portable fuel container or spout is sold or supplied for the purpose of resale or distribution in commerce. This term does not include manufacturers, retailers, and consumers.

"Fuel" means all motor fuels subject to any provision of Chapter 12 (§ 59.1-149 et seq.) of Title 59.1 of the Code of Virginia, excluding liquefied petroleum gas, compressed natural gas, and hydrogen. This term includes, but is not limited to, gasoline, diesel fuel, and gasoline-alcohol blends.

"Manufacturer" means any person who imports, manufactures, assembles, produces, packages, repackages, or re-labels a portable fuel container or spout.

"Nominal capacity" means the volume indicated by the manufacturer that represents the maximum recommended filling level.

"Outboard engine" means a spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.

"Permeation" means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

"Portable fuel container" means any container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed, used, sold, advertised for sale, or offered for sale for receiving, transporting, storing, and dispensing fuel. Portable fuel containers do not include containers or vessels permanently embossed or permanently labeled as described in 49 CFR 172.407(a) with language indicating that the containers or vessels are solely intended for use with nonfuel products.

"Retail outlet" means any establishment at which portable fuel containers or spouts are sold, supplied, or offered for sale.

"Retailer" means any person who owns, leases, operates, controls, or supervises a retail outlet.

"Spill-proof spout" means any spout that complies with the standards specified in 9VAC5-45-90 B and the administrative requirements in 9VAC5-45-100.

"Spill-proof system" means any configuration of portable fuel container and firmly attached spout that complies with the standards in 9VAC5-45-90 A and the administrative requirements in 9VAC5-45-100.

"Spout" means any device that can be firmly attached to a portable fuel container and through which the contents of the container may be poured. A spout does not include a device that can be used to lengthen the spout to accommodate necessary applications.

"Target fuel tank" means any receptacle that receives fuel from a portable fuel container.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-90 Standard for volatile organic compounds

A. No owner or other person shall sell, supply, offer for sale, or manufacture for sale any portable fuel container after the compliance dates specified in 9VAC5-45-120 A unless that portable fuel container meets all of the following standards for spill-proof systems:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Has only one opening for both filling and pouring.

4. Does not exceed a permeation rate of 0.4 grams per gallon per day.

5. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

B. No owner or other person shall sell, supply, offer for sale, or manufacture for sale any spout after the compliance dates specified in 9VAC5-45-120 unless that spout meets all of the following standards for spill-proof spouts:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

C. The test procedures for determining compliance with the standards in this section are set forth in 9VAC5-45-130. The manufacturer of portable fuel containers or spouts shall perform the tests for determining compliance as set forth in 9VAC5-45-130 to show that its product meets the standards of this section prior to allowing the product to be offered for sale. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale and shall make those test results available within 60 days of request.

D. Compliance with the standards in this section does not exempt spill-proof systems or spill-proof spouts from compliance with other applicable federal and state statutes and regulations such as state fire codes, safety codes, and other safety regulations, nor will the board test for or determine compliance with such other statutes or regulations.

E. The following provisions apply to sell through of portable fuel containers and spouts manufactured before August 1, 2010:

1. Notwithstanding the provisions of subsections A and B of this section, a portable fuel container or spout manufactured before the applicable compliance date specified in 9VAC5-45-120 A may be sold, supplied, or offered for sale after the applicable compliance date, if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the portable fuel container or spout.

2. Notwithstanding the provisions of subsections A and B of this section, a portable fuel container or spout manufactured after the applicable compliance date specified in 9VAC5-45-120 A and before August 1, 2010, may be sold, supplied, or offered for sale on or after August 1, 2010, if it complies with all of the provisions of Article 2 (9VAC5-45-160 et seq.) of this part.

3. Except as provided in subdivisions 1 and 2 of this subsection, displaying the date of manufacture, or a code indicating the date of manufacture, on the product container or package does not exempt the owner or product from the provisions of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-100 Administrative requirements

A. Each manufacturer of a portable fuel container subject to and complying with 9VAC5-45-90 A shall clearly display on each spill-proof system:

1. The phrase "Spill-Proof System";

2. A date of manufacture or representative date code; and

3. A representative code identifying the portable fuel container as subject to and complying with 9VAC5-45-90 A.

B. Each manufacturer of a spout subject to and complying with 9VAC5-45-90 B shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:

1. The phrase "Spill-Proof Spout";

2. A date of manufacture or representative date code; and

3. A representative code identifying the spout as subject to and complying with 9VAC5-45-90 B.

C. Each manufacturer subject to subsection A or B shall file an explanation of both the date code and representative code with the board no later than the later of three months after the effective date of this article or within three months of production, and within three months after any change in coding.

D. Each manufacturer of a spout subject to subsection B of this section shall clearly display the make, model number, and size of those portable fuel containers the spout is designed to accommodate and for which the manufacturer can demonstrate the container's compliance with 9VAC5-45-90 on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto.

E. Manufacturers of portable fuel containers not subject to or not in compliance with 9VAC5-45-90 may not display the phrase "Spill-Proof System" or "Spill-Proof Spout" on the portable fuel container or spout or on any sticker or label affixed thereto or on any accompanying package.

F. Each manufacturer of a portable fuel container or spout subject to and complying with 9VAC5-45-90 that due to its design or other features cannot be used to refuel on-road motor vehicles shall clearly display the phrase "Not Intended For Refueling On-Road Motor Vehicles" in type of 34 point or greater on each of the following:

1. For a portable fuel container sold as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

2. For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-110 Compliance

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-120 Compliance schedules

A. Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area; or

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area.

B. Any owner or other person who cannot comply with the provisions of this article by the date specified in subsection A of this section, due to extraordinary reasons beyond that person's reasonable control, may apply in writing to the board for a waiver. The waiver application shall set forth:

1. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

2. The proposed date by which compliance with the provisions of this article will be achieved; and

3. A compliance report detailing the methods by which compliance will be achieved.

C. No waiver may be granted unless all of the following findings are made:

1. That, due to reasons beyond the reasonable control of the applicant, required compliance with this article would result in extraordinary economic hardship;

2. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the waiver; and

3. That the compliance report proposed by the applicant can reasonably be implemented and shall achieve compliance as expeditiously as possible.

D. Any approval of a waiver shall specify a final compliance date by which compliance with the requirements of this article shall be achieved. Any approval of a waiver shall contain a condition that specifies the increments of progress necessary to assure timely compliance and such other conditions that the board finds necessary to carry out the purposes of this article.

E. A waiver shall cease to be effective upon the failure of the party to whom the waiver was granted to comply with any term or condition of the waiver.

F. Upon the application of any person, the board may review, and for good cause, modify or revoke a waiver from requirements of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-130 Test methods and procedures

A. The provisions of subsection G of 9VAC5-45-30 (Emission testing) apply. The other provisions of 9VAC5-45-30 do not apply.

B. Testing to determine compliance with 9VAC5-45-90 B of this article shall be performed by using the following test procedures (see 9VAC5-20-21):

1. CARB "Automatic Shut-Off Test Procedure for Spill-Proof Systems and Spill-Proof Spouts."

2. CARB "Automatic Closure Test Procedure for Spill-Proof Systems and Spill-Proof Spouts."

C. Testing to determine compliance with 9VAC5-45-90 A of this article shall be performed by using all test procedures in subsection B of this section and the following test procedure: CARB Determination of Permeation Rate for Spill-Proof Systems (see 9VAC5-20-21). Alternative methods that are shown to be accurate, precise, and appropriate may be used upon written approval of the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-140 Monitoring

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-150 Notification, records and reporting

The provisions of subsections E, F, and G of 9VAC5-45-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-45-50 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 2 Emission Standards for Portable Fuel Containers and Spouts Manufactured on or after August 1, 2010

9VAC5-45-160 Applicability

Article 2 Emission Standards for Portable Fuel Containers and Spouts Manufactured on or after August 1, 2010

A. Except as provided in 9VAC5-45-170, the provisions of this article apply to any portable fuel container or spout manufactured on or after August 1, 2010. The provisions of Article 1 (9VAC5-45-60 et seq.) of this part apply to portable fuel containers and spouts manufactured before August 1, 2010.

B. Except as provided in 9VAC5-45-170, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale, advertises for sale, or manufactures for sale portable fuel containers or spouts.

C. The provisions of this article apply only to owners and other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-170 Exemptions

A. The provisions of this article do not apply to any portable fuel container or spout manufactured for shipment, sale, and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C.

B. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale a portable fuel container or spout that does not comply with the emission standards specified in 9VAC5-45-190, as long as the manufacturer or distributor can demonstrate that: (i) the portable fuel container or spout is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C; and (ii) the manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout is not distributed within the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C. This subsection does not apply to portable fuel containers or spouts that are sold, supplied, or offered for sale to retail outlets.

C. The provisions of this article do not apply to safety cans meeting the requirements of 29 CFR Part 1926 Subpart F.

D. The provisions of this article do not apply to portable fuel containers with a nominal capacity less than or equal to one quart.

E. The provisions of this article do not apply to rapid refueling devices with nominal capacities greater than or equal to four gallons provided (i) such devices are designed for use in officially sanctioned off-highway motor sports such as car racing or motorcycle competitions, and (ii) such devices either create a leak-proof seal against a stock target fuel tank, or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank.

F. The provisions of this article do not apply to portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine.

G. The provisions of this article do not apply to closed-system portable fuel containers that are used exclusively for fueling remote control model airplanes.

H. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-180 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"ASTM" means the American Society for Testing and Materials.

"CARB" means California Air Resources Board.

"CARB certification executive order" means a CARB decision, signed by the CARB Executive Officer and specifying that one or more portable fuel containers or spouts has been certified by CARB to meet the requirements of CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501" (see 9VAC5-20-21)

"Consumer" means any person who purchases or otherwise acquires a new portable fuel container or spout for personal, family, household, or institutional use. Persons acquiring a portable fuel container or spout for resale are not "consumers" for that product.

"Distributor" means any person to whom a portable fuel container or spout is sold or supplied for the purpose of resale or distribution in commerce. This term does not include manufacturers, retailers, and consumers.

"Fuel" means all motor fuels subject to any provision of Chapter 12 (§ 59.1-149 et seq.) of Title 59.1 of the Code of Virginia, excluding liquefied petroleum gas, compressed natural gas, and hydrogen. This term includes, but is not limited to, gasoline, diesel fuel, and gasoline-alcohol blends.

"Kerosene" or "kerosine" means any light petroleum distillate that is commonly or commercially known, sold, or represented as kerosene, that is used in space heating, cook stoves, and water heaters, and that is suitable for use as a light source when burned in wick-fed lamps.

"Manufacturer" means any person who imports, manufactures, assembles, produces, packages, repackages, or re-labels a portable fuel container or spout.

"Nominal capacity" means the volume indicated by the manufacturer that represents the maximum recommended filling level.

"Outboard engine" means a spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.

"Permeation" means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

"Portable fuel container" means any container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed, used, sold, advertised for sale, or offered for sale for receiving, transporting, storing, and dispensing fuel or kerosene. Portable fuel containers do not include containers or vessels permanently embossed or permanently labeled as described in 49 CFR 172.407 (a) with language indicating that the containers or vessels are solely intended for use with nonfuel or nonkerosene products.

"Product category" means the applicable category that best describes the product with respect to its nominal capacity, material construction, fuel flow rate, and permeation rate, as applicable, as determined by the board.

"Retail outlet" means any establishment at which portable fuel containers or spouts are sold, supplied, or offered for sale.

"Retailer" means any person who owns, leases, operates, controls, or supervises a retail outlet.

"Spill-proof spout" means any spout that is certified by the board to be in compliance with the standards specified in 9VAC5-45-190 B and complies with the administrative requirements in 9VAC5-45-220.

"Spill-proof system" means any configuration of portable fuel container and firmly attached spout that is certified by the board to be in compliance with the standards in 9VAC5-45-190 B and complies with the administrative requirements in 9VAC5-45-220.

"Spout" means any device that can be firmly attached to a portable fuel container and through which the contents of the container may be poured. A spout does not include a device that can be used to lengthen the spout to accommodate necessary applications.

"Target fuel tank" means any receptacle that receives fuel from a portable fuel container.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-190 Standard for volatile organic compounds

A. The following provisions apply to portable fuel containers and spouts manufactured on or after August 1, 2010:

1. No owner or other person shall sell, supply, offer for sale, or advertise for sale any portable fuel container or spout manufactured on or after August 1, 2010, unless that portable container or spout is certified by the board to be a spill-proof system or spill-proof spout that is in compliance with the standards in subsection B of this section in accordance with the certification procedures specified in 9VAC5-45-200.

2. No owner or other person shall manufacture for sale any portable fuel container or spout on or after August 1, 2010, unless that portable container or spout is certified by the board to be a spill-proof system or spill-proof spout that is in compliance with the standards in subsection B of this section in accordance with the certification procedures specified in 9VAC5-45-200.

B. The following standards apply to each portable fuel container or spout manufactured on or after August 1, 2010, that is subject to the provisions of this article:

1. Portable fuel containers shall be color coded and marked as follows:

a. Portable fuel containers shall be color coded for specific fuels:

(1) Gasoline – red;

(2) Diesel – yellow; and

(3) Kerosene – blue.

b. Each portable fuel container shall have identification markings on the container and on the spill-proof spout.

(1) Red containers shall be permanently identified with the embossed language or permanent durable label "GASOLINE" in minimum 34-point Arial font or a font of equivalent proportions.

(2) Yellow containers shall be permanently identified with the embossed language or permanent durable label "DIESEL" in minimum 34-point Arial font or a font of equivalent proportions.

(3) Blue containers shall be permanently identified with the embossed language or permanent durable label "KEROSENE" in minimum 34-point Arial font or a font of equivalent proportions.

2. Portable fuel containers shall comply with emissions standards as follows:

a. Portable fuel containers that are equipped with an intended spill-proof spout shall emit no more than 0.3 grams per gallon per day.

b. Compliance with emission standards in this subdivision shall be determined using the test procedure specified in 9VAC5-45-250 B 2.

c. Portable fuel containers that share similar designs, that are constructed of identical materials, and that are manufactured using identical processes, but vary only in size or color may be considered for certification as a product family.

3. Portable fuel containers and spouts shall comply with the specifications for durability in subsection 7.4 of the test procedure specified in 9VAC5-45-250 B 2.

4. There shall be no fluid leakage from any point in the spill-proof system or spill-proof spout as specified in the test procedures specified in 9VAC5-45-250 B 1 and 2.

5. The spill-proof system or spill-proof spout shall automatically close when the spill-proof spout is removed from the target tank, seal, and remain completely closed when not dispensing fuel, as specified in the test procedure specified in 9VAC5-45-250 B 1. Also, no liquid, beyond wetted surfaces, shall be retained in the spill-proof spout after fueling that may evaporate into the atmosphere.

6. An applicant seeking certification of a portable fuel container or spout from the board pursuant to this article shall also:

a. Warrant that its spill-proof system or spill-proof spout is free from defects in materials and workmanship that cause such systems or spill-proof spouts to fail to conform with each of the certification and compliance standards specified in CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501," for a period of one year from the date of sale; and

b. Supply a copy of the warranty language specified in subdivision a of this subdivision that is supplied to the buyer in the packaging for each spill-proof system or spill-proof spout at the time of sale identifying the following minimum requirements:

(1) A statement of the terms and length of the warranty period;

(2) An unconditional statement that the spill-proof system or spill-proof spout is certified to the requirements in subdivision a of this subdivision (which may be referred to as being certified to California requirements); and

(3) A listing of the specific certification requirements or limitations to which it was certified.

7. An applicant shall supply a copy of the operating instructions intended for each spill-proof system or spill-proof spout, and fueling application, as supplied to the buyer in the packaging for each spill-proof system or spill-proof spout at the time of sale. These instructions shall include, at a minimum, the following specifications:

a. A listing of any specific equipment types, such as passenger cars and trucks, lawn and garden equipment, off-road motorcycles and snowmobiles, industrial equipment, and marine vessels that the spill-proof system or spill-proof spout, is not intended to refuel; and

b. Other instructions, such as the recommended fueling angle(s) or special instructions such as venting prior to use.

8. Spill-proof systems, spill-proof spouts and all components incorporated therein, such as gaskets, seals, or O-rings must demonstrate compliance with the requirements specified in 9VAC5-45-250 B 3 and 4. Applicants may request limited certification for use with only specified fuel blends. Such fuel-specific certifications shall clearly specify the limits and restrictions of the certification.

9. A portable fuel container may incorporate a secondary opening or vent hole (i.e., an opening other than the opening needed for the spout) provided the secondary opening or vent hole is not easily tampered by a consumer, and it does not emit hydrocarbon vapors in excess of the amounts specified in this section during fueling, storage, transportation, or handling events.

C. The test procedures for determining compliance with the standards in this section are set forth in 9VAC5-45-250. The manufacturer of portable fuel containers or spouts shall perform the tests for determining compliance as set forth in 9VAC5-45-250 to show that its product meets the standards of this section prior to allowing the product to be offered for sale. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale and shall make those test results available within 60 days of request.

D. Compliance with the standards in this section does not exempt spill-proof systems or spill-proof spouts from compliance with other applicable federal and state statutes and regulations such as state fire codes, safety codes, and other safety regulations, nor will the board test for or determine compliance with such other statutes or regulations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-200 Certification procedures

A. Provisions follow concerning the requirements and process for board certification of a portable fuel container or spout manufactured on or after August 1, 2010, as a spill-proof system or spill-proof spout.

B. To be considered by the board for certification, an application for certification shall be submitted in writing to the board by the manufacturer of the portable fuel container or spout.

1. Except as provided in subdivision D 2 of this section, the application shall contain the following information:

a. An identification of the names, addresses, and phone numbers of the company, owner or other persons that are submitting the application, and the names and phone numbers of contact persons that are knowledgeable concerning the application.

b. Model numbers and sizes of spill-proof systems or spill-proof spouts for which certification is requested.

c. Test data that demonstrates that the spill-proof systems or spill-proof spouts comply with each of the certification requirements identified in 9VAC5-45-190 B.

d. Engineering drawings of the spill-proof system or spill-proof spout detailing dimensions specific to each component. If an application is submitted for a spill-proof system (i.e., container and spout), separate dimensioned drawings for the portable fuel container and for the spill-proof spout are required. If more than one type or size of portable fuel container or more than one type of spill-proof spout is included in the application, separate dimensioned drawings are required for each component.

e. Test data from each of the test procedures specified in 9VAC5-45-250 B 1 and 2 demonstrating that the spill-proof system, spill-proof spout, or component meets the applicable criteria.

f. Any other test data that supports the requirements in subdivision e of this subsection and that would assist in the determination of certification.

g. The language, symbols, or patterns that will actually be permanently embossed on the spill-proof system or spill-proof spout. This shall include examples of date code wheels as well as all other permanent markings and their locations on the container and/or spill-proof spout. Once the board certifies a spill-proof system or spill-proof spout, these permanent markings cannot be altered or modified in any way without first obtaining the board's approval.

h. The language or labels that may be affixed to the spill-proof system or spill-proof spout at the time of sale.

i. The manufacturer's recommended instructions, instruction decals, or any other type of placard attached to the spill-proof system or spill-proof spout at the time of sale. Include examples of actual decals or placards if available. Proposed placards or decals are sufficient if actual samples are not available. Once the board certifies a spill-proof system or spill-proof spout, these decals or placards cannot be altered or modified in any way without first obtaining the board's approval.

j. The manufacturer warranty(s) as defined in 9VAC5-45-190 B 6.

k. A description of the materials used in the construction of the spill-proof system or spill-proof spout. Material compositions of gaskets, O-rings, and seals must be described.

l. If the applicant is not the manufacturer of all system components incorporated in a spill-proof system or spill-proof spout, the applicant must include evidence that the component manufacturers have been notified of the applicant's intended use of the manufacturers' components in the spill-proof system or spill-proof spout for which the application is being made.

(1) If the applicant is requesting inclusion of one or more components not manufactured by it on the applicable spill-proof system or spill-proof spout, the applicant shall notify the component manufacturers and obtain the information required of the application as specified in this subsection.

(2) If the component design and material specifications requested for inclusion in the certification have not been previously incorporated in a spill-proof system or spill-proof spout that has been issued a CARB certification executive order or has been certified by the board pursuant to these procedures, then each of the components shall be subject to each of the application and test requirements specified in this article.

m. A sample of the spill-proof system or spill-proof spout is not required as part of the initial application for certification. The board may later require that a sample be provided if it is deemed necessary to make the proper certification determination.

n. The document certification statement required by 9VAC5-20-230, signed by a responsible official as defined in that section.

o. The information required by subdivision B 1 a of this section is public information that may not be claimed as confidential. Other information submitted to the board to meet the requirements of this article shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

2. In accordance with the time periods specified in subsection C of this section, the board will certify a portable fuel container or spout. The board will specify such terms and conditions as are necessary to ensure that the emissions from the portable fuel containers or spouts do not exceed the VOC standards specified in 9VAC5-45-190. The certification shall also include operational terms, conditions, and data to be reported to the board to ensure that all requirements of this article are met.

C. Provisions follow concerning the portable fuel container or spout certification time frames.

1. The board will take appropriate action on an application within the following time periods:

a. Within 30 working days of receipt of an application, the board will inform the applicant in writing that either:

(1) The application is complete and accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

b. Within 30 working days of receipt of additional information provided in response to a determination that an application is deficient, the board will inform the applicant in writing that either:

(1) The additional information is sufficient to make the application complete, and the application is accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

c. If the board finds that an application meets the requirements of subsection B of this section, then it shall certify that the requirements have been met in accordance with the requirements of this article. The board will normally act to approve or disapprove a complete application within 90 working days after the application is deemed complete. The board may extend this time period if additional information is needed.

2. Before the end of each time period specified in this section, the board and the applicant may mutually agree to a longer time period for the board to take the appropriate action.

D. In accordance with the following procedures, the board will take into consideration whether the portable fuel container or spout has been certified by CARB.

1. In lieu of granting certification based upon review of an application as required under subsection B of this section, certification may be granted by the board as follows:

a. Certification may be granted solely on the basis of the effective CARB certification executive order, or

b. Certification may be granted on the basis of the effective CARB certification executive order, modified as necessary by the board to meet the requirements of this article.

2. An abbreviated application may be submitted by a manufacturer requesting certification by the board under subdivision 1 of this subsection. The abbreviated application shall include, as a minimum:

a. A request by the manufacturer that certification be granted by the board based upon an effective CARB certification executive order.

b. A copy of the effective CARB certification executive order, including all conditions established by CARB applicable to the CARB certification executive order.

c. A certification that the manufacturer will (i) comply with the applicable CARB certification executive order within the volatile organic compound emissions control areas specified in 9VAC5-45-160 C and (ii) comply with any additional terms and conditions that the board may specify in granting certification under this subsection.

d. Manufacturer and product information as specified in subdivisions B 1 a and b of this section.

e. The document certification statement required by 9VAC5-20-230 certifying the information in the application and signed by a responsible official.

3. The board's certification shall contain such terms and conditions as necessary to adapt terms and conditions in the CARB certification executive order to satisfy the provisions of this article.

4. Any board certification granted under this subsection is contingent upon the effective CARB certification executive order provided with the application. Board certification granted on the basis of this subsection automatically expires on the date that the CARB certification executive order upon which it was based is no longer effective.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-210 Innovative products

Manufacturers of portable fuel containers or spouts may seek an innovative products exemption in accordance with the following criteria:

1. The board will exempt a portable fuel container or spout from one or more of the requirements specified in 9VAC5-45-190 if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems, or other factors, the use of the product will result in cumulative VOC emissions below the highest emitting representative spill-proof system or representative spill-proof spout in its product category as determined from applicable testing.

2. A manufacturer (applicant) shall apply in writing to the board for an innovative product exemption. The application shall include the supporting documentation that quantifies the emissions from the innovative product, including the actual physical test methods used to generate the data. In addition, the applicant must provide the information necessary to enable the board to establish enforceable conditions for granting the exemption. The application shall also include the certification statement required by 9VAC5-20-230 signed by a responsible official. Information submitted by a manufacturer pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

3. Within 30 days of receipt of the exemption application, the board will determine whether an application is complete.

4. Within 90 days after an application has been deemed complete, the board will determine whether, under what conditions, and to what extent an exemption from the requirements of 9VAC5-45-190 will be permitted. The board may extend this time period if additional time is needed to reach a decision. An applicant may submit additional supporting documentation before a decision has been reached. The board will notify the applicant of the decision in writing and specify such terms and conditions as are necessary to insure that emissions from the product will meet the emissions reductions specified in subdivision 1 of this section, and that such emissions reductions can be enforced.

5. In granting an innovative product exemption for a portable fuel container or spout, the board will specify the test methods for determining conformance to the conditions established pursuant to subdivision 4 of this section. The test methods may include criteria for reproducibility, accuracy, and sampling and laboratory procedures.

6. For any portable fuel container or spout for which an innovative product exemption has been granted pursuant to this section, the manufacturer shall notify the board in writing at least 30 days before the manufacturer changes a product's design, delivery system, or other factors that may effect the VOC emissions during recommended usage. The manufacturer shall also notify the board within 30 days after the manufacturer learns of any information that would alter the emissions estimates submitted to the board in support of the exemption application.

7. If the standards specified in 9VAC5-45-190 are amended for a product category, all innovative product exemptions granted for products in the product category, except as provided in subdivision 8 of this subsection, have no force and effect as of the effective date of the amended standards.

8. If the board believes that a portable fuel container or spout for which an exemption has been granted no longer meets the criteria for an innovative product specified in subdivision 1 of this section, the board may modify or revoke the exemption as necessary to assure that the product will meet these criteria.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-220 Administrative requirements

A. Each manufacturer of a portable fuel container subject to and complying with 9VAC5-45-190 shall clearly display on each spill-proof system:

1. The phrase "Spill-Proof System";

2. A date of manufacture or representative date code; and

3. A representative code identifying either:

a. The portable fuel container as subject to and complying with 9VAC5-45-190; or

b. The effective CARB certification executive order issued for the portable fuel container.

B. Each manufacturer of a spout subject to and complying with 9VAC5-45-190 shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:

1. The phrase "Spill-Proof Spout";

2. A date of manufacture or representative date code; and

3. A representative code identifying either:

a. The spout as subject to and complying with 9VAC5-45-190; or

b. The effective CARB certification executive order issued for the spout.

C. Each manufacturer subject to subsection A or B of this section shall file an explanation of both the date code and representative code with the board no later than the later of three months after the effective date of this article or within three months of production, and within three months after any change in coding upon request of the board.

D. Each manufacturer of a spout subject to subsection B of this section shall clearly display the make, model number, and size of those portable fuel containers the spout is designed to accommodate and for which the manufacturer can demonstrate the container's compliance with 9VAC5-45-190 on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto.

E. Manufacturers of portable fuel containers not subject to or not in compliance with 9VAC5-45-190 may not display the phrase "Spill-Proof System" or "Spill-Proof Spout" on the portable fuel container or spout or on any sticker or label affixed thereto or on any accompanying package.

F. Each manufacturer of a portable fuel container or spout subject to and complying with 9VAC5-45-190 that due to its design or other features cannot be used to refuel on-road motor vehicles shall clearly display the phrase "Not Intended For Refueling On-Road Motor Vehicles" in type of 34 point or greater on each of the following:

1. For a portable fuel container sold as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

2. For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-45-230 Compliance

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-240 Compliance schedules

A. Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. August 1, 2010, in the Northern Virginia and Fredericksburg VOC Emissions Control Areas; or

2. March 1, 2014, in the Richmond VOC Emissions Control Area.

B. Any owner or other person who cannot comply with the provisions of this article by the date specified in subsection A of this section, due to extraordinary reasons beyond that person's reasonable control, may apply in writing to the board for a waiver. The waiver application shall set forth:

1. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

2. The proposed date by which compliance with the provisions of this article will be achieved; and

3. A compliance report detailing the methods by which compliance will be achieved.

C. No waiver may be granted unless all of the following findings are made:

1. That, due to reasons beyond the reasonable control of the applicant, required compliance with this article would result in extraordinary economic hardship;

2. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the waiver; and

3. That the compliance report proposed by the applicant can reasonably be implemented and shall achieve compliance as expeditiously as possible.

D. Any approval of a waiver shall specify a final compliance date by which compliance with the requirements of this article shall be achieved. Any approval of a waiver shall contain a condition that specifies the increments of progress necessary to assure timely compliance and such other conditions that the board finds necessary to carry out the purposes of this article.

E. A waiver shall cease to be effective upon the failure of the party to whom the waiver was granted to comply with any term or condition of the waiver.

F. Upon the application of any person, the board may review, and for good cause, modify or revoke a waiver from requirements of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-250 Test methods and procedures

A. The provisions of subsection G of 9VAC5-45-30 (Emission testing) apply. The other provisions of 9VAC5-45-30 do not apply.

B. Testing to determine compliance with 9VAC5-45-190 B of this article shall be performed by using the following test procedures specified in CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501" (see 9VAC5-20-21):

1. CARB "Test Procedure for Determining Integrity of Spill-Proof Spouts and Spill-Proof Systems, TP-501" (see 9VAC5-20-21).

2. CARB "Test Procedure for Determining Diurnal Emissions from Portable Fuel Containers, TP-502" (see 9VAC5-20-21).

3. ASTM "Standard Specification for Portable Kerosine and Diesel Containers for Consumer Use" (see 9VAC5-20-21).

4. ASTM "Standard Specification for Portable Gasoline Containers for Consumer Use" (see 9VAC5-20-21).

C. Alternative methods that are shown to be accurate, precise, and appropriate may be used upon written approval of the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-260 Monitoring

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-270 Notification, records and reporting

The provisions of subsections E, F, and G of 9VAC5-45-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-45-50 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 3 Emission Standards for Consumer Products Manufactured before August 1, 2010

9VAC5-45-280 Applicability

Article 3 Emission Standards for Consumer Products Manufactured before August 1, 2010

A. Except as provided in 9VAC5-45-290, the provisions of this article apply to any consumer product manufactured before August 1, 2010, that contains volatile organic compounds (VOCs). The provisions of Article 4 (9VAC5-45-400 et seq.) of this part apply to consumer products manufactured on or after August 1, 2010.

B. Except as provided in 9VAC5-45-290, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale or manufactures for sale any consumer product.

C. The provisions of this article apply to owners and other persons in the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

D. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-290 Exemptions

A. This article shall not apply to any consumer product manufactured in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C for shipment and use outside of those areas.

B. The provisions of this article shall not apply to a manufacturer or distributor who sells, supplies, or offers for sale a consumer product that does not comply with the VOC standards specified in 9VAC5-45-310 A, as long as the manufacturer or distributor can demonstrate both that the consumer product is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed to those applicable volatile organic compound emissions control areas. This subsection does not apply to consumer products that are sold, supplied, or offered for sale by any person to retail outlets in those applicable volatile organic compound emissions control areas.

C. The medium volatility organic compound (MVOC) content standards specified in 9VAC5-45-310 A for antiperspirants or deodorants shall not apply to ethanol.

D. The VOC limits specified in 9VAC5-45-310 A shall not apply to fragrances up to a combined level of 2.0% by weight contained in any consumer product and shall not apply to colorants up to a combined level of 2.0% by weight contained in any antiperspirant or deodorant.

E. The requirements of 9VAC5-45-310 A for antiperspirants or deodorants shall not apply to those volatile organic compounds that contain more than 10 carbon atoms per molecule and for which the vapor pressure is unknown, or that have a vapor pressure of 2 mm Hg or less at 20°C.

F. The VOC limits specified in 9VAC5-45-310 A shall not apply to any LVP-VOC.

G. The VOC limits specified in 9VAC5-45-310 A shall not apply to air fresheners that are composed entirely of fragrance, less compounds not defined as VOCs or LVP-VOC exempted under subsection F of this section.

H. The VOC limits specified in 9VAC5-45-310 A shall not apply to air fresheners and insecticides containing at least 98% paradichlorobenzene.

I. The VOC limits specified in 9VAC5-45-310 A shall not apply to adhesives sold in containers of one fluid ounce or less.

J. The VOC limits specified in 9VAC5-45-310 A shall not apply to bait station insecticides. For the purpose of this section, bait station insecticides are containers enclosing an insecticidal bait that is not more than 0.5 ounce by weight, where the bait is designed to be ingested by insects and is composed of solid material feeding stimulants with less than 5.0% active ingredients.

K. A person who cannot comply with the requirements set forth in 9VAC5-45-310, because of extraordinary reasons beyond the person's reasonable control may apply in writing to the board for a waiver.

1. The application shall set forth:

a. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

b. The proposed dates by which compliance with the provisions of 9VAC5-45-310 will be achieved; and

c. A compliance report reasonably detailing the methods by which compliance will be achieved.

2. Upon receipt of an application containing the information required in subdivision 1 of this subsection, the board will hold a public hearing to determine whether, under what conditions, and to what extent, a waiver from the requirements in 9VAC5-45-310 is necessary and will be permitted. A hearing shall be initiated no later than 75 days after receipt of a waiver application. Notice of the time and place of the hearing shall be sent to the applicant by certified mail not less than 30 days prior to the hearing. Notice of the hearing shall also be submitted for publication in the Virginia Register of Regulations. At least 30 days prior to the hearing, the waiver application shall be made available to the public for inspection. Information submitted to the board by a waiver applicant shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia. The board may consider both public and confidential information in reaching a decision on a waiver application. Interested members of the public shall be allowed a reasonable opportunity to testify at the hearing and their testimony shall be considered.

3. No waiver shall be granted unless all of the following findings are made:

a. That, because of reasons beyond the reasonable control of the applicant, requiring compliance with 9VAC5-45-310 would result in extraordinary economic hardship;

b. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air pollutants that would result from issuing the waiver; and

c. That the compliance report proposed by the applicant can reasonably be implemented and will achieve compliance as expeditiously as possible.

4. Any waiver may be issued as an order of the board. The waiver order shall specify a final compliance date by which the requirements of 9VAC5-45-310 will be achieved. Any waiver order shall contain a condition that specifies increments of progress necessary to assure timely compliance and such other conditions that the board, in consideration of the testimony received at the hearing, finds necessary to carry out the purposes of the Virginia Air Pollution Control Law and the regulations of the board.

5. A waiver shall cease to be effective upon failure of the party to whom the waiver was granted to comply with any term or condition of the waiver order.

6. Upon the application of anyone, the board may review and for good cause modify or revoke a waiver from requirements of 9VAC5-45-310.

L. The requirements of 9VAC5-45-340 A shall not apply to consumer products registered under FIFRA.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-300 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"ACP" or "alternative control plan" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"ACP agreement" means the document signed by the board that includes the conditions and requirements of the board and that allows manufacturers to sell ACP products pursuant to the requirements of this article.

"ACP emissions" means the sum of the VOC emissions from every ACP product subject to an ACP agreement approving an ACP, during the compliance period specified in the ACP agreement, expressed to the nearest pound of VOC and calculated according to the following equation:

where:

1, 2,...N = each product in an ACP up to the maximum N.

Enforceable sales = (see definition in this section).

VOC content = one of the following:

1. For all products except for charcoal lighter material products:

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit, as specified in 9VAC5-45-290.

2. For charcoal lighter material products only:

where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"ACP limit" means the maximum allowable ACP emissions during the compliance period specified in an ACP agreement approving an ACP, expressed to the nearest pound of VOC and calculated according to the following equation:

where:

where:

Enforceable sales = (see definition in this section).

ACP standard = (see definition in this section).

1, 2,...N = each product in an ACP up to the maximum N.

"ACP product" means any consumer product subject to the VOC standards specified in 9VAC5-45-310 A, except those products that have been exempted as innovative products under 9VAC5-45-330.

"ACP reformulation" or "ACP reformulated" means the process of reducing the VOC content of an ACP product within the period that an ACP is in effect to a level that is less than the current VOC content of the product.

"ACP standard" means either the ACP product's pre-ACP VOC content or the applicable VOC standard specified in 9VAC5-45-310 A, whichever is the lesser of the two.

"ACP VOC standard" means the maximum allowable VOC content for an ACP product, determined as follows:

1. The applicable VOC standard specified in 9VAC5-45-310 A for all ACP products except for charcoal lighter material;

2. For charcoal lighter material products only, the VOC standard for the purposes of this article shall be calculated according to the following equation:

where:

0.020 = the certification emissions level for the product, as specified in 9VAC5-45-310 F.

Certified use rate = (see definition in this section).

"Adhesive" means any product that is used to bond one surface to another by attachment. Adhesive does not include products used on humans and animals, adhesive tape, contact paper, wallpaper, shelf liners, or any other product with an adhesive incorporated onto or in an inert substrate. For contact adhesive only, adhesive also does not include units of product, less packaging, that consist of more than one gallon. In addition, for construction, panel, and floor covering adhesive and general purpose adhesive only, adhesive does not include units of product, less packaging, that weigh more than one pound and consist of more than 16 fluid ounces. The package size limitations do not apply to aerosol adhesives.

"Adhesive remover" means a product designed to remove adhesive from either a specific substrate or a variety of substrates. Adhesive remover does not include products that remove adhesives intended exclusively for use on humans or animals. For the purpose of this definition, adhesive shall mean a substance used to bond one or more materials. Adhesives include, but are not limited to, caulks, sealants, glues, or similar substances used for the purpose of forming a bond.

"Aerosol adhesive" means an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for hand-held application without the need for ancillary hoses or spray equipment. Aerosol adhesives include special purpose spray adhesives, mist spray adhesives, and web spray adhesives.

"Aerosol cooking spray" means any aerosol product designed either to reduce sticking on cooking and baking surfaces or to be applied on food, or both.

"Aerosol product" means a pressurized spray system that dispenses product ingredients by means of a propellant contained in a product or a product's carrier, or by means of a mechanically induced force. Aerosol product does not include pump sprays.

"Agricultural use" means the use of any pesticide or method or device for the control of pests in connection with the commercial production, storage, or processing of any animal or plant crop. Agricultural use does not include the sale or use of pesticides in properly labeled packages or containers that are intended for home use, use in structural pest control, industrial use, or institutional use. For the purposes of this definition only:

1. "Home use" means use in a household or its immediate environment.

2. "Industrial use" means use for or in a manufacturing, mining, or chemical process or use in the operation of factories, processing plants, and similar sites.

3. "Institutional use" means use within the perimeter of, or on property necessary for the operation of, buildings such as hospitals, schools, libraries, auditoriums, and office complexes.

4. "Structural pest control" means a use requiring a license under the applicable state pesticide licensing requirement.

"Air freshener" means any consumer product including, but not limited to, sprays, wicks, powders, and crystals, designed for the purpose of masking odors or freshening, cleaning, scenting, or deodorizing the air. Air fresheners do not include products that are used on the human body, products that function primarily as cleaning products (as indicated on a product label), disinfectant products claiming to deodorize by killing germs on surfaces, or institutional or industrial disinfectants when offered for sale solely through institutional and industrial channels of distribution. Air fresheners do include spray disinfectants and other products that are expressly represented for use as air fresheners, except institutional and industrial disinfectants when offered for sale through institutional and industrial channels of distribution. To determine whether a product is an air freshener, all verbal and visual representations regarding product use on the label or packaging and in the product's literature and advertising may be considered. The presence of, and representations about, a product's fragrance and ability to deodorize (resulting from surface application) shall not constitute a claim of air freshening.

"All other carbon-containing compounds" means all other compounds that contain at least one carbon atom and are not an "exempt compound" or an "LVP-VOC."

"All other forms" means all consumer product forms for which no form-specific VOC standard is specified. Unless specified otherwise by the applicable VOC standard, all other forms include, but are not limited to, solids, liquids, wicks, powders, crystals, and cloth or paper wipes (towelettes).

"Alternative control plan" or "ACP" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"Antimicrobial hand or body cleaner or soap" means a cleaner or soap that is designed to reduce the level of microorganisms on the skin through germicidal activity. Antimicrobial hand or body cleaner or soap includes, but is not limited to, antimicrobial hand or body washes or cleaners, food handler hand washes, healthcare personnel hand washes, pre-operative skin preparations, and surgical scrubs. Antimicrobial hand or body cleaner or soap does not include prescription drug products, antiperspirants, astringent or toner, deodorant, facial cleaner or soap, general-use hand or body cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, and rubbing alcohol.

"Antiperspirant" means any product including, but not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles, that is intended by the manufacturer to be used to reduce perspiration in the human axilla by at least 20% in at least 50% of a target population.

"Architectural coating" means a coating applied to stationary structures and their appurtenances, to mobile homes, to pavements, or to curbs.

"ASTM" means the American Society for Testing and Materials.

"Astringent or toner" means any product not regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. This category also includes clarifiers and substrate-impregnated products. This category does not include any hand, face, or body cleaner or soap product, medicated astringent or medicated toner, cold cream, lotion, or antiperspirant.

"Automotive brake cleaner" means a cleaning product designed to remove oil, grease, brake fluid, brake pad material, or dirt from motor vehicle brake mechanisms.

"Automotive hard paste wax" means an automotive wax or polish that is:

1. Designed to protect and improve the appearance of automotive paint surfaces;

2. A solid at room temperature; and

3. Contains no water.

"Automotive instant detailer" means a product designed for use in a pump spray that is applied to the painted surface of automobiles and wiped off prior to the product being allowed to dry.

"Automotive rubbing or polishing compound" means a product designed primarily to remove oxidation, old paint, scratches or swirl marks, and other defects from the painted surfaces of motor vehicles without leaving a protective barrier.

"Automotive wax, polish, sealant, or glaze" means a product designed to seal out moisture, increase gloss, or otherwise enhance a motor vehicle's painted surfaces. Automotive wax, polish, sealant, or glaze includes, but is not limited to, products designed for use in auto body repair shops and drive-through car washes, as well as products designed for the general public. Automotive wax, polish, sealant, or glaze does not include automotive rubbing or polishing compounds, automotive wash and wax products, surfactant-containing car wash products, and products designed for use on unpainted surfaces such as bare metal, chrome, glass, or plastic.

"Automotive windshield washer fluid" means any liquid designed for use in a motor vehicle windshield washer system either as an antifreeze or for the purpose of cleaning, washing, or wetting the windshield. Automotive windshield washer fluid also includes liquids that are (i) packaged as a pre-wetted, single-use manual wipe and (ii) designed exclusively for cleaning, washing, or wetting automotive glass surfaces for the purpose of restoring or maintaining visibility for the driver. Glass cleaners that are intended for use on other glass surfaces are not included in this definition. Automotive windshield washer fluid does not include fluids placed by the manufacturer in a new vehicle.

"Bathroom and tile cleaner" means a product designed to clean tile or surfaces in bathrooms. Bathroom and tile cleaners do not include products designed primarily to clean toilet bowls or toilet tanks.

"Bug and tar remover" means a product labeled to remove either or both of the following from painted motor vehicle surfaces without causing damage to the finish: (i) biological residues, such as insect carcasses and tree sap, and (ii) road grime, such as road tar, roadway paint markings, and asphalt.

"CARB" means the California Air Resources Board.

"Carburetor or fuel-injection air intake cleaner " means a product designed to remove fuel deposits, dirt, or other contaminants from a carburetor, choke, throttle body of a fuel-injection system, or associated linkages. Carburetor or fuel-injection air intake cleaner does not include products designed exclusively to be introduced directly into the fuel lines or fuel storage tank prior to introduction into the carburetor or fuel injectors.

"Carpet and upholstery cleaner" means a cleaning product designed for the purpose of eliminating dirt and stains on rugs, carpeting, and the interior of motor vehicles or on household furniture or objects upholstered or covered with fabrics such as wool, cotton, nylon, or other synthetic fabrics. Carpet and upholstery cleaners include, but are not limited to, products that make fabric protectant claims. Carpet and upholstery cleaners do not include general purpose cleaners, spot removers, vinyl or leather cleaners, dry cleaning fluids, or products designed exclusively for use at industrial facilities engaged in furniture or carpet manufacturing.

"Certified emissions" means the emissions level for products approved under 9VAC5-45-310 F, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound VOC per start.

"Certified use rate" means the usage level for products approved under 9VAC5-45-310 F, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound certified product used per start.

"Charcoal lighter material" means any combustible material designed to be applied on, incorporated in, added to, or used with charcoal to enhance ignition. Charcoal lighter material does not include any of the following:

1. Electrical starters and probes;

2. Metallic cylinders using paper tinder;

3. Natural gas;

4. Propane; or

5. Fat wood.

"Colorant" means any pigment or coloring material used in a consumer product for an aesthetic effect or to dramatize an ingredient.

"Compliance period" means the period of time, not to exceed one year, for which the ACP limit and ACP emissions are calculated and for which compliance with the ACP limit is determined, as specified in the ACP agreement approving an ACP.

"Construction, panel, and floor covering adhesive" means any one-component adhesive that is designed exclusively for the installation, remodeling, maintenance, or repair of:

1. Structural and building components that include, but are not limited to, beams, trusses, studs, paneling (drywall or drywall laminates, fiberglass reinforced plastic (FRP), plywood, particle board, insulation board, predecorated hardboard or tileboard, etc.), ceiling and acoustical tile, molding, fixtures, countertops or countertop laminates, cove or wall bases, and flooring or subflooring; or

2. Floor or wall coverings that include, but are not limited to, wood or simulated wood covering, carpet, carpet pad or cushion, vinyl-backed carpet, flexible flooring material, nonresilient flooring material, mirror tiles and other types of tiles, and artificial grass.

Construction, panel, and floor covering adhesive does not include floor seam sealer.

"Consumer" means a person who purchases or acquires a consumer product for personal, family, household, or institutional use. Persons acquiring a consumer product for resale are not consumers for that product.

"Consumer product" means a chemically formulated product used by household and institutional consumers including, but not limited to, detergents; cleaning compounds; polishes; floor finishes; cosmetics; personal care products; home, lawn, and garden products; disinfectants; sanitizers; aerosol paints; and automotive specialty products, but does not include other paint products, furniture coatings, or architectural coatings. As used in this article, consumer products shall also refer to aerosol adhesives, including aerosol adhesives used for consumer, industrial, or commercial uses.

"Contact adhesive" means an adhesive that:

1. Is designed for application to both surfaces to be bonded together;

2. Is allowed to dry before the two surfaces are placed in contact with each other;

3. Forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other; and

4. Does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces.

Contact adhesive does not include rubber cements that are primarily intended for use on paper substrates. Contact adhesive also does not include vulcanizing fluids that are designed and labeled for tire repair only.

"Contact person" means a representative that has been designated by the responsible ACP party for the purpose of reporting or maintaining information specified in the ACP agreement approving an ACP.

"Container or packaging" means the part or parts of the consumer or institutional product that serve only to contain, enclose, incorporate, deliver, dispense, wrap, or store the chemically formulated substance or mixture of substances that is solely responsible for accomplishing the purposes for which the product was designed or intended. Containers or packaging include any article onto or into which the principal display panel and other accompanying literature or graphics are incorporated, etched, printed, or attached.

"Crawling bug insecticide" means an insecticide product that is designed for use against ants, cockroaches, or other household crawling arthropods, including, but not limited to, mites, silverfish, or spiders. Crawling bug insecticide does not include products designed to be used exclusively on humans or animals or a house dust mite product. For the purposes of this definition only:

1. "House dust mite product" means a product whose label, packaging, or accompanying literature states that the product is suitable for use against house dust mites, but does not indicate that the product is suitable for use against ants, cockroaches, or other household crawling arthropods.

2. "House dust mite" means mites that feed primarily on skin cells shed in the home by humans and pets and that belong to the phylum Arthropoda, the subphylum Chelicerata, the class Arachnida, the subclass Acari, the order Astigmata, and the family Pyroglyphidae.

"Date-code" means the day, month, and year on which the consumer product was manufactured, filled, or packaged, or a code indicating such a date.

"Deodorant" means any product that is intended by the manufacturer to be used to minimize odor in the human axilla by retarding the growth of bacteria that cause the decomposition of perspiration. Deodorant includes, but is not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles.

"Device" means an instrument or contrivance (other than a firearm) that is designed for trapping, destroying, repelling, or mitigating a pest or other form of plant or animal life (other than human and other than bacterium, virus, or another microorganism on or in living humans or other living animals); but not including equipment used for the application of pesticides when sold separately therefrom.

"Disinfectant" means a product intended to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi, or viruses on surfaces or inanimate objects and whose label is registered under the FIFRA. Disinfectant does not include any of the following:

1. Products designed solely for use on humans or animals;

2. Products designed for agricultural use;

3. Products designed solely for use in swimming pools, therapeutic tubs, or hot tubs; or

4. Products that, as indicated on the principal display panel or label, are designed primarily for use as bathroom and tile cleaners, glass cleaners, general purpose cleaners, toilet bowl cleaners, or metal polishes.

"Distributor" means a person to whom a consumer product is sold or supplied for the purposes of resale or distribution in commerce, except that manufacturers, retailers, and consumers are not distributors.

"Double phase aerosol air freshener" means an aerosol air freshener with the liquid contents in two or more distinct phases that require the product container to be shaken before use to mix the phases, producing an emulsion.

"Dry cleaning fluid" means a nonaqueous liquid product designed and labeled exclusively for use on:

1. Fabrics that are labeled "for dry clean only," such as clothing or drapery; or

2. S-coded fabrics.

Dry cleaning fluid includes, but is not limited to, those products used by commercial dry cleaners and commercial businesses that clean fabrics such as draperies at the customer's residence or work place. Dry cleaning fluid does not include spot remover or carpet and upholstery cleaner. For the purposes of this definition, "S-coded fabric" means an upholstery fabric designed to be cleaned only with water-free spot cleaning products as specified by the American Furniture Manufacturers Association Joint Industry Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric Standards and Guidelines (see 9VAC5-20-21).

"Dusting aid" means a product designed to assist in removing dust and other soils from floors and other surfaces without leaving a wax or silicone-based coating. Dusting aid does not include pressurized gas dusters.

"Electronic cleaner" means a product labeled for the removal of dirt, grease, or grime from electrical equipment such as electric motors, circuit boards, electricity panels, and generators.

"Enforceable sales" means the total amount of an ACP product sold for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C during the applicable compliance period specified in the ACP agreement approving an ACP, as determined through enforceable sales records (expressed to the nearest pound, excluding product container and packaging).

"Enforceable sales record" means a written, point-of-sale record or another board-approved system of documentation from which the mass, in pounds (less product container and packaging), of an ACP product sold to the end user in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C during the applicable compliance period can be accurately documented. For the purposes of this article, enforceable sales records include, but are not limited to, the following types of records:

1. Accurate records of direct retail or other outlet sales to the end user during the applicable compliance period;

2. Accurate compilations, made by independent market surveying services, of direct retail or other outlet sales to the end users for the applicable compliance period, provided that a detailed method that can be used to verify data composing such summaries is submitted by the responsible ACP party and approved by the board; and

3. Other accurate product sales records acceptable to the board.

"Engine degreaser" means a cleaning product designed to remove grease, grime, oil, and other contaminants from the external surfaces of engines and other mechanical parts.

"Exempt compound" means acetone, ethane, methyl acetate, parachlorobenzotrifluoride (1-chloro-4-trifluoromethyl benzene), or perchloroethylene (tetrachloroethylene).

"Fabric protectant" means a product designed to be applied to fabric substrates to protect the surface from soiling from dirt and other impurities or to reduce absorption of liquid into the fabric's fibers. Fabric protectant does not include waterproofers, products designed for use solely on leather, or products designed for use solely on fabrics that are labeled "for dry clean only" and sold in containers of 10 fluid ounces or less.

"Facial cleaner or soap" means a cleaner or soap designed primarily to clean the face. Facial cleaner or soap includes, but is not limited to, facial cleansing creams, gels, liquids, lotions, and substrate-impregnated forms. Facial cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Fat wood" means pieces of wood kindling with high naturally-occurring levels of sap or resin that enhance ignition of the kindling. Fat wood does not include kindling with substances added to enhance flammability, such as wax-covered or wax-impregnated wood-based products.

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136-136y).

"Flea and tick insecticide" means an insecticide product that is designed for use against fleas, ticks, their larvae, or their eggs. Flea and tick insecticide does not include products that are designed to be used exclusively on humans or animals and their bedding.

"Flexible flooring material" means asphalt, cork, linoleum, no-wax, rubber, seamless vinyl, and vinyl composite flooring.

"Floor polish or wax" means a wax, polish, or other product designed to polish, protect, or enhance floor surfaces by leaving a protective coating that is designed to be periodically replenished. Floor polish or wax does not include spray buff products, products designed solely for the purpose of cleaning floors, floor finish strippers, products designed for unfinished wood floors, and coatings subject to architectural coatings regulations.

"Floor seam sealer" means a product designed and labeled exclusively for bonding, fusing, or sealing (coating) seams between adjoining rolls of installed flexible sheet flooring.

"Floor wax stripper" means a product designed to remove natural or synthetic floor polishes or waxes through breakdown of the polish or wax polymers or by dissolving or emulsifying the polish or wax. Floor wax stripper does not include aerosol floor wax strippers or products designed to remove floor wax solely through abrasion.

"Flying bug insecticide" means an insecticide product that is designed for use against flying insects or other flying arthropods, including but not limited to flies, mosquitoes, moths, or gnats. Flying bug insecticide does not include wasp and hornet insecticide, products that are designed to be used exclusively on humans or animals, or a moth-proofing product. For the purposes of this definition only, "moth-proofing product" means a product whose label, packaging, or accompanying literature indicates that the product is designed to protect fabrics from damage by moths, but does not indicate that the product is suitable for use against flying insects or other flying arthropods.

"Fragrance" means a substance or complex mixture of aroma chemicals, natural essential oils, and other functional components, the sole purpose of which is to impart an odor or scent, or to counteract a malodor.

"Furniture coating" means a paint designed for application to room furnishings including, but not limited to, cabinets (kitchen, bath and vanity), tables, chairs, beds, and sofas.

"Furniture maintenance product" means a wax, polish, conditioner, or other product designed for the purpose of polishing, protecting, or enhancing finished wood surfaces other than floors. Furniture maintenance products do not include dusting aids, products designed solely for the purpose of cleaning, and products designed to leave a permanent finish such as stains, sanding sealers, and lacquers.

"Gel" means a colloid in which the disperse phase has combined with the continuous phase to produce a semisolid material, such as jelly.

"General purpose adhesive" means a nonaerosol adhesive designed for use on a variety of substrates. General purpose adhesive does not include:

1. Contact adhesives;

2. Construction, panel, and floor covering adhesives;

3. Adhesives designed exclusively for application on one specific category of substrates (i.e., substrates that are composed of similar materials, such as different types of metals, paper products, ceramics, plastics, rubbers, or vinyls); or

4. Adhesives designed exclusively for use on one specific category of articles (i.e., articles that may be composed of different materials but perform a specific function, such as gaskets, automotive trim, weather-stripping, or carpets).

"General purpose cleaner" means a product designed for general all-purpose cleaning, in contrast to cleaning products designed to clean specific substrates in certain situations. General purpose cleaner includes products designed for general floor cleaning, kitchen or countertop cleaning, and cleaners designed to be used on a variety of hard surfaces and does not include general purpose degreasers and electronic cleaners.

"General purpose degreaser" means a product labeled to remove or dissolve grease, grime, oil, and other oil-based contaminants from a variety of substrates, including automotive or miscellaneous metallic parts. General purpose degreaser does not include engine degreaser, general purpose cleaner, adhesive remover, electronic cleaner, metal polish or cleanser, products used exclusively in solvent cleaning tanks or related equipment, or products that are (i) sold exclusively to establishments that manufacture or construct goods or commodities; and (ii) labeled "not for retail sale." Solvent cleaning tanks or related equipment includes, but is not limited to, cold cleaners, vapor degreasers, conveyorized degreasers, film cleaning machines, or products designed to clean miscellaneous metallic parts by immersion in a container.

"General-use hand or body cleaner or soap" means a cleaner or soap designed to be used routinely on the skin to clean or remove typical or common dirt and soils. General-use hand or body cleaner or soap includes, but is not limited to, hand or body washes, dual-purpose shampoo-body cleaners, shower or bath gels, and moisturizing cleaners or soaps. General-use hand or body cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Glass cleaner" means a cleaning product designed primarily for cleaning surfaces made of glass. Glass cleaner does not include products designed solely for the purpose of cleaning optical materials used in eyeglasses, photographic equipment, scientific equipment, and photocopying machines.

"Gross sales" means the estimated total sales of an ACP product in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C during a specific compliance period (expressed to the nearest pound), based on either of the following methods, whichever the responsible ACP party demonstrates to the satisfaction of the board will provide an accurate sales estimate:

1. Apportionment of national or regional sales of the ACP product to sales, determined by multiplying the average national or regional sales of the product by the fraction of the national or regional population, respectively, that is represented by the current population of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C; or

2. Another documented method that provides an accurate estimate of the total current sales of the ACP product.

"Hair mousse" means a hairstyling foam designed to facilitate styling of a coiffure and provide limited holding power.

"Hair shine" means a product designed for the primary purpose of creating a shine when applied to the hair. Hair shine includes, but is not limited to, dual-use products designed primarily to impart a sheen to the hair. Hair shine does not include hair spray, hair mousse, hair styling gel or spray gel, or products whose primary purpose is to condition or hold the hair.

"Hair spray" means a consumer product designed primarily for the purpose of dispensing droplets of a resin on and into a hair coiffure that will impart sufficient rigidity to the coiffure to establish or retain the style for a period of time.

"Hair styling gel" means a high viscosity, often gelatinous, product that contains a resin and is designed for the application to hair to aid in styling and sculpting of the hair coiffure.

"Heavy-duty hand cleaner or soap" means a product designed to clean or remove difficult dirt and soils such as oil, grease, grime, tar, shellac, putty, printer's ink, paint, graphite, cement, carbon, asphalt, or adhesives from the hand with or without the use of water. Heavy-duty hand cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Herbicide" means a pesticide product designed to kill or retard a plant's growth, but excludes products that are (i) for agricultural use, or (ii) restricted materials that require a permit for use and possession.

"High volatility organic compound" or "HVOC" means a volatile organic compound that exerts a vapor pressure greater than 80 millimeters of mercury (mm Hg) when measured at 20°C.

"Household product" means a consumer product that is primarily designed to be used inside or outside of living quarters or residences that are occupied or intended for occupation by people, including the immediate surroundings.

"Insecticide" means a pesticide product that is designed for use against insects or other arthropods, but excluding products that are:

1. For agricultural use;

2. For a use that requires a structural pest control license under applicable state laws or regulations; or

3. Materials classified for restricted use pursuant to 40 CFR 152.75 and require a pesticide business license from the Virginia Pesticide Control Board pursuant to 2VAC20-40-20 for use and possession.

"Insecticide fogger" means an insecticide product designed to release all or most of its content as a fog or mist into indoor areas during a single application.

"Institutional product" or "industrial and institutional (I&I) product" means a consumer product that is designed for use in the maintenance or operation of an establishment that:

1. Manufactures, transports, or sells goods or commodities, or provides services for profit; or

2. Is engaged in the nonprofit promotion of a particular public, educational, or charitable cause.

Establishments include, but are not limited to, government agencies, factories, schools, hospitals, sanitariums, prisons, restaurants, hotels, stores, automobile service and parts centers, health clubs, theaters, or transportation companies. Institutional product does not include household products and products that are incorporated into or used exclusively in the manufacture or construction of the goods or commodities at the site of the establishment.

"Label" means written, printed, or graphic matter affixed to, applied to, attached to, blown into, formed, molded into, embossed on, or appearing upon a consumer product or consumer product package, for purposes of branding, identifying, or giving information with respect to the product or to the contents of the package.

"Laundry prewash" means a product that is designed for application to a fabric prior to laundering and that supplements and contributes to the effectiveness of laundry detergents or provides specialized performance.

"Laundry starch product" means a product that is designed for application to a fabric, either during or after laundering, to impart and prolong a crisp, fresh look and may also act to help ease ironing of the fabric. Laundry starch product includes, but is not limited to, fabric finish, sizing, and starch.

"Lawn and garden insecticide" means an insecticide product labeled primarily to be used in household lawn and garden areas to protect plants from insects or other arthropods. Notwithstanding the requirements of 9VAC5-45-340 C, aerosol lawn and garden insecticides may claim to kill insects or other arthropods.

"Liquid" means a substance or mixture of substances that is capable of a visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21). Liquid does not include powders or other materials that are composed entirely of solid particles.

"Lubricant" means a product designed to reduce friction, heat, noise, or wear between moving parts, or to loosen rusted or immovable parts or mechanisms. Lubricant does not include automotive power steering fluids; products for use inside power generating motors, engines, and turbines, and their associated power-transfer gearboxes; two-cycle oils or other products designed to be added to fuels; products for use on the human body or animals; or products that are:

1. Sold exclusively to establishments that manufacture or construct goods or commodities; and

2. Labeled "not for retail sale."

"LVP content" means the total weight, in pounds, of LVP-VOC in an ACP product multiplied by 100 and divided by the product's total net weight (in pounds, excluding container and packaging), expressed to the nearest 0.1.

"LVP-VOC" means a chemical compound or mixture that contains at least one carbon atom and meets one of the following:

1. Has a vapor pressure less than 0.1 mm Hg at 20°C, as determined by CARB Method 310 (see 9VAC5-20-21);

2. Is a chemical compound with more than 12 carbon atoms, or a chemical mixture composed solely of compounds with more than 12 carbon atoms, and the vapor pressure is unknown;

3. Is a chemical compound with a boiling point greater than 216°C, as determined by CARB Method 310 (see 9VAC5-20-21); or

4. Is the weight percent of a chemical mixture that boils above 216°C, as determined by CARB Method 310 (see 9VAC5-20-21).

For the purposes of the definition of LVP-VOC, "chemical compound" means a molecule of definite chemical formula and isomeric structure, and "chemical mixture" means a substrate composed of two or more chemical compounds.

"Manufacturer" means a person who imports, manufactures, assembles, produces, packages, repackages, or relabels a consumer product.

"Medicated astringent or medicated toner" means a product regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. Medicated astringent or medicated toner includes, but is not limited to, clarifiers and substrate-impregnated products. Medicated astringent or medicated toner does not include hand, face, or body cleaner or soap products, astringent or toner, cold cream, lotion, antiperspirants, or products that must be purchased with a doctor's prescription.

"Medium volatility organic compound" or "MVOC" means a volatile organic compound that exerts a vapor pressure greater than 2 mm Hg and less than or equal to 80 mm Hg when measured at 20°C.

"Metal polish or cleanser" means a product designed primarily to improve the appearance of finished metal, metallic, or metallized surfaces by physical or chemical action. To "improve the appearance" means to remove or reduce stains, impurities, or oxidation from surfaces or to make surfaces smooth and shiny. Metal polish or cleanser includes, but is not limited to, metal polishes used on brass, silver, chrome, copper, stainless steel, and other ornamental metals. Metal polish or cleanser does not include automotive wax, polish, sealant, or glaze, wheel cleaner, paint remover or stripper, products designed and labeled exclusively for automotive and marine detailing, or products designed for use in degreasing tanks.

"Missing data days" means the number of days in a compliance period for which the responsible ACP party has failed to provide the required enforceable sales or VOC content data to the board, as specified in the ACP agreement.

"Mist spray adhesive" means an aerosol that is not a special purpose spray adhesive and that delivers a particle or mist spray, resulting in the formation of fine, discrete particles that yield a generally uniform and smooth application of adhesive to the substrate.

"Multipurpose dry lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity by depositing a thin film of graphite, molybdenum disulfide ("moly"), or polytetrafluoroethylene or closely related fluoropolymer ("teflon") on surfaces; and

2. Designed for general purpose lubrication, or for use in a wide variety of applications.

"Multipurpose lubricant" means a lubricant designed for general purpose lubrication, or for use in a wide variety of applications. Multipurpose lubricant does not include multipurpose dry lubricants, penetrants, or silicone-based multipurpose lubricants.

"Multipurpose solvent" means an organic liquid designed to be used for a variety of purposes, including cleaning or degreasing of a variety of substrates, or thinning, dispersing, or dissolving other organic materials. Multipurpose solvent includes solvents used in institutional facilities, except for laboratory reagents used in analytical, educational, research, scientific, or other laboratories. Multipurpose solvent does not include solvents used in cold cleaners, vapor degreasers, conveyorized degreasers or film cleaning machines, or solvents that are incorporated into, or used exclusively in the manufacture or construction of, the goods or commodities at the site of the establishment.

"Nail polish" means a clear or colored coating designed for application to the fingernails or toenails and including but not limited to, lacquers, enamels, acrylics, base coats, and top coats.

"Nail polish remover" means a product designed to remove nail polish and coatings from fingernails or toenails.

"Nonaerosol product" means a consumer product that is not dispensed by a pressurized spray system.

"Noncarbon containing compound" means a compound that does not contain carbon atoms.

"Nonresilient flooring" means flooring of a mineral content that is not flexible. Nonresilient flooring includes but is not limited to terrazzo, marble, slate, granite, brick, stone, ceramic tile, and concrete.

"Nonselective terrestrial herbicide" means a terrestrial herbicide product that is toxic to plants without regard to species.

"One-product business" means a responsible ACP party that sells, supplies, offers for sale, or manufactures for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C:

1. Only one distinct ACP product, sold under one product brand name, which is subject to the requirements of 9VAC5-45-310; or

2. Only one distinct ACP product line subject to the requirements of 9VAC5-45-310, in which all the ACP products belong to the same product category and the VOC contents in the products are within 98.0% and 102.0% of the arithmetic mean of the VOC contents over the entire product line.

"Oven cleaner" means a cleaning product designed to clean and to remove dried food deposits from oven walls.

"Paint" means a pigmented liquid, liquefiable, or mastic composition designed for application to a substrate in a thin layer that is converted to an opaque solid film after application and is used for protection, decoration or identification, or to serve some functional purpose such as the filling or concealing of surface irregularities or the modification of light and heat radiation characteristics.

"Paint remover or stripper" means a product designed to strip or remove paints or other related coatings, by chemical action, from a substrate without markedly affecting the substrate. Paint remover or stripper does not include multipurpose solvents, paint brush cleaners, products designed and labeled exclusively to remove graffiti, and hand cleaner products that claim to remove paints and other related coatings from skin.

"Penetrant" means a lubricant designed and labeled primarily to loosen metal parts that have bonded together due to rusting, oxidation, or other causes. Penetrant does not include multipurpose lubricants that claim to have penetrating qualities but are not labeled primarily to loosen bonded parts.

"Pesticide" means and includes a substance or mixture of substances labeled, designed, or intended for use in preventing, destroying, repelling, or mitigating a pest, or a substance or mixture of substances labeled, designed, or intended for use as a defoliant, desiccant, or plant regulator, provided that the term "pesticide" will not include a substance, mixture of substances, or device that the U.S. Environmental Protection Agency does not consider to be a pesticide.

"Pre-ACP VOC content" means the lowest VOC content of an ACP product between January 1, 1990, and the date on which the application for a proposed ACP is submitted to the board, based on the data obtained from accurate records available to the board that yields the lowest VOC content for the product.

"Pressurized gas duster" means a pressurized product labeled to remove dust from a surface solely by means of mass air or gas flow, including surfaces such as photographs, photographic film negatives, computer keyboards, and other types of surfaces that cannot be cleaned with solvents. Pressurized gas duster does not include dusting aids.

"Principal display panel" means that part of a label that is so designed as to most likely be displayed, presented, shown, or examined under normal and customary conditions of display or purchase. Whenever a principal display panel appears more than once, all requirements pertaining to the principal display panel shall pertain to all such principal display panels.

"Product brand name" means the name of the product exactly as it appears on the principal display panel of the product.

"Product category" means the applicable category that best describes the product as listed in this section and in Table 45-3A in 9VAC5-45-310 A.

"Product form," for the purpose of complying with 9VAC5-45-390 (notification, records and reporting) only, means the applicable form that most accurately describes the product's dispensing form as follows:

A = Aerosol Product.

S = Solid.

P = Pump Spray.

L = Liquid.

SS = Semisolid.

O = Other.

"Product line" means a group of products of identical form and function belonging to the same product category.

"Propellant" means a liquefied or compressed gas that is used in whole or in part, such as a cosolvent, to expel a liquid or other material from the same self-pressurized container or from a separate container.

"Pump spray" means a packaging system in which the product ingredients within the container are not under pressure and in which the product is expelled only while a pumping action is applied to a button, trigger, or other actuator.

"Reconcile " or " reconciliation" means to provide sufficient VOC emission reductions to completely offset shortfalls generated under the ACP during an applicable compliance period.

"Reconciliation of shortfalls plan" means the plan to be implemented by the responsible ACP party when shortfalls have occurred, as approved by the board pursuant to 9VAC5-45-320 B 1 g (10).

"Responsible ACP party" means the company, firm, or establishment that is listed on the ACP product's label. If the label lists two or more companies, firms, or establishments, the responsible ACP party is the party that the ACP product was "manufactured for" or "distributed by," as noted on the label.

"Responsible party" means the company, firm, or establishment that is listed on the product's label. If the label lists two companies, firms, or establishments, the responsible party is the party that the product was "manufactured for" or "distributed by," as noted on the label.

"Restricted materials" means pesticides established as restricted materials under Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Retail outlet" means an establishment at which consumer products are sold, supplied, or offered for sale directly to consumers.

"Retailer" means a person who sells, supplies, or offers consumer products for sale directly to consumers.

"Roll-on product" means an antiperspirant or deodorant that dispenses active ingredients by rolling a wetted ball or wetted cylinder on the affected area.

"Rubber and vinyl protectant" means a product designed to protect, preserve, or renew vinyl, rubber, and plastic on vehicles, tires, luggage, furniture, and household products such as vinyl covers, clothing, and accessories. Rubber and vinyl protectant does not include products primarily designed to clean the wheel rim, such as aluminum or magnesium wheel cleaners, and tire cleaners that do not leave an appearance-enhancing or protective substance on the tire.

"Rubbing alcohol" means a product containing isopropyl alcohol (also called isopropanol) or denatured ethanol and labeled for topical use, usually to decrease germs in minor cuts and scrapes, to relieve minor muscle aches, as a rubefacient, and for massage.

"Sealant and caulking compound" means a product with adhesive properties that is designed to fill, seal, waterproof, or weatherproof gaps or joints between two surfaces. Sealant and caulking compound does not include roof cements and roof sealants; insulating foams; removable caulking compounds; clear or paintable or water resistant caulking compounds; floor seam sealers; products designed exclusively for automotive uses; or sealers that are applied as continuous coatings. Sealant and caulking compound also does not include units of product, less packaging, which weigh more than one pound and consist of more than 16 fluid ounces. For the purposes of this definition only, "removable caulking compound " means a compound that temporarily seals windows or doors for three- to six-month time intervals; and "clear or paintable or water resistant caulking compound " means a compound that contains no appreciable level of opaque fillers or pigments, transmits most or all visible light through the caulk when cured, is paintable, and is immediately resistant to precipitation upon application.

"Semisolid" means a product that, at room temperature, will not pour, but will spread or deform easily, including, but not limited to gels, pastes, and greases.

"Shaving cream" means an aerosol product that dispenses a foam lather intended to be used with a blade or cartridge razor or other wet-shaving system, in the removal of facial or other bodily hair.

"Shortfall" means the ACP emissions minus the ACP limit when the ACP emissions were greater than the ACP limit during a specified compliance period, expressed to the nearest pound of VOC. Shortfall does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Silicone-based multipurpose lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity primarily through the use of silicone compounds including, but not limited to, polydimethylsiloxane; and

2. Designed and labeled for general purpose lubrication, or for use in a wide variety of applications.

Silicone-based multipurpose lubricant does not include products designed and labeled exclusively to release manufactured products from molds.

"Single phase aerosol air freshener" means an aerosol air freshener with the liquid contents in a single homogeneous phase and that does not require that the product container be shaken before use.

"Small business" means any stationary source that is owned or operated by a person that employs 100 or fewer individuals; is a small business concern as defined in the federal Small Business Act; is not a major stationary source; does not emit 50 tons or more per year of any regulated pollutant; and emits less than 75 tons per year of all regulated pollutants.

"Solid" means a substance or mixture of substances that, either whole or subdivided (such as the particles composing a powder), is not capable of visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

"Special purpose spray adhesive" means an aerosol adhesive that meets any of the following definitions:

1. "Mounting adhesive" means an aerosol adhesive designed to permanently mount photographs, artwork, or other drawn or printed media to a backing (paper, board, cloth, etc.) without causing discoloration to the artwork.

2. "Flexible vinyl adhesive" means an aerosol adhesive designed to bond flexible vinyl to substrates. "Flexible vinyl" means a nonrigid polyvinyl chloride plastic with at least 5.0%, by weight, of plasticizer content. A plasticizer is a material, such as a high boiling point organic solvent, that is incorporated into a plastic to increase its flexibility, workability, or distensibility, and may be determined using ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21) or from product formulation data.

3. "Polystyrene foam adhesive" means an aerosol adhesive designed to bond polystyrene foam to substrates.

4. "Automobile headliner adhesive" means an aerosol adhesive designed to bond together layers in motor vehicle headliners.

5. "Polyolefin adhesive" means an aerosol adhesive designed to bond polyolefins to substrates.

6. "Laminate repair or edgebanding adhesive" means an aerosol adhesive designed for:

a. The touch-up or repair of items laminated with high pressure laminates (e.g., lifted edges, delaminates, etc.); or

b. The touch-up, repair, or attachment of edgebonding materials, including but not limited to, other laminates, synthetic marble, veneers, wood molding, and decorative metals.

For the purposes of this definition, "high pressure laminate" means sheet materials that consist of paper, fabric, or other core material that have been laminated at temperatures exceeding 265°F and at pressures between 1,000 and 1,400 psi.

7. "Automotive engine compartment adhesive" means an aerosol adhesive designed for use in motor vehicle under-the-hood applications that require oil and plasticizer resistance, as well as high shear strength, at temperatures of 200-275°F.

"Spot remover" means a product labeled to clean localized areas or remove localized spots or stains on cloth or fabric, such as drapes, carpets, upholstery, and clothing, that does not require subsequent laundering to achieve stain removal. Spot remover does not include dry cleaning fluid, laundry prewash, or multipurpose solvent.

"Spray buff product" means a product designed to restore a worn floor finish in conjunction with a floor buffing machine and special pad.

"Stick product" means an antiperspirant or a deodorant that contains active ingredients in a solid matrix form, and that dispenses the active ingredients by frictional action on the affected area.

"Structural waterproof adhesive" means an adhesive whose bond lines are resistant to conditions of continuous immersion in fresh or salt water and that conforms with the definition in the federal consumer products regulation, 40 CFR 59 Subpart C.

"Surplus reduction" means the ACP limit minus the ACP emissions when the ACP limit was greater than the ACP emissions during a given compliance period, expressed to the nearest pound of VOC. Except as provided in 9VAC5-45-320 F 3, surplus reduction does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Surplus trading" means the buying, selling, or transfer of surplus reductions between responsible ACP parties.

"Terrestrial" means to live on or grow from land.

"Tire sealant and inflator" means a pressurized product that is designed to temporarily inflate and seal a leaking tire.

"Total maximum historical emissions" or "TMHE" means the total VOC emissions from all ACP products for which the responsible ACP party has failed to submit the required VOC content or enforceable sales records. The TMHE shall be calculated for each ACP product during each portion of a compliance period for which the responsible ACP party has failed to provide the required VOC content or enforceable sales records. The TMHE shall be expressed to the nearest pound and calculated according to the following calculation:

where:

Highest VOC content = the maximum VOC content that the ACP product has contained in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting VOC content data (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual VOC content, if the responsible ACP party has provided all required VOC Content data (for the entire compliance period), as specified in the ACP agreement.

Highest sales = the maximum one-year gross sales of the ACP product in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting enforceable sales records (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual one-year enforceable sales for the product, if the responsible ACP party has provided all required enforceable sales records (for the entire compliance period), as specified in the ACP agreement approving the ACP.

Missing data days = (see definition in this section).

1, 2,..., N = each product in an ACP, up to the maximum N, for which the responsible ACP party has failed to submit the required enforceable sales or VOC content data as specified in the ACP agreement.

"Type A propellant" means a compressed gas such as CO₂, N₂, N₂O, or compressed air that is used as a propellant and is either incorporated with the product or contained in a separate chamber within the product's packaging.

"Type B propellant" means a halocarbon that is used as a propellant including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), and hydrofluorocarbons (HFCs).

"Type C propellant" means a propellant that is not a Type A or Type B propellant, including propane, isobutane, n-butane, and dimethyl ether (also known as dimethyl oxide).

"Undercoating" means an aerosol product designed to impart a protective, nonpaint layer to the undercarriage, trunk interior, or firewall of motor vehicles to prevent the formation of rust or to deaden sound. Undercoating includes, but is not limited to, rubberized, mastic, or asphaltic products.

"Usage directions" means the text or graphics on the product's principal display panel, label, or accompanying literature that describes to the end user how and in what quantity the product is to be used.

"VOC content" means, except for charcoal lighter products, the total weight of VOC in a product expressed as a percentage of the product weight (exclusive of the container or packaging), as determined pursuant to 9VAC5-45-370 B and C.

For charcoal lighter material products only,

where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"Volatile organic compound" or "VOC" means volatile organic compound as defined in 9VAC5-10-20.

"Wasp and hornet insecticide" means an insecticide product that is designed for use against wasps, hornets, yellow jackets or bees by allowing the user to spray from a distance a directed stream or burst at the intended insects or their hiding place.

"Waterproofer" means a product designed and labeled exclusively to repel water from fabric or leather substrates. Waterproofer does not include fabric protectants.

"Wax" means a material or synthetic thermoplastic substance generally of high molecular weight hydrocarbons or high molecular weight esters of fatty acids or alcohols, except glycerol and high polymers (plastics). Wax includes, but is not limited to, substances derived from the secretions of plants and animals such as carnauba wax and beeswax, substances of a mineral origin such as ozocerite and paraffin, and synthetic polymers such as polyethylene.

"Web spray adhesive" means an aerosol adhesive that is not a mist spray or special purpose spray adhesive.

"Wood floor wax" means wax-based products for use solely on wood floors.

"Working day" means a day between Monday through Friday, inclusive, except for federal holidays.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-310 Standard for volatile organic compounds

A. Except as provided in 9VAC5-45-290, 9VAC5-45-320, and 9VAC5-45-330, no owner or other person shall (i) sell, supply, or offer for sale a consumer product manufactured on or after the applicable compliance date specified in 9VAC5-45-360 or (ii) manufacture for sale a consumer product on or after the applicable compliance date specified in 9VAC5-45-360, that contains volatile organic compounds in excess of the limits specified in Table 45-3A.

| TABLE 45-3A | | | | | | --- | --- | --- | --- | --- | | Product Category | Percent VOC by Weight | | | | | Adhesives | | | | | | | Aerosol adhesives | | | | | | | Mist spray adhesive: | 65% | | | | | Web spray adhesive: | 55% | | | | | Special purpose spray adhesives | | | | | | | Automotive engine compartment adhesive: | 70% | | | | | Automotive headliner adhesive: | 65% | | | | | Flexible vinyl adhesive: | 70% | | | | | Laminate repair or edgebanding adhesive: | 60% | | | | | Mounting adhesive: | 70% | | | | | Polystyrene foam adhesive: | 65% | | | | | Polyolefin adhesive: | 60% | | | Contact adhesive: | 80% | | | | | Construction, panel, and floor covering adhesive: | 15% | | | | | General purpose adhesive: | 10% | | | | | Structural waterproof adhesive: | 15% | | | | Air fresheners | | | | | | | Single-phase aerosol: | 30% | | | | | Double-phase aerosol: | 25% | | | | | Liquid/Pump spray: | 18% | | | | | Solid/Gel: | 3% | | | | Antiperspirants | | | | | | | Aerosol: | 40% HVOC, 10% MVOC | | | | | Nonaerosol: | 0% HVOC, 0% MVOC | | | | Automotive brake cleaner: | 45% | | | | | Automotive rubbing or polishing compound: | 17% | | | | | Automotive wax, polish, sealant, or glaze | | | | | | | Hard paste wax: | 45% | | | | | Instant detailer: | 3% | | | | | All other forms: | 15% | | | | Automotive windshield washer fluid: | 35% | | | | | Bathroom and tile cleaners | | | | | | | Aerosol: | 7% | | | | | All other forms: | 5% | | | | Bug and tar remover: | 40% | | | | | Carburetor or fuel-injection air intake cleaner: | 45% | | | | | Carpet and upholstery cleaners | | | | | | | Aerosol: | 7% | | | | | Nonaerosol (dilutable): | 0.1% | | | | | Nonaerosol (ready-to-use): | 3.0% | | | | Charcoal lighter material: | See subsection F of this section. | | | | | Cooking spray, aerosol: | 18% | | | | | Deodorants | | | | | | | Aerosol: | 0% HVOC, 10% MVOC | | | | | Nonaerosol: | 0% HVOC, 0% MVOC | | | | Dusting aids | | | | | | | Aerosol: | 25% | | | | | All other forms: | 7% | | | | Engine degreasers | | | | | | | Aerosol: | 35% | | | | | Nonaerosol: | 5% | | | | Fabric protectant: | 60% | | | | | Floor polishes/Waxes | | | | | | | Products for flexible flooring materials: | 7% | | | | | Products for nonresilient flooring: | 10% | | | | | Wood floor wax: | 90% | | | | Floor wax stripper, nonaerosol: | See subsection H of this section. | | | | | Furniture maintenance products | | | | | | | Aerosol: | 17% | | | | | All other forms except solid or paste: | 7% | | | | General purpose cleaners | | | | | | | Aerosol: | 10% | | | | | Nonaerosol: | 4% | | | | General purpose degreasers | | | | | | | Aerosol: | 50% | | | | | Nonaerosol: | 4% | | | | Glass cleaners | | | | | | | Aerosol: | 12% | | | | | Nonaerosol: | 4% | | | | Hair mousse: | 6% | | | | | Hair shine: | 55% | | | | | Hair spray: | 55% | | | | | Hair styling gel: | 6% | | | | | Heavy-duty hand cleaner or soap: | 8% | | | | | Insecticides | | | | | | | Crawling bug (aerosol): | 15% | | | | | Crawling bug (all other forms): | 20% | | | | | Flea and tick: | 25% | | | | | Flying bug (aerosol): | 25% | | | | | Flying bug (all other forms): | 35% | | | | | Fogger: | 45% | | | | | Lawn and garden (all other forms): | 20% | | | | | Lawn and garden (nonaerosol): | 3% | | | | | Wasp and hornet: | 40% | | | | Laundry prewash | | | | | | | Aerosol/Solid: | 22% | | | | | All other forms: | 5% | | | | Laundry starch product: | 5% | | | | | Metal polish or cleanser: | 30% | | | | | Multipurpose lubricant (excluding solid or semi-solid products): | 50% | | | | | Nail polish remover: | 75% | | | | | Nonselective terrestrial herbicide, nonaerosol: | 3% | | | | | Oven cleaners | | | | | | | Aerosol/Pump spray: | 8% | | | | | Liquid: | 5% | | | | Paint remover or stripper: | 50% | | | | | Penetrant: | 50% | | | | | Rubber and vinyl protectants | | | | | | | Nonaerosol: | 3% | | | | | Aerosol: | 10% | | | | Sealant and caulking compound: | 4% | | | | | Shaving cream: | 5% | | | | | Silicone-based multipurpose lubricant (excluding solid or semi-solid products): | 60% | | | | | Spot removers | | | | | | | Aerosol: | 25% | | | | | Nonaerosol: | 8% | | | | Tire sealant and inflator: | 20% | | | | | Undercoating, aerosol: | 40% | | | |

B. No owner or other person shall sell, supply, offer for sale, or manufacture for sale an antiperspirant or a deodorant that contains a compound that has been defined as a toxic pollutant in 9VAC5-60-210 C.

C. Provisions follow concerning products that are diluted prior to use.

1. For consumer products for which the label, packaging, or accompanying literature specifically states that the product should be diluted with water or non-VOC solvent prior to use, the limits specified in Table 45-3A shall apply to the product only after the minimum recommended dilution has taken place. For purposes of this subsection, "minimum recommended dilution" shall not include recommendations for incidental use of a concentrated product to deal with limited special applications such as hard-to-remove soils or stains.

2. For consumer products for which the label, packaging, or accompanying literature states that the product should be diluted with a VOC solvent prior to use, the limits specified in Table 45-3A shall apply to the product only after the maximum recommended dilution has taken place.

D. The following provisions apply to sell through of consumer products manufactured before August 1, 2010:

1. Notwithstanding the provisions of subsection A, G, H or I of this section, a consumer product manufactured before the applicable compliance date specified in 9VAC5-45-360, may be sold, supplied, or offered for sale after the applicable compliance date if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the product container or package.

2. Notwithstanding the provisions of subsection A, G, H, or I of this section, a consumer product manufactured after the applicable compliance date specified in 9VAC5-45-360 and before August 1, 2010, may be sold, supplied, or offered for sale on or after August 1, 2010, if it complies with all of the provisions of Article 4 (9VAC5-45-400 et seq.) of this part.

3. Except as provided in subdivisions 1 and 2 of this subsection, displaying the date of manufacture, or a code indicating the date of manufacture, on the product container or package does not exempt the owner or product from the provisions of this article.

E. For those consumer products that are registered under FIFRA, the effective date of the VOC standards shall be one year after the applicable compliance date specified in 9VAC5-45-360.

F. The following requirements shall apply to all charcoal lighter material products:

1. Effective as of the applicable compliance date specified in 9VAC5-45-360, no owner or other person shall (i) sell, supply, or offer for sale a charcoal lighter material product manufactured on or after the applicable compliance date or (ii) manufacture for sale a charcoal lighter material product unless at the time of the transaction:

a. The manufacturer can demonstrate to the board's satisfaction that it has been issued a currently effective certification by CARB under the Consumer Products provisions under Subchapter 8.5, Article 2, § 94509(h), of Title 17 of the California Code of Regulations (see 9VAC5-20-21). This certification remains in effect for as long as the CARB certification remains in effect. A manufacturer claiming such a certification on this basis must submit to the board a copy of the certification decision (i.e., the executive order), including all conditions established by CARB applicable to the certification.

b. The manufacturer or distributor of the charcoal lighter material has been issued a currently effective certification pursuant to subdivision 2 of this subsection.

c. The charcoal lighter material meets the formulation criteria and other conditions specified in the applicable ACP agreement issued pursuant to subdivision 2 of this subsection.

d. The product usage directions for the charcoal lighter material are the same as those provided to the board pursuant to subdivision 2 c of this subsection.

2. Provisions follow concerning certification requirements.

a. No charcoal lighter material formulation shall be certified under this subdivision unless the applicant for certification demonstrates to the board's satisfaction that the VOC emissions from the ignition of charcoal with the charcoal lighter material are less than or equal to 0.020 pound of VOC per start, using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21). The provisions relating to LVP-VOC in 9VAC5-45-290 F and 9VAC5-45-300 C shall not apply to a charcoal lighter material subject to the requirements of 9VAC5-45-310 A and this subsection.

b. The board may approve alternative test procedures that are shown to provide equivalent results to those obtained using the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

c. A manufacturer or distributor of charcoal lighter material may apply to the board for certification of a charcoal lighter material formulation in accordance with this subdivision. The application shall be in writing and shall include, at a minimum, the following:

(1) The results of testing conducted pursuant to the procedures specified in South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21); and

(2) The exact text or graphics that will appear on the charcoal lighter material's principal display panel, label, or accompanying literature. The provided material shall clearly show the usage directions for the product. These directions shall accurately reflect the quantity of charcoal lighter material per pound of charcoal that was used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product, unless:

(a) The charcoal lighter material is intended to be used in fixed amounts independent of the amount of charcoal used, such as certain paraffin cubes, or

(b) The charcoal lighter material is already incorporated into the charcoal, such as certain "bag light," "instant light" or "match light" products.

(3) For a charcoal lighter material that meets the criteria specified in subdivision 2 c (2) (a) of this subsection, the usage instructions provided to the board will accurately reflect the quantity of charcoal lighter material used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product.

(4) Physical property data, formulation data, or other information required by the board for use in determining when a product modification has occurred and for use in determining compliance with the conditions specified on the ACP agreement issued pursuant to subdivision 2 e of this subsection.

d. Within 30 days of receipt of an application, the board will advise the applicant in writing either that it is complete or that specified additional information is required to make it complete. Within 30 days of receipt of additional information, the board will advise the applicant in writing either that the application is complete, or that specified additional information or testing is still required before it can be deemed complete.

e. If the board finds that an application meets the requirements of subdivision 2 of this subsection, then an ACP agreement shall be issued certifying the charcoal lighter material formulation and specifying such conditions as are necessary to insure that the requirements of this subsection are met. The board will act on a complete application within 90 days after the application is deemed complete.

3. For charcoal lighter material for which certification has been granted pursuant to subdivision 2 of this subsection, the applicant for certification shall notify the board in writing within 30 days of: (i) a change in the usage directions, or (ii) a change in product formulation, test results, or other information submitted pursuant to subdivision 2 of this subsection that may result in VOC emissions greater than 0.020 pound of VOC per start.

4. If the board determines that a certified charcoal lighter material formulation results in VOC emissions from the ignition of charcoal that are greater than 0.020 pound of VOC per start, as determined by the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) and the statistical analysis procedures contained therein, the board will revoke or modify the certification as is necessary to assure that the charcoal lighter material will result in VOC emissions of less than or equal to 0.020 pound of VOC per start.

G. Provisions follow concerning aerosol adhesives.

1. The standards for aerosol adhesives apply to all uses of aerosol adhesives, including consumer, industrial, and commercial uses. Except as otherwise provided in 9VAC5-45-290 and 9VAC5-45-330, no owner or other person shall sell, supply, offer for sale, use, or manufacture for sale an aerosol adhesive that, at the time of sale, use, or manufacture, contains VOCs in excess of the specified standard.

2. a. In order to qualify as a "special purpose spray adhesive," the product must meet one or more of the definitions for special purpose spray adhesive specified in 9VAC5-45-300 C, but if the product label indicates that the product is suitable for use on a substrate or application not listed in 9VAC5-45-300 C, then the product shall be classified as either a "web spray adhesive" or a "mist spray adhesive."

b. If a product meets more than one of the definitions specified in 9VAC5-45-300 C for "special purpose spray adhesive," and is not classified as a "web spray adhesive" or "mist spray adhesive" under subdivision 2 a of this subsection, then the VOC limit for the product shall be the lowest applicable VOC limit specified in 9VAC5-45-310 A.

3. Effective as of the applicable compliance dates specified in 9VAC5-45-360, no person shall (i) sell, supply, or offer for sale an aerosol adhesive manufactured on or after the applicable compliance date or (ii) manufacture for sale an aerosol adhesive that contains any of the following compounds: methylene chloride, perchloroethylene, or trichloroethylene.

4. All aerosol adhesives must comply with the labeling requirements specified in 9VAC5-45-340 D.

H. Effective as of the applicable compliance date specified in 9VAC5-45-360, no owner or other person shall sell, supply, offer for sale, or manufacture for use a floor wax stripper unless the following requirements are met:

1. The label of each nonaerosol floor wax stripper must specify a dilution ratio for light or medium build-up of polish that results in an as-used VOC concentration of 3.0% by weight or less.

2. If a nonaerosol floor wax stripper is also intended to be used for removal of heavy build-up of polish, the label of that floor wax stripper must specify a dilution ratio for heavy build-up of polish that results in an as-used VOC concentration of 12% by weight or less.

3. The terms "light build-up," "medium build-up" or "heavy build-up" are not specifically required as long as comparable terminology is used.

I. For a consumer product for which standards are specified under subsection A of this section, no owner or other person shall sell, supply, offer for sale, or manufacture for sale a consumer product that contains any of the following ozone-depleting compounds:

CFC-11 (trichlorofluoromethane), CFC-12 (dichlorodifluoromethane);

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

CFC-114 (1-chloro-1,1-difluoro-2-chloro-2,2-difluoroethane);

CFC-115 (chloropentafluoroethane), halon 1211 (bromochlorodifluoromethane);

halon 1301 (bromotrifluoromethane), halon 2402 (dibromotetrafluoroethane);

HCFC-22 (chlorodifluoromethane), HCFC-123 (2,2-dichloro-1,1,1-trifluoroethane);

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

HCFC-141b (1,1-dichloro-1-fluoroethane), HCFC-142b (1-chloro-1,1-difluoroethane);

1,1,1-trichloroethane; or

carbon tetrachloride.

J. The requirements of subsection I of this section shall not apply to an existing product formulation that complies with Table 45-3A or an existing product formulation that is reformulated to meet Table 45-3A, provided the ozone-depleting compound content of the reformulated product does not increase.

K. The requirements of subsection I of this section shall not apply to ozone-depleting compounds that may be present as impurities in a consumer product in an amount equal to or less than 0.01% by weight of the product.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-320 Alternative control plan (ACP) for consumer products

A. 1. Manufacturers of consumer products may seek an ACP agreement in accordance with subsections B through L of this section.

2. Only responsible ACP parties for consumer products may enter into an ACP agreement under the provisions of this section.

B. Provisions follow concerning the requirements and process for approval of an ACP.

1. To be considered by the board for approval, an application for a proposed ACP shall be submitted in writing to the board by the responsible ACP party and shall contain all of the following:

a. An identification of the contact persons, phone numbers, names, and addresses of the responsible ACP party that is submitting the ACP application and will be implementing the ACP requirements specified in the ACP agreement.

b. A statement of whether the responsible ACP party is a small business or a one-product business.

c. A listing of the exact product brand name, form, available variations (flavors, scents, colors, sizes, etc.), and applicable product category for each distinct ACP product that is proposed for inclusion in the ACP.

d. For each proposed ACP product identified in subdivision 1 c of this subsection, a demonstration to the satisfaction of the board that the enforceable sales records to be used by the responsible ACP party for tracking product sales meet the minimum criteria specified in subdivision 1 d (5) of this subsection. To provide this demonstration, the responsible ACP party shall either demonstrate to the satisfaction of the board that other records provided to the board in writing by the responsible ACP party meet the minimum criteria of subdivision 1 d (5) of this subsection for tracking product sales of each ACP product, or do all of the following:

(1) Provide the contact persons, phone numbers, names, street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales;

(2) Determine the enforceable sales of each product using enforceable sales records;

(3) Demonstrate, to the satisfaction of the board, the validity of the enforceable sales based on enforceable sales records provided by the contact persons or the responsible ACP party;

(4) Calculate the percentage of the gross sales that is composed of enforceable sales; and

(5) Determine which ACP products have enforceable sales that are 75% or more of the gross sales. Only ACP products meeting this criteria shall be allowed to be sold under an ACP.

e. For each of the ACP products identified in subdivision 1 d (5) of this subsection, the inclusion of the following:

(1) Legible copies of the existing labels for each product;

(2) The VOC content and LVP content for each product. The VOC content and LVP content shall be reported for two different periods as follows:

(a) The VOC and LVP contents of the product at the time the application for an ACP is submitted, and

(b) The VOC and LVP contents of the product that were used at any time within the four years prior to the date of submittal of the application for an ACP if either the VOC or LVP contents have varied by more than plus or minus 10% of the VOC or LVP contents reported in subdivision 1 e (2) (a) of this subsection.

f. A written commitment obligating the responsible ACP party to date-code every unit of each ACP product approved for inclusion in the ACP. The commitment shall require the responsible ACP party to display the date code on each ACP product container or package no later than five working days after the date an ACP agreement approving an ACP is signed by the board.

g. An operational plan covering all the products identified under subdivision 1 d (5) of this subsection for each compliance period that the ACP will be in effect. The operational plan shall contain all of the following:

(1) An identification of the compliance periods and dates for the responsible ACP party to report the information required by the board in the ACP agreement approving an ACP. The length of the compliance period shall be chosen by the responsible ACP party (not to exceed 365 days). The responsible ACP party shall also choose the dates for reporting information such that all required VOC content and enforceable sales data for all ACP products shall be reported to the board at the same time and at the same frequency.

(2) An identification of specific enforceable sales records to be provided to the board for enforcing the provisions of this article and the ACP agreement approving an ACP. The enforceable sales records shall be provided to the board no later than the compliance period dates specified in subdivision 1 g (1) of this subsection.

(3) For a small business or a one-product business that will be relying to some extent on surplus trading to meet its ACP limits, a written commitment from the responsible ACP party that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP.

(4) For each ACP product, all VOC content levels that will be applicable for the ACP product during each compliance period. The plan shall also identify the specific method by which the VOC content will be determined and the statistical accuracy and precision (repeatability and reproducibility) will be calculated for each specified method.

(5) The projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect.

(6) A detailed demonstration showing the combination of specific ACP reformulations or surplus trading (if applicable) that is sufficient to ensure that the ACP emissions will not exceed the ACP limit for each compliance period that the ACP will be in effect, the approximate date within each compliance period that such reformulations or surplus trading are expected to occur, and the extent to which the VOC contents of the ACP products will be reduced (i.e., by ACP reformulation). This demonstration shall use the equations specified in 9VAC5-45-300 C for projecting the ACP emissions and ACP limits during each compliance period. This demonstration shall also include all VOC content levels and projected enforceable sales for all ACP products to be sold during each compliance period.

(7) A certification that all reductions in the VOC content of a product will be real, actual reductions that do not result from changing product names, mischaracterizing ACP product reformulations that have occurred in the past, or other attempts to circumvent the provisions of this article.

(8) Written explanations of the date codes that will be displayed on each ACP product's container or packaging.

(9) A statement of the approximate dates by which the responsible ACP party plans to meet the applicable ACP VOC standards for each product in the ACP.

(10) An operational plan ("reconciliation of shortfalls plan") that commits the responsible ACP party to completely reconcile shortfalls, even, to the extent permitted by law, if the responsible ACP party files for bankruptcy protection. The plan for reconciliation of shortfalls shall contain all of the following:

(a) A clear and convincing demonstration of how shortfalls of up to 5.0%, 10%, 15%, 25%, 50%, 75% and 100% of the applicable ACP limit will be completely reconciled within 90 working days from the date the shortfall is determined;

(b) A listing of the specific records and other information that will be necessary to verify that the shortfalls were reconciled as specified in this subsection; and

(c) A commitment to provide a record or information requested by the board to verify that the shortfalls have been completely reconciled.

h. A declaration, signed by a legal representative for the responsible ACP party, that states that all information and operational plans submitted with the ACP application are true and correct.

2. a. In accordance with the time periods specified in subsection C of this section, the board will issue an ACP agreement approving an ACP that meets the requirements of this article. The board will specify such terms and conditions as are necessary to ensure that the emissions from the ACP products do not exceed the emissions that would have occurred if the ACP products subject to the ACP had met the VOC standards specified in 9VAC5-45-310 A. The ACP shall also include:

(1) Only those ACP products for which the enforceable sales are at least 75% of the gross sales as determined in subdivision 1 d (5) of this subsection;

(2) A reconciliation of shortfalls plan meeting the requirements of this article; and

(3) Operational terms, conditions, and data to be reported to the board to ensure that all requirements of this article are met.

b. The board will not approve an ACP submitted by a responsible ACP party if the board determines, upon review of the responsible ACP party's compliance history with past or current ACPs or the requirements for consumer products in this article, that the responsible ACP party has a recurring pattern of violations and has consistently refused to take the necessary steps to correct those violations.

C. Provisions follow concerning ACP approval timeframes.

1. The board will take appropriate action on an ACP within the following time periods:

a. Within 30 working days of receipt of an ACP application, the board will inform the applicant in writing that either:

(1) The application is complete and accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

b. Within 30 working days of receipt of additional information provided in response to a determination that an ACP application is deficient, the board will inform the applicant in writing that either:

(1) The additional information is sufficient to make the application complete, and the application is accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

c. If the board finds that an application meets the requirements of subsection B of this section, then it shall issue an ACP agreement in accordance with the requirements of this article. The board will normally act to approve or disapprove a complete application within 90 working days after the application is deemed complete. The board may extend this time period if additional information is needed.

2. Before the end of each time period specified in this section, the board and the responsible ACP party may mutually agree to a longer time period for the board to take the appropriate action.

D. Provisions follow concerning recordkeeping and availability of requested information.

1. All information specified in the ACP agreement approving an ACP shall be maintained by the responsible ACP party for a minimum of three years after such records are generated. Such records shall be clearly legible and maintained in good condition during this period.

2. The records specified in subdivision 1 of this subsection shall be made available to the board or its authorized representative:

a. Immediately upon request, during an on-site visit to a responsible ACP party,

b. Within five working days after receipt of a written request from the board, or

c. Within a time period mutually agreed upon by both the board and the responsible ACP party.

E. Provisions follow concerning violations.

1. Failure to meet a requirement of this article or a condition of an applicable ACP agreement shall constitute a single, separate violation of this article for each day until such requirement or condition is satisfied, except as otherwise provided in subdivisions 2 through 8 of this subsection.

2. False reporting of information in an ACP application or in any supporting documentation or amendments thereto shall constitute a single, separate violation of the requirements of this article for each day that the approved ACP is in effect.

3. An exceedance during the applicable compliance period of the VOC content specified for an ACP product in the ACP agreement approving an ACP shall constitute a single, separate violation of the requirements of this article for each ACP product that exceeds the specified VOC content that is sold, supplied, offered for sale, or manufactured for use.

4. Any of the following actions shall each constitute a single, separate violation of the requirements of this article for each day after the applicable deadline until the requirement is satisfied:

a. Failure to report data or failure to report data accurately in writing to the board regarding the VOC content, LVP content, enforceable sales, or other information required by the deadline specified in the applicable ACP agreement;

b. False reporting of information submitted to the board for determining compliance with the ACP requirements;

c. Failure to completely implement the reconciliation of shortfalls plan that is set forth in the ACP agreement within 30 working days from the date of written notification of a shortfall by the board; or

d. Failure to completely reconcile the shortfall as specified in the ACP agreement within 90 working days from the date of written notification of a shortfall by the board.

5. False reporting or failure to report any of the information specified in subdivision F 2 i of this section or the sale or transfer of invalid surplus reductions shall constitute a single, separate violation of the requirements of this article for each day during the time period for which the surplus reductions are claimed to be valid.

6. Except as provided in subdivision 7 of this subsection, an exceedance of the ACP limit for a compliance period that the ACP is in effect shall constitute a single, separate violation of the requirements of this article for each day of the applicable compliance period. The board will determine whether an exceedance of the ACP limit has occurred as follows:

a. If the responsible ACP party has provided all required information for the applicable compliance period specified in the ACP agreement approving an ACP, then the board will determine whether an exceedance has occurred using the enforceable sales records and VOC content for each ACP product as reported by the responsible ACP party for the applicable compliance period.

b. If the responsible ACP party has failed to provide all the required information specified in the ACP agreement for an applicable compliance period, the board will determine whether an exceedance of the ACP limit has occurred as follows.

(1) For the missing data days, the board will calculate the total maximum historical emissions as specified in 9VAC5-45-300 C.

(2) For the remaining portion of the compliance period that are not missing data days, the board will calculate the emissions for each ACP product using the enforceable sales records and VOC content that were reported for that portion of the applicable compliance period.

(3) The ACP emissions for the entire compliance period shall be the sum of the total maximum historical emissions, determined pursuant to subdivision 6 b (1) of this subsection, and the emissions determined pursuant to subdivision 6 b (2) of this subsection.

(4) The board will calculate the ACP limit for the entire compliance period using the ACP standards applicable to each ACP product and the enforceable sales records specified in subdivision 6 b (2) of this subsection. The enforceable sales for each ACP product during missing data days, as specified in subdivision 6 b (1) of this subsection, shall be zero.

(5) An exceedance of the ACP limit has occurred when the ACP emissions, determined pursuant to subdivision 6 b (3) of this subsection, exceeds the ACP limit, determined pursuant to subdivision 6 b (4) of this subsection.

7. If a violation specified in subdivision 6 of this subsection occurs, the responsible ACP party may, pursuant to this subdivision, establish the number of violations as calculated according to the following equation:

where:

NEV = number of ACP limit violations.

ACP emissions = the ACP emissions for the compliance period.

ACP limit = the ACP limit for the compliance period.

40 pounds = number of pounds of emissions equivalent to one violation.

The responsible ACP party may determine the number of ACP limit violations pursuant to this subdivision only if it has provided all required information for the applicable compliance period, as specified in the ACP agreement approving the ACP. By choosing this option, the responsible ACP party waives all legal objections to the calculation of the ACP limit violations pursuant to this subdivision.

8. A cause of action against a responsible ACP party under this section shall be deemed to accrue on the date when the records establishing a violation are received by the board.

9. The responsible ACP party is fully liable for compliance with the requirements of this article, even if the responsible ACP party contracts with or otherwise relies on another person to carry out some or all of the requirements of this article.

F. Provisions follow concerning surplus reductions and surplus trading.

1. The board will issue surplus reduction certificates that establish and quantify, to the nearest pound of VOC reduced, the surplus reductions achieved by a responsible ACP party operating under an ACP. The surplus reductions can be bought from, sold to, or transferred to a responsible ACP party operating under an ACP, as provided in subdivision 2 of this subsection. All surplus reductions shall be calculated by the board at the end of each compliance period within the time specified in the approved ACP. Surplus reduction certificates shall not constitute instruments, securities, or another form of property.

2. The issuance, use, and trading of all surplus reductions shall be subject to the following provisions:

a. For the purposes of this article, VOC reductions from sources of VOCs other than consumer products subject to the VOC standards specified in 9VAC5-45-310 A may not be used to generate surplus reductions.

b. Surplus reductions are valid only when generated by a responsible ACP party and only while that responsible ACP party is operating under an approved ACP.

c. Surplus reductions are valid only after the board has issued an ACP agreement pursuant to subdivision 1 of this subsection.

d. Surplus reductions issued by the board may be used by the responsible ACP party who generated the surplus until the reductions expire, are traded, or until the ACP is canceled pursuant to subdivision J 2 of this section.

e. Surplus reductions cannot be applied retroactively to a compliance period prior to the compliance period in which the reductions were generated.

f. Except as provided in subdivision 2 g (2) of this subsection, only small or one-product businesses selling products under an approved ACP may purchase surplus reductions. An increase in the size of a small business or one-product business shall have no effect on surplus reductions purchased by that business prior to the date of the increase.

g. While valid, surplus reductions can be used only for the following purposes:

(1) To adjust the ACP emissions of either the responsible ACP party that generated the reductions or the responsible ACP party to which the reductions were traded, provided the surplus reductions are not to be used by a responsible ACP party to further lower its ACP emissions when its ACP emissions are equal to or less than the ACP limit during the applicable compliance period; or

(2) To be traded for the purpose of reconciling another responsible ACP party's shortfalls, provided such reconciliation is part of the reconciliation of shortfalls plan approved by the board pursuant to subdivision B 1 g (10) of this section.

h. A valid surplus reduction shall be in effect starting five days after the date of issuance by the board for a continuous period equal to the number of days in the compliance period during which the surplus reduction was generated. The surplus reduction shall then expire at the end of its effective period.

i. At least five working days prior to the effective date of transfer of surplus reductions, both the responsible ACP party that is selling surplus reductions and the responsible ACP party that is buying the surplus reductions shall, either together or separately, notify the board in writing of the transfer. The notification shall include all of the following:

(1) The date the transfer is to become effective.

(2) The date the surplus reductions being traded are due to expire.

(3) The amount (in pounds of VOCs) of surplus reductions that is being transferred.

(4) The total purchase price paid by the buyer for the surplus reductions.

(5) The contact persons, names of the companies, street and mail addresses, and phone numbers of the responsible ACP parties involved in the trading of the surplus reductions.

(6) A copy of the board-issued surplus reductions certificate, signed by both the seller and buyer of the certificate, showing transfer of all or a specified portion of the surplus reductions. The copy shall show the amount of any remaining nontraded surplus reductions, if applicable, and shall show their expiration date. The copy shall indicate that both the buyer and seller of the surplus reductions fully understand the conditions and limitations placed upon the transfer of the surplus reductions and accept full responsibility for the appropriate use of such surplus reductions as provided in this section.

j. Surplus reduction credits shall only be traded between ACP products.

3. Provisions follow concerning limited-use surplus reduction credits for early reformulations of ACP products.

a. For the purposes of this subdivision, "early reformulation" means an ACP product that is reformulated to result in a reduction in the product's VOC content, and that is sold, supplied, or offered for sale for the first time during the one-year (365 day) period immediately prior to the date on which the application for a proposed ACP is submitted to the board. Early reformulation does not include reformulated ACP products that are sold, supplied, or offered for sale more than one year prior to the date on which the ACP application is submitted to the board.

b. If requested in the application for a proposed ACP, the board will, upon approval of the ACP, issue surplus reduction credits for early reformulation of ACP products, provided that all of the following documentation has been provided by the responsible ACP party to the satisfaction of the board:

(1) Accurate documentation showing that the early reformulation reduced the VOC content of the ACP product to a level that is below the pre-ACP VOC content of the product or below the applicable VOC standard specified in 9VAC 5-45-310 A, whichever is the lesser of the two;

(2) Accurate documentation demonstrating that the early reformulated ACP product was sold in retail outlets within the time period specified in subdivision 3 a of this subsection;

(3) Accurate sales records for the early reformulated ACP product that meet the definition of enforceable sales records and that demonstrate that the enforceable sales for the ACP product are at least 75% of the gross sales for the product, as specified in subdivision B 1 d of this section; and

(4) Accurate documentation for the early reformulated ACP product that meets the requirements specified in subdivisions B 1 c and d and B 1 g (7) and (8) of this section and that identifies the specific test methods for verifying the claimed early reformulation and the statistical accuracy and precision of the test methods as specified in subdivision B 1 g (4) of this section.

c. Surplus reduction credits issued pursuant to this subsection shall be calculated separately for each early reformulated ACP product by the board according to the following equation:

where:

SR = surplus reductions for the ACP product, expressed to the nearest pound.

Enforceable sales = the enforceable sales for the early reformulated ACP product, expressed to the nearest pound of ACP product.

VOC content_initial = the pre-ACP VOC content of the ACP product, or the applicable VOC standard specified in 9VAC5-45-310 A, whichever is the lesser of the two, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

VOC content_final = the VOC content of the early reformulated ACP product after the early reformulation is achieved, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

d. The use of limited use surplus reduction credits issued pursuant to this subdivision shall be subject to all of the following provisions:

(1) Limited use surplus reduction credits shall be used solely to reconcile the responsible ACP party's shortfalls, if any, generated during the first compliance period occurring immediately after the issuance of the ACP agreement approving an ACP, and may not be used for another purpose;

(2) Limited use surplus reduction credits may not be transferred to, or used by, another responsible ACP party; and

(3) Except as provided in this subdivision, limited use surplus reduction credits shall be subject to all requirements applicable to surplus reductions and surplus trading as specified in subdivisions 1 and 2 of this subsection.

G. Provisions follow concerning the reconciliation of shortfalls.

1. At the end of each compliance period, the responsible ACP party shall make an initial calculation of shortfalls occurring in that compliance period as specified in the ACP agreement approving the ACP. Upon receipt of this information, the board will determine the amount of a shortfall that has occurred during the compliance period and shall notify the responsible ACP party of this determination.

2. The responsible ACP party shall implement the reconciliation of shortfalls plan as specified in the ACP agreement approving the ACP within 30 working days from the date of written notification of a shortfall by the board.

3. All shortfalls shall be completely reconciled within 90 working days from the date of written notification of a shortfall by the board by implementing the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP.

4. All requirements specified in the ACP agreement approving an ACP, including all applicable ACP limits, shall remain in effect while shortfalls are in the process of being reconciled.

H. Provisions follow concerning the notification of modifications to an ACP by the responsible ACP party.

1. Board pre-approval is not required for modifications that are a change to an ACP product's: (i) product name, (ii) product formulation, (iii) product form, (iv) product function, (v) applicable product category, (vi) VOC content, (vii) LVP content, (viii) date codes, or (ix) recommended product usage directions. The responsible ACP party shall notify the board of such changes, in writing, no later than 15 working days from the date such a change occurs. For each modification, the notification shall fully explain the following:

a. The nature of the modification;

b. The extent to which the ACP product formulation, VOC content, LVP content, or recommended usage directions will be changed;

c. The extent to which the ACP emissions and ACP limit specified in the ACP agreement will be changed for the applicable compliance period; and

d. The effective date and corresponding date codes for the modification.

2. The responsible ACP party may propose modifications to the enforceable sales records or the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP; however, such modifications require board pre-approval. Any such proposed modifications shall be fully described in writing and forwarded to the board. The responsible ACP party shall clearly demonstrate that the proposed modifications will meet the requirements of this article. The board will act on the proposed modifications using the procedure set forth in subsection C of this section. The responsible ACP party shall meet all applicable requirements of the existing ACP until such time as a proposed modification is approved in writing by the board.

3. Except as otherwise provided in subdivisions 1 and 2 of this subsection, the responsible ACP party shall notify the board, in writing, of information known by the responsible ACP party that may alter the information submitted pursuant to the requirements of subsection B of this section. The responsible ACP party shall provide such notification to the board no later than 15 working days from the date such information is known to the responsible ACP party.

I. Provisions follow concerning the modification of an ACP by the board.

1. If the board determines that: (i) the enforceable sales for an ACP product are no longer at least 75% of the gross sales for that product, (ii) the information submitted pursuant to the approval process set forth in subsection C of this section is no longer valid, or (iii) the ACP emissions are exceeding the ACP limit specified in the ACP agreement approving an ACP, then the board will modify the ACP as necessary to ensure that the ACP meets all requirements of this article and that the ACP emissions will not exceed the ACP limit.

2. If any applicable VOC standards specified in 9VAC5-45-310 A are modified by the board in a future rulemaking, the board will modify the ACP limit specified in the ACP agreement approving an ACP to reflect the modified ACP VOC standards as of their effective dates.

J. Provisions follow concerning the cancellation of an ACP.

1. An ACP shall remain in effect until:

a. The ACP reaches the expiration date specified in the ACP agreement;

b. The ACP is modified by the responsible ACP party and approved by the board as provided in subsection H of this section;

c. The ACP is modified by the board as provided in subsection I of this section;

d. The ACP includes a product for which the VOC standard specified in 9VAC5-45-310 A is modified by the board in a future rulemaking, and the responsible ACP party informs the board in writing that the ACP will terminate on the effective date of the modified standard; or

e. The ACP is canceled pursuant to subdivision 2 of this subsection.

2. The board will cancel an ACP if any of the following circumstances occur:

a. The responsible ACP party demonstrates to the satisfaction of the board that the continuation of the ACP will result in an extraordinary economic hardship.

b. The responsible ACP party violates the requirements of the approved ACP, and the violation results in a shortfall that is 20% or more of the applicable ACP limit (i.e., the ACP emissions exceed the ACP limit by 20% or more).

c. The responsible ACP party fails to meet the requirements of subsection G of this section within the time periods specified in that subsection.

d. The responsible ACP party has demonstrated a recurring pattern of violations and has consistently failed to take the necessary steps to correct those violations.

3. Cancellations of ACPs are considered case decisions and will be processed using the procedures prescribed in 9VAC5-170-40 A 2 and applicable provisions of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act.

4. The responsible ACP party for an ACP that is canceled pursuant to this section and that does not have a valid ACP to immediately replace the canceled ACP shall meet all of the following requirements:

a. All remaining shortfalls in effect at the time of ACP cancellation shall be reconciled in accordance with the requirements of subsection G of this section, and

b. All ACP products subject to the ACP shall be in compliance with the applicable VOC standards in 9VAC5-45-310 A immediately upon the effective date of ACP cancellation.

5. Violations incurred pursuant to subsection E of this section shall not be canceled or affected by the subsequent cancellation or modification of an ACP pursuant to subsection H, I, or J of this section.

K. The information required by subdivisions B 1 a and b and F 2 i of this section is public information that may not be claimed as confidential. Other information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

L. A responsible ACP party may transfer an ACP to another responsible ACP party, provided that all of the following conditions are met:

1. The board will be notified, in writing, by both responsible ACP parties participating in the transfer of the ACP and its associated ACP agreement. The written notifications shall be postmarked or submitted electronically at least five working days prior to the effective date of the transfer and shall be signed and submitted separately by both responsible parties. The written notifications shall clearly identify the contact persons, business names, mail and street addresses, and phone numbers of the responsible parties involved in the transfer.

2. The responsible ACP party to which the ACP is being transferred shall provide a written declaration stating that the transferee shall fully comply with all requirements of the ACP agreement approving the ACP and this article.

M. In approving agreements under subsections B through L of this section, the board will take into consideration whether the applicant has been granted an ACP by CARB. A manufacturer of consumer products that has been granted an ACP agreement by the CARB under the provisions in Subchapter 8.5, Article 4, Sections 94540-94555, of Title 17 of the California Code of Regulations (see 9VAC5-20-21) may be exempt from Table 45-3A for the period of time that the CARB ACP agreement remains in effect provided that all ACP products used for emission credits within the CARB ACP agreement are contained in Table 45-3A. A manufacturer claiming such an ACP agreement on this basis must submit to the board a copy of the CARB ACP decision (i.e., the executive order), including all conditions established by CARB applicable to the exemption and certification that the manufacturer will comply with the CARB ACP decision for those ACP products in the areas specified in 9VAC5-45-280 C.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-45-330 Innovative products

A. Manufacturers of consumer products may seek an innovative products exemption in accordance with the following criteria:

1. The board will exempt a consumer product from the VOC limits specified in 9VAC5-45-310 A if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems or other factors, the use of the product will result in less VOC emissions as compared to:

a. The VOC emissions from a representative consumer product that complies with the VOC limits specified in 9VAC5-45-310 A, or

b. The calculated VOC emissions from a noncomplying representative product, if the product had been reformulated to comply with the VOC limits specified in 9VAC5-45-310 A. VOC emissions shall be calculated using the following equation:

where:

E_R = The VOC emissions from the noncomplying representative product, had it been reformulated.

E_NC = The VOC emissions from the noncomplying representative product in its current formulation.

VOC_STD = the VOC limit specified in Table 45-3A.

VOC_NC = the VOC content of the noncomplying product in its current formulation.

If a manufacturer demonstrates that this equation yields inaccurate results due to some characteristic of the product formulation or other factors, an alternative method that accurately calculates emissions may be used upon approval of the board.

2. For the purposes of this subsection, "representative consumer product" means a consumer product that meets all of the following criteria:

a. The representative product shall be subject to the same VOC limit in 9VAC5-45-310 A as the innovative product;

b. The representative product shall be of the same product form as the innovative product unless the innovative product uses a new form that does not exist in the product category at the time the application is made; and

c. The representative product shall have at least a similar efficacy as other consumer products in the same product category based on tests generally accepted for that product category by the consumer products industry.

3. A manufacturer shall apply in writing to the board for an exemption claimed under subdivision A 1 of this section. The application shall include the supporting documentation that demonstrates the emissions from the innovative product, including the actual physical test methods used to generate the data and, if necessary, the consumer testing undertaken to document product usage. In addition, the applicant must provide the information necessary to enable the board to establish enforceable conditions for granting the exemption, including the VOC content for the innovative product and test methods for determining the VOC content. Information submitted to the board pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

4. Within 30 days of receipt of the exemption application, the board will determine whether an application is complete.

5. Within 90 days after an application has been deemed complete, the board will determine whether, under what conditions, and to what extent an exemption from the requirements of 9VAC5-45-310 A will be permitted. The board may extend this time period if additional time is needed to reach a decision, and additional supporting documentation may be submitted by the applicant before a decision has been reached. The board will notify the applicant of the decision in writing and specify such terms and conditions as are necessary to insure that emissions from the product will meet the emissions reductions specified in subdivision 1 of this subsection, and that such emissions reductions can be enforced.

6. In granting an exemption for a product, the board will establish enforceable conditions. These conditions shall include the VOC content of the innovative product, dispensing rates, application rates, and other parameters determined by the board to be necessary. The board will also specify the test methods for determining conformance to the conditions established. The test methods shall include criteria for reproducibility, accuracy, sampling, and laboratory procedures.

7. For a product for which an exemption has been granted pursuant to this section, the manufacturer shall notify the board in writing within 30 days of a change in the product formulation or recommended product usage directions and shall also notify the board within 30 days if the manufacturer learns of information that would alter the emissions estimates submitted to the board in support of the exemption application.

8. If the VOC limits specified in 9VAC5-45-310 A are lowered for a product category through a subsequent rulemaking, all innovative product exemptions granted for products in the product category, except as provided in this subdivision, shall have no force and effect as of the effective date of the modified VOC standard. This subdivision shall not apply to those innovative products that have VOC emissions less than the applicable lowered VOC limit and for which a written notification of the product's emissions status versus the lowered VOC limit has been submitted to and approved by the board at least 60 days before the effective date of such limits.

9. If the board believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in subdivision 1 of this subsection, the board may modify or revoke the exemption as necessary to assure that the product will meet these criteria.

B. In granting an exemption under this section, the board will take into consideration whether the applicant has been granted an innovative product exemption by CARB. A manufacturer of consumer products that has been granted an innovative product exemption by the CARB under the innovative products provisions in Subchapter 8.5, Article 2, Section 94511, or Subchapter 8.5, Article 1, Section 94503.5 of Title 17 of the California Code of Regulations (see 9VAC5-20-21), may be exempt from Table 45-3A for the period of time that the CARB innovative products exemption remains in effect provided that all consumer products within the CARB innovative products exemption are contained in Table 45-3A. A manufacturer claiming such an exemption on this basis must submit to the board a copy of the innovative product exemption decision (i.e., the executive order ), including all conditions established by CARB applicable to the exemption, and certification that the manufacturer will comply with the CARB innovative product exemption decision for those products in the areas specified in 9VAC5-45-280 C.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-340 Administrative requirements

A. Provisions follow concerning product dating.

1. Each manufacturer of a consumer product subject to 9VAC5-45-310 shall clearly display on each consumer product container or package, the day, month, and year on which the product was manufactured or a code indicating such date.

2. A manufacturer who uses the following code to indicate the date of manufacture shall not be subject to the requirements of subdivision B 1 of this section, if the code is represented separately from other codes on the product container so that it is easily recognizable:

YY DDD = year year day day day

where:

YY = two digits representing the year in which the product was manufactured, and

DDD = three digits representing the day of the year on which the product was manufactured, with 001 representing the first day of the year, 002 representing the second day of the year, and so forth (i.e., the Julian date).

3. The date or date code shall be located on the container or inside the cover or cap so that it is readily observable or obtainable (by simply removing the cap or cover) without irreversibly disassembling a part of the container or packaging. For the purposes of this subdivision, information may be displayed on the bottom of a container as long as it is clearly legible without removing any product packaging.

4. This date or date code shall be displayed on each consumer product container or package no later than the effective date of the applicable standard specified in 9VAC5-45-310 A.

5. The requirements of this section shall not apply to products containing no VOCs or containing VOCs at 0.10% by weight or less.

B. Additional provisions follow concerning product dating.

1. If a manufacturer uses a code indicating the date of manufacture for a consumer product subject to 9VAC5-45-310, an explanation of the date portion of the code must be filed with the board upon request by the board.

2. If a manufacturer changes any code indicating the date of manufacture for any consumer product subject to 9VAC5-45-310 and the board has requested an explanation of any previous product dating code for that consumer product, then an explanation of the modified code shall be submitted to the board before any products displaying the modified code are sold, supplied, or offered for sale within the areas designated in 9VAC5-45-280 C.

3. No person shall erase, alter, deface, or otherwise remove or make illegible any date or code indicating the date of manufacture from any regulated product container without the express authorization of the manufacturer.

4. Date code explanations for codes indicating the date of manufacture are public information and may not be claimed as confidential.

C. Notwithstanding the definition of "product category" in 9VAC5-45-300 C, if anywhere on the principal display panel of a consumer product, a representation is made that the product may be used as or is suitable for use as a consumer product for which a lower VOC limit is specified in 9VAC5-45-310 A, then the lowest VOC limit shall apply. This requirement does not apply to general purpose cleaners, antiperspirant or deodorant products, and insecticide foggers.

D. Provisions follow concerning additional labeling requirements for aerosol adhesives.

1. In addition to the requirements specified in subsections A and C of this section and in 9VAC5-45-390, both the manufacturer and responsible party for each aerosol adhesive product subject to this article shall ensure that all products clearly display the following information on each product container that is manufactured on or after July 1, 2005.

a. The aerosol adhesive category as specified in 9VAC5-45-310 A or an abbreviation of the category shall be displayed;

b. (1) The applicable VOC standard for the product that is specified in 9VAC5-45-310 A, expressed as a percentage by weight, shall be displayed unless the product is included in an alternative control plan approved by the board, as provided in 9VAC5-45-320, and the product exceeds the applicable VOC standard;

(2) If the product is included in an alternative control plan approved by the board, and the product exceeds the applicable VOC standard specified in 9VAC5-45-310 A, the product shall be labeled with the term "ACP" or "ACP product";

c. If the product is classified as a special purpose spray adhesive, the applicable substrate or application or an abbreviation of the substrate or application that qualifies the product as special purpose shall be displayed;

d. If the manufacturer or responsible party uses an abbreviation as allowed by this subsection, an explanation of the abbreviation must be filed with the board before the abbreviation is used.

2. The information required in subdivision 1 of this subsection shall be displayed on the product container such that it is readily observable without removing or disassembling a portion of the product container or packaging. For the purposes of this subsection, information may be displayed on the bottom of a container as long as it is clearly legible without removing product packaging.

3. No person shall remove, alter, conceal, or deface the information required in subdivision 1 of this subsection prior to final sale of the product.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-350 Compliance

The provisions of 9VAC5-45-20 (Compliance) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-360 Compliance schedules

Affected owners or other persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area; or

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-370 Test methods and procedures

A. The provisions of 9VAC5-45-30 (Emission testing) apply.

B. 1. Testing to determine compliance with the requirements of this article shall be performed using CARB Method 310 (see 9VAC5-20-21). Alternative methods that can accurately determine the concentration of VOCs in a subject product or its emissions may be used consistent with the approval requirements of 9VAC5-45-30 A.

2. In sections 3.5, 3.6, and 3.7 of CARB Method 310 (see 9VAC5-20-21), a process is specified for the "Initial Determination of VOC Content" and the "Final Determination of VOC Content." Information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

C. For VOC content determinations using product formulation and records, testing to determine compliance with the requirements of this article may also be demonstrated through calculation of the VOC content from records of the amounts of constituents used to make the product pursuant to the following criteria:

1. Compliance determinations based on these records may not be used unless the manufacturer of a consumer product keeps accurate records for each day of production of the amount and chemical composition of the individual product constituents. These records must be kept for at least three years.

2. For the purposes of this subsection, the VOC content shall be calculated according to the following equation:

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit as specified in 9VAC5-45-290.

3. If product records appear to demonstrate compliance with the VOC limits, but these records are contradicted by product testing performed using CARB Method 310 (see 9VAC5-20-21), the results of CARB Method 310 shall take precedence over the product records and may be used to establish a violation of the requirements of this article.

D. Testing to determine whether a product is a liquid or solid shall be performed using ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

E. Testing to determine compliance with the certification requirements for charcoal lighter material shall be performed using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

F. Testing to determine distillation points of petroleum distillate-based charcoal lighter materials shall be performed using ASTM "Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure" (see 9VAC5-20-21).

G. No person shall create, alter, falsify, or otherwise modify records in such a way that the records do not accurately reflect the constituents used to manufacture a product, the chemical composition of the individual product, and other tests, processes, or records used in connection with product manufacture.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-380 Monitoring

The provisions of 9VAC5-45-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-390 Notification, records and reporting

A. The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

B. Upon 90 days written notice, the board may require a responsible party to report information for a consumer product the board may specify, including, but not limited to, all or part of the following information:

1. The company name of the responsible party and the party's address, telephone number, and designated contact person.

2. A showing satisfactory to the board under 9VAC5-170-60 B and C that supports any claim of confidentiality made pursuant to 9VAC5-170-60, §§ 10.1-1314 and 10.1-1314.1 of the Virginia Air Pollution Control Law, and other applicable state confidentiality requirements.

3. The product brand name for each consumer product subject to registration and, upon request by the board, the product label.

4. The product category to which the consumer product belongs.

5. The applicable product forms listed separately.

6. An identification of each product brand name and form as a "Household Product," "I&I Product," or both.

7. Separate sales in pounds per year, to the nearest pound, and the method used to calculate sales for each product form.

8. For registrations submitted by two companies, an identification of the company that is submitting relevant data separate from that submitted by the responsible party. All registration information from both companies shall be submitted by the date specified in this subsection.

9. For each product brand name and form, the net percent by weight of the total product, less container and packaging, composed of the following, rounded to the nearest one-tenth of a percent (0.1%):

a. Total exempt compounds.

b. Total LVP-VOCs that are not fragrances.

c. Total all other carbon-containing compounds that are not fragrances.

d. Total all noncarbon-containing compounds.

e. Total fragrance.

f. For products containing greater than 2.0% by weight fragrance:

(1) The percent of fragrances that are LVP-VOCs; and

(2) The percent of fragrances that are all other carbon-containing compounds.

g. Total paradichlorobenzene.

10. For each product brand name and form, the identity, including the specific chemical name and associated Chemical Abstract Services (CAS) number, of the following:

a. Each exempt compound; and

b. Each LVP-VOC that is not a fragrance.

11. If applicable, the weight percent composed of propellant for each product.

12. If applicable, an identification of the type of propellant.

C. In addition to the requirements of subdivision B 10 of this section, the responsible party shall report to the board the net percentage by weight of each ozone-depleting compound that is:

1. Listed in 9VAC5-45-310 I; and

2. Contained in a product subject to registration under subsection B of this section in an amount greater than 1.0% by weight.

D. Information submitted by responsible parties pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

E. Provisions follow concerning special recordkeeping and reporting requirements for consumer products that contain perchloroethylene or methylene chloride.

1. The requirements of this subsection shall apply to all responsible parties for consumer products that are subject to 9VAC5-45-310 A and contain perchloroethylene or methylene chloride. For the purposes of this subsection, a product contains perchloroethylene or methylene chloride if the product contains 1.0% or more by weight (exclusive of the container or packaging) of either perchloroethylene or methylene chloride.

2. For each consumer product that contains perchloroethylene or methylene chloride, the responsible party shall keep records of the following information for products sold during each calendar year, beginning with the year of the applicable compliance date specified in 9VAC5-45-360, and ending with the year 2010:

a. The product brand name and a copy of the product label with legible usage instructions;

b. The product category to which the consumer product belongs;

c. The applicable product form, listed separately;

d. For each product form listed in subdivision 2 c of this subsection, the total sales during the calendar year to the nearest pound (exclusive of the container or packaging), and the method used for calculating sales;

e. The weight percentage, to the nearest 0.10% of perchloroethylene and methylene chloride in the consumer product;

3. Upon 90 days written notice, the board may require a responsible party to report the information specified in subdivision 2 of this subsection.

4. Records required by subdivision 2 of this subsection shall be maintained by the responsible party for three calendar years from the date such records were created.

5. Alternative control plan notifications, records, and reporting shall be made as required by 9VAC5-45-320 and as required in the ACP agreement.

6. Innovative product notifications, records, and reporting shall be made as required by 9VAC5-45-330 and as required in the innovative products exemption notification letter.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 4 Emission Standards for Consumer Products Manufactured on or after August 1, 2010

9VAC5-45-400 Applicability

Article 4 Emission Standards for Consumer Products Manufactured on or after August 1, 2010

A. Except as provided in 9VAC5-45-410, the provisions of this article apply to any consumer product manufactured on or after August 1, 2010, that contains volatile organic compounds (VOCs). The provisions of Article 3 (9VAC5-45-280 et seq.) of this part apply to consumer products manufactured before August 1, 2010.

B. Except as provided in 9VAC5-45-410, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale or manufactures for sale any consumer product.

C. The provisions of this article apply to owners and other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

D. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell or otherwise provide products to businesses/governmental entities/individuals.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-410 Exemptions

A. This article shall not apply to any consumer product manufactured in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C for shipment and use outside of those areas.

B. The provisions of this article shall not apply to a manufacturer or distributor who sells, supplies, or offers for sale a consumer product that does not comply with the VOC standards specified in 9VAC5-45-430 A, as long as the manufacturer or distributor can demonstrate both that the consumer product is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed to those applicable volatile organic compound emissions control areas. This subsection does not apply to consumer products that are sold, supplied, or offered for sale by any person to retail outlets in those applicable volatile organic compound emissions control areas.

C. The medium volatility organic compound (MVOC) content standards specified in 9VAC5-45-430 A for antiperspirants or deodorants shall not apply to ethanol.

D. The VOC limits specified in 9VAC5-45-430 A shall not apply to fragrances up to a combined level of 2.0% by weight contained in any consumer product and shall not apply to colorants up to a combined level of 2.0% by weight contained in any antiperspirant or deodorant.

E. The requirements of 9VAC5-45-430 A for antiperspirants or deodorants shall not apply to those volatile organic compounds that contain more than 10 carbon atoms per molecule and for which the vapor pressure is unknown, or that have a vapor pressure of 2 mm Hg or less at 20ºC.

F. The VOC limits specified in 9VAC5-45-430 A shall not apply to any LVP-VOC.

G. The VOC limits specified in 9VAC5-45-430 A shall not apply to air fresheners that are composed entirely of fragrance, less compounds not defined as VOCs or LVP-VOC exempted under subsection F of this section.

H. The VOC limits specified in 9VAC5-45-430 A shall not apply to air fresheners and insecticides containing at least 98% paradichlorobenzene.

I. The VOC limits specified in 9VAC5-45-430 A shall not apply to adhesives sold in containers of one fluid ounce or less.

J. The VOC limits specified in 9VAC5-45-430 A shall not apply to bait station insecticides. For the purpose of this section, bait station insecticides are containers enclosing an insecticidal bait that is not more than 0.5 ounce by weight, where the bait is designed to be ingested by insects and is composed of solid material feeding stimulants with less than 5.0% active ingredients.

K. A person who cannot comply with the requirements set forth in 9VAC5-45-430, because of extraordinary reasons beyond the person's reasonable control may apply in writing to the board for a waiver.

1. The application shall set forth:

a. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

b. The proposed dates by which compliance with the provisions of 9VAC5-45-430 will be achieved; and

c. A compliance report reasonably detailing the methods by which compliance will be achieved.

2. Upon receipt of an application containing the information required in subdivision 1 of this subsection, the board will hold a public hearing to determine whether, under what conditions, and to what extent, a waiver from the requirements in 9VAC5-45-430 is necessary and will be permitted. A hearing shall be initiated no later than 75 days after receipt of a waiver application. Notice of the time and place of the hearing shall be sent to the applicant by certified mail not less than 30 days prior to the hearing. Notice of the hearing shall also be submitted for publication in the Virginia Register of Regulations. At least 30 days prior to the hearing, the waiver application shall be made available to the public for inspection. Information submitted to the board by a waiver applicant shall be available to the public, except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia. The board may consider both public and confidential information in reaching a decision on a waiver application. Interested members of the public shall be allowed a reasonable opportunity to testify at the hearing and their testimony shall be considered.

3. No waiver shall be granted unless all of the following findings are made:

a. That, because of reasons beyond the reasonable control of the applicant, requiring compliance with 9VAC5-45-430 would result in extraordinary economic hardship;

b. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air pollutants that would result from issuing the waiver; and

c. That the compliance report proposed by the applicant can reasonably be implemented and will achieve compliance as expeditiously as possible.

4. Any waiver may be issued as an order of the board. The waiver order shall specify a final compliance date by which the requirements of 9VAC5-45-430 will be achieved. Any waiver order shall contain a condition that specifies increments of progress necessary to assure timely compliance and such other conditions that the board, in consideration of the testimony received at the hearing, finds necessary to carry out the purposes of the Virginia Air Pollution Control Law and the regulations of the board.

5. A waiver shall cease to be effective upon failure of the party to whom the waiver was granted to comply with any term or condition of the waiver order.

6. Upon the application of anyone, the board may review and for good cause modify or revoke a waiver from requirements of 9VAC5-45-430.

L. The requirements of 9VAC5-45-460 A shall not apply to consumer products registered under FIFRA.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-420 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"ACP" or "alternative control plan" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"ACP agreement" means the document signed by the board that includes the conditions and requirements of the board and that allows manufacturers to sell ACP products pursuant to the requirements of this article.

"ACP emissions" means the sum of the VOC emissions from every ACP product subject to an ACP agreement approving an ACP, during the compliance period specified in the ACP agreement, expressed to the nearest pound of VOC and calculated according to the following equation:

where:

1, 2,...N = each product in an ACP up to the maximum N.

Enforceable sales = (see definition in this section).

VOC content = one of the following:

1. For all products except for charcoal lighter material products:

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit, as specified in 9VAC5-45-410.

2. For charcoal lighter material products only:

where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"ACP limit" means the maximum allowable ACP emissions during the compliance period specified in an ACP agreement approving an ACP, expressed to the nearest pound of VOC, and calculated according to the following equation:

where:

where:

Enforceable sales = (see definition in this section).

ACP standard = (see definition in this section).

1, 2,...N = each product in an ACP up to the maximum N.

"ACP product" means any consumer product subject to the VOC standards specified in 9VAC5-45-430 A, except those products that have been exempted as innovative products under 9VAC5-45-450.

"ACP reformulation" or "ACP reformulated" means the process of reducing the VOC content of an ACP product within the period that an ACP is in effect to a level that is less than the current VOC content of the product.

"ACP standard" means either the ACP product's pre-ACP VOC content or the applicable VOC standard specified in 9VAC5-45-430 A, whichever is the lesser of the two.

"ACP VOC standard" means the maximum allowable VOC content for an ACP product, determined as follows:

1. The applicable VOC standard specified in 9VAC5-45-430 A for all ACP products except for charcoal lighter material;

2. For charcoal lighter material products only, the VOC standard for the purposes of this article shall be calculated according to the following equation:

where:

0.020 = the certification emissions level for the product, as specified in 9VAC5-45-430 E.

Certified use rate = (see definition in this section).

"Adhesive" means any product that is used to bond one surface to another by attachment. Adhesive does not include products used on humans and animals, adhesive tape, contact paper, wallpaper, shelf liners, or any other product with an adhesive incorporated onto or in an inert substrate. For contact adhesive only, adhesive also does not include units of product, less packaging, that consist of more than one gallon. In addition, for construction, panel, and floor covering adhesive and general purpose adhesive only, adhesive does not include units of product, less packaging, that weigh more than one pound and consist of more than 16 fluid ounces. The package size limitations do not apply to aerosol adhesives.

"Adhesive remover" means a product designed to remove adhesive from either a specific substrate or a variety of substrates. Adhesive remover does not include products that remove adhesives intended exclusively for use on humans or animals. For the purpose of this definition and the following adhesive remover subcategories in subdivisions 1 through 4 of this definition, adhesive shall mean a substance used to bond one or more materials. Adhesives include, but are not limited to, caulk, sealant, glue, or similar substances used for the purpose of forming a bond.

1. "Floor and wall covering adhesive remover" means a product designed or labeled to remove floor or wall coverings and associated adhesive from the underlying substrate.

2. "Gasket or thread locking adhesive remover" means a product designed or labeled to remove gaskets or thread locking adhesives. Products labeled for dual use as a paint stripper and as a gasket remover or thread locking adhesive remover are considered gasket or thread locking adhesive remover.

3. "General purpose adhesive remover" means a product designed or labeled to remove cyanoacrylate adhesives and nonreactive adhesives or residue from a variety of substrates. General purpose adhesive remover includes, but is not limited to, products that remove thermoplastic adhesives, pressure sensitive adhesives, dextrin-based or starch-based adhesives, casein glues, rubber-based or latex-based adhesives, as well as products that remove stickers, decals, stencils, or similar materials. General purpose adhesive remover does not include floor or wall covering adhesive remover.

4. "Specialty adhesive remover" means a product designed to remove reactive adhesives from a variety of substrates. Reactive adhesives include adhesives that require a hardener or catalyst in order for the bond to occur. Examples of reactive adhesives include, but are not limited to, epoxies, urethanes, and silicones. Specialty adhesive remover does not include gasket or thread locking adhesive remover.

"Aerosol adhesive" means an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for hand-held application without the need for ancillary hoses or spray equipment. Aerosol adhesives include special purpose spray adhesives, mist spray adhesives, and web spray adhesives.

"Aerosol cooking spray" means any aerosol product designed either to reduce sticking on cooking and baking surfaces or to be applied on food, or both.

"Aerosol product" means a pressurized spray system that dispenses product ingredients by means of a propellant contained in a product or a product's carrier, or by means of a mechanically induced force. Aerosol product does not include pump sprays.

"Agricultural use" means the use of any pesticide or method or device for the control of pests in connection with the commercial production, storage, or processing of any animal or plant crop. Agricultural use does not include the sale or use of pesticides in properly labeled packages or containers that are intended for home use, use in structural pest control, industrial use, or institutional use. For the purposes of this definition only:

1. "Home use" means use in a household or its immediate environment.

2. "Industrial use" means use for or in a manufacturing, mining, or chemical process or use in the operation of factories, processing plants, and similar sites.

3. "Institutional use" means use within the perimeter of, or on property necessary for the operation of, buildings such as hospitals, schools, libraries, auditoriums, and office complexes.

4. "Structural pest control" means a use requiring a license under the applicable state pesticide licensing requirement.

"Air freshener" means any consumer product including, but not limited to, sprays, wicks, powders, and crystals, designed for the purpose of masking odors or freshening, cleaning, scenting, or deodorizing the air. Air fresheners do not include products that are used on the human body, products that function primarily as cleaning products (as indicated on a product label) or as toilet/urinal care products, disinfectant products claiming to deodorize by killing germs on surfaces, or institutional or industrial disinfectants when offered for sale solely through institutional and industrial channels of distribution. Air fresheners do include spray disinfectants and other products that are expressly represented for use as air fresheners, except institutional and industrial disinfectants when offered for sale through institutional and industrial channels of distribution. To determine whether a product is an air freshener, all verbal and visual representations regarding product use on the label or packaging and in the product's literature and advertising may be considered. The presence of, and representations about, a product's fragrance and ability to deodorize (resulting from surface application) shall not constitute a claim of air freshening.

"All other carbon-containing compounds" means all other compounds that contain at least one carbon atom and are not an "exempt compound" or an "LVP-VOC."

"All other forms" means all consumer product forms for which no form-specific VOC standard is specified. Unless specified otherwise by the applicable VOC standard, all other forms include, but are not limited to, solids, liquids, wicks, powders, crystals, and cloth or paper wipes (towelettes).

"Alternative control plan" or "ACP" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"Antimicrobial hand or body cleaner or soap" means a cleaner or soap that is designed to reduce the level of microorganisms on the skin through germicidal activity. Antimicrobial hand or body cleaner or soap includes, but is not limited to, antimicrobial hand or body washes or cleaners, food handler hand washes, health care personnel hand washes, pre-operative skin preparations, and surgical scrubs. Antimicrobial hand or body cleaner or soap does not include prescription drug products, antiperspirants, astringent or toner, deodorant, facial cleaner or soap, general-use hand or body cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, and rubbing alcohol.

"Antiperspirant" means any product including, but not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles, that is intended by the manufacturer to be used to reduce perspiration in the human axilla by at least 20% in at least 50% of a target population.

"Anti-static product" means a product that is labeled to eliminate, prevent, or inhibit the accumulation of static electricity. Anti-static products do not include electronic cleaners, floor polish or waxes, floor coatings, and products that meet the definition of aerosol coating products or architectural coatings.

"Architectural coating" means a coating applied to stationary structures and their appurtenances, to mobile homes, to pavements, or to curbs.

"ASTM" means the American Society for Testing and Materials.

"Astringent or toner" means any product not regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. This category also includes clarifiers and substrate-impregnated products. This category does not include any hand, face, or body cleaner or soap product, medicated astringent or medicated toner, cold cream, lotion, or antiperspirant.

"Automotive brake cleaner" means a cleaning product designed to remove oil, grease, brake fluid, brake pad material, or dirt from motor vehicle brake mechanisms.

"Automotive hard paste wax" means an automotive wax or polish that is:

1. Designed to protect and improve the appearance of automotive paint surfaces;

2. A solid at room temperature; and

3. Contains no water.

"Automotive instant detailer" means a product designed for use in a pump spray that is applied to the painted surface of automobiles and wiped off prior to the product being allowed to dry.

"Automotive rubbing or polishing compound" means a product designed primarily to remove oxidation, old paint, scratches or swirl marks, and other defects from the painted surfaces of motor vehicles without leaving a protective barrier.

"Automotive wax, polish, sealant, or glaze" means a product designed to seal out moisture, increase gloss, or otherwise enhance a motor vehicle's painted surfaces. Automotive wax, polish, sealant, or glaze includes, but is not limited to, products designed for use in auto body repair shops and drive-through car washes, as well as products designed for the general public. Automotive wax, polish, sealant, or glaze does not include automotive rubbing or polishing compounds, automotive wash and wax products, surfactant-containing car wash products, and products designed for use on unpainted surfaces such as bare metal, chrome, glass, or plastic.

"Automotive windshield washer fluid" means any liquid designed for use in a motor vehicle windshield washer system either as an antifreeze or for the purpose of cleaning, washing, or wetting the windshield. Automotive windshield washer fluid also includes liquids that are (i) packaged as a pre-wetted, single-use manual wipe and (ii) designed exclusively for cleaning, washing, or wetting automotive glass surfaces for the purpose of restoring or maintaining visibility for the driver. Glass cleaners that are intended for use on other glass surfaces are not included in this definition. Automotive windshield washer fluid does not include fluids placed by the manufacturer in a new vehicle.

"Bathroom and tile cleaner" means a product designed to clean tile or surfaces in bathrooms. Bathroom and tile cleaners do not include products designed primarily to clean toilet bowls, toilet tanks, or urinals.

"Bug and tar remover" means a product labeled to remove either or both of the following from painted motor vehicle surfaces without causing damage to the finish: (i) biological residues, such as insect carcasses and tree sap, and (ii) road grime, such as road tar, roadway paint markings, and asphalt.

"CARB" means the California Air Resources Board.

"Carburetor or fuel-injection air intake cleaner" means a product designed to remove fuel deposits, dirt, or other contaminants from a carburetor, choke, throttle body of a fuel-injection system, or associated linkages. Carburetor or fuel-injection air intake cleaner does not include products designed exclusively to be introduced directly into the fuel lines or fuel storage tank prior to introduction into the carburetor or fuel injectors.

"Carpet and upholstery cleaner" means a cleaning product designed for the purpose of eliminating dirt and stains on rugs, carpeting, and the interior of motor vehicles or on household furniture or objects upholstered or covered with fabrics such as wool, cotton, nylon, or other synthetic fabrics. Carpet and upholstery cleaners include, but are not limited to, products that make fabric protectant claims. Carpet and upholstery cleaners do not include general purpose cleaners, spot removers, vinyl or leather cleaners, dry cleaning fluids, or products designed exclusively for use at industrial facilities engaged in furniture or carpet manufacturing.

"Certified emissions" means the emissions level for products approved under 9VAC5-45-430 E, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound VOC per start.

"Certified use rate" means the usage level for products approved under 9VAC5-45-430 E, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound certified product used per start.

"Charcoal lighter material" means any combustible material designed to be applied on, incorporated in, added to, or used with charcoal to enhance ignition. Charcoal lighter material does not include any of the following:

1. Electrical starters and probes;

2. Metallic cylinders using paper tinder;

3. Natural gas;

4. Propane; or

5. Fat wood.

"Colorant" means any pigment or coloring material used in a consumer product for an aesthetic effect or to dramatize an ingredient.

"Compliance period" means the period of time, not to exceed one year, for which the ACP limit and ACP emissions are calculated and for which compliance with the ACP limit is determined, as specified in the ACP agreement approving an ACP.

"Construction, panel, and floor covering adhesive" means any one-component adhesive that is designed exclusively for the installation, remodeling, maintenance, or repair of:

1. Structural and building components that include, but are not limited to, beams, trusses, studs, paneling (drywall or drywall laminates, fiberglass reinforced plastic (FRP), plywood, particle board, insulation board, predecorated hardboard or tileboard, etc.), ceiling and acoustical tile, molding, fixtures, countertops or countertop laminates, cove or wall bases, and flooring or subflooring; or

2. Floor or wall coverings that include, but are not limited to, wood or simulated wood covering, carpet, carpet pad or cushion, vinyl-backed carpet, flexible flooring material, nonresilient flooring material, mirror tiles and other types of tiles, and artificial grass.

Construction, panel, and floor covering adhesive does not include floor seam sealer.

"Consumer" means a person who purchases or acquires a consumer product for personal, family, household, or institutional use. Persons acquiring a consumer product for resale are not consumers for that product.

"Consumer product" means a chemically formulated product used by household and institutional consumers including, but not limited to, detergents; cleaning compounds; polishes; floor finishes; cosmetics; personal care products; home, lawn, and garden products; disinfectants; sanitizers; aerosol paints; and automotive specialty products, but does not include other paint products, furniture coatings, or architectural coatings. As used in this article, consumer products shall also refer to aerosol adhesives, including aerosol adhesives used for consumer, industrial, or commercial uses.

"Contact adhesive" means an adhesive that:

1. Is designed for application to both surfaces to be bonded together;

2. Is allowed to dry before the two surfaces are placed in contact with each other;

3. Forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other; and

4. Does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces.

Contact adhesive does not include rubber cements that are primarily intended for use on paper substrates. Contact adhesive also does not include vulcanizing fluids that are designed and labeled for tire repair only.

"Contact adhesive - general purpose" means any contact adhesive that is not a contact adhesive - special purpose.

"Contact adhesive - special purpose" means a contact adhesive that is used as follows:

1. To bond melamine-covered board, unprimed metal, unsupported vinyl, Teflon®, ultra-high molecular weight polyethylene, rubber, high pressure laminate or wood veneer 1/16 inch or less in thickness to any porous or nonporous surface, and is sold in units of product, less packaging, that contain more than eight fluid ounces; or

2. In automotive applications that are either:

a. Automotive under-the-hood applications requiring heat, oil, or gasoline resistance; or

b. Body-side molding, automotive weatherstrip, or decorative trim.

"Container or packaging" means the part or parts of the consumer or institutional product that serve only to contain, enclose, incorporate, deliver, dispense, wrap, or store the chemically formulated substance or mixture of substances that is solely responsible for accomplishing the purposes for which the product was designed or intended. Containers or packaging include any article onto or into which the principal display panel and other accompanying literature or graphics are incorporated, etched, printed, or attached.

"Contact person" means a representative that has been designated by the responsible ACP party for the purpose of reporting or maintaining information specified in the ACP agreement approving an ACP.

"Crawling bug insecticide" means an insecticide product that is designed for use against ants, cockroaches, or other household crawling arthropods, including, but not limited to, mites, silverfish or spiders. Crawling bug insecticide does not include products designed to be used exclusively on humans or animals or a house dust mite product. For the purposes of this definition only:

1. "House dust mite product" means a product whose label, packaging, or accompanying literature states that the product is suitable for use against house dust mites, but does not indicate that the product is suitable for use against ants, cockroaches, or other household crawling arthropods.

2. "House dust mite" means mites that feed primarily on skin cells shed in the home by humans and pets and that belong to the phylum Arthropoda, the subphylum Chelicerata, the class Arachnida, the subclass Acari, the order Astigmata, and the family Pyroglyphidae.

"Date-code" means the day, month, and year on which the consumer product was manufactured, filled, or packaged, or a code indicating such a date.

"Deodorant" means any product including, but not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles, that indicates or depicts on the container or packaging, or on any sticker or label affixed thereto, that the product can be used on or applied to the human axilla to provide a scent or minimize odor. A deodorant body spray product that indicates or depicts on the container or packaging, or on any sticker or label affixed thereto, that it can be used on or applied to the human axilla, is a deodorant.

"Deodorant body spray" means a personal fragrance product with 20% or less fragrance that is designed for application all over the human body to provide a scent. A deodorant body spray product that indicates or depicts on the container or packaging, or on any sticker or label affixed thereto, that it can be used on or applied to the human axilla, is a deodorant.

"Device" means an instrument or contrivance (other than a firearm) that is designed for trapping, destroying, repelling, or mitigating a pest or other form of plant or animal life (other than human and other than bacterium, virus, or another microorganism on or in living humans or other living animals); but not including equipment used for the application of pesticides when sold separately therefrom.

"Disinfectant" means a product intended to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi, or viruses on surfaces or inanimate objects and whose label is registered under the FIFRA. Disinfectant does not include any of the following:

1. Products designed solely for use on humans or animals;

2. Products designed for agricultural use;

3. Products designed solely for use in swimming pools, therapeutic tubs, or hot tubs; or

4. Products that, as indicated on the principal display panel or label, are designed primarily for use as bathroom and tile cleaners, glass cleaners, general purpose cleaners, toilet bowl cleaners, or metal polishes.

"Distributor" means a person to whom a consumer product is sold or supplied for the purposes of resale or distribution in commerce, except that manufacturers, retailers, and consumers are not distributors.

"Double phase aerosol air freshener" means an aerosol air freshener with the liquid contents in two or more distinct phases that require the product container to be shaken before use to mix the phases, producing an emulsion.

"Dry cleaning fluid" means a nonaqueous liquid product designed and labeled exclusively for use on:

1. Fabrics that are labeled "for dry clean only," such as clothing or drapery; or

2. S-coded fabrics.

Dry cleaning fluid includes, but is not limited to, those products used by commercial dry cleaners and commercial businesses that clean fabrics such as draperies at the customer's residence or work place. Dry cleaning fluid does not include spot remover or carpet and upholstery cleaner. For the purposes of this definition, "S-coded fabric" means an upholstery fabric designed to be cleaned only with water-free spot cleaning products as specified by the American Furniture Manufacturers Association Joint Industry Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric Standards and Guidelines (see 9VAC5-20-21).

"Dusting aid" means a product designed to assist in removing dust and other soils from floors and other surfaces without leaving a wax or silicone-based coating. Dusting aid does not include pressurized gas dusters.

"Electrical cleaner" means a product labeled to remove heavy soils such as grease, grime, or oil from electrical equipment, including, but not limited to, electric motors, armatures, relays, electric panels, or generators. Electrical cleaner does not include general purpose cleaners, general purpose degreasers, dusting aids, electronic cleaners, energized electrical cleaners, pressurized gas dusters, engine degreasers, anti-static products, or products designed to clean the casings or housings of electrical equipment.

"Electronic cleaner" means a product labeled for the removal of dirt, moisture, dust, flux or oxides from the internal components of electronic or precision equipment such as circuit boards, and the internal components of electronic devices, including but not limited to, radios, compact disc (CD) players, digital video disc (DVD) players, and computers. Electronic cleaner does not include general purpose cleaners, general purpose degreasers, dusting aids, pressurized gas dusters, engine degreasers, electrical cleaners, energized electrical cleaners, anti-static products, or products designed to clean the casings or housings of electronic equipment.

"Energized electrical cleaner" means a product that meets both of the following criteria:

1. The product is labeled to clean or degrease electrical equipment, where cleaning or degreasing is accomplished when electrical current exists, or when there is a residual electrical potential from a component, such as a capacitor;

2. The product label clearly displays the statements: "Energized equipment use only. Not to be used for motorized vehicle maintenance, or their parts."

Energized electrical cleaner does not include electronic cleaner.

"Enforceable sales" means the total amount of an ACP product sold for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C during the applicable compliance period specified in the ACP agreement approving an ACP, as determined through enforceable sales records (expressed to the nearest pound, excluding product container and packaging).

"Enforceable sales record" means a written, point-of-sale record or another board-approved system of documentation from which the mass, in pounds (less product container and packaging), of an ACP product sold to the end user in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C during the applicable compliance period can be accurately documented. For the purposes of this article, enforceable sales records include, but are not limited to, the following types of records:

1. Accurate records of direct retail or other outlet sales to the end user during the applicable compliance period;

2. Accurate compilations, made by independent market surveying services, of direct retail or other outlet sales to the end users for the applicable compliance period, provided that a detailed method that can be used to verify data composing such summaries is submitted by the responsible ACP party and approved by the board; and

3. Other accurate product sales records acceptable to the board.

"Engine degreaser" means a cleaning product designed to remove grease, grime, oil, and other contaminants from the external surfaces of engines and other mechanical parts.

"Exempt compound" means acetone, ethane, methyl acetate, parachlorobenzotrifluoride (1-chloro-4-trifluoromethyl benzene), or perchloroethylene (tetrachloroethylene).

"Existing product" means any formulation of the same product category and form sold, supplied, manufactured, or offered for sale prior to March 9, 2005, or any subsequently introduced identical formulation.

"Fabric protectant" means a product designed to be applied to fabric substrates to protect the surface from soiling from dirt and other impurities or to reduce absorption of liquid into the fabric's fibers. Fabric protectant does not include waterproofers, products designed for use solely on leather, or products designed for use solely on fabrics that are labeled "for dry clean only" and sold in containers of 10 fluid ounces or less.

"Fabric refresher" means a product labeled to neutralize or eliminate odors on non-laundered fabric including, but not limited to, soft household surfaces, rugs, carpeting, draperies, bedding, automotive interiors, footwear, athletic equipment, clothing or on household furniture or objects upholstered or covered with fabrics such as, but not limited to, wool, cotton, or nylon. Fabric refresher does not include anti-static products, carpet and upholstery cleaners, soft household surface sanitizers, footwear or leather care products, spot removers, or disinfectants, or products labeled for application to both fabric and human skin. For the purposes of this definition only, soft household surface sanitizer means a product labeled to neutralize or eliminate odors on surfaces listed above whose label is registered as a sanitizer under FIFRA.

"Facial cleaner or soap" means a cleaner or soap designed primarily to clean the face. Facial cleaner or soap includes, but is not limited to, facial cleansing creams, semisolids, liquids, lotions, and substrate-impregnated forms. Facial cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Fat wood" means pieces of wood kindling with high naturally occurring levels of sap or resin that enhance ignition of the kindling. Fat wood does not include kindling with substances added to enhance flammability, such as wax-covered or wax-impregnated wood-based products.

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136-136y).

"Flea and tick insecticide" means an insecticide product that is designed for use against fleas, ticks, their larvae, or their eggs. Flea and tick insecticide does not include products that are designed to be used exclusively on humans or animals and their bedding.

"Flexible flooring material" means asphalt, cork, linoleum, no-wax, rubber, seamless vinyl, and vinyl composite flooring.

"Floor coating" means an opaque coating that is labeled and designed for application to flooring, including but not limited to, decks, porches, steps, and other horizontal surfaces that may be subject to foot traffic.

"Floor polish or wax" means a wax, polish, or other product designed to polish, protect, or enhance floor surfaces by leaving a protective coating that is designed to be periodically replenished. Floor polish or wax does not include spray buff products, products designed solely for the purpose of cleaning floors, floor finish strippers, products designed for unfinished wood floors, and coatings subject to architectural coatings regulations.

"Floor seam sealer" means a product designed and labeled exclusively for bonding, fusing, or sealing (coating) seams between adjoining rolls of installed flexible sheet flooring.

"Floor wax stripper" means a product designed to remove natural or synthetic floor polishes or waxes through breakdown of the polish or wax polymers or by dissolving or emulsifying the polish or wax. Floor wax stripper does not include aerosol floor wax strippers or products designed to remove floor wax solely through abrasion.

"Flying bug insecticide" means an insecticide product that is designed for use against flying insects or other flying arthropods, including but not limited to flies, mosquitoes, moths, or gnats. Flying bug insecticide does not include wasp and hornet insecticide, products that are designed to be used exclusively on humans or animals, or a moth-proofing product. For the purposes of this definition only, "moth-proofing product" means a product whose label, packaging, or accompanying literature indicates that the product is designed to protect fabrics from damage by moths, but does not indicate that the product is suitable for use against flying insects or other flying arthropods.

"Footwear or leather care product" means any product designed or labeled to be applied to footwear or to other leather articles or components, to maintain, enhance, clean, protect, or modify the appearance, durability, fit, or flexibility of the footwear, leather article or component. Footwear includes both leather and non-leather foot apparel. Footwear or leather care product does not include fabric protectants; general purpose adhesives; contact adhesives; vinyl/fabric/leather/polycarbonate coatings; rubber and vinyl protectants; fabric refreshers; products solely for deodorizing; or sealant products with adhesive properties used to create external protective layers greater than 2 millimeters thick.

"Fragrance" means a substance or complex mixture of aroma chemicals, natural essential oils, and other functional components with a combined vapor pressure not in excess of 2 mm of Hg at 20ºC, the sole purpose of which is to impart an odor or scent, or to counteract a malodor.

"Furniture coating" means a paint designed for application to room furnishings including, but not limited to, cabinets (kitchen, bath and vanity), tables, chairs, beds, and sofas.

"Furniture maintenance product" means a wax, polish, conditioner, or other product designed for the purpose of polishing, protecting, or enhancing finished wood surfaces other than floors. Furniture maintenance products do not include dusting aids, wood cleaners and products designed solely for the purpose of cleaning, and products designed to leave a permanent finish such as stains, sanding sealers, and lacquers.

"Gel" means a colloid in which the disperse phase has combined with the continuous phase to produce a semisolid material, such as jelly.

"General purpose adhesive" means a nonaerosol adhesive designed for use on a variety of substrates. General purpose adhesive does not include:

1. Contact adhesives;

2. Construction, panel, and floor covering adhesives;

3. Adhesives designed exclusively for application on one specific category of substrates (i.e., substrates that are composed of similar materials, such as different types of metals, paper products, ceramics, plastics, rubbers, or vinyls); or

4. Adhesives designed exclusively for use on one specific category of articles (i.e., articles that may be composed of different materials but perform a specific function, such as gaskets, automotive trim, weather-stripping, or carpets).

"General purpose cleaner" means a product designed for general all-purpose cleaning, in contrast to cleaning products designed to clean specific substrates in certain situations. General purpose cleaner includes products designed for general floor cleaning, kitchen or countertop cleaning, and cleaners designed to be used on a variety of hard surfaces and does not include general purpose degreasers and electronic cleaners.

"General purpose degreaser" means a product labeled to remove or dissolve grease, grime, oil, and other oil-based contaminants from a variety of substrates, including automotive or miscellaneous metallic parts. General purpose degreaser does not include engine degreaser, general purpose cleaner, adhesive remover, electronic cleaner, electrical cleaner, energized electrical cleaner, metal polish or cleanser, products used exclusively in solvent cleaning tanks or related equipment, or products that are (i) sold exclusively to establishments that manufacture or construct goods or commodities; and (ii) labeled "not for retail sale." Solvent cleaning tanks or related equipment includes, but is not limited to, cold cleaners, vapor degreasers, conveyorized degreasers, film cleaning machines, or products designed to clean miscellaneous metallic parts by immersion in a container.

"General-use hand or body cleaner or soap" means a cleaner or soap designed to be used routinely on the skin to clean or remove typical or common dirt and soils. General-use hand or body cleaner or soap includes, but is not limited to, hand or body washes, dual-purpose shampoo-body cleaners, shower or bath gels, and moisturizing cleaners or soaps. General-use hand or body cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Glass cleaner" means a cleaning product designed primarily for cleaning surfaces made of glass. Glass cleaner does not include products designed solely for the purpose of cleaning optical materials used in eyeglasses, photographic equipment, scientific equipment, and photocopying machines.

"Graffiti remover" means a product labeled to remove spray paint, ink, marker, crayon, lipstick, nail polish, or shoe polish, from a variety of non-cloth or non-fabric substrates. Graffiti remover does not include paint remover or stripper, nail polish remover, or spot remover. Products labeled for dual use as both a paint stripper and graffiti remover are considered graffiti removers.

"Gross sales" means the estimated total sales of an ACP product in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C during a specific compliance period (expressed to the nearest pound), based on either of the following methods, whichever the responsible ACP party demonstrates to the satisfaction of the board will provide an accurate sales estimate:

1. Apportionment of national or regional sales of the ACP product to sales, determined by multiplying the average national or regional sales of the product by the fraction of the national or regional population, respectively, that is represented by the current population of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C; or

2. Another documented method that provides an accurate estimate of the total current sales of the ACP product.

"Hair mousse" means a hairstyling foam designed to facilitate styling of a coiffure and provide limited holding power.

"Hair shine" means a product designed for the primary purpose of creating a shine when applied to the hair. Hair shine includes, but is not limited to, dual-use products designed primarily to impart a sheen to the hair. Hair shine does not include hair spray, hair mousse, hair styling product, hair styling gel, or products whose primary purpose is to condition or hold the hair.

"Hair spray" means a consumer product that is applied to styled hair, and is designed or labeled to provide sufficient rigidity to hold, retain and/or finish the style of the hair for a period of time. Hair spray includes aerosol hair sprays, pump hair sprays, spray waxes; color, glitter, or sparkle hairsprays that make finishing claims; and products that are both a styling and finishing product. Hair spray does not include spray products that are intended to aid in styling but does not provide finishing of a hairstyle. For the purposes of this article, "finish" or "finishing" means the maintaining or holding of previously styled hair for a period of time. For the purposes of this article, "styling" means the forming, sculpting, or manipulating the hair to temporarily alter the hair's shape.

"Hair styling product" means a consumer product that is designed or labeled for the application to wet, damp or dry hair to aid in defining, shaping, lifting, styling and or sculpting of the hair. Hair styling product includes, but is not limited to hair balm; clay; cream; creme; curl straightener; gel; liquid; lotion; paste; pomade; putty; root lifter; serum; spray gel; stick; temporary hair straightener; wax; spray products that aid in styling but do not provide finishing of a hairstyle; and leave-in volumizers, detanglers or conditioners that make styling claims. Hair styling product does not include hair mousse, hair shine, hair spray, or shampoos or conditioners that are rinsed from the hair prior to styling. For the purposes of this article, "finish" or "finishing" means the maintaining or holding of previously styled hair for a period of time. For the purposes of this article, "styling" means the forming, sculpting, or manipulating the hair to temporarily alter the hair's shape.

"Heavy-duty hand cleaner or soap" means a product designed to clean or remove difficult dirt and soils such as oil, grease, grime, tar, shellac, putty, printer's ink, paint, graphite, cement, carbon, asphalt, or adhesives from the hand with or without the use of water. Heavy-duty hand cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Herbicide" means a pesticide product designed to kill or retard a plant's growth, but excludes products that are (i) for agricultural use, or (ii) restricted materials that require a permit for use and possession.

"High volatility organic compound" or "HVOC" means a volatile organic compound that exerts a vapor pressure greater than 80 millimeters of mercury (mm Hg) when measured at 20ºC.

"Household product" means a consumer product that is primarily designed to be used inside or outside of living quarters or residences that are occupied or intended for occupation by people, including the immediate surroundings.

"Insecticide" means a pesticide product that is designed for use against insects or other arthropods, but excluding products that are:

1. For agricultural use;

2. For a use that requires a structural pest control license under applicable state laws or regulations; or

3. Materials classified for restricted use pursuant to 40 CFR 152.75 and require a pesticide business license from the Virginia Pesticide Control Board pursuant to 2VAC20-40-20 for use and possession.

"Insecticide fogger" means an insecticide product designed to release all or most of its content as a fog or mist into indoor areas during a single application.

"Institutional product" or "industrial and institutional (I&I) product" means a consumer product that is designed for use in the maintenance or operation of an establishment that:

1. Manufactures, transports, or sells goods or commodities, or provides services for profit; or

2. Is engaged in the nonprofit promotion of a particular public, educational, or charitable cause.

Establishments include, but are not limited to, government agencies, factories, schools, hospitals, sanitariums, prisons, restaurants, hotels, stores, automobile service and parts centers, health clubs, theaters, or transportation companies. Institutional product does not include household products and products that are incorporated into or used exclusively in the manufacture or construction of the goods or commodities at the site of the establishment.

"Label" means written, printed, or graphic matter affixed to, applied to, attached to, blown into, formed, molded into, embossed on, or appearing upon a consumer product or consumer product package, for purposes of branding, identifying, or giving information with respect to the product or to the contents of the package.

"Laundry prewash" means a product that is designed for application to a fabric prior to laundering and that supplements and contributes to the effectiveness of laundry detergents or provides specialized performance.

"Laundry starch product" means a product that is designed for application to a fabric, either during or after laundering, to impart and prolong a crisp, fresh look and may also act to help ease ironing of the fabric. Laundry starch product includes, but is not limited to, fabric finish, sizing, and starch.

"Lawn and garden insecticide" means an insecticide product labeled primarily to be used in household lawn and garden areas to protect plants from insects or other arthropods. Notwithstanding the requirements of 9VAC5-45-460 C, aerosol lawn and garden insecticides may claim to kill insects or other arthropods.

"Liquid" means a substance or mixture of substances that is capable of a visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21). Liquid does not include powders or other materials that are composed entirely of solid particles.

"Lubricant" means a product designed to reduce friction, heat, noise, or wear between moving parts, or to loosen rusted or immovable parts or mechanisms. Lubricant does not include automotive power steering fluids; products for use inside power generating motors, engines, and turbines, and their associated power-transfer gearboxes; two-cycle oils or other products designed to be added to fuels; products for use on the human body or animals; or products that are:

1. Sold exclusively to establishments that manufacture or construct goods or commodities; and

2. Labeled "not for retail sale."

"LVP content" means the total weight, in pounds, of LVP-VOC in an ACP product multiplied by 100 and divided by the product's total net weight (in pounds, excluding container and packaging), expressed to the nearest 0.1.

"LVP-VOC" means a chemical compound or mixture that contains at least one carbon atom and meets one of the following:

1. Has a vapor pressure less than 0.1 mm Hg at 20ºC, as determined by CARB Method 310 (see 9VAC5-20-21);

2. Is a chemical compound with more than 12 carbon atoms, or a chemical mixture composed solely of compounds with more than 12 carbon atoms as verified by formulation data, and the vapor pressure and boiling point are unknown;

3. Is a chemical compound with a boiling point greater than 216ºC, as determined by CARB Method 310 (see 9VAC5-20-21); or

4. Is the weight percent of a chemical mixture that boils above 216ºC, as determined by CARB Method 310 (see 9VAC5-20-21).

For the purposes of the definition of LVP-VOC, "chemical compound" means a molecule of definite chemical formula and isomeric structure, and "chemical mixture" means a substrate composed of two or more chemical compounds.

"Manufacturer" means a person who imports, manufactures, assembles, produces, packages, repackages, or relabels a consumer product.

"Medicated astringent or medicated toner" means a product regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. Medicated astringent or medicated toner includes, but is not limited to, clarifiers and substrate-impregnated products. Medicated astringent or medicated toner does not include hand, face, or body cleaner or soap products, astringent or toner, cold cream, lotion, antiperspirants, or products that must be purchased with a doctor's prescription.

"Medium volatility organic compound" or "MVOC" means a volatile organic compound that exerts a vapor pressure greater than 2 mm Hg and less than or equal to 80 mm Hg when measured at 20ºC.

"Metal polish or cleanser" means a product designed primarily to improve the appearance of finished metal, metallic, or metallized surfaces by physical or chemical action. To "improve the appearance" means to remove or reduce stains, impurities, or oxidation from surfaces or to make surfaces smooth and shiny. Metal polish or cleanser includes, but is not limited to, metal polishes used on brass, silver, chrome, copper, stainless steel, and other ornamental metals. Metal polish or cleanser does not include automotive wax, polish, sealant, or glaze, wheel cleaner, paint remover or stripper, products designed and labeled exclusively for automotive and marine detailing, or products designed for use in degreasing tanks.

"Missing data days" means the number of days in a compliance period for which the responsible ACP party has failed to provide the required enforceable sales or VOC content data to the board, as specified in the ACP agreement.

"Mist spray adhesive" means an aerosol that is not a special purpose spray adhesive and that delivers a particle or mist spray, resulting in the formation of fine, discrete particles that yield a generally uniform and smooth application of adhesive to the substrate.

"Multipurpose dry lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity by depositing a thin film of graphite, molybdenum disulfide ("moly"), or polytetrafluoroethylene or closely related fluoropolymer ("teflon") on surfaces; and

2. Designed for general purpose lubrication, or for use in a wide variety of applications.

"Multipurpose lubricant" means a lubricant designed for general purpose lubrication, or for use in a wide variety of applications. Multipurpose lubricant does not include multipurpose dry lubricants, penetrants, or silicone-based multipurpose lubricants.

"Multipurpose solvent" means an organic liquid designed to be used for a variety of purposes, including cleaning or degreasing of a variety of substrates, or thinning, dispersing, or dissolving other organic materials. Multipurpose solvent includes solvents used in institutional facilities, except for laboratory reagents used in analytical, educational, research, scientific, or other laboratories. Multipurpose solvent does not include solvents used in cold cleaners, vapor degreasers, conveyorized degreasers or film cleaning machines, or solvents that are incorporated into, or used exclusively in the manufacture or construction of, the goods or commodities at the site of the establishment.

"Nail polish" means a clear or colored coating designed for application to the fingernails or toenails and including but not limited to, lacquers, enamels, acrylics, base coats, and top coats.

"Nail polish remover" means a product designed to remove nail polish and coatings from fingernails or toenails.

"Nonaerosol product" means a consumer product that is not dispensed by a pressurized spray system.

"Noncarbon containing compound" means a compound that does not contain carbon atoms.

"Nonresilient flooring" means flooring of a mineral content that is not flexible. Nonresilient flooring includes but is not limited to terrazzo, marble, slate, granite, brick, stone, ceramic tile, and concrete.

"Nonselective terrestrial herbicide" means a terrestrial herbicide product that is toxic to plants without regard to species.

"One-product business" means a responsible ACP party that sells, supplies, offers for sale, or manufactures for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400:

1. Only one distinct ACP product, sold under one product brand name, which is subject to the requirements of 9VAC5-45-430; or

2. Only one distinct ACP product line subject to the requirements of 9VAC5-45-430, in which all the ACP products belong to the same product category and the VOC contents in the products are within 98.0% and 102.0% of the arithmetic mean of the VOC contents over the entire product line.

"Oven cleaner" means a cleaning product designed to clean and to remove dried food deposits from oven walls.

"Paint" means a pigmented liquid, liquefiable, or mastic composition designed for application to a substrate in a thin layer that is converted to an opaque solid film after application and is used for protection, decoration or identification, or to serve some functional purpose such as the filling or concealing of surface irregularities or the modification of light and heat radiation characteristics.

"Paint remover or stripper" means a product designed to strip or remove paints or other related coatings, by chemical action, from a substrate without markedly affecting the substrate. Paint remover or stripper does not include multipurpose solvents, paint brush cleaners, products designed and labeled exclusively as graffiti removers, and hand cleaner products that claim to remove paints and other related coatings from skin.

"Penetrant" means a lubricant designed and labeled primarily to loosen metal parts that have bonded together due to rusting, oxidation, or other causes. Penetrant does not include multipurpose lubricants that claim to have penetrating qualities but are not labeled primarily to loosen bonded parts.

"Personal fragrance product" means any product that is applied to the human body or clothing for the primary purpose of adding a scent or masking a malodor, including cologne, perfume, aftershave, and toilet water. Personal fragrance product does not include: (i) deodorant; (ii) medicated products designed primarily to alleviate fungal or bacterial growth on feet or other areas of the body; (iii) mouthwashes, breath fresheners and deodorizers; (iv) lotions, moisturizers, powders or other skin care products used primarily to alleviate skin conditions such as dryness and irritations; (v) products designed exclusively for use on human genitalia; (vi) soaps, shampoos, and products primarily used to clean the human body; and (vii) fragrance products designed to be used exclusively on nonhuman animals.

"Pesticide" means and includes a substance or mixture of substances labeled, designed, or intended for use in preventing, destroying, repelling, or mitigating a pest, or a substance or mixture of substances labeled, designed, or intended for use as a defoliant, desiccant, or plant regulator, provided that the term "pesticide" will not include a substance, mixture of substances, or device that the U.S. Environmental Protection Agency does not consider to be a pesticide.

"Pre-ACP VOC content" means the lowest VOC content of an ACP product between January 1, 1990, and the date on which the application for a proposed ACP is submitted to the board, based on the data obtained from accurate records available to the board that yields the lowest VOC content for the product.

"Pressurized gas duster" means a pressurized product labeled to remove dust from a surface solely by means of mass air or gas flow, including surfaces such as photographs, photographic film negatives, computer keyboards, and other types of surfaces that cannot be cleaned with solvents. Pressurized gas duster does not include dusting aids.

"Principal display panel" means that part of a label that is so designed as to most likely be displayed, presented, shown, or examined under normal and customary conditions of display or purchase. Whenever a principal display panel appears more than once, all requirements pertaining to the principal display panel shall pertain to all such principal display panels.

"Product brand name" means the name of the product exactly as it appears on the principal display panel of the product.

"Product category" means the applicable category that best describes the product as listed in this section and in Table 45-4A in 9VAC5-45-430 A.

"Product form," for the purpose of complying with 9VAC5-45-510 (notification, records and reporting) only, means the applicable form that most accurately describes the product's dispensing form as follows:

A = Aerosol Product.

S = Solid.

P = Pump Spray.

L = Liquid.

SS = Semisolid.

O = Other.

"Product line" means a group of products of identical form and function belonging to the same product category.

"Propellant" means a liquefied or compressed gas that is used in whole or in part, such as a cosolvent, to expel a liquid or other material from the same self-pressurized container or from a separate container.

"Pump spray" means a packaging system in which the product ingredients within the container are not under pressure and in which the product is expelled only while a pumping action is applied to a button, trigger, or other actuator.

"Reconcile" or "reconciliation" means to provide sufficient VOC emission reductions to completely offset shortfalls generated under the ACP during an applicable compliance period.

"Reconciliation of shortfalls plan" means the plan to be implemented by the responsible ACP party when shortfalls have occurred, as approved by the board pursuant to 9VAC5-45-440 B 1 g (10).

"Responsible ACP party" means the company, firm, or establishment that is listed on the ACP product's label. If the label lists two or more companies, firms, or establishments, the responsible ACP party is the party that the ACP product was "manufactured for" or "distributed by," as noted on the label.

"Responsible party" means the company, firm, or establishment that is listed on the product's label. If the label lists two companies, firms, or establishments, the responsible party is the party that the product was "manufactured for" or "distributed by," as noted on the label.

"Restricted materials" means pesticides established as restricted materials under Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Retail outlet" means an establishment at which consumer products are sold, supplied, or offered for sale directly to consumers.

"Retailer" means a person who sells, supplies, or offers consumer products for sale directly to consumers.

"Roll-on product" means an antiperspirant or deodorant that dispenses active ingredients by rolling a wetted ball or wetted cylinder on the affected area.

"Rubber and vinyl protectant" means a product designed to protect, preserve, or renew vinyl, rubber, and plastic on vehicles, tires, luggage, furniture, and household products such as vinyl covers, clothing, and accessories. Rubber and vinyl protectant does not include products primarily designed to clean the wheel rim, such as aluminum or magnesium wheel cleaners, and tire cleaners that do not leave an appearance-enhancing or protective substance on the tire.

"Rubbing alcohol" means a product containing isopropyl alcohol (also called isopropanol) or denatured ethanol and labeled for topical use, usually to decrease germs in minor cuts and scrapes, to relieve minor muscle aches, as a rubefacient, and for massage.

"Sealant and caulking compound" means a product with adhesive properties that is designed to fill, seal, waterproof, or weatherproof gaps or joints between two surfaces. Sealant and caulking compound does not include roof cements and roof sealants; insulating foams; removable caulking compounds; clear or paintable or water resistant caulking compounds; floor seam sealers; products designed exclusively for automotive uses; or sealers that are applied as continuous coatings. Sealant and caulking compound also does not include units of product, less packaging, which weigh more than one pound and consist of more than 16 fluid ounces. For the purposes of this definition only, "removable caulking compound" means a compound that temporarily seals windows or doors for three- to six-month time intervals; and "clear or paintable or water resistant caulking compound" means a compound that contains no appreciable level of opaque fillers or pigments, transmits most or all visible light through the caulk when cured, is paintable, and is immediately resistant to precipitation upon application.

"Semisolid" means a product that, at room temperature, will not pour, but will spread or deform easily, including, but not limited to gels, pastes, and greases.

"Shaving cream" means an aerosol product that dispenses a foam lather intended to be used with a blade or cartridge razor or other wet-shaving system, in the removal of facial or other bodily hair. Shaving cream does not include shaving gel.

"Shaving gel" means an aerosol product that dispenses a post-foaming semisolid designed to be used with a blade, cartridge razor, or other shaving system in the removal of facial or other bodily hair. Shaving gel does not include shaving cream.

"Shortfall" means the ACP emissions minus the ACP limit when the ACP emissions were greater than the ACP limit during a specified compliance period, expressed to the nearest pound of VOC. Shortfall does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Silicone-based multipurpose lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity primarily through the use of silicone compounds including, but not limited to, polydimethylsiloxane; and

2. Designed and labeled for general purpose lubrication, or for use in a wide variety of applications.

Silicone-based multipurpose lubricant does not include products designed and labeled exclusively to release manufactured products from molds.

"Single phase aerosol air freshener" means an aerosol air freshener with the liquid contents in a single homogeneous phase and that does not require that the product container be shaken before use.

"Small business" means any stationary source that is owned or operated by a person that employs 100 or fewer individuals; is a small business concern as defined in the federal Small Business Act; is not a major stationary source; does not emit 50 tons or more per year of any regulated pollutant; and emits less than 75 tons per year of all regulated pollutants.

"Solid" means a substance or mixture of substances that, either whole or subdivided (such as the particles composing a powder), is not capable of visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

"Special purpose spray adhesive" means an aerosol adhesive that meets any of the following definitions:

1. "Mounting adhesive" means an aerosol adhesive designed to permanently mount photographs, artwork, or other drawn or printed media to a backing (paper, board, cloth, etc.) without causing discoloration to the artwork.

2. "Flexible vinyl adhesive" means an aerosol adhesive designed to bond flexible vinyl to substrates. "Flexible vinyl" means a nonrigid polyvinyl chloride plastic with at least 5.0%, by weight, of plasticizer content. A plasticizer is a material, such as a high boiling point organic solvent, that is incorporated into a plastic to increase its flexibility, workability, or distensibility, and may be determined using ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21) or from product formulation data.

3. "Polystyrene foam adhesive" means an aerosol adhesive designed to bond polystyrene foam to substrates.

4. "Automobile headliner adhesive" means an aerosol adhesive designed to bond together layers in motor vehicle headliners.

5. "Polyolefin adhesive" means an aerosol adhesive designed to bond polyolefins to substrates.

6. "Laminate repair or edgebanding adhesive" means an aerosol adhesive designed for:

a. The touch-up or repair of items laminated with high pressure laminates (e.g., lifted edges, delaminates, etc.); or

b. The touch-up, repair, or attachment of edgebonding materials, including but not limited to, other laminates, synthetic marble, veneers, wood molding, and decorative metals.

For the purposes of this definition, "high pressure laminate" means sheet materials that consist of paper, fabric, or other core material that have been laminated at temperatures exceeding 265°F and at pressures between 1,000 and 1,400 psi.

7. "Automotive engine compartment adhesive" means an aerosol adhesive designed for use in motor vehicle under-the-hood applications that require oil and plasticizer resistance, as well as high shear strength, at temperatures of 200-275°F.

"Spot remover" means a product labeled to clean localized areas or remove localized spots or stains on cloth or fabric, such as drapes, carpets, upholstery, and clothing, that does not require subsequent laundering to achieve stain removal. Spot remover does not include dry cleaning fluid, laundry prewash, or multipurpose solvent.

"Spray buff product" means a product designed to restore a worn floor finish in conjunction with a floor buffing machine and special pad.

"Stick product" means an antiperspirant or a deodorant that contains active ingredients in a solid matrix form, and that dispenses the active ingredients by frictional action on the affected area.

"Structural waterproof adhesive" means an adhesive whose bond lines are resistant to conditions of continuous immersion in fresh or salt water and that conforms with the definition in the federal consumer products regulation, 40 CFR 59 Subpart C.

"Surplus reduction" means the ACP limit minus the ACP emissions when the ACP limit was greater than the ACP emissions during a given compliance period, expressed to the nearest pound of VOC. Except as provided in 9VAC5-45-440 F 3, surplus reduction does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Surplus trading" means the buying, selling, or transfer of surplus reductions between responsible ACP parties.

"Terrestrial" means to live on or grow from land.

"Tire sealant and inflator" means a pressurized product that is designed to temporarily inflate and seal a leaking tire.

"Toilet/urinal care product" means any product designed or labeled to clean or to deodorize toilet bowls, toilet tanks, or urinals. Toilet bowls, toilet tanks, or urinals includes, but is not limited to, toilets or urinals connected to permanent plumbing in buildings and other structures, portable toilets or urinals placed at temporary or remote locations, and toilet or urinals in vehicles such as buses, recreational motor homes, boats, ships, and aircraft. Toilet/urinal care product does not include bathroom and tile cleaner or general purpose cleaner.

"Total maximum historical emissions" or "TMHE" means the total VOC emissions from all ACP products for which the responsible ACP party has failed to submit the required VOC content or enforceable sales records. The TMHE shall be calculated for each ACP product during each portion of a compliance period for which the responsible ACP party has failed to provide the required VOC content or enforceable sales records. The TMHE shall be expressed to the nearest pound and calculated according to the following calculation:

where:

Highest VOC content = the maximum VOC content that the ACP product has contained in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting VOC content data (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual VOC content, if the responsible ACP party has provided all required VOC Content data (for the entire compliance period), as specified in the ACP agreement.

Highest sales = the maximum one-year gross sales of the ACP product in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting enforceable sales records (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual one-year enforceable sales for the product, if the responsible ACP party has provided all required enforceable sales records (for the entire compliance period), as specified in the ACP agreement approving the ACP.

Missing data days = (see definition in this section).

1, 2,..., N = each product in an ACP, up to the maximum N, for which the responsible ACP party has failed to submit the required enforceable sales or VOC content data as specified in the ACP agreement.

"Type A propellant" means a compressed gas such as CO₂, N₂, N₂O, or compressed air that is used as a propellant and is either incorporated with the product or contained in a separate chamber within the product's packaging.

"Type B propellant" means a halocarbon that is used as a propellant including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), and hydrofluorocarbons (HFCs).

"Type C propellant" means a propellant that is not a Type A or Type B propellant, including propane, isobutane, n-butane, and dimethyl ether (also known as dimethyl oxide).

"Undercoating" means an aerosol product designed to impart a protective, nonpaint layer to the undercarriage, trunk interior, or firewall of motor vehicles to prevent the formation of rust or to deaden sound. Undercoating includes, but is not limited to, rubberized, mastic, or asphaltic products.

"Usage directions" means the text or graphics on the product's principal display panel, label, or accompanying literature that describes to the end user how and in what quantity the product is to be used.

"Vinyl/fabric/leather/polycarbonate coating" means a coating designed and labeled exclusively to coat vinyl, fabric, leather, or polycarbonate substrates.

"VOC content" means, except for charcoal lighter products, the total weight of VOC in a product expressed as a percentage of the product weight (exclusive of the container or packaging), as determined pursuant to 9VAC5-45-490 B and C.

For charcoal lighter material products only,

where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"Volatile organic compound" or "VOC" means volatile organic compound as defined in 9VAC5-10-20.

"Wasp and hornet insecticide" means an insecticide product that is designed for use against wasps, hornets, yellow jackets or bees by allowing the user to spray from a distance a directed stream or burst at the intended insects or their hiding place.

"Waterproofer" means a product designed and labeled exclusively to repel water from fabric or leather substrates. Waterproofer does not include fabric protectants.

"Wax" means a material or synthetic thermoplastic substance generally of high molecular weight hydrocarbons or high molecular weight esters of fatty acids or alcohols, except glycerol and high polymers (plastics). Wax includes, but is not limited to, substances derived from the secretions of plants and animals such as carnauba wax and beeswax, substances of a mineral origin such as ozocerite and paraffin, and synthetic polymers such as polyethylene.

"Web spray adhesive" means an aerosol adhesive that is not a mist spray or special purpose spray adhesive.

"Wood cleaner" means a product labeled to clean wooden materials including but not limited to decking, fences, flooring, logs, cabinetry, and furniture. Wood cleaner does not include dusting aids, general purpose cleaners, furniture maintenance products, floor wax strippers, floor polish or waxes, or products designed and labeled exclusively to preserve or color wood.

"Wood floor wax" means wax-based products for use solely on wood floors.

"Working day" means a day between Monday through Friday, inclusive, except for federal holidays.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-430 Standard for volatile organic compounds

A. Except as provided in 9VAC5-45-410, 9VAC5-45-440, and 9VAC5-45-450, no owner or other person shall (i) sell, supply, or offer for sale a consumer product manufactured on or after August 1, 2010, or (ii) manufacture for sale a consumer product on or after August 1, 2010, that contains volatile organic compounds in excess of the limits specified in Table 45-4A.

| TABLE 45-4A | | | | | | --- | --- | --- | --- | --- | | Product Category | Percent VOC by Weight | | | | | Adhesive Removers | | | | | | | Floor or wall covering adhesive remover | 5% | | | | | Gasket or thread locking adhesive remover | 50% | | | | | General purpose adhesive remover | 20% | | | | | Specialty adhesive remover | 70% | | | | Adhesives | | | | | | | Aerosol adhesives | | | | | | | Mist spray adhesive: | 65% | | | | | Web spray adhesive: | 55% | | | | | Special purpose spray adhesives | | | | | | | Automotive engine compartment adhesive: | 70% | | | | | Automotive headliner adhesive: | 65% | | | | | Flexible vinyl adhesive: | 70% | | | | | Laminate repair or edgebanding adhesive: | 60% | | | | | Mounting adhesive: | 70% | | | | | Polystyrene foam adhesive: | 65% | | | | | Polyolefin adhesive: | 60% | | | Contact adhesives | | | | | | | General purpose contact adhesive: | 55% | | | | | Special purpose contact adhesive: | 80% | | | | Construction, panel, and floor covering adhesive: | 15% | | | | | General purpose adhesive: | 10% | | | | | Structural waterproof adhesive: | 15% | | | | Air fresheners | | | | | | | Single-phase aerosol: | 30% | | | | | Double-phase aerosol: | 25% | | | | | Liquid/Pump spray: | 18% | | | | | Solid/Semisolid: | 3% | | | | Antiperspirants | | | | | | | Aerosol: | 40% HVOC, 10% MVOC | | | | | Nonaerosol: | 0% HVOC, 0% MVOC | | | | Anti-static product, nonaerosol: | 11% | | | | | Automotive brake cleaner: | 45% | | | | | Automotive rubbing or polishing compound: | 17% | | | | | Automotive wax, polish, sealant, or glaze | | | | | | | Hard paste wax: | 45% | | | | | Instant detailer: | 3% | | | | | All other forms: | 15% | | | | Automotive windshield washer fluid: | 35% | | | | | Bathroom and tile cleaners | | | | | | | Aerosol: | 7% | | | | | All other forms: | 5% | | | | Bug and tar remover: | 40% | | | | | Carburetor or fuel-injection air intake cleaner: | 45% | | | | | Carpet and upholstery cleaners | | | | | | | Aerosol: | 7% | | | | | Nonaerosol (dilutable): | 0.1% | | | | | Nonaerosol (ready-to-use): | 3.0% | | | | Charcoal lighter material: | See subsection E of this section. | | | | | Cooking spray, aerosol: | 18% | | | | | Deodorants | | | | | | | Aerosol: | 0% HVOC, 10% MVOC | | | | | Nonaerosol: | 0% HVOC, 0% MVOC | | | | Dusting aids | | | | | | | Aerosol: | 25% | | | | | All other forms: | 7% | | | | Electrical cleaner | 45% | | | | | Electronic cleaner | 75% | | | | | Engine degreasers | | | | | | | Aerosol: | 35% | | | | | Nonaerosol: | 5% | | | | Fabric protectant: | 60% | | | | | Fabric refreshers | | | | | | | Aerosol: | 15% | | | | | Nonaerosol: | 6% | | | | Floor polishes/Waxes | | | | | | | Products for flexible flooring materials: | 7% | | | | | Products for nonresilient flooring: | 10% | | | | | Wood floor wax: | 90% | | | | Floor wax stripper, nonaerosol: | See subsection G of this section. | | | | | Footwear or leather care products | | | | | | | Aerosol: | 75% | | | | | Solid: | 55% | | | | | All other forms: | 15% | | | | Furniture maintenance products | | | | | | | Aerosol: | 17% | | | | | All other forms except solid or paste: | 7% | | | | General purpose cleaners | | | | | | | Aerosol: | 10% | | | | | Nonaerosol: | 4% | | | | General purpose degreasers | | | | | | | Aerosol: | 50% | | | | | Nonaerosol: | 4% | | | | Glass cleaners | | | | | | | Aerosol: | 12% | | | | | Nonaerosol: | 4% | | | | Graffiti removers | | | | | | | Aerosol: | 50% | | | | | Nonaerosol: | 30% | | | | Hair mousse: | 6% | | | | | Hair shine: | 55% | | | | | Hair spray: | 55% | | | | | Hair styling products | | | | | | | Aerosol and pump spray: | 6% | | | | | All other forms: | 2% | | | | Heavy-duty hand cleaner or soap: | 8% | | | | | Insecticides | | | | | | | Crawling bug (aerosol): | 15% | | | | | Crawling bug (all other forms): | 20% | | | | | Flea and tick: | 25% | | | | | Flying bug (aerosol): | 25% | | | | | Flying bug (all other forms): | 35% | | | | | Fogger: | 45% | | | | | Lawn and garden (all other forms): | 20% | | | | | Lawn and garden (nonaerosol): | 3% | | | | | Wasp and hornet: | 40% | | | | Laundry prewash | | | | | | | Aerosol/Solid: | 22% | | | | | All other forms: | 5% | | | | Laundry starch product: | 5% | | | | | Metal polish or cleanser: | 30% | | | | | Multipurpose lubricant (excluding solid or semi-solid products): | 50% | | | | | Nail polish remover: | 75% | | | | | Nonselective terrestrial herbicide, nonaerosol: | 3% | | | | | Oven cleaners | | | | | | | Aerosol/Pump spray: | 8% | | | | | Liquid: | 5% | | | | Paint remover or stripper: | 50% | | | | | Penetrant: | 50% | | | | | Rubber and vinyl protectants | | | | | | | Nonaerosol: | 3% | | | | | Aerosol: | 10% | | | | Sealant and caulking compound: | 4% | | | | | Shaving cream: | 5% | | | | | Shaving gel: | 7% | | | | | Silicone-based multipurpose lubricant (excluding solid or semi-solid products): | 60% | | | | | Spot removers | | | | | | | Aerosol: | 25% | | | | | Nonaerosol: | 8% | | | | Tire sealant and inflator: | 20% | | | | | Toile/urinal care products | | | | | | | Aerosol: | 10% | | | | | Nonaerosol: | 3% | | | | Undercoating, aerosol: | 40% | | | | | Wood cleaners | | | | | | | Aerosol: | 17% | | | | | Nonaerosol: | 4% | | |

B. No owner or other person shall sell, supply, offer for sale, or manufacture for sale an antiperspirant or a deodorant that contains a compound that has been defined as a toxic pollutant in 9VAC5-60-210 C.

C. Provisions follow concerning products that are diluted prior to use.

1. For consumer products for which the label, packaging, or accompanying literature specifically states that the product should be diluted with water or non-VOC solvent prior to use, the limits specified in Table 45-4A shall apply to the product only after the minimum recommended dilution has taken place. For purposes of this subsection, "minimum recommended dilution" shall not include recommendations for incidental use of a concentrated product to deal with limited special applications such as hard-to-remove soils or stains.

2. For consumer products for which the label, packaging, or accompanying literature states that the product should be diluted with a VOC solvent prior to use, the limits specified in Table 45-4A shall apply to the product only after the maximum recommended dilution has taken place.

D. For those consumer products that are registered under FIFRA, the effective date of the VOC standards in Table 45-4A shall be August 1, 2011. Prior to that date, the standards of Table 45-3A in 9VAC5-45-430 A shall apply unless the product is exempt under the provisions of 9VAC5-45-410.

E. The following requirements shall apply to all charcoal lighter material products:

1. Effective as of the applicable compliance date specified in 9VAC5-45-480, no owner or other person shall (i) sell, supply, or offer for sale a charcoal lighter material product manufactured on or after August 1, 2010, or (ii) manufacture for sale a charcoal lighter material product on or after August 1, 2010, unless at the time of the transaction:

a. The manufacturer can demonstrate to the board's satisfaction that it has been issued a currently effective certification by CARB under the Consumer Products provisions under Subchapter 8.5, Article 2, § 94509(h), of Title 17 of the California Code of Regulations (see 9VAC5-20-21). This certification remains in effect for as long as the CARB certification remains in effect. A manufacturer claiming such a certification on this basis must submit to the board a copy of the certification decision (i.e., the executive order), including all conditions established by CARB applicable to the certification.

b. The manufacturer or distributor of the charcoal lighter material has been issued a currently effective certification pursuant to subdivision 2 of this subsection.

c. The charcoal lighter material meets the formulation criteria and other conditions specified in the applicable ACP agreement issued pursuant to subdivision 2 of this subsection.

d. The product usage directions for the charcoal lighter material are the same as those provided to the board pursuant to subdivision 2 c of this subsection.

2. Provisions follow concerning certification requirements.

a. No charcoal lighter material formulation shall be certified under this subdivision unless the applicant for certification demonstrates to the board's satisfaction that the VOC emissions from the ignition of charcoal with the charcoal lighter material are less than or equal to 0.020 pound of VOC per start, using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21). The provisions relating to LVP-VOC in 9VAC5-45-410 F and 9VAC5-45-420 C shall not apply to a charcoal lighter material subject to the requirements of 9VAC5-45-430 A and this subsection.

b. The board may approve alternative test procedures that are shown to provide equivalent results to those obtained using the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

c. A manufacturer or distributor of charcoal lighter material may apply to the board for certification of a charcoal lighter material formulation in accordance with this subdivision. The application shall be in writing and shall include, at a minimum, the following:

(1) The results of testing conducted pursuant to the procedures specified in South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21); and

(2) The exact text or graphics that will appear on the charcoal lighter material's principal display panel, label, or accompanying literature. The provided material shall clearly show the usage directions for the product. These directions shall accurately reflect the quantity of charcoal lighter material per pound of charcoal that was used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product, unless:

(a) The charcoal lighter material is intended to be used in fixed amounts independent of the amount of charcoal used, such as certain paraffin cubes, or

(b) The charcoal lighter material is already incorporated into the charcoal, such as certain "bag light," "instant light" or "match light" products.

(3) For a charcoal lighter material that meets the criteria specified in subdivision 2 c (2) (a) of this subsection, the usage instructions provided to the board will accurately reflect the quantity of charcoal lighter material used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product.

(4) Physical property data, formulation data, or other information required by the board for use in determining when a product modification has occurred and for use in determining compliance with the conditions specified on the ACP agreement issued pursuant to subdivision 2 e of this subsection.

d. Within 30 days of receipt of an application, the board will advise the applicant in writing either that it is complete or that specified additional information is required to make it complete. Within 30 days of receipt of additional information, the board will advise the applicant in writing either that the application is complete, or that specified additional information or testing is still required before it can be deemed complete.

e. If the board finds that an application meets the requirements of subdivision 2 of this subsection, then an ACP agreement shall be issued certifying the charcoal lighter material formulation and specifying such conditions as are necessary to insure that the requirements of this subsection are met. The board will act on a complete application within 90 days after the application is deemed complete.

3. For charcoal lighter material for which certification has been granted pursuant to subdivision 2 of this subsection, the applicant for certification shall notify the board in writing within 30 days of: (i) a change in the usage directions, or (ii) a change in product formulation, test results, or other information submitted pursuant to subdivision 2 of this subsection that may result in VOC emissions greater than 0.020 pound of VOC per start.

4. If the board determines that a certified charcoal lighter material formulation results in VOC emissions from the ignition of charcoal that are greater than 0.020 pound of VOC per start, as determined by the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) and the statistical analysis procedures contained therein, the board will revoke or modify the certification as is necessary to assure that the charcoal lighter material will result in VOC emissions of less than or equal to 0.020 pound of VOC per start.

F. Provisions follow concerning aerosol adhesives.

1. The standards for aerosol adhesives apply to all uses of aerosol adhesives, including consumer, industrial, and commercial uses. Except as otherwise provided in 9VAC5-45-410 and 9VAC5-45-450, no owner or other person shall (i) sell, supply, offer for sale, or use an aerosol adhesive manufactured on or after August 1, 2010, or (ii) manufacture for sale an aerosol adhesive on or after August 1, 2010, that contains VOCs in excess of the specified standard.

2. a. In order to qualify as a "special purpose spray adhesive," the product must meet one or more of the definitions for special purpose spray adhesive specified in 9VAC5-45-420 C, but if the product label indicates that the product is suitable for use on a substrate or application not listed in 9VAC5-45-420 C, then the product shall be classified as either a "web spray adhesive" or a "mist spray adhesive."

b. If a product meets more than one of the definitions specified in 9VAC5-45-420 C for "special purpose spray adhesive," and is not classified as a "web spray adhesive" or "mist spray adhesive" under subdivision 2 a of this subsection, then the VOC limit for the product shall be the lowest applicable VOC limit specified in 9VAC5-45-430 A.

3. No person shall (i) sell, supply, or offer for sale an aerosol adhesive manufactured on or after August 1, 2010, or (ii) manufacture for sale on or after August 1, 2010, an aerosol adhesive, that contains any of the following compounds: methylene chloride, perchloroethylene, or trichloroethylene.

4. All aerosol adhesives must comply with the labeling requirements specified in 9VAC5-45-460 D.

G. Effective as of the applicable compliance date specified in 9VAC5-45-480, no owner or other person shall sell, supply, offer for sale, or manufacture for use a floor wax stripper unless the following requirements are met:

1. The label of each nonaerosol floor wax stripper must specify a dilution ratio for light or medium build-up of polish that results in an as-used VOC concentration of 3.0% by weight or less.

2. If a nonaerosol floor wax stripper is also intended to be used for removal of heavy build-up of polish, the label of that floor wax stripper must specify a dilution ratio for heavy build-up of polish that results in an as-used VOC concentration of 12% by weight or less.

3. The terms "light build-up," "medium build-up," or "heavy build-up" are not specifically required as long as comparable terminology is used.

H. For a consumer product for which standards are specified under subsection A of this section, no owner or other person shall sell, supply, offer for sale, or manufacture for sale a consumer product that contains any of the following ozone-depleting compounds:

CFC-11 (trichlorofluoromethane), CFC-12 (dichlorodifluoromethane);

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

CFC-114 (1-chloro-1,1-difluoro-2-chloro-2,2-difluoroethane);

CFC-115 (chloropentafluoroethane), halon 1211 (bromochlorodifluoromethane);

halon 1301 (bromotrifluoromethane), halon 2402 (dibromotetrafluoroethane);

HCFC-22 (chlorodifluoromethane), HCFC-123 (2,2-dichloro-1,1,1-trifluoroethane);

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

HCFC-141b (1,1-dichloro-1-fluoroethane), HCFC-142b (1-chloro-1,1-difluoroethane);

1,1,1-trichloroethane; or

carbon tetrachloride.

I. The requirements of subsection H of this section shall not apply to an existing product formulation that complies with Table 45-4A or an existing product formulation that is reformulated to meet Table 45-4A, provided the ozone-depleting compound content of the reformulated product does not increase.

J. The requirements of subsection H of this section shall not apply to ozone-depleting compounds that may be present as impurities in a consumer product in an amount equal to or less than 0.01% by weight of the product.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-440 Alternative control plan (ACP) for consumer products

A. 1. Manufacturers of consumer products may seek an ACP agreement in accordance with subsections B through L of this section.

2. Only responsible ACP parties for consumer products may enter into an ACP agreement under the provisions of this section.

B. Provisions follow concerning the requirements and process for approval of an ACP.

1. To be considered by the board for approval, an application for a proposed ACP shall be submitted in writing to the board by the responsible ACP party and shall contain all of the following:

a. An identification of the contact persons, phone numbers, names, and addresses of the responsible ACP party that is submitting the ACP application and will be implementing the ACP requirements specified in the ACP agreement.

b. A statement of whether the responsible ACP party is a small business or a one-product business.

c. A listing of the exact product brand name, form, available variations (flavors, scents, colors, sizes, etc.), and applicable product category for each distinct ACP product that is proposed for inclusion in the ACP.

d. For each proposed ACP product identified in subdivision 1 c of this subsection, a demonstration to the satisfaction of the board that the enforceable sales records to be used by the responsible ACP party for tracking product sales meet the minimum criteria specified in subdivision 1 d (5) of this subsection. To provide this demonstration, the responsible ACP party shall either demonstrate to the satisfaction of the board that other records provided to the board in writing by the responsible ACP party meet the minimum criteria of subdivision 1 d (5) of this subsection for tracking product sales of each ACP product, or do all of the following:

(1) Provide the contact persons, phone numbers, names, street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales;

(2) Determine the enforceable sales of each product using enforceable sales records;

(3) Demonstrate, to the satisfaction of the board, the validity of the enforceable sales based on enforceable sales records provided by the contact persons or the responsible ACP party;

(4) Calculate the percentage of the gross sales that is composed of enforceable sales; and

(5) Determine which ACP products have enforceable sales that are 75% or more of the gross sales. Only ACP products meeting this criteria shall be allowed to be sold under an ACP.

e. For each of the ACP products identified in subdivision 1 d (5) of this subsection, the inclusion of the following:

(1) Legible copies of the existing labels for each product; and

(2) The VOC content and LVP content for each product. The VOC content and LVP content shall be reported for two different periods as follows:

(a) The VOC and LVP contents of the product at the time the application for an ACP is submitted, and

(b) The VOC and LVP contents of the product that were used at any time within the four years prior to the date of submittal of the application for an ACP if either the VOC or LVP contents have varied by more than plus or minus 10% of the VOC or LVP contents reported in subdivision 1 e (2) (a) of this subsection.

f. A written commitment obligating the responsible ACP party to date-code every unit of each ACP product approved for inclusion in the ACP. The commitment shall require the responsible ACP party to display the date code on each ACP product container or package no later than five working days after the date an ACP agreement approving an ACP is signed by the board.

g. An operational plan covering all the products identified under subdivision 1 d (5) of this subsection for each compliance period that the ACP will be in effect. The operational plan shall contain all of the following:

(1) An identification of the compliance periods and dates for the responsible ACP party to report the information required by the board in the ACP agreement approving an ACP. The length of the compliance period shall be chosen by the responsible ACP party (not to exceed 365 days). The responsible ACP party shall also choose the dates for reporting information such that all required VOC content and enforceable sales data for all ACP products shall be reported to the board at the same time and at the same frequency.

(2) An identification of specific enforceable sales records to be provided to the board for enforcing the provisions of this article and the ACP agreement approving an ACP. The enforceable sales records shall be provided to the board no later than the compliance period dates specified in subdivision 1 g (1) of this subsection.

(3) For a small business or a one-product business that will be relying to some extent on surplus trading to meet its ACP limits, a written commitment from the responsible ACP party that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP.

(4) For each ACP product, all VOC content levels that will be applicable for the ACP product during each compliance period. The plan shall also identify the specific method by which the VOC content will be determined and the statistical accuracy and precision (repeatability and reproducibility) will be calculated for each specified method.

(5) The projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect.

(6) A detailed demonstration showing the combination of specific ACP reformulations or surplus trading (if applicable) that is sufficient to ensure that the ACP emissions will not exceed the ACP limit for each compliance period that the ACP will be in effect, the approximate date within each compliance period that such reformulations or surplus trading are expected to occur, and the extent to which the VOC contents of the ACP products will be reduced (i.e., by ACP reformulation). This demonstration shall use the equations specified in 9VAC5-45-420 C for projecting the ACP emissions and ACP limits during each compliance period. This demonstration shall also include all VOC content levels and projected enforceable sales for all ACP products to be sold during each compliance period.

(7) A certification that all reductions in the VOC content of a product will be real, actual reductions that do not result from changing product names, mischaracterizing ACP product reformulations that have occurred in the past, or other attempts to circumvent the provisions of this article.

(8) Written explanations of the date codes that will be displayed on each ACP product's container or packaging.

(9) A statement of the approximate dates by which the responsible ACP party plans to meet the applicable ACP VOC standards for each product in the ACP.

(10) An operational plan ("reconciliation of shortfalls plan") that commits the responsible ACP party to completely reconcile shortfalls, even, to the extent permitted by law, if the responsible ACP party files for bankruptcy protection. The plan for reconciliation of shortfalls shall contain all of the following:

(a) A clear and convincing demonstration of how shortfalls of up to 5.0%, 10%, 15%, 25%, 50%, 75% and 100% of the applicable ACP limit will be completely reconciled within 90 working days from the date the shortfall is determined;

(b) A listing of the specific records and other information that will be necessary to verify that the shortfalls were reconciled as specified in this subsection; and

(c) A commitment to provide a record or information requested by the board to verify that the shortfalls have been completely reconciled.

h. A declaration, signed by a legal representative for the responsible ACP party, that states that all information and operational plans submitted with the ACP application are true and correct.

2. a. In accordance with the time periods specified in subsection C of this section, the board will issue an ACP agreement approving an ACP that meets the requirements of this article. The board will specify such terms and conditions as are necessary to ensure that the emissions from the ACP products do not exceed the emissions that would have occurred if the ACP products subject to the ACP had met the VOC standards specified in 9VAC5-45-430 A. The ACP shall also include:

(1) Only those ACP products for which the enforceable sales are at least 75% of the gross sales as determined in subdivision 1 d (5) of this subsection;

(2) A reconciliation of shortfalls plan meeting the requirements of this article; and

(3) Operational terms, conditions, and data to be reported to the board to ensure that all requirements of this article are met.

b. The board will not approve an ACP submitted by a responsible ACP party if the board determines, upon review of the responsible ACP party's compliance history with past or current ACPs or the requirements for consumer products in this article, that the responsible ACP party has a recurring pattern of violations and has consistently refused to take the necessary steps to correct those violations.

C. Provisions follow concerning ACP approval timeframes.

1. The board will take appropriate action on an ACP within the following time periods:

a. Within 30 working days of receipt of an ACP application, the board will inform the applicant in writing that either:

(1) The application is complete and accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

b. Within 30 working days of receipt of additional information provided in response to a determination that an ACP application is deficient, the board will inform the applicant in writing that either:

(1) The additional information is sufficient to make the application complete, and the application is accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

c. If the board finds that an application meets the requirements of subsection B of this section, then it shall issue an ACP agreement in accordance with the requirements of this article. The board will normally act to approve or disapprove a complete application within 90 working days after the application is deemed complete. The board may extend this time period if additional information is needed.

2. Before the end of each time period specified in this section, the board and the responsible ACP party may mutually agree to a longer time period for the board to take the appropriate action.

D. Provisions follow concerning recordkeeping and availability of requested information.

1. All information specified in the ACP agreement approving an ACP shall be maintained by the responsible ACP party for a minimum of three years after such records are generated. Such records shall be clearly legible and maintained in good condition during this period.

2. The records specified in subdivision 1 of this subsection shall be made available to the board or its authorized representative:

a. Immediately upon request, during an on-site visit to a responsible ACP party,

b. Within five working days after receipt of a written request from the board, or

c. Within a time period mutually agreed upon by both the board and the responsible ACP party.

E. Provisions follow concerning violations.

1. Failure to meet a requirement of this article or a condition of an applicable ACP agreement shall constitute a single, separate violation of this article for each day until such requirement or condition is satisfied, except as otherwise provided in subdivisions 2 through 8 of this subsection.

2. False reporting of information in an ACP application or in any supporting documentation or amendments thereto shall constitute a single, separate violation of the requirements of this article for each day that the approved ACP is in effect.

3. An exceedance during the applicable compliance period of the VOC content specified for an ACP product in the ACP agreement approving an ACP shall constitute a single, separate violation of the requirements of this article for each ACP product that exceeds the specified VOC content that is sold, supplied, offered for sale, or manufactured for use.

4. Any of the following actions shall each constitute a single, separate violation of the requirements of this article for each day after the applicable deadline until the requirement is satisfied:

a. Failure to report data or failure to report data accurately in writing to the board regarding the VOC content, LVP content, enforceable sales, or other information required by the deadline specified in the applicable ACP agreement;

b. False reporting of information submitted to the board for determining compliance with the ACP requirements;

c. Failure to completely implement the reconciliation of shortfalls plan that is set forth in the ACP agreement within 30 working days from the date of written notification of a shortfall by the board; or

d. Failure to completely reconcile the shortfall as specified in the ACP agreement within 90 working days from the date of written notification of a shortfall by the board.

5. False reporting or failure to report any of the information specified in subdivision F 2 i of this section or the sale or transfer of invalid surplus reductions shall constitute a single, separate violation of the requirements of this article for each day during the time period for which the surplus reductions are claimed to be valid.

6. Except as provided in subdivision 7 of this subsection, an exceedance of the ACP limit for a compliance period that the ACP is in effect shall constitute a single, separate violation of the requirements of this article for each day of the applicable compliance period. The board will determine whether an exceedance of the ACP limit has occurred as follows:

a. If the responsible ACP party has provided all required information for the applicable compliance period specified in the ACP agreement approving an ACP, then the board will determine whether an exceedance has occurred using the enforceable sales records and VOC content for each ACP product as reported by the responsible ACP party for the applicable compliance period.

b. If the responsible ACP party has failed to provide all the required information specified in the ACP agreement for an applicable compliance period, the board will determine whether an exceedance of the ACP limit has occurred as follows:

(1) For the missing data days, the board will calculate the total maximum historical emissions as specified in 9VAC5-45-420 C.

(2) For the remaining portion of the compliance period that are not missing data days, the board will calculate the emissions for each ACP product using the enforceable sales records and VOC content that were reported for that portion of the applicable compliance period.

(3) The ACP emissions for the entire compliance period shall be the sum of the total maximum historical emissions determined pursuant to subdivision 6 b (1) of this subsection, and the emissions determined pursuant to subdivision 6 b (2) of this subsection.

(4) The board will calculate the ACP limit for the entire compliance period using the ACP standards applicable to each ACP product and the enforceable sales records specified in subdivision 6 b (2) of this subsection. The enforceable sales for each ACP product during missing data days, as specified in subdivision 6 b (1) of this subsection, shall be zero.

(5) An exceedance of the ACP limit has occurred when the ACP emissions, determined pursuant to subdivision 6 b (3) of this subsection, exceeds the ACP limit, determined pursuant to subdivision 6 b (4) of this subsection.

7. If a violation specified in subdivision 6 of this subsection occurs, the responsible ACP party may, pursuant to this subdivision, establish the number of violations as calculated according to the following equation:

where:

NEV = number of ACP limit violations.

ACP emissions = the ACP emissions for the compliance period.

ACP limit = the ACP limit for the compliance period.

40 pounds = number of pounds of emissions equivalent to one violation.

The responsible ACP party may determine the number of ACP limit violations pursuant to this subdivision only if it has provided all required information for the applicable compliance period, as specified in the ACP agreement approving the ACP. By choosing this option, the responsible ACP party waives all legal objections to the calculation of the ACP limit violations pursuant to this subdivision.

8. A cause of action against a responsible ACP party under this section shall be deemed to accrue on the date when the records establishing a violation are received by the board.

9. The responsible ACP party is fully liable for compliance with the requirements of this article, even if the responsible ACP party contracts with or otherwise relies on another person to carry out some or all of the requirements of this article.

F. Provisions follow concerning surplus reductions and surplus trading.

1. The board will issue surplus reduction certificates that establish and quantify, to the nearest pound of VOC reduced, the surplus reductions achieved by a responsible ACP party operating under an ACP. The surplus reductions can be bought from, sold to, or transferred to a responsible ACP party operating under an ACP, as provided in subdivision 2 of this subsection. All surplus reductions shall be calculated by the board at the end of each compliance period within the time specified in the approved ACP. Surplus reduction certificates shall not constitute instruments, securities, or another form of property.

2. The issuance, use, and trading of all surplus reductions shall be subject to the following provisions:

a. For the purposes of this article, VOC reductions from sources of VOCs other than consumer products subject to the VOC standards specified in 9VAC5-45-430 A may not be used to generate surplus reductions.

b. Surplus reductions are valid only when generated by a responsible ACP party and only while that responsible ACP party is operating under an approved ACP.

c. Surplus reductions are valid only after the board has issued an ACP agreement pursuant to subdivision 1 of this subsection.

d. Surplus reductions issued by the board may be used by the responsible ACP party who generated the surplus until the reductions expire, are traded, or until the ACP is canceled pursuant to subdivision J 2 of this section.

e. Surplus reductions cannot be applied retroactively to a compliance period prior to the compliance period in which the reductions were generated.

f. Except as provided in subdivision 2 g (2) of this subsection, only small or one-product businesses selling products under an approved ACP may purchase surplus reductions. An increase in the size of a small business or one-product business shall have no effect on surplus reductions purchased by that business prior to the date of the increase.

g. While valid, surplus reductions can be used only for the following purposes:

(1) To adjust the ACP emissions of either the responsible ACP party that generated the reductions or the responsible ACP party to which the reductions were traded, provided the surplus reductions are not to be used by a responsible ACP party to further lower its ACP emissions when its ACP emissions are equal to or less than the ACP limit during the applicable compliance period; or

(2) To be traded for the purpose of reconciling another responsible ACP party's shortfalls, provided such reconciliation is part of the reconciliation of shortfalls plan approved by the board pursuant to subdivision B 1 g (10) of this section.

h. A valid surplus reduction shall be in effect starting five days after the date of issuance by the board for a continuous period equal to the number of days in the compliance period during which the surplus reduction was generated. The surplus reduction shall then expire at the end of its effective period.

i. At least five working days prior to the effective date of transfer of surplus reductions, both the responsible ACP party that is selling surplus reductions and the responsible ACP party that is buying the surplus reductions shall, either together or separately, notify the board in writing of the transfer. The notification shall include all of the following:

(1) The date the transfer is to become effective.

(2) The date the surplus reductions being traded are due to expire.

(3) The amount (in pounds of VOCs) of surplus reductions that is being transferred.

(4) The total purchase price paid by the buyer for the surplus reductions.

(5) The contact persons, names of the companies, street and mail addresses, and phone numbers of the responsible ACP parties involved in the trading of the surplus reductions.

(6) A copy of the board-issued surplus reductions certificate, signed by both the seller and buyer of the certificate, showing transfer of all or a specified portion of the surplus reductions. The copy shall show the amount of any remaining nontraded surplus reductions, if applicable, and shall show their expiration date. The copy shall indicate that both the buyer and seller of the surplus reductions fully understand the conditions and limitations placed upon the transfer of the surplus reductions and accept full responsibility for the appropriate use of such surplus reductions as provided in this section.

j. Surplus reduction credits shall only be traded between ACP products.

3. Provisions follow concerning limited-use surplus reduction credits for early reformulations of ACP products.

a. For the purposes of this subdivision, "early reformulation" means an ACP product that is reformulated to result in a reduction in the product's VOC content, and that is sold, supplied, or offered for sale for the first time during the one-year (365 day) period immediately prior to the date on which the application for a proposed ACP is submitted to the board. Early reformulation does not include reformulated ACP products that are sold, supplied, or offered for sale more than one year prior to the date on which the ACP application is submitted to the board.

b. If requested in the application for a proposed ACP, the board will, upon approval of the ACP, issue surplus reduction credits for early reformulation of ACP products, provided that all of the following documentation has been provided by the responsible ACP party to the satisfaction of the board:

(1) Accurate documentation showing that the early reformulation reduced the VOC content of the ACP product to a level that is below the pre-ACP VOC content of the product or below the applicable VOC standard specified in 9VAC5-45-430 A, whichever is the lesser of the two;

(2) Accurate documentation demonstrating that the early reformulated ACP product was sold in retail outlets within the time period specified in subdivision 3 a of this subsection;

(3) Accurate sales records for the early reformulated ACP product that meet the definition of enforceable sales records and that demonstrate that the enforceable sales for the ACP product are at least 75% of the gross sales for the product, as specified in subdivision B 1 d of this section; and

(4) Accurate documentation for the early reformulated ACP product that meets the requirements specified in subdivisions B 1 c and d and B 1 g (7) and (8) of this section and that identifies the specific test methods for verifying the claimed early reformulation and the statistical accuracy and precision of the test methods as specified in subdivision B 1 g (4) of this section.

c. Surplus reduction credits issued pursuant to this subsection shall be calculated separately for each early reformulated ACP product by the board according to the following equation:

where:

SR = surplus reductions for the ACP product, expressed to the nearest pound.

Enforceable sales = the enforceable sales for the early reformulated ACP product, expressed to the nearest pound of ACP product.

VOC content_initial = the pre-ACP VOC content of the ACP product, or the applicable VOC standard specified in 9VAC5-45-430 A, whichever is the lesser of the two, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

VOC content_final = the VOC content of the early reformulated ACP product after the early reformulation is achieved, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

d. The use of limited use surplus reduction credits issued pursuant to this subdivision shall be subject to all of the following provisions:

(1) Limited use surplus reduction credits shall be used solely to reconcile the responsible ACP party's shortfalls, if any, generated during the first compliance period occurring immediately after the issuance of the ACP agreement approving an ACP, and may not be used for another purpose;

(2) Limited use surplus reduction credits may not be transferred to, or used by, another responsible ACP party; and

(3) Except as provided in this subdivision, limited use surplus reduction credits shall be subject to all requirements applicable to surplus reductions and surplus trading as specified in subdivisions 1 and 2 of this subsection.

G. Provisions follow concerning the reconciliation of shortfalls.

1. At the end of each compliance period, the responsible ACP party shall make an initial calculation of shortfalls occurring in that compliance period as specified in the ACP agreement approving the ACP. Upon receipt of this information, the board will determine the amount of a shortfall that has occurred during the compliance period and shall notify the responsible ACP party of this determination.

2. The responsible ACP party shall implement the reconciliation of shortfalls plan as specified in the ACP agreement approving the ACP within 30 working days from the date of written notification of a shortfall by the board.

3. All shortfalls shall be completely reconciled within 90 working days from the date of written notification of a shortfall by the board by implementing the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP.

4. All requirements specified in the ACP agreement approving an ACP, including all applicable ACP limits, shall remain in effect while shortfalls are in the process of being reconciled.

H. Provisions follow concerning the notification of modifications to an ACP by the responsible ACP party.

1. Board pre-approval is not required for modifications that are a change to an ACP product's: (i) product name, (ii) product formulation, (iii) product form, (iv) product function, (v) applicable product category, (vi) VOC content, (vii) LVP content, (viii) date codes, or (ix) recommended product usage directions. The responsible ACP party shall notify the board of such changes, in writing, no later than 15 working days from the date such a change occurs. For each modification, the notification shall fully explain the following:

a. The nature of the modification;

b. The extent to which the ACP product formulation, VOC content, LVP content, or recommended usage directions will be changed;

c. The extent to which the ACP emissions and ACP limit specified in the ACP agreement will be changed for the applicable compliance period; and

d. The effective date and corresponding date codes for the modification.

2. The responsible ACP party may propose modifications to the enforceable sales records or the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP; however, such modifications require board pre-approval. Any such proposed modifications shall be fully described in writing and forwarded to the board. The responsible ACP party shall clearly demonstrate that the proposed modifications will meet the requirements of this article. The board will act on the proposed modifications using the procedure set forth in subsection C of this section. The responsible ACP party shall meet all applicable requirements of the existing ACP until such time as a proposed modification is approved in writing by the board.

3. Except as otherwise provided in subdivisions 1 and 2 of this subsection, the responsible ACP party shall notify the board, in writing, of information known by the responsible ACP party that may alter the information submitted pursuant to the requirements of subsection B of this section. The responsible ACP party shall provide such notification to the board no later than 15 working days from the date such information is known to the responsible ACP party.

I. Provisions follow concerning the modification of an ACP by the board.

1. If the board determines that (i) the enforceable sales for an ACP product are no longer at least 75% of the gross sales for that product, (ii) the information submitted pursuant to the approval process set forth in subsection C of this section is no longer valid, or (iii) the ACP emissions are exceeding the ACP limit specified in the ACP agreement approving an ACP, then the board will modify the ACP as necessary to ensure that the ACP meets all requirements of this article and that the ACP emissions will not exceed the ACP limit.

2. If any applicable VOC standards specified in 9VAC5-45-430 A are modified by the board in a future rulemaking, the board will modify the ACP limit specified in the ACP agreement approving an ACP to reflect the modified ACP VOC standards as of their effective dates.

J. Provisions follow concerning the cancellation of an ACP.

1. An ACP shall remain in effect until:

a. The ACP reaches the expiration date specified in the ACP agreement;

b. The ACP is modified by the responsible ACP party and approved by the board as provided in subsection H of this section;

c. The ACP is modified by the board as provided in subsection I of this section;

d. The ACP includes a product for which the VOC standard specified in 9VAC5-45-430 A is modified by the board in a future rulemaking, and the responsible ACP party informs the board in writing that the ACP will terminate on the effective date of the modified standard; or

e. The ACP is canceled pursuant to subdivision 2 of this subsection.

2. The board will cancel an ACP if any of the following circumstances occur:

a. The responsible ACP party demonstrates to the satisfaction of the board that the continuation of the ACP will result in an extraordinary economic hardship.

b. The responsible ACP party violates the requirements of the approved ACP, and the violation results in a shortfall that is 20% or more of the applicable ACP limit (i.e., the ACP emissions exceed the ACP limit by 20% or more).

c. The responsible ACP party fails to meet the requirements of subsection G of this section within the time periods specified in that subsection.

d. The responsible ACP party has demonstrated a recurring pattern of violations and has consistently failed to take the necessary steps to correct those violations.

3. Cancellations of ACPs are considered case decisions and will be processed using the procedures prescribed in 9VAC5-170-40 A 2 and applicable provisions of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act.

4. The responsible ACP party for an ACP that is canceled pursuant to this section and that does not have a valid ACP to immediately replace the canceled ACP shall meet all of the following requirements:

a. All remaining shortfalls in effect at the time of ACP cancellation shall be reconciled in accordance with the requirements of subsection G of this section, and

b. All ACP products subject to the ACP shall be in compliance with the applicable VOC standards in 9VAC5-45-430 A immediately upon the effective date of ACP cancellation.

5. Violations incurred pursuant to subsection E of this section shall not be canceled or affected by the subsequent cancellation or modification of an ACP pursuant to subsection H, I, or J of this section.

K. The information required by subdivisions B 1 a and b and F 2 i of this section is public information that may not be claimed as confidential. Other information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

L. A responsible ACP party may transfer an ACP to another responsible ACP party, provided that all of the following conditions are met:

1. The board will be notified, in writing, by both responsible ACP parties participating in the transfer of the ACP and its associated ACP agreement. The written notifications shall be postmarked or submitted electronically at least five working days prior to the effective date of the transfer and shall be signed and submitted separately by both responsible parties. The written notifications shall clearly identify the contact persons, business names, mail and street addresses, and phone numbers of the responsible parties involved in the transfer.

2. The responsible ACP party to which the ACP is being transferred shall provide a written declaration stating that the transferee shall fully comply with all requirements of the ACP agreement approving the ACP and this article.

M. In approving agreements under subsections B through L of this section, the board will take into consideration whether the applicant has been granted an ACP by CARB. A manufacturer of consumer products that has been granted an ACP agreement by the CARB under the provisions in Subchapter 8.5, Article 4, Sections 94540-94555, of Title 17 of the California Code of Regulations (see 9VAC5-20-21) may be exempt from Table 45-4A for the period of time that the CARB ACP agreement remains in effect provided that all ACP products used for emission credits within the CARB ACP agreement are contained in Table 45-4A. A manufacturer claiming such an ACP agreement on this basis must submit to the board a copy of the CARB ACP decision (i.e., the executive order), including all conditions established by CARB applicable to the exemption and certification that the manufacturer will comply with the CARB ACP decision for those ACP products in the areas specified in 9VAC5-45-400 B.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013; Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-45-450 Innovative products

A. Manufacturers of consumer products may seek an innovative products exemption in accordance with the following criteria:

1. The board will exempt a consumer product from the VOC limits specified in 9VAC5-45-430 A if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems or other factors, the use of the product will result in less VOC emissions as compared to:

a. The VOC emissions from a representative consumer product that complies with the VOC limits specified in 9VAC5-45-430 A, or

b. The calculated VOC emissions from a noncomplying representative product, if the product had been reformulated to comply with the VOC limits specified in 9VAC5-45-430 A. VOC emissions shall be calculated using the following equation:

where:

E_R = The VOC emissions from the noncomplying representative product, had it been reformulated.

E_NC = The VOC emissions from the noncomplying representative product in its current formulation.

VOC_STD = the VOC limit specified in Table 45-4A.

VOC_NC = the VOC content of the noncomplying product in its current formulation.

If a manufacturer demonstrates that this equation yields inaccurate results due to some characteristic of the product formulation or other factors, an alternative method that accurately calculates emissions may be used upon approval of the board.

2. For the purposes of this subsection, "representative consumer product" means a consumer product that meets all of the following criteria:

a. The representative product shall be subject to the same VOC limit in 9VAC5-45-430 A as the innovative product;

b. The representative product shall be of the same product form as the innovative product unless the innovative product uses a new form that does not exist in the product category at the time the application is made; and

c. The representative product shall have at least a similar efficacy as other consumer products in the same product category based on tests generally accepted for that product category by the consumer products industry.

3. A manufacturer shall apply in writing to the board for an exemption claimed under subdivision A 1 of this section. The application shall include the supporting documentation that demonstrates the emissions from the innovative product, including the actual physical test methods used to generate the data and, if necessary, the consumer testing undertaken to document product usage. In addition, the applicant must provide the information necessary to enable the board to establish enforceable conditions for granting the exemption, including the VOC content for the innovative product and test methods for determining the VOC content. Information submitted to the board pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

4. Within 30 days of receipt of the exemption application, the board will determine whether an application is complete.

5. Within 90 days after an application has been deemed complete, the board will determine whether, under what conditions, and to what extent an exemption from the requirements of 9VAC5-45-430 A will be permitted. The board may extend this time period if additional time is needed to reach a decision, and additional supporting documentation may be submitted by the applicant before a decision has been reached. The board will notify the applicant of the decision in writing and specify such terms and conditions as are necessary to insure that emissions from the product will meet the emissions reductions specified in subdivision 1 of this subsection, and that such emissions reductions can be enforced.

6. In granting an exemption for a product, the board will establish enforceable conditions. These conditions shall include the VOC content of the innovative product, dispensing rates, application rates, and other parameters determined by the board to be necessary. The board will also specify the test methods for determining conformance to the conditions established. The test methods shall include criteria for reproducibility, accuracy, sampling, and laboratory procedures.

7. For a product for which an exemption has been granted pursuant to this section, the manufacturer shall notify the board in writing within 30 days of a change in the product formulation or recommended product usage directions and shall also notify the board within 30 days if the manufacturer learns of information that would alter the emissions estimates submitted to the board in support of the exemption application.

8. If the VOC limits specified in 9VAC5-45-430 A are lowered for a product category through a subsequent rulemaking, all innovative product exemptions granted for products in the product category, except as provided in this subdivision, shall have no force and effect as of the effective date of the modified VOC standard. This subdivision shall not apply to those innovative products that have VOC emissions less than the applicable lowered VOC limit and for which a written notification of the product's emissions status versus the lowered VOC limit has been submitted to and approved by the board at least 60 days before the effective date of such limits.

9. If the board believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in subdivision 1 of this subsection, the board may modify or revoke the exemption as necessary to assure that the product will meet these criteria.

B. In granting an exemption under this section, the board will take into consideration whether the applicant has been granted an innovative product exemption by CARB. A manufacturer of consumer products that has been granted an innovative product exemption by the CARB under the innovative products provisions in Subchapter 8.5, Article 2, Section 94511, or Subchapter 8.5, Article 1, Section 94503.5 of Title 17 of the California Code of Regulations (see 9VAC5-20-21) may be exempt from Table 45-4A for the period of time that the CARB innovative products exemption remains in effect provided that all consumer products within the CARB innovative products exemption are contained in Table 45-4A. A manufacturer claiming such an exemption on this basis must submit to the board a copy of the innovative product exemption decision (i.e., the executive order), including all conditions established by CARB applicable to the exemption and certification that the manufacturer will comply with the CARB innovative product exemption decision for those products in the areas specified in 9VAC5-45-400 B.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-460 Administrative requirements

A. Provisions follow concerning product dating.

1. Each manufacturer of a consumer product subject to 9VAC5-45-430 shall clearly display on each consumer product container or package, the day, month, and year on which the product was manufactured or a code indicating such date.

2. A manufacturer who uses the following code to indicate the date of manufacture shall not be subject to the requirements of subdivision B 1 of this section, if the code is represented separately from other codes on the product container so that it is easily recognizable:

YY DDD = year year day day day

where:

YY = two digits representing the year in which the product was manufactured, and

DDD = three digits representing the day of the year on which the product was manufactured, with 001 representing the first day of the year, 002 representing the second day of the year, and so forth (i.e., the Julian date).

3. The date or date code shall be located on the container or inside the cover or cap so that it is readily observable or obtainable (by simply removing the cap or cover) without irreversibly disassembling a part of the container or packaging. For the purposes of this subdivision, information may be displayed on the bottom of a container as long as it is clearly legible without removing any product packaging.

4. This date or date code shall be displayed on each consumer product container or package no later than the effective date of the applicable standard specified in 9VAC5-45-430 A.

5. The requirements of this section shall not apply to products containing no VOCs or containing VOCs at 0.10% by weight or less.

B. Additional provisions follow concerning product dating.

1. If a manufacturer uses a code indicating the date of manufacture for a consumer product subject to 9VAC5-45-430, an explanation of the date portion of the code must be filed with the board upon request by the board.

2. If a manufacturer changes any code indicating the date of manufacture for any consumer product subject to 9VAC5-45-430 and the board has requested an explanation of any previous product dating code for that consumer product, then an explanation of the modified code shall be submitted to the board before any products displaying the modified code are sold, supplied, or offered for sale within the areas designated in 9VAC5-45-400 B.

3. No person shall erase, alter, deface, or otherwise remove or make illegible any date or code indicating the date of manufacture from any regulated product container without the express authorization of the manufacturer.

4. Date code explanations for codes indicating the date of manufacture are public information and may not be claimed as confidential.

C. Additional provisions follow concerning the most restrictive limit that applies to a product.

1. For FIFRA-registered insecticides manufactured before August 1, 2011, notwithstanding the definition of "product category" in 9VAC5-45-420 C, if anywhere on the principal display panel, a representation is made that the product may be used as or is suitable for use as a consumer product for which a lower VOC limit is specified in 9VAC5-45-430 A, then the lowest VOC limit shall apply. This requirement does not apply to general purpose cleaners, antiperspirant or deodorant products, and insecticide foggers.

2. For consumer products manufactured on or after August 1, 2010, and FIFRA-registered insecticides manufactured on or after August 1, 2011, notwithstanding the definition of "product category" in 9VAC5-45-420 C, if anywhere on the container or packaging, or on any sticker or label affixed thereto, any representation is made that the product may be used as, or is suitable for use as a consumer product for which a lower VOC limit is specified in 9VAC5-45-430 A, then the lowest VOC limit shall apply. This requirement does not apply to general purpose cleaners, antiperspirant or deodorant products, and insecticide foggers.

D. Provisions follow concerning additional labeling requirements for aerosol adhesives, adhesive removers, electronic cleaner, electrical cleaner, energized electrical cleaner, and contact adhesives.

1. In addition to the requirements specified in subsections A and C of this section and in 9VAC5-45-510, both the manufacturer and responsible party for each aerosol adhesive, adhesive remover, electronic cleaner, electrical cleaner, energized electrical cleaner, and contact adhesive product subject to this article shall ensure that all products clearly display the following information on each product container that is manufactured on or after the effective date for the product category specified in Table 45-4A.

a. The product category as specified in 9VAC5-45-430 A or an abbreviation of the category shall be displayed;

b. (1) The applicable VOC standard for the product that is specified in 9VAC5-45-430 A, except for energized electrical cleaner, expressed as a percentage by weight, shall be displayed unless the product is included in an alternative control plan approved by the board, as provided in 9VAC5-45-440, and the product exceeds the applicable VOC standard;

(2) If the product is included in an alternative control plan approved by the board, and the product exceeds the applicable VOC standard specified in 9VAC5-45-430 A, the product shall be labeled with the term "ACP" or "ACP product";

c. If the product is classified as a special purpose spray adhesive, the applicable substrate or application or an abbreviation of the substrate or application that qualifies the product as special purpose shall be displayed;

d. If the manufacturer or responsible party uses an abbreviation as allowed by this subsection, an explanation of the abbreviation must be filed with the board before the abbreviation is used.

2. The information required in subdivision 1 of this subsection shall be displayed on the product container such that it is readily observable without removing or disassembling a portion of the product container or packaging. For the purposes of this subsection, information may be displayed on the bottom of a container as long as it is clearly legible without removing product packaging.

3. No person shall remove, alter, conceal, or deface the information required in subdivision 1 of this subsection prior to final sale of the product.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-470 Compliance

The provisions of 9VAC5-45-20 (Compliance) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-480 Compliance schedules

Affected owners or other persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. August 1, 2010, in the Northern Virginia and Fredericksburg VOC Emissions Control Areas; or

2. March 1, 2014, in the Richmond VOC Emissions Control Area.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-490 Test methods and procedures

A. The provisions of 9VAC5-45-30 (Emission testing) apply.

B. 1. Testing to determine compliance with the requirements of this article shall be performed using CARB Method 310 (see 9VAC5-20-21). Alternative methods that can accurately determine the concentration of VOCs in a subject product or its emissions may be used consistent with the approval requirements of 9VAC5-45-30 A.

2. In sections 3.5, 3.6, and 3.7 of CARB Method 310 (see 9VAC5-20-21), a process is specified for the "Initial Determination of VOC Content" and the "Final Determination of VOC Content." Information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

C. For VOC content determinations using product formulation and records, testing to determine compliance with the requirements of this article may also be demonstrated through calculation of the VOC content from records of the amounts of constituents used to make the product pursuant to the following criteria:

1. Compliance determinations based on these records may not be used unless the manufacturer of a consumer product keeps accurate records for each day of production of the amount and chemical composition of the individual product constituents. These records must be kept for at least three years.

2. For the purposes of this subsection, the VOC content shall be calculated according to the following equation:

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit as specified in 9VAC5-45-410.

3. If product records appear to demonstrate compliance with the VOC limits, but these records are contradicted by product testing performed using CARB Method 310 (see 9VAC5-20-21), the results of CARB Method 310 shall take precedence over the product records and may be used to establish a violation of the requirements of this article.

D. Testing to determine whether a product is a liquid or solid shall be performed using ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

E. Testing to determine compliance with the certification requirements for charcoal lighter material shall be performed using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

F. Testing to determine distillation points of petroleum distillate-based charcoal lighter materials shall be performed using ASTM "Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure" (see 9VAC5-20-21).

G. No person shall create, alter, falsify, or otherwise modify records in such a way that the records do not accurately reflect the constituents used to manufacture a product, the chemical composition of the individual product, and other tests, processes, or records used in connection with product manufacture.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-500 Monitoring

The provisions of 9VAC5-45-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-510 Notification, records and reporting

A. The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

B. Upon 90 days written notice, the board may require a responsible party to register and report information for a consumer product the board may specify, including, but not limited to, all or part of the information specified in subdivisions 1 through 12 of this subsection. If the responsible party does not have or does not provide the information requested by the board, the board may require the reporting of this information by another owner or other person that has the information, including, but not limited to, any formulator, manufacturer, supplier, parent company, private labeler, distributor, or repackager.

1. The company name of the responsible party and the party's address, telephone number, and designated contact person.

2. A showing satisfactory to the board under 9VAC5-170-60 B and C that supports any claim of confidentiality made pursuant to 9VAC5-170-60, §§ 10.1-1314 and 10.1-1314.1 of the Virginia Air Pollution Control Law, and other applicable state confidentiality requirements .

3. The product brand name for each consumer product subject to registration and, upon request by the board, the product label.

4. The product category to which the consumer product belongs.

5. The applicable product forms listed separately.

6. An identification of each product brand name and form as a "Household Product," "I&I Product," or both.

7. Separate sales in pounds per year, to the nearest pound, and the method used to calculate sales for each product form.

8. For registrations submitted by two companies, an identification of the company that is submitting relevant data separate from that submitted by the responsible party. All registration information from both companies shall be submitted by the date specified in this subsection.

9. For each product brand name and form, the net percent by weight of the total product, less container and packaging, composed of the following, rounded to the nearest one-tenth of a percent (0.1%):

a. Total exempt compounds.

b. Total LVP-VOCs that are not fragrances.

c. Total all other carbon-containing compounds that are not fragrances.

d. Total all noncarbon-containing compounds.

e. Total fragrance.

f. For products containing greater than 2.0% by weight fragrance:

(1) The percent of fragrances that are LVP-VOCs; and

(2) The percent of fragrances that are all other carbon-containing compounds.

g. Total paradichlorobenzene.

10. For each product brand name and form, the identity, including the specific chemical name and associated Chemical Abstract Services (CAS) number, of the following:

a. Each exempt compound; and

b. Each LVP-VOC that is not a fragrance.

11. If applicable, the weight percent composed of propellant for each product.

12. If applicable, an identification of the type of propellant.

C. In addition to the requirements of subdivision B 10 of this section, the responsible party shall report to the board the net percentage by weight of each ozone-depleting compound that is:

1. Listed in 9VAC5-45-430 H; and

2. Contained in a product subject to registration under subsection B of this section in an amount greater than 1.0% by weight.

D. Information submitted by responsible parties pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

E. Provisions follow concerning special recordkeeping and reporting requirements for consumer products that contain perchloroethylene or methylene chloride.

1. The requirements of this subsection shall apply to all responsible parties for consumer products that are subject to 9VAC5-45-430 A and contain perchloroethylene or methylene chloride. For the purposes of this subsection, a product contains perchloroethylene or methylene chloride if the product contains 1.0% or more by weight (exclusive of the container or packaging) of either perchloroethylene or methylene chloride.

2. For each consumer product that contains perchloroethylene or methylene chloride, the responsible party shall keep records of the following information for products sold during each calendar year, beginning with the year of the applicable compliance date specified in 9VAC5-45-480, and ending with the year 2010:

a. The product brand name and a copy of the product label with legible usage instructions;

b. The product category to which the consumer product belongs;

c. The applicable product form, listed separately;

d. For each product form listed in subdivision 2 c of this subsection, the total sales during the calendar year, to the nearest pound (exclusive of the container or packaging), and the method used for calculating sales;

e. The weight percentage, to the nearest 0.10% of perchloroethylene and methylene chloride in the consumer product;

3. Upon 90 days written notice, the board may require a responsible party to report the information specified in subdivision 2 of this subsection.

4. Records required by subdivision 2 of this subsection shall be maintained by the responsible party for three calendar years from the date such records were created.

5. Alternative control plan notifications, records, and reporting shall be made as required by 9VAC5-45-440 and as required in the ACP agreement.

6. Innovative product notifications, records, and reporting shall be made as required by 9VAC5-45-450 and as required in the innovative products exemption notification letter.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 5 Emission Standards for Architectural and Industrial Maintenance Coatings

9VAC5-45-520 Applicability

Article 5 Emission Standards for Architectural and Industrial Maintenance Coatings

A. Except as provided in 9VAC5-45-530, the provisions of this article apply to any owner or other person who supplies, sells, offers for sale, or manufactures any architectural coating for use, as well as any owner or other person who applies or solicits the application of any architectural coating.

B. The provisions of this article apply only to owners and other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-530 Exemptions

A. The provisions of this article do not apply to:

1. Any architectural coating that is sold or manufactured for use exclusively outside of the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas or for shipment to other manufacturers for reformulation or repackaging.

2. Any aerosol coating product.

3. Any architectural coating that is sold in a container with a volume of one liter (1.057 quart) or less.

B. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-540 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Adhesive" means any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

"Aerosol coating product" means a pressurized coating product containing pigments or resins that dispenses product ingredients by means of a propellant, and is packaged in a disposable can for hand-held application, or for use in specialized equipment for ground traffic/marking applications.

"Antenna coating" means a coating labeled and formulated exclusively for application to equipment and associated structural appurtenances that are used to receive or transmit electromagnetic signals.

"Antifouling coating" means a coating labeled and formulated for application to submerged stationary structures and their appurtenances to prevent or reduce the attachment of marine or freshwater biological organisms. To qualify as an antifouling coating, the coating shall be registered with both the U.S. EPA under the Federal Insecticide, Fungicide and Rodenticide Act (7 USC § 136 et seq.) and with the Pesticide Control Board under the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Appurtenance" means any accessory to a stationary structure coated at the site of installation, whether installed or detached, including but not limited to bathroom and kitchen fixtures; cabinets; concrete forms; doors; elevators; fences; hand railings; heating equipment, air conditioning equipment, and other fixed mechanical equipment or stationary tools; lampposts; partitions; pipes and piping systems; rain gutters and downspouts; stairways; fixed ladders; catwalks and fire escapes; and window screens.

"Architectural coating" means a coating to be applied to stationary structures or the appurtenances at the site of installation, to portable buildings at the site of installation, to pavements, or to curbs. Coatings applied in shop applications or to nonstationary structures such as airplanes, ships, boats, railcars, and automobiles, and adhesives are not considered architectural coatings for the purposes of this article.

"ASTM" means the American Society for Testing and Materials.

"Bitumens" means black or brown materials including, but not limited to, asphalt, tar, pitch, and asphaltite that are soluble in carbon disulfide, consist mainly of hydrocarbons, and are obtained from natural deposits of asphalt or as residues from the distillation of crude petroleum or coal.

"Bituminous roof coating" means a coating that incorporates bitumens that is labeled and formulated exclusively for roofing.

"Bituminous roof primer" means a primer that consists of a coating or mastic formulated and recommended for roofing, pavement sealing, or waterproofing that incorporates bitumens.

"Bond breaker" means a coating labeled and formulated for application between layers of concrete to prevent a freshly poured top layer of concrete from bonding to the layer over which it is poured.

"Calcimine recoater" means a flat solvent borne coating formulated and recommended specifically for recoating calcimine-painted ceilings and other calcimine-painted substrates.

"Clear brushing lacquers" means clear wood finishes, excluding clear lacquer sanding sealers, formulated with nitrocellulose or synthetic resins to dry by solvent evaporation without chemical reaction and to provide a solid, protective film, which are intended exclusively for application by brush and that are labeled as specified in subdivision 5 of 9VAC5-45-560.

"Clear wood coatings" means clear and semitransparent coatings, including lacquers and varnishes, applied to wood substrates to provide a transparent or translucent solid film.

"Coating" means a material applied onto or impregnated into a substrate for protective, decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes, sealers, and stains.

"Colorant" means a concentrated pigment dispersion in water, solvent, or binder that is added to an architectural coating after packaging in sale units to produce the desired color.

"Concrete curing compound" means a coating labeled and formulated for application to freshly poured concrete to retard the evaporation of water.

"Concrete surface retarder" means a mixture of retarding ingredients such as extender pigments, primary pigments, resin, and solvent that interact chemically with the cement to prevent hardening on the surface where the retarder is applied, allowing the retarded mix of cement and sand at the surface to be washed away to create an exposed aggregate finish.

"Conversion varnish" means a clear acid curing coating with an alkyd or other resin blended with amino resins and supplied as a single component or two-component product. Conversion varnishes produce a hard, durable, clear finish designed for professional application to wood flooring. The film formation is the result of an acid-catalyzed condensation reaction, effecting a transetherification at the reactive ethers of the amino resins.

"Dry fog coating" means a coating labeled and formulated only for spray application such that overspray droplets dry before subsequent contact with incidental surfaces in the vicinity of the surface coating activity.

"Exempt compound" means a compound identified as exempt under the definition of Volatile Organic Compound (VOC) in 9VAC5-10-20. Exempt compounds content of a coating shall be determined by Reference Method 24 or South Coast Air Quality Management District (SCAQMD) Method for Determination of Exempt Compounds (see 9VAC5-20-21).

"Extreme durability coating" means an air-dried coating, including fluoropolymer-based coating, that is formulated and recommended for application to exterior metal surfaces and touch-up, repair, and overcoating of precoated metal surfaces, and that meets the weathering requirements of American Architectural Manufacturers Association Voluntary Specification - Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels (see 9VAC5-20-21).

"Faux finishing coating" means a coating labeled and formulated as a stain or a glaze to create artistic effects including, but not limited to, dirt, old age, smoke damage, and simulated marble and wood grain.

"Fire-resistive coating" means an opaque coating labeled and formulated to protect the structural integrity by increasing the fire endurance of interior or exterior steel and other structural materials, that has been fire tested and rated by a testing agency and approved by building code officials for use in bringing assemblies of structural materials into compliance with federal, state, and local building code requirements. The fire-resistive coating shall be tested in accordance with ASTM Standard Test Method for Fire Tests of Building Construction Materials (see 9VAC5-20-21).

"Fire-retardant coating" means a coating labeled and formulated to retard ignition and flame spread, that has been fire tested and rated by a testing agency and approved by building code officials for use in bringing building and construction materials into compliance with federal, state, and local building code requirements. The fire-retardant coating shall be tested in accordance with ASTM Standard Test Method for Surface Burning Characteristics of Building Construction Materials (see 9VAC5-20-21).

"Flat coating" means a coating that is not defined under any other definition in this article and that registers gloss less than 15 on an 85-degree meter or less than five on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Floor coating" means an opaque coating that is labeled and formulated for application to flooring, including, but not limited to, decks, porches, steps, and other horizontal surfaces, that may be subjected to foot traffic.

"Flow coating" means a coating labeled and formulated exclusively for use by electric power companies or their subcontractors to maintain the protective coating systems present on utility transformer units.

"Form-release compound" means a coating labeled and formulated for application to a concrete form to prevent the freshly poured concrete from bonding to the form. The form may consist of wood, metal, or some material other than concrete.

"Graphic arts coating or sign paint" means a coating labeled and formulated for hand-application by artists using brush or roller techniques to indoor and outdoor signs (excluding structural components) and murals including letter enamels, poster colors, copy blockers, and bulletin enamels.

"High-temperature coating" means a high-performance coating labeled and formulated for application to substrates exposed continuously or intermittently to temperatures above 204°C (400°F).

"Impacted immersion coating" means a high performance maintenance coating formulated and recommended for application to steel structures subject to immersion in turbulent, debris-laden water. These coatings are specifically resistant to high-energy impact damage caused by floating ice or debris.

"Industrial maintenance coating" means a high-performance architectural coating, including primers, sealers, undercoaters, intermediate coats, and topcoats, formulated for application to substrates exposed to one or more of the following extreme environmental conditions, and labeled as specified in subdivision 4 of 9VAC5-45-560:

1. Immersion in water, wastewater, or chemical solutions (aqueous and nonaqueous solutions), or chronic exposures of interior surfaces to moisture condensation;

2. Acute or chronic exposure to corrosive, caustic, or acidic agents, or to chemicals, chemical fumes, or chemical mixtures or solutions;

3. Repeated exposure to temperatures above 121°C (250°F);

4. Repeated (frequent) heavy abrasion, including mechanical wear and repeated (frequent) scrubbing with industrial solvents, cleansers, or scouring agents; or

5. Exterior exposure of metal structures and structural components.

"Lacquer" means a clear or opaque wood coating, including clear lacquer sanding sealers, formulated with cellulosic or synthetic resins to dry by evaporation without chemical reaction and to provide a solid, protective film.

"Low-solids coating" means a coating containing 0.12 kilogram or less of solids per liter (1 pound or less of solids per gallon) of coating material.

"Magnesite cement coating" means a coating labeled and formulated for application to magnesite cement decking to protect the magnesite cement substrate from erosion by water.

"Mastic texture coating" means a coating labeled and formulated to cover holes and minor cracks and to conceal surface irregularities, and is applied in a single coat of at least 10 mils (0.010 inch) dry film thickness.

"Metallic pigmented coating" means a coating containing at least 48 grams of elemental metallic pigment, mica particles or any combination of metallic pigment or mica particles per liter of coating as applied (0.4 pounds per gallon), when tested in accordance with South Coast Air Quality Air Management District (SCAQMD) Method for Determination of Weight Percent Elemental Metal in Coatings by X‑Ray Diffraction (see 9VAC5-20-21).

"Multicolor coating" means a coating that is packaged in a single container and that exhibits more than one color when applied in a single coat.

"Nonflat coating" means a coating that is not defined under any other definition in this article and that registers a gloss of 15 or greater on an 85-degree meter and 5 or greater on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Nonflat high-gloss coating" means a nonflat coating that registers a gloss of 70 or above on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Nonindustrial use" means any use of architectural coatings except in the construction or maintenance of any of the following: facilities used in the manufacturing of goods and commodities; transportation infrastructure, including highways, bridges, airports and railroads; facilities used in mining activities, including petroleum extraction; and utilities infrastructure, including power generation and distribution, and water treatment and distribution systems.

"Nuclear coating" means a protective coating formulated and recommended to seal porous surfaces such as steel (or concrete) that otherwise would be subject to intrusions by radioactive materials. These coatings must be resistant to long-term (service life) cumulative radiation exposure as determined by ASTM Standard Test Method for Effects of Gamma Radiation on Coatings for Use in Light-Water Nuclear Power Plants (see 9VAC5-20-21), relatively easy to decontaminate, and resistant to various chemicals to which the coatings are likely to be exposed as determined by ASTM Standard Test Method for Chemical Resistance of Coatings Used in Light-Water Nuclear Power Plants (see 9VAC5-20-21).

"Post-consumer coating" means a finished coating that would have been disposed of in a landfill, having completed its usefulness to a consumer, and does not include manufacturing wastes.

"Pretreatment wash primer" means a primer that contains a minimum of 0.5% acid, by weight, when tested in accordance with ASTM Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer and Related Products (see 9VAC5-20-21), that is labeled and formulated for application directly to bare metal surfaces to provide corrosion resistance and to promote adhesion of subsequent topcoats.

"Primer" means a coating labeled and formulated for application to a substrate to provide a firm bind between the substrate and subsequent coats.

"Quick-dry enamel" means a nonflat coating that is labeled as specified in subdivision 8 of 9VAC5-45-560 and that is formulated to have the following characteristics:

1. Is capable of being applied directly from the container under normal conditions with ambient temperatures between 16 and 27°C (60 and 80°F);

2. When tested in accordance with ASTM Standard Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature (see 9VAC5-20-21), sets to touch in two hours or less, is tack free in four hours or less, and dries hard in eight hours or less by the mechanical test method; and

3. Has a dried film gloss of 70 or above on a 60-degree meter.

"Quick-dry primer sealer and undercoater" means a primer, sealer, or undercoater that is dry to the touch in 30 minutes and can be recoated in two hours when tested in accordance with ASTM Standard Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature (see 9VAC5-20-21).

"Recycled coating" means an architectural coating formulated such that not less than 50% of the total weight consists of secondary and post-consumer coating, with not less than 10% of the total weight consisting of post-consumer coating.

"Residence" means areas where people reside or lodge, including, but not limited to, single and multiple family dwellings, condominiums, mobile homes, apartment complexes, motels, and hotels.

"Roof coating" means a nonbituminous coating labeled and formulated exclusively for application to roofs for the primary purpose of preventing penetration of the substrate by water or reflecting heat and ultraviolet radiation. Metallic pigmented roof coatings, which qualify as metallic pigmented coatings, shall not be considered in this category, but shall be considered to be in the metallic pigmented coatings category.

"Rust-preventive coating" means a coating formulated exclusively for nonindustrial use to prevent the corrosion of metal surfaces and labeled as specified in subdivision 6 of 9VAC5-45-560.

"Sanding sealer" means a clear or semitransparent wood coating labeled and formulated for application to bare wood to seal the wood and to provide a coat that can be abraded to create a smooth surface for subsequent applications of coatings. A sanding sealer that also meets the definition of a lacquer is not included in this category, but it is included in the lacquer category.

"Sealer" means a coating labeled and formulated for application to a substrate for one or more of the following purposes: to prevent subsequent coatings from being absorbed by the substrate, or to prevent harm to subsequent coatings by materials in the substrate.

"Secondary coating (rework)" means a fragment of a finished coating or a finished coating from a manufacturing process that has converted resources into a commodity of real economic value, but does not include excess virgin resources of the manufacturing process.

"Shellac" means a clear or opaque coating formulated solely with the resinous secretions of the lac beetle (Laciffer lacca), thinned with alcohol, and formulated to dry by evaporation without a chemical reaction.

"Shop application" means the application of a coating to a product or a component of a product in or on the premises of a factory or a shop as part of a manufacturing, production, or repairing process (e.g., original equipment manufacturing coatings).

"Solicit" means to require for use or to specify by written or oral contract.

"Specialty primer, sealer, and undercoater" means a coating labeled as specified in subdivision 7 of 9VAC5-45-560 and that is formulated for application to a substrate to seal fire, smoke or water damage; to condition excessively chalky surfaces; or to block stains. An excessively chalky surface is one that is defined as having a chalk rating of four or less as determined by ASTM Standard Test Methods for Evaluating the Degree of Chalking of Exterior Paint Films (see 9VAC5-20-21).

"Stain" means a clear, semitransparent, or opaque coating labeled and formulated to change the color of a surface, but not conceal the grain pattern or texture.

"Swimming pool coating" means a coating labeled and formulated to coat the interior of swimming pools and to resist swimming pool chemicals.

"Swimming pool repair and maintenance coating" means a rubber-based coating labeled and formulated to be used over existing rubber-based coatings for the repair and maintenance of swimming pools.

"Temperature-indicator safety coating" means a coating labeled and formulated as a color-changing indicator coating for the purpose of monitoring the temperature and safety of the substrate, underlying piping, or underlying equipment, and for application to substrates exposed continuously or intermittently to temperatures above 204°C (400°F).

"Thermoplastic rubber coating and mastic" means a coating or mastic formulated and recommended for application to roofing or other structural surfaces and that incorporates no less than 40% by weight of thermoplastic rubbers in the total resin solids and may also contain other ingredients including, but not limited to, fillers, pigments, and modifying resins.

"Tint base" means an architectural coating to which colorant is added after packaging in sale units to produce a desired color.

"Traffic marking coating" means a coating labeled and formulated for marking and striping streets, highways, or other traffic surfaces including, but not limited to, curbs, berets, driveways, parking lots, sidewalks, and airport runways.

"Undercoater" means a coating labeled and formulated to provide a smooth surface for subsequent coatings.

"Varnish" means a clear or semitransparent wood coating, excluding lacquers and shellacs, formulated to dry by chemical reaction on exposure to air. Varnishes may contain small amounts of pigment to color a surface or control the fetal sheen or gloss of the finish.

"VOC content" means the weight of VOC per volume of coating, calculated according to the procedures specified in 9VAC5-45-590 B.

"Waterproofing concrete/masonry sealer" means a clear or pigmented film-forming coating that is labeled and formulated for sealing concrete and masonry to provide resistance against water, alkalis, acids, ultraviolet light, and staining.

"Waterproofing sealer" means a coating labeled and formulated for application to a porous substrate for the primary purpose of preventing the penetration of water.

"Wood preservative" means a coating labeled and formulated to protect exposed wood from decay or insect attack that is registered with both the U.S. EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136, et seq.) and with the Pesticide Control Board under the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-550 Standard for volatile organic compounds

A. Except as provided in this section, no owner or other person shall (i) manufacture, blend, or repackage for sale, (ii) supply, sell, or offer for sale, or (iii) solicit for application or apply any architectural coating with a VOC content in excess of the corresponding limit specified in Table 45-5A.

B. If anywhere on the container of any architectural coating, or any label or sticker affixed to the container, or in any sales, advertising, or technical literature supplied by a manufacturer or any person acting on behalf of a manufacturer, any representation is made that indicates that the coating meets the definition of or is recommended for use for more than one of the coating categories listed in Table 45-5A, then the most restrictive VOC content limit shall apply. This provision does not apply to the following coating categories:

Lacquer coatings (including lacquer sanding sealers);

Metallic pigmented coatings;

Shellacs;

Fire-retardant coatings;

Pretreatment wash primers;

Industrial maintenance coatings;

Low-solids coatings;

Wood preservatives;

High-temperature coatings;

Temperature-indicator safety coatings;

Antenna coatings;

Antifouling coatings;

Flow coatings;

Bituminous roof primers;

Calcimine recoaters;

Impacted immersion coatings;

Nuclear coatings;

Thermoplastic rubber coating and mastic; and

Specialty primers, sealers, and undercoaters.

| Table 45-5A VOC Content Limits for Architectural Coatings | | | | | --- | --- | --- | --- | | Limits are expressed in grams of VOC per liter¹ of coating thinned to the manufacturer's maximum recommendation, excluding the volume of any water, exempt compounds, or colorant added to tint bases. "Manufacturers maximum recommendation" means the maximum recommendation for thinning that is indicated on the label or lid of the coating container. | | | | | Coating Category | VOC Content Limit | | | | Flat Coatings | 100 | | | | Nonflat Coatings | 150 | | | | Nonflat High Gloss Coatings | 250 | | | | Specialty Coatings: | | | | | | Antenna Coatings | 530 | | | | Antifouling Coatings | 400 | | | | Bituminous Roof Coatings | 300 | | | | Bituminous Roof Primers | 350 | | | | Bond Breakers | 350 | | | | Calcimine Recoater | 475 | | | | Clear Wood Coatings: | | | | | | Clear Brushing Lacquers | 680 | | | | Lacquers (including lacquer sanding sealers) | 550 | | | | Sanding Sealers (other than lacquer sanding sealers) | 350 | | | | Conversion Varnishes | 725 | | | | Varnishes (other than conversion varnishes) | 350 | | | Concrete Curing Compounds | 350 | | | | Concrete Surface Retarder | 780 | | | | Dry Fog Coatings | 400 | | | | Extreme durability coating | 400 | | | | Faux Finishing Coatings | 350 | | | | Fire‑Resistive Coatings | 350 | | | | Fire‑Retardant Coatings: | | | | | | Clear | 650 | | | | Opaque | 350 | | | Floor Coatings | 250 | | | | Flow Coatings | 420 | | | | Form‑Release Compounds | 250 | | | | Graphic Arts Coatings (Sign Paints) | 500 | | | | High‑Temperature Coatings | 420 | | | | Impacted Immersion Coating | 780 | | | | Industrial Maintenance Coatings | 340 | | | | Low‑Solids Coatings | 120 | | | | Magnesite Cement Coatings | 450 | | | | Mastic Texture Coatings | 300 | | | | Metallic Pigmented Coatings | 500 | | | | Multi‑Color Coatings | 250 | | | | Nuclear Coatings | 450 | | | | Pretreatment Wash Primers | 420 | | | | Primers, Sealers, and Undercoaters | 200 | | | | Quick‑Dry Enamels | 250 | | | | Quick‑Dry Primers, Sealers and Undercoaters | 200 | | | | Recycled Coatings | 250 | | | | Roof Coatings | 250 | | | | Rust Preventative Coatings | 400 | | | | Shellacs: | | | | | | Clear | 730 | | | | Opaque | 550 | | | Specialty Primers, Sealers, and Undercoaters | 350 | | | | Stains | 250 | | | | Swimming Pool Coatings | 340 | | | | Swimming Pool Repair and Maintenance Coatings | 340 | | | | Temperature‑Indicator Safety Coatings | 550 | | | | Thermoplastic Rubber Coating and Mastic | 550 | | | | Traffic Marking Coatings | 150 | | | | Waterproofing Sealers | 250 | | | | Waterproofing Concrete/Masonry Sealers | 400 | | | | Wood Preservatives | 350 | | | ¹ Conversion factor: one pound of VOC per gallon (U.S.) = 119.95 grams per liter. | | | |

C. A coating manufactured prior to the applicable compliance date specified in 9VAC5-45-580, may be sold, supplied, or offered for sale for two years following the applicable compliance date. In addition, a coating manufactured before the applicable compliance date specified in 9VAC5-45-580, may be applied at any time, both before and after the applicable compliance date, so long as the coating complied with the standards in effect at the time the coating was manufactured. This subsection does not apply to any coating that does not display the date or date code required by subdivision 1 of 9VAC5-45-560.

D. All architectural coating containers used to apply the contents therein to a surface directly from the container by pouring, siphoning, brushing, rolling, padding, ragging, or other means, shall be closed when not in use. These architectural coatings containers include, but are not limited to, drums, buckets, cans, pails, trays, or other application containers. Containers of any VOC-containing materials used for thinning and cleanup shall also be closed when not in use.

E. No owner or other person who applies or solicits the application of any architectural coating shall apply a coating that contains any thinning material that would cause the coating to exceed the applicable VOC limit specified in Table 45-5A.

F. No owner or other person shall apply or solicit the application of any rust preventive coating for industrial use unless such a rust preventive coating complies with the industrial maintenance coating VOC limit specified in Table 45-5A.

G. For any coating that does not meet any of the definitions for the specialty coatings categories listed in Table 45-5A, the VOC content limit shall be determined by classifying the coating as a flat coating or a nonflat coating, based on its gloss, as defined in 9VAC5-45-540 C, and the corresponding flat or nonflat coating limit shall apply.

H. Notwithstanding the provisions of subsection A of this section, up to 10% by volume of VOC may be added to a lacquer to avoid blushing of the finish during days with relative humidity greater than 70% and temperature below 65°F, at the time of application, provided that the coating contains acetone and no more than 550 grams of VOC per liter of coating, less water and exempt compounds, prior to the addition of VOC.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-560 Administrative requirements

Each manufacturer of any architectural coatings subject to this article shall display the information listed in subdivisions 1 through 8 of this section on the coating container (or label) in which the coating is sold or distributed.

1. The date the coating was manufactured, or a date code representing the date, shall be indicated on the label, lid, or bottom of the container. If the manufacturer uses a date code for any coating, the manufacturer shall file an explanation of each code with the board upon request of the board.

2. A statement of the manufacturer's recommendation regarding thinning of the coating shall be indicated on the label or lid of the container. This requirement does not apply to the thinning of architectural coatings with water. If thinning of the coating prior to use is not necessary, the recommendation shall specify that the coating is to be applied without thinning.

3. Each container of any coating subject to this article shall display either the maximum or the actual VOC content of the coating, as supplied, including the maximum thinning as recommended by the manufacturer. VOC content shall be displayed in grams of VOC per liter of coating. VOC content displayed shall be calculated using product formulation data, or shall be determined using the test methods in 9VAC5-45-590 C. The equations in 9VAC5-45-590 B shall be used to calculate VOC content.

4. In addition to the information specified in subdivisions 1, 2, and 3 of this section, each manufacturer of any industrial maintenance coating subject to this article shall display on the label or the lid of the container in which the coating is sold or distributed one or more of the descriptions listed in this subdivision.

a. "For industrial use only."

b. "For professional use only."

c. "Not for residential use" or "Not intended for residential use."

5. The labels of all clear brushing lacquers shall prominently display the statements "For brush application only," and "This product shall not be thinned or sprayed."

6. The labels of all rust preventive coatings shall prominently display the statement "For Metal Substrates Only."

7. The labels of all specialty primers, sealers, and undercoaters shall prominently display one or more of the descriptions listed in this subdivision.

a. For blocking stains.

b. For fire-damaged substrates.

c. For smoke-damaged substrates.

d. For water-damaged substrates.

e. For excessively chalky substrates.

8. The labels of all quick dry enamels shall prominently display the words "Quick Dry" and the dry hard time.

9. The labels of all nonflat high-gloss coatings shall prominently display the words "High Gloss."

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-45-570 Compliance

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-580 Compliance schedules

Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area;

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area; or

3. March 1, 2014, in the Richmond VOC Emissions Control Area.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-590 Test methods and procedures

A. The provisions of subsection G of 9VAC5-45-30 (Emission testing) apply. The other provisions of 9VAC5-45-30 do not apply.

B. For the purpose of determining compliance with the VOC content limits in Table 45-5A, the VOC content of a coating shall be determined by using the procedures described in subdivision 1 or 2 of this subsection, as appropriate. The VOC content of a tint base shall be determined without colorant that is added after the tint base is manufactured.

1. With the exception of low solids coatings, determine the VOC content in grams of VOC per liter of coating thinned to the manufacturer's maximum recommendation, excluding the volume of any water and exempt compounds. Determine the VOC content using the following equation:

where:

VOC content = grams of VOC per liter of coating

Ws = weight of volatiles, in grams

Ww = weight of water, in grams

Wec = weight of exempt compounds, in grams

Vm = volume of coating, in liters

Vw = volume of water, in liters

Vec = volume of exempt compounds, in liters

2. For low solids coatings, determine the VOC content in units of grams of VOC per liter of coating thinned to the manufacturer's maximum recommendation, including the volume of any water and exempt compounds. Determine the VOC content using the following equation:

where:

VOC Content (ls) = the VOC content of a low solids coating in grams per liter of coating

Ws = weight of volatiles, in grams

Ww = weight of water, in grams

Wec = weight of exempt compounds, in grams

Vm = volume of coating, in liters

C. To determine the physical properties of a coating in order to perform the calculations in subsection B, the reference method for VOC content is Reference Method 24 (see 9VAC5-20-21). The exempt compounds content shall be determined by SCAQMD Method for Determination of Exempt Compounds (see 9VAC5-20-21). To determine the VOC content of a coating, the manufacturer may use Reference Method 24, formulation data, or any other reasonable means for predicting that the coating has been formulated as intended (e.g., quality assurance checks, recordkeeping). However, if there are any inconsistencies between the results of a Reference Method 24 test and any other means for determining VOC content, the Reference Method 24 results will govern. The board may require the manufacturer to conduct a Reference Method 24 analysis.

D. Exempt compounds that are cyclic, branched, or linear, completely methylated siloxanes shall be analyzed as exempt compounds by Bay Area Quality Management District (BAAQMD) Method for Determination of Volatile Methylsiloxanes in Solvent‑Based Coatings, Inks, and Related Materials (see 9VAC5-20-21).

E. The exempt compound parachlorobenzotrifluoride shall be analyzed as an exempt compound by BAAQMD Method for Determination of Volatile Organic Compounds in Solvent‑Based Coatings and Related Materials Containing Parachlorobenzotrifluoride (see 9VAC5-20-21).

F. The content of compounds exempt under Reference Method 24 shall be determined by SCAQMD Method for Determination of Exempt Compounds, Laboratory Methods of Analysis for Enforcement Samples (see 9VAC5-20-21).

G. The VOC content of a coating shall be determined by Reference Method 24 (see 9VAC5-20-21).

H. The VOC content of coatings may be determined by either Reference Method 24 or SCAQMD Method for Determination of Exempt Compounds, Laboratory Methods of Analysis for Enforcement Samples (see 9VAC5-20-21).

I. Other test methods may be used for purposes of determining compliance with this article consistent with the approval requirements of 9VAC5-45-20 A 2.

J. Analysis of methacrylate multicomponents used as traffic marking coatings shall be conducted according to a modification of Reference Method 24 (40 CFR 59, Subpart D, Appendix A; see 9VAC5-20-21). This method has not been approved for methacrylate multicomponent coatings used for other purposes than as traffic marking coatings or for other classes of multicomponent coatings.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-600 Monitoring

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-610 Notification, records and reporting

A. The provisions of subsections E, F, and H of 9VAC5-45-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-45-50 do not apply.

B. For each architectural coating that contains perchloroethylene or methylene chloride, the manufacturer shall keep records of the following information for products sold during the preceding year:

1. The product brand name and a copy of the product label with the legible usage instructions;

2. The product category listed in Table 45-5A to which the coating belongs;

3. The total sales during the calendar year to the nearest gallon;

4. The volume percentage to the nearest 0.10% of perchloroethylene and methylene chloride in the coating.

C. Upon 90 days written notice, the board may require a responsible party to report the information specified in subsection B of this section.

D. Records required by subsection B of this section shall be maintained by the responsible party for three calendar years from the date such records were created.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 6 Emission Standards for Adhesives and Sealants

9VAC5-45-620 Applicability

Article 6 Emission Standards for Adhesives and Sealants

A. Except as provided in 9VAC5-45-630, the provisions of this article apply to any owner or other person who supplies, sells, offers for sale, or manufactures for sale any adhesive, sealant, adhesive primer, or sealant primer that contains volatile organic compounds (VOC).

B. Except as provided in 9VAC5-45-630, the provisions of this article apply to any owner or other person who uses, applies for compensation, solicits the use of, requires the use of, or specifies the application of, any adhesive, sealant, adhesive primer, or sealant primer that contains volatile organic compounds.

C. The provisions of this article apply only to owners or other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-630 Exemptions

A. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale an adhesive, sealant, adhesive primer or sealant primer that does not comply with the VOC standards specified in 9VAC5-45-650 A provided that such manufacturer or distributor makes and keeps records demonstrating (i) that the adhesive, sealant, adhesive primer or sealant primer is intended for shipment and use outside of the volatile organic compound emissions control areas designated in 9VAC5-45-620 C, and (ii) that the manufacturer or distributor has taken reasonable prudent precautions to assure that the adhesive, sealant, adhesive primer or sealant primer is not distributed to or within those applicable volatile organic compound emissions control areas. This exemption does not apply to any adhesive, sealant, adhesive primer or sealant primer that is sold, supplied, or offered for sale by any owner or other person to a retail outlet in those applicable volatile organic compound emissions control areas.

B. The provisions of this article do not apply to the sale or use of the following compounds:

1. Adhesives, sealants, adhesive primers or sealant primers being tested or evaluated in any research and development, quality assurance or analytical laboratory, provided records are maintained as required in 9VAC5-45-730 of this article;

2. Adhesives, sealants, adhesive primers and sealant primers that are subject to standards for volatile organic compounds pursuant to Article 3 (9VAC5-45-280 et seq.), Article 4 (9VAC5-45-400 et seq.) or Article 5 (9VAC5-45-520 et seq.) of this part;

3. Adhesives and sealants that contain less than 20 grams of VOC per liter of adhesive or sealant, less water and less exempt compounds, as applied;

4. Cyanoacrylate adhesives;

5. Adhesives, sealants, adhesive primers or sealant primers (except for plastic cement welding adhesives and contact adhesives) that are sold or supplied by the manufacturer or supplier in containers with a net volume of 16 fluid ounces or less, or a net weight of one pound or less; and

6. Contact adhesives that are sold or supplied by the manufacturer or supplier in containers with a net volume of one gallon or less.

C. The provisions of this article do not apply to the use of adhesives, sealants, adhesive primers, sealant primers, surface preparation and cleanup solvents as follows:

1. Tire repair operations, provided the label of the adhesive states "For tire repair only";

2. Assembly, repair and manufacturing operations for aerospace or undersea-based weapon systems;

3. Medical equipment manufacturing operations; and

4. Plaque laminating operations in which adhesives are used to bond clear, polyester acetate laminate to wood with lamination equipment installed prior to July 1, 1992. Any owner or other person claiming exemption pursuant to this subdivision shall record and maintain monthly operational records sufficient to demonstrate compliance with this exemption in accordance with 9VAC5-45-730 of this article.

D. Except for the requirements listed in subdivisions 1 and 2 of this subsection, the provisions of this article do not apply if the total VOC emissions from all adhesives, sealants, adhesive primers and sealant primers used at the stationary source are less than 200 pounds per calendar year, or an equivalent volume.

1. The following requirements still apply:

a. 9VAC5-45-620 (Applicability);

b. 9VAC5-45-650 A (concerning prohibition from selling, supplying, offering for sale, or manufacturing for sale, noncompliant adhesives, sealants, adhesive primers or sealant primers);

c. 9VAC5-45-690 (Compliance); and

d. 9VAC5-45-700 (Compliance schedules).

2. Any owner or other person claiming exemption pursuant to this subsection shall record and maintain monthly operational records sufficient to demonstrate compliance and in accordance with 9VAC5-45-730 of this article.

E. The provisions of 9VAC5-45-650 B and 9VAC5-45-650 D do not apply to the use of any adhesives, sealants, adhesive primers, sealant primers, cleanup solvents and surface preparation solvents, provided that the total volume of noncompliant adhesives, sealants, primers, cleanup and surface preparation solvents applied facility-wide does not exceed 55 gallons per calendar year. Any owner or other person claiming exemption pursuant to this subsection shall record and maintain monthly operational records sufficient to demonstrate compliance with this exemption in accordance with 9VAC5-45-730.

F. The provisions of 9VAC5-45-650 A do not apply to the sale of any adhesive, sealant, adhesive primer or sealant primer to an owner or other person using add-on air pollution control equipment pursuant to the provisions of 9VAC5-45-660 to comply with the requirements of this article, provided that the seller makes and keeps records in accordance with 9VAC5-45-730 E.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-640 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms Defined.

"Acrylonitrile-butadiene-styrene or ABS welding adhesive" means any adhesive intended by the manufacturer to weld acrylonitrile-butadiene-styrene pipe, which is made by reacting monomers of acrylonitrile, butadiene and styrene.

"Adhesive" means any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

"Adhesive primer" means any product intended by the manufacturer for application to a substrate, prior to the application of an adhesive, to provide a bonding surface.

"Aerosol adhesive" means an adhesive packaged as an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for handheld application without the need for ancillary hoses or spray equipment.

"Aerospace component" means for the purposes of this article, the fabricated part, assembly of parts or completed unit of any aircraft, helicopter, missile, or space vehicle, including passenger safety equipment.

"Architectural sealant or primer" means any sealant or sealant primer intended by the manufacturer to be applied to stationary structures, including mobile homes, and their appurtenances. Appurtenances to an architectural structure include, but are not limited to, hand railings, cabinets, bathroom and kitchen fixtures, fences, rain gutters and downspouts, and windows.

"ASTM" means the American Society for Testing and Materials.

"Automotive glass adhesive primer" means an adhesive primer labeled by the manufacturer to be applied to automotive glass prior to installation of the glass using an adhesive/sealant. This primer improves the adhesion to pinch weld and blocks ultraviolet light.

"CARB" means the California Air Resources Board.

"Ceramic tile installation adhesive" means any adhesive intended by the manufacturer for use in the installation of ceramic tiles.

"Chlorinated polyvinyl chloride plastic" or "CPVC plastic" means a polymer of the vinyl chloride monomer that contains 67% chlorine and is normally identified with a CPVC marking.

"Chlorinated polyvinyl chloride welding adhesive" or "CPVC welding adhesive" means an adhesive labeled for welding of chlorinated polyvinyl chloride plastic.

"Cleanup solvent" means a VOC-containing material used to remove a loosely held uncured (i.e., not dry to the touch) adhesive or sealant from a substrate, or clean equipment used in applying a material.

"Computer diskette jacket manufacturing adhesive" means any adhesive intended by the manufacturer to glue the fold-over flaps to the body of a vinyl computer diskette jacket.

"Contact bond adhesive" means an adhesive that: (i) is designed for application to both surfaces to be bonded together, (ii) is allowed to dry before the two surfaces are placed in contact with each other, (iii) forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other, and (iv) does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces. Contact bond adhesive does not include rubber cements that are primarily intended for use on paper substrates. Contact bond adhesive also does not include vulcanizing fluids that are designed and labeled for tire repair only.

"Cove base" means a flooring trim unit, generally made of vinyl or rubber, having a concave radius on one edge and a convex radius on the opposite edge that is used in forming a junction between the bottom wall course and the floor or to form an inside corner.

"Cove base installation adhesive" means any adhesive intended by the manufacturer to be used for the installation of cove base or wall base on a wall or vertical surface at floor level.

"Cyanoacrylate adhesive" means any adhesive with a cyanoacrylate content of at least 95% by weight.

"Dry wall installation" means the installation of gypsum dry wall to studs or solid surfaces using an adhesive formulated for that purpose.

"Fiberglass" means a material consisting of extremely fine glass fibers.

"Flexible vinyl" means nonrigid polyvinyl chloride plastic with at least 5.0% by weight plasticizer content.

"Indoor floor covering installation adhesive" means any adhesive intended by the manufacturer for use in the installation of wood flooring, carpet, resilient tile, vinyl tile, vinyl backed carpet, resilient sheet and roll, or artificial grass. Adhesives used to install ceramic tile and perimeter bonded sheet flooring with vinyl backing onto a nonporous substrate, such as flexible vinyl, are excluded from this category.

"Laminate" means a product made by bonding together two or more layers of material.

"Low-solids adhesive, sealant or primer" means any product that contains 120 grams or less of solids per liter of material.

"Marine deck sealant" or "marine deck sealant primer" means any sealant or sealant primer labeled for application to wooden marine decks.

"Medical equipment manufacturing" means the manufacture of medical devices, such as, but not limited to, catheters, heart valves, blood cardioplegia machines, tracheostomy tubes, blood oxygenators, and cardiatory reservoirs.

"Metal to urethane/rubber molding or casting adhesive" means any adhesive intended by the manufacturer to bond metal to high density or elastomeric urethane or molded rubber materials, in heater molding or casting processes, to fabricate products such as rollers for computer printers or other paper handling equipment.

"Multipurpose construction adhesive" means any adhesive intended by the manufacturer for use in the installation or repair of various construction materials, including but not limited to, drywall, subfloor, panel, fiberglass reinforced plastic (FRP), ceiling tile, and acoustical tile.

"Nonmembrane roof installation/repair adhesive" means any adhesive intended by the manufacturer for use in the installation or repair of nonmembrane roofs and that is not intended for the installation of prefabricated single-ply flexible roofing membrane, including, but not limited to, plastic or asphalt roof cement, asphalt roof coating, and cold application cement.

"Outdoor floor covering installation adhesive" means any adhesive intended by the manufacturer for use in the installation of floor covering that is not in an enclosure and that is exposed to ambient weather conditions during normal use.

"Ozone season" means the period beginning May 1 of a calendar year and ending on September 30 of the same year, inclusive.

"Panel installation" means the installation of plywood, predecorated hardboard (or tileboard), fiberglass reinforced plastic, and similar predecorated or nondecorated panels to studs or solid surfaces using an adhesive formulated for that purpose.

"Perimeter bonded sheet flooring installation" means the installation of sheet flooring with vinyl backing onto a nonporous substrate using an adhesive designed to be applied only to a strip of up to four inches wide around the perimeter of the sheet flooring.

"Plastic cement welding adhesive" means any adhesive intended by the manufacturer for use to dissolve the surface of plastic to form a bond between mating surfaces.

"Plastic cement welding adhesive primer" means any primer intended by the manufacturer for use to prepare plastic substrates prior to bonding or welding.

"Plastic foam" means foam constructed of plastics.

"Plasticizer" means a material, such as a high boiling point organic solvent, that is incorporated into a vinyl to increase its flexibility, workability, or distensibility.

"Plastics" means synthetic materials chemically formed by the polymerization of organic (carbon-based) substances. Plastics are usually compounded with modifiers, extenders, and/or reinforcers and are capable of being molded, extruded, cast into various shapes and films or drawn into filaments.

"Polyvinyl chloride plastic" or "PVC plastic" means a polymer of the chlorinated vinyl monomer that contains 57% chlorine.

"Polyvinyl chloride welding adhesive" or "PVC welding adhesive" means any adhesive intended by the manufacturer for use in the welding of PVC plastic pipe.

"Porous material" means a substance that has tiny openings, often microscopic, in which fluids may be absorbed or discharged, including, but not limited to, wood, paper, and corrugated paperboard.

"Propellant" means a fluid under pressure that expels the contents of a container when a valve is opened.

"Reactive diluent" means a liquid that is a reactive organic compound during application and one in that, through chemical and/or physical reactions, such as polymerization, 20% or more of the reactive organic compound becomes an integral part of a finished material.

"Roadway sealant" means any sealant intended by the manufacturer for application to public streets, highways and other surfaces including, but not limited to, curbs, berms, driveways, and parking lots.

"Rubber" means any natural or manmade rubber substrate, including but not limited to, styrene-butadiene rubber, polychloroprene (neoprene), butyl rubber, nitrile rubber, chlorosulfonated polyethylene and ethylene propylene diene terpolymer.

"SCAQMD" means the South Coast Air Quality Management District, a part of the California Air Resources Board, which is responsible for the regulation of air quality in the state of California.

"Sealant" means any material with adhesive properties that is formulated primarily to fill, seal, waterproof or weatherproof gaps or joints between two surfaces. Sealants include sealant primers and caulks.

"Sealant primer" means any product intended by the manufacturer for application to a substrate, prior to the application of a sealant, to enhance the bonding surface.

"Sheet-applied rubber installation" means the process of applying sheet rubber liners by hand to metal or plastic substrates to protect the underlying substrate from corrosion or abrasion. These operations also include laminating sheet rubber to fabric by hand.

"Single-ply roof membrane" means a prefabricated single sheet of rubber, normally ethylene propylene diene terpolymer, that is field applied to a building roof using one layer of membrane material.

"Single-ply roof membrane installation and repair adhesive" means any adhesive labeled for use in the installation or repair of single-ply roof membrane. Installation includes, as a minimum, attaching the edge of the membrane to the edge of the roof and applying flashings to vents, pipes and ducts that protrude through the membrane. Repair includes gluing the edges of torn membrane together, attaching a patch over a hole and reapplying flashings to vents, pipes or ducts installed through the membrane.

"Single-ply roof membrane adhesive primer" means any primer labeled for use to clean and promote adhesion of the single-ply roof membrane seams or splices prior to bonding.

"Single-ply roof membrane sealant" means any sealant labeled for application to single-ply roof membrane.

"Solvent" means organic compounds that are used as diluents, thinners, dissolvers, viscosity reducers, cleaning agents or other related uses.

"Structural glazing adhesive" means any adhesive intended by the manufacturer to apply glass, ceramic, metal, stone or composite panels to exterior building frames.

"Subfloor installation" means the installation of subflooring material over floor joists, including the construction of any load bearing joists. Subflooring is covered by a finish surface material.

"Surface preparation solvent" means a solvent used to remove dirt, oil and other contaminants from a substrate prior to the application of a primer, adhesive or sealant.

"Thin metal laminating adhesive" means any adhesive intended by the manufacturer for use in bonding multiple layers of metal to metal or metal to plastic in the production of electronic or magnetic components in which the thickness of the bond line is less than 0.25 mils.

"Tire repair" means a process that includes expanding a hole, tear, fissure or blemish in a tire casing by grinding or gouging, applying adhesive, and filling the hole or crevice with rubber.

"Tire tread adhesive" means any adhesive intended by the manufacturer for application to the back of precure tread rubber and to the casing and cushion rubber. Tire tread adhesive may also be used to seal buffed tire casings to prevent oxidation while the tire is being prepared for a new tread.

"Traffic marking tape" means preformed reflective film intended by the manufacturer for application to public streets, highways and other surfaces, including but not limited to curbs, berms, driveways, and parking lots.

"Traffic marking tape adhesive primer" means any primer intended by the manufacturer for application to surfaces prior to installation of traffic marking tape.

"Undersea-based weapons systems components" means the fabrication of parts, assembly of parts or completed units of any portion of a missile launching system used on undersea ships.

"Volatile organic compound" or "VOC" means volatile organic compound as defined in 9VAC5-10-20.

"Waterproof resorcinol glue" means a two-part resorcinol-resin-based adhesive designed for applications where the bond line must be resistant to conditions of continuous immersion in fresh or salt water.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-650 Standard for volatile organic compounds

A. Except as provided in 9VAC5-45-630 and subsection H of this section, no owner or other person shall (i) sell, supply or offer for sale any adhesive, sealant, adhesive primer, or sealant primer manufactured on or after the applicable compliance date specified in 9VAC5-45-700, or (ii) manufacture for sale any adhesive, sealant, adhesive primer, or sealant primer on or after the date specified in 9VAC5-45-700, which contains volatile organic compounds in excess of the limits specified in Table 45-6A.

| Table 45-6A VOC Content Limits for Adhesives, Sealants, Adhesive Primers, Sealant Primers and Adhesives Applied to Particular Substrates | | | --- | --- | | Adhesive, sealant, adhesive primer or sealant primer category | VOC content limit (grams VOC per liter*) | | Adhesives | | | ABS welding | 400 | | Ceramic tile installation | 130 | | Computer diskette jacket manufacturing | 850 | | Contact bond | 250 | | Cove base installation | 150 | | CPVC welding | 490 | | Indoor floor covering installation | 150 | | Metal to urethane/rubber molding or casting | 850 | | Multipurpose construction | 200 | | Nonmembrane roof installation/repair | 300 | | Other plastic cement welding | 510 | | Outdoor floor covering installation | 250 | | PVC welding | 510 | | Single-ply roof membrane installation/repair | 250 | | Structural glazing | 100 | | Thin metal laminating | 780 | | Tire retread | 100 | | Perimeter bonded sheet vinyl flooring installation | 660 | | Waterproof resorcinol glue | 170 | | Sheet-applied rubber installation | 850 | | Sealants | | | Architectural | 250 | | Marine deck | 760 | | Nonmembrane roof installation/repair | 300 | | Roadway | 250 | | Single-ply roof membrane | 450 | | Other | 420 | | Adhesive Primers | | | Automotive glass | 700 | | Plastic cement welding | 650 | | Single-ply roof membrane | 250 | | Traffic marking tape | 150 | | Other | 250 | | Sealant Primers | | | Non-porous architectural | 250 | | Porous architectural | 775 | | Marine deck | 760 | | Other | 750 | | Adhesives Applied to the Listed Substrate | | | Flexible vinyl | 250 | | Fiberglass | 200 | | Metal | 30 | | Porous material | 120 | | Rubber | 250 | | Other substrates | 250 | | *The VOC content is determined using the weight of volatile compounds, less water and exempt compounds, as specified in 9VAC5-45-710 of this article. | |

B. Except as provided in 9VAC5-45-630 B through E, in subsection G of this section, and in 9VAC5-45-660, no person shall use, or apply for compensation, any adhesive, sealant, adhesive primer or sealant primer in excess of the applicable VOC content limits specified in Table 45-6A.

C. The VOC content limits in Table 45-6A for adhesives applied to particular substrates shall apply as follows.

1. If an owner or other person uses an adhesive or sealant subject to a specific VOC content limit for such adhesive or sealant in Table 45-6A, such specific limit is applicable rather than an adhesive-to-substrate limit.

2. If an adhesive is used to bond dissimilar substrates together, the applicable substrate category with the highest VOC content shall be the limit for such use.

D. No owner or other person shall use a surface preparation or cleanup solvent containing VOC unless:

1. The VOC content of the surface preparation solvent is less than 70 grams per liter, except as provided for single-ply roofing in subdivision 2 of this subsection;

2. The composite vapor pressure, excluding water and exempt compounds, of the surface preparation solvent used for applying single-ply roofing does not exceed 45 mm Hg at 20°C;

3. The composite vapor pressure of the solvent used for the removal of adhesives, sealants, or adhesive or sealant primers from surfaces other than spray application equipment is less than 45 mm Hg at 20°C, except as provided in subdivision 4 of this subsection; and

4. For the removal of adhesives, sealants, adhesive primers or sealant primers from parts of spray application equipment, the removal is performed as follows:

a. In an enclosed cleaning system, or equivalent cleaning system as determined by the test method identified in 9VAC5-45-710 I;

b. Using a solvent with a VOC content less than or equal to 70 grams of VOC per liter of material; or

c. Parts containing dried adhesive may be soaked in a solvent if (i) the composite vapor pressure of the solvent, excluding water and exempt compounds, is less than or equal to 9.5 mm Hg at 20°C, and (ii) the parts and solvent are in a closed container that remains closed except when adding parts to or removing parts from the container.

E. Any owner or other person using adhesives, sealants, adhesive primers, sealant primers, surface preparation or clean-up solvents subject to the provisions of this article shall store or dispose of all absorbent materials, such as cloth or paper, that are moistened with adhesives, sealants, primers or solvents subject to the provisions of this article, in nonabsorbent containers that shall be closed except when placing materials in or removing materials from the container.

F. No owner or other person shall solicit the use, require the use or specify the application of any adhesive, sealant, adhesive primer, sealant primer, surface preparation or clean-up solvent if such use or application results in a violation of the provisions of this article. This prohibition shall apply to all written or oral contracts under which any adhesive, sealant, adhesive primer, sealant primer, surface preparation or clean-up solvent subject to this article is to be used at any location within the areas designated in 9VAC5-45-620 C.

G. The standards for single-ply roof membrane installation and repair adhesive, single-ply roof membrane sealant, and single-ply roof membrane adhesive primer in Table 45-6A shall only apply as follows:

1. In the Northern Virginia and Fredericksburg VOC Emissions Control Areas: during the ozone seasons, or portions thereof, between August 1, 2010, and September 30, 2011, and on and after January 1, 2012; and

2. In the Richmond VOC Emissions Control Area: during the ozone season, or portion thereof, between March 1, 2014, and September 30, 2014, and after January 1, 2015.

H. The provisions of subsection A of this section and the provisions of 9VAC5-45-730 E do not apply to the sale, supply, offer for sale, or manufacture for sale of single-ply roof membrane installation and repair adhesive, single-ply roof membrane sealant, and single-ply roof membrane adhesive primer prior to January 1, 2012.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-660 Control technology guidelines

Any owner or other person using an adhesive, sealant, adhesive primer or sealant primer subject to this article may comply with the provisions of 9VAC5-45-650 B and D using add-on air pollution control equipment if such equipment meets the following requirements:

1. The VOC emissions from the use of all adhesives, sealants, adhesive primers, or sealant primers subject to this article are reduced by an overall capture and control efficiency of at least 85% by weight;

2. The combustion temperature is monitored continuously if a thermal incinerator is operated;

3. Inlet and exhaust gas temperatures are monitored continuously if a catalytic incinerator is operated;

4. Control device efficiency is monitored continuously if a carbon absorber or control device other than a thermal or catalytic incinerator is operated; and

5. Operation records sufficient to demonstrate compliance with the requirements of this section are maintained as required in 9VAC5-45-730 of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-670 Standard for visible emissions

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-680 Administrative requirements

Each manufacturer of an adhesive, sealant, adhesive primer, or sealant primer subject to the provisions of this article shall display the following information on the product container or label:

1. A statement of the manufacturer's recommendation regarding thinning, reducing, or mixing of the product, except that:

a. This requirement does not apply to the thinning of a product with water; and

b. If thinning of the product prior to use is not necessary, the recommendation must specify that the product is to be applied without thinning.

2. The maximum or the actual VOC content of the product as supplied, determined in accordance with 9VAC5-45-710, displayed in grams of VOC per liter of product.

3. The maximum or the actual VOC content of the product as applied (which includes the manufacturer's maximum recommendation for thinning), determined in accordance with 9VAC5-45-710, displayed in grams of VOC per liter of product.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-690 Compliance

The provisions of 9VAC5-45-20 (Compliance) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-700 Compliance schedules

Affected owners or other persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. August 1, 2010, in the Northern Virginia and Fredericksburg VOC Emissions Control Areas; or

2. March 1, 2014, in the Richmond VOC Emissions Control Area.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-710 Test methods and procedures

A. The provisions of 9VAC5-45-30 (Emission testing) apply.

B. Except as provided in subsections D, E and F of this section, the VOC and solids content of all nonaerosol adhesives, adhesive primers and cleanup solvents shall be determined using either Reference Method 24 or SCAQMD "Determination of Volatile Organic Compounds (VOC) In Various Materials" (see 9VAC5-20-21).

C. The organic content of exempt organic compounds shall be determined using ASTM "Standard Test Method for Determination of Dichloromethane and 1,1,1-Trichloroethane in Paints and Coatings by Direct Injection into a Gas Chromatograph" (see 9VAC5-20-21), as applicable.

D. The VOC content of any plastic welding cement adhesive or primer shall be determined using SCAQMD "Determination of Volatile Organic Compounds (VOC) in Materials Used for Pipes and Fittings" (see 9VAC5-20-21).

E. To determine if a diluent is a reactive diluent, the percentage of the reactive organic compound that becomes an integral part of the finished materials shall be determined using SCAQMD "Determination of Volatile Organic Compounds (VOC) in Materials Used for Pipes and Fittings" (see 9VAC5-20-21).

F. The composite vapor pressure of organic compounds in cleaning materials shall be determined by quantifying the amount of each compound in the blend using ASTM "Standard Practice for Packed Column Gas Chromatography" for organics and ASTM "Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph" for water content (see 9VAC5-20-21), as applicable, and the following equation:

where:

Pp_c = VOC composite partial pressure at 20ºC, in mm Hg.

W_i = Weight of the "i"th VOC compound, in grams, as determined by ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21).

W_w = Weight of water, in grams as determined by ASTM "Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph" (see 9VAC5-20-21).

W_e = Weight of the "i"th exempt compound, in grams, as determined by ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21).

Mw_i = Molecular weight of the "i"th VOC compound, in grams per g-mole, as given in chemical reference literature.

Mw_w = Molecular weight of water, 18 grams per g-mole.

Mw_e = Molecular weight of the "i"th exempt compound, in grams per g-mole, as given in chemical reference literature.

Vp_i = Vapor pressure of the "i"th VOC compound at 20ºC, in mm Hg, as determined by subsection G of this section.

G. The vapor pressure of each single component compound may be determined from ASTM "Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope " (see 9VAC5-20-21), from chemical reference literature or from additional sources acceptable to the board.

H. If air pollution control equipment is used to meet the requirements of 9VAC5-45-650, the owner or operator shall make the following determinations:

1. The measurement of capture efficiency shall be conducted and reported in accordance with the EPA Technical Document "Guidelines for Determining Capture Efficiency" (see 9VAC5-20-21).

2. The control efficiency shall be determined in accordance with Reference Methods 25, 25A, 25B or CARB Method 100 (see 9VAC5-20-21), as appropriate.

I. The active and passive solvent losses from spray gun cleaning systems shall be determined using SCAQMD's "General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems" (see 9VAC5-20-21). The test solvent for this determination shall be any lacquer thinner with a minimum vapor pressure of 105 mm of Hg at 20ºC, and the minimum test temperature shall be 15ºC.

J. For adhesives that do not contain reactive diluents, the VOC content of adhesive in grams per liter, less water and exempt compounds, shall be calculated according to the following equation:

where:

VOC = VOC content of adhesive, in grams per liter.

Ws = weight of volatile compounds, in grams.

Ww = weight of water, in grams.

We = weight of exempt compounds, in grams.

Vm = volume of material, in liters.

Vw = volume of water, in liters.

Ve = volume of exempt compounds, in liters.

K. For adhesives that contain reactive diluents, the VOC content of the adhesive is determined after curing. The VOC content of adhesive in grams per liter, less water and exempt compounds, shall be calculated according to the following equation:

where:

VOC = VOC content of adhesive, in grams per liter.

Wrs = weight of volatile compounds not consumed during curing, in grams.

Wrw = weight of water not consumed during curing, in grams.

Wre = weight of exempt compounds not consumed during curing, in grams.

Vrm = volume of material not consumed during curing, in liters.

Vrw = volume of water not consumed during curing, in liters.

Vre = volume of exempt compounds not consumed during curing, in liters.

L. The VOC content of materials, in grams per liter, shall be calculated according to the following equation:

where:

VOC = VOC content of materials, in grams per liter.

Ws = weight of volatile compounds, in grams.

Ww = weight of water, in grams.

We = weight of exempt compounds, in grams.

Vm = volume of material, in liters.

M. Percent VOC by weight shall be calculated according to the following equation:

where:

Wv = weight of VOC in grams.

W = weight of material in grams.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-720 Monitoring

The provisions of 9VAC5-45-40 (Monitoring) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-730 Notification, records and reporting

A. The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

B. Each owner or other person subject to this article shall maintain records demonstrating compliance with this article, including, but not limited to, the following information:

1. A list of each adhesive, sealant, adhesive primer, sealant primer cleanup solvent and surface preparation solvent in use or in storage;

2. A data sheet or material list that provides the material name, manufacturer identification, and material application for each product on the list;

3. Catalysts, reducers or other components used in each product on the list and the mix ratio;

4. The VOC content of each product on the list, as supplied;

5. The final VOC content or vapor pressure of each product on the list, as applied; and

6. The monthly volume of each adhesive, sealant, adhesive primer, sealant primer, cleanup or surface preparation solvent used.

C. Any owner or other person who complies with the provisions of 9VAC5-45-650 B through the use of add-on air pollution control equipment shall record the key operating parameters for the control equipment, including, but not limited to, the following information:

1. The volume used per day of each adhesive, sealant, adhesive primer, sealant primer, or solvent that is subject to a VOC content limit in Table 45-6A and that exceeds such limit;

2. On a daily basis, the combustion temperature, inlet and exhaust gas temperatures or control device efficiency, as appropriate, pursuant to 9VAC5-45-660;

3. Daily hours of operation; and

4. All maintenance performed including the date and type of maintenance.

D. For adhesives, sealants, adhesive primers and sealant primers subject to the laboratory testing exemption pursuant to 9VAC5-45-630 B 1 of this article, the person conducting the testing shall make and maintain records of all such materials used, including, but not limited to (i) the product name, (ii) the product category of the material or type of application, and (iii) the VOC content of each material.

E. Any owner or other person that is subject to the provisions of this article and who sells an adhesive, sealant, adhesive primer or sealant primer that is subject to the provisions of this article but does not comply with the VOC content limits in Table 45-6A, shall make and keep records as follows:

1. The name of, and contact information for, each owner or other person to whom such noncompliant product is sold, and

2. The amount of each such noncompliant product that is sold to that owner or other person per calendar year.

F. Any owner of other person claiming an exemption for plaque laminating equipment pursuant to 9VAC5-45-630 C 4 shall keep records sufficient to demonstrate that the exemption applies. Such records shall include, but are not limited to, (i) the installation date of the plaque laminating equipment, (ii) monthly records of the types of laminate and substrate used and the VOC content of each adhesive used by the equipment during the month, and (iii) certification by a responsible official of the company that there is no compliant adhesive available for this purpose.

G. All records made to determine compliance with the provisions of this article shall be maintained for three years from the date such record is created and shall be made available to the board within 90 days of a request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-740 Registration

The provisions of 9VAC5-20-160 (Registration) apply, except that the following provisions also apply:

1. Any owner or other person subject to the provisions of this article who complies with the provisions of 9VAC5-45-650 B through the use of add-on air pollution control equipment shall register such operations with the board and update such registration information.

2. The information required for registration shall be determined by the board and shall be provided in the manner specified by the board. Registration information shall include, but is not limited to, (i) contact information for the owner or other person (name, mailing address and phone number) and (ii) the type of add-on control equipment used to comply with the provisions of 9VAC5-45-650 B. All registration information and updates to such registration information submitted to the board are subject to the provisions of 9VAC5-20-230 (Certification of documents).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-750 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 7 Emission Standards For Asphalt Paving Operations

9VAC5-45-760 Applicability

Article 7 Emission Standards For Asphalt Paving Operations

A. The provisions of this article apply to any owner or other person who manufactures, mixes, stores, uses, or applies any liquefied asphalt for paving operations.

B. The provisions of this article apply only to owners and other persons in volatile organic compound emissions control areas designated in 9VAC5-20-206.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-770 Definitions

A. For the purpose of applying this article in the context of Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Asphalt" means a dark-brown to black cementitious material (solid, semisolid, or liquid in consistency) in which the predominating constituents are bitumens that occur in nature as such or that are obtained as residue in refining petroleum.

"Cutback asphalt" means asphalt cement that has been liquefied by blending with petroleum solvents (diluents). Upon exposure to atmospheric conditions the diluents evaporate, leaving the asphalt cement to perform its function.

"Emulsified asphalt" means an emulsion of asphalt cement and water that contains a small amount of an emulsifying agent; a heterogeneous system containing two normally immiscible phases (asphalt and water) in which the water forms the continuous phase of the emulsion, and minute globules of asphalt form the discontinuous phase.

"Paving operation" means the process of covering an area with stone, concrete, asphalt or other material in order to construct or maintain a firm, level surface for travel, access, or parking. Paving operations do not include the use of coatings to seal residential driveways.

"Penetrating prime coat" means an application of low-viscosity liquid asphalt to an absorbent surface. It is used to prepare an untreated base for an asphalt surface. The prime penetrates the base and fills the surface voids, hardens the top, and helps bind it to the overlying asphalt course. It also reduces the necessity of maintaining an untreated base course prior to placing the asphalt pavement.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-780 Standard for volatile organic compounds

A. No owner or other person shall cause or permit the manufacture, mixing, storage, use, or application of liquefied asphalt for paving operations unless such asphalt is of the emulsified asphalt type.

B. Regardless of the provisions of subsection A of this section, the manufacture, mixing, storage, use, or application of cutback asphalt is permitted under any of the following circumstances:

1. When stockpile storage greater than one month is necessary;

2. When use or application during the months of November through March is necessary;

3. When use or application as a penetrating prime coat or tack coat is necessary; or

4. When the user can demonstrate that there are no volatile organic compound emissions from the asphalt under conditions of normal use.

C. The provisions of subsection A of this section do not preclude the manufacture, mixing, storage, use, or application of heated asphalt cement as a component in asphaltic concrete mixing or for priming in surface treatment.

D. Notwithstanding the provisions of subsection A of this section, the manufacture, mixing, storage, use, or application of emulsified asphalt containing volatile organic compounds is permitted provided the annual average of volatile organic compound content for all emulsified asphalts used does not exceed 6.0% of volatile organic compounds by volume.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-790 Standard for visible emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-800 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-810 Standard for odor

The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-820 Compliance

The provisions of 9VAC5-45-20 (Compliance) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-830 Test methods and procedures

The provisions of 9VAC5-45-30 (Emission testing) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-840 Monitoring

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-850 Notification, records and reporting

The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Chapter 50 New and Modified Stationary Sources

Part I Special Provisions

9VAC5-50-10 Applicability

A. The provisions of this chapter, unless specified otherwise, shall apply to new and modified sources.

B. The provisions of this chapter shall apply to sources specified below except as provided in 9VAC5-40-10 B:

1. Any stationary source (or portion of it), the construction, modification or relocation of which commenced on or after March 17, 1972.

2. Any stationary source (or portion of it), the reconstruction of which commenced on or after December 10, 1976.

C. If a facility becomes subject to any requirement in the Regulations for the Control and Abatement of Air Pollution because it exceeds an exemption level, the facility shall continue to be subject to all applicable requirements even if future conditions cause the facility to fall below the exemption level.

D. The provisions of 9VAC5-40, unless specified otherwise, shall apply to new and modified sources to the extent that those provisions thereof are more restrictive than the provisions of this chapter, 9VAC5-80, or any permit issued pursuant to 9VAC5-80.

E. For sources subject to the applicable subparts listed in 9VAC5-50-410, the provisions of 40 CFR 60.7, 40 CFR 60.8, 40 CFR 60.11 and 40 CFR 60.13 shall be implemented through this part. In cases where there are differences between the provisions of this part and the provisions of 40 CFR Part 60, the more restrictive provisions shall apply.

F. Any owner subject to the provisions of this chapter may provide any report, notification or other document by electronic media if acceptable to both the owner and board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-01, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002; Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-50-20 Compliance

A. Sixty days after achieving the maximum production rate, but not later than 180 days after initial startup, no owner or other person shall operate any new or modified source in violation of any standard of performance prescribed under this chapter.

1. Compliance with standards in this chapter, other than opacity standards, shall be determined by performance tests established by 9VAC5-50-30, unless specified otherwise in the applicable standard.

2. Compliance with federal requirements in this chapter may be determined by alternative or equivalent methods only if approved by the administrator. For purposes of this subsection, federal requirements consist of the following:

a. New source performance standards established pursuant to § 111 of the federal Clean Air Act.

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

c. Limitations and conditions that are part of an implementation plan.

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

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

f. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

3. Compliance with opacity standards in this chapter may be determined by one or more of the following means:

a. Conducting observations in accordance with Reference Method 9 or any alternative method approved by EPA, if specified in the permit granted pursuant to 9VAC5 Chapter 80 (9VAC5-80). For purposes of determining initial compliance, the minimum total time of observations shall be three hours (30 six-minute averages) for the performance test or other set of observations (meaning those fugitive-type emission sources subject only to an opacity standard). Opacity readings of portions of plumes which contain condensed, uncombined water vapor shall not be used for purposes of determining compliance with opacity standards.

b. Evaluation of data resulting from use of continuous monitoring by transmissometer, provided the instrument used meets Performance Specification 1 in Appendix B of 40 CFR Part 60 and has been properly maintained and that the resulting data have not been altered in any way.

c. Use of any other method approved by EPA.

4. The opacity standards prescribed under this chapter shall apply at all times except during periods of startup, shutdown, malfunction and as otherwise provided in the applicable standard.

5. Variation from a specified standard may be granted by the board for a definite period for testing and adjustment.

B. No owner of a new or modified source subject to the provisions of this chapter shall fail to conduct performance tests as required under this chapter.

C. No owner of a new or modified source subject to the provisions of this chapter shall fail to install, calibrate, maintain and operate equipment for continuously monitoring and recording emissions or process parameters or both as required under this chapter.

D. No owner of a new or modified source subject to the provisions of this chapter shall fail to provide notifications and reports, revise reports, maintain records or report performance test or monitoring results as required under this chapter.

E. At all times, including periods of startup, shutdown, soot blowing and malfunction, owners shall, to the extent practicable, maintain and operate any affected facility including associated air pollution control equipment in a manner consistent with air pollution control practices for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the board, which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the source.

F. At all times the disposal of volatile organic compounds shall be accomplished by taking measures, to the extent practicable, consistent with air pollution control practices for minimizing emissions. Volatile organic compounds shall not be intentionally spilled, discarded in sewers which are not connected to a treatment plant, or stored in open containers or handled in any other manner that would result in evaporation beyond that consistent with air pollution control practices for minimizing emissions.

G. The following provisions apply with respect to compliance with opacity standards.

1. For the purpose of demonstrating initial compliance, opacity observations shall be conducted concurrently with the initial performance test unless one of the following conditions apply.

a. If no performance test is required, then opacity observations shall be conducted within 60 days after achieving the maximum production rate at which the affected facility will be operated but no later than 180 days after initial startup of the facility.

b. If visibility or other conditions prevent the opacity observations from being conducted concurrently with the initial performance test, the owner shall reschedule the opacity observations as soon after the initial performance test as possible, but not later than 30 days thereafter, and shall advise the board of the rescheduled date. In these cases, the 30-day prior notification to the board required by 9VAC5-50-50 A 6 shall be waived. The rescheduled opacity observations shall be conducted (to the extent possible) under the same operating conditions that existed during the initial performance test. The visible emissions observer shall determine whether visibility or other conditions prevent the opacity observations from being made concurrently with the initial performance test in accordance with procedures contained in Reference Method 9.

Opacity readings of portions of plumes which contain condensed, uncombined water vapor shall not be used for purposes of determining compliance with opacity standards. The owner of an affected facility shall make available, upon request by the board, such records as may be necessary to determine the conditions under which the visual observations were made and shall provide evidence indicating proof of current visible observer emission certification. The results of continuous monitoring by transmissometer which indicate that the opacity at the time visual observations were made was not in excess of the standard are probative but not conclusive evidence of the actual opacity of an emission, provided the source meets the burden of proving that the instrument used meets (at the time of the alleged violation) Performance Specification 1 in Appendix B of 40 CFR Part 60 and has been properly maintained and (at the time of the alleged violation) that the resulting data have not been altered in any way.

2. Except as provided in subdivision 3 of this subsection, the owner of an affected facility to which an opacity standard in this chapter applies shall conduct opacity observations in accordance with subdivision A 3 of this section, shall record the opacity of emissions, and shall report to the board the opacity results along with the results of the initial performance test. The inability of an owner to secure a visible emissions observer shall not be considered a reason for not conducting the opacity observations concurrent with the initial performance test.

3. The owner of an affected facility to which an opacity standard in this chapter applies may request the board to determine and to record the opacity of emissions from the affected facility during the initial performance test and at such times as may be required. The owner of the affected facility shall report the opacity results. Any request to the board to determine and to record the opacity of emissions from an affected facility shall be included in the notification required in 9VAC5-50-50 A 6. If, for some reason, the board cannot determine and record the opacity of emissions from the affected facility during the performance test, then the provisions of subdivision 1 of this subsection shall apply.

4. An owner of an affected facility using a continuous opacity monitor (transmissometer) shall record the monitoring data produced during the initial performance test and shall furnish the board a written report of the monitoring results along with the Reference Method 9 and initial performance test results.

H. The following provisions apply with respect to stack heights.

1. The degree of emission limitation required of any source owner for control of any air pollutant shall not be affected in any manner by:

a. So much of the stack height of any source as exceeds good engineering practice; or

b. Any other dispersion technique.

2. The provisions of subdivision 1 of this subsection shall not apply to:

a. Stack heights in existence, or dispersion techniques implemented on or before December 31, 1970, except where pollutants are being emitted from such stacks or using such dispersion techniques by sources, as defined in § 111(a)(3) of the federal Clean Air Act, which were constructed, or reconstructed, or for which major modifications, as defined in Article 8 (9VAC5-80-1700 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5 Chapter 80, were carried out after December 31, 1970; or

b. Coal-fired steam electric generating units subject to the provisions of § 118 of the federal Clean Air Act, which commenced operation before July 1, 1957, and whose stacks were constructed under a construction contract awarded before February 8, 1974.

3. Prior to the adoption of a new or revised emission limitation that is based on a good engineering practice stack height that exceeds the height allowed by subdivision 1 or 2 of the GEP definition, the board shall notify the public of the availability of the demonstration study and shall provide opportunity for public hearing on it.

4. For purposes of this subsection, such height shall not exceed the height allowed by subdivision 1 or 2 of the GEP definition unless the owner demonstrates to the satisfaction of the board, after 30 days notice to the public and opportunity for public hearing, that a greater height is necessary as provided under subdivision 3 of the GEP definition.

5. In no event may the board prohibit any increase in any stack height or restrict in any manner the maximum stack height of any source.

6. Compliance with standards of performance in this chapter shall not be affected in any manner by the stack height of any source or any other dispersion technique.

I. For the purpose of submitting compliance certifications or establishing whether or not a person has violated or is in violation of any standard in this chapter, nothing in this chapter shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed.

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

History

• Historical Notes: Derived from VR120-05-02, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002; Volume 24, Issue 5, eff. December 12, 2007.

9VAC5-50-30 Performance testing

A. Performance tests for new or modified sources shall be conducted and reported and data shall be reduced as set forth in this chapter and the test methods and procedures contained in each applicable subpart listed in 9VAC5-50-410 unless the board (i) specifies or approves, in specific cases, the use of a reference method with minor changes in methodology; (ii) approves the use of an equivalent method; (iii) approves the use of an alternative method the results of which the board has determined to be adequate for indicating whether a specific source is in compliance; (iv) waives the requirement for performance tests because the owner of a source has demonstrated by other means to the board's satisfaction that the affected facility is in compliance with the standard; or (v) approves shorter sampling times and smaller sample volumes when necessitated by process variables or other factors. Any new or modified source, for which no standards of performance are set forth in Article 5 (9VAC5-50-400 et seq.) of this part, shall be performance tested by appropriate reference methods unless the board (i) specifies or approves, in specific cases, the use of a reference method with minor changes in methodology; (ii) approves the use of an equivalent method; (iii) approves the use of an alternative method the results of which the board has determined to be adequate for indicating whether a specific source is in compliance; (iv) waives the requirement for performance tests because the owner of a source has demonstrated by other means to the board's satisfaction that the affected facility is in compliance with the standard; or (v) approves shorter sampling times and smaller sample volumes when necessitated by process variables or other factors. In cases where no appropriate reference method exists for a new or modified source subject to a standard of performance for volatile organic compounds, the test methods in 9VAC5-20-121 may be considered appropriate.

B. Performance testing for new or modified sources shall be subject to testing guidelines approved by the board. Procedures may be adjusted or changed by the board to suit specific sampling conditions or needs based upon good practice, judgment and experience. When such tests are adjusted, consideration shall be given to the effect of such change on established standards. Tests shall be performed under the direction of persons whose qualifications are acceptable to the board.

C. Performance tests for new or modified sources shall be conducted under conditions which the board shall specify to the owner based on representative performance of the source. The owner shall make available to the board such records as may be necessary to determine the conditions of the performance tests. Operation during periods of startup, shutdown and malfunction shall not constitute representative conditions for the purpose of a performance test. During the initial performance test, emissions in excess of the level of the applicable emission limit during periods of startup, shutdown, and malfunction shall not be considered a violation of the applicable emission limit unless otherwise specified in the applicable standard.

D. An owner may request that the board determine the opacity of emissions from a new or modified source during the performance tests required by this section.

E. Unless specified otherwise in the applicable standard, each performance test for a new or modified source shall consist of three separate runs using the applicable test method. Each run shall be conducted for the time and under the conditions specified in the applicable standard. For the purpose of determining compliance with an applicable standard the arithmetic mean of the results of the three runs shall apply. In the event that a sample is accidentally lost or if conditions occur in which one of the three runs must be discontinued because of forced shutdown, failure of an irreplaceable portion of the sample train, extreme meteorological conditions or other circumstances beyond the owner's control, compliance may, upon the approval of the board, be determined using the arithmetic mean of the results of the two other runs.

F. The board may test emissions of air pollutants from any new or modified source. Upon request of the board the owner shall provide, or cause to be provided, performance testing facilities as follows:

1. Sampling ports adequate for test methods applicable to such source. This includes (i) constructing the air pollution control system such that volumetric flow rates and pollutant emission rates can be accurately determined by applicable test methods and procedures and (ii) providing a stack or duct with acceptable flow characteristics during performance tests, as demonstrated by applicable test methods and procedures.

2. Safe sampling platforms.

3. Safe access to sampling platforms.

4. Utilities for sampling and testing equipment.

G. Upon request of the board, the owner of any new or modified source subject to the provisions of this chapter shall conduct performance tests in accordance with procedures approved by the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-03, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002.

9VAC5-50-40 Monitoring

A. Unless otherwise approved by the board or specified in applicable subparts listed in 9VAC5-50-410, the requirements of this section shall apply to all continuous monitoring systems required for affected facilities in accordance with applicable subparts listed in 9VAC5-50-410. However, nothing in this chapter shall exempt any owner from complying with subsection F of this section.

B. All continuous monitoring systems and monitoring devices shall be installed and operational prior to conducting performance tests under 9VAC5-50-30. Verification of operational status shall, as a minimum, include completion of the manufacturer's written requirements or recommendations for installation, operation and calibration of the device.

C. During any performance tests required under 9VAC5-50-30 or within 30 days thereafter and at such other times as may be requested by the board, the owner of any affected facility shall conduct continuous monitoring system performance evaluations and furnish the board within 60 days of them two or, upon request, more copies of a written report of the results of such tests. These continuous monitoring system performance evaluations shall be conducted in accordance with the requirements and procedures contained in the applicable performance specification of Appendix B of 40 CFR Part 60.

D. Unless otherwise approved by the board, all continuous monitoring systems required by subsection A of this section shall be installed, calibrated, maintained and operated in accordance with applicable requirements in this section, 40 CFR 60.13 and the applicable subpart listed in 9VAC5-50-410.

E. After receipt and consideration of written application, the board may approve alternatives to any monitoring procedures or requirements of this chapter including, but not limited to, the following:

1. Alternative monitoring requirements when installation of a continuous monitoring system or monitoring device specified by this chapter would not provide accurate measurements due to liquid water or other interferences caused by substances within the effluent gases.

2. Alternative monitoring requirements when the affected facility is infrequently operated.

3. Alternative monitoring requirements to accommodate continuous monitoring systems that require additional measurements to correct for stack moisture conditions.

4. Alternative locations for installing continuous monitoring systems or monitoring devices when the owner can demonstrate that installation at alternate locations will enable accurate and representative measurements.

5. Alternative methods of converting pollutant concentration measurements to units of the applicable standards.

6. Alternative procedures for performing daily checks or zero and span drift that do not involve use of span gases or test cells.

7. Alternatives to the ASTM test methods or sampling procedures specified by any subpart listed in 9VAC5-50-410.

8. Alternative continuous monitoring systems that do not meet the design or performance requirements in Performance Specification 1 of Appendix B of 40 CFR Part 60, but adequately demonstrate a definite and consistent relationship between its measurements and the measurements of opacity by a system complying with the requirements in Performance Specification 1 of Appendix B of 40 CFR Part 60. The board may require that demonstration be performed for each affected facility.

9. Alternative monitoring requirements when the effluent from a single affected facility or the combined effluent from two or more affected facilities are released to the atmosphere through more than one point.

10. Alternative monitoring systems that meet the requirements of 40 CFR Part 75 (i) if a source is subject to 40 CFR Part 75 or (ii) if the board determines that the requirements of 40 CFR Part 75 are more appropriate for the source than the pertinent provisions of this chapter.

F. Upon request of the board, the owner of a new or modified source subject to the provisions of this chapter shall install, calibrate, maintain and operate equipment for continuously monitoring and recording emissions or process parameters or both in accordance with methods and procedures acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-04, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002.

9VAC5-50-50 Notification, records and reporting

A. Any owner of a new or modified source subject to the provisions of this chapter shall provide written notifications to the board of the following:

1. The date of commencement of construction, reconstruction or modification of a new or modified source postmarked or submitted electronically no later than 30 days after such date.

2. The anticipated date of initial startup of a new or modified source postmarked not more than 60 days nor less than 30 days prior to such date.

3. The actual date of initial startup of a new or modified source postmarked or submitted electronically within 15 days after such date.

4. The date of any performance test required by 9VAC5-80 and any other performance test the owner wishes the board to consider in determining compliance with a standard. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

5. The date upon which demonstration of the continuous monitoring system performance begins in accordance with 9VAC5-50-40 C. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

6. The anticipated date for conducting the opacity observations required by 9VAC5-50-20 G 1. The notification shall also include, if appropriate, a request for the board to provide a visible emissions reader during a performance test. The notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

B. Any owner of a new or modified source subject to the provisions of 9VAC5-50-40 A shall maintain records of the occurrence and duration of any startup, shutdown or malfunction in the operation of such source; any malfunction of the air pollution control equipment; or any periods during which a continuous monitoring system or monitoring device is inoperative.

C. Each owner required to install a continuous monitoring system (CMS) or monitoring device shall submit a written report of excess emissions (as defined in the applicable subpart in 9VAC5-50-410) and either a monitoring systems performance report or a summary report form, or both to the board semiannually, except when (i) more frequent reporting is specifically required by an applicable subpart listed in 9VAC5-50-410 or the CMS data are to be used directly for compliance determination, in which case quarterly reports shall be submitted or (ii) the board, on a case-by-case basis, determines that more frequent reporting is necessary to accurately assess the compliance status of the source. The summary report and form shall meet the requirements of 40 CFR 60.7(d). The frequency of reporting requirements may be reduced as provided in 40 CFR 60.7(e). All reports shall be postmarked or submitted electronically by the 30th day following the end of each calendar half (or quarter, as appropriate). Written reports of excess emissions shall include the following information:

1. The magnitude of excess emissions computed in accordance with 40 CFR 60.13(h), any conversion factors used, and the date and time of commencement and completion of each period of excess emissions. The process operating time during the reporting period.

2. Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the source. The nature and cause of any malfunction (if known), the corrective action taken or preventative measures adopted.

3. The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks and the nature of the system repairs or adjustments.

4. When no excess emissions have occurred or the continuous monitoring systems have not been inoperative, repaired or adjusted, such information shall be stated in the report.

D. Any owner of a new or modified source subject to the provisions of this chapter shall maintain a file of all measurements, including continuous monitoring system, monitoring device, and performance testing measurements; all continuous monitoring system performance evaluations; all continuous monitoring system or monitoring device calibration checks; adjustments and maintenance performed on these systems or devices; and all other information required by this chapter recorded in a permanent form suitable for inspection. The file shall be retained for at least two years (unless a longer period is specified in the applicable standard) following the date of such measurements, maintenance, reports and records.

E. Any data or information required by the Regulations for the Control and Abatement of Air Pollution, any permit or order of the board, or that the owner wishes the board to consider, to determine compliance with an emission standard shall be recorded or maintained in a timeframe consistent with the averaging period of the standard.

F. The owner of a stationary source shall keep records as necessary to determine its emissions. Any owner claiming that a facility is exempt from the provisions of the Regulations for the Control and Abatement of Air Pollution shall keep records to demonstrate its continued exempt status.

G. The owner of a new or modified source subject to any volatile organic compound emission standard for a coating operation or printing process shall maintain records in accordance with the applicable procedure in 9VAC5-20-121.

H. Upon request of the board, the owner of a new or modified source subject to the provisions of this chapter shall provide notifications and reports, maintain records or report performance test or monitoring results in a manner and form and using procedures acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-05, eff. July 1, 1991; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002; Volume 40, Issue 14, eff. April 11, 2024.

Article 1 Standards of Performance for Visible Emissions and Fugitive Dust/Emissions (Rule 5-1)

9VAC5-50-60 Applicability and designation of affected facility

Article 1 Standards of Performance for Visible Emissions and Fugitive Dust/Emissions (Rule 5-1)

A. Except as provided in subsection C of this section, the affected facilities to which the provisions of this article apply are the following:

1. Each source of visible emissions; and

2. Each source of fugitive dust/emissions.

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

C. The provisions of this article do not apply to any source type subject to the designated standards of performance in 9VAC5-50-410 or subject to the designated emission standards in 9VAC5-60-70, or both, provided these standards include a visible emission standard.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0101, eff. January 1, 1985.

9VAC5-50-70 Definitions

A. For the purpose of these regulations and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Fugitive dust" means particulate matter composed of soil or other materials of natural origin, or both. Fugitive dust may include emissions from haul roads, wind erosion of exposed surfaces and storage piles and other activities in which the material is either removed, stored, transported or redistributed.

"Fugitive emissions" means emissions which are generated by industrial or other activities and which do not pass through a stack, chimney, vent or other functionally equivalent opening, but which may escape from openings (such as windows, doors, ill-fitting closures or poorly maintained equipment) or material handling equipment.

"Opacity" means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background, expressed as a percentage.

"Six-minute period" means any one of the 10 equal parts of one hour or a one-hour period, as may be applicable.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0102, eff. January 1, 1985.

9VAC5-50-80 Standard for visible emissions

Unless specified otherwise in this part, on or after the date on which the performance test required to be conducted by 9VAC5-50-30 is completed, no owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any visible emissions which exhibit greater that 20% opacity, except for one six-minute period in any one hour of not more than 30% opacity. Failure to meet the requirements of this section because of the presence of water vapor shall not be a violation of this section.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0103, eff. January 1, 1985.

9VAC5-50-90 Standard for fugitive dust/emissions

During the construction, modification or operation phase of a stationary source or any other building, structure, facility or installation, no owner or other person shall cause or permit any materials or property to be handled, transported, stored, used, constructed, altered, repaired or demolished without taking reasonable precautions to prevent particulate matter from becoming airborne. Such reasonable precautions may include, but are not limited, to the following:

1. Used, where possible, of water or chemicals for control of dust in the demolition of existing buildings or structures, construction operations, the grading of roads or the clearing of land;

2. Application of asphalt, water, or suitable chemicals on dirt roads, materials stockpiles and other surfaces which may create airborne dust; the paving of roadways and the maintaining of them in a clean condition;

3. Installation and use of hoods, fans and fabric filters to enclose and vent the handling of dusty materials. Adequate containment methods shall be employed during sandblasting or other similar operations;

4. Open equipment for conveying or transporting materials likely to create objectionable air pollution when airborne shall be covered, or treated in an equally effective manner at all times when in motion; and

5. The prompt removal of spilled or tracked dirt or other materials from paved streets and of dried sediments resulting from soil erosion.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia and §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-05-0104, eff. January 1, 1985; amended, Virginia Register Volume 19, Issue 6, eff. February 1, 2003.

9VAC5-50-100 Monitoring

A. Unless otherwise approved by the board, all continuous monitoring systems required by this article shall be installed, calibrated, maintained and operated in accordance with applicable requirements in 9VAC5-50-40 and 9VAC5-40-41.

B. Each owner required to install a continuous monitoring system shall provide notifications and reports and maintain records and monitoring results in accordance with the requirements of 9VAC5-50-50.

C. In cases where the requirements of 9VAC5-50-40 and 9VAC5-40-41 are not appropriate for a particular source type, the owner shall comply with other procedures acceptable to the board.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0105, eff. January 1, 1985.

9VAC5-50-110 Test methods and procedures

The provisions of 9VAC5-50-20 A 2 apply to determine compliance with the standard prescribed in 9VAC5-50-80.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0106, eff. January 1, 1985.

9VAC5-50-120 Waivers

A. A waiver from the opacity emission limitation in 9VAC5-50-80 may be granted by the director, provided that a technical decision is reached that the plume opacity observations made in accordance with 9VAC5-50-20 A 2 and 9VAC5-50-110 are not representative of the pollutant loading of the plume.

B. Upon granting the above waiver, the director shall require one or more alternate source surveillance methods, which may include, but are not limited to, the following:

1. Requiring the owner to install, calibrate, maintain and operate systems for continuously monitoring and recording emissions of specified pollutants in accordance with 9VAC5-50-40 and 9VAC5-50-100;

2. Requiring the owner to conduct, at specified intervals, performance tests for measuring emissions of specified pollutants in accordance with 9VAC5-50-30; and

3. Establishing an opacity emission limitation for the facility based on a correlation between performance tests of visible and other specified pollutant emissions.

C. The waiver may be granted for an indefinite period of time; however, approval may be withdrawn by the director:

1. For failure to adhere to any terms or conditions of the waiver;

2. If the affected facility is found to be in violation of any applicable standard of performance; or

3. For failure to conduct or adhere to any alternate source surveillance method required for waiver approval.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia and §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act (40 CFR Parts 51 and 60).
• Historical Notes: Derived from VR120-05-0107, eff. January 1, 1985; amended, Virginia Register Volume 19, Issue 6, eff. February 1, 2003.

Article 2 Standards of Performance for Odorous Emissions (Rule 5-2)

9VAC5-50-130 Applicability and designation of affected facility

Article 2 Standards of Performance for Odorous Emissions (Rule 5-2)

A. Except as provided in subsection C of this section, the affected facility to which the provisions of this article apply is each facility that emits odor.

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

C. The provisions of this article do not apply to accidental or infrequent emissions of odors.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0201, eff. January 1, 1985.

9VAC5-50-140 Standard for odorous emissions

A. The owner shall use the best available control technology as approved by the board for the control of odorous emissions.

B. No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility and odorous emissions in excess of that resultant from using best available control technology, as reflected in any condition that may be placed upon the permit approval for the facility.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0203, eff. January 1, 1985.

9VAC5-50-150 Determination of violation

A. The determination of violation shall be made after a thorough review of all data or evidence relating to the situation which may be obtained by an investigation directed by the board. As a part of the investigation, the board, at its discretion, may hold a public hearing in accordance with 9VAC5-20-40 A 1 to hear complaints. The investigation may also include use of an odor panel survey or other methods approved by the board, or both.

B. If the discharge of odorous emissions is due to the failure of the owner or other person to meet any conditions of a permit issued under 9VAC5 Chapter 80 (9VAC5-80-10 et seq.), the board will automatically consider the emissions to be in violation of 9VAC5-50-140 and proceed accordingly.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0204, eff. January 1, 1985.

Article 3 Standards of Performance for Toxic Pollutants (Rule 5-3) [Repealed]

9VAC5-50-160 (Repealed.)

Article 3 Standards of Performance for Toxic Pollutants (Rule 5-3) [Repealed]

Historical Notes

Derived from VR120-05-0301, eff. October 15, 1991; repealed, Virginia Register Volume 18, Issue 14, eff. May 1, 2002.

Article 4 Standards of Performance for Stationary Sources (Rule 5-4)

9VAC5-50-240 Applicability and designation of affected facility

Article 4 Standards of Performance for Stationary Sources (Rule 5-4)

A. The affected facilities at stationary sources to which the provisions of this article apply are emissions units that are subject to the new source review program.

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

C. The provisions of this article apply to any regulated air pollutant except to the extent that it is regulated under 9VAC5-60 (Hazardous Air Pollutant Sources). However, the exemption provided by this subsection does not extend to other properties of the exempted pollutants that may require regulation under 9VAC5-40 (Existing Stationary Sources) or 9VAC5-50 (New and Modified Stationary Sources).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V) 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from VR120-05-0401, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 20, eff. September 1, 2002; Volume 29, Issue 3, eff. November 7, 2012.

9VAC5-50-250 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. Unless otherwise required by context, all terms not defined herein shall have the meanings given them in 9VAC5-80 (Permits for Stationary Sources), 9VAC5-10 (General Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Best available control technology" or "BACT" means, as used in 9VAC5-50-260, an emissions limitation (including a visible emission standard) based on the maximum degree of emission reduction for any pollutant which would be emitted from a new stationary source or project which the board, on a case-by-case basis, taking into account energy, environmental and economic impacts and other costs, determines is achievable for the new stationary source or project through the application of production processes or available methods, systems and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard in Article 5 (9VAC5-50-400 et seq.) of this part or Article 1 (9VAC5-60-60 et seq.) or Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources). If the board determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emission standard infeasible, a design, equipment, work practice, operational standard, or combination of them, may be prescribed instead of requiring the application of best available control technology. Such standard shall, to the degree possible, set forth the emission reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results. In determining best available control technology for stationary sources subject to Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources), consideration shall be given to the nature and amount of the emissions, emission control efficiencies achieved in the industry for the source type, total cost effectiveness, and where appropriate, the cost effectiveness of the incremental emissions reduction achieved between control alternatives.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from VR120-05-0402, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 20, eff. September 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 29, Issue 3, eff. November 7, 2012.

9VAC5-50-260 Standard for stationary sources

A. No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions in excess of emissions limitations representing best available control technology, as reflected in any term or condition that may be placed upon the minor NSR permit approval for the facility.

B. A new stationary source shall apply best available control technology for each regulated pollutant for which there would be an uncontrolled emission rate equal to or greater than the levels in 9VAC5-80-1105 C. For a new stationary source, a permit may be issued pursuant to Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources) containing such terms and conditions as may be necessary to implement a best available control technology determination for any regulated air pollutant that may be emitted from any affected emissions unit.

C. A project shall apply best available control technology for each regulated pollutant for which there would be an increase in the uncontrolled emission rate equal to or greater than the levels in 9VAC5-80-1105 D. This requirement applies to each affected emissions unit in the project. For a project, a permit may be issued pursuant to Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources) containing such terms and conditions as may be necessary to implement a best available control technology determination for any regulated air pollutant emitted, or that may be emitted, from any affected emissions unit.

D. For the phased construction of new stationary sources or projects, the BACT determination shall be reviewed and modified, as appropriate, at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the new stationary source or project. At such time, the owner of the applicable stationary source or project may be required to demonstrate the adequacy of any previous BACT determination for the affected emissions units.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V) 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from VR120-05-0403, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 20, eff. September 1, 2002; Volume 29, Issue 3, eff. November 7, 2012.

9VAC5-50-270 Standard for major stationary sources (nonattainment areas)

A. For major stationary sources located in nonattainment areas, no owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions in excess of that resultant from the lowest achievable emission rate, as reflected in any condition that may be placed upon the permit approval for the facility.

B. A major stationary source shall apply lowest achievable emission rate for each regulated NSR pollutant (as defined in 9VAC5-80-2010) that it would emit.

C. A major modification shall apply the lowest achievable emission rate to each new or modified emission unit which would increase the emissions of a regulated NSR pollutant.

D. In the case of a reconstruction, the determination of lowest achievable emission rate shall take into account any economic or technical limitations on compliance with applicable standards of performance (as specified in Article 5 (9VAC5-50-400 et seq.) of this chapter) which are inherent in the proposed replacements.

E. For phased construction projects, the determination of lowest achievable emission rate shall be reviewed, and modified as appropriate, at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the owner of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of lowest achievable emission rate for the source.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from VR120-05-0404, eff. January 1, 1985; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-50-280 Standard for major stationary sources (prevention of significant deterioration areas)

A. For major stationary sources located in prevention of significant deterioration areas, no owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions in excess of that resultant from using best available control technology, as reflected in any condition that may be placed upon the permit approval for the facility.

B. A major stationary source shall apply best available control technology for each regulated NSR pollutant (as defined in 9VAC5-80-1615) that it would have the potential to emit in significant amounts.

C. A major modification shall apply best available control technology for each regulated NSR pollutant for which it would result in a significant net emissions increase at the source. This requirement applies to each proposed emissions unit at which a net emissions increase in the pollutant would occur as a result of physical change or change in the method of operation in the unit.

D. For phased construction projects, the determination of best available control technology shall be reviewed, and modified as appropriate, at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the owner of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of best available control technology for the source.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from VR120-05-0405, eff. January 1, 1985; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-50-290 Standard for visible emissions

The provisions of Article 1 (9VAC5-50-60 et seq.) of this chapter (Standards of Performance for Visible Emissions and Fugitive Dust/Emissions, Rule 5-1) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0406, eff. January 1, 1985.

9VAC5-50-300 Standard for fugitive dust/emissions

The provisions of Article 1 (9VAC5-50-60 et seq.) of this chapter (Standards of Performance for Visible Emissions and Fugitive Dust/Emissions, Rule 5-1) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0407, eff. January 1, 1985.

9VAC5-50-310 Standard for odor

The provisions of Article 2 (9VAC5-50-130 et seq.) of this chapter (Emission Standards for Odorous Emissions, Rule 5-2) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0408, eff. January 1, 1985.

9VAC5-50-320 Standard for toxic pollutants

The provisions of Article 5 (9VAC5-60-300 et seq.) of 9VACChapter 60 (Emissions Standards for Toxic Pollutants from New and Modified Sources, Rule 6-5) apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0409, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 20, eff. September 1, 2002.

9VAC5-50-330 Compliance

A. The provisions of 9VAC5-50-20 (Compliance) apply.

B. Nothing in this rule is intended to relieve any owner or other person from complying with any applicable standards or requirements contained in this part or other parts.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0410, eff. January 1, 1985.

9VAC5-50-340 Test methods and procedures

The provisions of 9VAC5-50-30 (Emission Testing) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0411, eff. January 1, 1985.

9VAC5-50-350 Monitoring

The provisions of 9VAC5-50-40 (Monitoring) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0412, eff. January 1, 1985.

9VAC5-50-360 Notification, records and reporting

The provisions of 9VAC5-50-50 (Notification, Records and Reporting) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0413, eff. January 1, 1985.

9VAC5-50-370 Registration

The provisions of 9VAC5-20-160 (Registration) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0414, eff. January 1, 1985.

9VAC5-50-380 Facility and control equipment maintenance or malfunction

The provisions of 9VAC5-20-180 (Facility and Control Equipment Maintenance or Malfunction) apply.

History

• Statutory Authority: §§ 10.1-1307 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0415, eff. January 1, 1985.

9VAC5-50-390 Permits

A permit may be required prior to beginning any of the activities specified below if the provisions of this chapter and 9VAC5 Chapter 80 (9VAC5-80) apply. Owners contemplating such action should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.

1. Construction of a facility.

2. Reconstruction (replacement of more than half) of a facility.

3. Modification (any physical change to equipment) of a facility.

4. Relocation of a facility.

5. Reactivation (restart-up) of a facility.

6. Operation of a facility.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-05-0416, eff. January 1, 1985; amended, Virginia Register Volume 18, Issue 20, eff. September 1, 2002.

Article 5 Environmental Protection Agency Standards of Performance for New Stationary Sources (Rule 5‑5)

9VAC5-50-400 General

The U.S. Environmental Protection Agency Regulations on Standards of Performance for New Stationary Sources (NSPSs), as promulgated in 40 CFR Part 60 and designated in 9VAC5-50-410 are, unless indicated otherwise, incorporated by reference into the regulations of the board as amended by the word or phrase substitutions given in 9VAC5-50-420. The complete text of the subparts in 9VAC5-50-410 incorporated in this regulation by reference is contained in 40 CFR Part 60. The 40 CFR section numbers appearing under each subpart in 9VAC5-50-410 identify the specific provisions of the subpart incorporated by reference. The specific version of the provision adopted by reference shall be that contained in the CFR (2022) in effect July 1, 2022. In making reference to the Code of Federal Regulations, 40 CFR Part 60 means Part 60 of Title 40 of the Code of Federal Regulations; 40 CFR 60.1 means 60.1 in Part 60 of Title 40 of the Code of Federal Regulations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-05-0501, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 12, eff. April 1, 1999; Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 31, Issue 23, eff. August 12, 2015; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 13, eff. March 15, 2023.

9VAC5-50-405 Authority to implement and enforce standards as authorized by EPA

A. This article provides the legally enforceable mechanism to facilitate the Commonwealth's obligation to implement and enforce the federal NSPSs as state requirements.

B. The Commonwealth's delegated authority to implement and enforce the standards designated in 9VAC5-50-410 as authorized by EPA is identified in the documents specified in subdivisions 1 through 5 of this subsection. The Commonwealth's delegated authority extends only to the source categories and pollutants identified in the documents and is subject to the provisions, conditions, and limitations set forth in the following documents:

1. Letter from Daniel J. Snyder dated December 30, 1975.

2. Federal Register notice dated February 26, 1976 (41 FR 8416).

3. Letter from Thomas C. Voltaggio dated July 22, 1981.

4. Federal Register notice dated August 27, 1981 (46 FR 43300).

5. Letter from W. Ray Cunningham dated July 2, 1985.

C. In its delegation notices and letters, EPA automatically delegated to the Commonwealth the authority to implement and enforce future NSPS requirements if the Commonwealth legally adopted the requirements, informed EPA that it intended to enforce the standards in accordance with the terms of the delegation, and met other conditions. The latest letter that the Commonwealth submitted to obtain authority to implement and enforce additional requirements is available for examination as provided in subsection D of this section.

D. Copies of the documents cited in subsections B and C of this section may be examined by the public at the central office of the Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia between 8:30 a.m. and 4:30 p.m. of each business day.

E. The documents cited in subsection B of this section establish the terms of the delegation to the Commonwealth to implement and enforce the federal NSPSs as authorized by EPA. As such, the documents place requirements upon the Commonwealth, not the affected facilities; thus the documents are not being incorporated by reference into the regulations of the board but are being cited for information purposes only.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; and 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 16, eff. June 1, 2004; amended, Virginia Register Volume 34, Issue 13, eff. February 19, 2018.

9VAC5-50-410 Designated standards of performance

Subpart A - General Provisions.

40 CFR 60.1 through 40 CFR 60.3, 40 CFR 60.7, 40 CFR 60.8, 40 CFR 60.11 through 40 CFR 60.15, 40 CFR 60.18 through 40 CFR 60.19

(applicability, definitions, units and abbreviations, notification and recordkeeping, performance tests, compliance, circumvention, monitoring requirements, modification, reconstruction, general control device requirements, and general notification and reporting requirements)

Subpart B - Not applicable.

Subpart C - Not applicable.

Subpart Ca - Reserved.

Subpart Cb - Not applicable.

Subpart Cc - Not applicable.

Subpart Cd - Not applicable.

Subpart Ce - Not applicable.

Subpart D - Fossil Fuel-Fired Steam Generators.

40 CFR 60.40 through 40 CFR 60.46

(fossil fuel-fired steam generating units of more than 250 million Btu per hour heat input rate and fossil fuel-fired and wood residue-fired steam generating units capable of firing fossil fuel at a heat input rate of more than 250 million Btu per hour)

Subpart Da - Electric Utility Steam Generating Units.

40 CFR 60.40Da through 40 CFR 60.52Da

(electric utility steam generating units capable of combusting more than 250 million Btu per hour heat input of fossil fuel (either alone or in combination with any other fuel), and for which construction, reconstruction, or modification is commenced after September 18, 1978)

Subpart Db - Industrial-Commercial-Institutional Steam Generating Units.

40 CFR 60.40b through 40 CFR 60.49b

(industrial-commercial-institutional steam generating units which have a heat input capacity from combusted fuels of more than 100 million Btu per hour)

Subpart Dc - Small Industrial-Commercial-Institutional Steam Generating Units.

40 CFR 60.40c through 40 CFR 60.48c

(industrial-commercial-institutional steam generating units which have a heat input capacity of 100 million Btu per hour or less, but greater than or equal to 10 million Btu per hour)

Subpart E - Incinerators.

40 CFR 60.50 through 40 CFR 60.54

(incinerator units of more than 50 tons per day charging rate)

Subpart Ea - Municipal Waste Combustors for which Construction is Commenced after December 20, 1989, and on or before September 20, 1994.

40 CFR 60.50a through 40 CFR 60.59a

(municipal waste combustor units with a capacity greater than 250 tons per day of municipal-type solid waste or refuse-derived fuel)

Subpart Eb - Large Municipal Combustors for which Construction is Commenced after September 20, 1994, or for which Modification or Reconstruction is Commenced after June 19, 1996.

40 CFR 60.50b through 40 CFR 60.59b

(municipal waste combustor units with a capacity greater than 250 tons per day of municipal-type solid waste or refuse-derived fuel)

Subpart Ec - Hospital/Medical/Infectious Waste Incinerators for which Construction is Commenced after June 20, 1996.

40 CFR 60.50c through 40 CFR 60.58c

(hospital/medical/infectious waste incinerators that combust any amount of hospital waste and medical/infectious waste or both)

Subpart F - Portland Cement Plants.

40 CFR 60.60 through 40 CFR 60.66

(kilns, clinker coolers, raw mill systems, finish mill systems, raw mill dryers, raw material storage, clinker storage, finished product storage, conveyor transfer points, bagging and bulk loading and unloading systems)

Subpart G - Nitric Acid Plants.

40 CFR 60.70 through 40 CFR 60.74

(nitric acid production units)

Subpart Ga - Nitric Acid Plants for which Construction, Reconstruction, or Modification Commenced after October 14, 2011.

40 CFR 60.70a through 40 CFR 60.77a

(nitric acid production units producing weak nitric acid by either the pressure or atmospheric pressure process)

Subpart H - Sulfuric Acid Plants.

40 CFR 60.80 through 40 CFR 60.85

(sulfuric acid production units)

Subpart I - Hot Mix Asphalt Facilities.

40 CFR 60.90 through 40 CFR 60.93

(dryers; systems for screening, handling, storing and weighing hot aggregate; systems for loading, transferring and storing mineral filler; systems for mixing asphalt; and the loading, transfer and storage systems associated with emission control systems)

Subpart J - Petroleum Refineries.

40 CFR 60.100 through 40 CFR 60.106

(fluid catalytic cracking unit catalyst regenerators, fluid catalytic cracking unit incinerator-waste heat boilers and fuel gas combustion devices)

Subpart Ja - Petroleum Refineries for which Construction, Reconstruction, or Modification Commenced after May 14, 2007.

40 CFR 60.100a through 40 CFR 60.109a

(fluid catalytic cracking units, fluid coking units, delayed coking units, fuel gas combustion devices, including flares and process heaters, and sulfur recovery plants)

Subpart K - Storage Vessels for Petroleum Liquids for which Construction, Reconstruction, or Modification Commenced after June 11, 1973, and prior to May 19, 1978.

40 CFR 60.110 through 40 CFR 60.113

(storage vessels with a capacity greater than 40,000 gallons)

Subpart Ka - Storage Vessels for Petroleum Liquids for which Construction, Reconstruction, or Modification Commenced after May 18, 1978, and prior to July 23, 1984.

40 CFR 60.110a through 40 CFR 60.115a

(storage vessels with a capacity greater than 40,000 gallons)

Subpart Kb - Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for which Construction, Reconstruction, or Modification Commenced after July 23, 1984.

40 CFR 60.110b through 40 CFR 60.117b

(storage vessels with capacity greater than or equal to 10,566 gallons)

Subpart L - Secondary Lead Smelters.

40 CFR 60.120 through 40 CFR 60.123

(pot furnaces of more than 550 pound charging capacity, blast (cupola) furnaces and reverberatory furnaces)

Subpart M - Secondary Brass and Bronze Production Plants.

40 CFR 60.130 through 40 CFR 60.133

(reverberatory and electric furnaces of 2205 pound or greater production capacity and blast (cupola) furnaces of 550 pounds per hour or greater production capacity)

Subpart N - Primary Emissions from Basic Oxygen Process Furnaces for which Construction is Commenced after June 11, 1973.

40 CFR 60.140 through 40 CFR 60.144

(basic oxygen process furnaces)

Subpart Na - Secondary Emissions from Basic Oxygen Process Steelmaking Facilities for which Construction is Commenced after January 20, 1983.

40 CFR 60.140a through 40 CFR 60.145a

(facilities in an iron and steel plant: top-blown BOPFs and hot metal transfer stations and skimming stations used with bottom-blown or top-blown BOPFs)

Subpart O - Sewage Treatment Plants.

40 CFR 60.150 through 40 CFR 60.154

(incinerators that combust wastes containing more than 10% sewage sludge (dry basis) produced by municipal sewage treatment plants or incinerators that charge more than 2205 pounds per day municipal sewage sludge (dry basis))

Subpart P - Primary Copper Smelters.

40 CFR 60.160 through 40 CFR 60.166

(dryers, roasters, smelting furnaces, and copper converters)

Subpart Q - Primary Zinc Smelters.

40 CFR 60.170 through 40 CFR 60.176

(roasters and sintering machines)

Subpart R - Primary Lead Smelters

40 CFR 60.180 through 40 CFR 60.186

(sintering machines, sintering machine discharge ends, blast furnaces, dross reverberatory furnaces, electric smelting furnaces and converters)

Subpart S - Primary Aluminum Reduction Plants.

40 CFR 60.190 through 40 CFR 60.195

(potroom groups and anode bake plants)

Subpart T - Phosphate Fertilizer Industry: Wet-Process Phosphoric Acid Plants.

40 CFR 60.200 through 40 CFR 60.205

(reactors, filters, evaporators, and hot wells)

Subpart U - Phosphate Fertilizer Industry: Superphosphoric Acid Plants.

40 CFR 60.210 through 40 CFR 60.215

(evaporators, hot wells, acid sumps, and cooling tanks)

Subpart V - Phosphate Fertilizer Industry: Diammonium Phosphate Plants.

40 CFR 60.220 through 40 CFR 60.225

(reactors, granulators, dryers, coolers, screens, and mills)

Subpart W - Phosphate Fertilizer Industry: Triple Superphosphate Plants.

40 CFR 60.230 through 40 CFR 60.235

(mixers, curing belts (dens), reactors, granulators, dryers, cookers, screens, mills, and facilities which store run-of-pile triple superphosphate)

Subpart X - Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage Facilities.

40 CFR 60.240 through 40 CFR 60.245

(storage or curing piles, conveyors, elevators, screens and mills)

Subpart Y - Coal Preparation and Processing Plants.

40 CFR 60.250 through 40 CFR 60.258

(plants which process more than 200 tons per day: thermal dryers, pneumatic coal-cleaning equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal storage systems, and coal transfer and loading systems)

Subpart Z - Ferroalloy Production Facilities.

40 CFR 60.260 through 40 CFR 60.266

(electric submerged arc furnaces which produce silicon metal, ferrosilicon, calcium silicon, silicomanganese zirconium, ferrochrome silicon, silvery iron, high-carbon ferrochrome, charge chrome, standard ferromanganese, silicomanganese, ferromanganese silicon or calcium carbide; and dust-handling equipment)

Subpart AA - Steel Plants: Electric Arc Furnaces Constructed after October 21, 1974, and on or before August 17, 1983.

40 CFR 60.270 through 40 CFR 60.276

(electric arc furnaces and dust-handling systems that produce carbon, alloy or specialty steels)

Subpart AAa - Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed after August 17, 1983.

40 CFR 60.270a through 40 CFR 60.276a

(electric arc furnaces, argon-oxygen decarburization vessels, and dust-handling systems that produce carbon, alloy, or specialty steels)

Subpart BB - Kraft Pulp Mills.

40 CFR 60.280 through 40 CFR 60.285

(digester systems, brown stock washer systems, multiple effect evaporator systems, black liquor oxidation systems, recovery furnaces, smelt dissolving tanks, lime kilns, condensate strippers and kraft pulping operations)

Subpart BBa - Kraft Pulp Mill Affected Sources for which Construction, Reconstruction, or Modification Commenced after May 23, 2013.

40 CFR 60.280a through 40 CFR 60.288a

(digester systems, brown stock washer systems, multiple effect evaporator systems, black liquor oxidation systems, recovery furnaces, smelt dissolving tanks, lime kilns, condensate strippers, and kraft pulping operations)

Subpart CC - Glass Manufacturing Plants.

40 CFR 60.290 through 40 CFR 60.296

(glass melting furnaces)

Subpart DD - Grain Elevators.

40 CFR 60.300 through 40 CFR 60.304

(grain terminal elevators/grain storage elevators: truck unloading stations, truck loading stations, barge and ship unloading stations, barge and ship loading stations, railcar unloading stations, railcar loading stations, grain dryers, and all grain handling operations)

Subpart EE - Surface Coating of Metal Furniture.

40 CFR 60.310 through 40 CFR 60.316

(metal furniture surface coating operations in which organic coatings are applied)

Subpart FF - Reserved.

Subpart GG - Stationary Gas Turbines.

40 CFR 60.330 through 40 CFR 60.335

(stationary gas turbines with a heat input at peak load equal to or greater than 10 million Btu per hour, based on the lower heating value of the fuel fired)

Subpart HH - Lime Manufacturing Plants.

40 CFR 60.340 through 40 CFR 60.344

(each rotary lime kiln)

Subparts II through JJ - Reserved.

Subpart KK - Lead-Acid Battery Manufacturing Plants.

40 CFR 60.370 through 40 CFR 60.374

(lead-acid battery manufacturing plants that produce or have the design capacity to produce in one day (24 hours) batteries containing an amount of lead equal to or greater than 6.5 tons: grid casting facilities, paste mixing facilities, three-process operation facilities, lead oxide manufacturing facilities, lead reclamation facilities, and other lead-emitting operations)

Subpart LL - Metallic Mineral Processing Plants.

40 CFR 60.380 through 40 CFR 60.386

(each crusher and screen in open-pit mines; each crusher, screen, bucket elevator, conveyor belt transfer point, thermal dryer, product packaging station, storage bin, enclosed storage area, truck loading station, truck unloading station, railcar loading station, and railcar unloading station at the mill or concentrator with the following exceptions. All facilities located in underground mines are exempted from the provisions of this subpart. At uranium ore processing plants, all facilities subsequent to and including the beneficiation of uranium ore are exempted from the provisions of this subpart)

Subpart MM - Automobile and Light Duty Truck Surface Coating Operations.

40 CFR 60.390 through 40 CFR 60.397

(prime coat operations, guide coat operations, and top-coat operations)

Subpart NN - Phosphate Rock Plants.

40 CFR 60.400 through 40 CFR 60.404

(phosphate rock plants which have a maximum plant production capacity greater than four tons per hour: dryers, calciners, grinders, and ground rock handling and storage facilities, except those facilities producing or preparing phosphate rock solely for consumption in elemental phosphorous production)

Subpart OO - Reserved.

Subpart PP - Ammonium Sulfate Manufacture.

40 CFR 60.420 through 40 CFR 60.424

(ammonium sulfate dryer within an ammonium sulfate manufacturing plant in the caprolactam by-product, synthetic, and coke oven by-product sectors of the ammonium sulfate industry)

Subpart QQ - Graphic Arts Industry: Publication Rotogravure Printing.

40 CFR 60.430 through 40 CFR 60.435

(publication rotogravure printing presses, except proof presses)

Subpart RR - Pressure Sensitive Tape and Label Surface Coating Operations.

40 CFR 60.440 through 40 CFR 60.447

(pressure sensitive tape and label material coating lines)

Subpart SS - Industrial Surface Coating: Large Appliances.

40 CFR 60.450 through 40 CFR 60.456

(surface coating operations in large appliance coating lines)

Subpart TT - Metal Coil Surface Coating.

40 CFR 60.460 through 40 CFR 60.466

(metal coil surface coating operations: each prime coat operation, each finish coat operation, and each prime and finish coat operation combined when the finish coat is applied wet on wet over the prime coat and both coatings are cured simultaneously)

Subpart UU - Asphalt Processing and Asphalt Roofing Manufacture.

40 CFR 60.470 through 40 CFR 60.474

(each saturator and each mineral handling and storage facility at asphalt roofing plants; and each asphalt storage tank and each blowing still at asphalt processing plants, petroleum refineries, and asphalt roofing plants)

Subpart VV - Equipment Leaks of Volatile Organic Compounds in the Synthetic Organic Chemicals Manufacturing Industry for which Construction, Reconstruction, or Modification Commenced after January 5, 1981, and on or before November 7, 2006.

40 CFR 60.480 through 40 CFR 60.489

(all equipment within a process unit in a synthetic organic chemicals manufacturing plant)

Subpart VVa - Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry for which Construction, Reconstruction, or Modification Commenced after November 7, 2006.

40 CFR 60.480a through 40 CFR 60.489a

(all equipment within a process unit in a synthetic organic chemicals manufacturing plant)

Subpart WW - Beverage Can Surface Coating Industry.

40 CFR 60.490 through 40 CFR 60.496

(beverage can surface coating lines: each exterior base coat operation, each overvarnish coating operation, and each inside spray coating operation)

Subpart XX - Bulk Gasoline Terminals.

40 CFR 60.500 through 40 CFR 60.506

(total of all loading racks at a bulk gasoline terminal which deliver liquid product into gasoline tank trucks)

Subparts YY through ZZ - Reserved.

Subpart AAA - New Residential Wood Heaters.

40 CFR 60.530 through 40 CFR 60.539b

(NOTE: In accordance with Chapter 471 of the 2015 Acts of Assembly, authority to enforce the above standard is being retained by EPA and the standard is not incorporated by reference into these regulations. A state permit may be required of certain facilities if the provisions of 9VAC5-50 and 9VAC5-80 apply. Owners should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.)

Subpart BBB - Rubber Tire Manufacturing Industry.

40 CFR 60.540 through 40 CFR 60.548

(each undertread cementing operation, each sidewall cementing operation, each tread end cementing operation, each bead cementing operation, each green tire spraying operation, each Michelin-A operation, each Michelin-B operation, and each Michelin-C automatic operation)

Subpart CCC - Reserved.

Subpart DDD - Volatile Organic Compound (VOC) Emissions from the Polymer Manufacturing Industry.

40 CFR 60.560 through 40 CFR 60.566

(for polypropylene and polyethylene manufacturing using a continuous process that emits continuously or intermittently: all equipment used in the manufacture of these polymers. For polystyrene manufacturing using a continuous process that emits continuously: each material recovery section. For poly(ethylene terephthalate) manufacturing using a continuous process that emits continuously: each polymerization reaction section; if dimethyl terephthalate is used in the process, each material recovery section is also an affected facility; if terephthalic acid is used in the process, each raw materials preparation section is also an affected facility. For VOC emissions from equipment leaks: each group of fugitive emissions equipment within any process unit, excluding poly(ethylene terephthalate) manufacture.)

Subpart EEE - Reserved.

Subpart FFF - Flexible Vinyl and Urethane Coating and Printing.

40 CFR 60.580 through 40 CFR 60.585

(each rotogravure printing line used to print or coat flexible vinyl or urethane products)

Subpart GGG - Equipment Leaks of VOC in Petroleum Refineries for which Construction, Reconstruction, or Modification Commenced after January 4, 1983, and on or before November 7, 2006.

40 CFR 60.590 through 40 CFR 60.593

(each compressor, valve, pump pressure relief device, sampling connection system, open-ended valve or line, and flange or other connector in VOC service)

Subpart GGGa - Equipment Leaks of VOC in Petroleum Refineries for which Construction, Reconstruction, or Modification Commenced after November 7, 2006.

40 CFR 60.590a through 40 CFR 60.593a

(each compressor, valve, pump pressure relief device, sampling connection system, open-ended valve or line, and flange or other connector in VOC service)

Subpart HHH - Synthetic Fiber Production Facilities.

40 CFR 60.600 through 40 CFR 60.604

(each solvent-spun synthetic fiber process that produces more than 500 megagrams of fiber per year)

Subpart III - Volatile Organic Compound (VOC) Emissions from the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Air Oxidation Unit Processes.

40 CFR 60.610 through 40 CFR 60.618

(each air oxidation reactor not discharging its vent stream into a recovery system and each combination of an air oxidation reactor or two or more air oxidation reactors and the recovery system into which the vent streams are discharged)

Subpart JJJ - Petroleum Dry Cleaners.

40 CFR 60.620 through 40 CFR 60.625

(facilities located at a petroleum dry cleaning plant with a total manufacturers' rated dryer capacity equal to or greater than 84 pounds: petroleum solvent dry cleaning dryers, washers, filters, stills, and settling tanks)

Subpart KKK - Equipment Leaks of VOC from Onshore Natural Gas Processing Plants for which Construction, Reconstruction, or Modification Commenced after January 20, 1984, and on or before August 23, 2011.

40 CFR 60.630 through 40 CFR 60.636

(each compressor in VOC service or in wet gas service; each pump, pressure relief device, open-ended valve or line, valve, and flange or other connector that is in VOC service or in wet gas service, and any device or system required by this subpart)

Subpart LLL - Sulfur Dioxide Emissions from Onshore Natural Gas Processing for which Construction, Reconstruction, or Modification Commenced after January 20, 1984, and on or before August 23, 2011.

40 CFR 60.640 through 40 CFR 60.648

(facilities that process natural gas: each sweetening unit, and each sweetening unit followed by a sulfur recovery unit)

Subpart MMM - Reserved.

Subpart NNN - Volatile Organic Compound (VOC) Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations.

40 CFR 60.660 through 40 CFR 60.668

(each distillation unit not discharging its vent stream into a recovery system, each combination of a distillation unit or of two or more units and the recovery system into which their vent streams are discharged)

Subpart OOO - Nonmetallic Mineral Processing Plants.

40 CFR 60.670 through 40 CFR 60.676

(facilities in fixed or portable nonmetallic mineral processing plants: each crusher, grinding mill, screening operation, bucket elevator, belt conveyor, bagging operation, storage bin, enclosed truck or railcar loading station)

Subpart PPP - Wool Fiberglass Insulation Manufacturing Plants.

40 CFR 60.680 through 40 CFR 60.685

(each rotary spin wool fiberglass insulation manufacturing line)

Subpart QQQ - VOC Emissions from Petroleum Refinery Wastewater Systems.

40 CFR 60.690 through 40 CFR 60.699

(individual drain systems, oil-water separators, and aggregate facilities in petroleum refineries)

Subpart RRR - Volatile Organic Compound Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Reactor Processes.

40 CFR 60.700 through 40 CFR 60.708

(each reactor process not discharging its vent stream into a recovery system, each combination of a reactor process and the recovery system into which its vent stream is discharged, and each combination of two or more reactor processes and the common recovery system into which their vent streams are discharged)

Subpart SSS - Magnetic Tape Coating Facilities.

40 CFR 60.710 through 40 CFR 60.718

(each coating operation and each piece of coating mix preparation equipment)

Subpart TTT - Industrial Surface Coating: Surface Coating of Plastic Parts for Business Machines.

40 CFR 60.720 through 40 CFR 60.726

(each spray booth in which plastic parts for use in the manufacture of business machines receive prime coats, color coats, texture coats, or touch-up coats)

Subpart UUU - Calciners and Dryers in Mineral Industries.

40 CFR 60.730 through 40 CFR 60.737

(each calciner and dryer at a mineral processing plant)

Subpart VVV - Polymeric Coating of Supporting Substrates Facilities.

40 CFR 60.740 through 40 CFR 60.748

(each coating operation and any onsite coating mix preparation equipment used to prepare coatings for the polymeric coating of supporting substrates)

Subpart WWW - Municipal Solid Waste Landfills.

40 CFR 60.750 through 40 CFR 60.759

(municipal solid waste landfills for the containment of household and Resource Conservation and Recovery Act (RCRA) Subtitle D wastes)

Subpart XXX - Municipal Solid Waste Landfills that Commenced Construction, Reconstruction, or Modification After July 17, 2014

40 CFR 60.760 through 40 CFR 60.769

(municipal solid waste landfills for the containment of household and RCRA Subtitle D wastes)

Subpart AAAA - Small Municipal Waste Combustors for which Construction is Commenced after August 30, 1999, or for which Modification or Reconstruction is Commenced after June 6, 2001.

40 CFR 60.1000 through 40 CFR 60.1465

(municipal waste combustor units with a capacity less than 250 tons per day and greater than 35 tons per day of municipal solid waste or refuse-derived fuel)

Subpart BBBB - Not applicable.

Subpart CCCC - Commercial/Industrial Solid Waste Incinerators.

40 CFR 60.2000 through 40 CFR 60.2265

(an enclosed device using controlled flame combustion without energy recovery that is a distinct operating unit of any commercial or industrial facility, or an air curtain incinerator without energy recovery that is a distinct operating unit of any commercial or industrial facility)

Subpart DDDD - Not applicable.

Subpart EEEE - Other Solid Waste Incineration Units for which Construction is Commenced after December 9, 2004, or for which Modification or Reconstruction is Commenced on or after June 16, 2006.

40 CFR 60.2880 through 40 CFR 60.2977

(very small municipal waste combustion units with the capacity to combust less than 35 tons per day of municipal solid waste or refuse-derived fuel, and institutional waste incineration units owned or operated by an organization having a governmental, educational, civic, or religious purpose)

Subpart FFFF - Reserved.

Subpart GGGG - Reserved.

Subpart HHHH - Reserved.

Subpart IIII - Stationary Compression Ignition Internal Combustion Engines.

40 CFR 60.4200 through 40 CFR 60.4219

(NOTE: Authority to enforce the above standard is being retained by EPA and the standard is not incorporated by reference into these regulations for any source that is not (i) a major source as defined in 9VAC5-80-60 and subject to Article 1 (9VAC5-80-50 et seq., Federal Operating Permits for Stationary Sources) of Part II of 9VAC5-80 (Permits for Stationary Sources) or (ii) an affected source as defined in 9VAC5-80-370 and subject to Article 3 (9VAC5-80-360 et seq., Federal Operating Permits for Acid Rain Sources) of Part II of 9VAC5-80.)

Subpart JJJJ - Stationary Spark Ignition Internal Combustion Engines.

40 CFR 60.4230 through 40 CFR 60.4248

(NOTE: Authority to enforce the above standard is being retained by EPA and the standard is not incorporated by reference into these regulations for any source that is not (i) a major source as defined in 9VAC5-80-60 and subject to Article 1 (9VAC5-80-50 et seq., Federal Operating Permits for Stationary Sources) of Part II of 9VAC5-80 (Permits for Stationary Sources) or (ii) an affected source as defined in 9VAC5-80-370 and subject to Article 3 (9VAC5-80-360 et seq., Federal Operating Permits for Acid Rain Sources) of Part II of 9VAC5-80.)

Subpart KKKK - Stationary Combustion Turbines.

40 CFR 60.4300 through 40 CFR 60.4420

(stationary combustion turbine with a heat input at peak load equal to or greater than 10.7 gigajoules (10 MMBtu) per hour)

Subpart LLLL - Sewage Sludge Incineration Units.

40 CFR 60.4760 through 40 CFR 60.4925

(an incineration unit combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter, including the sewage sludge feed system, auxiliary fuel feed system, grate system, flue gas system, waste heat recovery equipment, and bottom ash system; and all ash handling systems connected with the bottom ash handling system)

Subpart MMMM - Reserved.

Subpart NNNN - Reserved.

Subpart OOOO - Crude Oil and Natural Gas Production, Transmission and Distribution for which Construction, Modification, or Reconstruction Commenced after August 23, 2011, and on or before September 18, 2015.

40 CFR 60.5360 through 40 CFR 60.5499

(facilities that operate gas wells, centrifugal compressors, reciprocating compressors, pneumatic controllers, and storage vessels)

Subpart OOOOa - Crude Oil and Natural Gas Facilities for which Construction, Modification, or Reconstruction Commenced after September 18, 2015.

40 CFR 60.5360a through 40 CFR 60.5499a

(facilities that operate gas wells, centrifugal compressors, reciprocating compressors, pneumatic controllers and pumps, storage vessels, and sweetening units)

Subpart PPPP - Reserved.

Subpart QQQQ - New Residential Hydronic Heaters and Forced-Air Furnaces

40 CFR 60.5472 through 40 CFR 60.5483

(NOTE: In accordance with Chapter 471 of the 2015 Acts of Assembly, authority to enforce the above standard is being retained by EPA and the standard is not incorporated by reference into these regulations. A state permit may be required of certain facilities if the provisions of 9VAC5-50 and 9VAC5-80 apply. Owners should review those provisions and contact the appropriate regional office for guidance on whether those provisions apply.)

Subpart RRRR - Reserved.

Subpart SSSS - Reserved.

Subpart TTTT - Reserved.

Appendix A - Test methods.

Appendix B - Performance specifications.

Appendix C - Determination of Emission Rate Change.

Appendix D - Required Emission Inventory Information.

Appendix E - Reserved.

Appendix F - Quality Assurance Procedures.

Appendix G - Not applicable.

Appendix H - Reserved.

Appendix I - Removable label and owner's manual.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-05-0502, eff. January 1, 1993; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 15, Issue 12, eff. April 1, 1999; Volume 15, Issue 13, eff. April 14, 1999; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 31, Issue 23, eff. August 12, 2015; Volume 33, Issue 10, eff. February 22, 2017; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-50-420 Word or phrase substitutions

In the standards designated in 9VAC5-50-410 make the following substitutions:

1. In all the standards, "board" for "administrator."

2. In all the standards, "board" for "U.S. Environmental Protection Agency" (except in references).

3. In subpart WWW, Department of Environmental Quality for state, local, or tribal agency responsible for regulating the landfill. Waste management permits are issued by the department under the authority of the Virginia Waste Management Act (Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia), using the procedures in Part V (9VAC20-81-400 et seq.) of 9VAC20 Chapter 81.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-05-0503, eff. January 1, 1985; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 15, Issue 12, eff. April 1, 1999; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 27, Issue 23, eff. August 17, 2011.

Article 6 Standards of Performance for Regulated Medical Waste Incinerators (Rule 5-6) (Repealed)

9VAC5-50-430 (Repealed.)

Article 6 Standards of Performance for Regulated Medical Waste Incinerators (Rule 5-6) (Repealed)

History

• Historical Notes: Derived from VR120-05-0601, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-440 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0602, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-450 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0603, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-460 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0604, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-470 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0605, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-480 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0606, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-490 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0607, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-500 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0608, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-510 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0609, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-520 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0610, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-530 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0611, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-540 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0612, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-550 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0613, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-560 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0614, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-570 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0615, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-580 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0616, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-590 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0617, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-50-600 (Repealed.)

History

• Historical Notes: Derived from VR120-05-0618, Virginia Register Volume 11, Issue 15, eff. June 1, 1995; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

Chapter 60 Hazardous Air Pollutant Sources

Part I Special Provisions

9VAC5-60-10 Applicability

A. The provisions of this chapter shall apply to all existing, new and modified hazardous air pollutant sources for which emission standards are prescribed under this chapter.

B. For sources subject to the applicable subparts listed in 9VAC5-60-70, the provisions of 40 CFR 61.09, 40 CFR 61.10, 40 CFR 61.12, 40 CFR 61.13, and 40 CFR 61.14 shall be implemented through this part. In cases where there are differences between the provisions of this part and the provisions of 40 CFR Part 61, the more restrictive provisions shall apply.

C. For sources subject to the applicable subparts listed in 9VAC5-60-100, the provisions of 40 CFR 63.6, 40 CFR 63.7, 40 CFR 63.8, 40 CFR 63.9, 40 CFR 63.10 and 40 CFR 63.11 shall be implemented through this part. In cases where there are differences between the provisions of this part and the provisions of 40 CFR Part 63, the more restrictive provisions shall apply.

D. Any owner subject to the provisions of this chapter may provide any report, notification or other document by electronic media if acceptable to both the owner and the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020; Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-60-20 Compliance

A. Ninety days after the effective date of any emission standard prescribed under this chapter no owner or other person shall operate any existing hazardous air pollutant source in violation of such standard. After the effective date of any emission standard prescribed under this chapter no owner or other person shall operate any new or modified hazardous air pollutant source in violation of such standard.

1. Compliance with standards in this chapter shall be determined by emission tests established by 9VAC5-60-30, unless specified otherwise in the applicable standard.

2. Compliance with federal requirements in this chapter may be determined by alternative or equivalent methods only if approved by the administrator. For purposes of this subsection, federal requirements consist of the following:

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

b. Emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

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

d. Limitations and conditions that are part of an implementation plan.

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

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

g. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

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

B. No owner of a hazardous air pollutant source subject to the provisions of this chapter shall fail to conduct emission tests as required under this chapter.

C. No owner of a hazardous air pollutant source subject to the provisions of this chapter shall fail to install, calibrate, maintain and operate equipment for continuously monitoring and recording emissions, process parameters or air quality, or both, as required in this chapter.

D. No owner of a hazardous air pollutant source subject to the provisions of this chapter shall fail to provide notifications and reports, revise reports, maintain records or report emission test or monitoring results, or both, as required under this chapter.

E. For the purpose of submitting compliance certifications or establishing whether or not a person has violated or is in violation of any standard in this chapter, nothing in this chapter shall preclude the use, including the exclusive use, of any credible evidence or information relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-30 Emission testing

A. Emission tests for hazardous air pollutant sources shall be conducted and reported and data shall be reduced as set forth in this chapter and in the appropriate reference methods unless the board (i) specifies or approves, in specific cases, the use of a reference method with minor changes in methodology; (ii) approves the use of an equivalent method; (iii) approves the use of an alternative method the results of which the board has determined to be adequate for indicating whether a specific source is in compliance; (iv) waives the requirement for emission tests because the owner of a source has demonstrated by other means to the board's satisfaction that the affected facility is in compliance with the standard; or (v) approves shorter sampling times and smaller sample volumes when necessitated by process variables or other factors.

B. Emission testing for hazardous air pollutant sources shall be subject to testing guidelines approved by the board. Procedures may be adjusted or changed by the board to suit specific sampling conditions or needs based upon good practice, judgement and experience. When such tests are adjusted, consideration shall be given to the effect of such change on established emission standards. Tests shall be performed under the direction of persons whose qualifications are acceptable to the board.

C. Emission tests for hazardous air pollutant sources shall be conducted under conditions which the board shall specify to the owner based on representative performance of the source. The owner shall make available to the board such records as may be necessary to determine the conditions of the emission tests. Operations during periods of startup, shutdown and malfunction shall not constitute representative conditions for the purpose of an emission test. During the initial emission test, emissions in excess of the level of the applicable emission limit during periods of startup, shutdown, and malfunction shall not be considered a violation of the applicable emission limit unless otherwise specified in the applicable standard.

D. Each emission test for a hazardous air pollutant source shall consist of three separate runs using the applicable test method. Each run shall be conducted for the time and under the conditions specified in the applicable standard. For the purpose of determining compliance with an applicable standard the arithmetic mean of the results of the three runs shall apply. In the event that a sample is accidentally lost or if conditions occur in which one of the three runs must be discontinued because of forced shutdown, failure of the sample train, extreme meteorological conditions or other circumstances beyond the owner's control, compliance may, upon the approval of the board, be determined using the arithmetic mean of the results of the two other runs.

E. The board may test emissions of air pollutants from any hazardous air pollutant source. Upon request of the board the owner shall provide, or cause to be provided, emission testing facilities as follows:

1. Sampling ports adequate for test methods applicable to such source. This includes (i) constructing the air pollution control system such that volumetric flow rates and pollutant emission rates can be accurately determined by applicable test methods and procedures and (ii) providing a stack or duct with acceptable flow characteristics during emission tests, as demonstrated by applicable test methods and procedures.

2. Safe sampling platforms.

3. Safe access to sampling platforms.

4. Utilities for sampling and testing equipment.

F. Upon request of the board, the owner of any hazardous air pollutant source subject to the provisions of this chapter shall conduct emission tests in accordance with procedures approved by the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-40 Monitoring

A. Unless otherwise approved by the board or specified in applicable subparts listed in 9VAC5-60-70, the requirements of this section shall apply to all monitoring required in accordance with applicable subparts listed in 9VAC5-60-70. However, nothing in this chapter shall exempt any owner from complying with subsection C of this section.

B. Monitoring shall be conducted and reported and data shall be reduced as set forth in the methods and procedures contained in each applicable subpart listed in 9VAC5-60-70.

C. Upon request of the board, the owner of a hazardous air pollutant source subject to the provisions of this chapter shall install, calibrate, maintain and operate equipment for continuously monitoring and recording emissions, process parameters and air quality in accordance with methods and procedures acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-50 Notification, records and reporting

A. Any owner of a hazardous air pollutant source subject to the provisions of this chapter shall provide written notifications to the board of the following:

1. The date of commencement of construction, reconstruction or modification of a new or modified hazardous air pollutant source postmarked or submitted electronically no later than 30 days after such date.

2. The anticipated date of initial startup of any new or modified hazardous air pollutant source not more than 60 days or less than 30 days prior to such date.

3. The actual date of initial startup of any new or modified hazardous air pollutant source within 15 days after such date.

4. The date of any emission test the owner wishes the board to consider in determining compliance with a standard. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

B. Any owner of a hazardous air pollutant source subject to the provisions of subparts listed in 9VAC5-60-70 shall maintain records of the occurrence and duration of any startup, shutdown or malfunction in the operation of a hazardous air pollutant source; any malfunction in the operation of a hazardous air pollutant source; any malfunction of the air pollution control equipment; or any periods during which a continuous monitoring system or monitoring device is inoperative.

C. The owner of any existing hazardous air pollutant source or any new or modified hazardous air pollutant source to which an emission standard prescribed under the subparts listed in 9VAC5-60-70 is applicable which has an initial startup which preceded the effective date of an emission standard prescribed under this chapter shall, within 90 days after the effective date, provide the following information in writing to the board:

1. Name and address of the owner;

2. The location of the source;

3. The type of hazardous air pollutants emitted by the source;

4. A brief description of the nature, size, design and method of operation of the source, including the operating design capacity of such source. Identify each point of emission for each hazardous air pollutant;

5. The average weight per month of the hazardous materials being processed by the source over the last 12 months preceding the date of the report;

6. A description of the existing control equipment for each emission point;

a. Primary control devices for each hazardous air pollutant.

b. Secondary control devices for each hazardous air pollutant.

c. Estimated control efficiency (percent) for each control device.

7. A statement by the owner of the source as to whether he can comply with the emission standards prescribed in this chapter within 90 days of the effective date.

D. Changes in the information provided under subsection C of this section shall be provided to the board within 30 days after such change, except that, if the changes result from modification of the source, the provisions of 9VAC5-80 are applicable.

E. Reporting under this section shall be according to procedures acceptable to the board. Advice on reporting the status of compliance may be obtained from the board.

F. Upon request of the board, the owner of a hazardous air pollutant source subject to the provisions of this chapter shall provide notifications and reports, revise reports, maintain records or report emission test or monitoring results in a manner and form and using procedures acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020; Volume 40, Issue 14, eff. April 11, 2024.

Article 1 Environmental Protection Agency National Emission Standards for Hazardous Air Pollutants (Rule 6-1)

9VAC5-60-60 General

The Environmental Protection Agency (EPA) Regulations on National Emission Standards for Hazardous Air Pollutants (NESHAP), as promulgated in 40 CFR Part 61 and designated in 9VAC5-60-70 are, unless indicated otherwise, incorporated by reference into the regulations of the board as amended by the word or phrase substitutions given in 9VAC5-60-80. The complete text of the subparts in 9VAC5-60-70 incorporated in this regulation by reference is contained in 40 CFR Part 61. The 40 CFR section numbers appearing under each subpart in 9VAC5-60-70 identify the specific provisions of the subpart incorporated by reference. The specific version of the provision adopted by reference shall be that contained in the CFR (2022) in effect July 1, 2022. In making reference to the Code of Federal Regulations, 40 CFR Part 61 means Part 61 of Title 40 of the Code of Federal Regulations; 40 CFR 61.01 means 61.01 in Part 61 of Title 40 of the Code of Federal Regulations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 13, eff. March 15, 2023.

9VAC5-60-65 Authority to implement and enforce standards as authorized by EPA

A. This article provides the legally enforceable mechanism to facilitate the Commonwealth's obligation to implement and enforce the federal NESHAP as state requirements.

B. The Commonwealth's delegated authority to implement and enforce the standards designated in 9VAC5-50-70 as authorized by EPA is identified in the documents specified in subdivisions 1 through 7 of this subsection. The Commonwealth's delegated authority extends only to the source categories and pollutants identified in the documents, and is subject to the provisions, conditions, and limitations set forth in the following documents:

1. Letter from Daniel J. Snyder dated December 30, 1975.

2. Federal Register notice dated February 26, 1976 (41 FR 8416).

3. Letter from Thomas C. Voltaggio dated July 22, 1981.

4. Federal Register notice dated August 27, 1981 (46 FR 43300).

5. Letter from W. Ray Cunningham dated July 2, 1985.

6. Letter from Stanley L. Laskowski dated July 15, 1993.

7. Federal Register Notice dated October 20, 1993 (58 FR 54135).

C. In its delegation notices and letters, EPA automatically delegated to the Commonwealth the authority to implement and enforce future NESHAP requirements if the Commonwealth legally adopted the requirements, informed EPA that it intended to enforce the standards in accordance with the terms of the delegation, and met other conditions. The latest letter that the Commonwealth submitted to obtain authority to implement and enforce additional requirements is available for examination as provided in subsection D of this section.

D. Copies of the documents cited in subsections B and C of this section may be examined by the public at the central office of the Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia between 8:30 a.m. and 4:30 p.m. of each business day.

E. The documents cited in subsection B of this section establish the terms of the delegation to the Commonwealth to implement and enforce the federal NESHAP as authorized by EPA. As such, the documents place requirements upon the Commonwealth, not the affected facilities; thus, the documents are not being incorporated by reference into the regulations of the board but are being cited for information purposes only.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-70 Designated emission standards

Subpart A—General Provisions.

40 CFR 61.01 through 40 CFR 61.03, 40 CFR 61.05 through 40 CFR 61.10, 40 CFR 61.12 through 40 CFR 61.15, and 40 CFR 61.19

(applicability, definitions, units and abbreviations, compliance, prohibited activities, determination of construction or modification, application for approval of construction or modification, approval of construction or modification, notification of startup, source reporting and waiver request, emission tests, monitoring, modification, and circumvention)

Subpart B—Radon Emissions from Underground Uranium Mines.

40 CFR 61.20 through 40 CFR 61.26

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart C—Beryllium.

40 CFR 61.30 through 40 CFR 61.34

Subpart D—Beryllium Rocket Motor Firing.

40 CFR 61.40 through 40 CFR 61.44

Subpart E—Mercury.

40 CFR 61.50 through 40 CFR 61.55

Subpart F—Vinyl Chloride.

40 CFR 61.60 through 40 CFR 61.71

Subpart G—Reserved.

Subpart H—Emissions of Radionuclides Other than Radon from Department of Energy (DOE) Facilities.

40 CFR 61.90 through 40 CFR 61.97

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart I—Radionuclide Emissions from Facilities Licensed by the Nuclear Regulatory Commission (NRC) and Federal Facilities Not Covered by Subpart H.

40 CFR 61.100 through 40 CFR 61.109

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart J—Equipment Leaks (Fugitive Emission Sources) of Benzene.

40 CFR 61.110 through 40 CFR 61.112

Subpart K—Radionuclide Emissions from Elemental Phosphorus Plants.

40 CFR 61.120 through 40 CFR 61.127

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart L—Benzene Emissions from Coke By-Product Recovery Plants.

40 CFR 61.130 through 40 CFR 61.139

Subpart M—Asbestos.

40 CFR 61.140 through 40 CFR 61.157

(NOTE: Under § 40.1-51.20 of the Code of Virginia, the Virginia Department of Labor and Industry also holds authority to enforce the following: 40 CFR 61.140, Applicability; 40 CFR 61.141, Definitions; 40 CFR 61.145, Standard for demolition and renovation; 40 CFR 61.146, Standard for spraying; 40 CFR 61.148, Standard for insulating materials; 40 CFR 61.150, Standard for waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations except subsection (a)(4); and 40 CFR 61.154, Standard for active waste disposal, except subsection (d); and 40 CFR 61.156, Cross-reference to other asbestos regulations.)

Subpart N—Inorganic Arsenic Emissions from Glass Manufacturing Plants.

40 CFR 61.160 through 40 CFR 61.165

Subpart O—Inorganic Arsenic Emissions from Primary Copper Smelters.

40 CFR 61.170 through 40 CFR 61.177

Subpart P—Inorganic Arsenic Emissions from Arsenic Trioxide and Metallic Arsenic Production Facilities.

40 CFR 61.180 through 40 CFR 61.186

Subpart Q—Radon Emissions from Department of Energy Facilities.

40 CFR 61.190 through 40 CFR 61.193

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart R—Radon Emissions from Phosphogypsum Stacks.

40 CFR 61.200 through 40 CFR 61.205

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart S—Reserved.

Subpart T—Radon Emissions from the Disposal of Uranium Mill Tailings.

40 CFR 61.220 through 40 CFR 61.225

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart U—Reserved.

Subpart V—Equipment Leaks (Fugitive Emission Sources).

40 CFR 61.240 through 40 CFR 61.247

Subpart W—Radon Emissions from Operating Mill Tailings.

40 CFR 61.250 through 40 CFR 61.252

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart X—Reserved.

Subpart Y—Benzene Emissions from Benzene Storage Vessels.

40 CFR 61.270 through 40 CFR 61.277

Subpart Z—Reserved.

Subpart AA—Reserved.

Subpart BB—Benzene Emissions from Benzene Transfer Operations.

40 CFR 61.300 through 40 CFR 61.306

Subpart CC—Reserved.

Subpart DD—Reserved.

Subpart EE—Reserved.

Subpart FF—Benzene Waste Operations.

40 CFR 61.340 through 40 CFR 61.358

Appendix A—Not applicable.

Appendix B—Test Methods.

(NOTE: Authority to enforce the following test methods is being retained by EPA and they are not incorporated by reference into the Regulations for the Control and Abatement of Air Pollution.)

Method 111—Determination of polonium-210 emissions from stationary sources. Method 114—Test methods for measuring radionuclide emissions from stationary sources.

Method 115—Monitoring for radon-222 emissions.

Appendix C—Quality assurance procedures.

Appendix D—Methods for estimating radionuclide emissions.

(NOTE: Authority to enforce the above methods is being retained by EPA and it is not incorporated by reference into the Regulations for the Control and Abatement of Air Pollution.)

Appendix E—Compliance procedures methods for determining compliance with Subpart I.

(NOTE: Authority to enforce the above methods is being retained by EPA and it is not incorporated by reference into the Regulations for the Control and Abatement of Air Pollution.)

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-80 Word or phrase substitutions

In all of the standards designated in 9VAC5-60-70 substitute:

1. "Board" for Administrator; and

2. "Board" for U.S. Environmental Protection Agency (except in references).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

Article 2 Environmental Protection Agency National Emission Standards for Hazardous Air Pollutants for Source Categories (Rule 6‑2)

9VAC5-60-90 General

The Environmental Protection Agency (EPA) National Emission Standards for Hazardous Air Pollutants for Source Categories (Maximum Achievable Control Technologies, or MACTs) as promulgated in 40 CFR Part 63 and designated in 9VAC5-60-100 are, unless indicated otherwise, incorporated by reference into the regulations of the board as amended by the word or phrase substitutions given in 9VAC5-60-110. The complete text of the subparts in 9VAC5-60-100 incorporated in this regulation by reference is contained in 40 CFR Part 63. The 40 CFR section numbers appearing under each subpart in 9VAC5-60-100 identify the specific provisions of the subpart incorporated by reference. The specific version of the provision adopted by reference shall be that contained in the CFR (2022) in effect July 1, 2022. In making reference to the Code of Federal Regulations, 40 CFR Part 63 means Part 63 of Title 40 of the Code of Federal Regulations; 40 CFR 63.1 means 63.1 in Part 63 of Title 40 of the Code of Federal Regulations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0201, eff. December 1, 1995; amended, Virginia Register Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 13, eff. March 15, 2023.

9VAC5-60-91 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 20, Issue 24, eff. September 8, 2004; repealed, Virginia Register Volume 21, Issue 7, eff. January 12, 2005.

9VAC5-60-92 Federal Hazardous Air Pollutant Program

The Environmental Protection Agency (EPA) Hazardous Air Pollutant Program as promulgated in § 112 of the federal Clean Air Act is incorporated by reference into the regulations of the board to the extent that the provisions of 40 CFR Part 63 are incorporated by reference into this article. The following provisions govern implementation of the federal Hazardous Air Pollutant Program.

1. For the purposes of the federal Hazardous Air Pollutant Program, a hazardous air pollutant is any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by Subpart C of 40 CFR Part 63. The specific version of Subpart C adopted by reference shall be that contained in the CFR specified in 9VAC5-60-90.

2. For the purposes of the federal Hazardous Air Pollutant Program, the source category schedule for standards is the schedule issued pursuant to § 112(e) of the federal Clean Air Act for promulgating the standards issued pursuant to § 112(d) of the federal Clean Air Act and promulgated in 40 CFR Part 63. The specific schedule adopted by reference shall be that promulgated on February 12, 2002 (67 FR 6521).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-95 Authority to implement and enforce standards as authorized by EPA

A. This article provides the legally enforceable mechanism to facilitate the Commonwealth's obligation to implement and enforce the federal MACTs as state requirements.

B. The Commonwealth's delegated authority to implement and enforce the standards designated in 9VAC5-60-100 as authorized by EPA is identified in the documents specified in subdivisions 1 through 5 of this subsection. The Commonwealth's delegated authority extends only to the source categories and pollutants identified in the documents, and is subject to the provisions, conditions, and limitations set forth in the following documents:

1. Letter from W. Michael McCabe dated April 20, 1998.

2. Letter from W. Michael McCabe dated November 19, 1998.

3. Federal Register notice dated January 26, 1999 (64 FR 3938).

4. Letter from Judith M. Katz dated May 30, 2001.

5. Federal Register notice dated January 8, 2002 (67 FR 825).

C. In its delegation notices and letters, EPA automatically delegated to the Commonwealth the authority to implement and enforce future MACT requirements if the Commonwealth legally adopted the requirements, informed EPA that it intended to enforce the standards in accordance with the terms of the delegation, and met other conditions. The latest letter that the Commonwealth submitted to obtain authority to implement and enforce additional requirements is available for examination as provided in subsection D of this section.

D. Copies of the documents cited in subsections B and C of this section may be examined by the public at the central office of the Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia between 8:30 a.m. and 4:30 p.m. of each business day.

E. The documents cited in subsection B of this section establish the terms of the delegation to the Commonwealth to implement and enforce the federal MACT as authorized by EPA. As such, the documents place requirements upon the Commonwealth, not the affected facilities; thus, the documents are not being incorporated by reference into the regulations of the board but are being cited for information purposes only.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-100 Designated emission standards

Subpart A - General Provisions.

40 CFR 63.1 through 40 CFR 63.11; 40 CFR 63.16

(applicability, definitions, units and abbreviations, prohibited activities and circumvention, construction and reconstruction, compliance with standards and maintenance requirements, performance testing requirements, monitoring requirements, notification requirements, recordkeeping and reporting requirements, control device requirements, performance track provisions)

Subpart B - Not applicable.

Subpart C - List of Hazardous Air Pollutants, Petitions Process, Lesser Quantity Designations, Source Category List.

40 CFR 63.60, 40 CFR 63.61, 40 CFR 63.62, 40 CFR 63.63, and 40 CFR 63.64

(deletion of caprolactam from the list of hazardous air pollutants, deletion of methyl ethyl ketone from the list of hazardous air pollutants, redefinition of glycol ethers listed as hazardous air pollutants, deletion of ethylene glycol monobutyl ether from the list of hazardous air pollutants, addition of 1-bromopropane (1-BP) to the list of hazardous air pollutants)

Subpart D - Not applicable.

Subpart E - Not applicable.

Subpart F - Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry.

40 CFR 63.100 through 40 CFR 63.106

(chemical manufacturing process units that manufacture as a primary product one or more of a listed chemical; use as a reactant or manufacture as a product, by-product, or co-product, one or more of a listed organic hazardous air pollutant; and are located at a plant site that is a major source as defined in § 112 of the federal Clean Air Act)

Subpart G - Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater.

40 CFR 63.110 through 40 CFR 63.152

(all process vents, storage vessels, transfer operations, and wastewater streams within a source subject to Subpart F, 40 CFR 63.100 through 40 CFR 63.106)

Subpart H - Organic Hazardous Air Pollutants for Equipment Leaks.

40 CFR 63.160 through 40 CFR 63.182

(pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, surge control vessels, bottoms receivers, instrumentation systems, and control devices or systems that are intended to operate in organic hazardous air pollutant service 300 hours or more during the calendar year within a source subject to the provisions of a specific subpart in 40 CFR Part 63)

Subpart I - Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks.

40 CFR 63.190 through 40 CFR 63.192

(emissions of designated organic hazardous air pollutants from processes specified in this subpart that are located at a plant site that is a major source as defined in § 112 of the federal Clean Air Act)

Subpart J - Polyvinyl Chloride and Copolymers Production.

40 CFR 63.210 through 40 CFR 63.217

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations.)

Subpart K - Reserved.

Subpart L - Coke Oven Batteries.

40 CFR 63.300 through 40 CFR 63.313

(existing by-product coke oven batteries at a coke plant, and existing nonrecovery coke oven batteries located at a coke plant)

Subpart M - Perchlorethylene Dry Cleaning Facilities.

40 CFR 63.320 through 40 CFR 63.325

(each dry cleaning facility that uses perchlorethylene)

Subpart N - Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks.

40 CFR 63.340 through 40 CFR 63.347

(each chromium electroplating or chromium anodizing tank at facilities performing hard chromium electroplating, decorative chromium electroplating, or chromium anodizing)

Subpart O - Ethylene Oxide Commercial Sterilization and Fumigation Operations.

40 CFR 63.360 through 40 CFR 63.367

(sterilization sources using ethylene oxide in sterilization or fumigation operations)

Subpart P - Reserved.

Subpart Q - Industrial Process Cooling Towers.

40 CFR 63.400 through 40 CFR 63.406

(industrial process cooling towers that are operated with chromium-based water treatment chemicals)

Subpart R - Gasoline Distribution Facilities.

40 CFR 63.420 through 40 CFR 63.429

(bulk gasoline terminals and pipeline breakout stations)

Subpart S - Pulp and Paper Industry.

40 CFR 63.440 through 40 CFR 63.458

(processes that produce pulp, paper, or paperboard, and use the following processes and materials: kraft, soda, sulfite, or semi-chemical pulping processes using wood; or mechanical pulping processes using wood; or any process using secondary or nonwood fibers)

Subpart T - Halogenated Solvent Cleaning.

40 CFR 63.460 through 40 CFR 63.469

(each individual batch vapor, in-line vapor, in-line cold, and batch cold solvent cleaning machine that uses any solvent containing methylene chloride, perchlorethylene, trichloroethylene, 1,1,1-trichloroethane, carbon tetrachloride, or chloroform)

Subpart U - Group I Polymers and Resins.

40 CFR 63.480 through 40 CFR 63.506

(elastomer product process units that produce butyl rubber, halobutyl rubber, epichlorohydrin elastomers, ethylene propylene rubber, Hypalon™, neoprene, nitrile butadiene rubber, nitrile butadiene latex, polysulfide rubber, polybutadiene rubber/styrene butadiene rubber by solution, styrene butadiene latex, and styrene butadiene rubber by emulsion)

Subpart V - Reserved.

Subpart W - Epoxy Resins Production and Non-Nylon Polyamides Production.

40 CFR 63.520 through 40 CFR 63.527

(manufacturers of basic liquid epoxy resins and wet strength resins)

Subpart X - Secondary Lead Smelting.

40 CFR 63.541 through 40 CFR 60.552

(at all secondary lead smelters: blast, reverberatory, rotary, and electric smelting furnaces; refining kettles; agglomerating furnaces; dryers; process fugitive sources; and fugitive dust sources)

Subpart Y - Marine Tank Vessel Tank Loading Operations.

40 CFR 63.560 through 40 CFR 63.567

(marine tank vessel unloading operations at petroleum refineries)

Subpart Z - Reserved.

Subpart AA - Phosphoric Acid Manufacturing Plants.

40 CFR 63.600 through 40 CFR 63.611

(wet-process phosphoric acid process lines, evaporative cooling towers, rock dryers, rock calciners, superphosphoric acid process lines, purified acid process lines)

Subpart BB - Phosphate Fertilizers Production Plants.

40 CFR 63.620 through 40 CFR 63.632

(diammonium and monoammonium phosphate process lines, granular triple superphosphate process lines, and granular triple superphosphate storage buildings)

Subpart CC - Petroleum Refineries.

40 CFR 63.640 through 40 CFR 63.671

(storage tanks, equipment leaks, process vents, and wastewater collection and treatment systems at petroleum refineries)

Subpart DD - Off-Site Waste and Recovery Operations.

40 CFR 63.680 through 40 CFR 63.697

(operations that treat, store, recycle, and dispose of waste received from other operations that produce waste or recoverable materials as part of their manufacturing processes)

Subpart EE - Magnetic Tape Manufacturing Operations.

40 CFR 63.701 through 40 CFR 63.708

(manufacturers of magnetic tape)

Subpart FF - Reserved.

Subpart GG - Aerospace Manufacturing and Rework Facilities.

40 CFR 63.741 through 40 CFR 63.759

(facilities engaged in the manufacture or rework of commercial, civil, or military aerospace vehicles or components)

Subpart HH - Oil and Natural Gas Production Facilities.

40 CFR 63.760 through 40 CFR 63.779

(facilities that process, upgrade, or store hydrocarbon liquids or natural gas; ancillary equipment and compressors intended to operate in volatile hazardous air pollutant service)

Subpart II - Shipbuilding and Ship Repair (Surface Coating).

40 CFR 63.780 through 40 CFR 63.788

(shipbuilding and ship repair operations)

Subpart JJ - Wood Furniture Manufacturing Operations.

40 CFR 63.800 through 40 CFR 63.819

(finishing materials, adhesives, and strippable spray booth coatings; storage, transfer, and application of coatings and solvents)

Subpart KK - Printing and Publishing Industry.

40 CFR 63.820 through 40 CFR 63.831

(publication rotogravure, product and packaging rotogravure, and wide-web printing processes)

Subpart LL - Primary Aluminum Reduction Plants.

40 CFR 63.840 through 40 CFR 63.859

(each pitch storage tank, potline, paste production plant, or anode bulk furnace associated with primary aluminum production)

Subpart MM - Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite and Stand-Alone Semichemical Pulp Mills.

40 CFR 63.860 through 40 CFR 63.868

(chemical recovery systems, direct and nondirect contact evaporator recovery furnace systems, lime kilns, sulfite combustion units, semichemical combustion units)

Subpart NN - Wool Fiberglass Manufacturing at Area Sources.

40 CFR 63.880 through 40 CFR 63.899

(manufacture of wool fiberglass insulation materials composed of glass fibers made from glass produced or melted at the same facility where the manufacturing line is located)

Subpart OO - Tanks--Level 1.

40 CFR 63.900 through 40 CFR 63.907

(for off-site waste and recovery operations, fixed-roof tanks)

Subpart PP - Containers.

40 CFR 63.920 through 40 CFR 63.928

(for off-site waste and recovery operations, containers)

Subpart QQ - Surface Impoundments.

40 CFR 63.940 through 40 CFR 63.948

(for off-site waste and recovery operations, surface impoundment covers and vents)

Subpart RR - Individual Drain Systems.

40 CFR 63.960 through 40 CFR 63.966

(for off-site waste and recovery operations, inspection and maintenance of individual drain systems)

Subpart SS - Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process.

40 CFR 63.980 through 40 CFR 63.999

(closed vent systems, control devices, recovery devices, and routing to a fuel gas system or a process, when associated with facilities subject to a referencing subpart)

Subpart TT - Equipment Leaks - Control Level 1.

40 CFR 63.1000 through 40 CFR 63.1018

(control of air emissions from equipment leaks when associated with facilities subject to a referencing subpart)

Subpart UU - Equipment Leaks - Control Level 2.

40 CFR 63.1019 through 40 CFR 63.1039

(control of air emissions from equipment leaks when associated with facilities subject to a referencing subpart: pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, instrumentation systems, closed vent systems and control devices)

Subpart VV - Oil-Water Separators and Organic-Water Separators.

40 CFR 63.1040 through 40 CFR 63.1049

(for off-site waste and recovery operations, oil-water separators and organic-water separator roofs and vents)

Subpart WW - Storage Vessels (Tanks) - Control Level 2.

40 CFR 63.1060 through 40 CFR 63.1066

(storage vessels associated with facilities subject to a referencing subpart)

Subpart XX - Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste.

40 CFR 63.1080 through 40 CFR 63.1098

(any cooling tower system or once-through cooling water system)

Subpart YY - Generic Maximum Achievable Control Technology Standards.

40 CFR 63.1100 through 40 CFR 63.1113

(acetal resins production, acrylic and modacrylic fibers production, hydrogen fluoride production, polycarbonate production)

Subpart ZZ - Reserved.

Subpart AAA - Reserved.

Subpart BBB - Reserved.

Subpart CCC - Steel Pickling - Hydrogen Chloride Process Facilities and Hydrochloric Acid Regeneration Plants.

40 CFR 63.1155 through 40 CFR 63.1174

(steel pickling facilities that pickle carbon steel using hydrochloric acid solution, hydrochloric acid regeneration plants)

Subpart DDD - Mineral Wool Production.

40 CFR 63.1175 through 40 CFR 63.1199

(cupolas and curing ovens at mineral wool manufacturing facilities)

Subpart EEE - Hazardous Waste Combustors.

40 CFR 63.1200 through 40 CFR 63.1221

(hazardous waste combustors)

Subpart FFF - Reserved.

Subpart GGG - Pharmaceutical Production.

40 CFR 63.1250 through 40 CFR 63.1261

(pharmaceutical manufacturing operations)

Subpart HHH - Natural Gas Transmission and Storage Facilities.

40 CFR 63.1270 through 40 CFR 63.1289

(natural gas transmission and storage facilities that transport or store natural gas prior to entering the pipeline to a local distribution company or to a final end user)

Subpart III - Flexible Polyurethane Foam Production.

40 CFR 63.1290 through 40 CFR 63.1309

(flexible polyurethane foam or rebond processes)

Subpart JJJ - Group IV Polymers and Resins.

40 CFR 63.1310 through 40 CFR 63.1335

(facilities which manufacture acrylonitrile butadiene styrene resin, styrene acrylonitrile resin, methyl methacrylate butadiene styrene resin, polystyrene resin, poly(ethylene terephthalate) resin, or nitrile resin)

Subpart KKK - Reserved.

Subpart LLL - Portland Cement Manufacturing.

40 CFR 63.1340 through 40 CFR 63.1359

(kilns; in-line kilns/raw mills; clinker coolers; raw mills; finish mills; raw material dryers; raw material, clinker, or finished product storage bins; conveying system transfer points; bagging systems; bulk loading or unloading systems)

Subpart MMM - Pesticide Active Ingredient Production.

40 CFR 63.1360 through 40 CFR 63.1369

(pesticide active ingredient manufacturing process units, waste management units, heat exchange systems, and cooling towers)

Subpart NNN - Wool Fiberglass Manufacturing.

40 CFR 63.1380 through 40 CFR 63.1399

(glass melting furnaces, rotary spin wool fiberglass manufacturing lines producing bonded wool fiberglass building insulation or bonded heavy-density product)

Subpart OOO - Amino/Phenolic Resins Production.

40 CFR 63.1400 through 40 CFR 63.1419

(unit operations, process vents, storage vessels, equipment subject to leak provisions)

Subpart PPP - Polyether Polyols Production.

40 CFR 63.1420 through 40 CFR 63.1439

(polyether polyol manufacturing process units)

Subpart QQQ - Primary Copper Smelting.

40 CFR 63.1440 through 40 CFR 63.1-1459

(batch copper converters, including copper concentrate dryers, smelting furnaces, slag cleaning vessels, copper converter departments, and the entire group of fugitive emission sources)

Subpart RRR - Secondary Aluminum Production.

40 CFR 63.1500 through 40 CFR 63.1520

(scrap shredders; thermal chip dryers; scrap dryers/delacquering kilns/decoating kilns; group 2, sweat, dross-only furnaces; rotary dross coolers; processing units)

Subpart SSS - Reserved.

Subpart TTT - Primary Lead Smelting.

40 CFR 63.1541 through 40 CFR 63.1550

(sinter machines, blast furnaces, dross furnaces, process fugitive sources, fugitive dust sources)

Subpart UUU - Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units.

40 CFR 63.1560 through 40 CFR 63.1579

(petroleum refineries that produce transportation and heating fuels or lubricants, separate petroleum, or separate, crack, react, or reform an intermediate petroleum stream, or recover byproducts from an intermediate petroleum stream)

Subpart VVV - Publicly Owned Treatment Works.

40 CFR 63.1580 through 40 CFR 63.1595

(intercepting sewers, outfall sewers, sewage collection systems, pumping, power, and other equipment)

Subpart WWW - Reserved.

Subpart XXX - Ferroalloys Production: Ferromanganese and Silicomanganese.

40 CFR 63.1620 through 40 CFR 63.1679

(submerged arc furnaces, metal oxygen refining processes, crushing and screening operations, fugitive dust sources)

Subpart YYY - Reserved.

Subpart ZZZ - Reserved.

Subpart AAAA - Municipal Solid Waste Landfills.

40 CFR 63.1930 through 40 CFR 63.1990

(municipal solid waste landfills that have accepted waste since November 8, 1987, or have additional capacity for waste deposition)

Subpart BBBB - Reserved.

Subpart CCCC - Manufacturing of Nutritional Yeast.

40 CFR 63.2130 through 40 CFR 63.2192

(fermentation vessels)

Subpart DDDD - Plywood and Composite Wood Products.

40 CFR 63.2230 through 40 CFR 63.2292

(manufacture of plywood and composite wood products by bonding wood material or agricultural fiber with resin under heat and pressure to form a structural panel or engineered wood product)

Subpart EEEE - Organic Liquids Distribution (Nongasoline).

40 CFR 63.2330 through 40 CFR 63.2406

(transfer of noncrude oil liquids or liquid mixtures that contain organic hazardous air pollutants, or crude oils downstream of the first point of custody, via storage tanks, transfer racks, equipment leak components associated with pipelines, and transport vehicles)

Subpart FFFF - Miscellaneous Organic Chemical Manufacturing.

40 CFR 63.2430 through 40 CFR 63.2550

(reaction, recovery, separation, purification, or other activity, operation, manufacture, or treatment that is used to produce a product or isolated intermediate)

Subpart GGGG - Solvent Extraction for Vegetable Oil Production.

40 CFR 63.2830 through 40 CFR 63.2872

(vegetable oil production processes)

Subpart HHHH - Wet-formed Fiberglass Mat Production.

40 CFR 63.2980 through 63.3079

(wet-formed fiberglass mat drying and curing ovens)

Subpart IIII - Surface Coating of Automobiles and Light-Duty Trucks.

40 CFR 63.3080 through 40 CFR 63.3176.

(application of topcoat to new automobile or new light-duty truck bodies or body parts)

Subpart JJJJ - Paper and Other Web Coating.

40 CFR 63.3280 through 40 CFR 63.3420

(web coating lines engaged in the coating of metal webs used in flexible packaging and in the coating of fabric substrates for use in pressure-sensitive tape and abrasive materials)

Subpart KKKK - Surface Coating of Metal Cans.

40 CFR 63.3480 through 40 CFR 63.3561

(application of coatings to a substrate using spray guns or dip tanks, including one-piece and two-piece draw and iron can body coating; sheetcoating; three-piece can body assembly coating; and end coating)

Subpart LLLL - Reserved.

Subpart MMMM - Surface Coating of Miscellaneous Metal Parts and Products.

40 CFR 63.3880 through 40 CFR 63.3981

(application of coatings to industrial, household, and consumer products)

Subpart NNNN - Surface Coating of Large Appliances.

40 CFR 63.4080 through 40 CFR 63.4181

(surface coating of a large appliance part or product, including cooking equipment; refrigerators, freezers, and refrigerated cabinets and cases; laundry equipment; dishwashers, trash compactors, and water heaters; and HVAC units, air-conditioning, air-conditioning and heating combination units, comfort furnaces, and electric heat pumps)

Subpart OOOO - Printing, Coating, and Dyeing of Fabrics and Other Textiles.

40 CFR 63.4280 through 40 CFR 63.4371

(printing, coating, slashing, dyeing, or finishing of fabric and other textiles)

Subpart PPPP - Surface Coating of Plastic Parts and Products.

40 CFR 63.4480 through 40 CFR 63.4581

(application of coating to a substrate using spray guns or dip tanks, including motor vehicle parts and accessories for automobiles, trucks, recreational vehicles; sporting and recreational goods; toys; business machines; laboratory and medical equipment; and household and other consumer products)

Subpart QQQQ - Surface Coating of Wood Building Products.

40 CFR 63.4680 through 40 CFR 63.4781

(finishing or laminating of wood building products used in the construction of a residential, commercial, or institutional building)

Subpart RRRR - Surface Coating of Metal Furniture.

40 CFR 63.4880 through 40 CFR 63.4981

(application of coatings to substrate using spray guns and dip tanks)

Subpart SSSS - Surface Coating of Metal Coil.

40 CFR 63.5080 through 40 CFR 63.5209

(organic coating to surface of metal coil, including web unwind or feed sections, work stations, curing ovens, wet sections, and quench stations)

Subpart TTTT - Leather Finishing Operations.

40 CFR 63.5280 through 40 CFR 63.5460

(multistage application of finishing materials to adjust and improve the physical and aesthetic characteristics of leather surfaces)

Subpart UUUU - Cellulose Products Manufacturing.

40 CFR 63.5480 through 40 CFR 63.5610

(cellulose food casing, rayon, cellulosic sponge, cellophane manufacturing, methyl cellulose, hydroxypropyl methyl cellulose, hydroxypropyl cellulose, hydroxyethyl cellulose, and carboxymethyl cellulose manufacturing industries)

Subpart VVVV - Boat Manufacturing.

40 CFR 63.5680 through 40 CFR 63.5779

(resin and gel coat operations, carpet and fabric adhesive operations, aluminum recreational boat surface coating operations)

Subpart WWWW - Reinforced Plastic Composites Production.

40 CFR 63.5780 through 40 CFR 63.5935

(reinforced or nonreinforced plastic composites or plastic molding compounds using thermostat resins and gel coats that contain styrene)

Subpart XXXX - Rubber Tire Manufacturing.

40 CFR 63.5980 through 40 CFR 63.6015

(production of rubber tires and components including rubber compounds, sidewalls, tread, tire beads, tire cord and liners)

Subpart YYYY - Stationary Combustion Turbines.

40 CFR 63.6080 through 40 CFR 63.6175

(simple cycle, regenerative/recuperative cycle, cogeneration cycle, and combined cycle stationary combustion turbines)

Subpart ZZZZ - Stationary Reciprocating Internal Combustion Engines.

40 CFR 63.6580 through 40 CFR 63.6675.

(any stationary internal combustion engine that uses reciprocating motion to convert heat energy into mechanical work)

(NOTE: Authority to enforce provisions related to affected facilities located at a major source as defined in 40 CFR 63.6675 is being retained by the Commonwealth. Authority to enforce the area source provisions of the above standard is being retained by EPA and are not incorporated by reference into these regulations for any source that is not (i) a major source as defined in 9VAC5-80-60 and subject to Article 1 (9VAC5-80-50 et seq., Federal Operating Permits for Stationary Sources) of Part II of 9VAC5-80 (Permits for Stationary Sources) or (ii) an affected source as defined in 9VAC5-80-370 and subject to Article 3 (9VAC5-80-360 et seq., Federal Operating Permits for Acid Rain Sources) of Part II of 9VAC5-80.)

Subpart AAAAA - Lime Manufacturing Plants.

40 CFR 63.7080 through 40 CFR 63.7143.

(manufacture of lime product, including calcium oxide, calcium oxide with magnesium oxide, or dead burned dolomite, by calcination of limestone, dolomite, shells or other calcareous substances)

Subpart BBBBB - Semiconductor Manufacturing.

40 CFR 63.7180 through 40 CFR 63.7195

(semiconductor manufacturing process units used to manufacture p-type and n-type semiconductors and active solid-state devices from a wafer substrate)

Subpart CCCCC - Coke Ovens: Pushing, Quenching, and Battery Stacks.

40 CFR 63.7280 through 40 CFR 63.7352

(pushing, soaking, quenching, and battery stacks at coke oven batteries)

Subpart DDDDD - Industrial, Commercial, and Institutional Boilers and Process Heaters.

40 CFR 63.7480 through 40 CFR 63.7575

(industrial, commercial, and institutional boilers and process heaters)

Subpart EEEEE - Iron and Steel Foundries.

40 CFR 63.7680 through 40 CFR 63.7765

(metal melting furnaces, scrap preheaters, pouring areas, pouring stations, automated conveyor and pallet cooling lines, automated shakeout lines, and mold and core making lines)

Subpart FFFFF - Integrated Iron and Steel Manufacturing.

40 CFR 63.7780 through 40 CFR 63.7852

(each sinter plant, blast furnace, and basic oxygen process furnace at an integrated iron and steel manufacturing facility)

Subpart GGGGG - Site Remediation.

40 CFR 63.7880 through 40 CFR 63.7957

(activities or processes used to remove, destroy, degrade, transform, immobilize, or otherwise manage remediation material)

Subpart HHHHH - Miscellaneous Coating Manufacturing.

40 CFR 63.7980 through 40 CFR 63.8105

(process vessels; storage tanks for feedstocks and products; pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, and instrumentation systems; wastewater tanks and transfer racks)

Subpart IIIII - Mercury Cell Chlor-Alkali Plants.

40 CFR 63.8180 through 40 CFR 63.8266

(byproduct hydrogen streams, end box ventilation system vents, and fugitive emission sources associated with cell rooms, hydrogen systems, caustic systems, and storage areas for mercury-containing wastes)

Subpart JJJJJ - Brick and Structural Clay Products Manufacturing.

40 CFR 63.8380 through 40 CFR 63.8515

(facilities that manufacture brick, clay pipe, roof tile, extruded floor and wall tile, and other extruded, dimensional clay products, and typically process raw clay and shale, form the processed materials into bricks or shapes, and dry and fire the bricks or shapes)

Subpart KKKKK - Ceramics Manufacturing.

40 CFR 63.8530 through 40 CFR 63.8665

(facilities that manufacture pressed floor tile, pressed wall tile, other pressed tile, or sanitaryware, and typically process clay, shale, and various additives, form the processed materials into tile or sanitaryware shapes, and dry and fire the ceramic products)

Subpart LLLLL - Asphalt Processing and Asphalt Roof Manufacturing.

40 CFR 63.8680 through 40 CFR 63.8698

(preparation of asphalt flux at stand-alone asphalt processing facilities, petroleum refineries, and asphalt roofing facilities)

Subpart MMMMM - Flexible Polyurethane Foam Fabrication Operations.

40 CFR 63.8780 through 40 CFR 63.8830

(flexible polyurethane foam fabrication plants using flame lamination or loop slitter adhesives)

Subpart NNNNN - Hydrochloric Acid Production.

40 CFR 63.8980 through 40 CFR 63.9075

(HCl production facilities that produce a liquid HCl product)

Subpart OOOOO - Reserved.

Subpart PPPPP - Engine Test Cells and Stands.

40 CFR Subpart 63.9280 through 40 CFR 63.9375

(any apparatus used for testing uninstalled stationary or uninstalled mobile (motive) engines)

Subpart QQQQQ - Friction Materials Manufacturing Facilities.

40 CFR 63.9480 through 40 CFR 63.9579

(friction materials manufacturing facilities that use a solvent-based process)

Subpart RRRRR - Taconite Iron Ore Processing.

40 CFR 63.9580 through 40 CFR 63.9652

(ore crushing and handling, ore dryer stacks, indurating furnace stacks, finished pellet handling, and fugitive dust)

Subpart SSSSS - Refractory Products Manufacturing.

40 CFR 63.9780 through 40 CFR 63.9824

(manufacture of refractory products, including refractory bricks and shapes, monolithics, kiln furniture, crucibles, and other materials for liming furnaces and other high temperature process units)

Subpart TTTTT - Primary Magnesium Refining.

40 CFR 63.9880 through 40 CFR 63.9942

(spray dryer, magnesium chloride storage bin scrubber, melt/reactor system, and launder off-gas system stacks)

Subpart UUUUU - Coal-fired and Oil-fired Electric Utility Steam Generating Units.

40 CFR 63.9980 through 40 CFR 63.10042

(any furnace, boiler, or other device used for combusting fuel for the purpose of producing steam, including fossil fuel-fired steam generators associated with integrated gasification combined cycle gas turbines and excluding nuclear steam generators, for the purpose of powering a generator to produce electricity or electricity and other thermal energy)

Subpart VVVVV - Reserved.

Subpart WWWWW - Hospital Ethylene Oxide Sterilizer Area Sources.

40 CFR 63.10382 through 40 CFR 63.10448

(any enclosed vessel that is filled with ethylene oxide gas or an ethylene oxide/inert gas mixture for the purpose of sterilization)

Subpart XXXXX - Reserved.

Subpart YYYYY - Electric Arc Furnace Steelmaking Facility Area Sources.

40 CFR 63.10680 through 40 CFR 63.10692

(a steel plant that produces carbon, alloy, or specialty steels using an electric arc furnace)

Subpart ZZZZZ - Iron and Steel Foundries Area Sources.

40 CFR 63.10880 through 40 CFR 63.10906

(a facility that melts scrap, ingot, and/or other forms of iron and/or steel and pours the resulting molten metal into molds to produce final or near final shape products for introduction into commerce)

Subpart AAAAAA - Reserved.

Subpart BBBBBB - Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities, Area Sources.

40 CFR 63.11080 through 40 CFR 63.11100

(gasoline storage tanks, gasoline loading racks, vapor collection-equipped gasoline cargo tanks, and equipment components in vapor or liquid gasoline service)

Subpart CCCCCC - Gasoline Dispensing Facilities, Area Sources.

40 CFR 63.11110 through 40 CFR 63.11132

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations for any source that is not (i) a major source as defined in 9VAC5-80-60 and subject to Article 1 (9VAC5-80-50 et seq., Federal Operating Permits for Stationary Sources) of Part II of 9VAC5-80 (Permits for Stationary Sources) or (ii) an affected source as defined in 9VAC5-80-370 and subject to Article 3 (9VAC5-80-360 et seq., Federal Operating Permits for Acid Rain Sources) of Part II of 9VAC5-80.)

Subpart DDDDDD - Polyvinyl Chloride and Copolymers Production Area Sources.

40 CFR 63.11140 through 40 CFR 63.11145

(plants that produce polyvinyl chloride or copolymers)

Subpart EEEEEE - Primary Copper Smelting Area Sources.

40 CFR 63.11146 through 40 CFR 63.11152

(any installation or any intermediate process engaged in the production of copper from copper sulfide ore concentrates through the use of pyrometallurgical techniques)

Subpart FFFFFF - Secondary Copper Smelting Area Sources.

40 CFR 63.11153 through 40 CFR 63.11159

(a facility that processes copper scrap in a blast furnace and converter or that uses another pyrometallurgical purification process to produce anode copper from copper scrap, including low-grade copper scrap)

Subpart GGGGGG - Primary Nonferrous Metals Area Sources--Zinc, Cadmium, and Beryllium.

40 CFR 63.11160 through 40 CFR 63.11168

(cadmium melting furnaces used to melt cadmium or produce cadmium oxide from the cadmium recovered in the zinc production; primary beryllium production facilities engaged in the chemical processing of beryllium ore to produce beryllium metal, alloy, or oxide, or performing any of the intermediate steps in these processes; and primary zinc production facilities engaged in the production, or any intermediate process in the production, of zinc or zinc oxide from zinc sulfide ore concentrates through the use of pyrometallurgical techniques)

Subpart HHHHHH - Paint Stripping and Miscellaneous Surface Coating Operations Area Sources.

40 CFR 63.11169 through 40 CFR 63.11180

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations for any source that is not (i) a major source as defined in 9VAC5-80-60 and subject to Article 1 (9VAC5-80-50 et seq., Federal Operating Permits for Stationary Sources) of Part II of 9VAC5-80 (Permits for Stationary Sources) or (ii) an affected source as defined in 9VAC5-80-370 and subject to Article 3 (9VAC5-80-360 et seq., Federal Operating Permits for Acid Rain Sources) of Part II of 9VAC5-80.)

Subpart IIIIII - Reserved.

Subpart JJJJJJ - Industrial, Commercial, and Institutional Boiler Area Sources.

40 CFR 63.11193 through 40 CFR 63.11226

(NOTE: Authority to enforce the above standard is being retained by EPA and is not incorporated by reference into these regulations for any source that is not (i) a major source as defined in 9VAC5-80-60 and subject to Article 1 (9VAC5-80-50 et seq., Federal Operating Permits for Stationary Sources) of Part II of 9VAC5-80 (Permits for Stationary Sources) or (ii) an affected source as defined in 9VAC5-80-370 and subject to Article 3 (9VAC5-80-360 et seq., Federal Operating Permits for Acid Rain Sources) of Part II of 9VAC5-80.)

Subpart KKKKKK - Reserved.

Subpart LLLLLL - Acrylic and Modacrylic Fibers Production Area Sources.

40 CFR 63.11393 through 40 CFR 63.11399

(production of either of the following synthetic fibers composed of acrylonitrile units: acrylic fiber or modacrylic fiber)

Subpart MMMMMM - Carbon Black Production Area Sources.

40 CFR 63.11400 through 40 CFR 63.11406

(carbon black production process units including all waste management units, maintenance wastewater, and equipment components that contain or contact HAP that are associated with the carbon black production process unit)

Subpart NNNNNN - Chemical Manufacturing Area Sources: Chromium Compounds.

40 CFR 63.11407 through 40 CFR 63.11413

(any process that uses chromite ore as the basic feedstock to manufacture chromium compounds, primarily sodium dichromate, chromic acid, and chromic oxide)

Subpart OOOOOO - Flexible Polyurethane Foam Production and Fabrication Area Sources.

40 CFR 63.11414 through 40 CFR 63.11420

(a facility where pieces of flexible polyurethane foam are cut, bonded, and/or laminated together or to other substrates)

Subpart PPPPPP - Lead Acid Battery Manufacturing Area Sources.

40 CFR 63.11421 through 40 CFR 63.11427

(grid casting facilities, paste mixing facilities, three-process operation facilities, lead oxide manufacturing facilities, lead reclamation facilities, and any other lead-emitting operation that is associated with the lead acid battery manufacturing plant)

Subpart QQQQQQ - Wood Preserving Area Sources.

40 CFR 63.11428 through 40 CFR 63.11434

(pressure or thermal impregnation of chemicals into wood to provide effective long-term resistance to attack by fungi, bacteria, insects, and marine borers)

Subpart RRRRRR - Clay Ceramics Manufacturing Area Sources.

40 CFR 63.11435 through 40 CFR 63.11447

(manufacture of pressed tile, sanitaryware, dinnerware, or pottery with an atomized glaze spray booth or kiln that fires glazed ceramic ware)

Subpart SSSSSS - Glass Manufacturing Area Sources.

40 CFR 63.11448 through 40 CFR 63.11461

(manufacture of flat glass, glass containers, or pressed and blown glass by melting a mixture of raw materials to produce molten glass and form the molten glass into sheets, containers, or other shapes)

Subpart TTTTTT - Secondary Nonferrous Metals Processing Area Sources.

40 CFR 63.11462 through 40 CFR 63.11474

(all crushing and screening operations at a secondary zinc processing facility and all furnace melting operations located at any secondary nonferrous metals processing facility)

Subpart UUUUUU - Reserved.

Subpart VVVVVV - Chemical Manufacturing Area Sources.

40 CFR 63.11494 through 40 CFR 11503

(each chemical manufacturing process unit that uses as feedstocks, generates as byproducts, or produces as products any of the following: 1,3-butadiene; 1,3-dichloropropene; acetaldehyde; chloroform; ethylene dichloride; methylene chloride; hexachlorobenzene; hydrazine; quinoline; or compounds of arsenic, cadmium, chromium, lead, manganese, or nickel)

Subpart WWWWWW - Plating and Polishing Operations, Area Sources.

40 CFR 63.11504 through 40 CFR 63.11513

(new and existing tanks, thermal spraying equipment, and mechanical polishing equipment used in non-chromium electroplating, electroless or non-electrolytic plating, non-electrolytic metal coating, dry mechanical polishing, electroforming, and electropolishing)

Subpart XXXXXX - Nine Metal Fabrication and Finishing Source Categories, Area Sources.

40 CFR 63.11514 through 40 CFR 63.11523

(NOTE: Authority to enforce the above standard is being retained by EPA and it is not incorporated by reference into these regulations for any source that is not (i) a major source as defined in 9VAC5-80-60 and subject to Article 1 (9VAC5-80-50 et seq., Federal Operating Permits for Stationary Sources) of Part II of 9VAC5-80 (Permits for Stationary Sources) or (ii) an affected source as defined in 9VAC5-80-370 and subject to Article 3 (9VAC5-80-360 et seq., Federal Operating Permits for Acid Rain Sources) of Part II of 9VAC5-80.)

Subpart YYYYYY - Ferroalloys Production Facilities, Area Sources.

40 CFR 63.11524 through 40 CFR 63.11543

(manufacture of silicon metal, ferrosilicon, ferrotitanium using the aluminum reduction process, ferrovanadium, ferromolybdenum, calcium silicon, silicomanganese zirconium, ferrochrome silicon, silvery iron, high-carbon ferrochrome, charge chrome, standard ferromanganese, silicomanganese, ferromanganese silicon, calcium carbide or other ferroalloy products using electrometallurgical operations including electric arc furnaces or other reaction vessels)

Subpart ZZZZZZ - Aluminum, Copper, and Other Nonferrous Foundries, Area Sources.

40 CFR 63.11544 through 40 CFR 63.11558

(melting operations at aluminum, copper, and other nonferrous foundries, including the collection of induction, reverberatory, crucible, tower, or dry hearth furnaces used to melt metal ingot, alloyed ingot and/or metal scrap to produce molten metal that is poured into molds to make castings)

Subpart AAAAAAA - Asphalt Processing and Asphalt Roofing Manufacturing Area Sources.

40 CFR 63.11559 through 40 CFR 63.11567

(asphalt processing operations that prepare asphalt flux at standalone asphalt processing facilities, petroleum refineries, and asphalt roofing facilities that include one or more asphalt flux blowing stills; and asphalt roofing manufacturing operations that manufacture asphalt roofing products through a series of sequential process steps depending upon whether the type of substrate used is organic or inorganic)

Subpart BBBBBBB - Chemical Preparations Industry Area Sources.

40 CFR 63.11579 through 40 CFR 63.11588

(any facility-wide collection of chemical preparation operations, including the collection of mixing, blending, milling, and extruding equipment used to manufacture chemical preparations that contain metal compounds for chromium, lead, manganese, and nickel)

Subpart CCCCCCC - Paints and Allied Products Manufacturing Area Sources.

40 CFR 63.11599 through 40 CFR 63.11638

(paints and allied products manufacturing processes, including, weighing, blending, mixing, grinding, tinting, dilution or other formulation, as well as cleaning operations, material storage and transfer, and piping)

Subpart DDDDDDD - Prepared Feeds Manufacturing Area Sources.

40 CFR 63.11619 through 40 CFR 63.11638

(production of animal feed from the point in the process where a material containing chromium or manganese is added, to the point where the finished product leaves the facility, including areas where materials containing chromium and manganese are stored, areas where materials containing chromium and manganese are temporarily stored prior to addition to the feed at the mixer, mixing and grinding processes, pelleting and pellet cooling processes, packing and bagging processes, crumblers and screens, bulk loading operations, and all conveyors and other equipment that transfer feed materials)

Subpart EEEEEEE - Gold Mine Ore Processing and Production Area Sources

40 CFR 63.11640 through 40 CFR 63.11653

(any industrial facility engaged in the processing of gold mine ore that uses any of the following processes: roasting operations, autoclaves, carbon kilns, preg tanks, electrowinning, mercury retorts, or melt furnaces)

Subpart FFFFFFF - Reserved.

Subpart GGGGGGG - Reserved.

Subpart HHHHHHH - Polyvinyl Chloride and Copolymers Production.

40 CFR 63.11860 through 40 CFR 63.12000

(facility-wide collection of PVCPU, storage vessels, heat exchange systems, surge control vessels, wastewater and process wastewater treatment systems that are associated with producing polyvinyl chloride and copolymers)

Appendix A - Test Methods.

Appendix B - Sources Defined for Early Reduction Provisions.

Appendix C - Determination of the Fraction Biodegraded (F_bio) in a Biological Treatment Unit.

Appendix D - Alternative Validation Procedure for EPA Waste and Wastewater Methods.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 13, eff. March 15, 2023.

9VAC5-60-110 Word or phrase substitutions

In all of the standards designated in 9VAC5-60-100 substitute:

1. "Board" for administrator.

2. "Board" for U.S. Environmental Protection Agency (except in references).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

Article 3 Control Technology Determinations for Major Sources of Hazardous Air Pollutants (Rule 6-3)

9VAC5-60-120 Applicability

Article 3 Control Technology Determinations for Major Sources of Hazardous Air Pollutants (Rule 6-3)

A. The provisions of this article apply to any owner of an affected source within a source category or subcategory for which the administrator has failed to promulgate a MACT standard by the § 112(j) of the federal Clean Air Act deadline.

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

C. The provisions of this article do not apply to research or laboratory activities.

D. If federal operating permit program applicability has been deferred for a source category, the provisions of this article shall not apply for sources in that category until those sources become subject to federal operating permit requirements.

E. The procedures in this article apply for each affected source only after the § 112(j) deadline for the source category or subcategory in question has passed, and only until such time as a generally applicable emission standard governing that source has been promulgated. Once a generally applicable emission standard governing that source has been promulgated, the owner of the affected source and the board are not required to take any further actions to develop an equivalent emission limitation under this article.

F. Any final equivalent emission limitation for an affected source that is issued by the board pursuant to this article prior to promulgation of a generally applicable emission standard governing that source shall be deemed an applicable federal requirement adopted pursuant to § 112(j) of the federal Clean Air Act. Each such equivalent emission limitation shall take effect upon issuance of the federal operating permit containing that limitation and shall remain applicable to the source until such time as it may be revised or supplanted pursuant to the procedures established by this article. Such a final equivalent emission limitation, and all associated requirements adopted pursuant to 9VAC5-60-140 F 2, are directly enforceable under federal law regardless of whether any permit in which they may be contained remains in effect.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. Juy 1, 2004.

9VAC5-60-130 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meaning given them in subsection C of this section.

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

C. Terms defined.

"Administrator" means the Administrator of the United States Environmental Protection Agency or his authorized representative.

"Affected source" means the collection of equipment, activities, or both within a single contiguous area and under common control that is in a source category or subcategory under § 112(c) of the federal Clean Air Act for which the administrator has failed to promulgate a MACT standard by the § 112(j) deadline, and that is addressed by an applicable MACT emission limitation established pursuant to this article.

"Affected states" means all states (i) whose air quality may be affected and that are contiguous to the Commonwealth of Virginia, and (ii) whose air quality may be affected and that are within 50 miles of the major source for which a MACT determination is made in accordance with 40 CFR Part 63.

"Alternative emission limitation" means conditions established pursuant to § 112(i)(5) or § 112(i)(6) of the federal Clean Air Act by the administrator or the board.

"Alternative emission standard" means an alternative means of emission limitation that, after notice and opportunity for public comment, has been demonstrated by an owner to the administrator's satisfaction to achieve a reduction in emissions of any air pollutant at least equivalent to the reduction in emissions of such pollutant achieved under a relevant design, equipment, work practice, or operational emission standard, or combination thereof, established under 40 CFR Part 63 pursuant to § 112(h) of the federal Clean Air Act.

"Area source" means any stationary source of hazardous air pollutants that is not a major source.

"Available information" means, for purposes of conducting a MACT floor finding and identifying control technology options for affected sources subject to the provisions of this article, any information that is available as of the date on which the first Part 2 MACT application is filed for a source in the relevant source category or subcategory, and, pursuant to the requirements of this article, is additional relevant information that can be expeditiously provided by the board or administrator, is submitted by the applicant or others prior to or during the public comment period on the equivalent emission limitation for that source under § 112(j) of the federal Clean Air Act, or information contained in the following information sources:

1. A relevant proposed regulation, including all supporting information.

2. Relevant background information documents for a draft or proposed regulation.

3. Any relevant regulation, information, or guidance collected by the board or administrator establishing a MACT floor finding or a case-by-case MACT determination.

4. Relevant data and information available from the Clean Air Control Technology Center developed pursuant to § 112(l)(3) of the federal Clean Air Act.

5. Relevant data and information contained in the Aerometric Informational Retrieval System (AIRS).

6. Any additional information that can be expeditiously provided by the board or administrator.

7. Any information provided by applicants in an application for a federal operating permit, permit modification, administrative amendment, or hazardous air pollutant new source review permit pursuant to the requirements of this article.

8. Any additional relevant information provided by the applicant.

"Case-by-case MACT determination" means a determination by the board, pursuant to the requirements of this article, which establishes a MACT emission limitation, MACT work practice standard, or other MACT requirements for an affected source subject to this article.

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

"Construction" means the on-site fabrication, erection, or installation of an affected source. Construction does not include the removal of all equipment comprising an affected source from an existing location and reinstallation of such equipment at a new location. The owner of an existing source that is relocated may elect not to reinstall minor ancillary equipment including, but not limited to, piping, ductwork, and valves. However, removal and reinstallation of an affected source will be construed as reconstruction if it satisfies the criteria for reconstruction as defined in this section. The costs of replacing minor ancillary equipment must be considered in determining whether the existing affected source is reconstructed.

"Control technology" means measures, processes, methods, systems, or techniques to limit the emission of hazardous air pollutants including, but not limited to, measures which:

1. Reduce the quantity, or eliminate emissions, of such pollutants through process changes, substitution of materials or other modifications;

2. Enclose systems or processes to eliminate emissions;

3. Collect, capture, or treat such pollutants when released from a process, stack, storage or fugitive emissions point;

4. Are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in 42 USC 7412(h); or

5. Are a combination of subdivisions 1 through 4 of this definition.

"Effective date" means:

1. With regard to an emission standard established under 40 CFR Part 63, the date of promulgation in the Federal Register of such standard; or

2. With regard to an alternative emission limitation or equivalent emission limitation determined by the administrator or board, the date that the alternative emission limitation or equivalent emission limitation becomes effective according to the provisions of 40 CFR Part 63.

"Emission point" means any part or activity of a major source that emits or has the potential to emit, under current operational design, any hazardous air pollutant.

"Emission standard" means a national standard, limitation, prohibition, or other regulation promulgated in a subpart of 40 CFR Part 63 pursuant to § 112(d), § 112(f), or § 112(h) of the federal Clean Air Act and incorporated by reference in 9VAC5 Chapter 60 (9VAC5-60).

"Enhanced review" means a review process containing all administrative steps needed to ensure that the terms and conditions resulting from the review process can be incorporated using federal operating permit program procedures.

"EPA" means the United States Environmental Protection Agency.

"Equivalent emission limitation" means an emission limitation, established under this article, which is equivalent to the emission standard that EPA would have promulgated under § 112(d) or § 112(h) of the federal Clean Air Act.

"Existing source" means any affected source that is not a new source.

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

"Federal operating permit program" means the operating permit system established pursuant to Title V of the federal Clean Air Act and regulations codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of Part II of 9VAC5 Chapter 80.

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

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

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

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

4. Limitations and conditions that are part of an approved implementation plan.

5. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or a new source review program permit issued under regulations approved by the EPA into the implementation plan.

6. Limitations and conditions that are part of a state operating permit where the permit and the permitting program pursuant to which it was issued meet all of the following criteria:

a. The operating permit program has been submitted to and approved by EPA into a state implementation plan (SIP) under § 110 of the federal Clean Air Act;

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

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

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

e. The permit in question was issued only after adequate and timely notice and opportunity for comment for EPA and the public.

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

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

"Fugitive emissions" means those emissions from a stationary source that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening. Under § 112 of the Clean Air Act, all fugitive emissions are to be considered in determining whether a stationary source is a major source.

"Hazardous air pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by 40 CFR 63.60.

"Hazardous air pollutant new source review permit" means a document issued pursuant to Article 7 (9VAC5-80-1400 et seq.) of Part II of 9VAC5 Chapter 80 containing all federally enforceable conditions necessary to enforce the application and operation of any maximum achievable control technology or other control technologies such that the MACT emission limitation is met.

"Hazardous air pollutant new source review program" means a program for the preconstruction review and permitting of new stationary sources that emit hazardous air pollutants in accordance with Article 7 (9VAC5-80-1400 et seq.) of Part II of 9VAC5 Chapter 80, promulgated to implement the requirements of § 112 (relating to permits for hazardous air pollutants) of the federal Clean Air Act.

"Major source" means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants, unless the board establishes a lesser quantity, or in the case of radionuclides, different criteria from those specified in this sentence.

"Maximum achievable control technology (MACT) emission limitation for existing sources" means the emission limitation reflecting the maximum degree of reduction in emissions of hazardous air pollutants (including a prohibition on such emissions, where achievable) that the board, taking into consideration the cost of achieving such emission reductions, and any nonair quality health and environmental impacts and energy requirements, determines is achievable by sources in the category or subcategory to which such a MACT standard applies. This limitation shall not be less stringent than the MACT floor.

"Maximum achievable control technology (MACT) emission limitation for new sources" means the emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions of hazardous air pollutants (including a prohibition on such emissions, where achievable) that the board, taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impacts and energy requirements, determines is achievable by sources in the category or subcategory to which such a MACT standard applies.

"Maximum achievable control technology (MACT) floor" means:

1. For existing sources:

a. The average emission limitation achieved by the best performing 12% of the existing sources (for which the administrator has emissions information), excluding those sources that have, within 18 months before the emission standard is proposed or within 30 months before such standard is promulgated, whichever is later, first achieved a level of emission rate or emission reduction which complies, or would comply if the source is not subject to such standard, with the lowest achievable emission rate (as defined in 9VAC5-80-2010) applicable to the source category and prevailing at the time, in the category or subcategory, for categories and subcategories of stationary sources with 30 or more sources; or

b. The average emission limitation achieved by the best performing five sources (for which the administrator has or could reasonably obtain emissions information) in the category or subcategory, for a category or subcategory of stationary sources with fewer than 30 sources;

2. For new sources, the emission limitation achieved in practice by the best controlled similar source.

"Maximum achievable control technology (MACT) standard" means:

1. An emission standard;

2. An alternative emission standard;

3. An alternative emission limitation; or

4. An equivalent emission limitation established pursuant to § 112 of the federal Clean Air Act that applies to the collection of equipment, activities, or both, regulated by such standard or limitation.

A MACT standard may include or consist of a design, equipment, work practice, or operational requirement, or other measure, process, method, system, or technique (including prohibition of emissions) that the administrator or board establishes for new or existing sources to which such standard or limitation applies. Every MACT standard established pursuant to § 112 of the federal Clean Air Act includes Subpart A of 40 CFR Part 63, as provided by 40 CFR 63.1(a)(4), and all applicable appendices of 40 CFR Part 63 or of other parts of Title 40 of the Code of Federal Regulations that are referenced in that standard.

"Minor new source review (MNSR) permit" means a document issued pursuant to Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5 Chapter 80 containing all federally enforceable conditions necessary to enforce the application and operation of any best achievable control technology or other requirements such that the applicable requirements are met.

"New affected source" means the collection of equipment, activities, or both, that if constructed after the issuance of a permit for the source pursuant to 9VAC5-60-140, is subject to the applicable MACT emission limitation for new sources. Each permit shall define the term "new affected source," which will be the same as the "affected source" unless a different collection is warranted based on consideration of factors including:

1. Emission reduction impacts of controlling individual sources versus groups of sources;

2. Cost effectiveness of controlling individual equipment;

3. Flexibility to accommodate common control strategies;

4. Cost and benefits of emissions averaging;

5. Incentives for pollution prevention;

6. Feasibility and cost of controlling processes that share common equipment (e.g., product recovery devices);

7. Feasibility and cost of monitoring; and

8. Other relevant factors.

"New source" means any affected source the construction or reconstruction of which is commenced after the administrator first proposes a MACT standard under 40 CFR Part 63 establishing an emission standard applicable to such source.

"New source review program" means a program for the preconstruction review and permitting of new stationary sources or expansions to existing ones in accordance with Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1700 et seq.), or Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5 Chapter 80 promulgated to implement the requirements of §§ 110(a)(2)(c), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is state and federally enforceable. Fugitive emissions count in determining the potential to emit of a stationary source.

"Reconstruction," unless otherwise defined in a MACT standard, means the replacement of components of an affected or a previously nonaffected source to such an extent that:

1. The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable new source; and

2. It is technologically and economically feasible for the reconstructed source to meet the MACT standards established by the administrator (or the board) pursuant to § 112 of the Clean Air Act. Upon reconstruction, an affected source, or a stationary source that becomes an affected source, is subject to MACT standards for new sources, including compliance dates, irrespective of any change in emissions of hazardous air pollutants from that source.

"Research or laboratory activities" means activities whose primary purpose is to conduct research and development into new processes and products where such activities are operated under the close supervision of technically trained personnel and are not engaged in the manufacture of products for commercial sale in commerce, except in a de minimis manner, and where the source is not in a source category, specifically addressing research or laboratory activities, that is listed pursuant to § 112(c)(7) of the federal Clean Air Act.

"Section 112(j) deadline" or "§ 112(j) deadline" means the date 18 months after the date by which a MACT standard is scheduled to be promulgated under 40 CFR Part 63, except that for all major sources listed in the source category schedule for which a MACT standard is scheduled to be promulgated by November 15, 1994, the § 112(j) deadline is November 15, 1996, and for all major sources listed in the source category schedule for which a MACT standard is scheduled to be promulgated by November 15, 1997, the § 112(j) deadline is December 15, 1999.

"Similar source" means that equipment or collection of equipment that, by virtue of its structure, operability, type of emissions and volume and concentration of emissions, is substantially equivalent to the new affected source and employs control technology for control of emissions of hazardous air pollutants that is practical for use on the new affected source.

"Source category schedule for standards" means the schedule issued pursuant to § 112(e) of the federal Clean Air Act for promulgating MACT standards issued pursuant to § 112(d) of the federal Clean Air Act and published in the Federal Register at 67 FR 6521, February 12, 2002.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-140 Approval process for new and existing affected sources

A. The requirements of subdivisions 1 and 2 of this subsection apply to major sources that include, as of the § 112(j) deadline, one or more sources in a category or subcategory for which the administrator has failed to promulgate an emission standard under 40 CFR Part 63 on or before an applicable § 112(j) deadline. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued to the source pursuant to the requirements of this article, shall apply to such sources.

1. The owner shall submit an application for a federal operating permit or for a revision to an existing federal operating permit or a pending federal operating permit meeting the requirements of 9VAC5-60-150 A by the § 112(j) deadline if the owner can reasonably determine that one or more sources at the major source belong in the category or subcategory subject to this article.

2. If an application was not submitted under subdivision A 1 of this section and if notified by the board, the owner shall submit an application for a federal operating permit or for a revision to an existing federal operating permit or a pending federal operating permit meeting the requirements of 9VAC5-60-150 A within 30 days after being notified in writing by the board that one or more sources at the major source belong to such category or subcategory.

3. The requirements in this subdivision apply when the owner has obtained a federal operating permit that incorporates a case-by-case MACT determination by the board under the hazardous air pollutant new source review program or has submitted a federal operating permit application for a revision that incorporates a case-by-case MACT determination under the hazardous air pollutant new source review program, but has not submitted an application for a federal operating permit revision that addresses the emission limitation requirements of this article.

a. When the owner has a federal operating permit that incorporates a case-by-case MACT determination by the board under the hazardous air pollutant new source review program, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A for a federal operating permit revision within 30 days of the § 112(j) deadline or within 30 days of being notified in writing by the board that one or more sources at the major source belong in such category or subcategory. Using the procedures established in subsection E of this section, the board will determine whether the emission limitations prescribed pursuant to the prior case-by-case MACT determination under the hazardous air pollutant new source review program are substantially as effective as the emission limitations which the board would otherwise prescribe pursuant to this article for the source in question. If the board determines that the emission limitations previously prescribed to effectuate the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe to effectuate this article for the source, then the board will retain the existing emission limitations in the permit as the emission limitations to effectuate this article. The federal operating permit applicable to that source shall be revised accordingly. If the board does not retain the existing emission limitations in the permit as the emission limitations to effectuate this article, the MACT requirements of this article are satisfied upon issuance of a revised federal operating permit incorporating any additional requirements of this article.

b. When the owner has submitted a federal operating permit application that incorporates a case-by-case MACT determination by the board under the hazardous air pollutant new source review program, but has not received the permit incorporating the hazardous air pollutant new source review program requirements, the owner shall continue to pursue a federal operating permit that addresses the emission limitation requirements of the hazardous air pollutant new source review program. Within 30 days of issuance of that federal operating permit, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A for a change to the existing federal operating permit. Using the procedures established in subsection E of this section, the board will determine whether the emission limitations prescribed pursuant to the prior case-by-case MACT determination under the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe pursuant to this article for the source in question. If the board determines that the emission limitations previously prescribed to effectuate the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe to effectuate this article for the source, then the board will retain the existing emission limitations in the permit as the emission limitations to effectuate this article. The federal operating permit applicable to that source shall be revised accordingly. If the board does not retain the existing emission limitations in the permit as the emission limitations to effectuate this article, the MACT requirements of this article are satisfied upon issuance of a revised federal operating permit incorporating any additional requirements of this article.

B. The requirements of this subsection apply to sources that do not meet the criteria in subsection A of this section on the § 112(j) deadline and are, therefore, not subject to this article on that date, but where events occur subsequent to the § 112(j) deadline that would bring the source under the requirements of this article, and the source does not have a federal operating permit that addresses the requirements of this article.

1. When one or more sources in a category or subcategory subject to the requirements of this article are installed at a major source, or result in the source becoming a major source due to the installation, and the installation does not invoke the hazardous air pollutant new source review program requirements, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A within 30 days of startup of the source. This application shall be reviewed using the procedures established in subsection E of this section. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

2. The requirements in this subdivision apply when one or more sources in a category or subcategory subject to this article are installed at a major source, or result in the source becoming a major source due to the installation, and the installation does require emission limitations to be established and permitted under the hazardous air pollutant new source review program, and the owner has not submitted an application for a federal operating permit revision that addresses the emission limitation requirements of this article. In this case, the owner shall apply for and obtain a federal operating permit that addresses the emission limitation requirements of the hazardous air pollutant new source review program. Within 30 days of issuance of that federal operating permit, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A for a revision to the existing federal operating permit. Using the procedures established in subsection E of this section, the board will determine whether the emission limitations prescribed pursuant to the prior case-by-case MACT determination under the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe pursuant to this article for the source in question. If the board determines that the emission limitations previously prescribed to effectuate the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe to effectuate this article for the source, then the board will retain the existing emission limitations in the permit as the emission limitations to effectuate this article. The federal operating permit applicable to that source shall be revised accordingly. If the board does not retain the existing emission limitations in the permit as the emission limitations to effectuate this article, the MACT requirements of this article are satisfied upon issuance of a revised federal operating permit incorporating any additional requirements of this article.

3. The owner of an area source that, due to a relaxation in any federally enforceable emission limitation (such as a restriction on hours of operation), increases its potential to emit hazardous air pollutants such that the source becomes a major source that is subject to this article, shall submit an application meeting the requirements of 9VAC5-60-150 A for a federal operating permit or for an application for a federal operating permit revision within 30 days after the date that such source becomes a major source. This application shall be reviewed using the procedures established in subsection E of this section. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

4. After December 1, 2002, if the administrator establishes a lesser quantity emission rate under § 112(a)(1) of the federal Clean Air Act that results in an area source becoming a major source that is subject to this article, then the owner of such a major source shall submit an application meeting the requirements of 9VAC5-60-150 A for a federal operating permit or for a change to an existing federal operating permit or pending federal operating permit on or before the date six months after the date that such source becomes a major source. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

C. The requirements of this subsection apply to major sources that include one or more sources in a category or subcategory for which the administrator fails to promulgate an emission standard under 40 CFR Part 63 on or before an applicable § 112(j) deadline, and the owner has a permit meeting the requirements of this article, and where changes occur at the major source to equipment, activities, or both, subsequent to the § 112(j) deadline.

1. If the federal operating permit already provides the appropriate requirements that address the events that occur under this subsection subsequent to the § 112(j) deadline, then the source shall comply with the applicable new source MACT or existing source MACT requirements as specified in the permit, and the requirements of this article are thus satisfied.

2. If the federal operating permit does not contain the appropriate requirements that address the events that occur under this subsection subsequent to the § 112(j) deadline, then the owner shall submit an application for a revision to the existing federal operating permit that meets the requirements of 9VAC5-60-150 A. The application shall be submitted within 30 days of beginning construction and shall be reviewed using the procedures established in subsection E of this section. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

D. Provisions concerning requests for applicability determination for MNSR permits are as follows:

1. An owner who is unsure of whether one or more sources at a major source belong in a category or subcategory for which the administrator has failed to promulgate an emission standard under 40 CFR Part 63 may, on or before an applicable § 112(j) deadline, request an applicability determination from the board by submitting an application meeting the requirements of 9VAC5-60-150 A by the applicable deadlines specified in subsection A, B, or C of this section.

2. In addition to meeting the requirements of subsections A, B, and C of this section, the owner of a new affected source may submit an application for a MNSR permit before construction, pursuant to 9VAC5-60-160.

E. Provisions concerning permit application review are as follows:

1. Each owner who is required to submit to the board a Part 1 MACT application that meets the requirements of 9VAC5-60-150 A for one or more sources in a category or subcategory subject to § 112(j) of the federal Clean Air Act shall also submit to the board a timely Part 2 MACT application for the same sources that meets the requirements of 9VAC5-60-150 B. Each owner shall submit the Part 2 MACT application for the sources in a particular category or subcategory no later than the applicable date specified in Table 6-3A. The submission date specified in Table 6-3A for Miscellaneous Organic Chemical Manufacturing shall apply to sources in each of the source categories listed in Table 6-3B. When the owner is required by this article to submit an application meeting the requirements of 9VAC5-60-150 A by a date that is after the date for a Part 2 MACT application for sources in the category or subcategory in question established by Table 6-3A, the owner shall submit a Part 2 MACT application meeting the requirements of 9VAC5-60-150 B within 60 additional days after the applicable deadline for submission of the Part 1 MACT application. Part 2 MACT applications will be reviewed by the board according to procedures established in 9VAC5-60-170. The resulting MACT determination will be incorporated into the source's federal operating permit according to procedures established under the federal operating permit program and any other regulations approved under the federal operating permit program.

2. Notwithstanding subdivision 1 of this subsection, the owner may request either an applicability determination or an equivalency determination by the board as provided in subdivisions 2 a and b of this subsection.

a. Each owner who submitted a request for an applicability determination pursuant to subdivision D 1 of this section on or before May 15, 2002, which remains pending before the board on March 29, 2004, and who still wishes to obtain such a determination, shall resubmit that request by July 1, 2004, or by the date which is 60 days after the administrator publishes in the Federal Register a proposed emission standard for the category or subcategory in question, whichever is later. Each request for an applicability determination that is resubmitted under this subdivision shall be supplemented to discuss the relation between the sources in question and the applicability provision in the proposed emission standard for the category or subcategory in question, and to explain why there may still be uncertainties that require a determination of applicability. The board will take action upon each properly resubmitted and supplemented request for an applicability determination within an additional 60 days after the applicable deadline for the resubmitted request. If the applicability determination is positive, the owner shall submit a Part 2 MACT application meeting the requirements of 9VAC5-60-150 B by the date specified for the category or subcategory in question in Table 6-3A. If the applicability determination is negative, then no further action by the owner is necessary.

b. As specified in subsections A and B of this section, an owner who has submitted an application meeting the requirements of 9VAC5-60-150 A may request a determination by the board of whether emission limitations adopted pursuant to a prior case-by-case MACT determination under the hazardous air pollutant new source review program that apply to one or more sources at a major source in a relevant category or subcategory are substantially as effective as the emission limitations that the board would otherwise adopt pursuant to § 112(j) of the federal Clean Air Act for the source in question. Such a request shall be submitted by the date for the category or subcategory in question specified in Table 6-3A. Any owner who previously submitted such a request under a prior version of this subdivision need not resubmit the request. Each request for an equivalency determination under this subdivision, regardless of when it was submitted, will be construed in the alternative as a complete application for an equivalent emission limitation under § 112(j) of the federal Clean Air Act. The process for determination by the board of whether the emission limitations in the prior case-by-case MACT determination are substantially as effective as the emission limitations that the board would otherwise adopt under § 112(j) of the federal Clean Air Act will include the opportunity for full public, EPA, and affected state review prior to a final determination. If the board determines that the emission limitations in the prior case-by-case MACT determination are substantially as effective as the emission limitations that the board would otherwise adopt under § 112(j) of the federal Clean Air Act, then the board will adopt the existing emission limitations in the permit as the emission limitations to effectuate § 112(j) of the federal Clean Air Act for the source in question. If more than three years remain on the current federal operating permit, the owner shall submit an application for a federal operating permit revision to make any conforming changes in the permit required to adopt the existing emission limitations as the § 112(j) of the federal Clean Air Act MACT emission limitations. If less than three years remain on the current federal operating permit, any required conforming changes will be made when the permit is renewed. If the board determines that the emission limitations in the prior case-by-case MACT determination under the hazardous air pollutant new source review program are not substantially as effective as the emission limitations that the board would otherwise adopt for the source in question under § 112(j) of the federal Clean Air Act, the board will make a new MACT determination and adopt a federal operating permit incorporating an appropriate equivalent emission limitation under § 112(j) of the federal Clean Air Act. Such a determination constitutes final action for purposes of judicial review under the federal operating permit program provisions.

3. Within 60 days of submittal of the Part 2 MACT application, the board will notify the owner in writing whether the application is complete or incomplete. The Part 2 MACT application shall be deemed complete on the date it was submitted unless the board notifies the owner in writing within 60 days of the submittal that the Part 2 MACT application is incomplete. A Part 2 MACT application is complete if it is sufficient to begin processing the application for a federal operating permit addressing the requirements of this article. In the event that the board disapproves a permit application or determines that the application is incomplete, the owner shall revise and resubmit the application to meet the objections of the board. The board will specify a reasonable period in which the owner is required to remedy the deficiencies in the disapproved or incomplete application. This period may not exceed six months from the date the owner is first notified that the application has been disapproved or is incomplete.

4. Following submittal of a Part 1 or Part 2 MACT application, the board may request additional information from the owner. The owner shall respond to such requests in a timely manner.

5. If the owner has submitted a timely and complete application as required by this section, any failure to have a federal operating permit addressing the requirements of this article shall not be a violation of this article, unless the delay in final action is due to the failure of the applicant to submit, in a timely manner, information required or requested to process the application. Once a complete application is submitted, the owner shall not be in violation of the requirement to have a federal operating permit addressing the requirements of this article.

F. The federal operating permit shall contain an equivalent emission limitation (or limitations) for the relevant category or subcategory determined on a case-by-case basis by the board, or, if the applicable criteria in subpart D of 40 CFR Part 63 are met, the federal operating permit may contain an alternative emission limitation. For the purposes of the preceding sentence, early reductions made pursuant to § 112(i)(5)(A) of the federal Clean Air Act shall be achieved not later than the date on which the MACT standard should have been promulgated according to the source category schedule for standards.

1. The federal operating permit shall contain an emission standard or emission limitation that is equivalent to existing source MACT and an emission standard or emission limitation that is equivalent to new source MACT for control of emissions of hazardous air pollutants. The MACT emission standards or limitations shall be determined by the board and shall be based on the degree of emission reductions that can be achieved if the control technologies or work practices are installed, maintained, and operated properly. The permit shall also specify the affected source and the new affected source. If construction of a new affected source or reconstruction of an affected source commences after a federal operating permit meeting the requirements of this article has been issued for the source, the new source MACT compliance dates shall apply.

2. The federal operating permit shall specify any notification, operation and maintenance, performance testing, monitoring, and reporting and recordkeeping requirements. In developing the federal operating permit, the board will consider and specify the appropriate provisions of subpart A of 40 CFR Part 63. The federal operating permit shall also include the information in subdivisions 2 a through c of this subsection.

a. In addition to the MACT emission limitation required by subdivision F 1 of this section, additional emission limits, production limits, operational limits or other terms and conditions necessary to ensure practicable enforceability of the MACT emission limitation;

b. Compliance certifications, testing, monitoring, reporting and recordkeeping requirements that are consistent with requirements established pursuant to the federal operating permit program and subsection H of this section; and

c. Compliance dates by which the owner shall be in compliance with the MACT emission limitation and all other applicable terms and conditions of the permit.

(1) The owner of an affected source subject to the requirements of this subdivision shall comply with the emission limitations by the date established in the source's federal operating permit. In no case shall such compliance date be later than three years after the issuance of the permit for that source, except where the board issues a permit that grants an additional year to comply in accordance with § 112(i)(3)(B) of the federal Clean Air Act, or unless otherwise specified in § 112(i) of the federal Clean Air Act, or in subpart D of 40 CFR Part 63.

(2) The owner of a new affected source, as defined in the federal operating permit meeting the requirements of this article, that is subject to the requirements of this article shall comply with a new source MACT level of control immediately upon startup of the new affected source.

G. The board will issue a federal operating permit meeting the requirements of this article within 18 months after submittal of the complete Part 2 MACT application.

H. In accordance with § 114(a)(3) of the federal Clean Air Act, monitoring shall be capable of demonstrating continuous compliance for each compliance period during the applicable reporting period. Such monitoring data shall be of sufficient quality to be used as a basis for directly enforcing all applicable requirements established under this article, including emission limitations.

I. Provisions concerning MACT emission limitations are as follows:

1. The owner of affected sources subject to subsections A, B, and C of this section shall comply with all requirements of this article that are applicable to affected sources, including the compliance date for affected sources established in subdivision F 2 c (1) of this section.

2. The owner of new affected sources subject to subdivision C 1 of this section shall comply with all requirements of this article that are applicable to new affected sources, including the compliance date for new affected sources established in subdivision F 2 c (2) of this section.

| TABLE 6-3A. SECTION 112(j) PART 2 APPLICATION DUE DATES. | | | --- | --- | | Due date | MACT standard | | 10/30/03 | Combustion Turbines. | | | Lime Manufacturing. | | | Site Remediation. | | | Iron and Steel Foundries. | | | Taconite Iron Ore Processing. | | | Miscellaneous Organic Chemical Manufacturing (MON).¹ | | | Organic Liquids Distribution. | | | Primary Magnesium Refining. | | | Metal Can (Surface Coating). | | | Plastic Parts and Products (Surface Coating). | | | Chlorine Production. | | | Miscellaneous Metal Parts and Products (Surface Coating) (and Asphalt/Coal Tar Application-Metal Pipes).² | | 4/28/04 | Industrial Boilers, Institutional/ Commercial Boilers and Process Heaters.³ | | | Plywood and Composite Wood Products. | | | Reciprocating Internal Combustion Engines.⁴ | | | Auto and Light-Duty Truck (Surface Coating). | | 8/13/05 | Industrial Boilers, Institutional/ Commercial Boilers, and Process Heaters.⁵ | | | Hydrochloric Acid Production.⁶ | | ¹Covers 23 source categories; see Table 6-3B. ²Two source categories. ³lncludes all sources in the three categories Industrial Boilers, Institutional/Commercial Boilers, and Process Heaters that burn no hazardous waste. ⁴lncludes engines greater than 500 brake horsepower. ⁵Includes all sources in the three categories Industrial Boilers, Institutional/Commercial Boilers, and Process Heaters that burn hazardous waste. ⁶lncludes furnaces that produce acid from hazardous waste at sources in the category Hydrochloric Acid Production. | |

TABLE 6-3B.

MISCELLANEOUS ORGANIC NESHAP (MON) SOURCE CATEGORIES.

Manufacture of Paints, Coatings, and Adhesives.

Alkyd Resins Production.

Maleic Anhydride Copolymers Production.

Polyester Resins Production.

Polymerized Vinylidene Chloride Production.

Polymethyl Methacrylate Resins Production.

Polyvinyl Acetate Emulsions Production.

Polyvinyl Alcohol Production.

Polyvinyl Butyral Production.

Ammonium Sulfate Production-Caprolactam By-Product Plants.

Quaternary Ammonium Compounds Production.

Benzyltrimethylammonium Chloride Production.

Carbonyl Sulfide Production.

Chelating Agents Production.

Chlorinated Paraffins Production.

Ethylidene Norbornene Production.

Explosives Production.

Hydrazine Production.

OBPA/1,3-Diisocyanate Production.

Photographic Chemicals Production.

Phthalate Plasticizers Production.

Rubber Chemicals Manufacturing.

Symmetrical Tetrachloropyridine Production.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-150 Application content for case-by-case MACT determinations

A. The Part 1 application for a case-by-case MACT determination shall contain the following information:

1. The name and address (physical location) of the major source;

2. A brief description of the major source and an identification of the relevant source category;

3. An identification of the types of emissions points belonging to the relevant source category; and

4. An identification of any affected sources for which a hazardous air pollutant new source review program MACT determination has been made.

B. The following provisions govern the Part 2 application for a case-by-case MACT determination:

1. In compiling a Part 2 MACT application, the owner may cross-reference specific information in any prior submission by the owner to the board, but in cross-referencing such information the owner may not presume favorable action on any prior application or request that is still pending. In compiling a Part 2 MACT application, the owner may also cross-reference any part of a proposed emission standard for any category or subcategory that includes sources to which the Part 2 application applies.

2. The Part 2 application for a MACT determination shall contain the following information:

a. For a new affected source, the anticipated date of startup of operation.

b. Each emission point or group of emission points at the affected source that is part of a category or subcategory for which a Part 2 MACT application is required and each of the hazardous air pollutants emitted at those emission points. When the administrator has proposed an emission standard for a category or subcategory, such information may be limited to those emission points and hazardous air pollutants that would be subject to control under the proposed standard.

c. Any existing federal, state, or local limitations or requirements governing emissions of hazardous air pollutants from those emission points that are part of a category or subcategory for which a Part 2 application is required.

d. For each identified emission point or group of affected emission points, an identification of control technology in place.

e. Any additional emission data or other information specifically requested by the board.

C. The Part 2 application for a MACT determination may, but is not required to, contain the following information:

1. Recommended emission limitations for the affected source and support information consistent with 40 CFR 63.52(f). The owner may recommend a specific design, equipment, work practice, or operational standard, or combination thereof, as an emission limitation;

2. A description of the control technologies that shall apply to meet the emission limitations including technical information on the design, operation, size, estimated control efficiency, and any other information deemed appropriate by the board, and identification of the affected sources to which the control technologies shall be applied; and

3. Relevant parameters to be monitored and frequency of monitoring to demonstrate continuous compliance with the MACT emission limitation over the applicable reporting period.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-160 Preconstruction review procedures for new affected sources subject to 9VAC5-60-140 C 1

A. The review process for new affected sources is as follows:

1. If the board requires an owner to obtain or revise a federal operating permit before construction of the new affected source, or when the owner chooses to obtain or revise a federal operating permit before construction, the owner shall follow the administrative procedures established under the federal operating permit program before construction of the new affected source.

2. If an owner is not required to obtain or revise a federal operating permit before construction of the new affected source (and has not elected to do so), but the new affected source is covered by any preconstruction or pre-operation review requirements established pursuant to the hazardous air pollutant new source review program, then the owner shall comply with those requirements. If the new affected source is not subject to the hazardous air pollutant new source review program, the board will issue a MNSR permit in accordance with the MNSR permit procedures supplemented by the procedures set forth in subsections B through H of this section before construction or operation of the new affected source.

3. Regardless of the review process, the case-by-case MACT determination will be consistent with the principles established in 9VAC5-60-170. The application for the applicable new source review permit or a federal operating permit, permit modification, or administrative amendment, whichever is applicable, will include the documentation required by 9VAC5-60-150.

B. The board will provide for an enhanced review of MNSR permits used to implement case-by-case MACT determinations in accordance with the following review procedures and compliance requirements:

1. The board will notify the owner in writing as to whether the application for a case-by-case MACT determination is complete or whether additional information is required.

2. The board will approve an applicant's proposed control technology, or the board will notify the owner in writing of its intention to disapprove a control technology.

3. The owner may present in writing, within a time frame specified by the board, additional information, considerations, or amendments to the application before the board's issuance of a final disapproval.

4. The board will issue a preliminary approval or issue a disapproval of the application taking into account additional information received from the owner.

5. A determination to disapprove any application will be in writing and will specify the grounds on which the disapproval is based.

6. Approval of an applicant's proposed control technology will be set forth in a MNSR permit as described in 9VAC5-60-140 F.

C. The board will provide opportunity for public comment on the preliminary MNSR permit prior to issuance, including, at a minimum:

1. Availability for public inspection, in at least one location in the area affected, of the information submitted by the owner and of the board's tentative determination;

2. A period for submittal of public comment of at least 30 days;

3. A notice by prominent advertisement in the area affected of the location of the source information and analysis specified in 9VAC5-60-140 F. The form and content of the notice will be substantially equivalent to that found in 9VAC5-80-270 or 9VAC5-80-670; and

4. An opportunity for a public hearing if one is requested. The board will give at least 30 days' notice in advance of any hearing.

D. The board will send copies of the preliminary permit (in time for comment) and final permit required by subsection C of this section to the administrator through the appropriate regional office, to affected states, and to all other state and local air pollution control agencies having jurisdiction in the region in which the new source would be located. The board will provide EPA with a review period for the final permit of at least 45 days, and will not issue the final MNSR permit until EPA objections are satisfied.

E. An owner of a major source that is subject to a case-by-case MACT determination shall comply with notification, operation and maintenance, performance testing, monitoring, reporting, and recordkeeping requirements established under 9VAC5-60-140 F 2, under the federal operating permit program, and at the discretion of the board, under Subpart A of 40 CFR Part 63. The board will provide the EPA with the opportunity to review compliance requirements for consistency with requirements established pursuant to the federal operating permit program during the review period under subsection D of this section.

F. If the board requires a new source review permit for a new source case-by-case MACT determination under this article, such requirement will not necessitate a determination under Subpart E of 40 CFR Part 63.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-170 Maximum achievable control technology (MACT) determinations for affected sources subject to case-by-case determination of equivalent emission ...

A. The board will determine whether the Part 1 and Part 2 MACT application is complete or an application for a MNSR permit is approvable. In either case, when the application is complete or approvable, the board will establish hazardous air pollutant emissions limitations equivalent to the limitations that would apply if an emission standard had been issued in a timely manner under § 112(d) or (h) of the federal Clean Air Act. The board will establish these emissions limitations consistent with the following requirements and principles:

1. Emission limitations will be established for the equipment and activities within the affected sources within a source category or subcategory for which the deadline in § 112(j) of the federal Clean Air Act has passed.

2. Each emission limitation for an existing affected source will reflect the maximum degree of reduction in emissions of hazardous air pollutants (including a prohibition on such emissions, where achievable) that the board, taking into consideration the cost of achieving such emission reduction and any nonair quality health and environmental impacts and energy requirements, determines is achievable by affected sources in the category or subcategory for which the deadline in § 112(j) of the federal Clean Air Act has passed. This limitation will not be less stringent than the MACT floor, which will be established by the board according to the requirements of § 112(d)(3)(A) and (B) of the federal Clean Air Act and will be based upon available information.

3. Each emission limitation for a new affected source will reflect the maximum degree of reduction in emissions of hazardous air pollutants (including a prohibition on such emissions, where achievable) that the board, taking into consideration the cost of achieving such emission reduction and any nonair quality health and environmental impacts and energy requirements, determines is achievable. This limitation will not be less stringent than the emission limitation achieved in practice by the best controlled similar source that will be established by the board according to the requirements of § 112(d)(3) of the federal Clean Air Act. This limitation will be based upon available information.

4. The board will select a specific design, equipment, work practice, or operational standard, or combination thereof, when it is not feasible to prescribe or enforce an equivalent emission limitation due to the nature of the process or pollutant. It is not feasible to prescribe or enforce a limitation when the administrator determines that hazardous air pollutants cannot be emitted through a conveyance designed and constructed to capture such pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with any federal, state, or local law, or the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.

5. Nothing in this article will prevent the board from establishing an emission limitation more stringent than required by federal regulations.

B. The owner shall submit additional copies of its Part 1 and Part 2 MACT application for a federal operating permit, permit revision, or MNSR permit, whichever is applicable, to the EPA at the same time the material is submitted to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-180 Requirements for case-by-case determination of equivalent emission limitations after promulgation of a subsequent MACT standard

A. If the administrator promulgates a MACT standard that is applicable to one or more affected source within a major source before the date a federal operating permit application under this subsection is approved, the permit will contain the promulgated standard rather than the emission limitation determined under 9VAC5-60-140, and the owner shall comply with the promulgated standard by the compliance date in the promulgated standard.

B. If the administrator promulgates a MACT standard under § 112(d) or § 112(h) of the federal Clean Air Act that is applicable to a source after the date a federal operating permit is issued pursuant to 9VAC5-60-140 or 9VAC5-60-160, the board will incorporate requirements of that standard in the permit upon its next renewal. The board will establish a compliance date in the revised federal operating permit that assures that the owner shall comply with the promulgated standard within a reasonable time, but not longer than eight years after such standard is promulgated or eight years after the date by which the owner was first required to comply with the emission limitation established by the federal operating permit, whichever is earlier. However, in no event will the period for compliance for existing sources be shorter than that provided for existing sources in the promulgated standard.

C. Notwithstanding the requirements of subsections A and B of this section, the requirements of subdivisions 1 and 2 of this subsection apply.

1. If the administrator promulgates a MACT standard under § 112(d) or (h) of the federal Clean Air Act that is applicable to an affected source after the date a federal operating permit application is approved under 9VAC5-60-140 or 9VAC5-60-160, the board is not required to change the emission limitation in the federal operating permit to reflect the promulgated standard if the board determines that the level of control required by the emission limitation in the federal operating permit is substantially as effective as that required by the promulgated standard pursuant to 40 CFR 63.1(e).

2. If the administrator promulgates an emission standard under § 112(d) or (h) of the federal Clean Air Act that is applicable to an affected source after the date a permit application is approved under 9VAC5-60-140 or 9VAC5-60-160, and the level of control required by the promulgated standard is less stringent than the level of control required by any emission limitation in the prior MACT determination, the board is not required to incorporate any less stringent emission limitation of the promulgated standard in the federal operating permit and may in its discretion consider any more stringent provisions of the MACT determination to be applicable legal requirements when issuing or revising such a federal operating permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

Article 4 Emission Standards for Toxic Pollutants from Existing Sources (Rule 6-4)

9VAC5-60-200 Applicability and designation of affected facility

Article 4 Emission Standards for Toxic Pollutants from Existing Sources (Rule 6-4)

A. Except as provided in subsections C, D, and E of this section, the affected facility to which the provisions of this article apply is each stationary source that emits or may emit any toxic pollutant and which is not subject to Article 5 (9VAC5-60-300 et seq.) of this part. Implementation of this article shall occur upon notification to the owner by the board through means such as an information request from the board or an operating permit review under Article 5 (9VAC5-80-800 et seq.) of Part II of 9VAC5 Chapter 80.

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

C. This article shall not apply to the following:

1. A stationary source that has a potential to emit a toxic pollutant with a TLV® at a level equal to or less than the exemption emission rate calculated using the exemption formulas set forth below for the applicable TLV®. If more than one exemption formula applies to a toxic pollutant emitted by a source, the potential to emit for that pollutant shall be equal to or less than both applicable exemption formulas in order for the source to be exempted for that pollutant. The exemption formulas apply on an individual basis to each toxic pollutant for which a TLV® has been established.

a. For toxic pollutants with a TLV-C®, the following exemption formula applies, provided the potential to emit does not exceed 22.8 pounds per hour:

Exempt Emission Rate (pounds per hour) = TLV-C® (mg/m³) x 0.033

b. For toxic pollutants with both a TLV-STEL® and a TLV-TWA®, the following exemption formulas apply, provided the potential to emit does not exceed 22.8 pounds per hour or 100 tons per year:

Exempt Emission Rate (pounds per hour) = TLV-STEL® (mg/m³) x 0.033

Exempt Emission Rate (tons per year) = TLV-TWA® (mg/m³) x 0.145

c. For toxic pollutants with only a TLV-TWA®, the following exemption formulas apply, provided the potential to emit does not exceed 22.8 pounds per hour or 100 tons per year:

Exempt Emission Rate (pounds per hour) = TLV-TWA® (mg/m³) x 0.066

Exempt Emission Rate (tons per year) = TLV-TWA® (mg/m³) x 0.145

2. A stationary source that has a potential to emit a toxic pollutant without a TLV® if, upon the owner's request, the board determines to exempt that toxic pollutant from the provisions of this article using available health effects information.

The exemption determination shall be made by the board using information submitted by the owner at the request of the board as set out in 9VAC5-60-240.

3. A stationary source subject to an emission standard or other requirement set forth in Article 2 (9VAC5-60-10 et seq.) of this part. If less than all of the stationary source is regulated by such an emission standard or other requirement, then only that part of the stationary source regulated by the emission standard or other requirement is exempted.

4. A stationary source in a source category that is regulated by an emission standard or other requirement established pursuant to § 112 of the federal Clean Air Act and subject to the source category schedule for standards. If less than all of the stationary source is in a source category that is regulated by such an emission standard or other requirement, then only that part of the stationary source in the source category regulated by the emission standard or other requirement is exempted.

5. A stationary source in a source category for which the U.S. Environmental Protection Agency has made a formal determination that no regulations or other requirements need to be established pursuant to § 112 of the federal Clean Air Act and has published the determination in the source category schedule for standards.

6. A boiler, incinerator, or industrial furnace as defined in 40 CFR 260.10 and subject to 9VAC20 Chapter 60 (9VAC20-60), provided it (i) meets the 99.99% destruction and removal efficiency standard required by 9VAC20 Chapter 60 (9VAC20-60), and (ii) has received a permit or has qualified for interim status in accordance with 9VAC20 Chapter 60 (9VAC20-60). The board shall be furnished with an acceptable certification that such boiler, incinerator, or industrial furnace is in compliance with the standards of its permit or interim status and applicable provisions of 9VAC20 Chapter 60 (9VAC20-60). Unless exempted under 9VAC5-60-200 C 4, facilities that burn hazardous waste for energy recovery are subject to this article.

7. A generator or boiler that burns only natural gas, #2 fuel oil, #4 fuel oil, #6 fuel oil, propane, or kerosene.

D. Provisions of this article do not apply to any consumer product used in the same manner as normal consumer use, provided the use results in a duration and frequency of exposure which is not greater than exposures experienced by consumers. This may include, but not be limited to, personal use items, janitorial cleaning supplies, and facility grounds maintenance products, such as fertilizers, pesticides, and paints for structural components.

E. With regard to the application of pesticides, the provisions of this article shall apply only to the air quality impact from emissions from application inside the premises of the following affected facilities:

1. Industrial and manufacturing operations, including warehouse and storage operations related to the operation of these facilities.

2. Warehouse and storage operations at transportation terminals.

The provisions of this article shall not apply to the air quality impact from emissions from the application of any pesticide outside.

F. No provision of this article shall limit the power of the board to apply the provisions of this article to any affected facility in order to prevent or remedy a condition that may cause or contribute to the endangerment of human health.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-210 Definitions

A. For the purpose of the Regulations for the Control and Abatement of Air Pollution and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

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

"Pesticide" means the same as the definition given in § 3.1-249.27 of the Virginia Pesticide Control Act.

"Potential to emit" means an emission rate based on the maximum capacity of a stationary source to emit a toxic pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a toxic pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or its effect on emissions is state or federally enforceable. Fugitive emissions shall be included in determining a stationary source's potential to emit.

"Significant ambient air concentration" means the concentration of a toxic pollutant in the ambient air that if exceeded may have the potential to injure human health.

"Source category schedule for standards" means the schedule issued pursuant to § 112(e) of the federal Clean Air Act for promulgating MACT standards issued pursuant to § 112(d) of the federal Clean Air Act and published in the Federal Register at 67 FR 6521, February 12, 2002.

"Threshold limit value (TLV®)" means the maximum airborne concentration of a substance to which the American Conference of Governmental Industrial Hygienists (ACGIH) believes that nearly all workers may be repeatedly exposed day after day without adverse effects and which is published in the ACGIH Handbook (see 9VAC5-20-21). The TLV® is divided into three categories: TLV-Time-Weighted Average® (TLV-TWA®), TLV-Short-Term Exposure Limit® (TLV-STEL®), and TLV-Ceiling® (TLV-C®).

"TLV-TWA®" means the time-weighted average concentration for a normal eight-hour workday and a 40-hour workweek, to which nearly all workers may be repeatedly exposed, day after day, without adverse effect (as defined in the ACGIH Handbook).

"TLV-STEL®" means the concentration to which workers may be exposed continuously for a short period of time without suffering from irritation, chronic or irreversible tissue damage, or narcosis of sufficient degree to increase the likelihood of accidental injury, impair self-rescue or materially reduce work efficiency. The TLV-STEL® supplements the TLV-TWA® where there are recognized acute effects from a substance whose toxic effects are primarily of a chronic nature.

"TLV-C®" means the concentration that should not be exceeded during any part of the working exposure.

"Toxic pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as revised by 40 CFR 63.60, or any other air pollutant that the board determines, through adoption of regulation, to present a significant risk to public health. This term excludes asbestos, fine mineral fibers, radionuclides, and any glycol ether that does not have a TLV®.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-220 Standard for toxic pollutants

If a stationary source is not exempt under 9VAC5-60-200 C, D, or E, then the following standards shall be met:

1. Regardless of any provision of any other regulation of the board, no owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions of toxic pollutants in such quantities as to cause, or contribute to, any significant ambient air concentration that may cause, or contribute to, the endangerment of human health.

2. The owner of an affected facility shall employ control strategies as may be directed by the board for the control of toxic pollutants. The board may consider the potency and toxicity of each regulated toxic pollutant as well as the technical and economic feasibility of any available control strategies. Possible control strategies may include but are not limited to emission control equipment, process changes, substitution of less toxic or nontoxic materials, or operation and maintenance procedures which lower or eliminate emissions of toxic pollutants.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-230 Significant ambient air concentration guidelines

For the purpose of case-by-case consideration between the board and the owner, significant ambient air concentrations are any of the following:

1. For pollutants with a TLV-C®, any one-hour concentration of a toxic pollutant in excess of 1/40 of the TLV-C®.

2. For pollutants with both a TLV-STEL® and a TLV-TWA®, any one-hour concentration of a toxic pollutant in excess of 1/40 of the TLV-STEL® and any annual concentration of a toxic pollutant in excess of 1/500 of the TLV-TWA®.

3. For pollutants with only a TLV-TWA®, any annual concentration of a toxic pollutant in excess of 1/500 of the TLV-TWA® and any one-hour concentration of a toxic pollutant in excess of 1® of the TLV-TWA®.

4. Any concentration resulting from the emissions of a toxic pollutant from an affected facility which the owner knows, or reasonably should be expected to know, may cause, or contribute to, the endangerment of human health.

5. Any concentration, other than those specified in subdivision 1, 2, 3, or 4 of this section, including those resulting from toxic pollutants not having a TLV®, which the board determines to cause, to have the potential to cause, or to contribute to, the endangerment of human health. This determination shall be made by considering information by recognized authorities on the specific health effects of such toxic pollutants.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-240 Submittal of information

The owner of an affected facility shall upon the request of the board submit such information as may be needed to determine the applicability of, or compliance with, this article. The board may determine the manner and form for the submittal of the information. Such information shall be submitted within 60 days of the request. Reasonable extensions may be granted when deemed appropriate by the board for extensive information gathering, such as emissions testing or review of large and complex facilities, and only if the request is accompanied by a written schedule.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-250 Determination of ambient air concentrations

A. The owner shall, upon the request of the board, provide an assessment as to whether his facility emits, or may emit, any toxic pollutant in such quantities as to cause, or contribute to, any concentration exceeding, or which may exceed, any significant ambient air concentration.

B. Ambient air concentrations shall be determined using air quality analysis techniques (modeling) based on emission rates equal to the potential to emit of the stationary source for the applicable averaging time or any other method acceptable to the board.

C. Ambient air concentrations shall include all emissions from the stationary source, including those from sources exempted under 9VAC5-60-200 C.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-260 Compliance

A. If the board has reason to believe that the emissions from an affected facility are, or may be, discharged in such quantities so as to cause, or contribute to, any ambient air concentration that is (i) in excess of any significant ambient air concentration specified in 9VAC5-60-230 or (ii) has the potential to cause or contribute to substantial and imminent endangerment of human health, the owner shall choose one or more of the following options and comply with the schedules contained in subsection B of this section.

1. Demonstrate that the emissions from the facility do not, and will not, cause, or contribute to, any of the significant ambient air concentrations in 9VAC5-60-230 being exceeded.

2. Demonstrate that the applicable significant ambient air concentration in 9VAC5-60-230 is inappropriate for the toxic pollutant in question by showing that the emissions from the affected facility produce no endangerment of human health.

3. Control the emissions from the affected facility to a level resulting in ambient air concentrations that are below the significant ambient air concentrations or resulting in such other ambient air concentrations acceptable to the board.

B. The owner shall notify the board of his choice under subsection A of this section within 45 days of notification by the department that his facility exceeds the significant ambient air concentration specified in 9VAC9-60-230. Within 45 days of notifying the board of the option under subsection A of this section, the owner shall submit a plan and schedule to the board for approval. If the owner fails to submit either his choice of an option as set out in subsection A of this section or a plan and schedule to implement that option, the board shall require the owner, on a schedule set out by the board, to comply with subdivision A 3 of this section. None of the times specified in this subsection include time needed for board approval. Reasonable extensions may be granted when deemed appropriate by the board.

C. Failure of the owner to accomplish any of the alternatives set forth in subsection A of this section in a manner acceptable to the board shall constitute a violation of 9VAC5-60-220.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-270 Public participation

If the owner of an affected facility chooses the demonstration under 9VAC5-60-260 A 2, the provisions of this section shall apply.

1. Prior to the decision of the board on the acceptability of the demonstration, the demonstration shall be subject to a public comment period of at least 30 days.

2. The board shall notify the public of the opportunity for public comment on the information available for public inspection under the provisions of subdivision 3 of this section. The notification shall be made by advertisement in one newspaper of general circulation in the affected air quality control region and, if available, one newspaper that circulates in the area where the affected facility is located. A copy of the notice shall be sent to the governing body of the locality where the affected facility is located and to the governing bodies of the localities where ambient air quality impacts from the affected facility exceed the significant ambient air concentration guidelines in 9VAC5-60-230. The notice shall include a brief description of the pollutants of concern and their possible impacts, the demonstration, a statement listing the requirements in subdivisions 4 and 5 of this section, and the name and telephone number of a department staff person from whom detailed information on the demonstration and the pollutants may be obtained.

3. Information relevant to the demonstration, including (i) information produced by the owner showing that the emissions from the affected facility do not endanger human health and (ii) the preliminary review, analysis and tentative determination of the board, shall be available for public inspection during the entire comment period in at least one location in the affected air quality control region.

4. Following the initial publication of notice of a public comment period, the board will receive written requests for a public hearing to consider the source's demonstration under 9VAC5-60-260 A 2. The request shall be submitted within 30 days of the appearance of the notice in the newspaper. Request for a public hearing shall contain the following information:

a. The name, mailing address and telephone number of the requester;

b. The names and addresses of all persons for whom the requester is acting as a representative;

c. The reason why a hearing is requested; and

d. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative, including an explanation of how and to what extent such interest would be directly and adversely affected by the demonstration in question.

5. The board shall review all timely requests for public hearing filed during the 30 days following the appearance of the public comment notice in the newspaper. Within 30 calendar days following the expiration of the public comment period the board shall grant a public hearing if it finds that one or both of the following apply:

a. There is significant public interest in the demonstration in question.

b. There are substantial, disputed issues relevant to the demonstration in question.

6. The board shall notify by mail the owner making the demonstration and each requester, at his last known address, of the decision to convene or deny a public hearing. The notice shall contain a description of the procedures for the public hearing and for the final determination under this section.

7. If the board decides to hold a public hearing, the hearing shall be scheduled at a time between 30 and 60 days after mailing the notification required by subdivision 6 of this section. The public hearing shall be held in the affected air quality control region.

8. The procedures for notification to the public and availability of information used for the public comment period and provided in subdivisions 2 and 3 of this section shall also be followed for the public hearing.

NOTE: In adopting amendments to this article to be effective May 1, 2002, the board renumbered the sections. In the interest of economy and efficiency, the board did not make the corresponding change at each place the old section numbers occur throughout the Regulations for the Control and Abatement of Air Pollution. However, it is the intent of the board to make that change in other parts of the regulations as the opportunity presents itself. Until such changes are made, the old section numbers (9VAC5-40-160 through 9VAC5-40-230) shall be construed to mean the new section numbers (9VAC5-60-200 through 9VAC5-60-270) throughout the regulations of the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

Article 5 Emission Standards for Toxic Pollutants from New and Modified Sources (Rule 6-5)

9VAC5-60-300 Applicability and designation of affected facility

Article 5 Emission Standards for Toxic Pollutants from New and Modified Sources (Rule 6-5)

A. Except as provided in subsections C, D, and E of this section, the affected facility to which the provisions of this article apply is each stationary source that emits or may emit any toxic pollutant and that either (i) is subject to the new source review program or (ii) has a permit containing emission limits and other requirements pursuant to this article.

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

C. This article shall not apply to the following:

1. A stationary source that has a potential to emit a toxic pollutant with a TLV® at a level equal to or less than the exemption emission rate calculated using the exemption formulas set forth below for the applicable TLV®. If more than one exemption formula applies to a toxic pollutant emitted by a source, the potential to emit for that pollutant shall be equal to or less than both applicable exemption formulas in order for the source to be exempted for that pollutant. The exemption formulas apply on an individual basis to each toxic pollutant for which a TLV® has been established.

a. For toxic pollutants with a TLV-C®, the following exemption formula applies, provided the potential to emit does not exceed 22.8 pounds per hour:

Exempt Emission Rate (pounds per hour) = TLV-C®(mg/m³) X 0.033

b. For toxic pollutants with both a TLV-STEL® and a TLV-TWA®, the following exemption formulas apply, provided the potential to emit does not exceed 22.8 pounds per hour or 100 tons per year:

Exempt Emission Rate (pounds per hour) = TLV-STEL®(mg/m³) X 0.033

Exempt Emission Rate (tons per year) = TLV-TWA®(mg/m³) X 0.145

c. For toxic pollutants with only a TLV-TWA®, the following exemption formulas apply, provided the potential to emit does not exceed 22.8 pounds per hour or 100 tons per year:

Exempt Emission Rate (pounds per hour) = TLV-TWA®(mg/m³) X 0.066

Exempt Emission Rate (tons per year) = TLV-TWA®(mg/m³) X 0.145

2. A stationary source that has a potential to emit any toxic pollutant without a TLV® if, upon the owner's request, the board determines to exempt that toxic pollutant from the provisions of this article using available health effects information.

The exemption determination shall be made by the board using information submitted by the owner at the request of the board as set out in 9VAC5-60-340.

3. A stationary source subject to an emission standard or other requirement set forth in Article 2 (9VAC5-60-10 et seq.) of this part. If less than all of the stationary source is regulated by such an emission standard or other requirement, then only that part of the stationary source regulated by the emission standard or other requirement is exempted.

4. A stationary source in a source category that is regulated by an emission standard or other requirement established pursuant to § 112 of the federal Clean Air Act and subject to the source category schedule for standards. If less than all of the stationary source is in a source category that is regulated by such an emission standard or other requirement, then only that part of the stationary source in the source category regulated by the emission standard or other requirement is exempted.

5. A stationary source in a source category for which the U.S. Environmental Protection Agency has made a formal determination that no regulations or other requirements need to be established pursuant to § 112 of the federal Clean Air Act and has published the determination in the source category schedule for standards.

6. A boiler, incinerator, or industrial furnace as defined in 40 CFR 260.10 and subject to 9VAC20 Chapter 60 (9VAC20-60), provided it (i) meets the 99.99% destruction and removal efficiency standard required by 9VAC20 Chapter 60 (9VAC20-60), and (ii) has received a permit or has qualified for interim status in accordance with 9VAC20 Chapter 60 (9VAC20-60). The board shall be furnished with an acceptable certification that such boiler, incinerator, or industrial furnace is in compliance with the standards of its permit or interim status and applicable provisions of 9VAC20 Chapter 60 (9VAC20-60). Unless exempted under 9VAC5-60-300 C 4, facilities that burn hazardous waste for energy recovery are subject to this article.

7. A generator or boiler that burns only natural gas, #2 fuel oil, #4 fuel oil, #6 fuel oil, propane, or kerosene.

D. Provisions of this article do not apply to any consumer product used in the same manner as normal consumer use, provided the use results in a duration and frequency of exposure which is not greater than exposures experienced by consumers. This may include, but not be limited to, personal use items, janitorial cleaning supplies, and facility grounds maintenance products, such as fertilizers, pesticides, and paints for structural components.

E. With regard to the application of pesticides, the provisions of this article shall apply only to the air quality impact from emissions from application inside the premises of the following affected facilities:

1. Industrial and manufacturing operations, including warehouse and storage operations related to the operation of these facilities.

2. Warehouse and storage operations at transportation terminals.

The provisions of this article shall not apply to the air quality impact from emissions from the application of any pesticide outside.

F. No provision of this article shall limit the power of the board to apply the provisions of this article to any affected facility in order to prevent or remedy a condition that may cause or contribute to the endangerment of human health.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-310 Definitions

A. For the purpose of the Regulations for the Control and Abatement of Air Pollution and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Best available control technology" means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each toxic pollutant which the board, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. If the board determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination of them, may be prescribed instead to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.

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

"Pesticide" means the same as the definition given in § 3.1-249.27 of the Virginia Pesticide Control Act.

"Potential to emit" means an emission rate based on the maximum capacity of a stationary source to emit a toxic pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a toxic pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or its effect on emissions is state or federally enforceable. Fugitive emissions shall be included in determining a stationary source's potential to emit.

"Significant ambient air concentration" means the concentration of a toxic pollutant in the ambient air that if exceeded may have the potential to injure human health.

"Source category schedule for standards" means the schedule issued pursuant to § 112(e) of the federal Clean Air Act for promulgating MACT standards issued pursuant to § 112(d) of the federal Clean Air Act and published in the Federal Register at 67 FR 6521, February 12, 2002.

"Threshold limit value (TLV®)" means the maximum airborne concentration of a substance to which the American Conference of Governmental Industrial Hygienists (ACGIH) believes that nearly all workers may be repeatedly exposed day after day without adverse effects and which is published in the ACGIH Handbook (see 9VAC5-20-21). The TLV® is divided into three categories: TLV-Time-Weighted Average® (TLV-TWA®), TLV-Short-Term Exposure Limit® (TLV-STEL®), and TLV-Ceiling® (TLV-C®).

"TLV-TWA®" means the time-weighted average concentration for a normal eight-hour workday and a 40-hour workweek, to which nearly all workers may be repeatedly exposed, day after day, without adverse effect (as defined in the ACGIH Handbook).

"TLV-STEL®" means the concentration to which workers may be exposed continuously for a short period of time without suffering from irritation, chronic or irreversible tissue damage, or narcosis of sufficient degree to increase the likelihood of accidental injury, impair self-rescue or materially reduce work efficiency. The TLV-STEL supplements the TLV-TWA® where there are recognized acute effects from a substance whose toxic effects are primarily of a chronic nature.

"TLV-C®" means the concentration that should not be exceeded during any part of the working exposure.

"Toxic pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as revised by 40 CFR 63.60, or any other air pollutant that the board determines, through adoption of regulation, to present a significant risk to public health. This term excludes asbestos, fine mineral fibers, radionuclides, and any glycol ether that does not have a TLV®.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-320 Standard for toxic pollutants

If a stationary source is not exempt under 9VAC5-60-300 C, D, or E, then the following standards shall be met:

1. Regardless of any provision of any other regulation of the board, no owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions of toxic pollutants in such quantities as to cause, or contribute to, any significant ambient air concentration that may cause, or contribute to, the endangerment of human health.

2. The owner of new or modified sources shall employ best available control technology as may be approved by the board for the control of toxic pollutants.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-330 Significant ambient air concentration guidelines

For the purpose of case-by-case consideration between the board and the owner, significant ambient air concentrations are any of the following:

1. For pollutants with a TLV-C®, any one-hour concentration of a toxic pollutant in excess of 1/40 of the TLV-C®.

2. For pollutants with both a TLV-STEL® and a TLV-TWA®, any one-hour concentration of a toxic pollutant in excess of 1/40 of the TLV-STEL® and any annual concentration of a toxic pollutant in excess of 1/500 of the TLV-TWA®.

3. For pollutants with only a TLV-TWA®, any annual concentration of a toxic pollutant in excess of 1/500 of the TLV-TWA® and any one-hour concentration of a toxic pollutant in excess of 1/20 of the TLV-TWA®.

4. Any concentration resulting from the emissions of a toxic pollutant from an affected facility which the owner knows, or reasonably should be expected to know, may cause, or contribute to, the endangerment of human health.

5. Any concentration, other than those specified in subdivision 1, 2, 3, or 4 of this section, including those resulting from toxic pollutants not having a TLV®, which the board determines to cause, to have the potential to cause, or to contribute to, the endangerment of human health. This determination will be made by considering information by recognized authorities on the specific health effects of such toxic pollutants.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-340 Submittal of information

The owner of an affected facility shall upon the request of the board submit such information as may be needed to determine the applicability of, or compliance with, this article. The board may determine the schedule, manner and form for the submittal of the information.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-350 Determination of ambient air concentrations

A. The owner shall, upon the request of the board, provide an assessment as to whether his facility emits, or may emit, any toxic pollutant in such quantities as to cause, or contribute to, any concentration exceeding, or which may exceed, any significant ambient air concentration.

B. Ambient air concentrations shall be determined using air quality analysis techniques (modeling) based on emission rates equal to the facility's potential to emit for the applicable averaging time or any other method acceptable to the board.

C. Ambient air concentrations shall include all emissions from the stationary source, including those from sources exempted under 9VAC5-60-300 C.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-360 Compliance

If the board has reason to believe that the emissions from an affected facility are, or may be, discharged in such quantities so as to cause, or contribute to, any ambient air concentration that is (i) in excess of any significant ambient air concentration specified in 9VAC5-60-330 or (ii) has the potential to cause or contribute to substantial and imminent endangerment of human health, a permit shall not be issued until the owner complies with one or more of the following:

1. Demonstrate that the emissions from the facility do not, and will not, cause, or contribute to, any of the significant ambient air concentrations in 9VAC5-60-330 being exceeded.

2. Demonstrate that the applicable significant ambient air concentration in 9VAC5-60-330 is inappropriate for the toxic pollutant in question by showing that the emissions from the affected facility produce no endangerment of human health.

3. Control the emissions from the affected facility to a level resulting in ambient air concentrations that are below the significant ambient air concentrations or resulting in such other ambient air concentrations acceptable to the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

9VAC5-60-370 Public participation

If the owner of an affected facility chooses the demonstration under subdivision 2 of 9VAC5-60-360, the provisions of this section shall apply.

1. Prior to the decision of the board on the acceptability of the demonstration, the demonstration shall be subject to a public comment period of at least 30 days.

2. The board shall notify the public of the opportunity for public comment on the information available for public inspection under the provisions of subdivision 3 of this section. The notification shall be made by advertisement in one newspaper of general circulation in the affected air quality control region and, if available, one newspaper that circulates in the area where the affected facility is located. A copy of the notice shall be sent to the governing body of the locality where the affected facility is located and to the governing bodies of the localities where ambient air quality impacts from the affected facility exceed the significant ambient air concentration guidelines in 9VAC5-60-330. The notice shall include a brief description of the pollutants of concern and their possible health impacts, the demonstration, a statement listing the requirements in subdivisions 4 and 5 of this section, and the name and telephone number of a department staff person from whom detailed information on the demonstration and the pollutants may be obtained.

3. Information relevant to the demonstration, including (i) information produced by the owner showing that the emissions from the affected facility do not endanger human health and (ii) the preliminary review, analysis and tentative determination of the board, shall be available for public inspection during the entire comment period in at least one location in the affected air quality control region.

4. Following the initial publication of notice of a public comment period, the board will receive written requests for a public hearing to consider the source's demonstration under subdivision 2 of 9VAC5-60-360. The request shall be submitted within 30 days of the appearance of the notice in the newspaper. Request for a public hearing shall contain the following information:

a. The name, mailing address and telephone number of the requester;

b. The names and addresses of all persons for whom the requester is acting as a representative;

c. The reason why a hearing is requested; and

d. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative, including an explanation of how and to what extent such interest would be directly and adversely affected by the demonstration in question.

5. The board shall review all timely requests for public hearing filed during the 30 days following the appearance of the public comment notice in the newspaper. Within 30 calendar days following the expiration of the public comment period the board shall grant a public hearing if it finds that one or both of the following apply:

a. There is significant public interest in the demonstration in question.

b. There are substantial, disputed issues relevant to the demonstration in question.

6. The board shall notify by mail the owner making the demonstration and each requester, at his last known address, of the decision to convene or deny a public hearing. The notice shall contain a description of the procedures for the public hearing and for the final determination under this section.

7. If the board determines to hold a public hearing, the hearing shall be scheduled at a time between 30 and 60 days after mailing the notification required by subdivision 6 of this section. The public hearing shall be held in the affected air quality control region.

8. The procedures for notification to the public and availability of information used for the public comment period and provided in subdivisions 2 and 3 of this section shall also be followed for the public hearing.

NOTE: In adopting amendments to this article to be effective May 1, 2002, the board renumbered the sections. In the interest of economy and efficiency, the board did not make the corresponding change at each place the old section numbers occur throughout the Regulations for the Control and Abatement of Air Pollution. However, it is the intent of the board to make that change in other parts of the regulations as the opportunity presents itself. Until such changes are made, the old section numbers (9VAC5-50-160 through 9VAC5-50-230) shall be construed to mean the new section numbers (9VAC5-60-300 through 9VAC5-60-370) throughout the regulations of the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from VR120-06-0101, eff. April 1, 1988; amended, Virginia Register Volume 12, Issue 3, eff. December 1, 1995; Volume 13, Issue 14, eff. May 1, 1997; Volume 14, Issue 11, eff. April 1, 1998; Volume 15, Issue 13, eff. April 14, 1999; Virginia Register Volume 16, Issue 14, eff. May 1, 2000; Volume 17, Issue 15, eff. June 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 19, Issue 6, eff. February 1, 2003; Volume 20, Issue 16, eff. June 1, 2004; Volume 21, Issue 7, eff. January 12, 2005; Volume 22, Issue 4, eff. December 1, 2005; Volume 23, Issue 17, eff. June 1, 2007; Volume 24, Issue 5, eff. December 12, 2007; Volume 25, Issue 12, eff. March 18, 2009; Volume 26, Issue 8, eff. January 20, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 10, eff. February 13, 2013; Volume 30, Issue 10, eff. July 1, 2014; Volume 31, Issue 12, eff. March 11, 2015; Volume 32, Issue 10, eff. February 10, 2016; Volume 33, Issue 10, eff. February 22, 2017; Volume 34, Issue 11, eff. February 21, 2018; Volume 35, Issue 11, eff. February 20, 2019; Volume 36, Issue 12, eff. March 4, 2020; Volume 37, Issue 4, eff. November 11, 2020.

Chapter 80 Permits for Stationary Sources

Part I Certain Permit Actions Before the Department

9VAC5-80-5 Definitions

A. For the purpose of applying this chapter in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. Unless otherwise required by context, all terms not defined herein shall have the meaning given them in 9VAC5-170 (Regulation for General Administration), 9VAC5-10 (General Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

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

1. Any standard or other requirement provided for in an implementation plan established pursuant to § 110, 111(d) or 129 of the federal Clean Air Act, including any source-specific provisions such as consent agreements or orders.

2. Any term or condition in any construction permit issued under the new source review program or in any operating permit issued pursuant to the state operating permit program. However, those terms or conditions designated as state-only enforceable shall not be applicable federal requirements.

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

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

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

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

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

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

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

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

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

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

13. Any standard or other requirement under § 126(a)(1) and (c) of the federal Clean Air Act.

"Controversial permit" means an air permitting action for which a public hearing has been granted pursuant 9VAC5-80-35. "Controversial permit" also means an air permitting action where a public hearing is required for (i) the construction of a new major source or for a major modification to an existing source, (ii) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iv) a new fossil fuel-fired compressor station facility used to transport natural gas, or (v) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas.

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

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

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

3. All terms and conditions (unless expressly designated as state-only enforceable) in a federal operating permit, including any provisions that limit a source's potential to emit.

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

5. Limitations and conditions (unless expressly designated as state-only enforceable) that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA into the implementation plan.

6. Limitations and conditions (unless expressly designated as state-only enforceable) that are part of a state operating permit where the permit and the permit program pursuant to which it was issued meet all of the following criteria:

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

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

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

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

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

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

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

"Federal hazardous air pollutant new source review (NSR) program" means a program for the preconstruction review and approval of the construction, reconstruction or modification of any stationary source in accordance with regulations specified in subdivisions 1 through 3 of this definition and promulgated to implement the requirements of § 112 (relating to hazardous air pollutants) of the federal Clean Air Act. Any permit issued under this program is a major NSR permit.

1. The provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07, 40 CFR 61.08 and 40 CFR 61.15 for issuing approvals of the construction of any new source or modification of any existing source subject to the provisions of 40 CFR Part 61.

2. The provisions of 40 CFR 63.5 for issuing approvals to construct a new source or reconstruct a source subject to the provisions of 40 CFR Part 63, except for Subparts B, D and E.

3. The provisions of 40 CFR 63.50 through 40 CFR 63.56 for issuing Notices of MACT Approval prior to the construction of a new emissions unit.

"Federal hazardous air pollutant new source review (NSR) permit" means a permit issued under the federal hazardous air pollutant new source review program.

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

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

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

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

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

"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects that are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 6 (9VAC5-80-1100 et seq.) of Part II of this chapter. The minor NSR program may also be used to implement the terms and conditions designated as state-only enforceable; however, those terms and conditions shall not be applicable federal requirements.

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

"New source review (NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations, and (iii) Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II of this chapter. The NSR program may also be used to implement the terms and conditions designated as state-only enforceable; however, those terms and conditions shall not be applicable federal requirements.

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

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

"Permit action" means the activities associated with, and preliminary to, a decision of the department to approve, approve with conditions, or disapprove permit applications; actions to amend or modify permit terms or conditions; actions to renew, reopen, invalidate, suspend, revoke or enforce permit terms or conditions. The term "permit action" does not include actions to combine permit terms and conditions, provided there are no changes to any permit term or condition.

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

"Prevention of Significant Deterioration permit" means a permit issued under the Prevention of Significant Deterioration program.

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

"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 2.2-4007 of the Administrative Process Act, held to afford people an opportunity to submit views and data relative to a matter on which a decision of the department is pending.

"Public participation process" means any element of a department decision-making process that provides an opportunity to submit views and data relative to a matter on which a decision of the department is pending.

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-10 (Repealed.)

Historical Notes

Derived from VR120-08-01, eff. January 1, 1993, and Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002; repealed, Virginia Register Volume 18, Issue 20, eff. September 1, 2002.

9VAC5-80-15 Applicability

A. The provisions of this part, unless specified otherwise, shall apply to only permit actions subject to a public comment period.

B. The provisions of this part do not apply to the appeal of the promulgation of regulations. Appeals of the promulgation of regulations shall be pursued under § 10.1-1317 of the Virginia Air Pollution Control Law and § 2.2-4026 of the Administrative Process Act.

C. The provisions of this part do not apply to the appeal of case decisions and other actions or inactions of the board or the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-20 (Repealed.)

Historical Notes

Derived from VR120-08-02, eff. July 1, 1988; amended, Virginia Register Volume 7, Issue 20, eff. August 1, 1991; Volume 9, Issue 3, eff. January 1, 1993; Volume 9, Issue 22, eff. September 1, 1993; repealed, Virginia Register Volume 13, Issue 5, eff. January 1, 1997.

9VAC5-80-25 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 26, Issue 3, eff. November 12, 2009; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-30 (Repealed.)

Historical Notes

Derived from VR120-08-03, eff. January 1, 1993; repealed, Virginia Register Volume 15, Issue 11, eff. April 1, 1999.

9VAC5-80-35 Public hearings for controversial permits

A. During the public comment period on a permit action, in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest such action or the terms and conditions thereof. The public participation process requirements for the permit programs subject to this section are specified in subdivisions 1 and 2 of this subsection.

1. 9VAC5-80-270 and 9VAC5-80-670 for the federal (Title V) operating permit program.

2. 9VAC5-80-1020 for the state operating permit program.

B. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative; for the purposes of this requirement, a "person" includes an unincorporated association;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, amendment, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the Virginia Air Pollution Control Law.

C. Upon completion of the public comment period on a permit action in accordance with subsection A of this section, the director shall review all timely requests for public hearing filed during the public comment period on the permit action and within 30 calendar days following the expiration of the time period for the submission of requests shall grant a public hearing, unless the permittee or applicant agrees to a later date, if the director finds the following:

1. That there is a significant public interest in the issuance, denial, amendment, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;

2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, amendment, modification, or revocation of the permit in question; and

3. That the action requested by the interested party is not on its face inconsistent with, or in violation of, the Virginia Air Pollution Control Law, federal law or any regulation promulgated thereunder.

D. The director shall, forthwith, notify by email or postal mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.

E. In addition to subsections C and D of this section, the director may, in the director's discretion, convene a public hearing on a permit action.

F. If the request for a public hearing is granted, the director shall schedule the hearing at a time between 45 and 75 days after emailing or mailing the notice of the decision to grant the public hearing.

G. The director shall cause, or require the applicant to publish, notice of a public hearing to be published once, in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 26, Issue 3, eff. November 12, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-37 Notification of pending controversial permits by the department to the board

At each regular meeting of the board, the department will provide an overview and update regarding any controversial permits pending before the department. Immediately after such presentation by the department, the board will have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-40 (Repealed.)

Historical Notes

Derived from VR120-08-04, eff. July 1, 1991; repealed, Virginia Register Volume 14, Issue 11, eff. April 1, 1998.

9VAC5-80-45 Additional public hearing for controversial permits

A. Before rendering a final decision on a controversial permit, the department shall hold an additional public hearing in accordance with subdivisions 1 through 3 of this subsection except as provided in subdivision 4 of this subsection:

1. Publish a summary of public comments received during the applicable public comment period and public hearing.

2. Publish responses to the public comment summary.

3. Hold a public hearing for the controversial permit for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at this public hearing for controversial permits.

4. Subdivisions 1 through 3 of this subsection shall not apply to controversial permits where no public comments were received at a public hearing or in writing during the applicable public comment period. These actions shall proceed with a final determination in accordance with the subsection B of this section and the applicable permit program regulations.

B. In making its decision, the department shall consider (i) the verbal and written comments received during the public comment period and public hearing made part of the record, (ii) comments made at the additional public hearing held to address the department's summary of comments as provided in subsection A of this section, (iii) commentary of the board, and (iv) the agency files.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Article 1 Federal Operating Permits for Stationary Sources

9VAC5-80-50 Applicability

A. Except as provided in subsection C of this section, the provisions of this article apply to the following stationary sources:

1. Any major source.

2. Any source, including an area source, subject to a standard, limitation, or other requirement under § 111 of the federal Clean Air Act.

3. Any source, including an area source, subject to a standard, limitation, or other requirement under § 112 of the federal Clean Air Act.

4. Any affected source or any portion of it not subject to Article 3 (9VAC5-80-360 et seq.) of this part.

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

C. The provisions of this article shall not apply to the following:

1. Any source that would be subject to this article solely because it is subject to the provisions of 40 CFR Part 60, Subpart AAA (Standards of Performance for New Residential Wood Heaters), as prescribed in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50.

2. Any source that would be subject to this article solely because it is subject to the provisions of 40 CFR 61.145, Subpart M (National Emission Standard for Hazardous Air Pollutants for Asbestos, Standard for Demolition and Renovation), as prescribed in Article 1 (9VAC5-60-60 et seq.) of Part II of 9VAC5 Chapter 60.

3. Any source that would be subject to this article solely because it is subject to regulations or requirements concerning prevention of accidental releases under § 112(r) of the federal Clean Air Act.

4. Any emissions unit that is determined to be shutdown under the provisions of 9VAC5-20-220.

D. Sources shall be deferred from initial applicability as follows:

1. Area sources subject to this article under subdivision A 2 or A 3 of this section shall be deferred from the obligation to obtain a permit under this article except as follows:

a. In cases for which EPA has promulgated a standard under § 111 or § 112 and has declared that the facility or source category covered by the standard is subject to the Title V program, the facility or source category shall be subject to this article.

b. In cases for which EPA has promulgated a standard under § 111 or § 112 after July 21, 1992, and has failed to declare whether the facility or source category covered by the standard is subject to the Title V program, the facility or source category shall be subject to this article.

2. The following sources shall not be deferred from the obligation to obtain a permit under this article:

a. Major sources.

b. Solid waste incineration units subject to the provisions of 9VAC5 Chapter 40 (9VAC5-40-10 et seq.) and 9VAC5 Chapter 50 (9VAC5-50-10 et seq.) as adopted pursuant to § 129(e) of the federal Clean Air Act.

3. Any source deferred under subdivision 1 of this subsection may apply for a permit. The department may issue the permit if the issuance of the permit does not interfere with the issuance of permits for sources that are not deferred under this section or otherwise interfere with the implementation of this article.

E. Regardless of the exemptions provided in this section, permits shall be required of owners who circumvent the requirements of this article by causing or allowing a pattern of ownership or development of a source which, except for the pattern of ownership or development, would otherwise require a permit.

F. Particulate matter emissions shall be used to determine the applicability of this article to major sources only if particulate matter (PM₁₀) emissions cannot be quantified in a manner acceptable to the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0501, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-60 Definitions

A. For the purpose of Regulations for the Control and Abatement of Air Pollution and subsequent amendments, or any orders issued by the department, the words or terms shall have the meanings given them in subsection C of this section.

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

C. Terms defined.

"Affected source" means a source that includes one or more affected units.

"Affected states" means all states (i) whose air quality may be affected by the permitted source and that are contiguous to Virginia or (ii) that are within 50 miles of the permitted source.

"Affected unit" means a unit that is subject to any acid rain emissions reduction requirement or acid rain emissions limitation under 40 CFR Part 72, 73, 75, 76, 77 or 78.

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

a. Applicable emission standards.

b. The emission limitation specified as a state or federally enforceable permit condition, including those with a future compliance date.

c. Any other applicable emission limitation, including those with a future compliance date.

"Applicable federal requirement" means all of the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved by the administrator through rulemaking at the time of permit issuance but have future effective compliance dates):

a. Any standard or other requirement provided for in the implementation plan, including any source-specific provisions such as consent agreements or orders.

b. Any term or condition of any preconstruction permit issued pursuant to the new source review program or of any operating permit issued pursuant to the state operating permit program, except for terms or conditions derived from applicable state requirements.

c. Any standard or other requirement prescribed under the Regulations for the Control and Abatement of Air Pollution, particularly the provisions of 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant Sources), adopted pursuant to requirements of the federal Clean Air Act or under § 111, 112 or 129 of the federal Clean Air Act.

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

e. Any compliance monitoring requirements established pursuant to either § 504(b) or § 114(a)(3) of the federal Clean Air Act or the Regulations for the Control and Abatement of Air Pollution.

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

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

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

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

j. With regard to temporary sources subject to 9VAC5-80-130, (i) any ambient air quality standard, except applicable state requirements, and (ii) requirements regarding increments or visibility as provided in Article 8 (9VAC5-80-1700 et seq.) of this part.

"Applicable requirement" means any applicable federal requirement or any applicable state requirement included in a permit issued under this article as provided in 9VAC5-80-300.

"Applicable state requirement" means all of the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved through rulemaking at the time of permit issuance but have future effective compliance dates):

a. Any standard or other requirement prescribed by any regulation of the board that is not included in the definition of applicable federal requirement.

b. Any regulatory provision or definition directly associated with or related to any of the specific state requirements listed in this definition.

"Area source" means any stationary source that is not a major source. For purposes of this article, the phrase "area source" shall not include motor vehicles or nonroad vehicles.

"Complete application" means an application that contains all the information required pursuant to 9VAC5-80-80 and 9VAC5-80-90 sufficient to determine all applicable requirements and to evaluate the source and its application. Designating an application complete does not preclude the department from requesting or accepting additional information.

"Designated representative" means a responsible natural person authorized by the owners and operators of an affected source and of all affected units at the source, as evidenced by a certificate of representation submitted in accordance with subpart B of 40 CFR Part 72, to represent and legally bind each owner and operator, as a matter of federal law, in matters pertaining to the acid rain program. Whenever the term "responsible official" is used in this regulation, it shall be deemed to refer to the designated representative with regard to all matters under the acid rain program. Whenever the term "designated representative" is used in this regulation, the term shall be construed to include the alternate designated representative.

"Draft permit" means the version of a permit for which the department offers public participation under 9VAC5-80-270 or affected state review under 9VAC5-80-290.

"Emissions allowable under the permit" means a federally and state enforceable or state-only enforceable permit term or condition determined at issuance to be required by an applicable requirement that establishes an emissions limit (including a work practice standard) or a federally and state enforceable emissions cap that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject.

"Emissions unit" means any part or activity of a stationary source that emits or has the potential to emit any regulated air pollutant. This term is not meant to alter or affect the definition of the term "unit" in 40 CFR Part 72.

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

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

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

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

4. Limitations and conditions that are part of an approved implementation plan.

5. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or a new source review program permit issued under regulations approved by the EPA into the implementation plan.

6. Limitations and conditions that are part of a state operating permit issued under regulations approved by the EPA into the implementation plan as meeting the EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

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

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

"Final permit" means the version of a permit issued by the department under this article that has completed all review procedures required by 9VAC5-80-270 and 9VAC5-80-290.

"Fugitive emissions" are those emissions which cannot reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

"General permit" means a permit issued under this article that meets the requirements of 9VAC5-80-120.

"Hazardous air pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by 40 CFR 63.60.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved in Subpart VV of 40 CFR Part 52 by the administrator under § 110 of the federal Clean Air Act, or promulgated under § 110(c) of the federal Clean Air Act, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the federal Clean Air Act and which implements the relevant requirements of the federal Clean Air Act.

"Insignificant activity" means any emission unit listed in 9VAC5-80-720 A, any emissions unit that meets the emissions criteria described in 9VAC5-80-720 B, or any emissions unit that meets the size or production rate criteria in 9VAC5-80-720 C.

"Major source" means:

a. For hazardous air pollutants other than radionuclides, any stationary source that emits or has the potential to emit, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants. Notwithstanding the preceding sentence, emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources.

b. For air pollutants other than hazardous air pollutants, any stationary source that directly emits or has the potential to emit 100 tons per year or more of any air pollutant (including any major source of fugitive emissions of any such pollutant). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source, unless the source belongs to one of the following categories of stationary source:

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

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

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

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

(10) Petroleum refineries.

(11) Lime plants.

(12) Phosphate rock processing plants.

(13) Coke oven batteries.

(14) Sulfur recovery plants.

(15) Carbon black plants (furnace process).

(16) Primary lead smelters.

(17) Fuel conversion plant.

(18) Sintering plants.

(19) Secondary metal production plants.

(20) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

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

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

(23) Taconite ore processing plants.

(24) Glass fiber processing plants.

(25) Charcoal production plants.

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

(27) Any other stationary source category regulated under § 111 or § 112 of the federal Clean Air Act for which the administrator has made an affirmative determination under § 302(j) of the federal Clean Air Act.

c. For ozone nonattainment areas, any stationary source with the potential to emit 100 tons per year or more of volatile organic compounds or oxides of nitrogen in areas classified as "marginal" or "moderate," 50 tons per year or more in areas classified as "serious," 25 tons per year or more in areas classified as "severe," and 10 tons per year or more in areas classified as "extreme"; except that the references in this definition to nitrogen oxides shall not apply with respect to any source for which the administrator has made a finding that requirements under § 182(f) of the federal Clean Air Act (NO_xrequirements for ozone nonattainment areas) do not apply.

d. For attainment areas in ozone transport regions, any stationary source with the potential to emit 50 tons per year or more of volatile organic compounds.

"Malfunction" means any sudden and unavoidable failure of air pollution control equipment or process equipment or of a process to operate in a normal or usual manner that (i) arises from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, (ii) causes an exceedance of a technology-based emission limitation under the permit due to unavoidable increases in emissions attributable to the failure and (iii) requires immediate corrective action to restore normal operation. Failures that are caused entirely or in part by improperly designed equipment, lack of or poor preventative maintenance, careless or improper operation, operator error, or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions.

"New source review program" means a program for the preconstruction review and permitting of new stationary sources or expansions to existing ones in accordance with 9VAC5-80-10 or Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1700 et seq.) or Article 9 (9VAC5-80-2000 et seq.) of this part, promulgated to implement the requirements of §§ 110(a)(2)(C), 165 (relating to permits in prevention of significant deterioration areas), 173 (relating to permits in nonattainment areas), and 112 (relating to permits for hazardous air pollutants) of the federal Clean Air Act.

"Permit," unless the context suggests otherwise, means any permit or group of permits covering a source subject to this article that is issued, renewed, amended, or revised pursuant to this article.

"Permit modification" means a revision to a permit issued under this article that meets the requirements of 9VAC5-80-210 on minor permit modifications, 9VAC5-80-220 on group processing of minor permit modifications, or 9VAC5-80-230 on significant modifications.

"Permit revision" means any permit modification that meets the requirements of 9VAC5-80-210, 9VAC5-80-220 or 9VAC5-80-230 or any administrative permit amendment that meets the requirements of 9VAC5-80-200.

"Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is state and federally enforceable.

"Proposed permit" means the version of a permit that the department proposes to issue and forwards to the administrator for review in compliance with 9VAC5-80-290.

"Regulated air pollutant" means any of the following:

a. Nitrogen oxides or any volatile organic compound.

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

c. Any pollutant subject to any standard promulgated under § 111 of the federal Clean Air Act.

d. Any Class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act concerning stratospheric ozone protection.

e. Any pollutant subject to a standard promulgated under or other requirements established under § 112 of the federal Clean Air Act concerning hazardous air pollutants and any pollutant regulated under Subpart C of 40 CFR Part 68.

f. Any pollutant subject to an applicable state requirement included in a permit issued under this article as provided in 9VAC5-80-300.

"Renewal" means the process by which a permit is reissued at the end of its term.

"Research and development facility" means all the following as applied to any stationary source:

a. The primary purpose of the source is the conduct of either (i) research and development into new products or processes or into new uses for existing products or processes or into refining and improving existing products or processes or (ii) basic research to provide for education or the general advancement of technology or knowledge.

b. The source is operated under the close supervision of technically trained personnel.

c. The source is not engaged in the manufacture of products in any manner inconsistent with subdivision a (i) or (ii) of this definition.

An analytical laboratory that primarily supports a research and development facility is considered to be part of that facility.

"Responsible official" means one of the following:

a. For a business entity, such as a corporation, association or cooperative:

(1) The president, secretary, treasurer, or vice-president of the business entity in charge of a principal business function, or any other person who performs similar policy or decision making functions for the business entity, or

(2) A duly authorized representative of such business entity if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either: (i) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (ii) the authority to sign documents has been assigned or delegated to such representative in accordance with procedures of the business entity and the delegation of authority is approved in advance by the department;

b. For a partnership or sole proprietorship: a general partner or the proprietor, respectively; or

c. For a municipality, state, federal, or other public agency: either a principal executive officer or ranking elected official. A principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional administrator of EPA).

d. For affected sources:

(1) The designated representative insofar as actions, standards, requirements, or prohibitions under Title IV of the federal Clean Air Act or the regulations promulgated thereunder are concerned; and

(2) The designated representative or any other person specified in this definition for any other purposes under this article.

"State enforceable" means all limitations and conditions which are enforceable by the department, including those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order or variance, and any permit requirements established pursuant to this chapter

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

"Stationary source" means any building, structure, facility or installation which emits or may emit any regulated air pollutant. A stationary source shall include all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control). Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "major group" (i.e., which have the same two-digit code) as described in the Standard Industrial Classification Manual (see 9VAC5-20-21). At the request of the applicant, any research and development facility may be considered a separate stationary source from the manufacturing or other facility with which it is co-located.

"Title I modification" means any modification under Parts C and D of Title I or §§ 111(a)(4), 112(a)(5), or § 112(g) of the federal Clean Air Act; under regulations promulgated by the U.S. Environmental Protection Agency thereunder or in 40 CFR 61.07; or under regulations approved by the U.S. Environmental Protection Agency to meet such requirements.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0502, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 14, Issue 2, eff. January 1, 1998; Volume 17, Issue 4, eff. January 1, 2001; Volume 27, Issue 11, eff. March 2, 2011; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-70 General

A. No permit may be issued pursuant to this article until the article has been approved by the administrator, whether full, interim, partial, for federal delegation purposes, or otherwise.

B. If requested in the application for a permit or permit renewal submitted pursuant to this article, the department may combine the requirements of and the permit for a source subject to the state operating permit program with the requirements of and the permit for a source subject to this article provided the application contains the necessary information required for a permit under the state operating permit program.

C. For the purpose of this article, the phrase "Regulations for the Control and Abatement of Air Pollution" means 9VAC5 Chapter 10 (9VAC5-10-10 et seq.) through 9VAC5 Chapter 80 (9VAC5-80-10 et seq.). For purposes of implementing and enforcing those provisions of this article associated with applicable federal requirements as well as those provisions of this article intended to implement Title V of the federal Clean Air Act, the phrase "Regulations for the Control and Abatement of Air Pollution" means only those provisions that have been approved by EPA as part of the implementation plan or otherwise have been approved by or found to be acceptable by EPA for the purpose of implementing requirements of the federal Clean Air Act. For the purpose of this article, terms and conditions relating to applicable federal requirements shall be derived only from provisions that qualify as applicable federal requirements.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0503, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-80 Applications

A. A single application is required identifying each emission unit subject to this article. The application shall be submitted according to the requirements of this section, 9VAC5-80-90 and procedures approved by the department. Where several units are included in one stationary source, a single application covering all units in the source shall be submitted. A separate application is required for each stationary source subject to this article.

B. For each stationary source, the owner shall submit a timely and complete permit application in accordance with subsections C and D of this section.

C. 1. The owner of a stationary source applying for a permit under this article for the first time shall submit an application within 12 months after the source becomes subject to this article, except that stationary sources not deferred under 9VAC5-80-50 D shall submit their applications on a schedule to be determined by the department but no later than 12 months following the effective date of approval of this article by the administrator, to include approval for federal delegation purposes.

2. The owner of a source subject to the requirements of the new source review program shall file a complete application to obtain the permit or permit revision within 12 months after commencing operation. Where an existing permit issued under this article would prohibit such construction or change in operation, the owner shall obtain a permit revision before commencing operation. The owner of a source may file a complete application to obtain the permit or permit revision under this article on the same date the permit application is submitted under the requirements of the new source review program.

3. For purposes of permit renewal, the owner shall submit an application at least six months but no earlier than 18 months prior to the date of permit expiration.

D. The following requirements concerning the completeness of the permit application apply to sources subject to this article:

1. To be determined complete, an application shall contain all information required pursuant to 9VAC5-80-90.

2. Applications for permit revision or for permit reopening shall supply information required under 9VAC5-80-90 only if the information is related to the proposed change.

3. Within 60 days of receipt of the application, the department shall notify the applicant in writing either that the application is or is not complete. If the application is determined not to be complete, the department shall provide (i) a list of the deficiencies in the notice and (ii) a determination as to whether the application contains sufficient information to begin a review of the application.

4. If the department does not notify the applicant in writing within 60 days of receipt of the application, the application shall be deemed to be complete.

5. For minor permit modifications, a completeness determination shall not be required.

6. If, while processing an application that has been determined to be complete, the department finds that additional information is necessary to evaluate or take final action on that application, it may request such information in writing and set a reasonable deadline for a response.

7. The submittal of a complete application shall not affect the requirement that any source have a preconstruction permit under the new source review program.

8. Upon notification by the department that the application is complete or after 60 days following receipt of the application by the department, the applicant shall submit three additional copies of the complete application to the department.

E. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in a permit application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information. An applicant shall provide additional information as necessary to address any requirements that become applicable to the source after the date a complete application was filed but prior to release of a draft permit.

F. The following requirements concerning the application shield apply to sources subject to this article:

1. If an applicant submits a timely and complete application for an initial permit or renewal under this section, the failure of the source to have a permit or the operation of the source without a permit shall not be a violation of this article until the department takes final action on the application under 9VAC5-80-150.

2. No source shall operate after the time that it is required to submit a timely and complete application under subsections C and D of this section for a renewal permit, except in compliance with a permit issued under this article.

3. If the source applies for a minor permit modification and wants to make the change proposed under the provisions of either 9VAC5-80-210 F or 9VAC5-80-220 E, the failure of the source to have a permit modification or the operation of the source without a permit modification shall not be a violation of this article until the department takes final action on the application under 9VAC5-80-150.

4. If the source notifies the department that it wants to make an operational flexibility permit change under 9VAC5-80-280 B, the failure of the source to have a permit modification or operation of the source without a permit modification for the permit change shall not be a violation of this article unless the department notifies the source that the change is not a permit change as specified in 9VAC5-80-280 B 1 a.

5. If an applicant submits a timely and complete application under this section for a permit renewal but the department fails to issue or deny the renewal permit before the end of the term of the previous permit, (i) the previous permit shall not expire until the renewal permit has been issued or denied and (ii) all the terms and conditions of the previous permit, including any permit shield granted pursuant to 9VAC5-80-140, shall remain in effect from the date the application is determined to be complete until the renewal permit is issued or denied.

6. The protection under subdivisions 1 and 5 (ii) of this subsection shall cease to apply if, subsequent to the completeness determination made pursuant to subsection D of this section, the applicant fails to submit by the deadline specified in writing by the department any additional information identified as being needed to process the application.

G. Any application form, report, compliance certification, or other document submitted to the department shall meet the requirements of 9VAC5-20-230.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0504, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-90 Application information required

A. The department shall furnish application forms to applicants.

B. Each application for a permit shall include, but not be limited to, the information listed in subsections C through K of this section.

C. Identifying information as follows shall be included:

1. Company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager or contact or both.

2. A description of the source's processes and products (by Standard Industrial Classification Code) including any associated with each alternate scenario identified by the source.

D. Emissions-related information as follows shall be included:

1. All emissions of pollutants for which the source is major and all emissions of regulated air pollutants.

a. A permit application shall describe all emissions of regulated air pollutants emitted from any emissions unit with the following exceptions:

(1) Any emissions unit exempted from the requirements of this subsection because the emissions level or size of the unit is deemed to be insignificant under 9VAC5-80-720 B or C shall be listed in the permit application and identified as an insignificant activity. This requirement shall not apply to emissions units listed in 9VAC5-80-720 A.

(2) Regardless of the emissions units designated in 9VAC5-80-720 A or C or the emissions levels listed in 9VAC5-80-720 B, the emissions from any emissions unit shall be included in the permit application if the omission of those emissions units from the application would interfere with the determination of the applicability of this article, the determination or imposition of any applicable requirement or the calculation of permit fees.

b. Emissions shall be calculated as required in the permit application form or instructions.

c. Fugitive emissions shall be included in the permit application to the extent quantifiable regardless of whether the source category in question is included in the list of sources contained in the definition of major source.

2. Additional information related to the emissions of air pollutants sufficient to verify which requirements are applicable to the source, and other information necessary to collect any permit fees owed under the fee schedule approved pursuant to Article 2 (9VAC5-80-310 et seq.) of this part as required by the department. Identification and description of all points of emissions described in subdivision 1 of this subsection in sufficient detail to establish the basis for fees and applicability of requirements of the Regulations for the Control and Abatement of Air Pollution and the federal Clean Air Act.

3. Emissions rates in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method.

4. Information needed to determine or regulate emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.

5. Identification and description of air pollution control equipment and compliance monitoring devices or activities.

6. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated air pollutants at the source.

7. Other information required by any applicable requirement (including information related to stack height limitations required under 9VAC5-40-20 I or 9VAC5-50-20 H).

8. Calculations on which the information in subdivisions D 1 through 7 of this section is based. Any calculations shall include sufficient detail to permit assessment of the validity of such calculations.

E. Air pollution control requirements as follows shall be included:

1. Citation and description of all applicable requirements, including those covering activities deemed insignificant under Article 4 (9VAC5-80-710 et seq.) of this part.

2. Description of or reference to any applicable test method for determining compliance with each applicable requirement.

F. Additional information that may be necessary to implement and enforce other requirements of the Regulations for the Control and Abatement of Air Pollution and the federal Clean Air Act or to determine the applicability of such requirements.

G. An explanation of any proposed exemptions from otherwise applicable requirements.

H. Additional information as determined to be necessary by the department to define alternative operating scenarios identified by the source pursuant to 9VAC5-80-110 J or to define permit terms and conditions implementing operational flexibility under 9VAC5-80-280.

I. Compliance plan as follows shall be included:

1. A description of the compliance status of the source with respect to all applicable requirements.

2. A description as follows:

a. For applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements.

b. For applicable requirements that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis.

c. For applicable requirements for which the source is not in compliance at the time of permit issuance, a narrative description of how the source will achieve compliance with such requirements.

3. A compliance schedule as follows:

a. For applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements.

b. For applicable requirements that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis. A statement that the source will meet in a timely manner applicable requirements that become effective during the permit term shall satisfy this provision, unless a more detailed schedule is expressly required by the applicable requirement or by the department if no specific requirement exists.

c. A schedule of compliance for sources that are not in compliance with all applicable requirements at the time of permit issuance. Such a schedule shall include a schedule of remedial measures, including an enforceable sequence of actions with milestones, leading to compliance with any applicable requirements for which the source will be in noncompliance at the time of permit issuance. This compliance schedule shall resemble and be at least as stringent as that contained in any judicial consent decree or department order to which the source is subject. Any such schedule of compliance shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based.

4. A schedule for submission of certified progress reports no less frequently than every six months for sources required to have a schedule of compliance to remedy a violation.

J. Compliance certification information as follows shall be included:

1. A certification of compliance with all applicable requirements by a responsible official or a plan and schedule to come into compliance or both as required by subsection I of this section.

2. A statement of methods used for determining compliance, including a description of monitoring, recordkeeping, and reporting requirements and test methods.

3. A schedule for submission of compliance certifications during the permit term, to be submitted no less frequently than annually, or more frequently if specified by the underlying applicable requirement or by the department.

4. A statement indicating the source is in compliance with any applicable federal requirements concerning enhanced monitoring and compliance certification.

K. If applicable, a statement indicating that the source has complied with the applicable federal requirement to register a risk management plan under § 112(r)(7) of the federal Clean Air Act or, as required under subsection I of this section, has made a statement in the source's compliance plan that the source intends to comply with this applicable federal requirement and has set a compliance schedule for registering the plan.

L. Regardless of any other provision of this section, an application shall contain all information needed to determine or to impose any applicable requirement or to evaluate the fee amount required under the schedule approved pursuant to Article 2 (9VAC5-80-310 et seq.) of this part.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0505, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-100 Emission caps

A. The department may establish an emission cap for sources or emissions units applicable under this article when the applicant requests that a cap be established.

B. The criteria in subdivisions 1 through 5 of this subsection shall be met in establishing emission standards for emission caps to the extent necessary to assure that emissions levels are met permanently.

1. If an emissions unit was subject to emission standards prescribed in the Regulations for the Control and Abatement of Air Pollution prior to the date the permit is issued, a standard covering the emissions unit and pollutants subject to the emission standards shall be incorporated into the permit issued under this article.

2. A permit issued under this article may also contain emission standards for emissions units or pollutants that were not subject to emission standards prescribed in the Regulations for the Control and Abatement of Air Pollution prior to the issuance of the permit.

3. Each standard shall be based on averaging time periods for the standards as appropriate based on applicable air quality standards, any emission standard applicable to the emissions unit prior to the date the permit is issued, or the operation of the emissions unit, or any combination of them. The emission standards may include the level, quantity, rate, or concentration or any combination of them for each affected pollutant.

4. In no case shall a standard result in emissions which would exceed the lesser of the following:

a. Allowable emissions for the emissions unit based on emission standards applicable prior to the date the permit is issued.

b. The emissions rate based on the potential to emit of the emissions unit.

5. The standard may prescribe, as an alternative to or a supplement to an emission limitation, an equipment, work practice, fuels specification, process materials, maintenance, or operational standard, or any combination of them.

C. Using the significant modification procedures of 9VAC5-80-230, an emissions standard may be changed to allow an increase in emissions level provided the amended standard meets the requirements of subdivisions B 1 and B 4 of this section and provided the increased emission levels would not make the source subject to the new source review program.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0506, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-110 Permit content

A. General information applies as follows:

1. For major sources subject to this article, the department shall include in the permit all applicable requirements for all emissions units in the major source.

2. For any source other than a major source subject to this article, the department shall include in the permit all applicable requirements that apply to emissions units that cause the source to be subject to this article.

3. For all sources subject to this article, the department shall include in the permit applicable requirements that apply to fugitive emissions regardless of whether the source category in question is included in the list of sources contained in the definition of major source.

4. Each permit issued under this article shall include the elements listed in subsections B through N of this section.

B. Each permit shall contain terms and conditions setting out the following requirements with respect to emission limitations and standards:

1. The permit shall specify and reference applicable emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance.

2. The permit shall specify and reference the origin of and authority for each term or condition and shall identify any difference in form as compared to the applicable requirement upon which the term or condition is based.

3. If applicable requirements contained in the Regulations for the Control and Abatement of Air Pollution allow a determination of an alternative emission limit at a source, equivalent to that contained in the Regulations for the Control and Abatement of Air Pollution, to be made in the permit issuance, renewal, or significant modification process, any permit containing such equivalency determination shall contain provisions to ensure that any resulting emissions limit has been demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures.

C. Each permit shall contain terms and conditions identifying equipment specifications and operating parameters in accordance with the following:

1. Each permit shall contain terms and conditions setting out the following elements identifying equipment specifications and operating parameters:

a. Specifications for permitted equipment, identified as thoroughly as possible. The identification shall include, but not be limited to, type, rated capacity, and size.

b. Specifications for air pollution control equipment installed or to be installed.

c. Specifications for air pollution control equipment operating parameters and the circumstances under which such equipment shall be operated, where necessary to ensure that the required overall control efficiency is achieved.

2. The information on any specification required in subdivisions 1 a and b of this subsection may be included in the permit for informational purposes only and does not form an enforceable term or condition of the permit except in the following cases:

a. The specification is an applicable federal requirement.

b. The specification is derived from and necessary to enforce an applicable federal requirement.

c. The operation of the source contrary to the specification would violate an applicable federal requirement.

d. The owner voluntarily takes the specification as a state enforceable term or condition of the permit pursuant to 9VAC5-80-300.

D. Each permit shall contain a condition setting out the expiration date, reflecting a fixed term of five years.

E. Each permit shall contain terms and conditions setting out the following requirements with respect to monitoring:

1. All emissions monitoring and analysis procedures or test methods required under the applicable monitoring and testing requirements, including 40 CFR Part 64 and any other procedures and methods promulgated pursuant to § 504(b) or § 114(a)(3) of the federal Clean Air Act concerning compliance monitoring, including enhanced compliance monitoring. If more than one monitoring or testing requirement applies, the permit may specify a streamlined set of monitoring or testing provisions provided the specific monitoring or testing is adequate to assure compliance at least to the same extent as the applicable requirements relating to monitoring or testing that are not included in the permit as a result of such streamlining.

2. Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit, as reported pursuant to subdivision F 1 a of this section. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements of this subdivision.

3. As necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods.

F. Recordkeeping and reporting requirements apply as follows:

1. To meet the requirements of subsection E of this section with respect to recordkeeping, the permit shall contain terms and conditions setting out all applicable recordkeeping requirements and requiring, where applicable, the following:

a. Records of monitoring information that include the following:

(1) The date, place as defined in the permit, and time of sampling or measurements.

(2) The dates analyses were performed.

(3) The company or entity that performed the analyses.

(4) The analytical techniques or methods used.

(5) The results of such analyses.

(6) The operating conditions existing at the time of sampling or measurement.

b. Retention of records of all monitoring data and support information for at least five years from the date of the monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit.

2. To meet the requirements of subsection E of this section with respect to reporting, the permit shall contain terms and conditions setting out all applicable reporting requirements and requiring the following:

a. Submittal of reports of any required monitoring at least every six months. All instances of deviations from permit requirements must be clearly identified in such reports. All required reports must be certified by a responsible official consistent with 9VAC5-80-80 G.

b. Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. The department shall define "prompt" in the permit condition in relation to (i) the degree and type of deviation likely to occur and (ii) the applicable requirements.

G. Each permit shall contain terms and conditions with respect to enforcement that state the following:

1. If any condition, requirement or portion of the permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of the permit.

2. The permittee shall comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the federal Clean Air Act or the Virginia Air Pollution Control Law or both and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application.

3. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

4. The permit may be modified, revoked, reopened, and reissued, or terminated for cause as specified in subsection L of this section, 9VAC5-80-240 and 9VAC5-80-260. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or of a notification of planned changes or anticipated noncompliance does not stay any permit condition.

5. The permit does not convey any property rights of any sort, or any exclusive privilege.

6. The permittee shall furnish to the department, within a reasonable time, any information that the department may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the department copies of records required to be kept by the permit and, for information claimed to be confidential, the permittee shall furnish such records to the department along with a claim of confidentiality.

H. Each permit shall contain a condition setting out the requirement to pay permit fees consistent with the fee schedule approved pursuant to Article 2 (9VAC5-80-310 et seq.) of this part.

I. Emissions trading information as follows shall be included:

1. Each permit shall contain a condition with respect to emissions trading that states the following:

No permit revision shall be required, under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are provided for in the permit.

2. Each permit shall contain the following terms and conditions, if the permit applicant requests them, for the trading of emissions increases and decreases within the permitted facility, to the extent that the Regulations for the Control and Abatement of Air Pollution provide for trading such increases and decreases without a case-by-case approval of each emissions trade:

a. All terms and conditions required under this section except subsection N of this section shall be included to determine compliance.

b. The permit shield described in 9VAC5-80-140 shall extend to all terms and conditions that allow such increases and decreases in emissions.

c. The owner shall meet all applicable requirements including the requirements of this article.

J. Each permit shall contain terms and conditions setting out requirements with respect to reasonably anticipated operating scenarios when identified by the source in its application and approved by the department. Such requirements shall include but not be limited to the following:

1. Contemporaneously with making a change from one operating scenario to another, the source shall record in a log at the permitted facility a record of the scenario under which it is operating.

2. The permit shield described in 9VAC5-80-140 shall extend to all terms and conditions under each such operating scenario.

3. The terms and conditions of each such alternative scenario shall meet all applicable requirements including the requirements of this article.

K. Consistent with subsections E and F of this section, each permit shall contain terms and conditions setting out the following requirements with respect to compliance:

1. Compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any document (including reports) required in a permit condition to be submitted to the department shall contain a certification by a responsible official that meets the requirements of 9VAC5-80-80 G.

2. Inspection and entry requirements that require that, upon presentation of credentials and other documents as may be required by law, the owner shall allow the department to perform the following:

a. Enter upon the premises where the source is located or emissions-related activity is conducted, or where records must be kept under the terms and conditions of the permit.

b. Have access to and copy, at reasonable times, any records that must be kept under the terms and conditions of the permit.

c. Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit.

d. Sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements.

3. A schedule of compliance consistent with 9VAC5-80-90 I.

4. Progress reports consistent with an applicable schedule of compliance and 9VAC5-80-90 I to be submitted at least semiannually, or at a more frequent period if specified in the applicable requirement or by the department. Such progress reports shall contain the following:

a. Dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and dates when such activities, milestones or compliance were achieved.

b. An explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted.

5. Requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Permits shall include each of the following:

a. The frequency (not less than annually or such more frequent periods as specified in the applicable requirement or by the department) of submissions of compliance certifications.

b. In accordance with subsection E of this section, a means for assessing or monitoring the compliance of the source with its emissions limitations, standards, and work practices.

c. A requirement that the compliance certification include the following (provided that the identification of applicable information may cross-reference the permit or previous reports, as applicable):

(1) The identification of each term or condition of the permit that is the basis of the certification.

(2) The identification of the methods or other means used by the owner or operator for determining the compliance status with each term and condition during the certification period, and whether such methods or other means provide continuous or intermittent data. Such methods and other means shall include, at a minimum, the methods and means required under subsection E of this section. If necessary, the owner or operator shall also identify any other material information that must be included in the certification to comply with § 113(c)(2) of the federal Clean Air Act, which prohibits knowingly making a false certification or omitting material information.

(3) The status of compliance with the terms and conditions of the permit for the period covered by the certification, based on the method or means designated in subdivision 5 c (2) of this subsection. The certification shall identify each deviation and take it into account in the compliance certification. The certification shall also identify as possible exceptions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under 40 CFR Part 64 occurred.

(4) Such other facts as the department may require to determine the compliance status of the source.

d. All compliance certifications shall be submitted by the permittee to the administrator as well as to the department.

6. Such other provisions as the department may require.

L. Each permit shall contain terms and conditions setting out the following requirements with respect to reopening the permit prior to expiration:

1. The permit shall be reopened by the department if additional applicable federal requirements become applicable to a major source with a remaining permit term of three or more years. Such a reopening shall be completed not later than 18 months after promulgation of the applicable requirement. No such reopening is required if the effective date of the requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended pursuant to 9VAC5-80-80 F.

2. The permit shall be reopened if the department or the administrator determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

3. The permit shall be reopened if the administrator or the department determines that the permit must be revised or revoked to assure compliance with the applicable requirements.

4. The permit shall not be reopened by the department if additional applicable state requirements become applicable to a major source prior to the expiration date established under subsection D of this section.

M. The permit shall contain terms and conditions pertaining to other requirements as may be necessary to ensure compliance with the Regulations for the Control and Abatement of Air Pollution, the Virginia Air Pollution Control Law and the federal Clean Air Act.

N. Federal enforceability requirements apply as follows:

1. All terms and conditions in a permit, including any provisions designed to limit a source's potential to emit, are enforceable by the administrator and citizens under the federal Clean Air Act, except as provided in subdivision 2 of this subsection.

2. The department shall specifically designate as being only state-enforceable any terms and conditions included in the permit that are not required under the federal Clean Air Act or under any of its applicable federal requirements. Terms and conditions so designated are not subject to the requirements of 9VAC5-80-290 concerning review of proposed permits by EPA and draft permits by affected states.

3. The department may specifically designate as state enforceable any applicable state requirement that has been submitted to the administrator for review to be approved as part of the implementation plan and that has not yet been approved. The permit shall specify that the provisions will become federally enforceable upon approval of the provisions by the administrator and through an administrative permit amendment.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0507, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-120 General permits

A. Requirements for board issuance of a general permit regulation apply as follows:

1. The board may issue a general permit regulation covering a source category containing numerous similar sources that meet the following criteria:

a. All sources in the category shall be essentially the same in terms of operations and processes and emit either the same pollutants or those with similar characteristics.

b. Sources shall not be subject to case-by-case standards or requirements.

c. Sources shall be subject to the same or substantially similar requirements governing operation, emissions, monitoring, reporting, or recordkeeping.

2. Sources subject to a general permit shall comply with all requirements applicable to other permits issued under this article.

3. General permit regulations shall (i) identify the criteria by which sources may qualify for the general permit and (ii) describe the process to use in applying for the general permit.

4. The board shall not issue a general permit regulation until the requirements concerning notice and opportunity for public participation under 9VAC5-80-270 and affected state and EPA review under 9VAC5-80-290 have been met. However, requirements concerning content of the notice shall replace those specified in 9VAC5-80-270 C and shall include, but not be limited to, the following:

a. The name, address and telephone number of a department contact from whom interested persons may obtain additional information including copies of the draft general permit regulation.

b. The criteria to be used in determining which sources qualify for the general permit.

c. A brief description of the source category that the department believes qualifies for the general permit including, but not limited to, an estimate of the number of individual sources in the category.

d. A narrative statement of the estimated air quality impact contributed by the source category covered by the general permit including information regarding specific pollutants and the total quantity of each emitted pollutant and the type and quantity of fuels used, if applicable.

e. A brief description of the application process to be used by sources to request coverage under the general permit regulation.

f. A brief description of the comment procedures required by 9VAC5-80-270.

g. A brief description of the procedures to be used to request a hearing as required by 9VAC5-80-270 or the time and place of the public hearing if the department determines to hold a hearing under 9VAC5-80-35 E.

B. Application requirements for a general permit apply as follows:

1. Sources that would qualify for a general permit shall apply to the department for coverage under the terms of the general permit regulation. Sources that do not qualify for a general permit shall apply for coverage under a permit issued under the other provisions of this article.

2. The application shall meet the requirements of this article and include all information necessary to determine qualification for and to assure compliance with the general permit.

3. Sources that become subject to the general permit after it is issued to other sources in the category addressed by the general permit shall file an application with the department using the application process described in the general permit. The department shall issue the general permit to the source if it determines that the source meets the criteria set out in the general permit.

C. Conditions of issuance of a general permit apply as follows:

1. The department shall grant the conditions and terms of the general permit to sources that meet the criteria set out in the general permit covering the specific source category.

2. The issuance of a permit to a source covered by a general permit shall not require compliance with the public participation procedures under 9VAC5-80-270 and affected state and EPA review under 9VAC5-80-290.

3. A response to each general permit application may not be provided. The general permit regulation may specify a reasonable time period after which a source that has submitted an application shall be deemed to be authorized to operate under the general permit.

4. Sources covered under a general permit may be issued a letter, a certificate, or a summary of the general permit provisions, limits, and requirements, or any other document which would attest that the source is covered by the general permit.

5. Provided the letter, certificate, summary or other document is located at the source, the source may not be required to have a copy of the general permit. In this case, a copy of the general permit shall be retained by the department or at the source's corporate headquarters in the case of franchise operations.

D. Enforcement conditions apply as follows:

1. Regardless of the permit shield provisions in 9VAC5-80-140, the source shall be subject to enforcement action under 9VAC5-80-260 for operation without a permit issued under this article if the source is later determined by the department or the administrator not to qualify for the conditions and terms of the general permit.

2. The act of granting or denying a request for authorization to operate under a general permit shall not be subject to judicial review.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0508, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-130 Temporary sources

A. The department may issue a single permit authorizing emissions from similar operations by the same owner at multiple temporary locations.

B. The operation shall be temporary and involve at least one change of location during the term of the permit.

C. Permits for temporary sources shall include the following:

1. Conditions that assure compliance with all applicable requirements at all authorized locations.

2. A condition that the owner shall notify the department not less than 15 days in advance of each change in location.

3. Conditions that ensure compliance with all other provisions of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0509, eff. April 1, 1995; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-140 Permit shield

A. The department shall expressly include in a permit a provision stating that compliance with the conditions of the permit shall be deemed compliance with all applicable requirements in effect as of the date of permit issuance and as specifically identified in the permit.

B. The permit shield shall cover only the following:

1. Applicable requirements that are covered by terms and conditions of the permit.

2. Any other applicable requirement specifically identified as being not applicable to the source, provided that the permit includes that determination.

C. Nothing in this section or in any permit issued under this article shall alter or affect the following:

1. The provisions of § 303 of the federal Clean Air Act (emergency orders), including the authority of the administrator under that section.

2. The liability of an owner for any violation of applicable requirements prior to or at the time of permit issuance.

3. The ability to obtain information from a source by the (i) administrator pursuant to § 114 of the federal Clean Air Act (inspections, monitoring, and entry); or (ii) department pursuant to § 10.1-1307.3 or 10.1-1315 of the Virginia Air Pollution Control Law.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0510, eff. April 1, 1995; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-150 Action on permit application

A. A permit, permit modification, or renewal may be issued only if all of the following conditions have been met:

1. The department has received a complete application for a permit, permit modification, or permit renewal, except that a complete application need not be received before issuance of a general permit under 9VAC5-80-120.

2. Except for modifications qualifying for minor permit modification procedures under 9VAC5-80-210 or 9VAC5-80-220, the department has complied with the requirements for public participation under 9VAC5-80-270.

3. The department has complied with the requirements for notifying and responding to affected states under 9VAC5-80-290.

4. The conditions of the permit provide for compliance with all applicable requirements, the requirements of Article 2 (9VAC5-80-310 et seq.) of this part, and the requirements of this article.

5. The administrator has received a copy of the proposed permit and any notices required under 9VAC5-80-290 A and 9VAC5-80-290 B and has not objected to issuance of the permit under 9VAC5-80-290 C within the time period specified therein.

B. Except for permit revisions, as required by the provisions of 9VAC5-80-200, 9VAC5-80-210, 9VAC5-80-220 or 9VAC5-80-230, the department shall take final action on each permit application (including a request for permit modification or renewal) no later than 18 months after a complete application is received by the department, except in cases where a public hearing to provide the opportunity for interested persons to contest the application is granted pursuant to 9VAC5-80-35 or 9VAC5-80-45. The department will review any request made under 9VAC5-80-270 E 2, and will take final action on the request and application as provided in Part I (9VAC5-80-5 et seq.) of this chapter.

C. Issuance of permits under this article shall not take precedence over or interfere with the issuance of preconstruction permits under the new source review program.

D. The department shall provide a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions). The department shall send this statement to the administrator and to any other person who requests it.

E. Within five days after receipt of the issued permit, the applicant shall maintain the permit on the premises for which the permit has been issued and shall make the permit immediately available to the department upon request.

F. In granting a permit pursuant to this section, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit pursuant to this section, the department shall in consultation with legal counsel provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0511, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-160 Transfer of permits

A. No person shall transfer a permit from one location to another, unless authorized under 9VAC5-80-130, or from one piece of equipment to another.

B. In the case of a transfer of ownership of a stationary source, the new owner shall comply with any current permit issued to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer and shall comply with the requirements of 9VAC5-80-200.

C. In the case of a name change of a stationary source, the owner shall comply with any current permit issued under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change and shall comply with the requirements of 9VAC5-80-200.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR20-08-0512, eff. April 1, 1995; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-170 Permit renewal and expiration

A. Permits being renewed shall be subject to the same procedural requirements, including those for public participation, affected state and EPA review, that apply to initial permit issuance under this article.

B. Permit expiration terminates the source's right to operate unless a timely and complete renewal application has been submitted consistent with 9VAC5-80-80.

C. If the department fails to act in a timely way on a permit renewal, the administrator may invoke his authority under § 505(e) of the federal Clean Air Act to terminate or revoke and reissue the permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0513, eff. April 1, 1995; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-180 Permanent shutdown for emissions trading

The shutdown of an emissions unit is not creditable for purposes of emissions trading or exempt under 9VAC5-80-50 C 4 unless a decision concerning shutdown has been made pursuant to 9VAC5-20-220.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0514, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001.

9VAC5-80-190 Changes to permits

A. Changes to emissions units that pertain to applicable federal requirements at a source with a permit issued under this article shall be made as specified under subsections B through D of this section and 9VAC5-80-200 through 9VAC5-80-240. Changes to emissions units that pertain to applicable state requirements at a source with a permit issued under this article shall be made as specified under subsection E of this section. Changes to a permit issued under this article and during its five-year term that pertain to applicable federal requirements may be initiated by the permittee as specified in subsection B of this section or by the department or administrator as specified in subsection C of this section.

B. The following requirements apply with respect to changes initiated by the permittee:

1. The permittee may initiate a change to a permit by requesting an administrative permit amendment, a minor permit modification or a significant permit modification. The requirements for these permit revisions can be found in 9VAC5-80-200 through 9VAC5-80-230.

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

C. The administrator or the department may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-240.

D. Changes to permits shall not be used to extend the term of the permit.

E. The following changes apply with respect to changes at a source and applicable state requirements:

1. Changes at a source that pertain only to applicable state requirements shall be exempt from the requirements of 9VAC5-80-200 through 9VAC5-80-240.

2. The permittee may initiate a change pertaining only to applicable state requirements (i) if the change does not violate applicable requirements and (ii) if applicable, the requirements of the new source review program have been met.

3. Incorporation of permit terms and conditions into a permit issued under this article shall be as follows:

a. Permit terms and conditions pertaining only to applicable state requirements and issued under the new source review program shall be incorporated into a permit issued under this article at the time of permit renewal or at an earlier time, if the applicant requests it.

b. Permit terms and conditions for changes to emissions units pertaining only to applicable state requirements and exempt from the requirements of the new source review program shall be incorporated into a permit issued under this article at the time of permit renewal or at an earlier time, if the applicant requests it.

4. The source shall provide contemporaneous written notice to the department of the change. Such written notice shall describe each change, including the date, any change in emissions, pollutants emitted, and any applicable state requirement that would apply as a result of the change.

5. The change shall not qualify for the permit shield under 9VAC5-80-140.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0515, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-200 Administrative permit amendments

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

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

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

3. Requirement for more frequent monitoring or reporting by the permittee.

4. Change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department and the requirements of 9VAC5-80-160 have been fulfilled.

5. Incorporation into the permit of the requirements of permits issued under the new source review program when the new source review program meets (i) procedural requirements substantially equivalent to the requirements of 9VAC5-80-270 and 9VAC5-80-290 that would be applicable to the change if it were subject to review as a permit modification and (ii) compliance requirements substantially equivalent to those contained in 9VAC5-80-110.

6. Change in the enforceability status from state-only requirements to federally enforceable requirements for provisions that have been approved through rulemaking by the administrator to be a part of the implementation plan.

B. Administrative permit amendment procedures shall be required for and limited to the following:

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

2. The department shall incorporate the changes without providing notice to the public or affected states under 9VAC5-80-270 and 9VAC5-80-290. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

3. The department shall submit a copy of the revised permit to the administrator.

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

C. The department shall, upon taking final action granting a request for an administrative permit amendment, allow coverage by the permit shield provisions of 9VAC5-80-140 for amendments made pursuant to subdivision A 5 of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0516, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-210 Minor permit modifications

A. Minor permit modification procedures shall be used only for those permit modifications that:

1. Do not violate any applicable requirement;

2. Do not involve significant changes to existing monitoring, reporting, or record keeping requirements in the permit such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or record keeping requirements;

3. Do not require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;

4. Do not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable federal requirement and that the source has assumed to avoid an applicable federal requirement to which the source would otherwise be subject. Such terms and conditions include:

a. A federally enforceable emissions cap assumed to avoid classification as a Title I modification; and

b. An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act;

5. Are not Title I modifications; and

6. Are not required to be processed as a significant modification under 9VAC5-80-230 or as an administrative permit amendment under 9VAC5-80-200.

B. Notwithstanding subsection A of this section and 9VAC5-80-220 A, minor permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that such minor permit modification procedures are explicitly provided for in the Regulations for the Control and Abatement of Air Pollution or a federally approved program.

C. An application requesting the use of minor permit modification procedures shall meet the requirements of 9VAC5-80-90 for the modification proposed and shall include all of the following:

1. A description of the change, the emissions resulting from the change, and any new applicable federal requirements that will apply if the change occurs.

2. A suggested draft permit prepared by the applicant.

3. Certification by a responsible official, consistent with 9VAC5-80-80 G, that the proposed modification meets the criteria for use of minor permit modification procedures and a request that such procedures be used.

D. Within five working days of receipt of a permit modification application that meets the requirements of subsection C of this section, the department shall meet its obligation under 9VAC5-80-290 A 1 and B 1 to notify the administrator and affected states of the requested permit modification. The department shall promptly send any notice required under 9VAC5-80-290 B 2 to the administrator. The public participation requirements of 9VAC5-80-270 shall not extend to minor permit modifications.

E. The timetable for issuance of permit modifications shall be follows:

1. The department may not issue a final permit modification until after the administrator's 45-day review period or until the administrator has notified the department that he will not object to issuance of the permit modification, whichever occurs first, although the department can approve the permit modification prior to that time.

2. Within 90 days of receipt by the department of an application under minor permit modification procedures or 15 days after the end of the 45-day review period under 9VAC5-80-290 C, whichever is later, the department shall do one of the following:

a. Issue the permit modification as proposed.

b. Deny the permit modification application.

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

d. Revise the draft permit modification and transmit to the administrator the new proposed permit modification as required by 9VAC5-80-290 A.

F. The following requirements apply with respect to the ability of an owner to make minor permit modification changes:

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

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

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

G. The permit shield under 9VAC5-80-140 shall not extend to minor permit modifications.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0517, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-220 Group processing of minor permit modifications

A. Group processing of modifications may be used only for those permit modifications that meet both of the following:

1. Permit modifications that meet the criteria for minor permit modification procedures under 9VAC5-80-210 A.

2. Permit modifications that collectively are below the threshold level as follows: 10% of the emissions allowed by the permit for the emissions unit for which the change is requested, 20% of the applicable definition of major source in 9VAC5-80-60, or five tons per year, whichever is least.

B. An application requesting the use of group processing procedures shall meet the requirements of 9VAC5-80-90 for the proposed modifications and shall include all of the following:

1. A description of the change, the emissions resulting from the change, and any new applicable federal requirements that will apply if the change occurs.

2. A suggested draft permit prepared by the applicant.

3. Certification by a responsible official, consistent with 9VAC5-80-80 G, that the proposed modification meets the criteria for use of group processing procedures and a request that such procedures be used.

4. A list of the source's other pending applications awaiting group processing and a determination of whether the requested modification, aggregated with these other applications, equals or exceeds the threshold set under subdivision A 2 of this section.

5. Certification, consistent with 9VAC5-80-80 G, that the source has notified the administrator of the proposed modification. Such notification need contain only a brief description of the requested modification.

6. Completed forms for the department to use to notify the administrator and affected states as required under 9VAC5-80-290.

C. On a quarterly basis or within five business days of receipt of an application demonstrating that the aggregate of the pending applications for the source equals or exceeds the threshold level set under subdivision A 2 of this section, whichever is earlier, the department promptly shall meet its obligation under 9VAC5-80-290 A 1 and B 1 to notify the administrator and affected states of the requested permit modifications. The department shall send any notice required under 9VAC5-80-290 B 2 to the administrator. The public participation requirements of 9VAC5-80-270 shall not extend to group processing of minor permit modifications.

D. The provisions of 9VAC5-80-210 E shall apply to modifications eligible for group processing, except that the department shall take one of the actions specified in 9VAC5-80-210 E 2 within 180 days of receipt of the application or 15 days after the end of the 45-day review period under 9VAC5-80-290 C, whichever is later.

E. The provisions of 9VAC5-80-210 F shall apply to modifications eligible for group processing.

F. The permit shield under 9VAC5-80-140 shall not extend to minor permit modifications.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0518, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-230 Significant modification procedures

A. Significant modification procedures shall be used for applications requesting permit modifications that do not qualify as minor permit modifications under 9VAC5-80-210 or 9VAC5-80-220 or as administrative amendments under 9VAC5-80-200. Significant modification procedures shall be used for those permit modifications that:

1. Involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

2. Require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts made under 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant Sources), or a visibility or increment analysis carried out under this chapter.

3. Seek to establish or change a permit term or condition for which there is no corresponding underlying applicable federal requirement and that the source has assumed to avoid an applicable federal requirement to which the source would otherwise be subject. Such terms and conditions include:

a. A federally enforceable emissions cap assumed to avoid classification as a Title I modification.

b. An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act (early reduction of hazardous air pollutants).

B. An application for a significant permit modification shall meet the requirements of 9VAC5-80-80 and 9VAC5-80-90 for permit issuance and renewal for the modification proposed and shall include the following:

1. A description of the change, the emissions resulting from the change, and any new applicable federal requirements that will apply if the change occurs.

2. A suggested draft permit prepared by the applicant.

3. Completed forms for the department to use to notify the administrator and affected states as required under 9VAC5-80-290.

C. The provisions of 9VAC5-80-290 shall be carried out for significant permit modifications in the same manner as they would be for initial permit issuance and renewal.

D. The provisions of 9VAC5-80-270 shall apply to applications made under this section.

E. The department shall take final action on significant permit modifications within nine months after receipt of a complete application.

F. The owner shall not make the change applied for in the significant modification application until the modification is approved by the department under subsection E of this section.

G. The provisions of 9VAC5-80-140 shall apply to changes made under this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0519, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-240 Reopening for cause

A. A permit shall be reopened and revised under any of the conditions stated in 9VAC5-80-110 L.

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

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

D. Provisions for reopenings for cause by EPA shall be as follows:

1. If the administrator finds that cause exists to terminate, modify, or revoke and reissue a permit pursuant to subsection A of this section, the administrator shall notify the department and the permittee of such finding in writing.

2. The department shall, within 90 days after receipt of such notification, forward to the administrator a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The administrator may extend this 90-day period for an additional 90 days if he finds that a new or revised permit application is necessary or that the department must require the permittee to submit additional information.

3. The administrator shall review the proposed determination from the department within 90 days of receipt.

4. The department shall have 90 days from receipt of an objection by the administrator to resolve any objection that he makes and to terminate, modify, or revoke and reissue the permit in accordance with the objection.

5. If the department fails to submit a proposed determination pursuant to subdivision 2 of this subsection or fails to resolve any objection pursuant to subdivision 4 of this subsection, the administrator shall terminate, modify, or revoke and reissue the permit after taking the following actions:

a. Providing at least 30 days' notice to the permittee in writing of the reasons for any such action. This notice may be given during the procedures in subdivisions 1 through 4 of this subsection.

b. Providing the permittee an opportunity for comment on the administrator's proposed action and an opportunity for a hearing.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0520, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-250 Malfunction

A. In the event of a malfunction, the owner may demonstrate that the conditions of subsection B of this section are met.

B. The permittee may, through properly signed, contemporaneous operating logs, or other relevant evidence, show the following:

1. A malfunction occurred and the permittee can identify the cause or causes of the malfunction.

2. The permitted facility was at the time being properly operated.

3. During the period of the malfunction, the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards or other requirements in the permit.

4. The permittee notified the department of the malfunction within two working days following the time when the emission limitations were exceeded due to the malfunction. This notification should include a description of the malfunction, any steps taken to mitigate emissions, and corrective actions taken. The notification may be delivered either orally or in writing by any method that allows the permittee to comply with the deadline. This notification fulfills the requirements of 9VAC5-80-110 F 2 b to report promptly deviations from permit requirements. This notification does not release the permittee from the malfunction reporting requirements under 9VAC5-20-180 C.

C. In any enforcement proceeding, the permittee seeking to establish the occurrence of a malfunction shall have the burden of proof.

D. The provisions of this section are in addition to any malfunction, emergency or upset provision contained in any applicable requirement.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0521, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 33, Issue 4, eff. November 16, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-260 Enforcement

A. General provisions shall be as follows:

1. Pursuant to § 10.1-1322 of the Code of Virginia, failure to comply with any condition of a permit shall be considered a violation of the Virginia Air Pollution Control Law.

2. A permit may be revoked or terminated prior to its expiration date if the owner does any of the following:

a. Knowingly makes material misstatements in the permit application or any amendments of it.

b. Violates, fails, neglects or refuses to comply with (i) the terms or conditions of the permit, (ii) any applicable requirements, or (iii) the applicable provisions of this article.

3. The department may suspend, under such conditions and for such period of time as the department may prescribe, any permit for any of the grounds for revocation or termination contained in subdivision 2 of this subsection or for any other violations of the Regulations for the Control and Abatement of Air Pollution.

B. Penalties shall be as follows:

1. An owner who violates, fails, neglects or refuses to obey any provision of this article or the Virginia Air Pollution Control Law, any applicable requirement, or any permit condition shall be subject to the provisions of § 10.1-1316 of the Virginia Air Pollution Control Law.

2. Any owner who knowingly violates, fails, neglects or refuses to obey any provision of this article or the Virginia Air Pollution Control Law, any applicable requirement, or any permit condition shall be subject to the provisions of § 10.1-1320 of the Virginia Air Pollution Control Law.

3. Any owner who knowingly makes any false statement, representation or certification in any form, in any notice or report required by a permit, or who knowingly renders inaccurate any required monitoring device or method shall be subject to the provisions of § 10.1-1320 of the Virginia Air Pollution Control Law.

C. Provisions for appeals shall be as follows:

1. The department shall notify the applicant in writing of its decision, with its reasons, to suspend, revoke or terminate a permit.

2. Appeal from any decision of the department under subdivision 1 of this subsection may be taken pursuant to Part VIII (9VAC5-170-190 et seq.) of 9VAC5 Chapter 170, § 10.1-1318 of the Virginia Air Pollution Control Law, and the Administrative Process Act.

D. The existence of a permit under this article shall constitute a defense to a violation of any applicable requirement if the permit contains a condition providing the permit shield as specified in 9VAC5-80-140 and if the requirements of 9VAC5-80-140 have been met. The existence of a permit shield condition shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of other governmental entities having jurisdiction. Otherwise, the existence of a permit under this article shall not constitute a defense of a violation of the Virginia Air Pollution Control Law or the Regulations for the Control and Abatement of Air Pollution and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

E. Provisions for inspections and right of entry shall be as follows:

1. The director, as authorized under § 10.1-1307.3 of the Virginia Air Pollution Control Law and 9VAC5-20-150, has the authority to require that air pollution records and reports be made available upon request and to require owners to develop, maintain, and make available such other records and information as are deemed necessary for the proper enforcement of the permits issued under this article.

2. The director, as authorized under § 10.1-1307.3 of the Virginia Air Pollution Control Law, has the authority, upon presenting appropriate credentials to the owner, to do the following:

a. Enter without delay and at reasonable times any business establishment, construction site, or other area, workplace, or environment in the Commonwealth; and

b. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, without prior notice, unless such notice is authorized by the department or its representative, any such business establishment or place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and question privately any such employer, officer, owner, operator, agent, or employee. If such entry or inspection is refused, prohibited, or otherwise interfered with, the department shall have the power to seek from a court having equity jurisdiction an order compelling such entry or inspection.

F. The department may enforce permits issued under this article through the use of other enforcement mechanisms such as consent orders and special orders. The procedures for using these mechanisms are contained in 9VAC5-20-20 and 9VAC5-20-30 and in §§ 10.1-1307 D, 10.1-1309, and 10.1-1309.1 of the Virginia Air Pollution Control Law.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0522, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-270 Public participation

A. Except for modifications qualifying for minor permit modification procedures and administrative permit amendments, draft permits for initial permit issuance, significant modifications, and renewals shall be subject to a public comment period of at least 30 days. The department shall notify the public using the procedures in subsection B of this section.

B. The department shall notify the public of the draft permit or draft permit modification (i) by advertisement in a newspaper of general circulation in the area where the source is located and (ii) through a notice to persons on a permit mailing list who have requested such information of the opportunity for public comment on the information available for public inspection under the provisions of subsection C of this section.

C. Provisions for the content of the public notice and availability of information shall be as follows:

1. The notice shall include, but not be limited to, the following:

a. The source name, address and description of specific location.

b. The name and address of the permittee.

c. The name and address of the regional office processing the permit.

d. The activity or activities for which the permit action is sought.

e. The emissions change that would result from the permit issuance or modification.

f. The name, address, and telephone number of a department contact from whom interested persons may obtain additional information, including copies of the draft permit or draft permit modification, the application, and all relevant supporting materials, including the compliance plan.

g. A brief description of the comment procedures required by this section.

h. A brief description of the procedures to be used to request a hearing or the time and place of the public hearing if the director determines to hold a hearing under 9VAC5-80-35 E.

2. Information on the permit application (exclusive of confidential information under 9VAC5-20-150), as well as the draft permit or draft permit modification, shall be available for public inspection during the entire public comment period at the regional office.

D. The department shall provide such notice and opportunity for participation by affected states as is provided for by 9VAC5-80-290.

E. Provisions for public hearing shall be as follows:

1. The department shall provide an opportunity for a public hearing as described in subdivisions 2 through 6 of this subsection.

2. Following the initial publication of the notice required under subsection B of this section, the department will receive written requests for a public hearing to contest the draft permit or draft permit modification pursuant to the requirements of 9VAC5-80-35. In order to be considered, the request shall be submitted no later than the end of the comment period. Requests for a public hearing shall contain the following information:

a. The name and postal mailing or email address;

b. The names and addresses of all persons for whom the requester is acting as a representative; for the purposes of this requirement, "person" includes an unincorporated association;

c. The reason for the request for public hearing;

d. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the draft permit or draft permit modification, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

e. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the Virginia Air Pollution Control Law.

3. The department will review any request made under subdivision 2 of this subsection, and will take final action on the request as provided in 9VAC5-80-150 B.

F. The department shall keep a record of the commenters and a record of the issues raised during the public participation process so that the administrator may fulfill the administrator's obligation under § 505(b)(2) of the federal Clean Air Act to determine whether a citizen petition may be granted. Such records shall be made available to the public upon request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0523, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 14, Issue 2, eff. January 1, 1998; Volume 17, Issue 4, eff. January 1, 2001; Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-280 Operational flexibility

A. The department shall allow, under conditions specified in this section, operational flexibility changes at a source that do not require a revision to be made to the permit in order for the changes to occur. Such changes shall be classified as follows: (i) those that contravene an express permit term or (ii) those that are not addressed or prohibited by the permit. The conditions under which the department shall allow these changes to be made are specified in subsections B and C of this section, respectively.

B. The following requirements apply with respect to changes that contravene an express permit term:

1. The following general requirements apply:

a. The department shall allow a change at a stationary source that changes a permit condition with the exception of the following:

(1) A Title I modification.

(2) A change that would exceed the emissions allowable under the permit.

(3) A change that would violate applicable requirements.

(4) A change that would contravene federally or state enforceable permit terms or conditions or both that are monitoring (including test methods), record keeping, reporting, compliance schedule dates, or compliance certification requirements.

b. The owner shall provide written notification to the administrator and the department at least seven days in advance of the proposed change. The written notification shall include a brief description of the change within the permitted facility, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change.

c. The owner, department and the administrator shall attach the notice described in subdivision 1 b of this subsection to their copy of the relevant permit.

d. The permit shield under 9VAC5-80-140 shall not extend to any change made pursuant to subdivision 1 of this subsection.

2. The following requirements apply with respect to emission trades within permitted facilities provided for in the Regulations for the Control and Abatement of Air Pollution:

a. With the exception of the changes listed in subdivision 1 a of this subsection, the department shall allow permitted sources to trade increases and decreases in emissions within the permitted facility (i) where the Regulations for the Control and Abatement of Air Pollution provide for such emissions trades without requiring a permit revision and (ii) where the permit does not already provide for such emissions trading.

b. The owner shall provide written notification to the administrator and the department at least seven days in advance of the proposed change. The written notification shall include such information as may be required by the provision in the Regulations for the Control and Abatement of Air Pollution authorizing the emissions trade, including at a minimum the name and location of the facility, when the proposed change will occur, a description of the proposed change, any change in emissions, the permit requirements with which the source will comply using the emissions trading provisions of the Regulations for the Control and Abatement of Air Pollution and the pollutants emitted subject to the emissions trade. The notice shall also refer to the provisions with which the source will comply in the Regulations for the Control and Abatement of Air Pollution and which provide for the emissions trade.

c. The permit shield described in 9VAC5-80-140 shall not extend to any change made under subdivision 2 of this subsection. Compliance with the permit requirements that the source will meet using the emissions trade shall be determined according to requirements of the Regulations for the Control and Abatement of Air Pollution.

3. Emission trades within stationary sources to comply with an emissions cap in the permit.

a. If a permit applicant requests it, the department shall issue permits that contain terms and conditions, including all terms required under 9VAC5-80-110 to determine compliance, allowing for the trading of emissions increases and decreases within the permitted facility solely for the purpose of complying with a federally enforceable emissions cap that is established in the permit independent of otherwise applicable federal requirements. The permit applicant shall include in the application proposed replicable procedures and permit terms that ensure that the emissions trades are quantifiable and enforceable. The department shall not include in the emissions trading provisions any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades. The permit shall also require compliance with all applicable requirements.

b. The department shall not allow a change to be made under subdivision 3 of this subsection if it is a change listed in subdivision 1 of this subsection.

c. The owner shall provide written notification to the administrator and the department at least seven days in advance of the proposed change. The written notification shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.

d. The permit shield under 9VAC5-80-140 shall extend to terms and conditions that allow such increases and decreases in emissions.

C. The following requirements apply with respect to changes that are not addressed or prohibited by the permit:

1. The department shall allow the owner to make changes that are not addressed or prohibited by the permit unless the changes are Title I modifications or are subject to requirements under Title IV.

2. Each change shall meet all applicable requirements and shall not violate any existing permit term or condition which is based on applicable federal requirements.

3. Sources shall provide contemporaneous written notice to the department and the administrator of each change, except for changes to emissions units deemed insignificant and listed in 9VAC5-80-720 A. Such written notice shall describe each change, including the date, any change in emissions, pollutants emitted, and any applicable federal requirement that would apply as a result of the change.

4. The change shall not qualify for the permit shield under 9VAC5-80-140.

5. The permittee shall keep a record describing changes made at the source that result in emissions of a regulated air pollutant subject to an applicable federal requirement but not otherwise regulated under the permit, and the emissions resulting from those changes.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0524, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-290 Permit review by EPA and affected states

A. The following requirements apply with respect to transmission of information to the administrator:

1. The department shall provide to the administrator a copy of each permit application (including any application for permit modification), each proposed permit, and each final permit issued under this article.

2. The department shall keep for five years such records and submit to the administrator such information as the administrator may reasonably require to ascertain whether the Virginia program complies with the requirements of the federal Clean Air Act or of 40 CFR Part 70.

B. The following requirements apply with respect to review by affected states:

1. The department shall give notice of each draft permit to any affected state on or before the time that the department provides this notice to the public under 9VAC5-80-270, except to the extent that 9VAC5-80-210 or 9VAC5-80-220 requires the timing of the notice to be different.

2. The department, as part of the submittal of the proposed permit to the administrator (or as soon as possible after the submittal for minor permit modification procedures allowed under 9VAC5-80-210 or 9VAC5-80-220), shall notify the administrator and any affected state in writing of any refusal by the department to accept recommendations for the proposed permit that the affected state submitted during the public or affected state review period. The notice shall include the reasons the department will not accept a recommendation. The department shall not be obligated to accept recommendations that are not based on applicable federal requirements or the requirements of this article.

C. The following requirements apply with regard to objections by EPA:

1. No permit for which an application must be transmitted to the administrator under subsection A of this section shall be issued if the administrator objects to its issuance in writing within 45 days of receipt of the proposed permit and all necessary supporting information.

2. Any objection by the administrator under subdivision 1 of this subsection shall include a statement of the reasons for the objection and a description of the terms and conditions that the permit must include to respond to the objection. The administrator shall provide the permit applicant a copy of the objection.

3. Failure of the department to do any of the following also shall constitute grounds for an objection:

a. Comply with subsection A or B of this section or both.

b. Submit any information necessary to review adequately the proposed permit.

c. Process the permit under the public comment procedures in 9VAC5-80-270 except for minor permit modifications.

4. If, within 90 days after the date of an objection under subdivision 1 of this subsection, the department fails to revise and submit a proposed permit in response to the objection, the administrator will issue or deny the permit in accordance with the requirements of 40 CFR Part 71.

D. The following requirements apply with respect to public petitions to the administrator:

1. If the administrator does not object in writing under subsection C of this section, any person may petition the administrator within 60 days after the expiration of the 45-day review period for the administrator to make such objection.

2. Any such petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided for in 9VAC5-80-270, unless the petitioner demonstrates that it was impracticable to raise such objections within such period, or unless the grounds for such objection arose after such period.

3. If the administrator objects to the permit as a result of a petition filed under subdivision 1 of this subsection, the department shall not issue the permit until the objection has been resolved, except that a petition for review does not stay the effectiveness of a permit or its requirements if the permit was issued after the end of the 45-day review period and prior to an objection by the administrator.

4. If the department has issued a permit prior to receipt of an objection by the administrator under subdivision 1 of this subsection, the administrator will modify, terminate, or revoke such permit, and shall do so consistent with the procedures in 9VAC5-80-240 D 4 or D 5 a and b except in unusual circumstances, and the department may thereafter issue only a revised permit that satisfies the administrator's objection. In any case, the source will not be in violation of the requirement to have submitted a timely and complete application.

E. No permit (including a permit renewal or modification) shall be issued by the department until affected states and the administrator have had an opportunity to review the proposed permit as required under this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0525, eff. April 1, 1995; amended Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-300 Voluntary inclusions of additional state-only requirements as applicable state requirements in the permit

A. Upon the request of an applicant, any requirement of any regulation of the board (other than any requirement that is a federal applicable requirement) may be included as an applicable state requirement in a permit issued under this article.

B. If the applicant chooses to make a request under subsection A of this section, the provisions of this article pertaining to applicable state requirements shall apply.

C. The request under subsection A of this section shall be made by including the citation and description of any applicable requirement not defined as such in this article in the permit application submitted to the department under 9VAC5-80-90 E.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0526, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-305 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; repealed, Virginia Register Volume 17, Issue 4, eff. January 1, 2001.

Article 2 Permit Program Emissions Fees for Stationary Sources

9VAC5-80-310 Applicability

Article 2 Permit Program Emissions Fees for Stationary Sources

A. Except as provided in subsection C of this section, the provisions of this article apply to the following stationary sources:

1. Any major source.

2. Any source, including an area source, subject to a standard, limitation, or other requirement under § 111 of the federal Clean Air Act.

3. Any source, including an area source, subject to a standard, limitation, or other requirement under § 112 of the federal Clean Air Act.

4. Any affected source.

5. Any other source subject to the permit requirements of Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part.

6. Any source that would be subject to the permit requirements of Article 1 (9VAC5-80-50 et seq.) of this part in the absence of a permit issued under Article 5 (9VAC5-80-800 et seq.) of this part.

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

C. The provisions of this article shall not apply to the following:

1. All sources and source categories that would be subject to this article solely because they are subject to the provisions of 40 CFR Part 60, Subpart AAA (standards of performance for new residential wood heaters), as prescribed in Article 5 (9VAC5-50-400 et seq.) of 9VAC5-50 (New and Modified Stationary Sources).

2. All sources and source categories that would be subject to this article solely because they are subject to the provisions of 40 CFR 61.145 (national emission standard for hazardous air pollutants for asbestos, standard for demolition and renovation), Subpart M, as prescribed in Article 1 (9VAC5-60-60 et seq.) of 9VAC5-60 (Hazardous Air Pollutant Sources).

3. Any source issued a permit under the new source review program that began initial operation during the calendar year preceding the year in which the annual permit program emissions fee is assessed.

4. That portion of emissions in excess of 4,000 tons per year of any regulated air pollutant emitted by any source otherwise subject to an annual permit program emissions fee.

5. Any emissions unit within a stationary source subject to this article that is identified as being an insignificant activity in Article 4 (9VAC5-80-710 et seq.) of this part.

6. All sources and source categories that would be subject to this article solely because they are subject to regulations or requirements under § 112(r) of the federal Clean Air Act.

7. Any source deferred by the provisions of subsection D of this section provided the source is not part of a major source.

D. Sources shall be deferred from initial applicability as follows.

1. Area sources subject to this article under subdivision A 2 or A 3 of this section shall be deferred from the obligation to pay fees under this article except as follows.

a. In cases for which EPA has promulgated a standard under § 111 or 112 of the federal Clean Air Act and has declared that the facility or source category covered by the standard is subject to the Title V program, the facility or source category shall be subject to this article.

b. In cases for which EPA has promulgated a standard under § 111 or 112 of the federal Clean Air Act after July 21, 1992, and has failed to declare whether the facility or source category covered by the standard is subject to the Title V program, the facility or source category shall be subject to this article.

2. The following sources shall not be deferred from the obligation to pay fees under this article:

a. Major sources.

b. Solid waste incineration units subject to the provisions of 9VAC5-40 (Existing Stationary Sources) and 9VAC5-50 (New and Modified Stationary Sources) as adopted pursuant to § 129(e) of the federal Clean Air Act.

3. Any source deferred under subdivision 1 of this subsection may apply for a permit under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part. If the source applies for a permit, the source shall be subject to this article and shall pay fees accordingly.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from VR120-08-0601, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 20, eff. July 18, 2001; Volume 28, Issue 22, eff. July 1, 2012.

9VAC5-80-320 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all words and terms not defined in subsection C of this section shall have the meanings given them in 9VAC5-80-5 or 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms defined.

"Actual emissions" means, for the purposes of this article, the actual rate of emissions in tons per year of any regulated pollutant (for fee calculation) emitted from a source subject to this article over the preceding calendar year. Actual emissions may be calculated according to any method acceptable to the department provided such calculation takes into account the source's actual operating hours, production rates, in-place control equipment, and types of materials processed, stored, or combusted during the preceding calendar year. Any regulated pollutant which could be classed in more than one category shall be classed in only one category.

"Affected source" means a source that includes one or more affected units.

"Affected unit" means a unit that is subject to any federal acid rain emissions reduction requirement or acid rain emissions limitation under 40 CFR Parts 72, 73, 75, 77 or 78.

"Area source" means any stationary source that is not a major source. For purposes of this section, the phrase "area source" shall not include motor vehicles or nonroad vehicles.

"Greenhouse gases" means, for the purposes of this article, the aggregate group of the following gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

"Hazardous air pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by 40 CFR 63.60.

"Major source" means:

a. For hazardous air pollutants other than radionuclides, any stationary source that emits or has the potential to emit, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants. Notwithstanding the preceding sentence, emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources.

b. For air pollutants other than hazardous air pollutants, any stationary source that directly emits or has the potential to emit 100 tons per year or more of any air pollutant (including any major source of fugitive emissions of any such pollutant). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source, unless the source belongs to one of the following categories of stationary source:

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

(2) Kraft pulp mills;

(3) Portland cement plants;

(4) Primary zinc smelters;

(5) Iron and steel mills;

(6) Primary aluminum ore reduction plants;

(7) Primary copper smelters;

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

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

(10) Petroleum refineries;

(11) Lime plants;

(12) Phosphate rock processing plants;

(13) Coke oven batteries;

(14) Sulfur recovery plants;

(15) Carbon black plants (furnace process);

(16) Primary lead smelters;

(17) Fuel conversion plant;

(18) Sintering plants;

(19) Secondary metal production plants;

(20) Chemical process plants;

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

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

(23) Taconite ore processing plants;

(24) Glass fiber processing plants;

(25) Charcoal production plants;

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

(27) Any other stationary source category regulated under § 111 or 112 of the federal Clean Air Act for which the administrator has made an affirmative decision under § 302(j) of the federal Clean Air Act.

c. For ozone nonattainment areas, any stationary source with the potential to emit 100 tons per year or more of volatile organic compounds or nitrogen oxides in areas classified as "marginal" or "moderate," 50 tons per year or more in areas classified as "serious," 25 tons per year or more in areas classified as "severe," and 10 tons per year or more in areas classified as "extreme"; except that the references in this definition to 100, 50, 25, and 10 tons per year of nitrogen oxides shall not apply with respect to any source for which the administrator has made a finding that requirements under § 182(f) of the federal Clean Air Act (NO_x requirements for ozone nonattainment areas) do not apply.

d. For attainment areas in ozone transport regions, any stationary source with the potential to emit 50 tons per year or more of volatile organic compounds.

"Permit program costs" means all reasonable (direct and indirect) costs required to develop, administer, and enforce the permit program and to develop and administer the Small Business Technical and Environmental Compliance Assistance Program established pursuant to the provisions of § 10.1-1323 of the Code of Virginia.

"Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is state and federally enforceable.

"Regulated air pollutant" means any of the following:

a. Nitrogen oxides or any volatile organic compound.

b. Any pollutant for which an ambient air quality standard has been promulgated except carbon monoxide.

c. Any pollutant subject to any standard promulgated under § 111 of the federal Clean Air Act.

d. Any pollutant subject to a standard promulgated under § 112 (hazardous air pollutants) or other requirements established under § 112 of the federal Clean Air Act, particularly §§ 112(b), 112(d), 112(g)(2), 112(j), and 112(r); except that any pollutant that is a regulated pollutant solely because it is subject to a standard or regulation under § 112(r) of the federal Clean Air Act shall be exempt from this article.

"Regulated pollutant (for fee calculation)" means, for the purposes of this article, any regulated air pollutant except the following:

a. Carbon monoxide;

b. Any pollutant that is a regulated air pollutant solely because it is a Class I or II substance to a standard promulgated under or established by Title VI of the federal Clean Air Act;

c. Any pollutant that is a regulated air pollutant solely because it is subject to a standard or regulation under § 112(r) of the federal Clean Air Act; or

d. Greenhouse gases.

"Research and development facility" means all the following as applied to any stationary source:

a. The primary purpose of the source is the conduct of either (i) research and development into new products or processes or into new uses for existing products or processes or (ii) basic research to provide for education or the general advancement of technology or knowledge;

b. The source is operated under the close supervision of technically trained personnel; and

c. The source is not engaged in the manufacture of products in any manner inconsistent with clause a (i) or (ii) of this definition.

An analytical laboratory that primarily supports a research and development facility is considered to be part of that facility.

"Stationary source" means any building, structure, facility or installation which emits or may emit any regulated air pollutant. A stationary source shall include all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same persons (or persons under common control). Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "major group" (i.e., if they have the same two-digit code) as described in the Standard Industrial Classification Manual (see 9VAC5-20-21). Any research and development facility shall be considered a separate stationary source from the manufacturing or other facility with which it is co-located.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from VR120-08-0602, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 20, eff. July 18, 2001; Volume 28, Issue 22, eff. July 1, 2012; Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-330 General

A. The owner of any source subject to this article shall pay an annual permit program emissions fee.

B. Permit program emissions fees collected pursuant to this article for sources subject to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part shall not be used for any purpose other than as provided in Title V of the federal Clean Air Act and associated regulations and policies.

C. The owner shall be exempt from paying the annual permit program emissions fee for any year during which the total actual emissions are less than 10 tons.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from VR120-08-0603, eff. April 1, 1995; amended, Virginia Register Volume 17, Issue 20, eff. July 18, 2001; Volume 28, Issue 22, eff. July 1, 2012.

9VAC5-80-340 Annual permit program emissions fee calculation prior to January 1, 2018

A. For annual permit program emissions fees due prior to January 1, 2018, the annual permit program emissions fee shall not exceed the base year amount of $31.22 per ton of emissions, as provided in subsection B of Item 365 of the 2012 Appropriation Act adjusted annually by the Consumer Price Index as provided in Title V of the federal Clean Air Act and associated regulations and policies.

1. The annual permit program emissions fee shall be increased (consistent with the need to cover reasonable costs) each year by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Consumer Price Index for the calendar year 1989. The Consumer Price Index for any calendar year is the average of the Consumer Price Index for all-urban consumers published by the U.S. Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year.

2. The revision of the Consumer Price Index which is most consistent with the Consumer Price Index for the calendar year 1989 shall be used.

B. For annual permit program emissions fees due prior to January 1, 2018, the annual permit program emissions fee described in subsection A of this section and the amount billed to the owner as provided in subsection A of 9VAC5-80-350 for a given year shall be calculated in accordance with the following formulae:

| B = | (A)(F) | | --- | --- | | F = | X(1 + ∆CPI) | | ∆CPI = | CPI - 122.15 | | 122.15 | |

where:

B = the amount billed to the owner during the year after the year in which the actual emissions occurred, expressed in dollars

A = actual emissions covered by permit fees, expressed in tons

F = the maximum adjusted fee per ton for the calendar year in which the actual emissions occurred, expressed in dollars per ton

X = 31.22, expressed in dollars per ton

∆CPI = the difference between the CPI and 122.15 (the average of the Consumer Price Index for all-urban consumers for the 12-month period ending on August 31, 1989)

CPI = the average of the Consumer Price Index for all-urban consumers for the 12-month period ending on August 31 of the year in which the emissions actually occurred, expressed as a percentage

C. The actual emissions covered by the permit program emissions fees for the preceding year shall be calculated by the owner and submitted to the department by April 15 of each year. The calculations and final amount of emissions are subject to verification and final determination by the department.

D. If the assessment of the annual permit program emissions fee calculated in accordance with subsections A, B, and C of this section results in a total amount of fee revenue in excess of the amount necessary to fund the permit program costs, a lesser annual permit program emissions fee may instead be calculated and assessed according to the formula specified in subsection E of this section. Any adjustments made to the annual permit program emissions fee shall be within the constraints of 40 CFR 70.9.

E. The lesser annual permit program emissions fee shall be calculated according to the following formula: the lesser annual permit program emissions fee is equal to the estimated permit program costs divided by the estimated actual emissions. The estimated permit program costs and estimated actual emissions shall be determined from the data specified in subdivisions 1 and 2 of this subsection, incorporating any anticipated adjustments to the data.

1. The current permit program costs shall be determined from the most recent available annual expenditure record of the amount spent by the department on permit program costs.

2. The current actual emissions shall be determined from the most recent available annual emissions inventory of the actual emissions for each regulated pollutant subject to fees from all sources subject to the annual permit program emissions fee.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from VR120-08-0604, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 20, eff. July 18, 2001; Volume 28, Issue 22, eff. July 1, 2012; Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-342 Annual permit program emissions fee calculation on and after January 1, 2018

A. On and after January 1, 2018, the amount of the annual permit program emissions fee shall be calculated as follows:

1. The amount of the annual permit program emissions fee (consistent with the need to cover reasonable costs) for each applicable source shall be the annual permit program emission fee rate (in dollars per ton of emissions) for the billing calendar year multiplied by the total actual emissions for the previous calendar year (in tons per year of emissions).

2. The annual permit program emissions fee rate shall be calculated as follows:

a. For permit program emission fees billed in calendar year 2018 (applied to 2017 emissions), the annual permit program emissions fee rate shall be $73.01 per ton of emissions.

b. For permit program emission fees billed in calendar year 2019 (applied to 2018 emissions), the annual permit program emissions fee rate shall be $83.96 per ton of emissions.

c. For permit program emissions fees billed after calendar year 2019, the annual permit program emissions fee rate shall be adjusted annually by the change in the Consumer Price Index (CPI) as specified in subdivision 3 of this subsection.

3. The annual adjustment of the permit program emissions fees shall be based upon the annual permit program emissions fee rate for the preceding calendar year and the change in the CPI value published by the U.S. Department of Labor for all-urban consumers over the 12-month period ending on August 31 of the calendar year preceding the calendar year in which the annual permit program emissions fee is assessed and billed.

a. The CPI for all-urban consumers that is published by the U.S. Department of Labor may be obtained online from the Bureau of Labor Statistics website at http://data.bls.gov/cgi-bin/surveymost?cu.

b. No CPI adjustment shall be made for annual permit program emissions fees assessed and billed in calendar years 2018 and 2019.

B. The actual emissions covered by the permit program emissions fees for the preceding year shall be calculated by the owner and submitted to the department by April 15 of each year. The calculations and final amount of emissions are subject to verification and final determination by the department.

C. If the assessment of the annual permit program emissions fee calculated in accordance with subsections A and B of this section results in a total amount of fee revenue in excess of the amount necessary to fund the permit program costs, a lesser annual permit program emissions fee may instead be calculated and assessed according to the formula specified in subsection D of this section. Any adjustments made to the annual permit program emissions fee shall be within the constraints of 40 CFR 70.9.

D. The lesser annual permit program emissions fee shall be calculated according to the following formula: the lesser annual permit program emissions fee is equal to the estimated permit program costs divided by the estimated actual emissions. The estimated permit program costs and estimated actual emissions shall be determined from the data specified in subdivisions 1 and 2 of this subsection, incorporating any anticipated adjustments to the data.

1. The current permit program costs shall be determined from the most recent available annual expenditure record of the amount spent by the department on permit program costs.

2. The current actual emissions shall be determined from the most recent available annual emissions inventory of the actual emissions for each regulated pollutant subject to fees from all sources subject to the annual permit program emissions fee.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-350 Annual permit program emissions fee payment

A. Upon determining that the owner owes an annual permit program emissions fee, the department shall mail a bill for the fee to that owner no later than August 1 unless the governor determines that fees are needed earlier for Virginia to maintain primacy over the program, as provided in § 10.1-1322 B of the Virginia Air Pollution Control Law.

B. Within 30 days following the date of the postmark or electronic submittal on the bill, the owner shall respond in one of the following ways:

1. The owner may pay the fee in full.

2. The owner may pay the fee in equal quarterly payments and shall pay one quarter of the fee. The first payment shall be accompanied by a written statement that the second quarter of the fee shall be paid no later than December 1 of the year of the issuance of the bill, the third quarter of the fee shall be paid no later than March 1 of the year following the issuance of the bill, and the fourth quarter of the fee shall be paid no later than June 1 of the year following the issuance of the bill. If an owner fails to pay a quarterly payment by the deadline, the department may, in addition to other remedies available under the law, issue to the owner a notice of failure to pay. The notice will require payment of the entire remainder of the annual fee payment within 30 days of the date of the notice, or inform the owner that the owner is ineligible to opt for the quarterly payment schedule established in this subdivision until eligibility is reinstated by written notice from the department, or both.

3. The owner may request that the fee amount be revised if the owner can document that the emissions estimate on which the fee was based is in error. This request shall include appropriate source identification data, the revised emissions estimate, the revised fee amount, adequate supporting documentation, and other information as the department may require. The owner shall file the request with the appropriate regional office in a form acceptable to the department. If the department approves the request, the revised fee amount shall be paid in one of two ways:

a. In full within 30 days of the date of approval; or

b. In quarterly payments, with the first payment being paid within 30 days of the date of approval and the other payments being paid according to the schedule set out in subdivision 2 of this subsection.

C. The annual permit program emissions fee shall be paid by check, draft, or money order made payable to the Treasurer of Virginia and mailed to the address specified by the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from VR120-08-0605, eff. April 1, 1995; amended, Virginia Register Volume 12, Issue 25, eff. October 15, 1996; Volume 17, Issue 20, eff. July 18, 2001; Volume 28, Issue 22, eff. July 1, 2012; Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-80-355 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996.; repealed, Virginia Register Volume 17, Issue 20, eff. July 18, 2001.

Article 3 Federal Operating Permits for Acid Rain Sources

9VAC5-80-360 Applicability

A. Except as provided in subsection C of this section, the provisions of this article apply to any affected source that has an affected unit under the provisions of 9VAC5-80-380.

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

C. The provisions of this article shall not apply to the following:

1. Any new unit exempted under 9VAC5-80-390.

2. Any affected unit exempted under 9VAC5-80-400.

3. Any emissions unit that is determined to be shutdown under the provisions of 9VAC5-20-220.

D. Regardless of the exemptions provided in this section, permits shall be required of owners who circumvent the requirements of this article by causing or allowing a pattern of ownership or development of a source which, except for the pattern of ownership or development, would otherwise require a permit.

E. Particulate matter emissions shall be used to determine the applicability of this article to major sources only if particulate matter (PM₁₀) emissions cannot be quantified in a manner acceptable to the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-370 Definitions

As used in this article and related permits and orders issued by the department, all words and terms not defined herein shall have the meaning given them in 9VAC5 Chapter 10 (9VAC5-10-10 et seq.), unless the context clearly indicates otherwise; otherwise, words and terms shall have the following meanings:

"Acid rain compliance option" means one of the methods of compliance used by an affected unit under the acid rain program as described in a compliance plan submitted and approved in accordance with 9VAC5-80-450 or 40 CFR Part 76.

"Acid rain compliance plan" means the document submitted for an affected source in accordance with 9VAC5-80-430 specifying the method or methods (including one or more acid rain compliance options under 9VAC5-80-450 or 40 CFR Part 76) by which each affected unit at the source will meet the applicable acid rain emissions limitation and acid rain emissions reduction requirements.

"Acid rain emissions limitation" means:

1. For the purposes of sulfur dioxide emissions:

a. The tonnage equivalent of the allowances authorized to be allocated to an affected unit for use in a calendar year under §§ 404(a)(1), (a)(3), and (h) of the federal Clean Air Act, or the basic Phase II allowance allocations authorized to be allocated to an affected unit for use in a calendar year, or the allowances authorized to be allocated to an opt-in source under § 410 of the federal Clean Air Act for use in a calendar year;

b. As adjusted:

(1) By allowances allocated by the administrator pursuant to §§ 403, 405(a)(2), (a)(3), (b)(2), (c)(4), (d)(3), and (h)(2), and 406 of the federal Clean Air Act;

(2) By allowances allocated by the administrator pursuant to Subpart D of 40 CFR Part 72; and thereafter

(3) By allowance transfers to or from the compliance subaccount for that unit that were recorded or properly submitted for recordation by the allowance transfer deadline as provided in 40 CFR 73.35, after deductions and other adjustments are made pursuant to 40 CFR 73.34(c); and

2. For purposes of nitrogen oxides emissions, the applicable limitation established by 40 CFR Part 76, as modified by an acid rain permit application submitted to the department, and an acid rain permit issued by the department, in accordance with 40 CFR Part 76.

"Acid rain emissions reduction requirement" means a requirement under the acid rain program to reduce the emissions of sulfur dioxide or nitrogen oxides from a unit to a specified level or by a specified percentage.

"Acid rain permit" or "permit" means the legally binding written document, or portion of such document, issued by the department (following an opportunity for appeal pursuant to 40 CFR Part 78 or the Administrative Process Act), including any permit revisions, specifying the acid rain program requirements applicable to an affected source, to each affected unit at an affected source, and to the owners and operators and the designated representative of the affected source or the affected unit.

"Acid rain program" means the national sulfur dioxide and nitrogen oxides air pollution control and emissions reduction program established in accordance with Title IV of the federal Clean Air Act, 40 CFR Parts 73, 74, 75, 76, 77, and 78, and this article.

"Acid rain program regulations" means regulations implementing Title IV of the federal Clean Air Act, including 40 CFR Parts 73, 74, 75, 76, 77, and 78, and this article.

"Actual sulfur dioxide emissions rate" means the annual average sulfur dioxide emissions rate for the unit (expressed in lb/mmBtu), for the specified calendar year; provided that, if the unit is listed in the NADB, the "1985 actual sulfur dioxide emissions rate" for the unit shall be the rate specified by the administrator in the NADB under the data field "SO2RTE."

"Administrative record" means the written documentation that supports the issuance or denial of the acid rain permit and that contains the following:

1. The permit application and any supporting or supplemental data submitted by the designated representative.

2. The draft permit.

3. The statement of basis.

4. Copies of any documents cited in the statement of basis and any other documents relied on by the department in issuing or denying the draft permit (including any records of discussions or conferences with owners, operators, or the designated representative of affected units at the source or interested persons regarding the draft permit), or, for any such documents that are readily available, a list of those documents and a statement of their location.

5. Copies of all written public comments submitted on the draft permit or denial of a draft permit.

6. The record of any public hearing on the draft permit or denial of a draft permit.

7. The acid rain permit.

8. Any response to public comments submitted on the draft permit or denial of a draft permit and copies of any documents cited in the response and any other documents relied on by the department to issue or deny the acid rain permit, or, for any such documents that are readily available, a list of those documents and a statement of their location.

"Affected source" means a source that includes one or more affected units.

"Affected states" means all states (i) whose air quality may be affected by the permitted source and that are contiguous to Virginia or (ii) that are within 50 miles of the permitted source.

"Affected unit" means a unit that is subject to any acid rain emissions reduction requirement or acid rain emissions limitation. Affected units are specifically designated in 9VAC5-80-380.

"Allocate" or "allocation" means the initial crediting of an allowance by the administrator to an allowance tracking system unit account or general account.

"Allowable emissions" means the emission rates of an affected source calculated by using the maximum rated capacity of the emissions units within the source (unless the source is subject to state or federally enforceable limits which restrict the operating rate or hours of operation of both) and the most stringent of the following:

1. Applicable emission standards.

2. The emission limitation specified as a state or federally enforceable permit condition, including those with a future compliance date.

3. Any other applicable emission limitation, including those with a future compliance date.

"Allowance" means an authorization by the administrator under the acid rain program to emit up to one ton of sulfur dioxide during or after a specified calendar year.

"Allowance deduction" or "deduct" (when referring to allowances) means the permanent withdrawal of allowances by the administrator from an allowance tracking system compliance subaccount, or future year subaccount, to account for the number of the tons of sulfur dioxide emissions from an affected unit for the calendar year, for tonnage emissions estimates calculated for periods of missing data as provided in 40 CFR Part 75, or for any other allowance surrender obligations of the acid rain program.

"Allowances held" or "hold allowances" means the allowances recorded by the administrator, or submitted to the administrator for recordation in accordance with 40 CFR 73.50, in an allowance tracking system account.

"Allowance tracking system" means the acid rain program system by which the administrator allocates, records, deducts, and tracks allowances.

"Allowance tracking system account" means an account in the allowance tracking system established by the administrator for purposes of allocating, holding, transferring, and using allowances.

"Allowance transfer deadline" means midnight of January 30 or, if January 30 is not a business day, midnight of the first business day thereafter and is the deadline by which allowances may be submitted for recordation in an affected unit's compliance subaccount for the purposes of meeting the unit's acid rain emissions limitation requirements for sulfur dioxide for the previous calendar year.

"Applicable federal requirement" means all of the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved by the administrator through rulemaking at the time of permit issuance but have future effective compliance dates):

1. Any standard or other requirement provided for in the implementation plan, including any source-specific provisions such as consent agreements or orders.

2. Any term or condition of any preconstruction permit issued pursuant to the new source review program or of any operating permit issued pursuant to the state operating permit program, except for terms or conditions derived from applicable state requirements.

3. Any standard or other requirement prescribed under the Regulations for the Control and Abatement of Air Pollution, particularly the provisions of 9VAC5 Chapter 40 (9VAC5-40-10 et seq.), 9VAC5 Chapter 50 (9VAC5-50-10 et seq.), or 9VAC5 Chapter 60 (9VAC5-60-10 et seq.), adopted pursuant to requirements of the federal Clean Air Act or under § 111, 112 or 129 of the federal Clean Air Act.

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

5. Any standard or other requirement of the acid rain program under Title IV of the federal Clean Air Act or the acid rain program regulations.

6. Any compliance monitoring requirements established pursuant to either § 504(b) or § 114(a)(3) of the federal Clean Air Act or the Regulations for the Control and Abatement of Air Pollution.

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

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

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

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

"Applicable requirement" means any applicable federal requirement or any applicable state requirement included in a permit issued under this article as provided in 9VAC5-80-700.

"Applicable state requirement" means all of the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved through rulemaking at the time of permit issuance but have future effective compliance dates):

1. Any standard or other requirement prescribed by any regulation of the board that is not included in the definition of applicable federal requirement.

2. Any regulatory provision or definition directly associated with or related to any of the state requirements listed in this definition.

"Authorized account representative" means a responsible natural person who is authorized, in accordance with 40 CFR Part 73, to transfer and otherwise dispose of allowances held in an allowance tracking system general account; or, in the case of a unit account, the designated representative of the owners and operators of the affected unit.

"Basic Phase II allowance allocations" means:

1. For calendar years 2000 through 2009 inclusive, allocations of allowances made by the administrator pursuant to § 403 (sulfur dioxide allowance program for existing and new units) and §§ 405(b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4), and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1); (i); and (j) (Phase II sulfur dioxide requirements) of the federal Clean Air Act.

2. For each calendar year beginning in 2010, allocations of allowances made by the administrator pursuant to § 403 (sulfur dioxide allowance program for existing and new units) and §§ 405(b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4), and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1) and (3); (i); and (j) (Phase II sulfur dioxide requirements) of the federal Clean Air Act.

"Boiler" means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or any other medium.

"Certificate of representation" means the completed and signed submission required by 40 CFR 72.20, for certifying the appointment of a designated representative for an affected source or a group of identified affected sources authorized to represent the owners and operators of such source or sources and of the affected units at such source or sources with regard to matters under the acid rain program.

"Certifying official" means:

1. For a corporation, a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation;

2. For partnership or sole proprietorship, a general partner or the proprietor, respectively; and

3. For a local government entity or state, federal, or other public agency, either a principal executive officer or ranking elected official.

"Coal" means all solid fuels classified as anthracite, bituminous, subbituminous, or lignite by the American Society for Testing and Materials publication, "Standard Classification of Coals by Rank" (see 9VAC5-20-21).

"Coal-derived fuel" means any fuel, whether in a solid, liquid, or gaseous state, produced by the mechanical, thermal, or chemical processing of coal (e.g., pulverized coal, coal refuse, liquefied or gasified coal, washed coal, chemically cleaned coal, coal-oil mixtures, and coke).

"Coal-fired" means the combustion of fuel consisting of coal or any coal-derived fuel (except a coal-derived gaseous fuel with a sulfur content no greater than natural gas), alone or in combination with any other fuel, where:

1. For purposes of 40 CFR Part 75 (continuous emissions monitoring), a unit is "coal-fired" independent of the percentage of coal or coal-derived fuel consumed in any calendar year (expressed in mmBtu); and

2. For all other purposes under the acid rain program, except for purposes of applying 40 CFR Part 76, a unit is "coal-fired" if it uses coal or coal-derived fuel as its primary fuel (expressed in mmBtu); provided that, if the unit is listed in the NADB, the primary fuel is the fuel listed in the NADB under the data field "PRIMFUEL."

"Cogeneration unit" means a unit that has equipment used to produce electric energy and forms of useful thermal energy (such as heat or steam) for industrial, commercial, heating or cooling purposes, through the sequential use of energy.

"Commence commercial operation" means to have begun to generate electricity for sale, including the sale of test generation.

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

"Commence operation" means to have begun any mechanical, chemical, or electronic process, including start-up of an emissions control technology or emissions monitor or of a unit's combustion chamber.

"Common stack" means the exhaust of emissions from two or more units through a single flue.

"Complete application" means an application that contains all the information required pursuant to 9VAC5-80-430 and 9VAC5-80-440 sufficient to determine all applicable requirements and to evaluate the source and its application. Designating an application complete does not preclude the department from requesting or accepting additional information.

"Compliance certification" means a submission to the administrator or department, as appropriate, that is required by the acid rain program regulations to report an affected source or an affected unit's compliance or noncompliance with a provision of the acid rain program and that is signed and verified by the designated representative in accordance with Subparts B and I of 40 CFR Part 72, 9VAC5-80-470 and 9VAC5-80-490 P, and the acid rain program regulations.

"Compliance plan" means the document submitted for an affected source in accordance with 9VAC5-80-430 specifying the method or methods by which each emissions unit at the source will meet applicable requirements.

"Compliance subaccount" means the subaccount in an affected unit's allowance tracking system account, established pursuant to 40 CFR 73.31(a) or (b), in which are held, from the date that allowances for the current calendar year are recorded under 40 CFR 73.34(a) until December 31, allowances available for use by the unit in the current calendar year and, after December 31 until the date that deductions are made under 40 CFR 73.35(b), allowances available for use by the unit in the preceding calendar year, for the purpose of meeting the unit's acid rain emissions limitation for sulfur dioxide.

"Compliance use date" means the first calendar year for which an allowance may be used for purposes of meeting a unit's acid rain emissions limitation for sulfur dioxide.

"Construction" means fabrication, erection, or installation of a unit or any portion of a unit.

"Customer" means a purchaser of electricity not for the purpose of retransmission or resale. For generating rural electrical cooperatives, the customers of the distribution cooperatives served by the generating cooperative will be considered customers of the generating cooperative.

"Designated representative" means a responsible natural person authorized by the owners and operators of an affected source and of all affected units at the source or by the owners and operators of a combustion source or process source, as evidenced by a certificate of representation submitted in accordance with Subpart B of 40 CFR Part 72, to represent and legally bind each owner and operator, as a matter of federal law, in matters pertaining to the acid rain program. Whenever the term "responsible official" is used in this article, it shall be deemed to refer to the "designated representative" with regard to all matters under the acid rain program.

"Diesel fuel" means a low sulfur fuel oil of grades 1-D or 2-D, as defined in the American Society for Testing and Materials publication, "Standard Specification for Diesel Fuel Oils" (see 9VAC5-20-21), grades 1-GT or 2-GT, as defined by ASTM D2990-90a, "Standard Specification for Gas Turbine Fuel Oils," or grades 1 or 2, as defined by ASTM D396-90, "Standard Specifications for Fuel Oils" (incorporated by reference in 40 CFR 72.13).

"Direct public utility ownership" means direct ownership of equipment and facilities by one or more corporations, the principal business of which is sale of electricity to the public at retail. Percentage ownership of such equipment and facilities shall be measured on the basis of book value.

"Draft permit" or "draft acid rain permit" means the version of a permit, or the acid rain portion of a federal operating permit, for which the department offers public participation under 9VAC5-80-670 or affected state review under 9VAC5-80-690.

"Emissions" means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the administrator by the designated representative and as determined by the administrator, in accordance with the emissions monitoring requirements of 40 CFR Part 75.

"Emissions allowable under the permit" means a federally and state enforceable or state-only enforceable permit term or condition determined at issuance to be required by an applicable requirement that establishes an emissions limit (including a work practice standard) or a federally and state enforceable emissions cap that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject.

"Emissions unit" means any part or activity of an affected source that emits or has the potential to emit any regulated air pollutant. This term is not meant to alter or affect the definition of the term "unit" in this article or 40 CFR Part 72.

"EPA" means the United States Environmental Protection Agency.

"Excess emissions" means:

1. Any tonnage of sulfur dioxide emitted by an affected unit during a calendar year that exceeds the acid rain emissions limitation for sulfur dioxide for the unit; and

2. Any tonnage of nitrogen oxide emitted by an affected unit during a calendar year that exceeds the annual tonnage equivalent of the acid rain emissions limitation for nitrogen oxides applicable to the affected unit taking into account the unit's heat input for the year.

"Existing unit" means a unit (including a unit subject to § 111 of the federal Clean Air Act) that commenced commercial operation before November 15, 1990, and that on or after November 15, 1990, served a generator with a nameplate capacity of greater than 25 MWe. "Existing unit" does not include simple combustion turbines or any unit that on or after November 15, 1990, served only generators with a nameplate capacity of 25 MWe or less. Any "existing unit" that is modified, reconstructed, or repowered after November 15, 1990, shall continue to be an "existing unit."

"Facility" means any institutional, commercial, or industrial structure, installation, plant, source, or building.

"Federal operating permit" means a permit issued under this article, Article 1 (9VAC5-80-50 et seq.) of this part, 40 CFR Part 72, or any other regulation implementing Title V of the federal Clean Air Act.

"Federal Power Act" means 16 USC § 791a et seq.

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

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

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

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

4. Limitations and conditions that are part of an approved implementation plan.

5. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or a new source review program permit issued under regulations approved by the EPA into the implementation plan.

6. Limitations and conditions that are part of a state operating permit issued under regulations approved by the EPA into the implementation plan as meeting the EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

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

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

"Final permit" means the version of a permit issued by the department under this article that has completed all review procedures required by 9VAC5-80-670 and 9VAC5-80-690.

"Fossil fuel" means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

"Fossil fuel-fired" means the combustion of fossil fuel or any derivative of fossil fuel, alone or in combination with any other fuel, independent of the percentage of fossil fuel consumed in any calendar year (expressed in mmBtu).

"Fuel oil" means any petroleum-based fuel (including diesel fuel or petroleum derivatives such as oil tar) as defined in the American Society for Testing and Materials publication, "Standard Specification for Fuel Oils" (see 9VAC5-20-21), and any recycled or blended petroleum products or petroleum by-products used as a fuel whether in a liquid, solid or gaseous state; provided that for purposes of monitoring requirements, "fuel oil" shall be limited to the petroleum-based fuels for which applicable ASTM methods are specified in Appendices D, E, or F of 40 CFR Part 75.

"Fugitive emissions" are those emissions which cannot reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

"Gas-fired" means:

1. The combustion of:

a. Natural gas or other gaseous fuel (including coal-derived gaseous fuel), for at least 90% of the unit's average annual heat input during the previous three calendar years and for at least 85% of the annual heat input in each of those calendar years; and

b. Any fuel other than coal or coal-derived fuel (other than coal-derived gaseous fuel) for the remaining heat input, if any; provided that for purposes of 40 CFR Part 75, any fuel used other than natural gas shall be limited to:

(1) Gaseous fuels containing no more sulfur than natural gas; or

(2) Fuel oil.

2. For purposes of 40 CFR Part 75, a unit may initially qualify as gas-fired under the following circumstances:

a. If the designated representative provides fuel usage data for the unit for the three calendar years immediately prior to submission of the monitoring plan, and if the unit's fuel usage is projected to change on or before January 1, 1995, the designated representative submits a demonstration satisfactory to the administrator that the unit will qualify as gas-fired under the first sentence of this definition using the years 1995 through 1997 as the three-calendar-year period; or

b. If a unit does not have fuel usage data for one or more of the three calendar years immediately prior to submission of the monitoring plan, the designated representative submits:

(1) The unit's designated fuel usage;

(2) Any fuel usage data, beginning with the unit's first calendar year of commercial operation following 1992;

(3) The unit's projected fuel usage for any remaining future period needed to provide fuel usage data for three consecutive calendar years; and

(4) Demonstration satisfactory to the administrator that the unit will qualify as gas-fired under the first sentence of this definition using those three consecutive calendar years as the three-calendar-year period.

"General account" means an allowance tracking system account that is not a unit account.

"Generator" means a device that produces electricity and was or would have been required to be reported as a generating unit pursuant to the United States Department of Energy Form 860 (1990 edition).

"Generator output capacity" means the full-load continuous rating of a generator under specific conditions as designed by the manufacturer.

"Hazardous air pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by 40 CFR 63.60.

"Heat input" means the product (expressed in mmBtu/time) of the gross calorific value of the fuel (expressed in Btu/lb) and the fuel feed rate into the combustion device (expressed in mass of fuel/time) and does not include the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved in Subpart VV of 40 CFR Part 52 by the administrator under § 110 of the federal Clean Air Act, or promulgated under § 110(c) of the federal Clean Air Act, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the federal Clean Air Act and which implements the relevant requirements of the federal Clean Air Act.

"Independent power production facility" means a source that:

1. Is nonrecourse project-financed, as defined by the Secretary of Energy at 10 CFR Part 715;

2. Is used for the generation of electricity, 80% or more of which is sold at wholesale; and

3. Is a new unit required to hold allowances under Title IV of the federal Clean Air Act; but only if direct public utility ownership of the equipment comprising the facility does not exceed 50%.

"Insignificant activity" means any emissions unit listed in 9VAC5-80-720 A, any emissions unit that meets the emissions criteria described in 9VAC5-80-720 B, or any emissions unit that meets the size or production rate criteria in 9VAC5-80-720 C. An emissions unit is not an insignificant activity if it has any applicable requirements unless those requirements apply identically to all emissions units at the facility.

"Life-of-the-unit, firm power contractual arrangement" means a unit participation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and associated energy generated by any specified generating unit and pays its proportional amount of such unit's total costs, pursuant to a contract:

1. For the life of the unit;

2. For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or

3. For a period equal to or greater than 25 years or 70% of the economic useful life of the unit determined as of the time the unit was built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

"Malfunction" means any sudden and unavoidable failure of air pollution control equipment or process equipment or of a process to operate in a normal or usual manner that (i) arises from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, (ii) causes an exceedance of a technology-based emission limitation under the permit due to unavoidable increases in emissions attributable to the failure and (iii) requires immediate corrective action to restore normal operation. Failures that are caused entirely or in part by improperly designed equipment, poor maintenance, careless or improper operation, operator error, or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions.

"Nameplate capacity" means the maximum electrical generating output (expressed in MWe) that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings, as listed in the NADB under the data field "NAMECAP" if the generator is listed in the NADB or as measured in accordance with the United States Department of Energy standards if the generator is not listed in the NADB.

"National allowance data base" or "NADB" means the data base established by the administrator under § 402(4)(C) of the federal Clean Air Act.

"Natural gas" means a naturally occurring fluid mixture of hydrocarbons (e.g., methane, ethane, or propane) containing one grain or less hydrogen sulfide per 100 standard cubic feet, and 20 grains or less total sulfur per 100 standard cubic feet, produced in geological formations beneath the earth's surface, and maintaining a gaseous state at standard atmospheric temperature and pressure under ordinary conditions.

"New source review program" means a program for the preconstruction review and permitting of new stationary sources or expansions to existing ones in accordance with 9VAC5-80-10, or Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1700 et seq.) or Article 9 (9VAC5-80-2000 et seq.) of this part promulgated to implement the requirements of §§ 110(a)(2)(C), 165 (relating to permits in prevention of significant deterioration areas), 173 (relating to permits in nonattainment areas), and 112 (relating to permits for hazardous air pollutants) of the federal Clean Air Act.

"New unit" means a unit that commences commercial operation on or after November 15, 1990, including any such unit that serves a generator with a nameplate capacity of 25 MWe or less or that is a simple combustion turbine.

"Nonrecourse project-financed" means when being financed by any debt, such debt is secured by the assets financed and the revenues received by the facility being financed including, but not limited to, part or all of the revenues received under one or more agreements for the sale of the electric output from the facility, and which neither an electric utility with a retail service territory, nor a public utility as defined by § 201(e) of the Federal Power Act, as amended, 16 USC § 824(e), if any of its facilities are financed with general credit, is obligated to repay in whole or in part. A commitment to contribute equity or the contribution of equity to a facility by an electric utility shall not be considered an obligation of such utility to repay the debt of a facility. The existence of limited guarantees, commitments to pay for cost overruns, indemnity provisions, or other similar undertakings or assurances by the facility's owners or other project participants shall not disqualify a facility from being "nonrecourse project-financed" as long as, at the time of the financing for the facility, the borrower is obligated to make repayment of the term debt from revenues generated by the facility, rather than from other sources of funds. Projects that are 100% equity financed are also considered "nonrecourse project-financed" for purposes of § 416(a)(2)(B) of the federal Clean Air Act.

"Offset plan" means a plan pursuant to 40 CFR Part 77 for offsetting excess emissions of sulfur dioxide that have occurred at an affected unit in any calendar year.

"Oil-fired" means:

1. The combustion of fuel oil for more than 10% of the average annual heat input during the previous three calendar years or for more than 15% of the annual heat input in any one of those calendar years; and any solid, liquid, or gaseous fuel (including coal-derived gaseous fuel), other than coal or any other coal-derived fuel, for the remaining heat input, if any; provided that for purposes of 40 CFR Part 75, any fuel used other than fuel oil shall be limited to gaseous fuels containing no more sulfur than natural gas.

2. For purposes of 40 CFR Part 75, a unit that does not have fuel usage data for one or more of the three calendar years immediately prior to submission of the monitoring plan may initially qualify as oil-fired if the designated representative submits:

a. The unit design fuel usage;

b. The unit's designed fuel usage;

c. Any fuel usage data, beginning with the unit's first calendar year of commercial operation following 1992;

d. The unit's projected fuel usage for any remaining future period needed to provide fuel usage data for three consecutive calendar years; and

e. A demonstration satisfactory to the administrator that the unit will qualify as oil-fired under the first sentence of this definition using those three consecutive calendar years as the three-calendar-year period.

"Owner," with respect to affected units, combustion sources, or process sources, means any of the following persons:

1. Any holder of any portion of the legal or equitable title in an affected unit, a combustion source, or a process source;

2. Any holder of a leasehold interest in an affected unit, a combustion source, or a process source;

3. Any purchaser of power from an affected unit, a combustion source, or a process source under a life-of-the-unit, firm power contractual arrangement. However, unless expressly provided for in a leasehold agreement, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the affected unit; or

4. With respect to any allowance tracking system general account, any person identified in the submission required by 40 CFR 73.31(c) that is subject to the binding agreement for the authorized account representative to represent that person's ownership interest with respect to allowances.

"Owner or operator" means any person who is an owner or who operates, controls, or supervises an affected unit, affected source, combustion source, or process source, and shall include, but not be limited to, any holding company, utility system, or plant manager of an affected unit, affected source, combustion source, or process source.

"Permit" (unless the context suggests otherwise) means any permit or group of permits covering a source subject to this article that is issued, renewed, amended, or revised pursuant to this article.

"Permit modification" means a revision to a permit issued under this article that meets the requirements of 9VAC5-80-570 on minor permit modifications, 9VAC5-80-580 on group processing of minor permit modifications, or 9VAC5-80-590 on significant modifications.

"Permit revision" means any permit modification that meets the requirements of 9VAC5-80-570, 9VAC5-80-580, or 9VAC5-80-590 or any administrative permit amendment that meets the requirements of 9VAC5-80-560.

"Permit revision for affected units" means a permit modification, fast track modification, administrative permit amendment for affected units, or automatic permit amendment, as provided in 9VAC5-80-600 through 9VAC5-80-630.

"Phase II" means the acid rain program period beginning January 1, 2000, and continuing into the future thereafter.

"Potential electrical output capacity" means the MWe capacity rating for the units which shall be equal to 33% of the maximum design heat input capacity of the steam generating unit, as calculated according to Appendix D of 40 CFR Part 72.

"Potential to emit" means the maximum capacity of an affected source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is state and federally enforceable.

"Power distribution system" means the portion of an electricity grid owned or operated by a utility that is dedicated to delivering electric energy to customers.

"Power purchase commitment" means a commitment or obligation of a utility to purchase electric power from a facility pursuant to:

1. A power sales agreement;

2. A state regulatory authority order requiring a utility to (i) enter into a power sales agreement with the facility; (ii) purchase from the facility; or (iii) enter into arbitration concerning the facility for the purpose of establishing terms and conditions of the utility's purchase of power;

3. A letter of intent or similar instrument committing to purchase power (actual electrical output or generator output capacity) from the source at a previously offered or lower price and a power sales agreement applicable to the source executed within the time frame established by the terms of the letter of intent but no later than November 15, 1993, or, where the letter of intent does not specify a time frame, a power sales agreement applicable to the source executed on or before November 15, 1993; or

4. A utility competitive bid solicitation that has resulted in the selection of the qualifying facility or independent power production facility as the winning bidder.

"Power sales agreement" means a legally binding agreement between a qualifying facility, independent power production facility or firm associated with such facility and a regulated electric utility that establishes the terms and conditions for the sale of power from the facility to the utility.

"Primary fuel" or "primary fuel supply" means the main fuel type (expressed in mmBtu) consumed by an affected unit for the applicable calendar year.

"Proposed permit" means the version of a permit that the department proposes to issue and forwards to the administrator for review in compliance with 9VAC5-80-690.

"Qualifying facility" means a "qualifying small power production facility" within the meaning of § 3(17)(C) of the Federal Power Act or a "qualifying cogeneration facility" within the meaning of § 3(18)(B) of the Federal Power Act.

"Qualifying power purchase commitment" means a power purchase commitment in effect as of November 15, 1990, without regard to changes to that commitment so long as:

1. The identity of the electric output purchaser, or the identity of the steam purchaser and the location of the facility remain unchanged as of the date the facility commences commercial operation; and

2. The terms and conditions of the power purchase commitment are not changed in such a way as to allow the costs of compliance with the acid rain program to be shifted to the purchaser.

"Qualifying repowering technology" means:

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

2. Any oil- or gas-fired unit that has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Department of Energy.

"Receive" or "receipt of" means the date the administrator or the department comes into possession of information or correspondence (whether sent in writing or by authorized electronic transmission), as indicated in an official correspondence log, or by a notation made on the information or correspondence, by the administrator or the department in the regular course of business.

"Recordation," "record," or "recorded" means, with regard to allowances, the transfer of allowances by the administrator from one allowance tracking system account or subaccount to another.

"Regulated air pollutant" means any of the following:

1. Nitrogen oxides or any volatile organic compound.

2. Any pollutant for which an ambient air quality standard has been promulgated.

3. Any pollutant subject to any standard promulgated under § 111 of the federal Clean Air Act.

4. Any Class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act concerning stratospheric ozone protection.

5. Any pollutant subject to a standard promulgated under or other requirements established under § 112 of the federal Clean Air Act concerning hazardous air pollutants and any pollutant regulated under Subpart C of 40 CFR Part 68.

6. Any pollutant subject to an applicable state requirement included in a permit issued under this article as provided in 9VAC5-80-300.

"Renewal" means the process by which a permit is reissued at the end of its term.

"Responsible official" means one of the following:

1. For a business entity, such as a corporation, association or cooperative:

a. The president, secretary, treasurer, or vice-president of the business entity in charge of a principal business function, or any other person who performs similar policy- or decision-making functions for the business entity; or

b. A duly authorized representative of such business entity if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:

(1) The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or

(2) The authority to sign documents has been assigned or delegated to such representative in accordance with procedures of the business entity and the delegation of authority is approved in advance by the department;

2. For a partnership or sole proprietorship: a general partner or the proprietor, respectively;

3. For a municipality, state, federal, or other public agency: either a principal executive officer or ranking elected official. A principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional administrator of EPA); or

4. For affected sources:

a. The designated representative insofar as actions, standards, requirements, or prohibitions under Title IV of the federal Clean Air Act or the regulations promulgated thereunder are concerned; and

b. The designated representative or any other person specified in this definition for any other purposes under this article or 40 CFR Part 70.

"Schedule of compliance" means an enforceable sequence of actions, measures, or operations designed to achieve or maintain compliance, or correct noncompliance, with an applicable requirement of the acid rain program, including any applicable acid rain permit requirement.

"Secretary of Energy" means the Secretary of the United States Department of Energy or the secretary's duly authorized representative.

"Simple combustion turbine" means a unit that is a rotary engine driven by a gas under pressure that is created by the combustion of any fuel. This term includes combined cycle units without auxiliary firing. This term excludes combined cycle units with auxiliary firing, unless the unit did not use the auxiliary firing from 1985 through 1987 and does not use auxiliary firing at any time after November 15, 1990.

"Solid waste incinerator" means a source as defined in § 129(g)(1) of the federal Clean Air Act.

"Source" means any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any regulated air pollutant under the federal Clean Air Act. For purposes of § 502(c) of the federal Clean Air Act, a source, including a source with multiple units, shall be considered a single facility.

"Stack" means a structure that includes one or more flues and the housing for the flues.

"State enforceable" means all limitations and conditions which are enforceable by the department, including those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order or variance, and any permit requirements established pursuant to this chapter.

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

"Submit" or "serve" means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

1. In person;

2. By United States Postal Service; or

3. By other equivalent means of dispatch or transmission and delivery. Compliance with any "submission," "service," or "mailing" deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

"Title I modification" means any modification under Parts C and D of Title I or §§ 111(a)(4), 112(a)(5), or § 112(g) of the federal Clean Air Act; under regulations promulgated by the U.S. Environmental Protection Agency thereunder or in 40 CFR 61.07; or under regulations approved by the U.S. Environmental Protection Agency to meet such requirements.

"Ton" or "tonnage" means any "short ton" (i.e., 2,000 pounds). For the purpose of determining compliance with the acid rain emissions limitations and reduction requirements, total tons for a year shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with 40 CFR Part 75, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed not to equal any ton.

"Total planned net output capacity" means the planned generator output capacity, excluding that portion of the electrical power which is designed to be used at the power production facility, as specified under one or more qualifying power purchase commitments or contemporaneous documents as of November 15, 1990.

"Total installed net output capacity" shall be the generator output capacity, excluding that portion of the electrical power actually used at the power production facility, as installed.

"Unit" means a fossil fuel-fired combustion device.

"Unit account" means an allowance tracking system account, established by the administrator for an affected unit pursuant to 40 CFR 73.31 (a) or (b).

"Utility" means any person that sells electricity.

"Utility competitive bid solicitation" means a public request from a regulated utility for offers to the utility for meeting future generating needs. A qualifying facility, independent power production facility, or new independent power production facility may be regarded as having been "selected" in such solicitation if the utility has named the facility as a project with which the utility intends to negotiate a power sales agreement.

"Utility regulatory authority" means an authority, board, commission, or other entity (limited to the local, state, or federal level, whenever so specified) responsible for overseeing the business operations of utilities located within its jurisdiction, including, but not limited to, utility rates and charges to customers.

"Utility unit" means a unit owned or operated by a utility:

1. That serves a generator in any state that produces electricity for sale; or

2. That during 1985, served a generator in any state that produced electricity for sale.

Notwithstanding subdivisions 1 and 2 of this definition, a unit that was in operation during 1985, but did not serve a generator that produced electricity for sale during 1985, and did not commence commercial operation on or after November 15, 1990, is not a utility unit for purposes of the acid rain program.

Notwithstanding subdivisions 1 and 2 of this definition, a unit that cogenerates steam and electricity is not a utility unit for purposes of the acid rain program, unless the unit is constructed for the purpose of supplying, or commences construction after November 15, 1990, and supplies, more than one-third of its potential electrical output capacity and more than 25 MWe output to any power distribution system for sale.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 14, Issue 2, eff. January 1, 1998; Volume 17, Issue 4, eff. January 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-380 Affected units

A. Each of the following units shall be an affected unit, and any source that includes such a unit shall be an affected source, subject to the requirements of the acid rain program:

1. A unit listed in Table 1 of 40 CFR 73.10(a).

2. A unit that is listed in Table 2 or 3 of 40 CFR 73.10 and any other existing utility unit, except a unit under subsection B of this section.

3. A utility unit, except a unit under subsection B of this section, that:

a. Is a new unit;

b. Did not serve a generator with a nameplate capacity greater than 25 MWe on November 15, 1990, but serves such a generator after November 15, 1990;

c. Was a simple combustion turbine on November 15, 1990, but adds or uses auxiliary firing after November 15, 1990;

d. Was an exempt cogeneration facility under subdivision B 4 of this section but during any three calendar-year period after November 15, 1990, sold, to a utility power distribution system, an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs electric output, on a gross basis;

e Was an exempt qualifying facility under subdivision B 5 of this section but, at any time after the later of November 15, 1990, or the date the facility commences commercial operation, fails to meet the definition of qualifying facility;

f. Was an exempt independent power production facility under subdivision B 6 of this section but, at any time after the later of November 15, 1990, or the date the facility commences commercial operation, fails to meet the definition of independent power production facility; or

g. Was an exempt solid waste incinerator under subdivision B 7 of this section but during any three calendar-year period after November 15, 1990, consumes 20% or more (on a Btu basis) fossil fuel.

B. The following types of units are not affected units subject to the requirements of the acid rain program:

1. A simple combustion turbine that commenced operation before November 15, 1990.

2. Any unit that commenced commercial operation before November 15, 1990 and that did not, as of November 15, 1990, and does not currently, serve a generator with a nameplate capacity of greater than 25 MWe.

3. Any unit that during 1985 did not serve a generator which produced electricity for sale during 1985 or as of November 15, 1990, and does not currently serve a generator that produces electricity for sale.

4. A cogeneration facility which:

a. For a unit that commenced construction on or prior to November 15, 1990, was constructed for the purpose of supplying equal to or less than one-third its potential electrical output capacity or equal to or less than 219,000 MWe-hrs actual electric output on an annual basis to any utility power distribution system for sale (on a gross basis). If the purpose of construction is not known, it shall be presumed to be consistent with the actual operation from 1985 through 1987. However, if in any three-calendar-year period after November 15, 1990, such unit sells to a utility power distribution system an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs actual electric output (on a gross basis), that unit shall be an affected unit, subject to the requirements of the acid rain program; or

b. For units that commenced construction after November 15, 1990, supplies equal to or less than one-third its potential electrical output capacity or equal to or less than 219,000 MWe-hrs actual electric output on an annual basis to any utility power distribution system for sale (on a gross basis). However, if in any three-calendar-year period after November 15, 1990, such unit sells to a utility power distribution system an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs actual electric output (on a gross basis), that unit shall be an affected unit, subject to the requirements of the acid rain program.

5. A qualifying facility that:

a. Has, as of November 15, 1990, one or more qualifying power purchase commitments to sell at least 15% of its total planned net output capacity; and

b. Consists of one or more units designated by the owner or operator with total installed net output capacity not exceeding 130% of the total planned net output capacity. If the emissions rates of the units are not the same, the administrator may exercise discretion to designate which units are exempt.

6. An independent power production facility that:

a. Has, as of November 15, 1990, one or more qualifying power purchase commitments to sell at least 15% of its total planned net output capacity; and

b. Consists of one or more units designated by the owner or operator with total installed net output capacity not exceeding 130% of its total planned net output capacity. If the emissions rates of the units are not the same, the administrator may exercise discretion to designate which units are exempt.

7. A solid waste incinerator, if more than 80% (on a Btu basis) of the annual fuel consumed at such incinerator is other than fossil fuels. For a solid waste incinerator which began operation before January 1, 1985, the average annual fuel consumption of nonfossil fuels for calendar years 1985 through 1987 must be greater than 80% for such an incinerator to be exempt. For a solid waste incinerator which began operation after January 1, 1985, the average annual fuel consumption of nonfossil fuels for the first three years of operation must be greater than 80% for such an incinerator to be exempt. If, during any three-calendar-year period after November 15, 1990, such incinerator consumes 20% or more (on a Btu basis) fossil fuel, such incinerator shall be an affected source under the acid rain program.

8. A nonutility unit.

9. A unit for which an exemption under 40 CFR 72.7, 72.8, or 72.14 is in effect. Although such a unit is not an affected unit, the unit shall be subject to the requirements of 40 CFR 72.7, 72.8, or 72.14, as applicable to the exemption.

C. A certifying official of an owner or operator of any unit may petition the administrator for a determination of applicability under 40 CFR 72.6(c).

1. The petition shall be in writing and shall include identification of the unit and relevant facts about the unit. In the petition, the certifying official shall certify, by his signature, the statements set forth at 40 CFR 72.21(b)(2). Within 10 business days of receipt of any written determination by the administrator covering the unit, the certifying official shall provide each owner or operator of the unit, facility, or source with a copy of the petition and a copy of the administrator's response.

2. The petition may be submitted to the administrator at any time but, if possible, should be submitted prior to the issuance (including renewal) of a Phase II acid rain permit for the unit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001.

9VAC5-80-390 New units exemption

A. This section applies to any new utility unit that serves one or more generators with total nameplate capacity of 25 MWe or less and burns only fuels with a sulfur content of 0.05% or less by weight, as determined in accordance with subdivision D 1 of this section.

B. The designated representative, authorized in accordance with Subpart B of 40 CFR Part 72, of a source that includes a unit under subsection A of this section may petition the department for a written exemption, or to renew a written exemption, for the unit from the requirements of the acid rain program as described in subdivision C 1 of this section. The petition shall be submitted on a form approved by the department that includes the following elements:

1. Identification of the unit.

2. The nameplate capacity of each generator served by the unit.

3. A list of all fuels currently burned by the unit and their percentage sulfur content by weight, determined in accordance with subsection A of this section.

4. A list of all fuels that are expected to be burned by the unit and their sulfur content by weight.

5. The special provisions in subsection D of this section.

C. The department shall issue, for any unit meeting the requirements of subsections A and B of this section, a written exemption from the requirements of the acid rain program except for the requirements specified in this section, 40 CFR 72.2 through 72.7, and 40 CFR 72.10 through 72.13 (general provisions); provided that no unit shall be exempted unless the designated representative of the unit surrenders, and the administrator deducts from the unit's allowances tracking system account, allowances pursuant to 40 CFR 72.7(c)(1)(i) and (d)(1) (new units exemption).

1. The exemption shall take effect on January 1 of the year immediately following the date on which the written exemption is issued as a final agency action subject to judicial review, in accordance with subdivision 2 of this subsection, provided that the owners and operators, and, to the extent applicable, the designated representative, shall comply with the requirements of the acid rain program concerning all years for which the unit was not exempted, even if such requirements arise, or must be complied with, after the exemption takes effect. The exemption shall not be a defense against any violation of such requirements of the acid rain program whether the violation occurs before or after the exemption takes effect.

2. In considering and issuing or denying a written exemption under this subsection, the department shall apply the permitting procedures in 9VAC5-80-510 C by:

a. Treating the petition as an acid rain permit application under such provisions;

b. Issuing or denying a draft written exemption that is treated as the issuance or denial of a draft permit under such provisions; and

c. Issuing or denying a proposed written exemption that is treated as the issuance or denial of a proposed permit under such provisions, provided that no provision under 9VAC5-80-510 C concerning the content, effective date, or term of an acid rain permit shall apply to the written exemption or proposed written exemption under this section.

3. A written exemption issued under this section shall have a term of five years from its effective date, except as provided in subdivision D 3 of this section.

D. The following provisions apply to units exempted under this section:

1. The owners and operators of each unit exempted under this section shall determine the sulfur content by weight of its fuel as follows:

a. For petroleum or petroleum products that the unit burns starting on the first day on which the exemption takes effect until the exemption terminates, a sample of each delivery of such fuel shall be tested using methods found in the following American Society for Testing and Materials (ASTM) publications: "Standard Practice for Manual Sampling of Petroleum and Petroleum Products" and "Standard Test Method for Sulfur in Petroleum Products (General Bomb Method)," "Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-Ray Spectrometry" or "Standard Test Method for Sulfur in Petroleum Products by Energy-Dispersive X-Ray Fluorescence Spectroscopy" (see 9VAC5-20-21).

b. For natural gas that the unit burns starting on the first day on which the exemption takes effect until the exemption terminates, the sulfur content shall be assumed to be 0.05% or less by weight.

c. For gaseous fuel (other than natural gas) that the unit burns starting on the first day on which the exemption takes effect until the exemption terminates, a sample of each delivery of such fuel shall be tested using methods found in the following ASTM publications: "Standard Test Method for Total Sulfur in Fuel Gases" and "Standard Practice for Sampling Liquefied Petroleum (LP) Gases (Manual Method)" (see 9VAC5-20-21); provided that if the gaseous fuel is delivered by pipeline to the unit, a sample of the fuel shall be tested, at least once every quarter in which the unit operates during any year for which the exemption is in effect, using the method found in ASTM publication, "Standard Test Method for Total Sulfur in Fuel Gases" (see 9VAC5-20-21).

2. The owners and operators of each unit exempted under this section shall retain at the source that includes the unit, the records of the results of the tests performed under subdivisions 1 a and 1 c of this subsection and a copy of the purchase agreements for the fuel under subdivision 1 of this subsection, stating the sulfur content of such fuel. Such records and documents shall be retained for five years from the date they are created.

3. On the earlier of the date the written exemption expires, the date a unit exempted under this section burns any fuel with a sulfur content in excess of 0.05% by weight (as determined in accordance with subdivision 1 of this subsection), or 24 months prior to the date the unit first serves one or more generators with total nameplate capacity in excess of 25 MWe, the unit shall no longer be exempted under this section and shall be subject to all requirements of the acid rain program, except that:

a. Notwithstanding 9VAC5-80-430 C, the designated representative of the source that includes the unit shall submit a complete acid rain permit application on the later of January 1, 1998, or the date the unit is no longer exempted under this section.

b. For purposes of applying monitoring requirements under 40 CFR Part 75, the unit shall be treated as a new unit that commenced commercial operation on the date the unit no longer meets the requirements of subsection A of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 18, Issue 7, eff. February 1, 2002; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-400 Retired units exemption

A. This section applies to any affected unit (except for an opt-in source) that is permanently retired.

B. The following provisions apply:

1. Any affected unit (except for an opt-in source) that is permanently retired shall be exempt from the acid rain program, except for the provisions of this section, 40 CFR 72.2 through 72.6, 72.10 through 72.13, and Subpart B of 40 CFR Part 73.

2. The exemption under subdivision 1 of this subsection shall become effective on January 1 of the first full calendar year during which the unit is permanently retired. By December 31 of the first year that the unit is to be exempt under this section, the designated representative (authorized in accordance with this subsection), or, if no designated representative has been authorized, a certifying official of each owner of the unit shall submit a statement to the department otherwise responsible for administering a Phase II acid rain permit for the unit. A copy of the statement shall also be submitted to the administrator. The statement shall state (in a format prescribed by the administrator) that the unit is permanently retired and will comply with the requirements of paragraph (d) of 40 CFR 72.8.

3. After receipt of the notice under subdivision 2 of this subsection, the department shall amend the federal operating permit covering the source at which the unit is located, if the source has such a permit, to add the provisions and requirements of the exemption under subdivision 1 of this subsection and subsection D of this section.

C. A unit that was issued a written exemption under this section and that is permanently retired shall be exempt from the acid rain program, except for the provisions of this section, 40 CFR 72.2 through 72.6, 72.10 through 72.13, and Subpart B of 40 CFR Part 73, and shall be subject to the requirements of subsection D of this section in lieu of the requirements set forth in the written exemption. The department shall amend the federal operating permit covering the source at which the unit is located, if the source has such a permit, to add the provisions and requirements of the exemption under this subsection and under subsection D of this section.

D. The following special provisions apply:

1. A unit exempt under this section shall not emit any sulfur dioxide and nitrogen oxides starting on the date that the exemption takes effect. The owners and operators of the unit will be allocated allowances in accordance with Subpart B of 40 CFR Part 73. If the unit is a Phase I unit, for each calendar year in Phase I, the designated representative of the unit shall submit a Phase I permit application in accordance with Subparts C and D of 40 CFR Part 72 and an annual certification report in accordance with 40 CFR 72.90 through 72.92 and is subject to 40 CFR 72.95 and 72.96.

2. A unit exempt under this section shall not resume operation unless the designated representative of the source that includes the unit submits a complete acid rain permit application under 40 CFR 72.31 for the unit not less than 24 months prior to the later of January 1, 2000, or the date on which the unit is first to resume operation.

3. The owners and operators and, to the extent applicable, the designated representative of a unit exempt under this section shall comply with the requirements of the acid rain program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.

4. For any period for which a unit is exempt under this section, the unit is not an affected unit under the acid rain program and 40 CFR Parts 70 and 71 and is not eligible to be an opt-in source under 40 CFR Part 74. As an unaffected unit, the unit shall continue to be subject to any other applicable requirements under 40 CFR Parts 70 and 71.

5. For a period of five years from the date the records are created, the owners and operators of a unit exempt under this section shall retain at the source that includes the unit records demonstrating that the unit is permanently retired. The five-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the administrator or the permitting authority. The owners and operators bear the burden of proof that the unit is permanently retired.

6. The following provisions apply to the loss of exemption:

a. On the earlier of the following dates, a unit exempt under subsection B or C of this section shall lose its exemption and become an affected unit under the acid rain program and 40 CFR Parts 70 and 71:

(1) The date on which the designated representative submits an acid rain permit application under subdivision D 2 of this section; or

(2) The date on which the designated representative is required under subdivision D 2 of this section to submit an acid rain permit application.

b. For the purpose of applying monitoring requirements under 40 CFR Part 75, a unit that loses its exemption under this section shall be treated as a new unit that commenced commercial operation on the first date on which the unit resumes operation.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-410 General

A. No permit may be issued pursuant to this article until the article has been approved by the administrator, whether full, interim, partial, for federal delegation purposes, or otherwise.

B. If requested in the application for a permit or permit renewal submitted pursuant to this article, the department may combine the requirements of and the permit for a source subject to the state operating permit program with the requirements of and the permit for a source subject to this article provided the application contains the necessary information required for a permit under the state operating permit program.

C. For the purpose of this article, the phrase "the Regulations for the Control and Abatement of Air Pollution" means 9VAC5 Chapter 10 (9VAC5-10-10 et seq.) through 9VAC5 Chapter 80 (9VAC5-80-10 et seq.). For purposes of implementing and enforcing those provisions of this article associated with applicable federal requirements as well as those provisions of this article intended to implement Title V of the federal Clean Air Act, the phrase " the Regulations for the Control and Abatement of Air Pollution" means only those provisions that have been approved by EPA as part of the implementation plan or otherwise have been approved by or found to be acceptable by EPA for the purpose of implementing requirements of the federal Clean Air Act. For the purpose of this article, terms and conditions relating to applicable federal requirements shall be derived only from provisions that qualify as applicable federal requirements.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-420 Standard requirements

A. The following requirements apply to affected sources and affected units subject to this article:

1. The designated representative of each affected source and each affected unit at the source shall:

a. Submit a complete acid rain permit application (including a compliance plan) under this article in accordance with the deadlines specified in 9VAC5-80-430 C; and

b. Submit in a timely manner a complete reduced utilization plan if required under 40 CFR 72.43; and

c. Submit in a timely manner any supplemental information that the department determines is necessary in order to review an acid rain permit application and issue or deny an acid rain permit.

2. The owners and operators of each affected source and each affected unit at the source shall:

a. Operate the unit in compliance with a complete acid rain permit application or a superseding acid rain permit issued by the department; and

b. Have an acid rain permit.

B. The following monitoring requirements apply to affected sources and affected units subject to this article:

1. The owners and operators and, to the extent applicable, designated representative of each affected source and each affected unit at the source shall comply with the monitoring requirements as provided in 40 CFR Part 75 and § 407 of the federal Clean Air Act.

2. The emissions measurements recorded and reported in accordance with 40 CFR Part 75 and § 407 of the federal Clean Air Act shall be used to determine compliance by the unit with the acid rain emissions limitations and emissions reduction requirements for sulfur dioxide and nitrogen oxides under the acid rain program.

3. The requirements of 40 CFR Parts 75 and 76 shall not affect the responsibility of the owners and operators to monitor emissions of other pollutants or other emissions characteristics at the unit under other applicable requirements of the federal Clean Air Act and other provisions of the federal operating permit for the source.

C. The following requirements regarding sulfur dioxide limitations and allowances apply to affected sources and affected units subject to this article:

1. The owners and operators of each source and each affected unit at the source shall:

a. Hold allowances, as of the allowance transfer deadline, in the unit's compliance subaccount after deductions under 40 CFR 73.34(c) not less than the total annual emissions of sulfur dioxide for the previous calendar year from the unit; and

b. Comply with the applicable acid rain emissions limitation for sulfur dioxide.

2. Each ton of sulfur dioxide emitted in excess of the acid rain emissions limitations for sulfur dioxide shall constitute a separate violation of the federal Clean Air Act.

3. An affected unit shall be subject to the requirements under subdivision 1 of this subsection as follows:

a. Starting January 1, 1995, an affected unit under 9VAC5-80-380 A 2; or

b. Starting on or after January 1, 1995, in accordance with 40 CFR 72.41 and 72.43, an affected unit under 40 CFR 72.6(a)(2) or (3) that is a substitution or compensating unit; or

c. Starting January 1, 2000, an affected unit under 40 CFR 72.6(a)(2) that is not a substitution or compensating unit; or

d. Starting on the later of January 1, 2000, or the deadline for monitor certification under 40 CFR Part 75, an affected unit under 9VAC5-80-380 A 3 that is not a substitution or compensating unit.

4. Allowances shall be held in, deducted from, or transferred among allowance tracking system accounts in accordance with the acid rain program.

5. An allowance shall not be deducted, in order to comply with the requirements under subdivision 1 a of this subsection, prior to the calendar year for which the allowance was allocated.

6. An allowance allocated by the administrator under the acid rain program is a limited authorization to emit sulfur dioxide in accordance with the acid rain program. No provision of the acid rain program, the acid rain permit application, the acid rain permit, or the written exemption under 9VAC5-80-390 and 9VAC5-80-400 and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization.

7. An allowance allocated by the administrator under the acid rain program does not constitute a property right.

D. The owners and operators of the source and each affected unit at the source shall comply with the acid rain applicable emissions limitation for nitrogen oxides.

E. The following excess emissions requirements apply to affected sources and affected units subject to this article:

1. The designated representative of an affected unit that has excess emissions in any calendar year shall submit a proposed offset plan to the administrator, as required under 40 CFR Part 77, and to the department.

2. The owners and operators of an affected unit that has excess emissions in any calendar year shall:

a. Pay to the administrator without demand the penalty required, and pay to the administrator upon demand the interest on that penalty, as required by 40 CFR Part 77; and

b. Comply with the terms of an approved offset plan as required by 40 CFR Part 77.

F. The following recordkeeping and reporting requirements apply to affected sources and affected units subject to this article:

1. Unless otherwise provided, the owners and operators of the source and each affected unit at the source shall keep on site at the source each of the following documents for a period of five years from the date the document is created. This period may be extended for cause, at any time prior to the end of five years, in writing by the administrator or department.

a. The certificate of representation for the designated representative for the source and each affected unit at the source and all documents that demonstrate the truth of the statements in the certificate of representation in accordance with 40 CFR 72.24, provided that the certificate and documents shall be retained on site at the source beyond such five-year period until such documents are superseded because of the submission of a new certificate of representation changing the designated representative.

b. All emissions monitoring information in accordance with 40 CFR Part 75, provided that to the extent that 40 CFR Part 75 provides for a three-year period for recordkeeping, the three-year period shall apply.

c. Copies of all reports, compliance certifications, and other submissions and all records made or required under the acid rain program.

d. Copies of all documents used to complete an acid rain permit application and any other submission under the acid rain program or to demonstrate compliance with the requirements of the acid rain program.

2. The designated representative of an affected source and each affected unit at the source shall submit the reports and compliance certifications required under the acid rain program, including those under 9VAC5-80-470 and 9VAC5-80-490 P and 40 CFR Part 75.

G. The following requirements concerning liability apply to affected sources and affected units subject to this article:

1. Any person who knowingly violates any requirement or prohibition of the acid rain program, a complete acid rain permit application, an acid rain permit, or a written exemption under 9VAC5-80-390 or 9VAC5-80-400, including any requirement for the payment of any penalty owed to the United States, shall be subject to enforcement by the administrator pursuant to § 113(c) of the federal Clean Air Act and by the department pursuant to §§ 10.1-1316 and 10.1-1320 of the Code of Virginia.

2. Any person who knowingly makes a false, material statement in any record, submission, or report under the acid rain program shall be subject to criminal enforcement by the administrator pursuant to § 113(c) of the federal Clean Air Act and 18 USC § 1001 and by the department pursuant to §§ 10.1-1316 and 10.1-1320 of the Code of Virginia.

3. No permit revision shall excuse any violation of the requirements of the acid rain program that occurs prior to the date that the revision takes effect.

4. Each affected source and each affected unit shall meet the requirements of the acid rain program.

5. Any provision of the acid rain program that applies to an affected source including a provision applicable to the designated representative of an affected source shall also apply to the owners and operators of such source and of the affected units at the source.

6. Any provision of the acid rain program that applies to an affected unit including a provision applicable to the designated representative of an affected unit shall also apply to the owners and operators of such unit. Except as provided under 9VAC5-80-460 Phase II repowering extension plans, 40 CFR 72.41 (substitution plans), 72.43 (reduced utilization plans), 72.44 (Phase II repowering extensions), 74.47 (thermal energy plans), and 40 CFR Part 76 (NO_X averaging plans), and except with regard to the requirements applicable to units with a common stack under 40 CFR Part 75 including 40 CFR 75.16, 75.17, and 75.18, the owners and operators and the designated representative of one affected unit shall not be liable for any violation by any other affected unit of which they are not owners or operators or the designated representative and that is located at a source of which they are not owners or operators or the designated representative.

7. Each violation of a provision of the acid rain program regulations by an affected source or affected unit, or by an owner or operator or designated representative of such source or unit, shall be a separate violation of the federal Clean Air Act.

H. No provision of the acid rain program, an acid rain permit application, an acid rain permit, or a written exemption under 9VAC5-80-390 or 9VAC5-80-400 shall be construed as:

1. Except as expressly provided in Title IV of the federal Clean Air Act, exempting or excluding the owners and operators and, to the extent applicable, the designated representative of an affected source or affected unit from compliance with any other provision of the federal Clean Air Act, including the provisions of Title I of the federal Clean Air Act relating to applicable National Ambient Air Quality Standards or the implementation plan;

2. Limiting the number of allowances a unit can hold, provided that the number of allowances held by the unit shall not affect the source's obligation to comply with any other provisions of the federal Clean Air Act;

3. Requiring a change of any kind in any state law regulating electric utility rates and charges, affecting any state law regarding such state regulation, or limiting such state regulation, including any prudence review requirements under such state law;

4. Modifying the Federal Power Act or affecting the authority of the Federal Energy Regulatory Commission under the Federal Power Act; or

5. Interfering with or impairing any program for competitive bidding for power supply in a state in which such program is established.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-430 Applications

A. A single application is required identifying each emission unit subject to this article. The application shall be submitted according to the requirements of this section, 9VAC5-80-440 and procedures approved by the department. Where several emissions units are included in one affected source, a single application covering all units in the source shall be submitted. A separate application is required for each affected source subject to this article.

B. For each source subject to this article, the responsible official shall submit a timely and complete permit application in accordance with subsections C and D of this section.

C. The following requirements concerning timely applications apply to affected sources and affected units subject to this article:

1. No owner or operator of any affected source shall operate the source or affected unit without a permit that states its acid rain program requirements.

2. The designated representative of any affected source shall submit a complete acid rain permit application by the following applicable deadlines:

a. For any affected source with an existing unit described under 9VAC5-80-380 A 2, the designated representative shall submit a complete acid rain permit application governing such unit to the department as follows:

(1) For sulfur dioxide, on or before January 1, 1996; and

(2) For nitrogen oxides, on or before January 1, 1998.

b. For any affected source with a new unit described under 9VAC5-80-380 A 3 a, the designated representative shall submit a complete acid rain permit application governing such unit to the department at least 24 months before the later of January 1, 2000, or the date on which the unit commences operation.

c. For any affected source with a unit described under 9VAC5-80-380 A 3 b, the designated representative shall submit a complete acid rain permit application governing such unit to the department at least 24 months before the later of January 1, 2000, or the date on which the unit begins to serve a generator with a nameplate capacity greater than 25 MWe.

d. For any affected source with a unit described under 9VAC5-80-380 A 3 c, the designated representative shall submit a complete acid rain permit application governing such unit to the department at least 24 months before the later of January 1, 2000, or the date on which the auxiliary firing commences operation.

e. For any affected source with a unit described under 9VAC5-80-380 A 3 d, the designated representative shall submit a complete acid rain permit application governing such unit to the department before the later of January 1, 1998, or March 1 of the year following the three-calendar-year period in which the unit sold to a utility power distribution system an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs actual electric output (on a gross basis).

f. For any affected source with a unit described under 9VAC5-80-380 A 3 e, the designated representative shall submit a complete acid rain permit application governing such unit to the department before the later of January 1, 1998, or March 1 of the year following the calendar year in which the facility fails to meet the definition of qualifying facility.

g. For any affected source with a unit described under 9VAC5-80-380 A 3 f, the designated representative shall submit a complete acid rain permit application governing such unit to the department before the later of January 1, 1998, or March 1 of the year following the calendar year in which the facility fails to meet the definition of an independent power production facility.

h. For any affected source with a unit described under 9VAC5-80-380 A 3 g, the designated representative shall submit a complete acid rain permit application governing such unit to the department before the later of January 1, 1998, or March 1 of the year following the three-calendar-year period in which the incinerator consumed 20% or more fossil fuel (on a Btu basis).

3. The responsible official for an affected source applying for a permit under this article for the first time shall submit a complete application pertaining to all applicable requirements other than the acid rain program requirements on a schedule to be determined by the department but no later than 12 months following the effective date of approval of Article 1 (9VAC5-80-50 et seq.) of this part by the administrator, to include approval for federal delegation purposes.

4. The owner of a source subject to the requirements of the new source review program shall file a complete application to obtain the permit or permit revision within 12 months after commencing operation. Where an existing permit issued under this article would prohibit such construction or change in operation, the owner shall obtain a permit revision before commencing operation. The owner of a source may file a complete application to obtain the permit or permit revision under this article on the same date the permit application is submitted under the requirements of the new source review program.

5. For purposes of permit renewal, the owner shall submit an application at least six months but no earlier than 18 months prior to the date of permit expiration.

D. The following requirements concerning the completeness of the permit application apply to affected sources and affected units subject to this article:

1. To be determined complete, an application shall contain all information required pursuant to 9VAC5-80-440.

2. Applications for permit revision or for permit reopening shall supply information required under 9VAC5-80-440 only if the information is related to the proposed change.

3. Within 60 days of receipt of the application, the department shall notify the applicant in writing either that the application is or is not complete. If the application is determined not to be complete, the department shall provide (i) a list of the deficiencies in the notice and (ii) a determination as to whether the application contains sufficient information to begin a review of the application.

4. If the department does not notify the applicant in writing within 60 days of receipt of the application, the application shall be deemed to be complete.

5. For minor permit modifications under 9VAC5-80-570, a completeness determination shall not be required.

6. If, while processing an application that has been determined to be complete, the department finds that additional information is necessary to evaluate or take final action on that application, it may request such information in writing and set a reasonable deadline for a response.

7. The submittal of a complete application shall not affect the requirement that any source have a preconstruction permit under the new source review program.

8. Upon notification by the department that the application is complete or after 60 days following receipt of the application by the department, the applicant shall submit three additional copies of the complete application to the department.

9. The department shall submit a written notice of application completeness to the administrator within 10 working days following a determination by the department that the acid rain permit application is complete.

E. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in a permit application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information. An applicant shall provide additional information as necessary to address any requirements that become applicable to the source after the date a complete application was filed but prior to release of a draft permit.

F. The following requirements concerning the application shield apply to affected sources and affected units subject to this article:

1. If an applicant submits a timely and complete application for an initial permit or renewal under this section, the failure of the source to have a permit or the operation of the source without a permit shall not be a violation of this article until the department takes final action on the application under 9VAC5-80-510.

2. No source shall operate after the time that it is required to submit a timely and complete application under subsections C and D of this section for a renewal permit, except in compliance with a permit issued under this article.

3. If the source applies for a minor permit modification and wants to make the change proposed under the provisions of either 9VAC5-80-570 F or 9VAC5-80-580 E, the failure of the source to have a permit modification or the operation of the source without a permit modification shall not be a violation of this article until the department takes final action on the application under 9VAC5-80-510.

4. If the source notifies the department that it wants to make an operational flexibility permit change under 9VAC5-80-680 B, the failure of the source to have a permit modification or operation of the source without a permit modification for the permit change shall not be a violation of this article unless the department notifies the source that the change is not a permit change as specified in 9VAC5-80-680 B 1 a.

5. If an applicant submits a timely and complete application under this section for a permit renewal but the department fails to issue or deny the renewal permit before the end of the term of the previous permit, (i) the previous permit shall not expire until the renewal permit has been issued or denied and (ii) all the terms and conditions of the previous permit, including any permit shield granted pursuant to 9VAC5-80-500, shall remain in effect from the date the application is determined to be complete until the renewal permit is issued or denied.

6. The protection under subdivisions 1 and 5 (ii) of this subsection shall cease to apply if, subsequent to the completeness determination made pursuant to subsection D of this section, the applicant fails to submit by the deadline specified in writing by the department any additional information identified as being needed to process the application.

7. Permit application shield and binding effect of acid rain permit application for the affected source.

a. Once a designated representative submits a timely and complete acid rain permit application, the owners and operators of the affected source and the affected units covered by the permit application shall be deemed in compliance with the requirement to have an acid rain permit under 9VAC5-80-420 A 2 and subsection C of this section.

b. The protection provided under subdivision 7 a of this subsection shall cease to apply if, subsequent to the completeness determination made pursuant to subsection D of this section, the designated representative fails to submit by the deadline specified in writing by the department any supplemental information identified as being needed to process the application.

c. Prior to the earlier of the date on which an acid rain permit is issued subject to administrative appeal under 40 CFR Part 78 or is issued as a final permit, an affected unit governed by and operated in accordance with the terms and requirements of a timely and complete acid rain permit application shall be deemed to be operating in compliance with the acid rain program.

d. A complete acid rain permit application shall be binding on the owners and operators and the designated representative of the affected source and the affected units covered by the permit application and shall be enforceable as an acid rain permit from the date of submission of the permit application until the issuance or denial of such permit as a final agency action subject to judicial review.

G. The responsibilities of the designated representative shall be as follows:

1. The designated representative shall submit a certificate of representation, and any superseding certificate of representation, to the administrator in accordance with Subpart B of 40 CFR Part 72 and, concurrently, shall submit a copy to the department.

2. Each submission under the acid rain program shall be submitted, signed, and certified by the designated representative for all sources on behalf of which the submission is made.

3. In each submission under the acid rain program, the designated representative shall certify, by his signature:

a. The following statement, which shall be included verbatim in such submission: "I am authorized to make this submission on behalf of the owners and operators of the affected source or affected units for which the submission is made."

b. The following statement, which shall be included verbatim in such submission: "I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

4. The department shall accept or act on a submission made on behalf of owners or operators of an affected source and an affected unit only if the submission has been made, signed, and certified in accordance with subdivisions 2 and 3 of this subsection.

5. The designated representative of a source shall serve notice on each owner and operator of the source and of an affected unit at the source:

a. By the date of submission of any acid rain program submissions by the designated representative;

b. Within 10 business days of receipt of a determination of any written determination by the administrator or the department; and

c. Provided that the submission or determination covers the source or the unit.

6. The designated representative of a source shall provide each owner and operator of an affected unit at the source a copy of any submission or determination under subdivision 5 of this subsection, unless the owner or operator expressly waives the right to receive such a copy.

H. Except as provided in 40 CFR 72.23, no objection or other communication submitted to the administrator or the department concerning the authorization, or any submission, action or inaction of the designated representative, shall affect any submission, action, or inaction of the designated representative or the finality of any decision by the department under the acid rain program. In the event of such communication, the department is not required to stay any submission or the effect of any action or inaction under the acid rain program. The department shall not adjudicate any private legal dispute concerning the authorization or any submission, action, or inaction of any designated representative, including private legal disputes concerning the proceeds of allowance transfers.

I. The responsibilities of the responsible official shall be as follows:

1. Any application form, report, compliance certification, or other document required to be submitted to the department under this article that concerns applicable requirements other than the acid rain program requirements may be signed by a responsible official other than the designated representative.

2. Any responsible official signing a document required to be submitted to the department under this article shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-440 Application information required

A. The department shall furnish application forms to applicants.

B. Each application for a permit shall include, but not be limited to, the information listed in subsections C through K of this section.

C. Identifying information as follows shall be included:

1. Company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager or contact or both.

2. A description of the source's processes and products (by Standard Industrial Classification Code) including any associated with each alternate scenario identified by the source.

3. Identification of each affected unit at the source for which the permit application is submitted.

4. If the unit is a new unit, the date that the unit has commenced or will commence operation and the deadline for monitor certification.

D. Emissions related information as follows shall be included:

1. All emissions of pollutants for which the source is major and all emissions of regulated air pollutants.

a. A permit application shall describe all emissions of regulated air pollutants emitted from any emissions unit with the following exceptions:

(1) Any emissions unit exempted from the requirements of this subsection because the emissions level or size of the unit is deemed to be insignificant under 9VAC5-80-720 B or C shall be listed in the permit application and identified as an insignificant activity. This requirement shall not apply to emissions units listed in 9VAC5-80-720 A.

(2) Regardless of the emissions units designated in 9VAC5-80-720 A or C or the emissions levels listed in 9VAC5-80-720 B, the emissions from any emissions unit shall be included in the permit application if the omission of those emissions units from the application would interfere with the determination of the applicability of this article, the determination or imposition of any applicable requirement, or the calculation of permit fees.

b. Emissions shall be calculated as required in the permit application form or instructions.

c. Fugitive emissions shall be included in the permit application to the extent that the emissions are quantifiable.

2. Additional information related to the emissions of air pollutants sufficient for the department to verify which requirements are applicable to the source, and other information necessary to determine and collect any permit fees owed under Article 2 (9VAC5-80-310 et seq.) of this part. Identification and description of all points of emissions described in subdivision 1 of this subsection in sufficient detail to establish the basis for fees and applicability of requirements of the Regulations for the Control and Abatement of Air Pollution and the federal Clean Air Act.

3. Emissions rates in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method.

4. Information needed to determine or regulate emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.

5. Identification and description of air pollution control equipment and compliance monitoring devices or activities.

6. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated air pollutants at the source.

7. Other information required by any applicable requirement (including information related to stack height limitations required under 9VAC5-40-20 I or 9VAC5-50-20 H).

8. Calculations on which the information in subdivisions 1 through 7 of this subsection is based. Any calculations shall include sufficient detail to permit assessment of the validity of such calculations.

E. Air pollution control requirement information as follows shall be included:

1. Citation and description of all applicable requirements, including those covering activities deemed insignificant under Article 4 (9VAC5-80-710 et seq.) of this part.

2. Description of or reference to any applicable test method for determining compliance with each applicable requirement.

F. Additional information that may be necessary to implement and enforce other requirements of the Regulations for the Control and Abatement of Air Pollution and the federal Clean Air Act or to determine the applicability of such requirements.

G. An explanation of any proposed exemptions from otherwise applicable requirements.

H. Additional information as determined to be necessary by the department to define alternative operating scenarios identified by the source pursuant to 9VAC5-80-490 J or to define permit terms and conditions implementing operational flexibility under 9VAC5-80-680.

I. Compliance plan information as follows shall be included:

1. A description of the compliance status of the source with respect to all applicable requirements.

2. A description as follows:

a. For applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements.

b. For applicable requirements that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis.

c. For applicable requirements for which the source is not in compliance at the time of permit issuance, a narrative description of how the source will achieve compliance with such requirements.

3. A complete acid rain compliance plan for each affected unit in accordance with 9VAC5-80-450.

4. A compliance schedule as follows:

a. For applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements.

b. For applicable requirements that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis. A statement that the source will meet in a timely manner applicable requirements that become effective during the permit term shall satisfy this provision, unless a more detailed schedule is expressly required by the applicable requirement or by the department if no specific requirement exists.

c. A schedule of compliance for sources that are not in compliance with all applicable requirements at the time of permit issuance. Such a schedule shall include a schedule of remedial measures, including an enforceable sequence of actions with milestones, leading to compliance with any applicable requirements for which the source will be in noncompliance at the time of permit issuance. This compliance schedule shall resemble and be at least as stringent as that contained in any judicial consent decree or department order to which the source is subject. Any such schedule of compliance shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based.

5. A schedule for submission of certified progress reports no less frequently than every six months for sources required to have a schedule of compliance to remedy a violation.

6. The requirements of this subsection shall apply and be included in the acid rain portion of a compliance plan for an affected source, except as specifically superseded by regulations promulgated under Title IV of the federal Clean Air Act with regard to the schedule and method or methods the source will use to achieve compliance with the acid rain emissions limitations.

J. Compliance certification information as follows shall be included:

1. A certification of compliance with all applicable requirements by a responsible official or a plan and schedule to come into compliance or both as required by subsection I of this section.

2. A statement of methods used for determining compliance, including a description of monitoring, recordkeeping, and reporting requirements and test methods.

3. A schedule for submission of compliance certifications during the permit term, to be submitted no less frequently than annually, or more frequently if specified by the underlying applicable requirement or by the department.

4. A statement indicating the source is in compliance with any applicable federal requirements concerning enhanced monitoring and compliance certification.

K. If applicable, a statement indicating that the source has complied with the applicable federal requirement to register a risk management plan under § 112(r)(7) of the federal Clean Air Act or, as required under subsection I of this section, has made a statement in the source's compliance plan that the source intends to comply with this applicable federal requirement and has set a compliance schedule for registering the plan.

L. Regardless of any other provision of this section, an application shall contain all information needed to determine or to impose any applicable requirement or to evaluate the fee amount required under the schedule approved pursuant to Article 2 (9VAC5-80-310 et seq.) of this part.

M. The use of nationally standardized forms for acid rain portions of permit applications and compliance plans as required by 40 CFR 72.72(b)(4).

N. The applicant shall meet the requirements of 9VAC5-80-420 concerning permit applications, operation of the affected source, monitoring, sulfur dioxide, nitrogen dioxide, excess emissions, recordkeeping and reporting, liability, and effect on other authorities.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-450 Acid rain compliance plan and compliance options

A. For each affected unit included in an acid rain permit application, a complete acid rain compliance plan shall include:

1. For sulfur dioxide emissions, a certification that, as of the allowance transfer deadline, the designated representative will hold allowances in the unit's compliance subaccount (after deductions under 40 CFR 73.34(c)) not less than the total annual emissions of sulfur dioxide from the unit. The compliance plan may also specify, in accordance with this section and 9VAC5-80-460, one or more of the acid rain compliance options.

2. For nitrogen oxides emissions, a certification that the unit will comply with the applicable emission limitation in 40 CFR 76.5, 76.6, or 76.7 or shall specify one or more acid rain compliance options in accordance with the requirements of 40 CFR Part 76.

B. The acid rain compliance plan may include a multi-unit compliance option under 9VAC5-80-460 or § 407 of the federal Clean Air Act or 40 CFR Part 76.

1. A plan for a compliance option that includes units at more than one affected source shall be complete only if:

a. Such plan is signed and certified by the designated representative for each source with an affected unit governed by such plan; and

b. A complete permit application is submitted covering each unit governed by such plan.

2. The department's approval of a plan under subdivision 1 of this subsection that includes units in more than one state shall be final only after every permitting authority with jurisdiction over any such unit has approved the plan with the same modifications or conditions, if any.

C. In the compliance plan, the designated representative of an affected unit may propose, in accordance with this section and 9VAC5-80-460, any acid rain compliance option for conditional approval, provided that an acid rain compliance option under § 407 of the federal Clean Air Act may be conditionally proposed only to the extent provided in 40 CFR Part 76.

1. To activate a conditionally approved acid rain compliance option, the designated representative shall notify the department in writing that the conditionally approved compliance option will actually be pursued beginning January 1 of a specified year. Such notification shall be subject to the limitations on activation under 9VAC5-80-460 and 40 CFR Part 76. If the conditionally approved compliance option includes a plan described in subdivision B 1 of this section, the designated representative of each source governed by the plan shall sign and certify the notification.

2. The notification under subdivision 1 of this subsection shall specify the first calendar year and the last calendar year for which the conditionally approved acid rain compliance option is to be activated. A conditionally approved compliance option shall be activated, if at all, before the date of any enforceable milestone applicable to the compliance option. The date of activation of the compliance option shall not be a defense against failure to meet the requirements applicable to that compliance option during each calendar year for which the compliance option is activated.

3. Upon submission of a notification meeting the requirements of subdivisions 1 and 2 of this subsection, the conditionally approved acid rain compliance option becomes binding on the owners and operators and the designated representative of any unit governed by the conditionally approved compliance option.

4. A notification meeting the requirements of subdivisions 1 and 2 of this subsection will revise the unit's permit in accordance with 9VAC5-80-620.

D. The following requirements concerning terminations of compliance options apply to affected sources and affected units subject to this article:

1. The designated representative for a unit may terminate an acid rain compliance option by notifying the department in writing that an approved compliance option will be terminated beginning January 1 of a specified year. Such notification shall be subject to the limitations on termination under 9VAC5-80-460 and 40 CFR Part 76. If the compliance option includes a plan described in subdivision B 1 of this section, the designated representative for each source governed by the plan shall sign and certify the notification. Such notification shall be subject to the limitations or terminations under Subpart D of 40 CFR Part 72 and regulations implementing § 407 of the federal Clean Air Act.

2. The notification under subdivision 1 of this subsection shall specify the calendar year for which the termination will take effect.

3. Upon submission of a notification meeting the requirements of subdivisions 1 and 2 of this subsection, the termination becomes binding on the owners and operators and the designated representative of any unit governed by the acid rain compliance option to be terminated.

4. A notification meeting the requirements of subdivisions 1 and 2 of this subsection will revise the unit's permit in accordance with 9VAC5-80-620.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-460 Repowering extensions

A. This section shall apply to the designated representative of:

1. Any existing affected unit that is a coal-fired unit and has a 1985 actual sulfur dioxide emissions rate equal to or greater than 1.2 lbs/mmBtu; or

2. Any new unit that will be a replacement unit, as provided in subdivision B 2 of this section, for a unit meeting the requirements of subdivision 1 of this subsection; or

3. Any oil- or gas-fired unit or both that has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Secretary of Energy.

A repowering extension does not exempt the owner or operator for any unit governed by the repowering plan from the requirement to comply with such unit's acid rain emissions limitations for sulfur dioxide.

B. The designated representative of any unit meeting the requirements of subdivision A 1 of this section may include in the unit's acid rain permit application a repowering extension plan that includes a demonstration that:

1. The unit will be repowered with a qualifying repowering technology in order to comply with the emissions limitations for sulfur dioxide; or

2. The unit will be replaced by a new utility unit that has the same designated representative and that is located at a different site using a qualified repowering technology and the existing unit will be permanently retired from service on or before the date on which the new utility unit commences commercial operation.

C. In order to apply for a repowering extension, the designated representative of a unit under subsection A of this section shall:

1. Submit to the department, by January 1, 1996, a complete repowering extension plan;

2. Submit to the administrator before June 1, 1997, a complete petition for approval of repowering technology in accordance with 40 CFR 72.44(d) and submit a copy to the department; and

3. If the repowering extension plan is submitted for conditional approval, submit to the department by December 31, 1997, a notification to activate the plan in accordance with 9VAC5-80-450 C.

D. A complete repowering extension plan shall include the following elements:

1. Identification of the existing unit governed by the plan.

2. The unit's sulfur dioxide emissions limitation in the implementation plan.

3. The unit's 1995 actual sulfur dioxide emissions rate.

4. A schedule for construction, installation, and commencement of operation of the repowering technology approved or submitted for approval under 40 CFR 72.44(d) with dates for the following milestones:

a. Completion of design engineering;

b. For a plan under subdivision B 1 of this section, removal of the existing unit from operation to install the qualified repowering technology;

c. Commencement of construction;

d. Completion of construction;

e. Start-up testing;

f. For a plan under subdivision B 2 of this section, shutdown of the existing unit; and

g. Commencement of commercial operation of the repowering technology.

5. For a plan under subdivision B 2 of this section:

a. Identification of the new unit. A new unit shall not be included in more than one repowering extension plan.

b. Certification that the new unit will replace the existing unit.

c. Certification that the new unit has the same designated representative as the existing unit.

d. Certification that the existing unit will be permanently retired from service on or before the date the new unit commences commercial operation.

6. The special provisions of subsection G of this section.

E. The department shall not approve a repowering extension plan until the administrator makes a conditional determination that the technology is a qualified repowering technology, unless the department approves such plan subject to the conditional determination of the administrator.

1. Permit issuance shall be as follows:

a. Upon a conditional determination by the administrator that the technology to be used in the repowering extension plan is a qualified repowering technology and a determination by the department that such plan meets the requirements of this section, the department shall issue the acid rain portion of the federal operating permit including:

(1) The approved repowering extension plan; and

(2) A schedule of compliance with enforceable milestones for construction, installation, and commencement of operation of the repowering technology and other requirements necessary to ensure that emission reduction requirements under this section will be met.

b. Except as otherwise provided in subsection F of this section, the repowering extension shall be in effect starting January 1, 2000, and ending on the day before the date (specified in the acid rain permit) on which the existing unit will be removed from operation to install the qualifying repowering technology or will be permanently removed from service for replacement by a new unit with such technology, provided that the repowering extension shall end no later than December 31, 2003.

c. The portion of the federal operating permit specifying the repowering extension and other requirements under subdivision 1 a of this subsection shall be subject to the administrator's final determination, under 40 CFR 72.44(d)(4), that the technology to be used in the repowering extension plan is a qualifying repowering technology.

3. Allowances shall be allocated in accordance with 40 CFR 72.44(f)(3) and (g).

F. The following provisions apply with respect to failed repowering projects:

1. If, at any time before the end of the repowering extension under subdivision E 1 b of this section, the designated representative of a unit governed by an approved repowering extension plan submits the notification under 9VAC5-80-470 D that the owners and operators have decided to terminate efforts to properly design, construct, and test the repowering technology specified in the plan before completion of construction or start-up testing, the designated representative may submit to the department a proposed permit modification demonstrating that such efforts were in good faith. If such demonstration is to the satisfaction of the administrator, the unit shall not be deemed in violation of the federal Clean Air Act because of such a termination and the department shall revise the federal operating permit in accordance with subdivision 2 of this subsection.

2. Regardless of whether notification under subdivision 1 of this subsection is given, the repowering extension shall end beginning on the earlier of the date of such notification or the date by which the designated representative was required to give such notification under 9VAC5-80-470 D. The administrator shall deduct allowances (including a pro rata deduction for any fraction of a year) from the allowance tracking system account of the existing unit to the extent necessary to ensure that, beginning the day after the extension ends, allowances are allocated in accordance with 40 CFR 73.21(c)(1).

3. The designated representative of a unit governed by an approved repowering extension plan may submit to the department a proposed permit modification demonstrating that the repowering technology specified in the plan was properly constructed and tested on such unit but was unable to achieve the emissions reduction limitations specified in the plan and that it is economically or technologically infeasible to modify the technology to achieve such limits, the unit shall not be deemed in violation of the federal Clean Air Act because of such failure to achieve the emissions reduction limitations. In order to be properly constructed and tested, the repowering technology shall be constructed at least to the extent necessary for direct testing of the multiple combustion emissions (including sulfur dioxide and nitrogen oxides) from such unit while operating the technology at nameplate capacity. If such demonstration is to the satisfaction of the administrator, the following shall occur:

a. The unit shall not be deemed in violation of the federal Clean Air Act because of such failure to achieve the emissions reduction limitations;

b. The department shall revise the acid rain portion of the federal operating permit in accordance with subdivisions 3 b and 3 c of this subsection;

c. The existing unit may be retrofitted or repowered with another clean coal or other available control technology; and

d. The repowering extension shall continue in effect until the earlier of the date the existing unit commences commercial operation with such control technology or December 31, 2003. The department shall allocate or deduct allowances as necessary to ensure that allowances are allocated in accordance with paragraph (f)(3) of 40 CFR 72.44.

G. 1. The following special provisions apply with regard to emissions limitations:

a. For sulfur dioxide, allowances allocated during the repowering extension under paragraphs (f)(3) and (g)(2)(iii) of 40 CFR 72.40 to a unit governed by an approved repowering extension plan shall not be transferred to any allowance tracking system account other than the unit accounts of other units at the same source as that unit.

b. For nitrogen oxides, any existing unit governed by an approved repowering extension plan shall be subject to the acid rain emissions limitations for nitrogen oxides in accordance with 40 CFR Part 76 beginning on the date that the unit is removed from operation to install the repowering technology or is permanently removed from service.

c. No existing unit governed by an approved repowering extension plan shall be eligible for a waiver under § 111(j) of the federal Clean Air Act.

d. No new unit governed by an approved repowering extension plan shall receive an exemption from the requirements imposed under § 111 of the federal Clean Air Act.

2. Each unit governed by an approved repowering extension plan shall comply with the special reporting requirements of 40 CFR 72.94.

3. The following provisions regarding liability apply:

a. The owners and operators of a unit governed by an approved repowering plan shall be liable for any violation of the plan at that or any other unit governed by the plan, including liability for fulfilling the obligations specified in 40 CFR Part 77 and § 411 of the federal Clean Air Act.

b. The units governed by the plan under paragraph (b)(2) of 40 CFR 72.40 shall continue to have a common designated representative until the exiting unit is permanently retired under the plan.

4. Except as provided in paragraph (g) of 40 CFR 72.40, a repowering extension plan shall not be terminated after December 31, 1999.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-470 Units with repowering extension plans

A. No later than January 1, 2000, the designated representative of a unit governed by an approved repowering plan shall submit to the administrator and the department:

1. Satisfactory documentation of a preliminary design and engineering effort.

2. A binding letter agreement for the executed and binding contract (or for each in a series of executed and binding contracts) for the majority of the equipment to repower the unit using the technology conditionally approved by the administrator under 40 CFR 72.44(d)(3).

3. The letter agreement under subdivision 2 of this subsection shall be signed and dated by each party and specify:

a. The parties to the contract;

b. The date each party executed the contract;

c. The unit to which the contract applies;

d. A brief list identifying each provision of the contract;

e. Any dates to which the parties agree, including construction completion date;

f. The total dollar amount of the contract; and

g. A statement that a copy of the contract is on site at the source and will be submitted upon written request of the administrator or the department.

B. The designated representative of a unit governed by an approved repowering plan shall notify the administrator and the department in writing at least 60 days in advance of the date on which the existing unit is to be removed from operation so that the qualified repowering technology can be installed, or is to be replaced by another unit with the qualified repowering technology, in accordance with the plan.

C. Not later than 60 days after the units repowered under an approved repowering plan commences operation at full load, the designated representative of the unit shall submit a report to the administrator and the department comparing the actual hourly emissions and percent removal of each pollutant controlled at the unit to the actual hourly emissions and percent removal at the existing unit under the plan prior to repowering, determined in accordance with 40 CFR Part 75.

D. If at any time before the end of the repowering extension and before completion of construction and start-up testing, the owners and operators decide to terminate good faith efforts to design, construct, and test the qualified repowering technology on the unit to be repowered under an approved repowering plan, then the designated representative shall submit a notice to the administrator and the department by the earlier of the end of the repowering extension or a date within 30 days of such decision, stating the date on which the decision was made.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-480 Emission caps

A. The department may establish an emission cap for sources or emissions units applicable under this article when the applicant requests that a cap be established.

B. The criteria in this subsection shall be met in establishing emission standards for emission caps to the extent necessary to assure that emissions levels are met permanently.

1. If an emissions unit was subject to emission standards prescribed in the Regulations for the Control and Abatement of Air Pollution prior to the date the permit is issued, a standard covering the emissions unit and pollutants subject to the emission standards shall be incorporated into the permit issued under this article.

2. A permit issued under this article may also contain emission standards for emissions units or pollutants that were not subject to emission standards prescribed in the Regulations for the Control and Abatement of Air Pollution prior to the issuance of the permit.

3. Each standard shall be based on averaging time periods for the standards as appropriate based on applicable air quality standards, any emission standard applicable to the emissions unit prior to the date the permit is issued, or the operation of the emissions unit, or any combination thereof. The emission standards may include the level, quantity, rate, or concentration or any combination thereof for each affected pollutant.

4. In no case shall a standard result in emissions which would exceed the lesser of the following:

a. Allowable emissions for the emissions unit based on emission standards applicable prior to the date the permit is issued.

b. The emissions rate based on the potential to emit of the emissions unit.

5. The standard may prescribe, as an alternative to or a supplement to an emission limitation, an equipment, work practice, fuels specification, process materials, maintenance, or operational standard, or any combination thereof.

C. Using the significant modification procedures of 9VAC5-80-590, an emissions standard may be changed to allow an increase in emissions level provided the amended standard meets the requirements of subdivisions B 1 and B 4 of this section and provided the increased emission levels would not make the source subject to the new source review program.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-490 Permit content

A. The following requirements apply to permit content:

1. The department shall include in the permit all applicable requirements for all emissions units.

2. The department shall include in the permit applicable requirements that apply to fugitive emissions.

3. Each permit issued under this article shall include the elements listed in subsections B through P of this section.

4. Each acid rain permit (including any draft or proposed acid rain permit) shall contain the following elements:

a. All elements required for a complete acid rain permit application under 9VAC5-80-440, as approved or adjusted by the department;

b. The applicable acid rain emissions limitation for sulfur dioxide; and

c. The applicable acid rain emissions limitation for nitrogen oxides.

5. Each acid rain permit is deemed to incorporate the definitions of terms under 9VAC5-80-370.

B. Each permit shall contain terms and conditions setting out the following requirements with respect to emission limitations and standards:

1. The permit shall specify and reference applicable emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance.

2. The permit shall specify and reference the origin of and authority for each term or condition and shall identify any difference in form as compared to the applicable requirement upon which the term or condition is based.

3. If applicable requirements contained in the Regulations for the Control and Abatement of Air Pollution allow a determination of an alternative emission limit at a source, equivalent to that contained in the Regulations for the Control and Abatement of Air Pollution, to be made in the permit issuance, renewal, or significant modification process, any permit containing such equivalency determination shall contain provisions to ensure that any resulting emissions limit has been demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures.

C. Each permit shall contain terms and conditions setting out the following elements identifying equipment specifications and operating parameters:

1. Specifications for permitted equipment, identified as thoroughly as possible. The identification shall include, but not be limited to, type, rated capacity, and size.

2. Specifications for air pollution control equipment installed or to be installed.

3. Specifications for air pollution control equipment operating parameters and the circumstances under which such equipment shall be operated, where necessary to ensure that the required overall control efficiency is achieved.

The information on any specification required in subdivisions 1 and 2 of this subsection may be included in the permit for informational purposes only and does not form an enforceable term or condition of the permit unless: (i) the specification is an applicable federal requirement, (ii) the specification is derived from and necessary to enforce an applicable federal requirement, (iii) the operation of the source contrary to the specification would violate an applicable federal requirement, or (iv) the owner voluntarily takes the specification as a state-enforceable term or condition of the permit pursuant to 9VAC5-80-300.

D. Each permit shall contain a condition setting out the expiration date, reflecting a fixed term of five years.

E. Each permit shall contain terms and conditions setting out the following requirements with respect to monitoring:

1. All emissions monitoring and analysis procedures or test methods required under the applicable monitoring and testing requirements, including 40 CFR Part 64 and any other procedures and methods promulgated pursuant to § 504(b) or § 114(a)(3) of the federal Clean Air Act concerning compliance monitoring, including enhanced compliance monitoring. If more than one monitoring or testing requirement applies, the permit may specify a streamlined set of monitoring or testing provisions provided the specific monitoring or testing is adequate to assure compliance at least to the same extent as the applicable requirements relating to monitoring or testing that are not included in the permit as a result of such streamlining.

2. Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit, as reported pursuant to subdivision F 1 a of this section. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements of this subdivision.

3. As necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods.

F. The following requirements concerning recordkeeping and reporting apply:

1. To meet the requirements of subsection E of this section with respect to recordkeeping, the permit shall contain terms and conditions setting out all applicable recordkeeping requirements and requiring, where applicable, the following:

a. Records of monitoring information that include the following:

(1) The date, place as defined in the permit, and time of sampling or measurements.

(2) The date or dates analyses were performed.

(3) The company or entity that performed the analyses.

(4) The analytical techniques or methods used.

(5) The results of such analyses.

(6) The operating conditions existing at the time of sampling or measurement.

b. Retention of records of all monitoring data and support information for at least five years from the date of the monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit.

2. To meet the requirements of subsection E of this section with respect to reporting, the permit shall contain terms and conditions setting out all applicable reporting requirements and requiring the following:

a. Submittal of reports of any required monitoring at least every six months. All instances of deviations from permit requirements must be clearly identified in such reports. All required reports must be certified by a responsible official consistent with 9VAC5-80-430 G.

b. Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. The department shall define "prompt" in the permit condition in relation to (i) the degree and type of deviation likely to occur and (ii) the applicable requirements.

G. Each permit shall contain terms and conditions with respect to enforcement that state the following:

1. If any condition, requirement or portion of the permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of the permit.

2. The permittee shall comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the federal Clean Air Act or the Virginia Air Pollution Control Law or both and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application.

3. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

4. The permit may be modified, revoked, reopened, and reissued, or terminated for cause as specified in 9VAC5-80-490 L, 9VAC5-80-640 and 9VAC5-80-660. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or of a notification of planned changes or anticipated noncompliance does not stay any permit condition.

5. The permit does not convey any property rights of any sort, or any exclusive privilege.

6. The permittee shall furnish to the department, within a reasonable time, any information that the department may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the department copies of records required to be kept by the permit and, for information claimed to be confidential, the permittee shall furnish such records to the department along with a claim of confidentiality.

H. Each permit shall contain a condition setting out the requirement to pay permit fees consistent with Article 2 (9VAC5-80-310 et seq.) of this part.

I. The following requirements concerning emissions trading apply:

1. Each permit shall contain a condition with respect to emissions trading that states the following:

No permit revision shall be required, under any federally approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are provided for in the permit.

2. Each permit shall contain the following terms and conditions, if the permit applicant requests them, for the trading of emissions increases and decreases within the permitted facility, to the extent that the Regulations for the Control and Abatement of Air Pollution provide for trading such increases and decreases without a case-by-case approval of each emissions trade:

a. All terms and conditions required under this section except subsection N shall be included to determine compliance.

b. The permit shield described in 9VAC5-80-500 shall extend to all terms and conditions that allow such increases and decreases in emissions.

c. The owner shall meet all applicable requirements including the requirements of this article.

J. Each permit shall contain terms and conditions setting out requirements with respect to reasonably anticipated operating scenarios when identified by the source in its application and approved by the department. Such requirements shall include but not be limited to the following:

1. Contemporaneously with making a change from one operating scenario to another, the source shall record in a log at the permitted facility a record of the scenario under which it is operating.

2. The permit shield described in 9VAC5-80-500 shall extend to all terms and conditions under each such operating scenario.

3. The terms and conditions of each such alternative scenario shall meet all applicable requirements including the requirements of this article.

K. Consistent with subsections E and F of this section, each permit shall contain terms and conditions setting out the following requirements with respect to compliance:

1. Compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any document (including reports) required in a permit condition to be submitted to the department shall contain a certification by a responsible official that meets the requirements of 9VAC5-80-430 G.

2. Inspection and entry requirements that require that, upon presentation of credentials and other documents as may be required by law, the owner shall allow the department to perform the following:

a. Enter upon the premises where the source is located or emissions related activity is conducted, or where records must be kept under the terms and conditions of the permit.

b. Have access to and copy, at reasonable times, any records that must be kept under the terms and conditions of the permit.

c. Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit.

d. Sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements.

3. A schedule of compliance consistent with 9VAC5-80-440 I.

4. Progress reports consistent with an applicable schedule of compliance and 9VAC5-80-440 I to be submitted at least semiannually, or at a more frequent period if specified in the applicable requirement or by the department. Such progress reports shall contain the following:

a. Dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and dates when such activities, milestones or compliance were achieved.

b. An explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted.

5. Requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Permits shall include each of the following:

a. The frequency (not less than annually or such more frequent periods as specified in the applicable requirement or by the department) of submissions of compliance certifications.

b. In accordance with subsection E of this section, a means for assessing or monitoring the compliance of the source with its emissions limitations, standards, and work practices.

c. A requirement that the compliance certification include the following (provided that the identification of applicable information may cross reference the permit or previous reports, as applicable):

(1) The identification of each term or condition of the permit that is the basis of the certification.

(2) The identification of the methods or other means used by the owner or operator for determining the compliance status with each term and condition during the certification period, and whether such methods or other means provide continuous or intermittent data. Such methods and other means shall include, at a minimum, the methods and means required under subsection E of this section. If necessary, the owner or operator shall also identify any other material information that must be included in the certification to comply with § 113(c)(2) of the federal Clean Air Act, which prohibits knowingly making a false certification or omitting material information.

(3) The status of compliance with the terms and conditions of the permit for the period covered by the certification, based on the method or means designated in 9VAC5-80-110 K 5 c (2). The certification shall identify each deviation and take it into account in the compliance certification. The certification shall also identify as possible exception to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under 40 CFR Part 64 occurred.

(4) Such other facts as the department may require to determine the compliance status of the source.

d. All compliance certifications shall be submitted by the permittee to the administrator as well as to the department.

6. Such other provisions as the department may require.

L. Each permit shall contain terms and conditions setting out the following requirements with respect to reopening the permit prior to expiration:

1. The permit shall be reopened by the department if additional applicable federal requirements become applicable to an affected source with a remaining permit term of three or more years. Such a reopening shall be completed not later than 18 months after promulgation of the applicable requirement. No such reopening is required if the effective date of the requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended pursuant to 9VAC5-80-430 F.

2. The permit shall be reopened if the department or the administrator determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

3. The permit shall be reopened if the administrator or the department determines that the permit must be revised or revoked to assure compliance with the applicable requirements.

4. The permit shall be reopened if additional requirements, including excess emissions requirements, become applicable to an affected source under the acid rain program. Upon approval by the administrator, excess emissions offset plans shall be deemed to be incorporated into the permit.

5. The permit shall not be reopened by the department if additional applicable state requirements become applicable to an affected source prior to the expiration date established under subsection D of this section.

M. The permit shall contain terms and conditions pertaining to other requirements as may be necessary to ensure compliance with the Regulations for the Control and Abatement of Air Pollution, the Virginia Air Pollution Control Law and the federal Clean Air Act.

N. The following requirements concerning federal enforceability apply:

1. All terms and conditions in a permit, including any provisions designed to limit a source's potential to emit, are enforceable by the administrator and citizens under the federal Clean Air Act, except as provided in subdivision 2 of this subsection.

2. The department shall specifically designate as being only state-enforceable any terms and conditions included in the permit that are not required under the federal Clean Air Act or under any of its applicable federal requirements. Terms and conditions so designated are not subject to the requirements of 9VAC5-80-690 concerning review of proposed permits by EPA and draft permits by affected states.

3. The department may specifically designate as state enforceable any applicable state requirement that has been submitted to the administrator for review to be approved as part of the implementation plan and that has not yet been approved. The permit shall specify that the provision will become federally enforceable upon approval of the provision by the administrator and through an administrative permit amendment.

O. Each permit shall include requirements with respect to allowances held by the source under Title IV of the federal Clean Air Act or 40 CFR Part 73. Such requirements shall include the following:

1. A permit condition prohibiting emissions exceeding any allowances that the source lawfully holds under Title IV of the federal Clean Air Act or 40 CFR Part 73.

2. No permit revision shall be required for increases in emissions that are authorized by allowances acquired pursuant to the acid rain program provided that such increases do not require a permit revision under any other applicable federal requirement.

3. No limit shall be placed on the number of allowances held by the source. The source may not, however, use allowances as a defense to noncompliance with any other applicable requirement.

4. Any such allowance shall be accounted for according to the procedures established in 40 CFR Part 73.

P. The following requirements concerning annual compliance certification reports apply:

1. For each calendar year in which a unit is subject to the acid rain emissions limitations, the designated representative of the source at which the unit is located shall submit to the administrator and to the department, within 60 days after the end of the calendar year, an annual compliance certification report for the unit in compliance with 40 CFR 72.90.

2. The submission of complete compliance certifications in accordance with subsection A of this section and 40 CFR Part 75 shall be deemed to satisfy the requirement to submit compliance certifications under subdivision K 5 c of this section with regard to the acid rain portion of the source's federal operating permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-500 Permit shield

A. The department shall expressly include in a permit a provision stating that compliance with the conditions of the permit shall be deemed compliance with all applicable requirements in effect as of the date of permit issuance and as specifically identified in the permit.

B. The permit shield shall cover only the following:

1. Applicable requirements that are covered by terms and conditions of the permit.

2. Any other applicable requirement specifically identified as being not applicable to the source, provided that the permit includes that determination.

C. Each affected unit operated in accordance with the acid rain permit that governs the unit and that was issued in compliance with Title IV of the federal Clean Air Act, as provided in the acid rain program regulations shall be deemed to be operating in compliance with the acid rain program, except as provided in 9VAC5-80-420 G 6.

D. Nothing in this section or in any permit issued under this article shall alter or affect the following:

1. The provisions of § 303 of the federal Clean Air Act (emergency orders), including the authority of the administrator under that section.

2. The liability of an owner for any violation of applicable requirements prior to or at the time of permit issuance.

3. The ability to obtain information from a source by the (i) administrator pursuant to § 114 of the federal Clean Air Act (inspections, monitoring, and entry); or (ii) department pursuant to § 10.1-1307.3, 10.1-1314, or 10.1-1315 of the Virginia Air Pollution Control Law.

4. The applicable federal requirements of the acid rain program consistent with § 408(a) of the federal Clean Air Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-510 Action on permit application

A. The department shall take final action on each permit application (including a request for permit modification or renewal) as follows:

1. The department shall issue or deny all permits in accordance with the requirements of this article and this section, including the completeness determination, draft permit, administrative record, statement of basis, public notice and comment period, public hearing, proposed permit, permit issuance, permit revision, and appeal procedures as amended by 9VAC5-80-660 C.

2. For permit revisions, as required by the provisions of 9VAC5-80-500 through 9VAC5-80-630.

B. A permit, permit modification, or renewal may be issued only if all of the following conditions have been met:

1. The department has received a complete application for a permit, permit modification, or permit renewal.

2. Except for modifications qualifying for minor permit modification procedures under 9VAC5-80-570 or 9VAC5-80-580, the department has complied with the requirements for public participation under 9VAC5-80-670.

3. The department has complied with the requirements for notifying and responding to affected states under 9VAC5-80-690.

4. The conditions of the permit provide for compliance with all applicable requirements, the requirements of Article 2 (9VAC5-80-310 et seq.) of this part, and the requirements of this article.

5. The administrator has received a copy of the proposed permit and any notices required under 9VAC5-80-690 A and B and has not objected to issuance of the permit under 9VAC5-80-690 C within the time period specified therein.

C. The issuance of the acid rain portion of the federal operating permit shall be as follows:

1. After the close of the public comment period, the department shall incorporate all necessary changes and issue or deny a proposed acid rain permit.

2. The department shall submit the proposed acid rain permit or denial of a proposed acid rain permit to the administrator in accordance with 9VAC5-80-690, the provisions of which shall be treated as applying to the issuance or denial of a proposed acid rain permit.

3. Action by the administrator shall be as follows:

a. Following the administrator's review of the proposed acid rain permit or denial of a proposed acid rain permit, the department or, under 9VAC5-80-690 C, the administrator shall incorporate any required changes and issue or deny the acid rain permit in accordance with 9VAC5-80-490 and 9VAC5-80-500.

b. No acid rain permit (including a draft or proposed permit) shall be issued unless the administrator has received a certificate of representation for the designated representative of the source in accordance with Subpart B of 40 CFR Part 72.

4. Permit issuance deadlines and effective dates shall be as follows:

a. The department shall issue an acid rain permit to each affected source whose designated representative submitted in accordance with 9VAC5-80-430 G a timely and complete acid rain permit application by January 1, 1996, that meets the requirements of this article. The permit shall be issued by the effective date specified in subdivision 4 c of this subsection.

b. Not later than January 1, 1999, the department shall reopen the acid rain permit to add the acid rain program nitrogen oxides requirements, provided that the designated representative of the affected source submitted a timely and complete acid rain permit application for nitrogen oxides in accordance with 9VAC5-80-430 G. Such reopening shall not affect the term of the acid rain portion of a federal operating permit.

c. Each acid rain permit issued in accordance with subdivision 4 a of this subsection shall take effect by the later of January 1, 1998, or, where the permit governs a unit under 9VAC5-80-380 A 3, the deadline for monitor certification under 40 CFR Part 75.

d. Both the acid rain draft and final permit shall state that the permit applies on and after January 1, 2000. The draft and final permit shall also specify which applicable requirements are effective prior to January 1, 2000, and the effective date of those applicable requirements.

e. Each acid rain permit shall have a term of five years commencing on its effective date.

f. An acid rain permit shall be binding on any new owner or operator or designated representative of any source or unit governed by the permit.

5. Each acid rain permit shall contain all applicable acid rain requirements, shall be a portion of the federal operating permit that is complete and segregable from all other air quality requirements, and shall not incorporate information contained in any other documents, other than documents that are readily available.

6. Invalidation of the acid rain portion of a federal operating permit shall not affect the continuing validity of the rest of the operating permit, nor shall invalidation of any other portion of the operating permit affect the continuing validity of the acid rain portion of the permit.

D. The department shall take final action on each permit application (including a request for a permit modification or renewal) no later than 18 months after a complete application is received by the department, except in cases where a public hearing to provide the opportunity for interested persons to contest the application is granted pursuant to 9VAC5-80-35. The department will review any request made under 9VAC5-80-670 E 2, and will take final action on the request and application as provided in Part I (9VAC5-80-5 et seq.) of this chapter. The initial permits issued under this article shall be issued by the effective date specified in subdivision C 4 c of this section.

E. Issuance of permits under this article shall not take precedence over or interfere with the issuance of preconstruction permits under the new source review program.

F. The department shall provide a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions) as follows. The department shall send this statement to the administrator and to any other person who requests it.

1. The statement of basis shall briefly set forth significant factual, legal, and policy considerations on which the department relied in issuing or denying the draft permit.

2. The statement of basis shall include the reasons, and supporting authority, for approval or disapproval of any compliance options requested in the permit application, including references to applicable statutory or regulatory provisions and to the administrative record.

3. The department shall submit to the administrator a copy of the draft acid rain permit and the statement of basis and all other relevant portions of the federal operating permit that may affect the draft acid rain permit.

G. Within five days after receipt of the issued permit, the applicant shall maintain the permit on the premises for which the permit has been issued and shall make the permit immediately available to the department upon request.

H. In granting a permit pursuant to this section, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit pursuant to this section, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-520 Transfer of permits

A. No person shall transfer a permit from one location to another or from one piece of equipment to another.

B. In the case of a transfer of ownership of an affected source, the new owner shall comply with any current permit issued to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer and shall comply with the requirements of 9VAC5-80-560.

C. In the case of a name change of an affected source, the owner shall comply with any current permit issued under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change and shall comply with the requirements of 9VAC5-80-560.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-530 Permit renewal and expiration

A. Permits being renewed shall be subject to the same procedural requirements, including those for public participation, affected state and EPA review, that apply to initial permit issuance under this article.

B. Permit expiration terminates the source's right to operate unless a timely and complete renewal application has been submitted consistent with 9VAC5-80-430.

C. If the department fails to act in a timely way on a permit renewal, the administrator may invoke his authority under § 505(e) of the federal Clean Air Act to terminate or revoke and reissue the permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-540 Permanent shutdown for emissions trading

The shutdown of an emissions unit is not creditable for purposes of emissions trading or exempt under 9VAC5-80-360 C 3 unless a decision concerning shutdown has been made pursuant to 9VAC5-20-220.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001.

9VAC5-80-550 Changes to permits

A. Changes to emissions units that pertain to applicable federal requirements at a source with a permit issued under this article shall be made as specified under subsections B and C of this section. Changes may be initiated by the permittee as specified in subsection B of this section or by the department or the administrator as specified in subsection C of this section. Changes to emissions units that pertain to applicable state requirements at a source with a permit issued under this article shall be made as specified under subsection E of this section.

B. The following requirements apply with respect to changes initiated by the permittee:

1. With regard to emissions units other than affected units, the permittee may initiate a change to a permit by requesting an administrative permit amendment, a minor permit modification or a significant permit modification. The requirements for these permit revisions can be found in 9VAC5-80-560 through 9VAC5-80-590.

2. With regard to affected units, the permittee may initiate a change to a permit by requesting a permit modification, fast-track modification, administrative permit amendment or automatic permit amendment. The requirements for these permit revisions can be found in 9VAC5-80-600 through 9VAC5-80-630.

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

4. A permit revision may be submitted for approval at any time.

5. No permit revision shall affect the term of the acid rain permit to be revised.

6. No permit revision shall excuse any violation of an acid rain program requirement that occurred prior to the effective date of the revision.

7. The terms of the acid rain permit shall apply while the permit revision is pending.

8. Any determination or interpretation by the state (including the department or a state court) modifying or voiding any acid rain permit provision shall be subject to review by the administrator in accordance with 9VAC5-80-690 C as applied to permit modifications, unless the determination or interpretation is an administrative amendment approved in accordance with 9VAC5-80-620.

9. The standard requirements of 9VAC5-80-420 shall not be modified or voided by a permit revision.

10. Any permit revision involving incorporation of a compliance option that was not submitted for approval and comment during the permit issuance process, or involving a change in a compliance option that was previously submitted, shall meet the requirements for applying for such compliance option under 9VAC5-80-460, § 407 of the federal Clean Air Act and 40 CFR Part 76.

11. For permit revisions not described in 9VAC5-80-600 and 9VAC5-80-610, the department may, in its discretion, determine which of these sections is applicable.

C. The administrator or the department may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-640.

D. Changes to permits shall not be used to extend the term of the permit.

E. The following requirements apply with respect to changes at a source and applicable state requirements:

1. Changes at a source that pertain only to applicable state requirements shall be exempt from the requirements of 9VAC5-80-560 through 9VAC5-80-630.

2. The permittee may initiate a change pertaining only to applicable state requirements (i) if the change does not violate applicable requirements and (ii) if applicable, the requirements of the new source review program have been met.

3. Incorporation of permit terms and conditions into a permit issued under this article shall be as follows:

a. Permit terms and conditions pertaining only to applicable state requirements and issued under the new source review program shall be incorporated into a permit issued under this article at the time of permit renewal or at an earlier time, if the applicant requests it.

b. Permit terms and conditions for changes to emissions units subject only to applicable state requirements and exempt from the requirements of the new source review program shall be incorporated into a permit issued under this article at the time of permit renewal or at an earlier time, if the applicant requests it.

4. The source shall provide contemporaneous written notice to the department of the change. Such written notice shall describe each change, including the date, any change in emissions, pollutants emitted, and any applicable state requirement that would apply as a result of the change.

5. The change shall not qualify for the permit shield under 9VAC5-80-500.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-560 Administrative permit amendments

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

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

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

3. Requirement for more frequent monitoring or reporting by the permittee.

4. Change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department and the requirements of 9VAC5-80-520 have been fulfilled.

5. Incorporation into the permit of the requirements of permits issued under the new source review program when the new source review program meets (i) procedural requirements substantially equivalent to the requirements of 9VAC5-80-670 and 9VAC5-80-690 that would be applicable to the change if it were subject to review as a permit modification, and (ii) compliance requirements substantially equivalent to those contained in 9VAC5-80-490.

6. Change in the enforceability status from state-only requirements to federally enforceable requirements for provision that have been approved through rulemaking by the administrator to be a part of the implementation plan.

B. Administrative permit amendments shall be made according to the following procedures:

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

2. The department shall incorporate the changes without providing notice to the public or affected states under 9VAC5-80-670 and 9VAC5-80-690. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

3. The department shall submit a copy of the revised permit to the administrator.

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

C. The department shall, upon taking final action granting a request for an administrative permit amendment, allow coverage by the permit shield provisions of 9VAC5-80-500 for amendments made pursuant to subdivision A 5 of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-570 Minor permit modifications

A. Minor permit modification procedures shall be used only for those permit modifications that:

1. Do not violate any applicable requirement;

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

3. Do not require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;

4. Do not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable federal requirement and that the source has assumed to avoid an applicable federal requirement to which the source would otherwise be subject. Such terms and conditions include:

a. A federally enforceable emissions cap assumed to avoid classification as a Title I modification; and

b. An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act;

5. Are not Title I modifications; and

6. Are not required to be processed as a significant modification under 9VAC5-80-590 or as an administrative permit amendment under 9VAC5-80-560.

B. Notwithstanding subsection A of this section and 9VAC5-80-580 A, minor permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that such minor permit modification procedures are explicitly provided for in the Regulations for the Control and Abatement of Air Pollution or a federally approved program.

C. An application requesting the use of minor permit modification procedures shall meet the requirements of 9VAC5-80-440 for the modification proposed and shall include all of the following:

1. A description of the change, the emissions resulting from the change, and any new applicable federal requirements that will apply if the change occurs.

2. A suggested draft permit prepared by the applicant.

3. Certification by a responsible official, consistent with 9VAC5-80-430 G, that the proposed modification meets the criteria for use of minor permit modification procedures and a request that such procedures be used.

D. Within five working days of receipt of a permit modification application that meets the requirements of subsection C of this section, the department shall meet its obligation under 9VAC5-80-690 A 1 and B 1 to notify the administrator and affected states of the requested permit modification. The department shall promptly send any notice required under 9VAC5-80-690 B 2 to the administrator. The public participation requirements of 9VAC5-80-670 shall not extend to minor permit modifications.

E. The timetable for issuance of permit modifications shall be as follows:

1. The department may not issue a final permit modification until after the administrator's 45-day review period or until the administrator has notified the department that he will not object to issuance of the permit modification, whichever occurs first, although the department can approve the permit modification prior to that time.

2. Within 90 days of receipt by the department of an application under minor permit modification procedures or 15 days after the end of the 45-day review period under 9VAC5-80-600 C, whichever is later, the department shall do one of the following:

a. Issue the permit modification as proposed.

b. Deny the permit modification application.

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

d. Revise the draft permit modification and transmit to the administrator the new proposed permit modification as required by 9VAC5-80-690 A.

F. The following requirements apply with respect to the ability of an owner to make minor permit modification changes:

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

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

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

G. The permit shield under 9VAC5-80-500 shall not extend to minor permit modifications.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-580 Group processing of minor permit modifications

A. Group processing of modifications may be used only for those permit modifications that meet both of the following:

1. Permit modifications that meet the criteria for minor permit modification procedures under 9VAC5-80-570 A.

2. Permit modifications that collectively are below the threshold level as follows: 10% of the emissions allowed by the permit for the emissions unit for which the change is requested, 20% of the applicable definition of major source in 9VAC5-80-370, or five tons per year, whichever is least.

B. An application requesting the use of group processing procedures shall meet the requirements of 9VAC5-80-440 for the proposed modifications and shall include all of the following:

1. A description of the change, the emissions resulting from the change, and any new applicable federal requirements that will apply if the change occurs.

2. A suggested draft permit prepared by the applicant.

3. Certification by a responsible official, consistent with 9VAC5-80-430 G, that the proposed modification meets the criteria for use of group processing procedures and a request that such procedures be used.

4. A list of the source's other pending applications awaiting group processing and a determination of whether the requested modification, aggregated with these other applications, equals or exceeds the threshold set under subdivision A 2 of this section.

5. Certification, consistent with 9VAC5-80-430 G, that the source has notified the administrator of the proposed modification. Such notification need contain only a brief description of the requested modification.

6. Completed forms for the department to use to notify the administrator and affected states as required under 9VAC5-80-690.

C. On a quarterly basis or within five business days of receipt of an application demonstrating that the aggregate of the pending applications for the source equals or exceeds the threshold level set under subdivision A 2 of this section, whichever is earlier, the department promptly shall meet its obligation under 9VAC5-80-690 A 1 and B 1 to notify the administrator and affected states of the requested permit modifications. The department shall send any notice required under 9VAC5-80-690 B 2 to the administrator. The public participation requirements of 9VAC5-80-670 shall not extend to group processing of minor permit modifications.

D. The provisions of 9VAC5-80-570 E shall apply to modifications eligible for group processing, except that the department shall take one of the actions specified in 9VAC5-80-570 E 1 through E 4 within 180 days of receipt of the application or 15 days after the end of the 45-day review period under 9VAC5-80-690 C, whichever is later.

E. The provisions of 9VAC5-80-570 F shall apply to modifications eligible for group processing.

F. The permit shield under 9VAC5-80-500 shall not extend to minor permit modifications.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-590 Significant modification procedures

A. Significant modification procedures shall be used for applications requesting permit modifications that do not qualify as minor permit modifications under 9VAC5-80-570 or 9VAC5-80-580 or as administrative amendments under 9VAC5-80-560. Significant modification procedures shall be used for those permit modifications that:

1. Involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

2. Require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts made under 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant Sources), or a visibility or increment analysis carried out under this chapter.

3. Seek to establish or change a permit term or condition for which there is no corresponding underlying applicable federal requirement and that the source has assumed to avoid an applicable federal requirement to which the source would otherwise be subject. Such terms and conditions include:

a. A federally enforceable emissions cap assumed to avoid classification as a Title I modification.

b. An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act (early reduction of hazardous air pollutants).

B. An application for a significant permit modification shall meet the requirements of 9VAC5-80-430 and 9VAC5-80-440 for permit issuance and renewal for the modification proposed and shall include the following:

1. A description of the change, the emissions resulting from the change, and any new applicable federal requirements that will apply if the change occurs.

2. A suggested draft permit prepared by the applicant.

3. Completed forms for the department to use to notify the administrator and affected states as required under 9VAC5-80-690.

C. The provisions of 9VAC5-80-690 shall be carried out for significant permit modifications in the same manner as they would be for initial permit issuance and renewal.

D. The provisions of 9VAC5-80-670 shall apply to applications made under this section.

E. The department shall take final action on significant permit modifications within nine months after receipt of a complete application.

F. The owner shall not make the change applied for in the significant modification application until the modification is approved by the department under subsection E of this section.

G. The provisions of 9VAC5-80-500 shall apply to changes made under this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-600 Permit modifications for affected units

A. The following are permit modifications for affected units:

1. Relaxation of an excess emission offset requirement after approval of the offset plan by the administrator.

2. Incorporation of a final nitrogen oxides alternative emission limitation following a demonstration period.

3. Determinations concerning failed repowering projects under 9VAC5-80-460 F 1 and F 3.

4. At the option of the designated representative submitting the permit revision, the permit revisions listed in 9VAC5-80-610 A.

B. An application for a permit modification for an affected unit shall meet the requirements of 9VAC5-80-430 and 9VAC5-80-440 for permit issuance and renewal for the modification proposed.

C. The provisions of 9VAC5-80-690 shall be carried out for permit modifications for affected units in the same manner as they would be for initial permit issuance and renewal.

D. The provisions of 9VAC5-80-670 shall apply to applications made under this section.

E. The department shall take final action on permit modifications for affected units within nine months after receipt of a complete application.

F. The owner shall not make the change applied for under this section until the modification is approved by the department under subsection E of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-610 Fast-track modifications for affected units

A. The following permit revisions are, at the option of the designated representative submitting the permit revision, either fast-track modifications under this section or permit modifications for affected units under 9VAC5-80-600:

1. Incorporation of a compliance option under 9VAC5-80-450 that the designated representative did not submit for approval and comment during the permit issuance process; except that incorporation of a reduced utilization plan that was not submitted during the permit issuance process, that does not designate a compensating unit, and that meets the requirements of 40 CFR 72.43 may use the administrative permit amendment procedures under 40 CFR 72.83.

2. Changes in a substitution plan or reduced utilization plan that result in the addition of a new substitution unit or a new compensating unit under the plan.

3. Addition of a nitrogen oxides averaging plan to a permit.

4. Changes in a Phase I extension plan, repowering plan, nitrogen oxides averaging plan, or nitrogen oxides compliance deadline extension; and

5. Changes in a thermal energy plan that result in any addition or subtraction of a replacement unit or any change affecting the number of allowances transferred for the replacement of thermal energy.

B. The following requirements apply with respect to service, notification, and public participation:

1. The designated representative shall serve a copy of the fast-track modification on the following at least five days prior to the public comment period specified in subdivisions 2 and 3 of this subsection:

a. The administrator;

b. The department;

c. Affected states; and

d. Persons on a permit mailing list who have requested information on the opportunity for public comment.

2. Within five business days of serving copies of the fast-track modification under subdivision 1 of this subsection, the designated representative shall give public notice of the fast-track modification by publication in a newspaper of general circulation in the area where the source is located or in a state publication designed to give general public notice. The notice shall contain the information listed in 9VAC5-80-670 C 1 a through C 1 h. The notice shall also state that a copy of the fast-track modification is available (i) from the designated representative and (ii) for public inspection during the entire public comment period at the regional office.

3. The public shall have a period of 30 days, commencing on the date of publication of the notice, to comment on the fast-track modification. Comments shall be submitted in writing to the department and to the designated representative.

C. The timetable for issuance shall be as follows:

1. Within 30 days of the close of the public comment period, the department shall consider the fast-track modification and the comments received and approve, in whole or in part or with changes or conditions as appropriate, or disapprove the modification.

2. A fast-track modification shall be effective immediately upon approval and issuance, in accordance with 9VAC5-80-510 B 5.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 14, Issue 2, eff. January 1, 1998; Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-620 Administrative permit amendments for affected units

A. The following permit revisions are administrative permit amendments for affected units:

1. Activation of a compliance option conditionally approved by the department, provided that all requirements for activation under 9VAC5-80-450 C and 9VAC5-80-460 are met.

2. Changes in the designated representative or alternative designated representative, provided that a new certificate of representation is submitted to the administrator in accordance with Subpart B of 40 CFR Part 72.

3. Correction of typographical errors.

4. Changes in names, addresses, or telephone or facsimile numbers.

5. Changes in the owners or operators, provided that a new certificate of representation is submitted within 30 days to the administrator in accordance with Subpart B of 40 CFR Part 72.

6. Termination of a compliance option in the permit, provided that all requirements for termination under 9VAC5-80-450 D shall be met and this procedure shall not be used to terminate a repowering plan after December 31, 1999.

7. Changes in the date, specified in a new unit's acid rain permit, of commencement of operation or the deadline for monitor certification, provided that they are in accordance with 9VAC5-80-420.

8. The addition of or change in a nitrogen oxides alternative emissions limitation demonstration period, provided that the requirements of the 40 CFR Part 76 are met.

9. The addition of a NO_X early election plan that was approved by the administrator under 40 CFR 76.8.

10. The addition of an exemption for which the requirements have been met under 40 CFR 72.7 or 40 CFR 72.8 or which was approved by the department; and

11. Incorporation of changes that the administrator has determined to be similar to those in subdivisions 1 through 8 of this subsection.

B. The following provisions shall apply:

1. The department shall take final action on an administrative permit amendment within 60 days, or, for the addition of an alternative emissions limitation demonstration period, within 90 days, of receipt of the requested amendment and may take such action without providing prior public notice. The source may implement any changes in the administrative permit amendment immediately upon submission of the requested amendment, provided that the requirements of subsection A of this section are met.

2. The department may, on its own motion, make an administrative permit amendment at least 30 days after providing notice to the designated representative of the amendment and without providing any other prior public notice.

3. The department shall designate the permit revision as having been made as an administrative permit amendment. The department shall submit the revised portion of the permit to the administrator.

4. An administrative amendment shall not be subject to the provisions for review by the administrator applicable to a permit modification under 40 CFR 72.81.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-630 Automatic permit amendments for affected units

The following permit revisions shall be deemed to amend automatically, and become a part of the affected unit's acid rain permit by operation of law without any further review:

1. Upon recordation by the administrator under 40 CFR Part 73, all allowance allocations to, transfers to, and deductions from an affected unit's allowance tracking system account.

2. Incorporation of an offset plan that has been approved by the administrator under 40 CFR Part 77.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996.

9VAC5-80-640 Reopening for cause

A. A permit shall be reopened and revised under any of the conditions stated in 9VAC5-80-490 L.

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

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

D. In reopening an acid rain permit, the department shall issue a draft permit changing the provisions, or adding the requirements, for which the reopening was necessary.

E. The following requirements apply with respect to reopenings for cause by EPA:

1. If the administrator finds that cause exists to terminate, modify, or revoke and reissue a permit pursuant to subsection A of this section, the administrator shall notify the department and the permittee of such finding in writing.

2. The department shall, within 90 days after receipt of such notification, forward to the administrator a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The administrator may extend this 90-day period for an additional 90 days if he finds that a new or revised permit application is necessary or that the department must require the permittee to submit additional information.

3. The administrator shall review the proposed determination from the department within 90 days of receipt.

4. The department shall have 90 days from receipt of an objection by the administrator to resolve any objection that he makes and to terminate, modify, or revoke and reissue the permit in accordance with the objection.

5. If the department fails to submit a proposed determination pursuant to subdivision 2 of this subsection or fails to resolve any objection pursuant to subdivision 4 of this subsection, the administrator shall terminate, modify, or revoke and reissue the permit after taking the following actions:

a. Providing at least 30 days' notice to the permittee in writing of the reasons for any such action. This notice may be given during the procedures in subdivisions 1 through 4 of this subsection.

b. Providing the permittee an opportunity for comment on the administrator's proposed action and an opportunity for a hearing.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-650 Malfunction

A. In the event of a malfunction, the owner may demonstrate that the conditions of subsection B of this section are met.

B. The permittee may, through properly signed, contemporaneous operating logs, or other relevant evidence, show the following:

1. A malfunction occurred and the permittee can identify the cause or causes of the malfunction.

2. The permitted facility was at the time being properly operated.

3. During the period of the malfunction the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards, or other requirements in the permit.

4. The permittee notified the department of the malfunction within two working days following the time when the emission limitations were exceeded due to the malfunction. This notification should include a description of the malfunction, any steps taken to mitigate emissions, and corrective actions taken. The notification may be delivered either orally or in writing by any method that allows the permittee to comply with the deadline. This notification fulfills the requirements of 9VAC5-80-490 F 2 b to report promptly deviations from permit requirements. This notification does not release the permittee from the malfunction reporting requirements under 9VAC5-20-180 C.

C. In any enforcement proceeding, the permittee seeking to establish the occurrence of a malfunction shall have the burden of proof.

D. The provisions of this section are in addition to any malfunction, emergency or upset provision contained in any applicable requirement.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 33, Issue 4, eff. November 16, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-660 Enforcement

A. The following general requirements apply:

1. Pursuant to § 10.1-1322 of the Code of Virginia, failure to comply with any condition of a permit shall be considered a violation of the Virginia Air Pollution Control Law.

2. A permit may be revoked or terminated prior to its expiration date if the owner does any of the following:

a. Knowingly makes material misstatements in the permit application or any amendments thereto.

b. Violates, fails, neglects or refuses to comply with (i) the terms or conditions of the permit, (ii) any applicable requirements, or (iii) the applicable provisions of this article.

3. The department may suspend, under such conditions and for such period of time as the department may prescribe, any permit for any of the grounds for revocation or termination contained in subdivision 2 of this subsection or for any other violations of these regulations.

B. The following requirements apply with respect to penalties:

1. An owner who violates, fails, neglects or refuses to obey any provision of this article or the Virginia Air Pollution Control Law, any applicable requirement, or any permit condition shall be subject to the provisions of § 10.1-1316 of the Virginia Air Pollution Control Law.

2. Any owner who knowingly violates, fails, neglects or refuses to obey any provision of this article or the Virginia Air Pollution Control Law, any applicable requirement, or any permit condition shall be subject to the provisions of § 10.1-1320 of the Virginia Air Pollution Control Law.

3. Any owner who knowingly makes any false statement, representation or certification in any form, in any notice or report required by a permit, or who knowingly renders inaccurate any required monitoring device or method shall be subject to the provisions of § 10.1-1320 of the Virginia Air Pollution Control Law.

C. The following requirements apply with respect to appeals:

1. The department shall notify the applicant in writing of its decision, with its reasons, to suspend, revoke or terminate a permit.

2. Appeal from any decision of the department under subdivision 1 of this subsection may be taken pursuant to 9VAC5-20-90, § 10.1-1318 of the Virginia Air Pollution Control Law, and the Administrative Process Act.

3. Appeals of the acid rain portion of a federal operating permit issued by the department that do not challenge or involve decisions or actions of the administrator under §§ 407 and 410 of the federal Clean Air Act and the acid rain program regulations shall be conducted according to the procedures in the Administrative Process Act. Appeals of the acid rain portion of such a permit that challenge or involve such decisions or actions of the administrator shall follow the procedures under 40 CFR Part 78 and § 307 of the federal Clean Air Act. Such decisions or actions include, but are not limited to, allowance allocations, determinations concerning alternative monitoring systems, and determinations of whether a technology is a qualifying repowering technology.

4. No administrative appeal or judicial appeal of the acid rain portion of a federal operating permit shall be allowed more than 90 days following issuance of the acid rain portion that is subject to administrative appeal or issuance of the final agency action subject to judicial appeal.

5. The administrator may intervene as a matter of right in any state administrative appeal of an acid rain permit or denial of an acid rain permit.

6. No administrative appeal concerning an acid rain requirement shall result in a stay of the following requirements:

a. The allowance allocations for any year during which the appeal proceeding is pending or is being conducted;

b. Any standard requirement under 9VAC5-80-420;

c. The emissions monitoring and reporting requirements applicable to the affected units at an affected source under 40 CFR Part 75;

d. Uncontested provisions of the decision on appeal; and

e. The terms of a certificate of representation submitted by a designated representative under Subpart B of 40 CFR Part 72.

7. The department shall serve written notice on the administrator of any state administrative or judicial appeal concerning an acid rain provision of any federal operating permit or denial of an acid rain portion of any federal operating permit within 30 days of the filing of the appeal.

8. The department shall serve written notice on the administrator of any determination or order in a state administrative or judicial proceeding that interprets, modifies, voids, or otherwise relates to any portion of an acid rain permit. Following any such determination or order, the administrator shall have an opportunity to review and veto the acid rain permit or revoke the permit for cause in accordance with 9VAC5-80-690.

D. The existence of a permit under this article shall constitute a defense to a violation of any applicable requirement if the permit contains a condition providing the permit shield as specified in 9VAC5-80-500 and if the requirements of 9VAC5-80-500 have been met. The existence of a permit shield condition shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of other governmental entities having jurisdiction. Otherwise, the existence of a permit under this article shall not constitute a defense of a violation of the Virginia Air Pollution Control Law or the Regulations for the Control and Abatement of Air Pollution and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

E. The following requirements apply with respect to inspections and right of entry:

1. The director, as authorized under § 10.1-1307.3 of the Virginia Air Pollution Control Law and 9VAC5-20-150, has the authority to require that air pollution records and reports be made available upon request and to require owners to develop, maintain, and make available such other records and information as are deemed necessary for the proper enforcement of the permits issued under this article.

2. The director, as authorized under § 10.1-1307.3 of the Virginia Air Pollution Control Law, has the authority, upon presenting appropriate credentials to the owner, to do the following:

a. Enter without delay and at reasonable times any business establishment, construction site, or other area, workplace, or environment in the Commonwealth; and

b. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, without prior notice, unless such notice is authorized by the department or its representative, any such business establishment or place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and question privately any such employer, officer, owner, operator, agent, or employee. If such entry or inspection is refused, prohibited, or otherwise interfered with, the department shall have the power to seek from a court having equity jurisdiction an order compelling such entry or inspection.

F. The department may enforce permits issued under this article through the use of other enforcement mechanisms such as consent orders and special orders. The procedures for using these mechanisms are contained in 9VAC5-20-20 and 9VAC5-20-30 and in §§ 10.1-1307 D, 10.1-1309, and 10.1-1309.1 of the Virginia Air Pollution Control Law.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-670 Public participation

A. Except for modifications qualifying for minor permit modification procedures and administrative permit amendments, draft permits for initial permit issuance, significant modifications, and renewals shall be subject to a public comment period of at least 30 days. The department shall notify the public using the procedures in subsection B of this section.

B. The department shall notify the public of the draft permit or draft permit modification (i) by advertisement in a newspaper of general circulation in the area where the source is located and (ii) through a notice to persons on a permit mailing list who have requested such information of the opportunity for public comment on the information available for public inspection under the provisions of subsection C of this section.

C. The following requirements apply with respect to content of the public notice and availability of information:

1. The notice shall include, but not be limited to, the following:

a. The source name, address and description of specific location.

b. The name and address of the permittee.

c. The name and address of the regional office processing the permit.

d. The activity or activities for which the permit action is sought.

e. The emissions change that would result from the permit issuance or modification.

f. The name, address, and telephone number of a department contact from whom interested persons may obtain additional information, including copies of the draft permit or draft permit modification, the application, and all relevant supporting materials, including the compliance plan.

g. A brief description of the comment procedures required by this section.

h. A brief description of the procedures to be used to request a hearing or the time and place of the public hearing if the director determines to hold a hearing under 9VAC5-80-35 E.

2. Information on the permit application (exclusive of confidential information under 9VAC5-20-150), as well as the draft permit or draft permit modification, shall be available for public inspection during the entire public comment period at the regional office.

D. The department shall provide such notice and opportunity for participation by affected states as is provided for by 9VAC5-80-690.

E. The following requirements apply with respect to opportunity for public hearing:

1. The department shall provide an opportunity for a public hearing as described in subdivisions 2 and 3 of this subsection.

2. Following the initial publication of the notice required under subsection B of this section, the department shall receive written requests for a public hearing to contest the draft permit or draft permit modification pursuant to the requirements of 9VAC5-80-35. In order to be considered, the request shall be submitted no later than the end of the comment period. Requests for a public hearing shall contain the following information:

a. The name and postal mailing or email address and telephone number of the requester;

b. The names and addresses of all persons for whom the requester is acting as a representative; for the purposes of this requirement, "person" means an unincorporated association;

c. The reason for the request for a public hearing;

d. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the draft permit or draft permit modification, an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

e. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the Virginia Air Pollution Control Law.

3. The department will review any request made under subdivision 2 of this subsection, and will take final action on the request as provided in 9VAC5-80-510 D.

F. The department shall keep (i) a record of the commenters and (ii) a record of the issues raised during the public participation process so that the administrator may fulfill the administrator's obligation under § 505(b)(2) of the federal Clean Air Act to determine whether a citizen petition may be granted. Such records shall be made available to the public upon request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 14, Issue 2, eff. January 1, 1998; Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-680 Operational flexibility

A. The department shall allow, under conditions specified in this section, operational flexibility changes at a source that do not require a revision to be made to the permit in order for the changes to occur. Such changes shall be classified as follows: (i) those that contravene an express permit term, or (ii) those that are not addressed or prohibited by the permit. The conditions under which the department shall allow these changes to be made are specified in subsections B and C of this section, respectively.

B. The following requirements apply with respect to changes that contravene an express permit term:

1. The following general requirements apply:

a. The department shall allow a change at an affected source that changes a permit condition with the exception of the following:

(1) A Title I modification or a change subject to requirements under Title IV.

(2) A change that would exceed the emissions allowable under the permit.

(3) A change that would violate applicable requirements.

(4) A change that would contravene federally or state enforceable permit terms or conditions or both that are monitoring (including test methods), recordkeeping, reporting, compliance schedule dates or compliance certification requirements.

b. The owner shall provide written notification to the administrator and the department at least seven days in advance of the proposed change. The written notification shall include a brief description of the change within the permitted facility, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change.

c. The owner, department and the administrator shall attach the notice described in subdivision 1 b of this subsection to their copy of the relevant permit.

d. The permit shield under 9VAC5-80-500 shall not extend to any change made pursuant to subdivision 1 of this subsection.

2. The following requirements apply with respect to emission trades within permitted facilities provided for in the Regulations for the Control and Abatement of Air Pollution:

a. With the exception of the changes listed in subdivision 1 a of this subsection, the department shall allow permitted sources to trade increases and decreases in emissions within the permitted facility (i) where the Regulations for the Control and Abatement of Air Pollution provide for such emissions trades without requiring a permit revision and (ii) where the permit does not already provide for such emissions trading.

b. The owner shall provide written notification to the administrator and the department at least seven days in advance of the proposed change. The written notification shall include such information as may be required by the provision in the Regulations for the Control and Abatement of Air Pollution authorizing the emissions trade, including at a minimum the name and location of the facility, when the proposed change will occur, a description of the proposed change, any change in emissions, the permit requirements with which the source will comply using the emissions trading provisions of the Regulations for the Control and Abatement of Air Pollution, and the pollutants emitted subject to the emissions trade. The notice shall also refer to the provisions with which the source will comply in the Regulations for the Control and Abatement of Air Pollution and which provide for the emissions trade.

c. The permit shield described in 9VAC5-80-500 shall not extend to any change made under this subdivision. Compliance with the permit requirements that the source will meet using the emissions trade shall be determined according to requirements of the Regulations for the Control and Abatement of Air Pollution.

3. The following requirements apply with respect to emission trades within affected sources to comply with an emissions cap in the permit:

a. If a permit applicant requests it, the department shall issue permits that contain terms and conditions, including all terms required under 9VAC5-80-490 to determine compliance, allowing for the trading of emissions increases and decreases within the permitted facility solely for the purpose of complying with a federally enforceable emissions cap that is established in the permit independent of otherwise applicable federal requirements. The permit applicant shall include in the application proposed replicable procedures and permit terms that ensure that the emissions trades are quantifiable and enforceable. The department shall not include in the emissions trading provisions any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades. The permit shall also require compliance with all applicable requirements.

b. The department shall not allow a change to be made under subdivision 3 of this subsection if it is a change listed in subdivision 1 of this subsection.

c. The owner shall provide written notification to the administrator and the department at least seven days in advance of the proposed change. The written notification shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.

d. The permit shield under 9VAC5-80-500 shall extend to terms and conditions that allow such increases and decreases in emissions.

C. The following requirements apply with respect to changes that are not addressed or prohibited by the permit:

1. The department shall allow the owner to make changes that are not addressed or prohibited by the permit unless the changes are subject to the requirements for Title I modifications or the requirements under Title IV.

2. Each change shall meet all applicable requirements and shall not violate any existing permit term or condition which is based on applicable federal requirements.

3. Sources shall provide contemporaneous written notice to the department and the administrator of each change, except for changes to emissions units deemed insignificant and listed in 9VAC5-80-720 A. Such written notice shall describe each change, including the date, any change in emissions, pollutants emitted, and any applicable federal requirement that would apply as a result of the change.

4. The change shall not qualify for the permit shield under 9VAC5-80-500.

5. The permittee shall keep a record describing changes made at the source that result in emissions of a regulated air pollutant subject to an applicable federal requirement but not otherwise regulated under the permit, and the emissions resulting from those changes.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-690 Permit review by EPA and affected states

A. The following requirements apply with respect to transmission of information to the administrator:

1. The department shall provide to the administrator a copy of each permit application (including any application for permit modification), each proposed permit, and each final permit issued under this article.

2. The department shall keep for five years such records and submit to the administrator such information as the administrator may reasonably require to ascertain whether the Virginia program complies with the requirements of the federal Clean Air Act or of 40 CFR Part 70.

B. The following requirements apply with respect to review by affected states:

1. The department shall give notice of each draft permit to any affected state on or before the time that the department provides this notice to the public under 9VAC5-80-670, except to the extent that 9VAC5-80-570 or 9VAC5-80-580 requires the timing of the notice to be different.

2. The department, as part of the submittal of the proposed permit to the administrator (or as soon as possible after the submittal for minor permit modification procedures allowed under 9VAC5-80-570 or 9VAC5-80-580), shall notify the administrator and any affected state in writing of any refusal by the department to accept recommendations for the proposed permit that the affected state submitted during the public or affected state review period. The notice shall include the reasons why the department will not accept a recommendation. The department shall not be obligated to accept recommendations that are not based on applicable federal requirements or the requirements of this article.

C. The following requirements apply with respect to objections by EPA:

1. No permit for which an application must be transmitted to the administrator under subsection A of this section shall be issued if the administrator objects to its issuance in writing within 45 days of receipt of the proposed permit and all necessary supporting information.

2. Any objection by the administrator under subdivision 1 of this subsection shall include a statement of the reasons for the objection and a description of the terms and conditions that the permit must include to respond to the objection. The administrator shall provide the permit applicant a copy of the objection.

3. Failure of the department to do any of the following also shall constitute grounds for an objection:

a. Comply with subsection A or B of this section or both.

b. Submit any information necessary to review adequately the proposed permit.

c. Process the permit under the public comment procedures in 9VAC5-80-670 except for minor permit modifications.

4. If, within 90 days after the date of an objection under subdivision 1 of this subsection, the department fails to revise and submit a proposed permit in response to the objection, the administrator shall issue or deny the permit in accordance with the requirements of 40 CFR Part 71.

D. The following requirements apply with respect to public petitions to the administrator:

1. If the administrator does not object in writing under subsection C of this section, any person may petition the administrator within 60 days after the expiration of the 45-day review period for the administrator to make such objection.

2. Any such petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided for in 9VAC5-80-670, unless the petitioner demonstrates that it was impracticable to raise such objections within such period, or unless the grounds for such objection arose after such period.

3. If the administrator objects to the permit as a result of a petition filed under subdivision 1 of this subsection, the department shall not issue the permit until the objection has been resolved, except that a petition for review does not stay the effectiveness of a permit or its requirements if the permit was issued after the end of the 45-day review period and prior to an objection by the administrator.

4. If the department has issued a permit prior to receipt of an objection by the administrator under subdivision 1 of this subsection, the administrator shall modify, terminate, or revoke such permit, and shall do so consistent with the procedures in 9VAC5-80-640 E 4 or E 5 a and b except in unusual circumstances, and the department may thereafter issue only a revised permit that satisfies the administrator's objection. In any case, the source shall not be in violation of the requirement to have submitted a timely and complete application.

E. No permit (including a permit renewal or modification) shall be issued by the department until affected states and the administrator have had an opportunity to review the proposed permit as required under this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-700 Voluntary inclusions of additional state-only requirements as applicable state requirements in the permit

A. Upon the request of an applicant, any requirement of any regulation of the board (other than any requirement that is a federal applicable requirement) may be included as an applicable state requirement in a permit issued under this article.

B. If the applicant chooses to make a request under subsection A of this section, the provisions of this article pertaining to applicable state requirements shall apply.

C. The request under subsection A of this section shall be made by including the citation and description of any applicable requirement not defined as such in this article in the permit application submitted to the department under 9VAC5-80-440 E.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-705 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; repealed, Virginia Register Volume 17, Issue 4, eff. January 1, 2001.

Article 4 Insignificant Activities

9VAC5-80-710 General

Article 4 Insignificant Activities

A. For the purposes of Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.) and Article 3 (9VAC5-80-360 et seq.) of this chapter, insignificant activities shall be those activities listed in 9VAC5-80-720. There are three categories of insignificant activities as follows:

1. Insignificant emissions units. This category includes emissions units that are deemed insignificant because they are sufficiently small so as to be considered insignificant for the purpose of identifying the emissions units in permit applications. Emissions units in this category are not required to be included in permit applications submitted pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this chapter. Insignificant activities falling into this category are listed in 9VAC5-80-720 A.

2. Emissions units with insignificant emissions levels. This category includes emissions units, other than those in subdivision A 1 of this section, that are deemed insignificant because they have emissions levels sufficiently small so as to be considered insignificant for the purpose of quantifying the emissions from the emissions units in a permit application. Emissions units emitting at these insignificant levels are required to be identified by listing them as insignificant emissions units in the permit application submitted pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this chapter. The list of insignificant emissions units shall also specify the pollutant or pollutants emitted at insignificant emissions levels for each emissions unit on the list. However, information on the amount of emissions from these units is not required to be provided. Insignificant activities in this category are listed in 9VAC5-80-720 B.

3. Emissions units of an insignificant size or production rate. This category includes emissions units, other than those in subdivision 1 or 2 of this subsection, that are deemed insignificant because the emissions from these units are considered to be of minimal or no air quality concern for the purpose of quantifying the emissions from the emissions units in a permit application. Emissions units in this category are required to be identified by listing them as insignificant emissions unit in the permit application submitted pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this chapter. The list of insignificant emissions units shall also specify the size or the production rate for each emissions unit on the list. Insignificant activities in this category are listed in 9VAC5-80-720 C.

4. Regardless of the emissions units designated in 9VAC5-80-720 A, B, or C, the emissions from any emissions unit should be included in the permit application submitted pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this chapter if the omission of those emissions units would interfere with the determination of applicability of Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this chapter, the determination of or imposition of any applicable requirement, or the calculation of permit fees.

B. Definitions.

1. For the purpose of this article and subsequent amendments issued by the board, the words or terms shall have the meanings given them in subdivision 2 of this subsection. As used in this article, all terms not defined here shall have the meanings given them in 9VAC5 Chapter 10 (9VAC5-10-10 et seq.), unless otherwise required by context.

2. Terms defined.

"Uncontrolled emissions" means the emissions from a source when operating at maximum capacity without air pollution control equipment. Air pollution control equipment includes control equipment which is not vital to its operation, except that its use enables the source to conform to applicable air pollution control laws and regulations. Annual uncontrolled emissions shall be based on the maximum annual rated capacity (based on 8,760 hours of operation per year) of the source, unless the source is subject to state and federally enforceable permit conditions which limit the annual hours of operation. Enforceable permit conditions on the type or amount of material combusted or processed may be used in determining the uncontrolled emissions of a source. Secondary emissions do not count in determining the uncontrolled emissions of a stationary source.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996.

9VAC5-80-720 Insignificant activities

A. Insignificant activities include the following emissions units:

1. Gas flares or flares used solely to indicate danger to the public.

2. Ventilation systems not used to remove air contaminants generated by or released from specific units of equipment.

3. Air-conditioning units used for human comfort that do not have applicable requirements under Title VI of the Act.

4. Portable heaters which can reasonably be relocated through the manual labor of one person.

5. Portable electrical generators that can be moved by hand from one location to another.

6. Space heaters operating by direct heat or radiant heat transfer, or both.

7. Office activities and the equipment and implements used to carry out these activities, such as typewriters, printers, and pens.

8. Tobacco smoking rooms and areas.

9. Interior maintenance activities and the equipment and supplies used to carry out these activities, such as janitorial cleaning products and air fresheners, but not cleaning of production equipment.

10. Architectural maintenance and repair activities conducted to take care of the buildings and structures at the facility, including repainting, reroofing and sandblasting, where no structural repairs are made in conjunction with the installation of new or permanent facilities.

11. Repair or maintenance shop activities not related to the source's primary business activity, not including emissions from surface coating or degreasing (solvent metal cleaning) activities, and not otherwise triggering a permit modification.

12. Exterior maintenance activities conducted to take care of the grounds of the source, including lawn maintenance.

13. Internal combustion engines used for dry-cleaning and steam boilers.

14. Laundry activities, except for dry-cleaning and steam boilers.

15. Bathroom and locker room ventilation and maintenance.

16. Copying and duplication activities for internal use and support of office activities at the source.

17. Blueprint copiers and photographic processes used as an auxiliary to the principal equipment at the source.

18. Equipment used solely for the purpose of preparing food to be eaten on the premises of industrial and manufacturing operations.

19. Equipment used exclusively to slaughter animals, but not including other equipment at slaughterhouses, such as rendering cookers, boilers, heating plants, incinerators, and electrical power generating equipment.

20. Safety devices.

21. Air contaminant detectors and test equipment.

22. Brazing, soldering or welding equipment used as an auxiliary to the principal equipment at the source.

23. The engine of any vehicle, including but not limited to any marine vessel, any vehicle running upon rails or tracks, any motor vehicle, any forklift, any tractor, or any mobile construction equipment, including any auxiliary engine that provides cooling or refrigeration of the vehicle.

24. Fugitive emissions related to movement of passenger vehicles, provided the emissions are not counted for applicability purposes and any required fugitive dust control plan or its equivalent is submitted.

25. Emergency road flares.

26. Firefighting equipment and the equipment used to train firefighters.

27. Fire suppression systems.

28. Laboratories used solely for the purpose of quality control or environmental compliance testing that are associated with manufacturing, production or other industrial or commercial facilities.

29. Laboratories in primary and secondary schools and in schools of higher education used for instructional purposes.

30. Bench-scale laboratory equipment used for physical or chemical analysis, but no lab fume hoods or vents.

31. Routine calibration and maintenance of laboratory equipment or other analytical instruments.

32. Air compressors and pumps (engines for these emissions units are covered separately under subdivision C 1 of this section).

33. Pneumatically operated equipment, including hand tools.

34. Emergency (backup) electrical generators at residential locations.

35. Dumpster.

36. Grinding or abrasive blasting for nondestructive testing of metals.

37. Dryers and distribution systems for instrument air.

38. Parts washer (water-based).

39. Electric or steam-heated drying ovens and autoclaves, but not the emissions from the articles or substances being processed in the ovens or autoclaves or the boilers delivering the steam.

40. Salt baths using nonvolatile salts that do not result in emissions of any regulated air pollutants.

41. Dispensing facilities for refueling diesel-powered vehicles or equipment, including any diesel fuel storage tank serving only such dispensing facility, to the extent that this activity is not regulated by § 111 or § 112 of the federal Clean Air Act.

42. Storage tanks, vessels, and containers holding or storing liquid substances that will not emit any volatile organic compound or hazardous air pollutant.

43. Storage tanks, reservoirs, and pumping and handling equipment of any size containing soaps, vegetable oil, grease, animal fat, and nonvolatile aqueous salt solutions, provided appropriate lids and covers are utilized.

44. Equipment used to mix and package soaps, vegetable oil, grease, animal fat, and nonvolatile aqueous salt solutions, provided appropriate lids and covers are utilized.

45. Laboratory analytical equipment and vents except at stationary sources primarily engaged in research and development.

46. Equipment used for quality control/assurance or inspection purposes, including sampling equipment used to withdraw materials for analysis.

47. Nonroutine clean out of tanks and equipment for the purposes of worker entry or in preparation for maintenance or decommissioning.

48. Sampling connections and systems used exclusively to withdraw materials for testing and analysis including air contaminant detectors and vent lines.

49. Vents from continuous emission monitors and other analyzers.

50. Maintenance activities such as hand-held or manually operated maintenance equipment, railroad track maintenance, repair and maintenance cleaning, and maintenance surface preparation activities.

51. Hand-held equipment for buffing, polishing, cutting, drilling, sawing, grinding, turning, or machining wood, metal, or plastic.

52. Carbon monoxide lasers used only on metals and other materials which do not use hazardous air pollutants in the process.

53. Hand-held applicator equipment for hot melt adhesives with no volatile organic compounds in the adhesive formulation.

54. Equipment used for surface coating, painting, dipping, or spraying operations, except those that emit volatile organic compounds or hazardous air pollutants.

55. Drop hammers or hydraulic presses for forging or metalworking.

56. Blacksmith forges.

57. Solvent storage cabinet (containers covered).

58. Cooling ponds.

59. Coal pile run-off ponds.

60. Mechanical drive or gear boxes.

61. Equipment for steam cleaning or brushing dust off equipment.

62. Repair of residential units.

63. Farm equipment, with the exception of grain elevators or combustion devices not already listed as insignificant activities.

64. Water tanks.

65. Hydroblasting.

66. Hydraulic and hydrostatic testing equipment.

67. Process raw water treatment (e.g., phosphate).

68. Process water filtration systems and demineralizers.

69. Demineralized water tanks and demineralizer vents.

70. Ozone generators.

71. Water cooling tower except for systems including contact process water or water treated with chromium-based chemicals.

72. Spill collection tanks.

73. Steam vents and leaks from boilers and steam distribution systems.

74. Boiler water treatment operations, except cooling towers and those involving use of hydrazine.

75. Oxygen scavenging (de-aeration) of water.

76. Herbicide mixing and application activities not involving herbicide manufacture.

77. Nonhazardous boiler cleaning solutions.

78. Portable or mobile containers.

79. Vent or exhaust system for:

a. Transformer vaults and buildings;

b. Electric motor and control panel vents; and

c. Deaerators and decarbonators.

80. Vents or stacks for sewer lines or enclosed areas required for safety or by code.

81. Pump seals.

82. Rupture discs for gas handling systems.

83. Molasses storage tanks.

84. Storage of substances in closed drums, barrels or bottles.

85. Purging of natural gas lines.

86. Natural gas pressure regulator vents, excluding venting at oil and gas production facilities.

87. Blanking, chopping, trimming, perforating, repacking, and inspecting in connection with plastics manufacturing processes.

88. Consumer use of paper trimmers/binders.

89. Laser trimmers using dust collection to prevent fugitive emissions.

90. Sealed batteries such as those used for emergency backup power supplies.

91. Batteries and battery charging stations, except at battery manufacturing plants.

92. Parking lot resurfacing.

93. Environmental chambers not using hazardous air pollutant gases.

94. Shock chambers.

95. Humidity chambers.

96. Solar simulators.

97. Relief valves, excluding air pollution equipment bypass valves.

98. Steam vents and safety relief valves.

99. Steam leaks.

100. Steam cleaning operations.

101. Steam sterilizers.

B. Insignificant activities include emissions units, other than those listed in subsection A of this section, with the following emissions levels:

1. Emissions units with uncontrolled emissions of less than five tons per year of nitrogen dioxide, sulfur dioxide, or particulate matter (PM₁₀). Particulate matter emissions shall be used to determine uncontrolled emissions for purposes of this subsection only if particulate matter (PM₁₀) emissions cannot be quantified in a manner acceptable to the department. If the particulate matter (PM₁₀) emissions for any unit can be quantified in a manner acceptable to the department, that unit shall be deemed insignificant for particulate matter;

2. Emissions units with uncontrolled emissions of less than five tons per year of volatile organic compounds;

3. Emissions units with uncontrolled emissions of less than five tons per year of carbon monoxide;

4. Emissions units with uncontrolled emissions of less than 0.6 tons per year of lead;

5. Emissions units with uncontrolled emissions of hazardous air pollutants at or below 1,000 pounds per year;

6. Emissions units with uncontrolled emissions of any pollutant regulated under subpart C of 40 CFR Part 68 if those emissions are below the accidental release threshold levels set forth at 40 CFR 68.130 or 1,000 pounds per year, whichever is less.

C. Insignificant activities include emissions units, other than those listed in subsection A or B of this section, with the following sizes or production rates:

1. Internal combustion engines used for standby service, including compressors and pumps used for emergency replacement and portable generators, as follows:

a. Engines burning diesel fuel (maximum 0.5% sulfur) with 259,000 Btu per hour input or less;

b. Engines burning gasoline with 18,200 Btu per hour input or less.

2. Fuel burning equipment or combustion units with heat input levels less than:

a. 10 million Btu per hour rated input, using natural gas;

b. 1 million Btu per hour rated input, using distillate oil (maximum 0.5% sulfur).

3. Reservoirs and storage tanks for lubricant or used oil with a capacity of less than 1,000 gallons.

4. Internal combustion powered generators used at a facility only when power is unavailable to the facility from the utility as follows:

a. Diesel-fueled turbine emergency generators of 780 horsepower or less;

b. Diesel-fueled reciprocating emergency generators of 645 horsepower or less;

c. Natural gas-fueled turbine emergency generators of 1,240 horsepower or less;

d. Natural gas-fueled reciprocating emergency generators of 840 horsepower or less;

e. Dual-fueled reciprocating emergency generators of 840 horsepower or less.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 25, eff. October 15, 1996; amended, Virginia Register Volume 17, Issue 4, eff. January 1, 2001; Volume 39, Issue 5, eff. November 23, 2022.

Article 5 State Operating Permits

9VAC5-80-800 Applicability

A. Within the limits of subsection C of this section, the provisions of this article apply to the operation of any stationary source or emissions unit of a regulated air pollutant.

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

C. Permits may be issued under this article in situations including, but not limited to, the following:

1. At the request of any owner:

a. To designate a stationary source or emissions unit as a synthetic minor;

b. To combine a stationary source's or emissions unit's requirements under multiple permits into one permit; or

c. To implement emissions trading requirements.

2. At the discretion of the department:

a. To cap the emissions of a stationary source or emissions unit contributing to a violation of any air quality standard; or

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

D. A permit may be issued under this article regardless of other permits in force provided that it does not contravene any provision of any of the other permits.

E. For permits issued pursuant to the provisions of subdivision C 2 of this section, a permit application is not required from the stationary source or emissions unit, and the provisions of 9VAC5-80-830 and 9VAC5-80-860 do not apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-810 Definitions

A. For the purpose of this article and subsequent amendments or any orders issued by the department, the words or terms shall have the meaning given them in subsection C of this section.

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

C. Terms defined.

"Actual emissions" means the actual rate of emissions of a pollutant from any stationary source or emissions unit. In general, actual emissions as of a particular date shall equal the highest annual rate, in tons per calendar year, at which the stationary source or emissions unit actually emitted a pollutant during the consecutive five-year period which precedes the particular date and which is representative of normal stationary source or emissions unit operation. The department may allow the use of a different historical time period upon a determination that it is more representative of normal stationary source or emissions unit operation. Actual emissions shall be calculated using the stationary source's or emissions unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

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

1. Applicable emission standards;

2. The emission limitation specified as a state or federally enforceable permit condition, including those with a future compliance date; or

3. Any other applicable emission limitation, including those with a future compliance date.

"Complete application" or "complete request" means that the application or request contains all the information necessary for processing the application or request. Designating an application or request complete for purposes of permit processing does not preclude the department from requesting or accepting additional information.

"Contributing to a violation" means, in reference to the potential of a stationary source or emissions unit to emit any of the following pollutants, an air quality impact greater than any of the following amounts:

Carbon monoxide -- 500 μg/m³, 8-hour average

Carbon monoxide -- 2,000 μg/m³, 1-hour average

Nitrogen dioxide -- 1 μg/m³, annual average

PM₁₀ -- 1 μg/m³, annual average

PM₁₀ -- 5 μg/m³, 24-hour average

Sulfur dioxide -- 1 μg/m³, annual average

Sulfur dioxide -- 5 μg/m³, 24-hour average

Sulfur dioxide -- 25 μg/m³, 3-hour average

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

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

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

1. Are permanent.

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

3. Do not allow a relaxation of a requirement of the implementation plan.

4. Are technically accurate and quantifiable.

5. Identify an averaging time that allows at least monthly (or a shorter period if necessary to be consistent with the implementation plan) checks on compliance.

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

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

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

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

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

3. All terms and conditions in an operating permit issued pursuant to a program approved by the U.S. Environmental Protection Agency in accordance with 40 CFR Part 70, including any provisions that limit a source's potential to emit, unless expressly designated as not federally enforceable.

4. Limitations and conditions that are part of the implementation plan.

5. Limitations and conditions that are part of a permit issued under the new source review program.

6. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by the U.S. Environmental Protection Agency into an implementation plan as meeting the U.S. Environmental Protection Agency's minimum criteria for federal enforceability, including adequate notice and opportunity for the U.S. Environmental Protection Agency and public comment prior to issuance of the final permit and practicable enforceability.

7. Limitations and conditions in a regulation of the board or in a Virginia program that has been approved by the U.S. Environmental Protection Agency under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

8. Individual consent agreements that the U.S. Environmental Protection Agency has legal authority to create.

"General permit" means a permit issued under this article that meets the requirements of 9VAC5-80-1030.

"Major stationary source" means any stationary source which emits, or has the potential to emit, 100 tons or more per year of any regulated air pollutant.

"New source" means any stationary source (or portion of it), the construction or relocation of which commenced on or after March 17, 1972, and any stationary source (or portion of it), the reconstruction of which commenced on or after December 10, 1976.

"New source review program" means a program for the preconstruction review and permitting of new sources or emissions units or expansions to existing ones in accordance with regulations promulgated to implement the requirements of §§ 110(a)(2)(C), 165 (relating to permits in prevention of significant deterioration areas) and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act.

"Nonattainment condition" means a condition where any area is shown by air quality monitoring data or which is shown by an air quality impact analysis (using modeling or other methods determined by the department to be reliable) to exceed the levels allowed by the ambient air quality standard for a given pollutant, regardless of whether such demonstration is based on current or future emissions data.

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

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

"Regulated air pollutant" means any of the following:

1. Nitrogen oxides or any volatile organic compound.

2. Any pollutant for which an ambient air quality standard has been promulgated.

3. Any pollutant subject to any standard promulgated under § 111 of the federal Clean Air Act.

4. Any Class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act concerning stratospheric ozone protection.

5. Any pollutant subject to a standard promulgated under or other requirements established under § 112 of the federal Clean Air Act concerning hazardous air pollutants and any pollutant regulated under Subpart C of 40 CFR 68.

6. Any pollutant subject to a regulation adopted by the board.

7. Any pollutant subject to regulation under the Virginia Air Pollution Control Law.

"Secondary emissions" means emissions which would occur as a result of the construction or operation of a major stationary source, but do not come from the major stationary source itself. Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source. Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

"State-enforceable" means all limitations and conditions which are enforceable as a practical matter, including those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order, regulation of the board, or variance, and any permit requirements established pursuant to 9VAC5 Chapter 80 (9VAC5-80-10 et seq.).

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-820 General

A. The department may issue permits whose applicability is limited to one specific pollutant or to multiple specific pollutants emitted by a stationary source or emissions unit. It may also issue permits whose applicability is limited to one specific emissions unit or multiple specific emissions units within a stationary source. The issuance of such permits may occur in any of the situations specified in 9VAC5-80-800 C.

B. The department may combine the requirements of and the permits for emissions units within a stationary source or emissions unit subject to 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) into one permit. The department may likewise combine the requirements of and applications for permits for emissions units within a stationary source or emissions unit required by 9VAC5 Chapter 80 (9VAC5-80-10 et seq.) into one application.

C. Permits issued under the provisions of Article 6 (9VAC5-80-1100 et seq.), Article 8 (9VAC5-80-1700 et seq.), or Article 9 (9VAC5-80-2000 et seq.) of this part may be considered as having met the requirements of this article but shall be subject to the provisions of 9VAC5-80-950, 9VAC5-80-960, 9VAC5-80-970, 9VAC5-80-980, 9VAC5-80-990, 9VAC5-80-1000, and 9VAC5-80-1010.

D. No provision of regulations of the board shall limit the power of the department to issue an operating permit pursuant to this article in order to remedy a condition that may cause or contribute to the endangerment of human health or welfare.

E. Any decisions of the department made pursuant to this article may be appealed pursuant to Part VIII (9VAC5-170-190 et seq.) of 9VAC5 Chapter 170.

F. In order for a permit issued pursuant to this article to be federally enforceable, the following conditions shall be met:

1. The permit shall include a legal obligation that the permittee adhere to the terms and limitations of the permit.

2. The permit shall conform to the requirements of this article and to the requirements of any regulations of the U.S. Environmental Protection Agency that form the basis for this article.

3. The permit shall contain emission limits, controls, and other requirements that are at least as stringent as any applicable limitations and requirements contained in the implementation plan or enforceable under the implementation plan.

4. The emission limits, controls, and other requirements of the permit shall be permanent, quantifiable, and enforceable as a practical matter.

5. The permit shall be issued subject to the public participation requirements of 9VAC5-80-1020.

6. A copy of the proposed (draft) and final permit shall be sent to the U.S. Environmental Protection Agency on a timely basis.

G. Notwithstanding the provisions of subsection F of this section, no provision of this article shall be interpreted to prevent the department from issuing a permit that is not federally enforceable and, if appropriate, seeking approval of the permit under the then-current regulations and policies of the U.S. Environmental Protection Agency.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-830 Applications

A. For permits issued under the provisions of 9VAC5-80-800 C 1, a single complete application is required identifying each emissions unit to be covered by the permit. The application shall be submitted according to procedures approved by the department. Where several units are included in one stationary source, a single complete application shall be submitted covering all units which are to be permitted in the stationary source. A separate complete application is required for each stationary source.

B. Any application form, report, or compliance certification submitted to the department shall meet the requirements of 9VAC5-20-230.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-840 Application information required

A. The department shall furnish application forms to applicants.

B. Each application for a permit under the provisions of 9VAC5-80-800 C 1 shall include, but not be limited to, the following:

1. Company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager or contact or both.

2. A description of the source's processes and products (by Standard Industrial Classification Code).

3. All emissions of regulated air pollutants.

a. A permit application shall describe all emissions of regulated air pollutants emitted from any emissions unit to be covered by the permit.

b. Emissions shall be calculated as required in the permit application form or instructions.

c. Fugitive emissions shall be included in the permit application to the extent quantifiable.

4. Emissions rates in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method.

5. Information needed to determine or regulate emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.

6. Identification and description of air pollution control equipment and compliance monitoring devices or activities.

7. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated air pollutants at the source.

8. Calculations on which the information in subdivisions 3 through 7 of this subsection is based. Any calculations shall include sufficient detail to permit assessment of the validity of such calculations.

9. Any additional information or documentation that the department deems necessary to review and analyze the air pollution aspects of the stationary source or emissions unit.

C. The above information and analysis shall be determined and presented according to procedures and using methods acceptable to the department.

D. For permits issued pursuant to the provisions of 9VAC5-80-800 C 2, the provisions of subsections A and B of this section do not apply.

E. For permits issued pursuant to the provisions of 9VAC5-80-800 C 2, the department may request any information or documentation that it deems necessary to review and analyze the air pollution aspects of the stationary source or emissions unit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-850 Standards and conditions for granting permits

A. A permit may be granted pursuant to this article if it is shown to the satisfaction of the department that the following standards and conditions will be met:

1. The stationary source or emissions unit shall operate without causing a violation of the applicable provisions of regulations of the board;

2. The stationary source or emissions unit shall be in compliance with all applicable emission standards or meet the provisions of any administrative enforcement mechanism issued pursuant to 9VAC5-170-120; and

3. The stationary source or emissions unit shall operate in conformance with any applicable control strategy, including any emission standards or emission limitations, in the implementation plan in effect at the time that an application is submitted so as not to prevent or interfere with the attainment or maintenance of any applicable ambient air quality standard.

B. Permits may be granted to stationary sources or emissions units located in nonattainment areas provided the requirements of subdivisions A 1 and 2 of this section are met.

C. Permits granted pursuant to this article may contain emission standards as necessary to implement the provisions of this article. The following criteria shall be met in establishing emission standards to the extent necessary to assure that emissions levels are enforceable as a practical matter:

1. Standards shall be based on averaging time periods for the standards as appropriate based on applicable air quality standards, any emission standard applicable to the emissions unit prior to the date the permit is issued, or the operation of the emissions unit, or any combination thereof. The emission standards may include the level, quantity, rate, or concentration or any combination of them for each affected pollutant.

2. In no case shall a standard result in emissions which would exceed the lesser of the following:

a. Allowable emissions for the emissions unit based on emission standards applicable prior to the date the permit is issued; or

b. The emission rate based on the potential to emit of the emissions unit.

3. Emission standards shall only include limitations that are determined by the department to be achievable through application of production processes or available methods, systems, and techniques, including, but not limited to, any of the following: emissions control equipment, fuel cleaning or treatment, fuel combustion techniques, or substitution of less toxic or nontoxic materials.

4. The standard may prescribe, as an alternative to or a supplement to an emission limitation, an equipment, work practice, fuels specification, process materials, maintenance, or operational standard, or any combination of them.

D. In consideration of the factors specified below, the owner may propose and the department may establish an alternative emission standard provided the owner demonstrates to the satisfaction of the department that it meets the standards and conditions in subsection A and subdivision C 2 of this section and is enforceable as a practical matter.

1. The impact upon the ability of the stationary source or emissions unit to operate in a competitive and efficient manner.

2. The previous efforts to reduce actual emissions taken at the owner's initiative.

3. The technological and economic practicality of reducing emissions.

4. The impact upon the availability and cost of fuels and process materials.

E. An emission standard may be changed to allow an increase in emissions level provided the amended standard meets the requirements of subsection A of this section and the increased emissions levels would not make the stationary source or emissions unit subject to the new source review program.

F. Operating permits issued under this article may contain, but not be limited to, any the following elements as necessary to ensure that the permits are enforceable as a practical matter:

1. Emission standards as set out in this section.

2. Conditions necessary to enforce emission standards. Conditions to provide enforceability may include, but not be limited to, the following:

a. Limit on fuel sulfur content;

b. Limit on production rates with time frames as appropriate to support the emission standards in this section;

c. Limit on raw material usage rate; and

d. Limits on the minimum required capture, removal and overall control efficiency for any air pollution control equipment.

3. Specifications for permitted equipment, identified as thoroughly as possible. The identification shall include, but not be limited to, type, rated capacity, and size.

4. Specifications for air pollution control equipment installed or to be installed and the circumstances under which such equipment shall be operated.

5. Specifications for air pollution control equipment operating parameters, where necessary to ensure that the required overall control efficiency is achieved. The operating parameters may include, but not be limited to, the following:

a. Pressure indicators and required pressure drop;

b. Temperature indicators and required temperature;

c. pH indicators and required pH; and

d. Flow indicators and required flow.

6. Requirements for proper operation and maintenance of any pollution control equipment, and appropriate spare parts inventory.

7. Stack test requirements.

8. Reporting or recordkeeping requirements, or both.

9. Continuous emission or air quality monitoring requirements, or both.

10. Compliance schedules.

11. Other requirements as may be necessary to ensure compliance with the applicable state and federal regulations.

G. Permits granted pursuant to this article shall contain terms and conditions to the extent necessary to ensure that:

1. The permit meets the requirements of this article;

2. The permit is enforceable as a practical matter; and

3. The permittee adheres to the terms and conditions of the permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-860 Action on permit application

A. After receipt of an application or any additional information, the department shall advise the applicant in writing of any deficiency in such application or information no later than 30 days after receipt of the application or additional information.

B. The department will normally process an application according to the steps specified in subdivisions 1 through 5 of this subsection. Processing time for these steps is normally 90 days following receipt of a complete application. If a public comment period is required, processing time is normally 180 days following receipt of a complete application. The department may extend this time period if additional information is needed.

1. Complete the preliminary review and analysis in accordance with 9VAC5-80-870 and the preliminary determination of the department;

2. Inspect the stationary source or emissions unit, provided an inspection has not been conducted within the last six months;

3. When required, complete the public participation requirements in accordance with 9VAC5-80-1020;

4. Consider the public comments received in accordance with 9VAC5-80-1020; and

5. Complete the final review and analysis and the final determination of the department.

C. The department will normally take final action on an application after completion of the steps in subsection B of this section except in cases where a public hearing to provide the opportunity for interested persons to contest the application is granted pursuant to 9VAC5-80-35. The department will review any request made under 9VAC5-80-1020 C, and will take final action on the request and application as provided in Part I (9VAC5-80-5 et seq.) of this chapter.

D. The department shall issue the permit or notify the applicant in writing of its decision, with its reasons, not to issue the permit.

E. Within five days after receipt of the permit pursuant to subsection B of this section, the applicant shall maintain the permit on the premises for which the permit has been issued and shall make the permit immediately available to the department upon request.

F. Appeals of decisions rendered pursuant to this article shall follow the procedures outlined in Part VIII (9VAC5-170-190 et seq.) of 9VAC5-170 (Regulation for General Administration).

G. In granting a permit pursuant to this section, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit pursuant to this section, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-870 Application review and analysis

A. No permit shall be granted pursuant to this article unless compliance with the standards in 9VAC5-80-850 is demonstrated to the satisfaction of the department by a review and analysis of the application performed on a source-by-source basis as specified below:

1. Applications shall be subject to a control technology review to determine if each emissions unit that is to be permitted within the stationary source is equipped to comply with all applicable emission standards.

2. Applications may be subject to an air quality analysis to determine the impact of pollutant emissions.

B. If the department has reason to believe that a source may be in violation of an air quality standard, it may require an air quality impact model. All applications of air quality modeling involved in any air quality analysis required by this article shall be based on the applicable air quality models, data bases, and other requirements specified in Appendix W to 40 CFR Part 51.

C. Where an air quality impact model specified in Appendix W to 40 CFR Part 51 is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis, or, where appropriate, on a generic basis for a specific state program. Written approval of the department must be obtained for any modification or substitution. In addition, use of a modified or substituted model shall be subject to notice and opportunity for public comment under 9VAC5-80-1020.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-880 Compliance determination and verification by testing

A. The department may require owners of sources subject to this article to conduct such tests as are necessary to determine the type or amount or both of the pollutants emitted from the stationary source or emissions unit or whether the stationary source or emissions unit will be in compliance with any provisions of any regulation of the board. Such tests shall be conducted in a manner acceptable to the department.

B. The requirements under subsection A of this section shall be carried out in accordance with the provisions contained in Part I (9VAC5-40-10 et seq.) of 9VAC5 Chapter 40, Part I (9VAC5-50-10 et seq.) of 9VAC5 Chapter 50, and Part I (9VAC5-60-10 et seq.) of 9VAC5 Chapter 60, as applicable, or by other means acceptable to the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-890 Monitoring requirements

A. The department may require owners of stationary sources subject to this article to install, calibrate, operate and maintain equipment for continuously monitoring and recording emissions or process parameters or both, and establish and maintain records, and make periodic emission reports as the department may prescribe. These requirements shall be conducted in a manner acceptable to the department.

B. The requirements under subsection A of this section shall be carried out in accordance with the provisions contained in Part I (9VAC5-40-10 et seq.) of 9VAC5 Chapter 40, Part I (9VAC5-50-10 et seq.) of 9VAC5 Chapter 50, and Part I (9VAC5-60-10 et seq.) of 9VAC5 Chapter 60, as applicable, or by other means acceptable to the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-900 Reporting requirements

A. The department may require owners of stationary sources subject to this article to establish and maintain records, provide notifications and reports, revise reports, report emission tests or monitoring results in a manner and form and using procedures as the department may prescribe. Any records, notifications, reports, or tests required under this section shall be retained by the owner for at least three years following the date of such records, notifications, reports or tests. If an owner wishes to request the establishment of an average emissions baseline for a period longer than three years, that owner must maintain records for that period.

B. The requirements under subsection A of this section shall be carried out in accordance with the provisions contained in Part I (9VAC5-40-10 et seq.) of 9VAC5 Chapter 40, Part I (9VAC5-50-10 et seq.) of 9VAC5 Chapter 50, and Part I (9VAC5-60-10 et seq.) of 9VAC5 Chapter 60, as applicable, or by other means acceptable to the department.

C. If a stationary source or emissions unit is shut down, the owner shall notify the department within six months of the date the stationary source or emissions unit is shut down and the provisions of 9VAC5-80-950 shall apply.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-910 Existence of permit no defense

The existence of a permit under this article shall not constitute a defense to a violation of the Virginia Air Pollution Control Law or regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998.

9VAC5-80-920 Circumvention

Regardless of the exemptions provided in this article, permits shall be required of owners who circumvent the requirements of this article by causing or allowing a pattern of ownership or development over a geographic area of a stationary source which, except for the pattern of ownership or development, would otherwise require a permit.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998.

9VAC5-80-930 Compliance with local zoning requirements

No provision of this article or any permit issued thereunder shall relieve any owner from the responsibility to comply in all respects with any existing zoning ordinances and regulations in the locality in which the stationary source is located provided, however, that such compliance does not relieve the department of its duty under 9VAC5-170-170 and § 10.1-1307 E of the Virginia Air Pollution Control Law to independently consider relevant facts and circumstances.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-940 Transfer of permits

A. No person shall transfer a permit from one location to another, or from one piece of equipment to another.

B. In the case of a transfer of ownership or name change of a stationary source, the new owner shall abide by any current permit issued to the previous owner or to the same owner under the previous source name. The new owner shall notify the department of the change in ownership or source name or both within 30 days of the transfer or name change.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-950 Termination of permits

A. A permit or any amendment thereof shall be valid for the life of the source unless the department terminates the permit under the conditions of subsections B or C of this section.

B. The department may terminate a permit with the consent of the owner for good cause shown by the owner or on its own motion provided that the termination is accomplished in accordance with the provisions of regulations of the board and the Administrative Process Act.

C. Upon a final determination that a stationary source or emissions unit is shut down permanently, the department shall revoke any permits for that source or emissions unit in accordance with 9VAC5-20-220.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-960 Changes to permits

A. The general requirements for making changes to permits are as follows:

1. Changes to a permit issued under this article shall be made as specified under subsections B and C of this section and 9VAC5-80-970 through 9VAC5-80-1000.

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

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

4. This section shall not be applicable to general permits.

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

1. The permittee may initiate a change to a permit by submitting a written request to the department for an administrative permit amendment, a minor permit amendment or a significant permit amendment. The requirements for these permit revisions can be found in 9VAC5-80-970 through 9VAC5-80-990.

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

C. The department may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-1000.

History

• Statutory Authority: §§ 10.1-1184.1, 10.1-1307, 10.1-1308 and 10.1-1322 of the Code of Virginia; Clean Air Act (§§ 110 and 161); 40 CFR Parts 51 and 52.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-970 Administrative permit amendments

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

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

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

3. Change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department and the requirements of 9VAC5-80-940 have been fulfilled.

4. The combining of permits as provided in 9VAC5-80-800 C 1 b.

B. The administrative permit amendment procedures are as follows:

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

2. The department shall incorporate the changes without providing notice to the public under 9VAC5-80-1020. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-980 Minor permit amendments

A. Minor permit amendment procedures shall be used only for those permit amendments that:

1. Do not violate any applicable regulatory requirement;

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

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

4. Do not seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include:

a. An emissions cap assumed to avoid classification as a modification under the new source review program or § 112 of the federal Clean Air Act; and

b. An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act;

5. Are not modifications under the new source review program or under § 112 of the federal Clean Air Act; and

6. Are not required to be processed as a significant amendment under 9VAC5-80-990; or as an administrative permit amendment under 9VAC5-80-970.

B. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments involving the use of economic incentives, emissions trading, and other similar approaches, to the extent that such minor permit amendment procedures are explicitly provided for in a regulation of the board or a federally-approved program. Minor permit amendment procedures may also be used to require more frequent monitoring or reporting by the permittee or to reduce the level of an emissions cap.

C. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments involving the rescission of a provision of a permit provided there is made by the department and the owner a mutual determination that the provision is rescinded because all of the statutory or regulatory requirements (i) upon which the provision is based or (ii) that necessitated inclusion of the provision are no longer applicable.

D. A request for the use of minor permit amendment procedures shall include all of the following:

1. A description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs.

2. A request that such procedures be used.

E. The public participation requirements of 9VAC5-80-1020 shall not extend to minor permit amendments.

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

1. Issue the permit amendment as proposed.

2. Deny the permit amendment request.

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

G. The requirements for making changes are as follows:

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

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-990 Significant amendment procedures

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

1. Significant amendment procedures shall be used for requests for permit amendments that do not qualify as minor permit amendments under 9VAC5-80-980 or as administrative amendments under 9VAC5-80-970.

2. Significant amendment procedures shall be used for those permit amendments that:

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

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

c. Seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include:

(1) An emissions cap assumed to avoid classification as a modification under the new source review program or § 112 of the federal Clean Air Act.

(2) An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act.

B. A request for a significant permit amendment shall include the following:

1. A description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs.

2. A suggested draft permit prepared by the applicant.

C. The provisions of 9VAC5-80-1020 shall apply to applications made under this section.

D. The department will normally take final action on significant permit amendments within 90 days after receipt of a complete request. If a public comment period is required, processing time for a request is normally 180 days following receipt of a complete request except in cases where a public hearing to provide the opportunity for interested persons to contest the request is granted pursuant to 9VAC5-80-35. The department may extend this time period if additional information is needed.

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1000 Reopening for cause

A. A permit may be reopened and revised in any of the following situations:

1. Additional regulatory requirements or changes to existing requirements become applicable to emissions units or pollutants covered by the permit.

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

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

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1010 Enforcement

A. Permits issued under this article shall be subject to such terms and conditions set forth in the permit as the department may deem necessary to ensure compliance with all applicable standards.

B. Regardless of the provisions of 9VAC5-80-950, the department may revoke any permit if the permittee:

1. Knowingly makes material misstatements in the permit application or any amendments to it;

2. Fails to comply with the terms or conditions of the permit;

3. Fails to comply with any emission standards applicable to an emissions unit included in the permit;

4. Causes emissions from the stationary source or emissions unit which result in violations of, or interfere with the attainment and maintenance of, any ambient air quality standard; or fails to operate in conformance with any applicable control strategy, including any emission standards or emission limitations, in the implementation plan in effect at the time that an application is submitted; or

5. Fails to comply with the applicable provisions of Article 6 (9VAC5-80-1100 et seq.), Article 8 (9VAC5-80-1700 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of this part.

C. The department may suspend, under such conditions and for such period of time as the department may prescribe, any permit for any of the grounds for revocation contained in subsection B of this section or for any other violations of regulations of the board.

D. Violation of regulations of the board shall be grounds for revocation of permits issued under this article and are subject to the civil charges, penalties and all other relief contained in Part I (9VAC5-20-10 et seq.) of 9VAC5 Chapter 20 and §§ 10.1-1309, 10.1-1311 and 10.1-1316 of the Virginia Air Pollution Control Law.

E. The department shall notify the applicant in writing of its decision, with its reasons, to change, suspend or revoke a permit.

F. Nothing in the regulations of the board shall be construed to prevent the department and the owner from making a mutual determination that a permit is invalid or revoked prior to any final decision rendered under subsection B of this section.

G. Nothing in the regulations of the board shall be construed to prevent the department and the owner from making a mutual determination that a permit is rescinded because all of the statutory or regulatory requirements (i) upon which the permit is based or (ii) that necessitated issuance of the permit are no longer applicable.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1020 Public participation

A. Prior to the decision of the department, permit applications for permits containing provisions that are necessary for the permit to be federally enforceable shall be subject to a public comment period of at least 30 days.

B. When a public comment period is required, the department shall notify the public, by advertisement in at least one newspaper of general circulation in the affected air quality control region, of the opportunity for public comment on the information available for public inspection under the provisions of subsection A of this section. The notification shall be published at least 30 days prior to the day of the public hearing.

1. Information on the permit application (exclusive of confidential information under 9VAC5-170-60), as well as the preliminary review and analysis and preliminary determination of the department, shall be available for public inspection during the entire public comment period in at least one location in the affected air quality control region.

2. A copy of the notice shall be sent to all affected local air pollution control agencies, to all states sharing the affected air quality control region, to the regional administrator of the U.S. Environmental Protection Agency, and to any other governmental entity required to be notified under state or federal law or regulation.

C. Following the initial publication of the notice required under subsection B of this section, the department will receive written requests for a public hearing to contest the preliminary determination of the department pursuant to the requirements of 9VAC5-80-35. In order to be considered, the request shall be submitted no later than the end of the comment period. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative; for the purposes of this requirement, "person" includes an unincorporated association;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, amendment, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the Virginia Air Pollution Control Law.

D. The department will review any request made under subsection C of this section, and will take final action on the request as provided in 9VAC5-80-860 C.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1030 General permits

A. The requirements for issuance of a general permit regulation are as follows:

1. The board may issue a general permit regulation covering a stationary source or emissions unit category containing numerous similar stationary sources or emissions units that meet the following criteria:

a. All stationary sources or emissions units in the category shall be essentially the same in terms of operations and processes and emit either the same pollutants or those with similar characteristics.

b. Stationary sources or emissions units shall not be subject to case-by-case standards or requirements.

c. Stationary sources or emissions units shall be subject to the same or substantially similar requirements governing operation, emissions, monitoring, reporting, or recordkeeping.

2. Stationary sources or emissions units subject to a general permit shall comply with all requirements applicable to other permits issued under this article.

3. General permit regulations shall (i) identify the criteria by which stationary sources or emissions units may qualify for the general permit and (ii) describe the process for stationary sources or emissions units to use in applying for the general permit.

4. General permit regulations shall be issued in accordance with § 2.2-4006 A 9 of the Administrative Process Act.

5. In addition to fulfilling the requirements specified by law, the notice of public comment shall include, but not be limited to, the following:

a. The name, address and telephone number of a department contact from whom interested persons may obtain additional information including copies of the draft general permit regulation.

b. The criteria to be used in determining which stationary sources or emissions units qualify for the general permit.

c. A brief description of the stationary source or emissions unit category that the department believes qualifies for the general permit including, but not limited to, an estimate of the number of individual stationary sources or emissions units in the category.

d. A narrative statement of the estimated air quality impact contributed by the stationary source or emissions unit category covered by the general permit including information regarding specific pollutants and the total quantity of each emitted pollutant and the type and quantity of fuels used, if applicable.

e. A brief description of the application process to be used by stationary sources or emissions units to request coverage under the general permit regulation.

f. A brief description of the comment procedures required by 9VAC5-80-1020.

B. The requirements for application for a general permit are as follows:

1. Stationary sources or emissions units that would qualify for a general permit shall apply to the department for coverage under the terms of the general permit regulation. Stationary sources or emissions units that do not qualify for a general permit shall apply for coverage under a permit issued under the other provisions of this article.

2. The application shall meet the requirements of this article and include all information necessary to determine qualification for and to assure compliance with the general permit.

3. Stationary sources or emissions units that become subject to the general permit after it is issued to other stationary sources or emissions units in the category addressed by the general permit shall file an application with the department using the application process described in the general permit. The department shall issue the general permit to the stationary source or emissions unit if it determines that the stationary source or emissions unit meets the criteria set out in the general permit.

C. The requirements for issuance of a general permit are as follows:

1. The department shall grant the conditions and terms of the general permit to stationary sources or emissions units that meet the criteria set out in the general permit covering the specific stationary source or emissions unit category.

2. The issuance of a permit to a stationary source or emissions unit covered by a general permit shall not require compliance with the public participation procedures under 9VAC5-80-1020.

3. A response to each general permit application may not be provided. The general permit regulation may specify a reasonable time period after which a stationary source or emissions unit that has submitted a complete application shall be deemed to be authorized to operate under the general permit.

4. Stationary sources or emissions units covered under a general permit may be issued a letter, a certificate, or a summary of the general permit provisions, limits, and requirements, or any other document which would attest that the stationary source or emissions unit is covered by the general permit.

5. The general permit regulation shall specify where the general permit and the letter, certificate, summary or other document shall be maintained by the source.

D. The requirements for enforcement of a general permit are as follows:

1. The stationary source or emissions unit shall be subject to enforcement action under 9VAC5-80-1010 for operation without a permit issued under this article if the stationary source or emissions unit is later determined by the department or the administrator not to qualify for the conditions and terms of the general permit.

2. The act of granting or denying a request for authorization to operate under a general permit shall not be subject to judicial review.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1040 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 11, eff. April 1, 1998; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Article 6 Permits for New and Modified Stationary Sources

9VAC5-80-1100 Applicability

A. Except as provided in subsection C of this section, the provisions of this article apply to (i) the construction of any new stationary source or any project (which includes any addition or replacement of an emissions unit, any modification to an emissions unit or any combination of these changes), and (ii) the reduction of any stack outlet elevation at any stationary source.

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

C. Except as provided in subdivision 3 of this subsection, the provisions of this article do not apply to any stationary source, emissions unit or facility that is exempt under the provisions of 9VAC5-80-1105.

1. Exemption from the requirement to obtain a minor NSR permit shall not relieve any owner of the responsibility to comply with any other applicable provisions of regulations of the board or any other applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

2. Any stationary source, emissions unit or facility which is exempt from the provisions of this article based on the criteria in 9VAC5-80-1105 but which exceeds the applicability thresholds for any applicable emission standard in 9VAC5-40 (Existing Stationary Sources) if it were an existing source or any applicable standard of performance in 9VAC5-50 (New and Modified Stationary Sources) shall be subject to the more restrictive of the provisions of either the emission standard in 9VAC5-40 (Existing Stationary Sources) or the standard of performance in 9VAC5-50 (New and Modified Stationary Sources).

3. Any new stationary source or project that would be subject to the provisions of this article except for being exempt based on one or more of the criteria in 9VAC5-80-1105 may opt to be subject to this article notwithstanding the exemptions in 9VAC5-80-1105. The provisions of this article shall apply to the new stationary source or project as if the applicable exemption criteria did not apply. Opting in to the minor NSR program shall not affect the applicability of such exemptions to any subsequent project.

D. Except as provided in 9VAC5-80-1105 C 3 and D 3, fugitive emissions of a stationary source, to the extent quantifiable, shall be included in determining whether it is subject to this article.

E. Where construction of a new stationary source or a project is accomplished in contemporaneous increments that individually are not subject to approval under this article and that are not part of a program of construction of a new stationary source or project in planned incremental phases approved by the department, all such increments shall be added together for determining the applicability of any particular change under the provisions of this article. An incremental change is contemporaneous with the particular change only if it occurs between the date five years before commencing construction on the particular change and the date that the emissions increase from the particular change occurs.

F. Regardless of the exemptions provided in this article, no owner or other person shall circumvent the requirements of this article by causing or allowing a pattern of ownership or development over a geographic area of a stationary source which, except for the pattern of ownership or development, would otherwise require a minor NSR permit.

G. No provision of this article shall be construed as exempting any stationary source or emissions unit from the provisions of the major new source review program. Accordingly, no provision of the major new source review program regulations shall be construed as exempting any stationary source or emissions unit from this article.

H. Unless specified otherwise, the provisions of this article are applicable to various sources as follows:

1. Provisions referring to "sources" or "stationary sources" are applicable to the construction, relocation, replacement, or modification of all stationary sources (including major stationary sources and major modifications) and the emissions from them to the extent that such sources and their emissions are not subject to the provisions of the major new source review program.

2. Provisions referring to "major stationary sources" are applicable to the construction, relocation, or replacement of all major stationary sources subject to this article. Provisions referring to "major modifications" are applicable to major modifications of major stationary sources subject to this article.

3. In cases where the provisions of the major new source review program conflict with those of this article, the provisions of the major new source review program shall prevail.

4. Provisions referring to "state and federally enforceable" or "federally and state enforceable" or similar wording shall mean "state-only enforceable" for terms and conditions of a minor NSR permit designated state-only enforceable under 9VAC5-80-1120 F.

I. For sources subject to the federal hazardous air pollutant new source review program, the provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and the applicable article of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources). Implementation of the federal hazardous air pollutant new source review program shall be independent of applicability and exemption criteria of this article. Additional details may be found in subdivisions 1, 2, and 3 of this subsection. Minor NSR permits shall be the administrative mechanism for issuing approvals under the provisions of federal hazardous air pollutant new source review program. Except as noted below, in cases where there are differences between the provisions of this article and the provisions of federal hazardous air pollutant new source review program, the more restrictive provisions shall apply. The provisions of 9VAC5-80-1150 and 9VAC5-80-1160 shall not apply to sources subject to the federal hazardous air pollutant new source review program. Other sections of this article also provide requirements relative to the application of this article to sources subject to the federal hazardous air pollutant new source review program, in which case those provisions shall prevail. This subsection applies only to the extent that the provisions of the federal hazardous air pollutant new source review program are not being implemented by other new source review program regulations of the board.

1. The provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07, 40 CFR 61.08 and 40 CFR 61.15 for issuing approvals of the construction of any new source or modification of any existing source subject to the provisions of 40 CFR Part 61. These provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and Article 1 (9VAC5 60 60 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

2. The provisions of 40 CFR 63.5 for issuing approvals to construct a new source or reconstruct a source subject to the provisions of 40 CFR Part 63, except for Subparts B, D, and E. These provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

3. The provisions of 40 CFR 63.50 through 40 CFR 63.56 for issuing Notices of MACT Approval prior to the construction of a new emissions unit. These provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60. Any information regarding how minor NSR permits are to be issued to a source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program under the provisions of this article may be found in Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

4. The provisions of 40 CFR 63.40 through 40 CFR 63.44 for issuing approvals to construct a new source or reconstruct a source listed in the source category schedule for standards and to construct a new major source or reconstruct a major source even if the source category is not listed in the source category schedule for standards. These provisions of the federal hazardous air pollutant new source review program shall not be implemented through this article but shall be implemented through Article 7 (9VAC5-80-1400 et seq.) of this part.

J. Unless otherwise approved by the department or prescribed in the regulations of the board, when this article is amended, the previous provisions of this article shall remain in effect for all applications that are deemed complete under the provisions of 9VAC5-80-1160 B prior to November 7, 2012,. Any minor NSR permit applications that have not been determined to be complete as of November 7, 2012, shall be subject to the new provisions of this article.

K. The provisions of 40 CFR Parts 60, 61, and 63 cited in this article apply only to the extent that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5-50 (New and Modified Sources) and Article 1 (9VAC5-60-60 et seq.) and Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

L. The provisions of 40 CFR Parts 51, 58, 60, 61, and 63 cited in this article apply only to the extent that they are incorporated by reference in 9VAC5-20-21.

M. Particulate matter (PM_2.5) emissions and particulate matter (PM₁₀) emissions shall include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures. On or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM_2.5 and PM₁₀ in minor NSR permits. Compliance with emissions limitations for PM_2.5 and PM₁₀ issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 6, eff. December 31, 2008; Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1105 Permit exemptions

A. The general requirements for minor NSR permit exemptions are as follows:

1. The provisions of this article do not apply to the following stationary sources or emissions units:

a. The construction of any stationary source or emissions unit that is exempt under the provisions of subsections B through F of this section. In determining whether a source is exempt from the provisions of this article, the provisions of subsections B, C, and D of this section are independent from the provisions of subsections E and F of this section. A source must be determined to be exempt both under the provisions of subsections B, C, and D of this section taken as a group and under the provisions of subsections E and F of this section to be exempt from this article.

b. Vegetative waste recycling/mulching operations that do not exceed 2100 hours of operation in any 12-month consecutive period at a single stationary source. To qualify as an exemption under this subdivision, the total rated capacity of all diesel engines at the source, including portable diesel engines temporarily located at the site, may not exceed 1200 brake horsepower (output).

c. The location of a portable emissions unit at a site subject to the following conditions:

(1) Any new emissions from the portable emissions unit are secondary emissions.

(2) The portable emissions unit is either subject to (i) a minor NSR permit authorizing the emissions unit as a portable emissions unit subject to this subdivision or (ii) a general permit.

(3) The emissions of the portable emissions unit at the site would be temporary.

(4) The portable emissions unit would not undergo modification or replacement that would be subject to this article.

(5) The portable emissions unit is suitable to the area in which it is to be located.

(6) Reasonable notice is given to the department prior to locating the emissions unit to the site identifying the proposed site and the probable duration of operation at the site. Such notice shall be provided to the department not less than 15 days prior to the date the emissions unit is to be located at the site unless a different notification schedule is previously approved by the department.

d. The reactivation of a stationary source unless a determination concerning shutdown has been made pursuant to the provisions of 9VAC5-20-220.

e. The use by any existing stationary source or emissions unit of an alternative fuel or raw material, if the following conditions are met:

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

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

2. The provisions of this article do not apply to the following stationary sources or emissions units provided the stationary source or emissions unit (i) is exempt under the provisions of subsections E and F of this section and (ii) meets any other applicable criteria or conditions set forth in this subdivision.

a. Replacement of an emissions unit subject to the following criteria:

(1) The replacement emissions unit is (i) of an equal or lesser size and (ii) of an equal or lesser rated capacity as compared to the replaced emissions unit.

(2) The replacement emissions unit is functionally equivalent to the replaced emissions unit.

(3) The replacement emissions unit does not change the basic design parameters of the process operation.

(4) The potential to emit of the replacement emissions unit does not exceed the potential to emit of the replaced emissions unit. If the replaced emissions unit is subject to terms and conditions contained in a minor NSR permit, the owner may, concurrently with the notification required in subdivision (6) of this subdivision, request a minor amendment as provided in 9VAC5-80-1280 B 4 to that permit to apply those terms and conditions to the replacement emissions unit. However, the replacement emissions unit's potential to emit is not limited for the purposes of this subdivision unless (and until) the requested minor permit amendment is granted by the department.

(5) The replaced emissions unit is either removed or permanently shut down in accordance with the provisions of 9VAC5-20-220.

(6) The owner notifies the department, in writing, of the proposed replacement at least 15 days prior to commencing construction on the replacement emissions unit. Such notification shall include the size, function, and rated capacity of the existing and replacement emissions units and the registration number of the affected stationary source.

b. A reduction in stack outlet elevation, provided that the stack serves only facilities that have been previously determined to be exempt from the minor NSR program.

3. In determining whether a facility is exempt from the provisions of this article under the provisions of subsection B of this section, the definitions in 9VAC5-40 (Existing Stationary Sources) that would cover the facility if it were an existing source shall be used unless deemed inappropriate by the department.

4. Any owner claiming that a facility is exempt from this article under the provisions of this section shall keep records as may be necessary to demonstrate to the satisfaction of the department that the facility was exempt at the time a minor NSR permit would have otherwise been required under this article.

B. Facilities as specified in this subsection shall be exempt from the provisions of this article.

1. Fuel burning equipment units (external combustion units, not engines and turbines) and space heaters in a single application as follows:

a. Except as provided in subdivision b of this subdivision, the exemption thresholds in subdivisions (1) through (4) of this subdivision shall be applied on an individual unit basis for each fuel type.

(1) Using solid fuel with a maximum heat input of less than 1,000,000 Btu per hour.

(2) Using liquid fuel with a maximum heat input of less than 10,000,000 Btu per hour.

(3) Using liquid and gaseous fuel with a maximum heat input of less than 10,000,000 Btu per hour.

(4) Using gaseous fuel with a maximum heat input of less than 50,000,000 Btu per hour.

b. In ozone nonattainment areas designated in 9VAC5-20-204 or ozone maintenance areas designated in 9VAC5-20-203, the exemption thresholds in subdivision 1 a of this subsection shall be applied in the aggregate for each fuel type.

2. Engines and turbines that do not individually exceed 500 hours of operation per year at a single stationary source and that are used only (i) during an emergency, for required maintenance, or for operability and emissions testing or (ii) as provided by 9VAC5-80-1111 as follows. All engines and turbines in a single application must also meet the following criteria to be exempt.

a. Gasoline engines with an aggregate rated brake (output) horsepower of less than 910 hp and gasoline engines powering electrical generators having an aggregate rated electrical power output of less than 611 kilowatts.

b. Diesel engines with an aggregate rated brake (output) horsepower of less than 1,675 hp and diesel engines powering electrical generators having an aggregate rated electrical power output of less than 1125 kilowatts.

c. Combustion gas turbines with an aggregate of less than 10,000,000 Btu per hour heat input (low heating value).

3. Engines that power mobile sources during periods of maintenance, repair, or testing.

4. Volatile organic compound storage and transfer operations involving petroleum liquids and other volatile organic compounds with a vapor pressure less than 1.5 pounds per square inch absolute under actual storage conditions or, in the case of loading or processing, under actual loading or processing conditions; and any operation specified below:

a. Volatile organic compound transfer operations involving:

(1) Any tank of 2,000 gallons or less storage capacity; or

(2) Any operation outside the volatile organic compound emissions control areas designated in 9VAC5-20-206.

b. Volatile organic compound storage operations involving any tank of 40,000 gallons or less storage capacity.

5. Vehicle customizing coating operations, if production is less than 20 vehicles per day.

6. Vehicle refinishing operations.

7. Coating operations for the exterior of fully assembled aircraft or marine vessels.

8. Petroleum liquid storage and transfer operations involving petroleum liquids with a vapor pressure less than 1.5 pounds per square inch absolute under actual storage conditions or, in the case of loading or processing, under actual loading or processing conditions (kerosene and fuel oil used for household heating have vapor pressures of less than 1.5 pounds per square inch absolute under actual storage conditions; therefore, kerosene and fuel oil are not subject to the provisions of this article when used or stored at ambient temperatures); and any operation or facility specified in subdivisions 8 a through 8 e of this subsection:

a. Gasoline bulk loading operations at bulk terminals located outside volatile organic compound emissions control areas designated in 9VAC5-20-206.

b. Gasoline dispensing facilities.

c. Gasoline bulk loading operations at bulk plants:

(1) With an expected daily throughput of less than 4,000 gallons, or

(2) Located outside volatile organic compound emissions control areas designated in 9VAC5-20-206.

d. Account/tank trucks; however, permits issued for gasoline storage/transfer facilities should include a provision that all associated account/tank trucks meet the same requirements as those trucks serving existing facilities.

e. Petroleum liquid storage operations involving:

(1) Any tank of 40,000 gallons or less storage capacity;

(2) Any tank of less than 420,000 gallons storage capacity for crude oil or condensate stored, processed, or treated at a drilling and production facility prior to custody transfer; or

(3) Any tank storing waxy, heavy pour crude oil.

9. Petroleum dry cleaning plants with a total manufacturer rated solvent dryer capacity less than 84 pounds as determined by the applicable new source performance standard in 9VAC5-50-410.

10. Any addition of, relocation of, or change to a woodworking machine within a wood product manufacturing plant, provided the system air movement capacity, expressed as the cubic feet per minute of air, is not increased and maximum control efficiency of the control system is not decreased.

11. Wood sawmills and planing mills primarily engaged in sawing rough lumber and timber from logs and bolts, or resawing cants and flitches into lumber, including box lumber and softwood cut stock; planing mills combined with sawmills; and separately operated planing mills that are engaged primarily in producing surfaced lumber and standard workings or patterns of lumber. This also includes facilities primarily engaged in sawing lath and railroad ties and in producing tobacco hogshead stock, wood chips, and snow fence lath. This exemption does not include any facility that engages in the kiln drying of lumber.

12. Exhaust flares at natural gas and coalbed methane extraction wells.

13. Temporary facilities subject to the following conditions:

a. The operational period of the temporary facility (the period from the date that the first pollutant-emitting operation is commenced to the date of shutdown of the temporary facility) is 12 months or less.

b. The uncontrolled emissions rate of any regulated air pollutant that would be emitted from the temporary facility during the operational period does not exceed the applicable exempt emission rate as set forth in subsection C of this section (exemption rates for new stationary sources) or subsection D of this section (exemption rates for projects). The uncontrolled emission rate may be calculated based upon the total number of hours in the operational period instead of 8760 hours. All temporary facilities that will be co-located at a stationary source shall be considered in the aggregate when calculating the uncontrolled emissions rate under this subdivision 13.

c. Upon completion of the operational period, the temporary facility shall be either (i) shut down in accordance with 9VAC5-20-220 or (ii) returned to its original state and condition unless, prior to the end of the operational period, the owner demonstrates in writing to the satisfaction of the department that the facility is exempt under subsection C of this section (exemption rates for new stationary sources) or subsection D of this section (exemption rates for new stationary projects) using 8760 hours of operation per year.

d. Not less than 30 calendar days prior to commencing the operational period, the owner shall notify the department in writing of the proposed temporary facility and shall provide (i) calculations demonstrating that the temporary facility is exempt under this subdivision 13 and subsections E and F of this section and (ii) proposed dates for commencing the first pollutant-emitting operation and shutdown of the temporary facility.

e. The owner shall provide written notifications to the department of (i) the actual date of commencing the first pollutant-emitting operation and (ii) the actual date of shutdown of the temporary facility. Notifications shall be postmarked or electronically submitted not more than 10 days after such dates.

14. Open pit incinerators subject to 9VAC5-130 (Regulation for Open Burning) and used solely for the purpose of disposal of clean burning waste and debris waste.

15. Poultry, swine, or bovine incinerators located on a farm where all of the following conditions are met:

a. Auxiliary fuels for the incinerator unit shall be limited to natural gas, liquid petroleum gas, or distilled petroleum liquid fuel. Solid fuels, waste materials, or residual petroleum oil products shall not be used to fire the incinerator.

b. The waste incinerated shall be limited to pathological waste (poultry, swine, or bovine remains). Litter and animal bedding or any other waste materials shall not be incinerated.

c. The design burn rate or capacity rate of the incinerator shall be 400 pounds per hour or less of poultry, swine, or bovines. This value shall apply only to the mass of the poultry, swine, or bovines and shall not include the mass of the fuel.

d. The incinerator shall be used solely to dispose of poultry, swine, or bovines originating on the farm where the incinerator is located.

e. The incinerator shall be owned and operated by the owner or operator of the farm where the incinerator is located.

f. The incinerator shall not be charged beyond the manufacturer's recommended rated capacity.

g. Records shall be maintained on site to demonstrate compliance with the conditions for this exemption, including the total amount of pathological waste incinerated and the fuel usage on a calendar year quarterly basis.

C. The exemption of new stationary sources shall be determined as specified in this subsection:

1. New stationary sources with uncontrolled emission rates less than all of the emission rates specified in the table in this subdivision shall be exempt from the provisions of this article. The uncontrolled emission rate of a new stationary source is the sum of the uncontrolled emission rates of the individual affected emissions units. Facilities exempted by subsection B of this section shall not be included in the summation of uncontrolled emissions for purposes of exempting new stationary sources under this subsection.

| Pollutant | Emissions Rate | | --- | --- | | Carbon Monoxide | 100 tons per year (tpy) | | Nitrogen Oxides | 40 tpy | | Sulfur Dioxide | 40 tpy | | Particulate Matter | 25 tpy | | Particulate Matter (PM₁₀) | 15 tpy | | Particulate Matter (PM_2.5) | 10 tpy | | Volatile organic compounds | 25 tpy | | Lead | 0.6 tpy | | Fluorides | 3 tpy | | Sulfuric Acid Mist | 6 tpy | | Hydrogen Sulfide (H₂S) | 9 tpy | | Total Reduced Sulfur (including H₂S) | 9 tpy | | Reduced Sulfur Compounds (including H₂S) | 9 tpy | | Municipal waste combustor organics (measured as total tetra-throughocta-chlorinated dibenzo-p-dioxins and dibenzofurans) | 3.5 x 10^-6 tpy | | Municipal waste combustor metals (measured as particulate matter) | 13 tpy | | Municipal waste combustor acid gases (measured as the sum of SO₂ and HCl) | 35 tpy | | Municipal solid waste landfill emissions (measured as nonmethane organic compounds) | 22 tpy |

2. If the particulate matter (PM₁₀ or PM_2.5) emissions for a stationary source can be determined in a manner acceptable to the department and the stationary source is deemed exempt using the emission rate for particulate matter (PM₁₀ or PM_2.5), the stationary source shall be considered to be exempt for particulate matter (PM). If the emissions of particulate matter (PM₁₀ or PM_2.5) cannot be determined in a manner acceptable to the department, the emission rate for particulate matter (PM) shall be used to determine the exemption status.

3. The provisions of this article do not apply to a new stationary source if all of the emissions considered in calculating the uncontrolled emission rate of the new stationary source are fugitive emissions.

D. The exemption of projects shall be determined as specified in this subsection:

1. A project that would result in increases in uncontrolled emission rates at the stationary source less than all of the emission rates specified in the table in this subdivision shall be exempt from the provisions of this article. The uncontrolled emission rate increase of a project is the sum of the uncontrolled emission rate increases of the individual affected emissions units. Uncontrolled emissions rate decreases are not considered as part of this calculation. Facilities exempted by subsection B of this section shall not be included in the summation of uncontrolled emissions for purposes of exempting projects under this subsection.

| Pollutant | Emissions Rate | | --- | --- | | Carbon Monoxide | 100 tons per year (tpy) | | Nitrogen Oxides | 10 tpy | | Sulfur Dioxide | 10 tpy | | Particulate matter | 15 tpy | | Particulate matter PM₁₀ | 10 tpy | | Particulate matter (PM_2.5) | 6 tpy | | Volatile organic compounds | 10 tpy | | Lead | 0.6 tpy | | Fluorides | 3 tpy | | Sulfuric Acid Mist | 6 tpy | | Hydrogen Sulfide (H₂S) | 9 tpy | | Total Reduced Sulfur (including H₂S) | 9 tpy | | Reduced Sulfur Compounds (including H₂S) | 9 tpy | | Municipal waste combustor organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins and dibenzofurans) | 3.5 x 10^-6 tpy | | Municipal waste combustor metals (measured as particulate matter) | 13 tpy | | Municipal waste combustor acid gases (measured as the sum of SO₂ and HCl) | 35 tpy | | Municipal solid waste landfill emissions (measured as nonmethane organic compounds) | 22 tpy |

2. If the particulate matter (PM₁₀ or PM_2.5) emissions for a stationary source can be determined in a manner acceptable to the department and the stationary source is deemed exempt using the emission rate for particulate matter (PM₁₀ or PM_2.5), the stationary source shall be considered to be exempt for particulate matter (PM). If the emissions of particulate matter (PM₁₀ or PM_2.5) cannot be determined in a manner acceptable to the department, the emission rate for particulate matter (PM) shall be used to determine the exemption status.

3. The provisions of this article do not apply to a project if all of the emissions considered in calculating the uncontrolled emission rate increase of the project are fugitive emissions.

E. Exemptions for stationary sources of toxic pollutants not subject to the federal hazardous air pollutant new source review program shall be as follows:

1. Stationary sources exempt from the requirements of Article 5 (9VAC5-60-300 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) as provided in 9VAC5-60-300 C 1, C 2, C 7, D, or E shall be exempt from the provisions of this article.

2. Facilities as specified in this subdivision shall not be exempt, regardless of size or emission rate, from the provisions of this article.

a. Incinerators, unless (i) the incinerator is used exclusively as air pollution control equipment, (ii) the incinerator is an open pit incinerator subject to 9VAC5-130 (Regulation for Open Burning) and used solely for the disposal of clean burning waste and debris waste, or (iii) the incinerator is a poultry, swine, or bovine incinerator located on a farm and all of the conditions of subdivision B 15 of this section are met.

b. Ethylene oxide sterilizers.

c. Boilers, incinerators, or industrial furnaces as defined in 40 CFR 260.10 and subject to 9VAC20-60 (Hazardous Waste Regulations).

F. This subsection provides information on the extent to which any source category or portion of a source category subject to the federal hazardous air pollutant new source review program may be exempt from the provisions of this article.

1. This subdivision addresses those source categories subject to the provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07, 40 CFR 61.08, and 40 CFR 61.15 that establish the requirements for issuing approvals of the construction of any new source or modification of any existing source subject to the provisions of 40 CFR Part 61. Any source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program shall be exempt from the provisions of this article if specifically exempted from that program by 40 CFR Part 61.

2. This subdivision addresses those source categories subject to the provisions of 40 CFR 63.5 that establish the requirements for issuing approvals to construct a new source or reconstruct a source subject to the provisions of 40 CFR Part 63, except for Subparts B, D, and E. Any source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program shall be exempt from the provisions of this article if specifically exempted from that program by 40 CFR Part 63.

3. This subdivision addresses those source categories subject to the provisions of 40 CFR 63.50 through 40 CFR 63.56 that establish the requirements for issuing notices of MACT approval prior to the construction of a new emissions unit listed in the source category schedule for standards. Any information regarding exemptions for a source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program may be found in Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

4. This subdivision addresses those source categories for which EPA has promulgated a formal determination that no regulations or other requirements need to be established pursuant to § 112 of the federal Clean Air Act in the source category schedule for standards. Any source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program shall be exempt from the provisions of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 3, eff. November 7, 2012; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022; Volume 40, Issue 14, eff. April 11, 2024; Volume 41, Issue 24, eff. June 16, 2025; Volume 41, Issue 23, eff. July 30, 2025.

9VAC5-80-1110 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined in subsection C of this section shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms defined.

"Addition" means the construction of a new emissions unit at or the relocation of an existing emissions unit to a stationary source.

"Affected emissions units" means the following emissions units, as applicable:

1. For a new stationary source, all emissions units.

2. For a project, the added, modified, and replacement emissions units that are part of the project.

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

1. Any standard or other requirement provided for in an implementation plan established pursuant to § 110, 111(d), or 129 of the federal Clean Air Act, including any source-specific provisions such as consent agreements or orders.

2. Any term or condition in any construction permit issued under the new source review program or in any operating permit issued pursuant to the state operating permit program. However, those terms or conditions designated as state-only enforceable pursuant to 9VAC5-80-1120 F or 9VAC5-80-820 G shall not be applicable federal requirements.

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

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

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

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

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

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

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

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

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

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

13. Any standard or other requirement under § 126 (a)(1) and (c) of the federal Clean Air Act.

"Begin actual construction" means initiation of permanent physical on-site construction of an emissions unit. This includes but is not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities that mark the initiation of the change. With respect to the initial location or relocation of a portable emissions unit, this term refers to the delivery of any portion of the portable emissions unit to the site.

"Clean wood" means uncontaminated natural or untreated wood. Clean wood includes (i) byproducts of harvesting activities conducted for forest management or commercial logging or (ii) mill residues consisting of bark, chips, edgings, sawdust, shavings, or slabs. "Clean wood" does not include wood that has been treated, adulterated, or chemically changed in some way; treated with glues, binders, or resins; or painted, stained, or coated.

"Commence," as applied to the construction of an emissions unit, means that the owner has all necessary preconstruction approvals or permits and has either:

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

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

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

"Construction" means fabrication, erection, installation, demolition, relocation, addition, replacement, or modification of an emissions unit that would result in a change in the uncontrolled emission rate.

"Construction waste" means solid waste that is produced or generated during construction, remodeling, or repair of pavements, houses, commercial buildings, and other structures. Construction wastes include but are not limited to, lumber, wire, sheetrock, broken brick, shingles, glass, pipe, concrete, paving materials, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids, and garbage are not construction wastes.

"Debris waste" means wastes resulting from land clearing operations. Debris wastes include but are not limited to, stumps, wood, brush, leaves, soil, and road spoils.

"Demolition waste" means that solid waste that is produced by the destruction of structures or their foundations, or both, and includes the same materials as construction wastes.

"Diesel engine" means, for the purposes of 9VAC5-80-1105 A 1 b, any internal combustion engine that burns diesel or #2 fuel oil to provide power to processing equipment for a vegetative waste recycling/mulching operation.

"Emergency" means a condition that arises from sudden and reasonably unforeseeable events where the primary energy or power source is disrupted or disconnected due to conditions beyond the control of an owner or operator of a facility including:

1. A failure of the electrical grid;

2. On-site disaster or equipment failure;

3. Public service emergencies such as flood, fire, natural disaster, or severe weather conditions; or

4. An ISO-declared emergency, where an ISO emergency is:

a. An abnormal system condition requiring manual or automatic action to maintain system frequency, to prevent loss of firm load, equipment damage, or tripping of system elements that could adversely affect the reliability of an electric system or the safety of persons or property;

b. Capacity deficiency or capacity excess conditions;

c. A fuel shortage requiring departure from normal operating procedures in order to minimize the use of such scarce fuel;

d. Abnormal natural events or man-made threats that would require conservative operations to posture the system in a more reliable state; or

e. An abnormal event external to the ISO service territory that may require ISO action.

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

"Emissions limitation" means a requirement established by the regulations of the board or by the department in a permit, order, or variance that limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emissions reduction, and any design standard, equipment standard, work practice, operational standard, or pollution prevention technique.

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

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

1. Are permanent;

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

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

4. Are technically accurate and quantifiable;

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

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

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

"Federal hazardous air pollutant new source review program" means a program for the preconstruction review and approval of the construction, reconstruction, or modification of any stationary source in accordance with regulations specified below and promulgated to implement the requirements of § 112 (relating to hazardous air pollutants) of the federal Clean Air Act.

1. The provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07, 40 CFR 61.08 and 40 CFR 61.15 for issuing approvals of the construction of any new source or modification of any existing source subject to the provisions of 40 CFR Part 61.

2. The provisions of 40 CFR 63.5 for issuing approvals to construct a new source or reconstruct a source subject to the provisions of 40 CFR Part 63, except for Subparts B, D and E.

3. The provisions of 40 CFR 63.50 through 40 CFR 63.56 for issuing Notices of MACT Approval prior to the construction of a new emissions unit.

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

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

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

3. All terms and conditions, unless expressly designated as state-only enforceable, in a federal operating permit, including any provisions that limit a source's potential to emit.

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

5. Limitations and conditions, unless expressly designated as state-only enforceable, that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA into the implementation plan.

6. Limitations and conditions, unless expressly designated as state-only enforceable, that are part of a state operating permit where the permit and the permit program pursuant to which it was issued meet all of the following criteria:

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

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

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

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

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

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

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

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

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

"Fixed capital cost" means the capital needed to provide all the depreciable components.

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

"General permit" means a permit issued under this article that meets the requirements of 9VAC5-80-1250.

"Hazardous air pollutant" means (i) any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by Subpart C of 40 CFR Part 63, and (ii) incorporated by reference into the regulations of the board in subdivision 1 of 9VAC5-60-92.

"Independent system operator" or "ISO" means a person that may receive or has received by transfer pursuant to § 56-576 of the Code of Virginia any ownership or control of, or any responsibility to operate, all or part of the transmission systems in the Commonwealth.

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

"Major modification" means any project at a major stationary source that would result in a significant emissions increase in any regulated air pollutant. For projects, the emissions increase may take into consideration any state and federally enforceable permit conditions that will be placed in a permit resulting from a permit application deemed complete under the provisions of 9VAC5-80-1160 B.

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

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

"Major stationary source" means any stationary source that emits or has the potential to emit 100 tons or more per year of any regulated air pollutant. For new stationary sources, the potential to emit may take into consideration any state and federally enforceable permit conditions that will be placed in a permit resulting from a permit application deemed complete under the provisions of 9VAC5-80-1160 B.

"Minor new source review (NSR) permit" means a permit issued pursuant to this article.

"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects that are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in this article. The minor NSR program may also be used to implement the terms and conditions described in 9VAC5-80-1120 F 1; however, those terms and conditions shall be state-only enforceable and shall not be applicable federal requirements.

"Modification" means any physical change in, or change in the method of operation of an emissions unit that increases the uncontrolled emission rate of any regulated air pollutant emitted into the atmosphere by the unit or that results in the emission of any regulated air pollutant into the atmosphere not previously emitted. The following shall not be considered physical changes or changes in the method of operation under this definition:

1. Maintenance, repair, and replacement of components that the department determines to be routine for a source type and which does not fall within the definition of "replacement";

2. An increase in the throughput or production rate of a unit, unless previously limited by any state enforceable and federally enforceable permit conditions established pursuant to this chapter, if that increase does not exceed the operating design capacity of that unit;

3. An increase in the hours of operation, unless previously limited by any state enforceable and federally enforceable permit conditions established pursuant to this chapter;

4. Use of an alternative fuel or raw material, unless previously limited by any state enforceable and federally enforceable permit conditions established pursuant to this chapter, if, prior to the date any provision of the regulations of the board becomes applicable to the source type, the emissions unit was designed to accommodate that alternative use. A unit shall be considered to be designed to accommodate an alternative fuel or raw material if provisions for that use were included in the final construction specifications;

5. Use of an alternative fuel or raw material that the emissions unit is approved to use under any new source review permit;

6. The addition, replacement, or use of any system or device whose primary function is the reduction of air pollutants, except when a system or device that is necessary to comply with applicable air pollution control laws, permit conditions, or regulations is replaced by a system or device that the department considers to be less efficient in the control of air pollution emissions;

7. The removal of any system or device whose primary function is the reduction of air pollutants if the system or device is not (i) necessary for the source to comply with any applicable air pollution control laws, permit conditions, or regulations or (ii) used to avoid any applicable new source review program requirement; or

8. A change in ownership at a stationary source.

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

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

"New source review (NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations; and (iii) codified in this article, Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part. The NSR program may also be used to implement the terms and conditions described in 9VAC5-80-1120 F 1; however, those terms and conditions shall be state-only enforceable and shall not be applicable federal requirements.

"New stationary source" means any stationary source to be constructed at or relocated to an undeveloped site.

"Nonroad engine" means any internal combustion engine:

1. In or on a piece of equipment that is self-propelled or serves a dual purpose by both propelling itself and performing another function, such as garden tractors, off-highway mobile cranes and bulldozers;

2. In or on a piece of equipment that is intended to be propelled while performing its function, such as lawnmowers and string trimmers; or

3. That, by itself or in or on a piece of equipment, is portable or transportable, meaning designed to be capable of being carried or moved from one location to another. Indications of transportability include but are not limited to, wheels, skids, carrying handles, dollies, trailers, or platforms.

An internal combustion engine is not a nonroad engine if (i) the engine is used to propel a motor vehicle or a vehicle used solely for competition, or is subject to standards promulgated under § 202 of the federal Clean Air Act; or (ii) the engine otherwise included in subdivision 3 of this definition remains or will remain at a location for more than 12 consecutive months or a shorter period of time for an engine located at a seasonal source.

For purposes of this definition, a location is any single site at a building, structure, facility, or installation. Any engine or engines that replace an engine at a location and that are intended to perform the same or similar function as the engine replaced will be included in calculating the consecutive time period. An engine located at a seasonal source is an engine that remains at a seasonal source during the full annual operating period of the seasonal source. A seasonal source is a stationary source that remains in a single location on a permanent basis (i.e., at least two years) and that operates at the single location approximately three months or more each year. This subdivision does not apply to an engine after the engine is removed from the location.

"Plantwide applicability limitation" or "PAL" means an emissions limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established sourcewide in accordance with 9VAC5-80-1865 or 9VAC5-80-2144.

"PAL permit" means the state operating permit issued by the department that establishes a PAL for a major stationary source.

"Portable," in reference to emissions units, means an emissions unit that is designed to have the capability of being moved from one location to another for the purpose of operating at multiple locations and storage when idle. Indications of portability include but are not limited to, wheels, skids, carrying handles, dolly, trailer, or platform.

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

"Precursor pollutant" means the following:

1. Volatile organic compounds and nitrogen oxides are precursors to ozone.

2. Sulfur dioxide is a precursor to PM_2.5.

3. Nitrogen oxides are presumed to be precursors to PM_2.5in all PM_2.5, unless the department determines that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM_2.5concentrations.

4. Volatile organic compounds and ammonia are presumed not to be precursors to PM_2.5,unless the department determines that emissions of volatile organic compounds or ammonia from sources in a specific area are a significant contributor to that area's ambient PM_2.5 concentrations.

"Process operation" means any method, form, action, operation, or treatment of manufacturing or processing, including any storage or handling of materials or products before, during, or after manufacturing or processing.

"Project" means any change at an existing stationary source consisting of the addition, replacement, or modification of one or more emissions units.

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

"Reactivation" means beginning operation of an emissions unit that has been shut down.

"Reconstruction" means, for the sole purposes of 9VAC5-80-1210 A, B, and C, the replacement of an emissions unit or its components to such an extent that:

1. The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable entirely new unit;

2. The replacement significantly extends the life of the emissions unit; and

3. It is technologically and economically feasible to meet the applicable emission standards prescribed under regulations of the board.

Any determination by the department as to whether a proposed replacement constitutes reconstruction shall be based on:

1. The fixed capital cost of the replacements in comparison to the fixed capital cost of the construction of a comparable entirely new unit;

2. The estimated life of the unit after the replacements compared to the life of a comparable entirely new unit;

3. The extent to which the components being replaced cause or contribute to the emissions from the unit; and

4. Any economic or technical limitations on compliance with applicable standards of performance that are inherent in the proposed replacements.

"Regulated air pollutant" means any of the following:

1. Nitrogen oxides or any volatile organic compound.

2. Any pollutant, including any associated precursor pollutant, for which an ambient air quality standard has been promulgated.

3. Any pollutant subject to any standard promulgated under 40 CFR Part 60.

4. Any pollutant subject to a standard promulgated under or other requirements established under 40 CFR Part 61 and any pollutant regulated under 40 CFR Part 63.

5. Any pollutant subject to a regulation adopted by the board.

"Relocation" means a change in physical location of a stationary source or an emissions unit from one stationary source to another stationary source.

"Replacement" means the substitution of an emissions unit for an emissions unit located at a stationary source, which will thereafter perform the same function as the replaced emissions unit.

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

"Significant" means:

1. In reference to an emissions increase, an increase in potential to emit that would equal or exceed any of the following rates:

a. In ozone nonattainment areas classified as serious or severe in 9VAC5-20-204:

| Pollutant | Emissions Rate | | --- | --- | | Carbon Monoxide | 100 tons per year (tpy) | | Nitrogen Oxides | 25 tpy | | Sulfur Dioxide | 40 tpy | | Particulate Matter (PM) | 25 tpy | | Particulate Matter (PM₁₀) | 15 tpy | | Particulate Matter (PM_2.5) | 10 tpy | | Volatile organic compounds | 25 tpy | | Lead | 0.6 tpy |

b. In all other areas:

| Pollutant | Emissions Rate | | --- | --- | | Carbon Monoxide | 100 tons per year (tpy) | | Nitrogen Oxides | 40 tpy | | Sulfur Dioxide | 40 tpy | | Particulate Matter (PM) | 25 tpy | | Particulate Matter (PM₁₀) | 15 tpy | | Particulate Matter (PM_2.5) | 10 tpy | | Volatile organic compounds | 40 tpy | | Lead | 0.6 tpy |

2. In reference to an emissions increase for a regulated air pollutant not listed in subdivision 1 of this definition, there is no emissions rate that shall be considered significant.

3. If the particulate matter (PM₁₀ or PM_2.5) emissions for a stationary source or emissions unit can be determined in a manner acceptable to the department and the emissions increase is determined to be significant using the emission rate for particulate matter (PM₁₀ or PM_2.5), the stationary source or emissions unit shall be considered to be significant for particulate matter (PM). If the emissions of particulate matter (PM₁₀ or PM_2.5) cannot be determined in a manner acceptable to the department, the emission rate for particulate matter (PM) shall be used to determine whether the emissions increase is significant.

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

"Site" means one or more contiguous or adjacent properties under the control of the same person or of persons under common control.

"Source category schedule for standards" means the schedule (i) issued pursuant to § 112(e) of the federal Clean Air Act for promulgating MACT standards issued pursuant to § 112(d) of the federal Clean Air Act and (ii) incorporated by reference into the regulations of the board in subdivision 2 of 9VAC5-60-92.

"Space heater" means any fixed or portable, liquid or gaseous fuel-fired, combustion unit used to heat air in a space, or used to heat air entering a space, for the purpose of maintaining an air temperature suitable for comfort, storage, or equipment operation. Space heaters do not include combustion units used primarily for the purpose of conditioning or processing raw materials or product, such as driers, kilns, or ovens.

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

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

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

"Stationary source" means any building, structure, facility, or installation that emits or may emit any regulated air pollutant. A stationary source shall include all of the pollutant-emitting activities that belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person or of persons under common control except the activities of any watercraft or any nonroad engine. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "major group" (i.e., that have the same two-digit code) as described in the "Standard Industrial Classification Manual" (see 9VAC5-20-21).

"Synthetic minor source" means a stationary source that otherwise has the potential to emit regulated air pollutants in amounts that are at or above those for major stationary sources, as applicable, but is subject to restrictions such that its potential to emit is less than such amounts for major stationary sources. Such restrictions must be enforceable as a practical matter. The term "synthetic minor source" applies independently for each regulated air pollutant that the source has the potential to emit.

"Temporary facility" means a facility that (i) is operated to achieve a specific objective (such as serving as a pilot test facility, a process feasibility project, or a remediation project) and (ii) does not contribute toward the commercial production of any product or service (including byproduct and intermediate product) during the operational period. Portable emissions units covered by the exemption under 9VAC5-80-1105 A 1 c and facilities used to augment or enable routine production are not considered temporary facilities for the purposes of this definition.

"Toxic pollutant" means any air pollutant (i) listed in § 112(b) of the federal Clean Air Act, as amended by Subpart C of 40 CFR Part 63 and (ii) incorporated by reference into the regulations of the board at subdivision 1 of 9VAC5-60-92, or any other air pollutant that the department determines, through adoption of regulation, to present a significant risk to public health. This term excludes asbestos, fine mineral fibers, radionuclides, and any glycol ether that does not have a TLV®.

"Uncontrolled emission rate" means the emission rate from an emissions unit when operating at maximum capacity without air pollution control equipment. Air pollution control equipment includes control equipment that is not vital to its operation, except that its use enables the owner to conform to applicable air pollution control laws and regulations. Annual uncontrolled emissions shall be based on the maximum annual rated capacity (based on 8,760 hours of operation per year) of the emissions unit, unless the emissions unit or stationary source is subject to state and federally enforceable permit conditions that limit the annual hours of operation. Enforceable permit conditions on the type or amount of material combusted, stored, or processed may be used in determining the uncontrolled emission rate of an emissions unit or stationary source. The uncontrolled emission rate of a stationary source is the sum of the uncontrolled emission rates of the individual emissions units. Secondary emissions do not count in determining the uncontrolled emission rate of a stationary source.

"Undeveloped site" means any site or facility at which no emissions units are located at the time the permit application is deemed complete or at the time the owner begins actual construction, whichever occurs first. An undeveloped site also includes any site or facility at which all of the emissions units have been determined to be shut down pursuant to the provisions of 9VAC5-20-220.

"Vegetative waste" means decomposable materials generated by land clearing activities and includes shrub, bush and tree prunings, bark, brush, leaves, limbs, roots, and stumps. Vegetative waste does not include construction or demolition waste or any combination of them.

"Vegetative waste recycling/mulching operation" means any activity related to size reduction or separating, or both, of clean wood or vegetative waste, or both, by grinding, shredding, chipping, screening, or any combination of them.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 6, eff. December 31, 2008; Volume 29, Issue 3, eff. November 7, 2012; Errata 29:5 VA.R. 1191 November 7, 2012; amended, Virginia Register Volume 30, Issue 12, eff. March 27, 2014; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1111 Emergency generators, certain military installations

Any emergency generator, whether or not located on a military installation as defined in § 15.2-2201 of the Code of Virginia, that has been certified in accordance with 9VAC5-20-230 by the U.S. Department of Defense or relevant branch of the U.S. Armed Forces to the department as mission-critical and essential to the defense of the United States may operate up to 50 hours per year for non-emergency purposes, including planned outages and switch gear and related electrical system testing. Such non-emergency operation shall be consistent with the requirements for emergency engines pursuant to 40 CFR 60.4211(f)(3), 40 CFR 60.4243(d)(3), and 40 CFR 63.6640(f)(3) and (4). Operation for the purposes identified in 9VAC5-80-1105 B 2 (i) shall not count against the 50 hours per year non-emergency operating allowance provided by this section. Each owner of such emergency generator, whether or not located on a military installation as defined in § 15.2-2201 of the Code of Virginia, shall maintain a copy of each certification, or revision thereof, submitted to the department in accordance with 9VAC5-40-50 or 9VAC5-50-50, as applicable. In accordance with 9VAC5-20-230, any certification shall be revised and submitted to the department upon a determination that the provisions of this section no longer apply. These certifications shall be maintained for the life of each applicable emergency generator.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Chapter 344 of the 2025 Acts of Assembly.
• Historical Notes: Derived from Virginia Register Volume 41, Issue 24, eff. June 16, 2025.

9VAC5-80-1120 General

A. No owner or other person shall begin actual construction of, or operate, any new stationary source or any project subject to this article without first obtaining from the department a permit under the provisions of this article. The owner may not construct or operate the stationary source or project contrary to the terms and conditions of that permit.

B. Except as provided in 9VAC5-80-1105 A 1 c, no owner or other person shall relocate any stationary source or emissions unit from one stationary source to another without first obtaining from the department a minor NSR permit to relocate the stationary source or unit.

C. Except as provided in 9VAC5-80-1105 A 2 b, no owner or other person shall reduce the outlet elevation of any stack or chimney which discharges any regulated air pollutant from an emissions unit without first obtaining a minor NSR permit from the department.

D. The department will take actions to combine permit terms and conditions as provided in 9VAC5-80-1255. Actions to combine permit terms and conditions involve relocating the terms and conditions contained in two or more permits issued to single stationary source to a single permit document. Actions to combine permit terms and conditions in and of themselves are not a mechanism for making changes to permits; such actions shall be taken under 9VAC5-80-1260 as explained in subsection E of this section.

E. The department will take actions to make changes to permit terms and conditions as provided in 9VAC5-80-1260. Nothing in this subsection is intended to imply that once an action has been taken to make a change to a permit, the resulting permit change may not be combined with other terms and conditions in a single permit document as provided in subsection D of this section.

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

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

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

G. Nothing in the regulations of the board shall be construed to prevent the department from granting minor NSR permits for programs of construction of a new stationary source or project in planned incremental phases. In such cases, all uncontrolled emission rate increases from all emissions units covered by the program shall be added together for determining the applicability of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1130 [Reserved]

Historical Notes

Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002.

9VAC5-80-1140 Applications

A. A single application is required identifying at a minimum each emissions unit in the new stationary source or the project, or affected by the stack outlet elevation reduction. The application shall be submitted according to procedures acceptable to the department.

B. A separate application is required for each new stationary source or project.

C. For new stationary sources or for projects with phased development, a single application should be submitted covering the entire new stationary source or project.

D. Any application, form, report, or certification submitted to the department shall comply with the provisions of 9VAC5-20-230.

E. Any application submitted pursuant to this article shall contain a certification signed by the applicant as follows:

"I certify that I understand that the existence of a minor new source review permit does not shield the source from potential enforcement of any regulation of the board governing the major new source review program and does not relieve the source of the responsibility to comply with any applicable provision of the major new source review program regulations."

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1150 Application information required

A. The department shall furnish application forms to applicants. Completion of these forms serves as initial registration of stationary sources and emissions units subject to this article.

B. Each application for a minor NSR permit shall include such information as may be required by the department to determine the effect of the new stationary source or emissions unit on the ambient air quality and to determine compliance with any emission standards which are applicable. The information required shall include, but is not limited to, the following:

1. Company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager or contact or both.

2. A description of the source's processes and products (by Standard Industrial Classification Code).

3. All emissions of regulated air pollutants.

a. A minor NSR permit application shall describe all emissions of regulated air pollutants emitted from any emissions unit or group of emissions units in the new stationary source or project or affected by the stack outlet elevation reduction. The permit application shall include a description of all changes in uncontrolled emissions from the project.

b. Emissions shall be calculated as required in the minor NSR permit application form or instructions or in a manner acceptable to the department.

c. Fugitive emissions shall be included in the minor NSR permit application to the extent quantifiable.

4. Emissions rates in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method.

5. Information needed to determine or regulate emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.

6. Identification and description of air pollution control equipment and compliance monitoring devices or activities.

7. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated air pollutants at the source.

8. Calculations on which the information in subdivisions 3 through 7 of this subsection is based. Any calculations shall include sufficient detail to permit assessment of the validity of such calculations.

9. Any additional information or documentation that the department deems necessary to review and analyze the air pollution aspects of the new stationary source or the project, or the stack outlet elevation reduction, including the submission of measured air quality data at the proposed site prior to construction. Such measurements shall be accomplished using procedures acceptable to the department.

C. The above information and analysis shall be determined and presented according to procedures and using methods acceptable to the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1160 Action on permit application

A. Prior to submitting an application for processing under subsections B through F of this section, the owner may request a nonbinding applicability determination as to which particular provisions of the new source review program are applicable. The request for the applicability determination shall include sufficient information as may be necessary for the department to make an applicability determination and may include the same information required for an application. Within 30 days after receipt of a request, the department will (i) notify the applicant of the applicability determination or (ii) provide a determination that the information provided by the owner is insufficient to make an applicability determination, along with the identification of any deficiencies.

B. Within 30 days after receipt of an application, the department will notify the applicant of the status of the application. The notification of the initial determination with regard to the status of the application will be provided by the department in writing and will include (i) a determination as to which provisions of the new source review program are applicable, (ii) the identification of any deficiencies, and (iii) a determination as to whether the application contains sufficient information to begin application review. The determination that the application has sufficient information to begin review is not necessarily a determination that it is complete. Within 30 days after receipt of any additional information, the department will notify the applicant in writing of any deficiencies in such information. The date of receipt of a complete application for processing under subsection C of this section shall be the date on which the department received all required information, including any applicable permit fees, and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met, if applicable.

C. The department will normally process an application according to the steps specified in subdivisions 1 through 4 of this subsection. Processing time for these steps is normally 90 days following receipt of a complete application. If a public hearing is required, processing time is normally 180 days following receipt of a complete application. The department may extend this time period if additional information is needed.

1. Complete the preliminary review and analysis in accordance with 9VAC5-80-1190 and the preliminary determination of the department. This step may constitute the final step if the provisions of 9VAC5-80-1170 concerning public participation are not applicable.

2. When required, complete the public participation requirements in accordance with 9VAC5-80-1170.

3. Consider the public comments received in accordance with 9VAC5-80-1170.

4. Complete the final review and analysis and the final determination of the department.

D. The department will normally take final action on an application after completion of the applicable steps in subsection C of this section and, if applicable, 9VAC5-80-45.

E. The department shall notify the applicant in writing of its decision on the application, including its reasons, and shall also specify the applicable emission standards. These emission standards are applicable during any emission testing conducted in accordance with 9VAC5-80-1200.

F. The applicant may appeal the decision pursuant to Part VIII (9VAC5-170-190 et seq.) of 9VAC5-170 (Regulation for General Administration).

G. Within five days after notification to the applicant pursuant to subsection E of this section, the notification and any comments received pursuant to the public comment period and public hearing shall be made available for public inspection at the same location as was the information in 9VAC5-80-1170 E 1.

H. In granting a permit pursuant to this section, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit pursuant to this section, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1170 Public participation

A. No later than 15 days after receiving the initial determination notification required under 9VAC5-80-1160 B, the applicant for a minor NSR permit for a new major stationary source shall notify the public of the proposed major stationary source in accordance with subsection B of this section.

B. The public notice required by subsection A of this section shall be placed by the applicant in at least one newspaper of general circulation in the affected air quality control region. The notice shall be approved by the department and shall include the following:

1. The source name, location, and type;

2. The pollutants and the total quantity of each that the applicant estimates will be emitted and a brief statement of the air quality impact of such pollutants;

3. The control technology proposed to be used at the time of the publication of the notice; and

4. The name and telephone number of a contact person employed by the applicant who can answer questions about the proposed source.

C. Upon a determination by the department that an alternative plan will achieve the desired results in an equally effective manner, an applicant for a minor NSR permit may implement an alternative plan for notifying the public to that required in subsections A and B of this section.

D. Prior to the decision of the department, minor NSR permit applications as specified below shall be subject to a public comment period of at least 30 days. At the end of the public comment period, a public hearing shall be held in accordance with subsection E of this section.

1. Applications for stationary sources of hazardous air pollutants requiring a case-by-case maximum achievable control technology determination under Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

2. Applications for new major stationary sources and major modifications.

3. Applications for projects that would result in an increase in the potential to emit of any regulated air pollutant that would equal or exceed 100 tons per year, considering any state and federally enforceable permit conditions that will be placed on the source by a minor NSR permit.

4. Applications for new stationary sources or projects that have the potential for public interest concerning air quality issues, as determined by the department. The identification of such sources shall be made using the following nonexclusive criteria:

a. Whether the new stationary source or project is opposed by any person;

b. Whether the new stationary source or project has resulted in adverse media;

c. Whether the new stationary source or project has generated adverse comment through any public participation or governmental review process initiated by any other governmental agency; and

d. Whether the new stationary source or project has generated adverse comment by a local official, governing body, or advisory board.

5. Applications for stationary sources for which any provision of the minor NSR permit is to be based upon a good engineering practice (GEP) stack height that exceeds the height allowed by subdivisions 1 and 2 of the GEP definition. The demonstration specified in subdivision 3 of the GEP definition and required by 9VAC5-50-20 H 3 shall be included in the application.

E. When a public comment period and public hearing are required, the department shall notify the public by advertisement in at least one newspaper of general circulation in the affected air quality control region of the opportunity for the public comment and the public hearing on the information available for public inspection under the provisions of subdivision 1 of this subsection. The notification shall be published at least 30 days prior to the day of the public hearing. For permits subject to § 10.1-1307.01 A of the Code of Virginia, written comments will be accepted by the department for at least 15 days after any hearing.

1. Information on the minor NSR permit application, exclusive of confidential information under 9VAC5-170-60, as well as the preliminary review and analysis and preliminary determination of the department shall be available for public inspection during the entire public comment period in at least one location in the affected air quality control region. Any demonstration included in an application specified in subdivision D 5 of this section shall be available for public inspection during the public comment period.

2. A copy of the notice shall be sent to all local air pollution control agencies having jurisdiction in the affected air quality control region, all states sharing the affected air quality control region, and to the regional EPA administrator U.S. Environmental Protection Agency.

3. Notices of public comment periods and public hearings for major stationary sources and major modifications published under this section shall meet the requirements of § 10.1-1307.01 of the Virginia Air Pollution Control Law.

F. (Reserved.)

G. For permits under 9VAC5-80-1170 D 2 and I, the department will review any request made under subsection F of this section and will take final action on the request as provided in 9VAC5-80-1160 D.

H. In order to facilitate the efficient issuance of permits under Articles 1 (9VAC5-80-50 et seq.) and 3 (9VAC5-80-360 et seq.) of this part, upon request of the applicant the department shall process the minor NSR permit application using public participation procedures meeting the requirements of this section and 9VAC5-80-270 or 9VAC5-80-670, as applicable.

I. If the department finds that there is a locality particularly affected by (i) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (ii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a new fossil fuel-fired compressor station facility used to transport natural gas, or (iv) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas:

1. The applicant shall perform the following:

a. Publish a notice in at least one local paper of general circulation in any locality particularly affected at least 60 days prior to the close of any public comment period. Such notice shall (i) contain a statement of the estimated local impact of the proposed action; (ii) provide information regarding specific pollutants and the total quantity of each that may be emitted; (iii) list the type, quantity, and source of any fuel to be used; (iv) advise the public as to the date and location of a public hearing; and (v) advise the public where to obtain information regarding the proposed action. The department shall post such notice on the department website and on a department social media account; and

b. Mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.

2. The department shall post the notice required in subdivision 1 a of this subsection on the department website and on a department social media account.

3. Written comments shall be accepted by the department for at least 30 days after any hearing on such variance or permit unless the director chooses to shorten the period.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 29, Issue 3, eff. November 7, 2012; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1180 Standards and conditions for granting permits

A. No minor NSR permit will be granted unless it is shown to the satisfaction of the department that the source will comply with the following standards:

1. The source shall be designed, built and equipped to comply with standards of performance prescribed under 9VAC5-50 (New and Modified Stationary Sources) and with emission standards prescribed under 9VAC5-60 (Hazardous Air Pollutant Sources);

2. For sources subject to the federal hazardous air pollutant new source review program, the source shall be designed, built, and equipped to comply with the applicable emission standard and other requirements prescribed in 40 CFR Part 61 or 63 or Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources), as applicable;

3. The source shall be designed, built and equipped to operate without preventing or interfering with the attainment or maintenance of any applicable ambient air quality standard and without causing or exacerbating a violation of any applicable ambient air quality standard; and

4. The source shall be designed, built and equipped to operate without causing a violation of the applicable provisions of regulations of the board or the applicable control strategy portion of the implementation plan.

B. Minor NSR permits may contain emission caps provided the caps are made enforceable as a practical matter using the elements set forth in subsection D of this section. The emission caps may be considered in determining whether a stationary source is a synthetic minor source.

C. Minor NSR permits may contain emissions standards as necessary to implement the provisions of this article and 9VAC5-50-260. The following criteria apply in establishing emission standards to the extent necessary to assure that emissions levels are enforceable as a practical matter:

1. Standards may include limits on the level, quantity, rate, or concentration or any combination of them for each affected pollutant.

2. In no case shall a standard result in emissions which would exceed the emissions rate based on the potential to emit of the emissions unit.

3. The standard may prescribe, as an alternative to or a supplement to a limit prescribed under subdivision 1 of this subsection, equipment, work practice, fuels specification, process materials, maintenance, or operational standards, or any combination of them.

D. Minor NSR permits will contain, but need not be limited to, any of the following elements as necessary to ensure that the permits are enforceable as a practical matter:

1. Emission standards.

2. Conditions necessary to enforce emission standards. Conditions may include, but not be limited to, any of the following:

a. Limits on fuel sulfur content.

b. Limits on production rates with time frames as appropriate to support the emission standards.

c. Limits on raw material usage rate.

d. Limits on the minimum required capture, removal and overall control efficiency for any air pollution control equipment.

3. Specifications for permitted equipment, identified as thoroughly as possible. The identification shall include, but not be limited to, type, rated capacity, and size. Specifications included in the permit under this subdivision are for informational purposes only and do not form enforceable terms or conditions of the permit unless the specifications are needed to form the basis for one or more of the other terms or conditions in the permit.

4. Specifications for air pollution control equipment installed or to be installed. Specifications included in the permit under this subdivision are for informational purposes only and do not form enforceable terms or conditions of the permit unless the specifications are needed to form the basis for one or more of the other terms or conditions in the permit.

5. Specifications for air pollution control equipment operating parameters and the circumstances under which such equipment shall be operated, where necessary to ensure that the required overall control efficiency is achieved. The operating parameters may include, but need not be limited to, any of the following:

a. Pressure indicators and required pressure drop.

b. Temperature indicators and required temperature.

c. pH indicators and required pH.

d. Flow indicators and required flow.

6. Requirements for proper operation and maintenance of any pollution control equipment, and appropriate spare parts inventory.

7. Performance test requirements.

8. Reporting or recordkeeping requirements, or both.

9. Continuous emission or air quality monitoring requirements, or both.

10. Other requirements as may be necessary to ensure compliance with the applicable regulations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1190 Application review and analysis

No minor NSR permit shall be granted unless compliance with the standards in 9VAC5-80-1180 is demonstrated to the satisfaction of the department by a review and analysis of the application performed on a source-by-source basis as specified below:

1. Applications for new stationary sources and projects shall be subject to the following review and analysis:

a. A control technology review to determine if the emissions units will be designed, built and equipped to comply with all applicable standards of performance prescribed under 9VAC5-50 (New and Modified Stationary Sources).

b. An air quality analysis to determine the impact of pollutant emissions as may be deemed appropriate by the department.

2. Applications for stationary sources of toxic air pollutants shall be subject to a control technology review to determine if the source will be designed, built and equipped to comply with all applicable emission standards prescribed under 9VAC5-60 (Hazardous Air Pollutant Sources).

3. Applications under 9VAC5-80-1120 C (concerning stack outlet elevation reduction) shall be subject to an air quality analysis to determine the impact of applicable criteria pollutant emissions as may be deemed appropriate by the department.

4. Applications for sources subject to the federal hazardous air pollutant new source review program shall be subject to a control technology review to determine if the source will be designed, built and equipped to comply with all applicable emission standards prescribed under 40 CFR Part 61 or 63 or Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1200 Compliance determination and verification by performance testing

A. For stationary sources other than those specified in subsection B of this section, compliance with standards of performance shall be determined in accordance with the provisions of 9VAC5-50-20 and shall be verified by performance tests in accordance with the provisions of 9VAC5-50-30.

B. For stationary sources of toxic pollutants, compliance with emission standards shall be determined in accordance with the provisions of 9VAC5-60-20 and shall be verified by emission tests in accordance with the provisions of 9VAC5-60-30.

C. Testing required by subsections A and B of this section shall be conducted by the owner within 60 days after achieving the maximum production rate at which the source will be operated, but not later than 180 days after initial startup of the source; and 60 days thereafter the department shall be provided by the owner with one or, upon request, more copies of a written report of the results of the tests.

D. For sources subject to the provisions of 40 CFR Part 60, 61 or 63, the compliance determination and performance test requirements of subsections A, B and C of this section shall be met as specified in those parts of Title 40 of the Code of Federal Regulations.

E. For sources other than those specified in subsection D of this section, the requirements of subsections A, B and C of this section shall be met unless the department:

1. Specifies or approves, in specific cases, the use of a reference method with minor changes in methodology;

2. Approves the use of an equivalent method;

3. Approves the use of an alternative method, the results of which the department has determined to be adequate for indicating whether a specific source is in compliance;

4. Waives the requirement for testing because, based upon a technical evaluation of the past performance of similar source types, using similar control methods, the department reasonably expects the source to perform in compliance with applicable standards; or

5. Waives the requirement for testing because the owner of the source has demonstrated by other means to the department's satisfaction that the source is in compliance with the applicable standard.

F. The provisions for the granting of waivers under subsection E of this section are intended for use in determining the initial compliance status of a source. The granting of a waiver does not obligate the department to grant any waivers once the source has been in operation for more than one year beyond the initial startup date.

G. The granting of a waiver under this section does not shield the source from potential enforcement of any permit term or condition, applicable requirement of the implementation plan, or any other applicable federal requirement promulgated under the federal Clean Air Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1210 Permit invalidation, suspension, revocation and enforcement

A. In addition to the sources subject to this article, the provisions of this section shall apply to sources specified below:

1. Any stationary source (or portion of it), the construction, modification, or relocation of which commenced on or after March 17, 1972.

2. Any stationary source (or portion of it), the reconstruction of which commenced on or after December 10, 1976.

B. A minor NSR permit shall become invalid if a program of continuous construction, reconstruction or modification is not commenced within 18 months from the date the minor NSR permit is granted.

C. A minor NSR permit shall become invalid if a program of construction, reconstruction or modification is discontinued for a period of 18 months or more, or if a program of construction, reconstruction or modification is not completed within a reasonable time. This provision does not apply to the period between construction of the approved phases of the phased construction of a new stationary source or project; each phase must commence construction within 18 months of the projected and approved commencement date.

D. The department may extend the periods prescribed in subsections B and C of this section upon a satisfactory demonstration that an extension is justified. Provided there is no substantive change to the application information, the review and analysis, and the decision of the department, such extensions may be granted using the procedures for minor amendments in 9VAC5-80-1280.

E. Any owner who constructs or operates a source subject to this section not in accordance with the terms and conditions of any permit to construct or operate, or any owner of a source subject to this section who commences construction or operation without receiving a permit hereunder, shall be subject to appropriate enforcement action including, but not limited to, any specified in this section.

F. Minor NSR permits shall be subject to such terms and conditions set forth in the permit as the department may deem necessary to ensure compliance with all applicable requirements of the regulations of the board.

G. The department may revoke any minor NSR permit if the permittee:

1. Knowingly makes material misstatements in the permit application or any amendments to it;

2. Fails to comply with the terms or conditions of the permit;

3. Fails to comply with any emission standards applicable to an emissions unit included in the permit;

4. Causes emissions from the stationary source which result in violations of, or interfere with the attainment and maintenance of, any ambient air quality standard; or fails to operate in conformance with any applicable control strategy, including any emission standards or emissions limitations, in the implementation plan in effect at the time that an application is submitted; or

5. Fails to comply with the applicable provisions of this article.

H. The department may suspend, under such conditions and for such period of time as the department may prescribe, any minor NSR permit for any of the grounds for revocation contained in subsection G of this section or for any other violations of the regulations of the board.

I. The permittee shall comply with all terms and conditions of the minor NSR permit. Any permit noncompliance constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action or (ii) suspension or revocation.

J. Violation of the regulations of the board shall be grounds for revocation of minor NSR permits and are subject to the civil charges, penalties and all other relief contained in Part V (9VAC5-170-120 et seq.) of 9VAC5-170 (Regulation for General Administration) and the Virginia Air Pollution Control Law.

K. The department shall notify the applicant in writing of its decision, with its reasons, to change, suspend or revoke a minor NSR permit, or to render a minor NSR permit invalid.

L. Nothing in the regulations of the board shall be construed to prevent the department and the owner from making a mutual determination that a minor NSR permit is invalid or revoked prior to any final decision rendered under subsection K of this section.

M. Nothing in the regulations of the board shall be construed to prevent the department and the owner from making a mutual determination that a minor NSR permit is rescinded because all of the statutory or regulatory requirements (i) upon which the permit is based or (ii) that necessitated issuance of the permit are no longer applicable.

N. Except with respect to minor NSR permits issued in accordance with Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources), the provisions of subsections B, C, and D shall not apply to sources subject to the federal hazardous air pollutant new source review program.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1220 Existence of permit no defense

The existence of a minor NSR permit shall not constitute defense to a violation of the Virginia Air Pollution Control Law or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V) 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012.

9VAC5-80-1230 Compliance with local zoning requirements

No provision of this part or any permit issued thereunder shall relieve any owner from the responsibility to comply in all respects with any existing zoning ordinances and regulations in the locality in which the source is located or proposes to be located; provided, however, that such compliance does not relieve the department of its duty under 9VAC5-170-170 and § 10.1-1307 E of the Virginia Air Pollution Control Law to independently consider relevant facts and circumstances.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1240 Transfer of permits

A. No person shall transfer a minor NSR permit from one location to another, or from one piece of equipment to another.

B. In the case of a transfer of ownership of a stationary source, the new owner shall abide by any current minor NSR permit issued to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of a stationary source, the owner shall abide by any current minor NSR permit issued under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

D. The provisions of this section concerning the transfer of a minor NSR permit from one location to another shall not apply to the relocation of portable emissions units that are exempt from the provisions of this article by 9VAC5-80-1105 A 1 c.

E. The provisions of this section concerning the transfer of a minor NSR permit from one piece of equipment to another shall not apply to the replacement of an emissions unit that is exempt from the provisions of this article by 9VAC5-80-1105 A 2 a.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1250 General permits

A. The requirements for issuance of a general permit regulation are as follows:

1. The board may issue a general permit regulation covering a stationary source or emissions unit category containing numerous similar stationary sources or emissions units that meet the following criteria:

a. All stationary sources or emissions units in the category shall be essentially the same in terms of operations and processes and emit either the same pollutants or those with similar characteristics.

b. Stationary sources or emissions units shall not be subject to case-by-case standards or requirements.

c. Stationary sources or emissions units shall be subject to the same or substantially similar requirements governing operation, emissions, monitoring, reporting, or recordkeeping.

2. Stationary sources or emissions units operating under the authority of a general permit shall comply with all requirements applicable to other permits issued under this article.

3. General permit regulations shall (i) identify the criteria by which stationary sources or emissions units may qualify for the general permit and (ii) describe the process for stationary sources or emissions units to use in applying for the general permit.

4. General permit regulations shall be issued in accordance with § 2.2-4006 A 8 of the Administrative Process Act.

5. In addition to fulfilling the requirements specified by law, the notice of public comment shall include, but not be limited to, the following:

a. The name, address and telephone number of a department contact from whom interested persons may obtain additional information including copies of the draft general permit regulation;

b. The criteria to be used in determining which stationary sources or emissions units qualify for coverage under the general permit;

c. A brief description of the stationary source or emissions unit category that the department believes qualifies for coverage under the general permit including, but not limited to, an estimate of the number of individual stationary sources or emissions units in the category;

d. A brief description of the application process to be used by owners of stationary sources or emissions units to request coverage under the general permit regulation; and

e. A brief description of the public comment procedures.

B. The requirements for application for coverage under a general permit are as follows:

1. Stationary sources or emissions units which qualify for coverage under a general permit may apply to the department for coverage under the terms of the general permit regulation. Stationary sources or emissions units that do not qualify for coverage under a general permit shall apply for a minor NSR permit.

2. The application shall meet the requirements of this article and include all information necessary to determine qualification for and to assure compliance with the general permit.

3. Stationary sources or emissions units that qualify for coverage under the general permit regulation after coverage is granted to other stationary sources or emissions units in the category addressed by the general permit shall file an application with the department using the application process described in the general permit. The department shall grant authority to operate under the general permit to the stationary source or emissions unit if it determines that the stationary source or emissions unit meets the criteria set out in the general permit.

C. The requirements for granting authority to operate under a general permit are as follows:

1. The department shall grant authority to operate under the conditions and terms of the general permit to stationary sources or emissions units that meet the criteria set out in the general permit covering the specific stationary source or emissions unit category.

2. Granting authority to operate under a general permit to a stationary source or emissions unit covered by a general permit shall not require compliance with the public participation procedures under 9VAC5-80-1170.

3. A response to each general permit regulation application may be provided at the discretion of the department. The general permit may specify a reasonable time period after which the owner of a stationary source or emissions unit that has submitted an application shall be deemed to be authorized to operate under the general permit.

4. Stationary sources or emissions units authorized to operate under a general permit may be issued a letter, a certificate, or a summary of the general permit provisions, limits, and requirements, or any other document which would attest that the stationary source or emissions unit is authorized to operate under the general permit.

5. The general permit regulation shall specify where the general permit and the letter, certificate, summary or other document shall be maintained by the source.

D. The stationary source or emissions unit shall be subject to enforcement action under 9VAC5-80-1210 for operation without a minor NSR permit if the stationary source or emissions unit is later determined by the department not to qualify for the conditions and terms of the general permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; Errata, 18:20 VA.R. 3136 July 29, 2202; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1255 Actions to combine permit terms and conditions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 3, eff. November 7, 2012; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1260 Actions to change permits

A. The general requirements for actions to make changes to minor NSR permits are as follows:

1. Except as provided in subdivision 3 of this subsection, changes to a minor NSR permit shall be made as specified under subsections B and C of this section and 9VAC5-80-1270 through 9VAC5-80-1300.

2. Changes to a minor NSR permit may be initiated by the permittee as specified in subsection B of this section or by the department as specified in subsection C of this section.

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

4. This section shall not be applicable to general permits.

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

1. The permittee may initiate a change to a minor NSR permit by submitting a written request to the department for an administrative permit amendment, a minor permit amendment or a significant permit amendment. The requirements for these permit changes can be found in 9VAC5-80-1270 through 9VAC5-80-1290.

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

C. The department may initiate a change to a minor NSR permit through the use of permit reopenings as specified in 9VAC5-80-1300.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1270 Administrative permit amendments

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

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

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

3. Change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department and the requirements of 9VAC5-80-1240 have been fulfilled.

B. The administrative permit amendment procedures are as follows:

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

2. The department will incorporate the changes without providing notice to the public under 9VAC5-80-1170 and designate in the permit amendment that such permit revisions have been made pursuant to this section.

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1280 Minor permit amendments

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

1. Do not violate any applicable federal requirement.

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

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

4. Except as provided in subdivision C 2 of this section, do not seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include:

a. An emissions cap assumed to avoid classification as a project subject to the new source review program or as a modification under § 112 of the federal Clean Air Act; and

b. An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act.

5. Are not modifications under the new source review program or under § 112 of the federal Clean Air Act that would otherwise require a permit under the new source review program.

6. Are not required to be processed as a significant amendment under 9VAC5-80-1290 or as an administrative permit amendment under 9VAC5-80-1270.

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

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

2. Require new or more frequent monitoring or reporting by the permittee or a reduction in the level of an emissions cap.

3. Designate any minor NSR permit term or condition that meets the criteria in 9VAC5-80-1120 F 1 as state-only enforceable as provided in 9VAC5-80-1120 F 2 for any minor NSR permit or any repealed or amended regulation from which this article is derived.

4. Apply any minor NSR permit term or condition that is applicable to an existing emissions unit to its replacement emissions unit that otherwise meets the requirements for exemption from the minor new source review permit program requirements under the provisions of 9VAC5-80-1105 A 2 a.

C. Minor permit amendment procedures may be used for permit amendments involving the rescission of a provision of a minor NSR permit if the department and the owner make a mutual determination that the provision is rescinded because all of the underlying statutory or regulatory requirements (i) upon which the provision is based or (ii) that necessitated inclusion of the provision are no longer applicable.

1. In order for the underlying statutory and regulatory requirements to be considered no longer applicable, the provision of the permit that is being rescinded must not cover a regulated air pollutant.

2. Any emissions cap contained in the permit shall be adjusted downward appropriately so that the emissions unit's potential to emit does not reflect any compound no longer considered a regulated air pollutant.

D. A request for the use of minor permit amendment procedures shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs, accompanied by a request that such procedures be used. The applicant may, at the applicant's discretion, include a suggested proposed permit amendment.

E. The public participation requirements of 9VAC5-80-1170 shall not extend to minor permit amendments.

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

1. Issue the permit amendment as proposed.

2. Deny the permit amendment request.

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

G. The requirements for making changes are as follows:

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

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1290 Significant amendment procedures

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

1. Significant amendment procedures shall be used for requesting permit amendments that do not qualify as minor permit amendments under 9VAC5-80-1280 or as administrative amendments under 9VAC5-80-1270.

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

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

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

c. Seek to establish or change a minor NSR permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include:

(1) An emissions cap assumed to avoid classification as a project subject to the new source review program or as a modification under § 112 of the federal Clean Air Act; and

(2) An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act.

3. Significant amendment procedures may not be used to bypass the public participation requirements in 9VAC5-80-1170 for an application for a project that would be subject to the minor new source review program.

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

C. At the discretion of the department, the provisions of 9VAC5-80-1170 D and E shall apply to requests made under this section if the emissions unit subject to the request under this section was subject to review in any previous permit application that was subject to 9VAC5-80-1170.

D. The department will normally take final action on significant permit amendments within 90 days after receipt of a complete request. If a public hearing is required, processing time for a permit amendment is normally 180 days following receipt of a complete request except in cases where the permit must be processed according to 9VAC5-80-45. The department may extend this time period if additional information is needed.

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1300 Reopening for cause

A. A minor NSR permit may be reopened and revised under any of the following situations:

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

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

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

4. A new emission standard prescribed under 40 CFR Part 60, 61 or 63 becomes applicable after a permit is issued but prior to initial startup.

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 29, Issue 3, eff. November 7, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1310 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1320 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 18, Issue 20, eff. September 1, 2002; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; repealed, Virginia Register Volume 29, Issue 3, eff. November 7, 2012.

Article 7 Permits for New and Reconstructed Major Sources of Hazardous Air Pollutants

9VAC5-80-1400 Applicability

Article 7 Permits for New and Reconstructed Major Sources of Hazardous Air Pollutants

A. The provisions of this article apply to any owner or other person who constructs or reconstructs a major source of hazardous air pollutants.

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

C. Regardless of the exemptions provided in this article, no owner or other person shall circumvent the requirements of this article by causing or allowing a pattern of ownership or development over a geographic area of a source which, except for the pattern of ownership or development, would otherwise require a permit.

D. No provision of this article shall be construed as exempting any stationary source, emissions unit, or affected source from the provisions of this chapter.

E. Unless specified otherwise, the provisions of this article are applicable to various sources as follows:

1. Provisions referring to "sources," or "new or reconstructed sources, or both" or "stationary sources" are applicable to the construction or reconstruction of all major sources of hazardous air pollutants.

2. Any emissions units, stationary sources, or air pollutants not subject to the provisions of this article may be subject to other provisions of the new source review program.

F. The provisions of this article do not apply to (i) electric utility steam generating units unless and until such time as these units are added to the source category list, (ii) research and development activities, (iii) affected sources, or (iv) stationary sources that are within a source category that has been deleted from the source category list.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000.

9VAC5-80-1410 Definitions

A. For the purpose of this article and subsequent amendments or any orders issued by the department, the words or terms shall have the meaning given them in subsection C of this section.

B. As used in this section, all terms not defined in subsection C of this section shall have the meaning given them in 9VAC5 Chapter 10 (9VAC5-10-10 et seq.), unless otherwise required by context.

C. Terms defined.

"Affected source" means the stationary source, the group of stationary sources, or the portion of a stationary source that is regulated by a MACT standard.

"Affected states" are all states:

1. Whose air quality may be affected and that are contiguous to the Commonwealth; or

2. Whose air quality may be affected and that are within 50 miles of the major source for which a case-by-case MACT determination is made in accordance with this article.

"Available information" means, for purposes of identifying control technology options for the stationary source, information contained in the following information sources as of the date of approval of the permit:

1. A relevant proposed regulation, including all supporting information.

2. Background information documents for a draft or proposed regulation.

3. Data and information available from the Control Technology Center developed pursuant to § 113 of the federal Clean Air Act.

4. Data and information contained in the Aerometric Informational Retrieval System including information in the MACT database.

5. Any additional information that can be expeditiously provided by the administrator.

6. For the purpose of determinations by the department, any additional information provided by the applicant or others, and any additional information considered available by the department.

"Begin actual construction" means initiation of permanent physical on-site construction of an emissions unit. This includes installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures.

"Begin actual reconstruction" means initiation of permanent physical on-site reconstruction of an emissions unit. This includes installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures.

"Best controlled similar source" means a stationary source that (i) has comparable emissions and is structurally similar in design and capacity to other stationary sources such that the stationary sources could be controlled using the same control technology and (ii) uses a control technology that achieves the lowest emission rate among all other similar sources in the United States.

"Case-by-case MACT determination" means a determination by the department, pursuant to the requirements of this article, that establishes a MACT emission limitation, MACT work practice standard, or other MACT requirements for a stationary source subject to this article.

"Commenced" means, with respect to construction or reconstruction of a stationary source, that the owner has undertaken a continuous program of construction or reconstruction or that an owner has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or reconstruction.

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

"Construct a major source" means:

1. To fabricate, erect, or install a major source at any undeveloped site; or

2. To fabricate, erect, or install a major process or production unit at any site.

"Construction" means:

1. The fabrication, erection, or installation of a major source at any undeveloped site; or

2. The fabrication, erection, or installation of a major process or production unit at any site.

"Control technology" means measures, processes, methods, systems, or techniques to limit the emission of hazardous air pollutants including but not limited to, measures that:

1. Reduce the quantity of or eliminate emissions of such pollutants through process changes, substitution of materials, or other modifications;

2. Enclose systems or processes to eliminate emissions;

3. Collect, capture, or treat such pollutants when released from a process, stack, storage, or fugitive emissions point;

4. Are design, equipment, work practice, or operational standards, including requirements for operator training or certification; or

5. Are a combination of subdivisions 1 through 4 of this definition.

"Electric utility steam generating unit" means any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that co-generates steam and electricity and supplies more than one-third of its potential electric output capacity and more than 25 megawatts electric output to any utility power distribution system for sale shall be considered an electric utility steam generating unit.

"Emergency" means, in the context of 9VAC5-80-1580 C, a situation where immediate action on the part of a source is needed and where the timing of the action makes it impractical to meet the requirements of this article, such as sudden loss of power, fires, earthquakes, floods, or similar occurrences.

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

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

1. Are permanent.

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

3. Do not allow a relaxation of a requirement of the state implementation plan.

4. Are technically accurate and quantifiable.

5. Include averaging times or other provisions that allow at least monthly, or a shorter period if necessary to be consistent with the emission standard, checks on compliance. This may include but not be limited to, the following: compliance with annual limits in a rolling basis, monthly or shorter limits, and other provisions consistent with 9VAC5-80-1490 and other regulations of the board.

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

"EPA" means the U.S. Environmental Protection Agency.

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

"Federally enforceable" means all limitations and conditions that are enforceable by the administrator and citizens under the federal Clean Air Act or that are enforceable under other statutes administered by the administrator. Federally enforceable limitations and conditions include the following:

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

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

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

4. Limitations and conditions that are part of an approved State Implementation Plan (SIP) or a Federal Implementation Plan (FIP).

5. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA in accordance with 40 CFR Part 51. This does not include limitations and conditions that are established to address plans, programs, or regulatory requirements that are enforceable only by the Commonwealth.

6. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into a SIP as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability. This does not include limitations and conditions that are established to address plans, programs, or regulatory requirements that are enforceable only by the Commonwealth.

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

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

"Fixed capital cost" means the capital needed to provide all the depreciable components of an existing source.

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

"Hazardous air pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act as amended by 40 CFR Part 63, Subpart C.

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

"MACT standard" means (i) an emission standard; (ii) an alternative emission standard; or (iii) an alternative emission limitation promulgated in 40 CFR Part 63 that applies to the stationary source, the group of stationary sources, or the portion of a stationary source regulated by such standard or limitation. A MACT standard may include or consist of a design, equipment, work practice, or operational requirement, or other measure, process, method, system, or technique, including prohibition of emissions, that the administrator establishes for new or existing sources to which such standard or limitation applies. Every MACT standard established pursuant to § 112 of the federal Clean Air Act includes subpart A of 40 CFR Part 63 and all applicable appendices of 40 CFR Part 63 or of other parts of Title 40 of the Code of Federal Regulations that are referenced in that standard.

"Major process or production unit" means any process or production unit which in and of itself emits or has the potential to emit 10 tons per year of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants.

"Major source" means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants, unless the department establishes a lesser quantity, or in the case of radionuclides, different criteria from those specified in this definition.

"Maximum achievable control technology (MACT) emission limitation" means the emission limitation that is not less stringent than the emission limitation achieved in practice by the best controlled similar source and that reflects the maximum degree of reduction in emissions that the department, taking into consideration the cost of achieving such emission reduction and any nonair quality health and environmental impacts and energy requirements, determines is achievable by the constructed or reconstructed major source.

"New source review program" means a program for the preconstruction review and permitting of new stationary sources or expansions to existing ones in accordance with regulations promulgated to implement the requirements of §§ 110(a)(2)(C), 165 (relating to permits in prevention of significant deterioration areas) and 173 (relating to permits in nonattainment areas) and 112 (relating to permits for hazardous air pollutants) of the federal Clean Air Act.

"Permit" means a document issued pursuant to this article containing all federally enforceable conditions necessary to enforce the application and operation of any maximum achievable control technology or other control technologies such that the MACT emission limitation is met.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed shall be treated as part of its design only if the limitation or its effect on emissions is state and federally enforceable.

"Presumptive MACT" means a preliminary MACT determination made by EPA, in consultation with states and other stakeholders, after data on a source category's emissions and controls have been collected and analyzed, but before the MACT standard has been promulgated.

"Process or production unit" means any collection of structures or equipment or both, that processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product. A single facility may contain more than one process or production unit.

"Public comment period" means a time during which the public shall have the opportunity to comment on the permit application information, exclusive of confidential information, the preliminary review and analysis, and the preliminary decision of the department regarding the permit application.

"Reconstruct a major source" means to replace components at an existing major process or production unit whenever:

1. The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable new process or production unit; and

2. It is technically and economically feasible for the reconstructed major source to meet the applicable standard for new sources established in a permit.

"Reconstruction" means the replacement of components at an existing major process or production unit whenever:

1. The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable new process or production unit; and

2. It is technologically and economically feasible for the reconstructed process or production unit to meet the applicable standard for new sources established in a permit.

"Research and development activities" means activities conducted at a research or laboratory facility whose primary purpose is to conduct research and development into new processes and products, where such source is operated under the close supervision of technically trained personnel and is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner.

"Similar source" means a stationary source or process that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed major source such that the source could be controlled using the same control technology.

"Source category list" means the list and schedule issued pursuant to § 112(c) and (e) for promulgating MACT standards issued pursuant to § 112(d) of the federal Clean Air Act and published in the Federal Register at 63 FR 7155, February 12, 1998.

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

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

"Uncontrolled emission rate" means the emission rate from a source when operating at maximum capacity without air pollution control equipment. Air pollution control equipment is equipment that enables the source to conform to applicable air pollution control laws and regulations and that is not vital to its operation.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1420 General

A. No owner or other person shall begin actual construction or reconstruction of any major source of hazardous air pollutants without first obtaining from the department a permit to construct and operate or to reconstruct and operate such source.

B. The department may combine the requirements of and the permits for emissions units within a stationary source subject to the new source review program into one permit. Likewise the department may require that applications for permits for emissions units within a stationary source required by any provision of the new source review program be combined into one application.

C. All provisions contained in the permit shall be federally enforceable upon the effective date of issuance of the permit, except for those provisions that are established to address plans, programs, or regulatory requirements that are enforceable only by the Commonwealth.

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

E. The MACT emission limitations and requirements established according to this article shall be effective as required by 9VAC5-80-1450 I, consistent with the principles established in subsection F of this section, and supported by the information listed in 9VAC5-80-1440. The owner shall comply with the requirements in 9VAC5-80-1450 J and 9VAC5-80-1490, and with all applicable requirements in Subpart A of 40 CFR Part 63.

F. The following general principles shall govern preparation by the owner of each permit application or other application for stationary sources requiring a case-by-case MACT determination concerning construction or reconstruction of a major source, and all subsequent review of and actions taken concerning such an application by the department:

1. The MACT emission limitation or MACT requirements recommended by the applicant and approved by the department shall not be less stringent than the emission control which is achieved in practice by the best controlled similar source, as determined by the department.

2. Based upon available information, the MACT emission limitation and control technology (including any requirements under subdivision 3 of this subsection) recommended by the applicant and approved by the department shall achieve the maximum degree of reduction in emissions of hazardous air pollutants which can be achieved by utilizing those control technologies that can be identified from the available information, taking into consideration the costs of achieving such emission reduction and any non-air quality health and environmental impacts and energy requirements associated with the emission reduction.

3. The applicant may recommend a specific design, equipment, work practice, or operational standard, or a combination thereof, and the department may approve such a standard if the department specifically determines that it is not feasible to prescribe or enforce an emission limitation. The phrase "not feasible" means any situation in which the department determines that:

a. A hazardous air pollutant or pollutants cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with the Regulations for the Control and Abatement of Air Pollution.

b. The application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.

4. If the administrator has either proposed a MACT emission standard or made a presumptive MACT determination for the source category which includes the constructed or reconstructed major source, the department shall consider the MACT emission limitations and requirements of the proposed standard or presumptive MACT determination in determining the MACT emission limitation applicable to the constructed or reconstructed major source.

G. The provisions of subsection F of this section shall not apply to new, major process or production units, provided the process or production unit satisfies the criteria in subdivisions 1 through 6 of this subsection:

1. All hazardous air pollutants emitted by the process or production unit that would otherwise be controlled under the requirements of this article will be controlled by emission control equipment which was previously installed at the same site as the process or production unit;

2. a. The department has determined within a period of five years prior to the fabrication, erection, or installation of the process or production unit that the existing emission control equipment represented best available control technology (BACT) or lowest achievable emission rate (LAER), determined in accordance with 9VAC5-50-280 (BACT) or 9VAC5-50-270 (LAER), for the category of pollutants which includes those hazardous air pollutants to be emitted by the process or production unit; or

b. The department determines that the control of hazardous air pollutant emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other well-controlled similar sources (i.e., equivalent to the level of control that would be provided by a current BACT or LAER determination);

3. The department determines that the percent control efficiency for emissions of hazardous air pollutants from all sources to be controlled by the existing control equipment will be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion of the new process or production unit;

4. The department has provided notice and an opportunity for public comment concerning its determination that criteria in subdivisions 1 through 3 of this subsection apply and concerning the continued adequacy of any prior BACT or LAER determination;

5. If any commenter has asserted that a prior BACT or LAER determination is no longer adequate, the department has determined that the level of control required by that prior determination remains adequate; and

6. Any emission limitations, work practice requirements, or other terms and conditions upon which the above determinations by the department are predicated will be construed by the department as applicable requirements under the federal operating permit program and either have been incorporated into any existing federal operating permit for the stationary source or will be incorporated into such permit upon issuance.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1430 Applications

A. A single application is required identifying at a minimum each emissions unit subject to the provisions of this article. The application shall be submitted according to procedures approved by the department. However, where several emissions units are included in one project, a single application covering all units in the project may be submitted.

B. A separate application is required for each major source.

C. For projects with phased development, a single application should be submitted covering the entire project.

D. Any application form, report, or compliance certification submitted to the department shall comply with the provisions of 9VAC5-20-230.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1440 Application information required

A. The department shall furnish application forms to applicants. Completion of these forms serves as initial registration of new and reconstructed sources.

B. Each application for a permit shall include such information as may be required by the department to determine compliance with the MACT emission limitation established under this article. The information required shall include, but is not limited to, the following:

1. Company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager or contact or both.

2. A brief description of the major source, including a description of the source's processes and products (by Standard Industrial Classification Code), to be constructed or reconstructed and identification of any listed source category or categories in which it is included.

3. All emissions of hazardous air pollutants.

a. A permit application shall describe all emissions of hazardous air pollutants emitted from any emissions unit to be covered by the permit.

b. Emissions shall be calculated as required in the permit application form or instructions.

c. Fugitive emissions shall be included in the permit application to the extent quantifiable.

4. The hazardous air pollutants emitted by the constructed or reconstructed major source and the estimated emission rate for each such hazardous air pollutant. Emissions rates shall be expressed in tons per year and in such other terms as are necessary to establish compliance consistent with the applicable standard reference test method.

5. The maximum and expected utilization of capacity of the constructed or reconstructed major source and the associated uncontrolled emission rates for that source.

6. The controlled emissions for the constructed or reconstructed major source in tons per year at expected and maximum utilization of capacity.

7. Information needed to determine or regulate emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.

8. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all hazardous air pollutants at the source.

9. Calculations on which the information in subdivisions 3 through 8 of this subsection is based. Any calculations shall include sufficient detail to permit assessment of the validity of such calculations.

10. Any federally enforceable emission limitations applicable to the constructed or reconstructed major source.

11. The expected commencement date for the construction or reconstruction of the major source.

12. The expected completion date for construction or reconstruction of the major source.

13. The anticipated date of startup for the constructed or reconstructed major source.

14. Any additional information or documentation that the department deems necessary to review and analyze the air pollution aspects of the stationary source or emissions unit.

C. In each instance where a stationary source would require additional control technology or a change in control technology to be in compliance with the MACT emission limitation established under this article, the application shall contain the following information:

1. Information described in subsection B of this section.

2. The control technology selected by the owner and compliance monitoring devices or activities that, if properly operated and maintained, will meet the MACT emission limitation or standard as determined according to the principles set forth in 9VAC5-80-1420 F.

3. A recommended emission limitation for the constructed or reconstructed major source consistent with the principles set forth in 9VAC5-80-1420 F.

4. The selected control technology to meet the recommended MACT emission limitation, including technical information on the design, operation, size, estimated control efficiency of the control technology (and the manufacturer's name, address, telephone number, and relevant specifications and drawings, if requested by the department).

5. Supporting documentation including identification of alternative control technologies considered by the applicant to meet the emission limitation, and analysis of cost and non-air quality health and environmental impacts or energy requirements for the selected control technology.

6. Any other relevant information required pursuant to Subpart A of 40 CFR Part 63.

D. In each instance where the owner contends that a stationary source will be in compliance, upon startup, with the MACT emission limitation established under this article without a change in control technology, the application shall contain:

1. Information described in subsections B and C of this section; and

2. Documentation of the control technology in place.

E. The above information and analysis shall be determined and presented according to procedures and using methods acceptable to the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1450 Action on permit application

A. Within 45 days after receipt of an application, the department shall notify the applicant of the status of the application. The notification of the initial determination with regard to the status of the application shall be provided by the department in writing and shall include: (i) a determination as to which provisions of the new source review program are applicable, (ii) the identification of any deficiencies, and (iii) a determination as to whether the application contains sufficient information to begin application review. The determination that the application has sufficient information to begin review is not necessarily a determination that it is complete. Within 30 days after receipt of any additional information, the department shall notify the applicant of any deficiencies in such information. The date of receipt of a complete application for processing under subsection B of this section shall be the date on which the department received all required information and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met.

B. The department will normally process an application according to the steps specified in subdivisions 1 through 5 of this subsection. Processing time for these steps is normally 180 days following receipt of a complete application. The department may extend this time period if additional information is needed.

1. Complete the application review and analysis in accordance with 9VAC5-80-1480 and the preliminary decision of the department;

2. Complete the emission limitation review (if any);

3. Complete the public participation requirements in 9VAC5-80-1460;

4. Consider the public comments received in accordance with 9VAC5-80-1460; and

5. Completion of the final review and analysis and the final determination of the department.

C. At its discretion, the department may undertake the following steps prior to commencing with the public participation requirements of 9VAC5-80-1460:

1. The department shall initially approve the recommended emission limitation and other terms set forth in the application, or the department shall notify the owner in writing of its intent to disapprove the application, within 30 calendar days after the owner is notified in writing that the application is complete.

2. The owner may present, in writing, within 60 calendar days after receipt of notice of the department's intent to disapprove the application, additional information or arguments pertaining to, or amendments to, the application for consideration by the department before it decides whether to finally disapprove the application.

3. The department shall either initially approve or issue a final disapproval of the application within 90 days after it notifies the owner of an intent to disapprove or within 30 days after the date additional information is received from the owner, whichever is earlier.

D. The department will normally take final action on an application after completion of the steps in subsections B and C of this section and, if applicable, 9VAC5-80-45.

E. The department shall notify the applicant in writing of its final decision on the application, including its reasons, and shall also specify the applicable emission limitations. These emission limitations are applicable during any emission testing conducted in accordance with 9VAC5-80-1490.

F. A final decision by the department to disapprove any application shall be in writing and shall specify the grounds on which the disapproval is based. If any application is finally disapproved, the owner may submit a subsequent application concerning construction or reconstruction of the same major source, provided that the subsequent application has been amended in response to the stated grounds for the prior disapproval.

G. The applicant may appeal the decision pursuant to Part VIII (9VAC5-170-190 et seq.) of 9VAC5-170 (Regulation for General Administration).

H. Within five days after notification to the applicant pursuant to subsection B of this section, the notification and any comments received pursuant to the public comment period and public hearing shall be made available for public inspection at the same location as was the information in 9VAC5-80-1460 H 1.

I. The department shall send a copy of any final permit issued to a stationary source to the administrator through the appropriate regional office and to all other state and local air pollution control agencies having jurisdiction in affected states. Within 60 days of the issuance of the final permit, the department shall provide a copy of such permit to the administrator, and shall provide a summary in a compatible electronic format for inclusion in the MACT database.

J. The effective date of a case-by-case MACT determination shall be the date the permit becomes final.

K. On and after the date of startup, a constructed or reconstructed major source which is subject to the requirements of this article shall be in compliance with all applicable requirements specified in the permit.

L. In granting a permit pursuant to this section, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, pursuant to this section, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1460 Public participation

A. No later than 15 days after receiving the initial determination notification required under 9VAC5-80-1450 A, the applicant for a permit for a major source of hazardous air pollutants shall notify the public of the proposed source as required in subsection B of this section. The applicant shall also provide an informational briefing about the proposed source for the public as required in subsection C of this section.

B. The public notice required under this section shall be placed by the applicant in at least one newspaper of general circulation in the affected air quality control region. The notice shall be approved by the department and shall include the following:

1. The source name, location, and type;

2. The applicable pollutants and the total quantity of each that the applicant estimates will be emitted and a brief statement of the air quality impact of such pollutants;

3. The control technology proposed to be used at the time of the publication of the notice;

4. The date, time, and place of the informational briefing; and

5. The name and telephone number of a contact person employed by the applicant who can answer questions about the proposed source.

C. The informational briefing shall be held in the locality where the source is or will be located and at least 30 days, but no later than 60 days, following the day of the publication of the public notice in the newspaper. The applicant shall inform the public about the operation and potential air quality impact of the source and answer any questions concerning air quality about the proposed source from those in attendance at the briefing. At a minimum, the applicant shall provide information on and answer questions about (i) specific pollutants and the total quantity of each which the applicant estimates will be emitted and (ii) the control technology proposed to be used at the time of the informational briefing. Representatives from the department shall attend and provide information and answer questions on the permit application review process.

D. Upon a determination by the department that an alternative plan will achieve the desired results in an equally effective manner, an applicant for a permit may implement an alternative plan for notifying the public as required in subsection B of this section and for providing the informational briefing as required in subsection C of this section.

E. Prior to the decision of the department, all permit applications shall be subject to a public comment period of at least 30 days. In addition, at the end of the public comment period a public hearing will be held with notice in accordance with subsection F of this section.

F. The department shall notify the public by advertisement in at least one newspaper of general circulation in the area affected of the opportunity for the public comment and the public hearing on the information available for public inspection under the provisions of subdivision 1 of this subsection. The notification shall be published at least 30 days prior to the day of the public hearing. Written comments will be accepted by the department for at least 15 days after any hearing.

1. Information on the permit application, exclusive of confidential information under 9VAC5-170-60, as well as the preliminary review and analysis and preliminary determination of the department shall be available for public inspection during the entire public comment period in at least one location in the affected area.

2. A copy of the notice shall be sent to all local air pollution control agencies having jurisdiction in the affected air quality control region, all states sharing the affected air quality control region, and to the regional EPA administrator.

3. Notices of public hearings published under this section shall meet the requirements of § 10.1-1307.01 (A) of the Virginia Air Pollution Control Law.

G. Reserved.

H. The department will take final action on the application as provided in 9VAC5-80-1450 D.

I. In order to facilitate the efficient issuance of permits under Articles 1 and 3 of this chapter, upon request of the applicant the department shall process the permit application under this article using public participation procedures meeting the requirements of this section and 9VAC5-80-270 or 9VAC5-80-670, as applicable.

J. If appropriate, the department may provide a public briefing on its review of the permit application prior to the public comment period but no later than the day before the beginning of the public comment period. If the department provides a public briefing, the requirements of subsection F of this section concerning public notification will be followed.

K. If the department finds that there is a locality particularly affected by (i) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (ii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a new fossil fuel-fired compressor station facility used to transport natural gas, or (iv) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas:

1. The applicant shall perform the following:

a. Publish a notice in at least one local paper of general circulation in any locality particularly affected at least 60 days prior to the close of any public comment period. Such notice shall (i) contain a statement of the estimated local impact of the proposed action; (ii) provide information regarding specific pollutants and the total quantity of each that may be emitted; (iii) list the type, quantity, and source of any fuel to be used; (iv) advise the public as to the date and location of a public hearing; and (v) advise the public where to obtain information regarding the proposed action; and

b. Mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.

2. The department shall post the notice required in subdivision 1 a of this subsection on the department website and on a department social media account.

3. Written comments shall be accepted by the department for at least 30 days after any hearing on such variance or permit unless the director chooses to shorten the period.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1470 Standards and conditions for granting permits

A. No permit shall be granted pursuant to this article unless it is shown to the satisfaction of the department that the source will be designed, built and equipped to operate without causing a violation of the applicable provisions of the regulations of the board and that the following standards have been met:

1. The source shall be designed, built and equipped to comply with applicable emission standards and other requirements prescribed under 9VAC5 Chapter 60 (9VAC5-60-10 et seq.).

2. The source shall be designed, built and equipped to comply with the MACT emission limitation and other requirements prescribed in the permit.

3. The source shall be designed, built and equipped to operate without causing a violation of the applicable provisions of regulations of the board.

B. Permits granted pursuant to this article shall:

1. Contain a MACT emission limitation (or a MACT work practice standard if the department determines it is not feasible to prescribe or enforce an emission limitation) to control the emissions of hazardous air pollutants which is determined by the department and conforms to the principles set forth in 9VAC5-80-1420 F.

2. Specify any notification, operation and maintenance, performance testing, monitoring, reporting and recordkeeping requirements.

3. Include the following:

a. In addition to the MACT emission limitation or MACT work practice standard established under this article, additional emission limits, production limits, operational limits or other terms and conditions necessary to ensure federal enforceability of the MACT emission limitation.

b. Compliance certifications, testing, monitoring, reporting and recordkeeping requirements that are consistent with the requirements of 9VAC5-80-110 K.

c. Monitoring capable of demonstrating continuous compliance during the applicable reporting period. Such monitoring data shall be of sufficient quality to be used as a basis for enforcing all applicable requirements established under this article, including emission limitations.

d. A statement requiring the owner to comply with all applicable requirements contained in this article.

C. Permits granted pursuant to this article shall contain emission standards as necessary to implement the provisions of this article. The following criteria shall be met in establishing emission standards to the extent necessary to assure that emission levels are enforceable as a practical matter:

1. Standards may include the level, quantity, rate, or concentration or any combination of them for each affected pollutant.

2. In no case shall a standard result in emissions which would exceed the emissions rate based on the potential to emit of the emissions unit.

3. Standards shall only include limitations that are determined by the department to be achievable through application of production processes or available methods, systems, and techniques, including, but not limited to, any of the following: emissions control equipment, fuel cleaning or treatment, fuel combustion techniques, or substitution of less toxic or nontoxic materials.

4. The standard may prescribe, as an alternative to or a supplement to an emission limitation, an equipment, work practice, fuels specification, process materials, maintenance, or operational standard, or any combination of them.

D. Permits issued under this article shall contain, but not be limited to, any of the following elements as necessary to ensure that the permits are enforceable as a practical matter:

1. Emission standards.

2. Conditions necessary to enforce emission standards. Conditions may include, but not be limited to, any of the following:

a. Limit on production rates with time frames as appropriate to support the emission standards.

b. Limit on raw material usage rate.

c. Limits on the minimum required capture, removal and overall control efficiency for any air pollution control equipment.

3. Specifications for permitted equipment, identified as thoroughly as possible. The identification shall include, but not be limited to, type, rated capacity, and size.

4. Specifications for air pollution control equipment installed or to be installed and the circumstances under which such equipment shall be operated.

5. Specifications for air pollution control equipment operating parameters, where necessary to ensure that the required overall control efficiency is achieved. The operating parameters may include, but not be limited to, any of the following:

a. Pressure indicators and required pressure drop.

b. Temperature indicators and required temperature.

c. pH indicators and required pH.

d. Flow indicators and required flow.

6. Requirements for proper operation and maintenance of any pollution control equipment, and appropriate spare parts inventory.

7. Stack test requirements.

8. Reporting or recordkeeping requirements, or both.

9. Continuous emission or air quality monitoring requirements, or both.

10. Other requirements as may be necessary to ensure compliance with the applicable regulations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1480 Application review and analysis

A. No permit shall be granted pursuant to this article unless compliance with the standards in 9VAC5-80-1470 is demonstrated to the satisfaction of the department by a review and analysis of the application performed on a source-by-source basis.

B. Applications for stationary sources of hazardous air pollutants shall be subject to a control technology review to determine if such source will be designed, built and equipped to comply with all applicable emission standards prescribed under 9VAC5-80-1470.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1490 Compliance determination and verification by performance testing

A. An owner of a constructed or reconstructed major source shall comply with all requirements in the final permit issued pursuant to this article, including but not limited to any emission limitation or work practice standard, and any notification, operation and maintenance, performance testing, monitoring, reporting, and recordkeeping requirements.

B. An owner of a constructed or reconstructed major source which has obtained a permit shall be deemed to be in compliance with the Virginia Air Pollution Control Law only to the extent that the constructed or reconstructed major source is in compliance with all requirements set forth in the permit issued pursuant to this article. Any violation of such requirements by the owner or any other person shall be deemed by the department to be a violation of the prohibition on construction or reconstruction in this article for whatever period the owner is determined to be in violation of such requirements, and shall subject the owner to appropriate enforcement action under the Virginia Air Pollution Control Law.

C. Compliance with emission standards shall be determined in accordance with the provisions of 9VAC5-60-20 and shall be verified by emission tests in accordance with the provisions of 9VAC5-60-30.

D. Testing required by this section shall be conducted by the owner within 60 days after achieving the maximum production rate at which the new or reconstructed source will be operated, but not later than 180 days after initial startup of the source; and 60 days thereafter the department shall be provided by the owner with two or, upon request, more copies of a written report of the results of the tests.

E. The requirements of subsections C and D of this section shall be met unless the department:

1. Specifies or approves, in specific cases, the use of a reference method with minor changes in methodology;

2. Approves the use of an equivalent method;

3. Approves the use of an alternative method, the results of which the department has determined to be adequate for indicating whether a specific source is in compliance;

4. Waives the requirement for testing because, based upon a technical evaluation of the past performance of similar source types, using similar control methods, the department reasonably expects the new or reconstructed source to perform in compliance with applicable standards; or

5. Waives the requirement for testing because the owner of the source has demonstrated by other means to the department's satisfaction that the source is in compliance with the applicable standard.

F. The provisions for the granting of waivers under subsection E of this section are intended for use in determining the initial compliance status of a source, and the granting of a waiver does not obligate the department to do so for determining compliance once the source has been in operation for more than one year beyond the initial startup date.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1500 Permit invalidation, rescission, revocation and enforcement

A. A permit granted pursuant to this article shall become invalid if a program of continuous construction or reconstruction is not commenced within the latest of the following time frames:

1. Eighteen months from the date the permit is granted;

2. Nine months from the date of the issuance of the last permit or other authorization (other than permits granted pursuant to this article) from any governmental entity; or

3. Nine months from the date of the last resolution of any litigation concerning any such permits or authorizations (including permits granted pursuant to this article).

B. A permit granted pursuant to this article shall become invalid if a program of construction or reconstruction is discontinued for a period of 18 months or more, or if a program of construction or reconstruction is not completed within a reasonable time. This provision does not apply to the period between construction of the approved phases of a phased construction project; each phase must commence construction within 18 months of the projected and approved commencement date.

C. The department may extend the periods prescribed in subsections A and B of this section, by no more than 12 months, upon a satisfactory demonstration that an extension is justified. Provided there is no substantive change to the application information, the review and analysis, and the decision of the department, such extensions may be granted without being subject to the requirements of 9VAC5-80-1460.

D. Any owner who constructs or operates a new or reconstructed source not in accordance with the terms and conditions of any permit to construct or operate, or any owner of a new or reconstructed source subject to this article who commences construction or operation without receiving a permit hereunder, shall be subject to appropriate enforcement action including, but not limited to, any specified in this section.

E. Permits issued under this article shall be subject to such terms and conditions set forth in the permit as the department may deem necessary to ensure compliance with all applicable requirements of the regulations.

F. The department may revoke any permit if the permittee:

1. Knowingly makes material misstatements in the permit application or any amendments to it;

2. Fails to comply with the terms or conditions of the permit;

3. Fails to comply with any emission standards applicable to an emissions unit included in the permit; or

4. Fails to comply with the applicable provisions of this article.

G. The department may suspend, under such conditions and for such period of time as the department may prescribe, any permit for any of the grounds for revocation contained in subsection F of this section or for any other violations of the regulations of the board.

H. The permittee shall comply with all terms and conditions of the permit. A permit noncompliance constitutes a violation of the Virginia Air Pollution Control Law and may be grounds for (i) enforcement action or (ii) termination or revocation.

I. Violation of the regulations of the board shall be grounds for revocation of permits issued under this article and are subject to the civil charges, penalties and all other relief contained in Part V (9VAC5-170-120 et seq.) of 9VAC5 Chapter 170 and the Virginia Air Pollution Control Law.

J. The department shall notify the applicant in writing of its decision, with its reasons, to change, suspend or revoke a permit, or to render a permit invalid.

K. Nothing in the regulations of the board shall be construed to prevent the department and the owner from making a mutual determination that a permit is invalid or revoked prior to any final decision rendered under subsection J of this section.

L. Nothing in the regulations of the board shall be construed to prevent the department and the owner from making a mutual determination that a permit is rescinded because all of the statutory or regulatory requirements (i) upon which the permit is based or (ii) that necessitated issuance of the permit are no longer applicable.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1510 Existence of permit no defense

The existence of a permit under this article shall not constitute defense to a violation of the Virginia Air Pollution Control Law or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000.

9VAC5-80-1520 Compliance with local zoning requirements

No provision of this part or any permit issued thereunder shall relieve any owner from the responsibility to comply in all respects with any existing zoning ordinances and regulations in the locality in which the source is located or proposes to be located.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000.

9VAC5-80-1530 Transfer of permits

A. No persons shall transfer a permit from one location to another or from one piece of equipment to another.

B. In the case of a transfer of ownership of a stationary source, the new owner shall abide by any current permit issued to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of a stationary source, the owner shall abide by any current permit issued under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1540 Changes to permits

A. The general requirements for making changes to permits are as follows:

1. Changes to a permit issued under this article shall be made as specified under subsections B and C of this section and 9VAC5-80-1550 through 9VAC5-80-1580 of this article.

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

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

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

1. The permittee may initiate a change to a permit by submitting a written request to the department for an administrative permit amendment, a minor permit amendment or a significant permit amendment. The requirements for these permit revisions can be found in 9VAC5-80-1550 through 9VAC5-80-1570.

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

C. The department may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-1580.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1550 Administrative permit amendments

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

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

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

3. Change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department and the requirements of 9VAC5-80-1420 have been fulfilled.

4. The combining of permits under the new source review program as provided in 9VAC5-80-1420 B.

B. The administrative permit amendment procedures are as follows:

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

2. The department shall incorporate the changes without providing notice to the public under 9VAC5-80-1460. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1560 Minor permit amendments

A. Minor permit amendment procedures shall be used only for those permit amendments that:

1. Do not violate any applicable requirement;

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

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

4. Do not seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include:

a. An emissions cap assumed to avoid classification as a modification subject to the new source review program or § 112 of the federal Clean Air Act; and

b. An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act;

5. Are not a result of modifications subject to the new source review program; and

6. Are not required to be processed as a significant amendment under 9VAC5-80-1570; or as an administrative permit amendment under 9VAC5-80-1550.

B. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments involving the use of economic incentives, emissions trading, and other similar approaches, to the extent that such minor permit amendment procedures are explicitly provided for in a regulation of the board or a federally approved program. Minor permit amendment procedures may also be used to require more frequent monitoring or reporting by the permittee.

C. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments involving the rescission of a provision of a permit if the department and the owner make a mutual determination that the provision is rescinded because all of the statutory or regulatory requirements (i) upon which the provision is based or (ii) that necessitated inclusion of the provision are no longer applicable.

D. A request for the use of minor permit amendment procedures shall include all of the following:

1. A description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs.

2. A request that such procedures be used.

E. The public participation requirements of 9VAC5-80-1460 shall not extend to minor permit amendments.

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

1. Issue the permit amendment as proposed.

2. Deny the permit amendment request.

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

G. The requirements for making changes are as follow:

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

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1570 Significant amendment procedures

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

1. Significant amendment procedures shall be used for requesting permit amendments that do not qualify as minor permit amendments under 9VAC5-80-1560 or as administrative amendments under 9VAC5-80-1550.

2. Significant amendment procedures shall be used for those permit amendments that:

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

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

c. Seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include:

(1) An emissions cap assumed to avoid classification as a modification subject to the new source review program or § 112 of the federal Clean Air Act.

(2) An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act.

d. Result from modifications subject to the new source review program.

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

C. The provisions of 9VAC5-80-1460 shall apply to requests made under this section.

D. The department will normally take final action on significant permit amendments within 90 days after receipt of a complete request.

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1580 Reopening for cause

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

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

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

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

4. A new emission standard prescribed under Article 1 (9VAC5-60-60 et seq.) of Part II of 9VAC5 Chapter 60 becomes applicable after a permit is issued but prior to initial startup.

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

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

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1590 Requirements for constructed or reconstructed major sources subject to a subsequently promulgated MACT standard or MACT requirements

A. If the administrator promulgates a MACT standard under § 112(d) or § 112(h) of the federal Clean Air Act that is applicable to a stationary source, group of stationary sources, or portion of a stationary source which would be deemed to be a constructed or reconstructed major source under this article before the date the owner has obtained a final and legally effective permit pursuant to this article, the owner shall comply with the promulgated standard by the compliance date in the promulgated standard.

B. If the administrator promulgates a MACT standard under § 112(d) or § 112(h) of the federal Clean Air Act that is applicable to a stationary source, group of stationary sources, or portion of a stationary source which was deemed to be a constructed or reconstructed major source under this article and has been subject to a prior case-by-case MACT determination pursuant to this article, and the owner obtained a final and legally effective case-by-case MACT determination prior to the promulgation date of the MACT standard, the department shall (if the initial federal operating permit has not yet been issued) amend the permit issued pursuant to this article in accordance with the reopening procedures of 9VAC5-80-1580 to incorporate the emission standard, or shall (if the initial federal operating permit has been issued) revise the federal operating permit according to the reopening procedures in 9VAC5-80-240 to incorporate the MACT standard.

1. The MACT standard established pursuant to § 112(d) or § 112(h) of the federal Clean Air Act may specify a compliance date for those sources which have obtained a final and legally effective case-by-case MACT determination under this article. In that event, the department shall reopen the source's federal operating permit in accordance with the procedures in 9VAC5-80-240 to incorporate the applicable compliance date.

2. If no compliance date is specified in the MACT standard established pursuant to § 112(d) or § 112(h) of the federal Clean Air Act for those sources which have obtained a final and legally effective case-by-case MACT determination under this article, the department shall establish a compliance date that assures the owner will comply with a promulgated MACT standard as expeditiously as practicable, but no longer than eight years after the standard is promulgated, and shall reopen the source's federal operating permit in accordance with procedures in 9VAC5-80-240 to incorporate that compliance date.

C. Notwithstanding the requirements of subsections A and B of this section, if the administrator promulgates a MACT standard under § 112(d) or § 112(h) of the federal Clean Air Act that is applicable to a stationary source, group of stationary sources, or portion of a stationary source which was deemed to be a constructed or reconstructed major source under this article and which is the subject of a prior case-by-case MACT determination pursuant to this article, and the level of control required by the MACT standard issued under § 112(d) or § 112(h) is less stringent than the level of control required by any emission limitation or standard in the prior case-by-case MACT determination, the department is not required to incorporate any less stringent terms of the promulgated standard in the source's federal operating permit and may, in its discretion, consider any more stringent provisions of the prior case-by-case MACT determination to be applicable legal requirements when issuing or revising the federal operating permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 16, Issue 7, eff. February 1, 2000; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Article 8 Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas

9VAC5-80-1605 Applicability

A. The provisions of this article apply to the construction of any new major stationary source or any project at an existing major stationary source.

B. The provisions of this article apply in prevention of significant deterioration areas designated in 9VAC5-20-205.

C. At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation that was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then the requirements of this article shall apply to the source or modification as though construction had not yet commenced on the source or modification.

D. Unless specified otherwise, the provisions of this article apply as follows:

1. Provisions referring to "sources," "new or modified sources" or "stationary sources" apply to the construction of all major stationary sources and major modifications.

2. Any emissions units or pollutants not subject to the provisions of this article may be subject to the provisions of Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), or Article 9 (9VAC5-80-2000 et seq.) of this part.

3. Provisions referring to "state and federally enforceable" and "federally and state enforceable" or similar wording shall mean "state-only enforceable" for terms and conditions of a permit designated state-only enforceable under 9VAC5-80-1625 G.

E. Unless otherwise approved by the department or prescribed in these regulations, when this article is amended, the previous provisions of this article shall remain in effect for all applications that are deemed complete under the provisions of 9VAC5-80-1775 A prior to September 1, 2006. Any permit applications that have not been determined to be complete as of September 1, 2006, shall be subject to the new provisions.

F. Regardless of the exemptions provided in this article, no owner or other person shall circumvent the requirements of this section by causing or allowing a pattern of ownership or development over a geographic area of a source which, except for the pattern of ownership or development, would otherwise require a permit.

G. The requirements of this article will be applied in accordance with the following principles:

1. Except as otherwise provided in subsection H of this subsection, and consistent with the definition of "major modification," a project is a major modification for a regulated NSR pollutant if it causes two types of emissions increases: a significant emissions increase, and a significant net emissions increase. The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

2. The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to subdivisions 3 and 4 of this subsection. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is in the definition of "net emissions increase." Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

3. The actual-to-projected-actual applicability test for projects that only involve existing emissions units shall be conducted as provided in this subdivision. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the projected actual emissions and the baseline actual emissions, for each existing emissions unit, is significant for that pollutant.

4. The actual-to-potential test for projects that only involve construction of a new emissions unit shall be conducted as provided in this subdivision. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the potential to emit from each new emissions unit following completion of the project and the baseline actual emissions of these units before the project is significant for that pollutant.

5. The hybrid test for projects that involve multiple types of emissions units shall be conducted as provided in this subdivision. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in subdivisions 3 and 4 of this subdivision as applicable with respect to each emissions unit, for each type of emissions unit is significant for that pollutant. For example, if a project involves both an existing emissions unit and a new unit, the projected increase is determined by summing the values determined using the method specified in subdivision 3 of this subsection for the existing unit and using the method specified in subdivision 4 of this subsection for the new unit.

H. For any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with the requirements under 9VAC5-80-1865.

I. The provisions of 40 CFR Part 60, Part 61 and Part 63 cited in this article apply only to the extent that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50 and Article 1 (9VAC5-60-60 et seq.) and Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5 Chapter 60.

J. The provisions of 40 CFR Part 51 and Part 58 cited in this article apply only to the extent that they are incorporated by reference in 9VAC5-20-21.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1615 Definitions

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

B. For the purpose of this article, 9VAC5-50-280, and applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section:

C. Terms defined.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR pollutant.

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

b. For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner within the 10-year period immediately preceding either the date the owner begins actual construction of the project, or the date a complete permit application is received by the department for a permit required under this article, whichever is earlier, except that the 10-year period shall not include any period earlier than November 15, 1990.

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

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

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

(4) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for all the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR pollutant.

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

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

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

"Baseline area":

a. Means any intrastate area (and every part thereof) designated as attainment or unclassifiable under § 107(d)(1)(A)(ii) or (iii) of the federal Clean Air Act in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact for the pollutant for which the baseline date is established, as follows: (i) for SO₂, NO₂, or PM₁₀, equal to or greater than 1 µg/m³ (annual average); or (ii) for PM_2.5, equal to or greater than 0.3 µg/m³ (annual average).

b. Area redesignations under § 107(d)(1)(A)(ii) or (iii) of the federal Clean Air Act cannot intersect or be smaller than the area of impact of any major stationary source or major modification that:

(1) Establishes a minor source baseline date; or

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

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

"Baseline concentration"

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

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

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

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

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

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

"Baseline date"

a. "Major source baseline date" means:

(1) In the case of PM₁₀ and sulfur dioxide, January 6, 1975;

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

(3) In the case of PM_2.5, October 20, 2010.

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

(1) In the case of PM₁₀ and sulfur dioxide, August 7, 1977;

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

(3) In the case of PM_2.5, October 20, 2011.

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

(1) The area in which the proposed source or modification would construct is designated as attainment or unclassifiable under § 107(d)(1)(A)(ii) or (iii) of the federal Clean Air Act for the pollutant on the date of its complete application under this article or 40 CFR 52.21; and

(2) In the case of a major stationary source, the pollutant would be emitted in significant amounts, or, in the case of a major modification, there would be a significant net emissions increase of the pollutant.

d. Any minor source baseline date established originally for the TSP increments shall remain in effect and shall apply for purposes of determining the amount of available PM₁₀ increments, except that the department may rescind any such minor source baseline date where it can be shown, to the satisfaction of the department, that the emissions increase from the major stationary source, or the net emissions increase from the major modification, responsible for triggering that date did not result in a significant amount of PM₁₀ emissions.

"Begin actual construction" means, in general, initiation of physical on-site construction activities on an emissions unit that are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities that mark the initiation of the change.

"Best available control technology" or "BACT" means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant that would be emitted from any proposed major stationary source or major modification that the department, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant that would exceed the emissions allowed by any applicable standard under 40 CFR Parts 60, 61, and 63. If the department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means that achieve equivalent results.

"Building, structure, facility or installation" means all of the pollutant-emitting activities that belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "Major Group" (i.e., that have the same first two-digit code) as described in the Standard Industrial Classification Manual (see 9VAC5-20-21).

"Clean coal technology" means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility that will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam that was not in widespread use as of November 15, 1990.

"Clean coal technology demonstration project" means a project using funds appropriated under the heading "Department of Energy-Clean Coal Technology," up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for EPA. The federal contribution for a qualifying project shall be at least 20% of the total cost of the demonstration project.

"Commence" as applied to construction of a major stationary source or major modification, means that the owner has all necessary preconstruction approvals or permits and either has:

a. Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

b. Entered into binding agreements or contractual obligations, that cannot be canceled or modified without substantial loss to the owner, to undertake a program of actual construction of the source, to be completed within a reasonable time.

"Complete" means, in reference to an application for a permit, that the application contains all of the information necessary for processing the application and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met. Designating an application complete for the purposes of permit processing does not preclude the department from requesting or accepting any additional information.

"Construction" means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions.

"Continuous emissions monitoring system" or "CEMS" means all of the equipment that may be required to meet the data acquisition and availability requirements of this article, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

"Continuous emissions rate monitoring system" or "CERMS" means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

"Continuous parameter monitoring system" or "CPMS" means all of the equipment necessary to meet the data acquisition and availability requirements of this article, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O₂ or CO₂ concentrations), and to record average operational parameter value(s) on a continuous basis.

"Electric utility steam generating unit" means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

"Emissions unit" means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric utility steam generating unit. For purposes of this definition, there are two types of emissions units: (i) a new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than two years from the date such emissions unit first operated; and (ii) an existing emissions unit is any emissions unit that is not a new emissions unit. A replacement unit is an existing emissions unit.

"Enforceable as a practical matter" means that the permit contains emission limitations that are enforceable by the department and meet the following criteria:

a. Are permanent;

b. Contain a legal obligation for the owner to adhere to the terms and conditions;

c. Do not allow a relaxation of a requirement of the implementation plan;

d. Are technically accurate and quantifiable;

e. Include averaging times or other provisions that allow at least monthly (or a shorter period if necessary to be consistent with the implementation plan) checks on compliance. This may include, but not be limited to, the following: compliance with annual limits on a rolling basis, monthly or shorter limits, and other provisions consistent with this article and other regulations of the board; and

f. Require a level of recordkeeping, reporting and monitoring sufficient to demonstrate compliance.

"Federal land manager" means, with respect to any lands in the United States, the secretary of the department with authority over such lands.

"Federally enforceable" means all limitations and conditions that are enforceable by the administrator and citizens under the federal Clean Air Act or that are enforceable under other statutes administered by the administrator. Federally enforceable limitations and conditions include, but are not limited to, the following:

a. Emission standards, alternative emission standards, alternative emission limitations, and equivalent emission limitations established pursuant to § 112 of the federal Clean Air Act as amended in 1990.

b. New source performance standards established pursuant to § 111 of the federal Clean Air Act, and emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

c. All terms and conditions (unless expressly designated as not federally enforceable) in a federal operating permit, including any provisions that limit a source's potential to emit.

d. Limitations and conditions that are part of an implementation plan established pursuant to § 110, 111(d) or 129 of the federal Clean Air Act.

e. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a federal construction permit issued under 40 CFR 52.21 or a new source review permit issued under regulations approved by the EPA into the implementation plan.

f. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a state operating permit where the permit and the permit program pursuant to which it was issued meet all of the following criteria:

(1) The operating permit program has been approved by the EPA into the implementation plan under § 110 of the federal Clean Air Act;

(2) The operating permit program imposes a legal obligation that operating permit holders adhere to the terms and limitations of such permits and provides that permits that do not conform to the operating permit program requirements and the requirements of EPA's underlying regulations may be deemed not "federally enforceable" by EPA;

(3) The operating permit program requires that all emission limitations, controls, and other requirements imposed by such permits will be at least as stringent as any other applicable limitations and requirements contained in the implementation plan or enforceable under the implementation plan, and that the program may not issue permits that waive, or make less stringent, any limitations or requirements contained in or issued pursuant to the implementation plan, or that are otherwise "federally enforceable";

(4) The limitations, controls, and requirements in the permit in question are permanent, quantifiable, and otherwise enforceable as a practical matter; and

(5) The permit in question was issued only after adequate and timely notice and opportunity for comment by the EPA and the public.

g. Limitations and conditions in a regulation of the board or program that has been approved by the EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

h. Individual consent agreements that the EPA has legal authority to create.

"Federal operating permit" means a permit issued under the federal operating permit program.

"Federal operating permit program" means an operating permit system (i) for issuing terms and conditions for major stationary sources, (ii) established to implement the requirements of Title V of the federal Clean Air Act and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of this part.

"Fugitive emissions" means those emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

"High terrain" means any area having an elevation 900 feet or more above the base of the stack of a source.

"Indian governing body" means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

"Indian reservation" means any federally recognized reservation established by treaty, agreement, executive order, or act of Congress.

"Innovative control technology" means any system of air pollution control that has not been adequately demonstrated in practice, but would have substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy, economics, or nonair quality environmental impacts.

"Lowest achievable emission rate" or "LAER" is as defined in 9VAC5-80-2010 C.

"Locality particularly affected" means any locality that bears any identified disproportionate material air quality impact that would not be experienced by other localities.

"Low terrain" means any area other than high terrain.

"Major emissions unit" means (i) any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or (ii) any emissions unit that emits or has the potential to emit the PAL pollutant for nonattainment areas in an amount that is equal to or greater than the major source threshold for the PAL pollutant in subdivision a (1) of the definition of "major stationary source " in 9VAC5-80-2010 C.

"Major modification"

a. Means any physical change in or change in the method of operation of a major stationary source that would result in a significant emissions increase of a regulated NSR pollutant, and a significant net emissions increase of that pollutant from the major stationary source.

b. Any significant emissions increase from any emissions units or net emissions increase at a major stationary source that is significant for volatile organic compounds or NO_X shall be considered significant for ozone.

c. A physical change or change in the method of operation shall not include the following:

(1) Routine maintenance, repair and replacement.

(2) Use of an alternative fuel or raw material by reason of an order under § 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plant pursuant to the federal Power Act.

(3) Use of an alternative fuel by reason of any order or rule under § 125 of the federal Clean Air Act.

(4) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste.

(5) Use of an alternative fuel or raw material by a stationary source that:

(a) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally and state enforceable permit condition that was established after January 6, 1975, pursuant to 40 CFR 52.21 or this chapter; or

(b) The source is approved to use under any permit issued under 40 CFR 52.21 or this chapter.

(6) An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally and state enforceable permit condition that was established after January 6, 1975, pursuant to 40 CFR 52.21 or this chapter.

(7) Any change in ownership at a stationary source.

(8) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

(a) The applicable implementation plan; and

(b) Other requirements necessary to attain and maintain the ambient air quality standards during the project and after it is terminated.

(9) The installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis.

(10) The reactivation of a very clean coal-fired electric utility steam generating unit.

d. This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under 9VAC5-80-1865 for a PAL for that pollutant. Instead, the definition of "PAL major modification" shall apply.

"Major new source review (NSR) permit" means a permit issued under the major new source review program.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165 and 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Major stationary source"

a. Means:

(1) Any of the following stationary sources of air pollutants that emits, or has the potential to emit, 100 tons per year or more of any regulated NSR pollutant:

(a) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input.

(b) Coal cleaning plants (with thermal dryers).

(c) Kraft pulp mills.

(d) Portland cement plants.

(e) Primary zinc smelters.

(f) Iron and steel mill plants.

(g) Primary aluminum ore reduction plants.

(h) Primary copper smelters.

(i) Municipal incinerators capable of charging more than 250 tons of refuse per day.

(j) Hydrofluoric acid plants.

(k) Sulfuric acid plants.

(l) Nitric acid plants.

(m) Petroleum refineries.

(n) Lime plants.

(o) Phosphate rock processing plants.

(p) Coke oven batteries.

(q) Sulfur recovery plants.

(r) Carbon black plants (furnace process).

(s) Primary lead smelters.

(t) Fuel conversion plants.

(u) Sintering plants.

(v) Secondary metal production plants.

(w) Chemical process plants (which does not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

(x) Fossil fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

(y) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

(z) Taconite ore processing plants.

(aa) Glass fiber processing plants.

(bb) Charcoal production plants;

(2) Notwithstanding the stationary source size specified in subdivision a (1) of this definition, any stationary source that emits, or has the potential to emit, 250 tons per year or more of a regulated NSR pollutant; or

(3) Any physical change that would occur at a stationary source not otherwise qualifying under subdivision a (1) or a (2) of this definition as a major stationary source, if the change would constitute a major stationary source by itself.

b. A major stationary source that is major for volatile organic compounds or NO_X shall be considered major for ozone.

c. The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this article whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources:

(1) Coal cleaning plants (with thermal dryers).

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

(8) Municipal incinerators capable of charging more than 250 tons of refuse per day.

(9) Hydrofluoric, sulfuric, or nitric acid plants.

(10) Petroleum refineries.

(11) Lime plants.

(12) Phosphate rock processing plants.

(13) Coke oven batteries.

(14) Sulfur recovery plants.

(15) Carbon black plants (furnace process).

(16) Primary lead smelters.

(17) Fuel conversion plants.

(18) Sintering plants.

(19) Secondary metal production plants.

(20) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

(21) Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

(22) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

(23) Taconite ore processing plants.

(24) Glass fiber processing plants.

(25) Charcoal production plants.

(26) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input.

(27) Any other stationary source category that, as of August 7, 1980, is being regulated under 40 CFR Parts 60 and 61.

"Minor new source review (NSR) permit" means a permit issued under the minor new source review program.

"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation) that are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 6 (9VAC5-80-1100 et seq.) of this part.

"Necessary preconstruction approvals or permits" means those permits required under NSR programs that are part of the applicable implementation plan.

"Net emissions increase" means:

a. With respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

(1) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to 9VAC5-80-1605 G; and

(2) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under this subdivision shall be determined as provided in the definition of "baseline actual emissions," except that subdivisions a (3) and b (4) of that definition shall not apply.

b. An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between:

(1) The date five years before construction on the particular change commences; and

(2) The date that the increase from the particular change occurs.

c. An increase or decrease in actual emissions is creditable only if (i) it occurs between the date five years before construction on the particular change commences and the date that the increase from the particular change occurs; and (ii) the department has not relied on it in issuing a permit for the source under this article (or the administrator under 40 CFR 52.21), which permit is in effect when the increase in actual emissions from the particular change occurs.

d. An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available.

e. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

f. A decrease in actual emissions is creditable only to the extent that:

(1) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

(2) It is enforceable as a practical matter at and after the time that actual construction on the particular change begins; and

(3) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

g. An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

h. Subdivision a of the definition of "actual emissions" shall not apply for determining creditable increases and decreases.

"New source performance standard" or "NSPS" means the U.S. Environmental Protection Agency Regulations on Standards of Performance for New Stationary Sources as promulgated in 40 CFR Part 60 and designated in 9VAC5-50-410.

"New source review (NSR) permit" means a permit issued under the new source review program.

"New source review (NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations; and (iii) codified in Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Plantwide applicability limitation" or "PAL" means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established sourcewide in accordance with 9VAC5-80-1865.

"PAL effective date" generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

"PAL effective period" means the period beginning with the PAL effective date and ending 10 years later.

"PAL major modification" means, notwithstanding the definitions for major modification and net emissions increase, any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

"PAL permit" means the state operating permit issued by the department that establishes a PAL for a major stationary source.

"PAL pollutant" means the pollutant for which a PAL is established at a major stationary source.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally and state enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source. For the purposes of actuals PALs, any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable or enforceable as a practical matter by the state.

"Predictive emissions monitoring system" or "PEMS" means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O₂ or CO₂ concentrations), and calculate and record the mass emissions rate (for example, pounds per hour) on a continuous basis.

"Project" means a physical change in, or change in the method of operation of, an existing major stationary source.

"Projected actual emissions" means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the five years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source. In determining the projected actual emissions (before beginning actual construction), the owner of the major stationary source:

a. Shall consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the state or federal regulatory authorities, and compliance plans under the approved implementation plan;

b. Shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns, and malfunctions; and

c. Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have emitted during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth, provided such exclusion shall not reduce any calculated increases in emissions that are caused by, result from, or are related to the particular project; or

d. In lieu of using the method set out in subdivisions a through c of this definition, may elect to use the emissions unit's potential to emit, in tons per year.

"Reactivation of a very clean coal-fired electric utility steam generating unit" means any physical change or change in the method of operation associated with the commencement of commercial operations by a coal-fired utility unit after a period of discontinued operation where the unit:

a. Has not been in operation for the two-year period prior to the enactment of the federal Clean Air Act Amendments of 1990, and the emissions from such unit continue to be carried in the department's emissions inventory at the time of enactment;

b. Was equipped prior to shutdown with a continuous system of emissions control that achieves a removal efficiency for sulfur dioxide of no less than 85% and a removal efficiency for particulates of no less than 98%;

c. Is equipped with low-NOX burners prior to the time of commencement of operations following reactivation; and

d. Is otherwise in compliance with the requirements of the federal Clean Air Act.

"Reasonably available control technology" or "RACT" means the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available, considering technological and economic feasibility.

"Regulated NSR pollutant" means:

a. Any pollutant for which an ambient air quality standard has been promulgated. This includes, but is not limited to, the following:

(1) PM_2.5 emissions and PM₁₀ emissions shall include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures. On or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM_2.5 and PM₁₀ issued under this article. Compliance with emissions limitations for PM_2.5 and PM₁₀ issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this article.

(2) Any pollutant identified under this subdivision as a constituent or precursor to a pollutant for which an ambient air quality standard has been promulgated. Precursors identified for the purposes of this article shall be the following:

(a) Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and unclassifiable areas.

(b) Sulfur dioxide is a precursor to PM_2.5 in all attainment and unclassifiable areas.

(c) Nitrogen oxides are presumed to be precursors to PM_2.5 in all attainment and unclassifiable areas, unless the department determines that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM_2.5 concentrations.

(d) Volatile organic compounds are presumed not to be precursors to PM_2.5 in any attainment or unclassifiable area, unless the department determines that emissions of volatile organic compounds from sources in a specific area are a significant contributor to that area's ambient PM_2.5 concentrations.

b. Any pollutant that is subject to any standard promulgated under § 111 of the federal Clean Air Act.

c. Any class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act.

d. Any pollutant that otherwise is subject to regulation under the federal Clean Air Act; except that any or all hazardous air pollutants either listed in § 112 of the federal Clean Air Act or added to the list pursuant to § 112(b)(2), which have not been delisted pursuant to § 112(b)(3), are not regulated NSR pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under § 108 of the federal Clean Air Act.

"Replacement unit" means an emissions unit for which all the following criteria are met. No creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced.

a. The emissions unit is a reconstructed unit within the meaning of 40 CFR 60.15(b)(1), or the emissions unit completely takes the place of an existing emissions unit.

b. The emissions unit is identical to or functionally equivalent to the replaced emissions unit.

c. The replacement does not change the basic design parameters of the process unit.

d. The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.

"Repowering" means:

a. Replacement of an existing coal-fired boiler with one of the following clean coal technologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the administrator, in consultation with the Secretary of Energy, a derivative of one or more of these technologies, and any other technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of November 15, 1990.

b. Repowering shall also include any oil and/or gas-fired unit which has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Department of Energy.

c. The department may give expedited consideration to permit applications for any source that satisfies the requirements of this definition and is granted an extension under § 409 of the federal Clean Air Act.

"Secondary emissions" means emissions that would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this article, secondary emissions shall be specific, well defined, quantifiable, and affect the same general area as the stationary source or modification that causes the secondary emissions. Secondary emissions include emissions from any offsite support facility that would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions that come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

"Significant" means:

a. In reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

| Pollutant | Emissions Rate | | --- | --- | | Carbon Monoxide | 100 tons per year (tpy) | | Nitrogen Oxides | 40 tpy | | Sulfur Dioxide | 40 tpy | | Particulate Matter (TSP) | 25 tpy | | PM₁₀ | 15 tpy | | PM_2.5 | 10 tpy of direct PM_2.5 emissions; 40 tpy of SO₂ emissions; 40 tpy of NO_X emissions unless demonstrated not to be a PM_2.5 precursor under the definition of "regulated NSR pollutant" | | Ozone | 40 tpy of volatile organic compounds or NO_X | | Lead | 0.6 tpy | | Fluorides | 3 tpy | | Sulfuric Acid Mist | 7 tpy | | Hydrogen Sulfide (H₂S) | 10 tpy | | Total Reduced Sulfur (including H₂S) | 10 tpy | | Reduced Sulfur Compounds (including H₂S) | 10 tpy | | Municipal waste combustor organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins and dibenzofurans) | 3.5 x 10^-6 tpy | | Municipal waste combustor metals (measured as particulate matter) | 15 tpy | | Municipal waste combustor acid gases (measured as the sum of SO₂ and HCl) | 40 tpy | | Municipal solid waste landfills emissions (measured as nonmethane organic compounds) | 50 tpy |

b. In reference to a net emissions increase or the potential of a source to emit a regulated NSR pollutant that subdivision a of this definition does not list, any emissions rate.

c. Notwithstanding subdivision a of this definition, any emissions rate or any net emissions increase associated with a major stationary source or major modification that would construct within 10 kilometers of a class I area and have an impact on such area equal to or greater than 1 μg/m³ (24-hour average).

"Significant emissions increase" means, for a regulated NSR pollutant, an increase in emissions that is significant for that pollutant.

"Significant emissions unit" means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is significant for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit.

"Small emissions unit" means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant.

"State enforceable" means all limitations and conditions that are enforceable as a practical matter, including any regulation of the board, those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order or variance, and any permit requirements established pursuant to this chapter.

"State operating permit" means a permit issued under the state operating permit program.

"State operating permit program" means an operating permit program (i) for issuing limitations and conditions for stationary sources; (ii) promulgated to meet the EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for the EPA and public comment prior to issuance of the final permit, and practicable enforceability; and (iii) codified in Article 5 (9VAC5-80-800 et seq.) of this part.

"Stationary source" means any building, structure, facility, or installation that emits or may emit a regulated NSR pollutant.

"Temporary clean coal technology demonstration project" means a clean coal technology demonstration project that is operated for a period of five years or less, and that complies with the applicable implementation plan and other requirements necessary to attain and maintain the ambient air quality standards during the project and after it is terminated.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 25, Issue 20, eff. July 23, 2009; Volume 27, Issue 11, eff. March 2, 2011; Volume 27, Issue 23, eff. August 17, 2011; Volume 29, Issue 17, eff. May 22, 2013; Volume 31, Issue 22, eff. August 13, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1625 General

A. No owner or other person shall begin actual construction of any new major stationary source or major modification without first obtaining from the department a permit to construct and operate such source. The permit will state that the major stationary source or major modification shall meet all the applicable requirements of this article.

B. The requirements of this article apply to the construction of any new major stationary source or the major modification of any existing major stationary source, except as this article otherwise provides.

C. No owner or other person shall relocate any emissions unit from one stationary source to another without first obtaining a permit from the department to relocate the unit.

D. Prior to the decision of the department, all permit applications will be subject to a public comment period, a public hearing will be held as provided in 9VAC5-80-1775.

E. The department will take actions to combine permit terms and conditions as provided in 9VAC5-80-1915. Actions to combine permit terms and conditions involve relocating the terms and conditions contained in two or more permits issued to single stationary source to a single permit document. Actions to combine permit terms and conditions in and of themselves are not a mechanism for making changes to permits; such actions shall be taken under 9VAC5-80-1925 as explained in subsection F of this section.

F. The department will take actions to make changes to permit terms and conditions as provided in 9VAC5-80-1925. Nothing in this subsection is intended to imply that once an action has been taken to make a change to a permit, the resulting permit change may not be combined with other terms and conditions in a single permit document as provided in subsection E of this section.

G. All terms and conditions of any permit issued under this article shall be federally enforceable except those that are designated state-only enforceable under subdivision 1 of this subsection. Any term or condition that is not federally enforceable shall be designated as state-only enforceable as provided in subdivision 2 of this subsection.

1. A term or condition of any permit issued under this article shall not be federally enforceable if it is derived from or is designed to implement Article 2 (9VAC5-40-130 et seq.) of 9VAC5-40 (Existing Stationary Sources), Article 2 (9VAC5-50-130 et seq.) of 9VAC5-50 (New and Modified Stationary Sources), Article 4 (9VAC5-60-200 et seq.) of 9VAC5-60 (Hazardous Air Pollutant Sources), or Article 5 (9VAC5-60-300) of 9VAC5-60 (Hazardous Air Pollutant Sources).

2. Any term or condition of any permit issued under this article that is not federally enforceable shall be marked in the permit as state-only enforceable and shall only be enforceable by the department. Incorrectly designating a term or condition as state-only enforceable shall not provide a shield from federal enforcement of a term or condition that is legally federally enforceable.

H. Nothing in the regulations of the board shall be construed to prevent the department from granting permits for programs of construction or modification in planned incremental phases. In such cases, all net emissions increases from all emissions units covered by the program shall be added together for determining the applicability of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1635 Ambient air increments

In areas designated as class I, II or III, increases in pollutant concentration over the baseline concentration shall be limited to the following:

| MAXIMUM ALLOWABLE INCREASE (micrograms per cubic meter) | | | --- | --- | | Class I Area | | | PM_2.5: | | | Annual arithmetic mean | 1 | | 24 hour maximum | 2 | | PM₁₀: | | | Annual arithmetic mean | 4 | | 24 hour maximum | 8 | | Sulfur dioxide: | | | Annual arithmetic mean | 2 | | 24-hour maximum | 5 | | Three-hour maximum | 25 | | Nitrogen dioxide: | | | Annual arithmetic mean | 2.5 | | Class II Area | | | PM_2.5: | | | Annual arithmetic mean | 4 | | 24 hour maximum | 9 | | PM₁₀: | | | Annual arithmetic mean | 17 | | 24 hour maximum | 30 | | Sulfur dioxide: | | | Annual arithmetic mean | 20 | | 24-hour maximum | 91 | | Three-hour maximum | 512 | | Nitrogen dioxide: | | | Annual arithmetic mean | 25 | | Class III Area | | | PM_2.5: | | | Annual arithmetic mean | 8 | | 24 hour maximum | 18 | | PM₁₀: | | | Annual arithmetic mean | 34 | | 24 hour maximum | 60 | | Sulfur dioxide: | | | Annual arithmetic mean | 40 | | 24-hour maximum | 182 | | Three-hour maximum | 700 | | Nitrogen dioxide: | | | Annual arithmetic mean | 50 |

For any period other than an annual period, the applicable maximum allowable increase may be exceeded during one such period per year at any one location.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, and 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-80-1645 Ambient air ceilings

No concentration of a pollutant shall exceed:

1. The concentration permitted under the secondary ambient air quality standard, or

2. The concentration permitted under the primary ambient air quality standard, whichever concentration is lowest for the pollutant for a period of exposure.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1655 Applications

A. A single application is required identifying at a minimum each emissions unit subject to the provisions of this article. The application shall be submitted according to procedures acceptable to the department. However, where several emissions units are included in one project, a single application covering all units in the project may be submitted. A separate application is required for each location.

B. For projects with phased development, a single application may be submitted covering the entire project.

C. Any application form, report, or certification submitted to the department shall comply with the provisions of 9VAC5-20-230.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1665 Compliance with local zoning requirements

No provision of this part or any permit issued thereunder shall relieve an owner of the responsibility to comply in all respects with any existing zoning ordinances and regulations in the locality in which the source is located or proposes to be located; provided, however, that such compliance does not relieve the department of its duty under 9VAC5-170-170 and § 10.1-1307 E of the Virginia Air Pollution Control Law to independently consider relevant facts and circumstances.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1675 Compliance determination and verification by performance testing

A. Compliance with standards of performance shall be determined in accordance with the provisions of 9VAC5-50-20 and shall be verified by performance tests in accordance with the provisions of 9VAC5-50-30.

B. Testing required by this section shall be conducted within 60 days by the owner after achieving the maximum production rate at which the new or modified source will be operated, but not later than 180 days after initial startup of the source; and 60 days thereafter the department shall be provided by the owner with two or, upon request, more copies of a written report of the results of the tests.

C. The requirements of this section shall be met unless the department:

1. Specifies or approves, in specific cases, the use of a reference method with minor changes in methodology;

2. Approves the use of an equivalent method;

3. Approves the use of an alternative method, the results of which the department has determined to be adequate for indicating whether a specific source is in compliance;

4. Waives the requirement for testing because, based upon a technical evaluation of the past performance of similar source types, using similar control methods, the department reasonably expects the new or modified source to perform in compliance with applicable standards; or

5. Waives the requirement for testing because the owner of the source has demonstrated by other means to the department's satisfaction that the source is in compliance with the applicable standard.

D. The provisions for the granting of waivers under subsection C of this section are intended for use in determining the initial compliance status of a source. The granting of a waiver does not obligate the department to grant any waivers once the source has been in operation for more than one year beyond the initial startup date.

E. The granting of a waiver under this section does not shield the source from potential enforcement of any permit term or condition, applicable requirements of the implementation plan, or any other applicable federal requirements promulgated under the federal Clean Air Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1685 Stack heights

A. The provisions of 9VAC5-50-20 H apply.

B. Prior to issuing a permit with a new or revised emission limitation that is based on a good engineering practice stack height that exceeds the height allowed by subdivision 1 or 2 of the GEP definition in 9VAC5-10-20, the department will notify the public of the availability of the demonstration study specified in subdivision 3 of the GEP definition and will provide opportunity for public hearing on it using the procedures set forth in 9VAC5-80-1775.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1695 Exemptions

A. The requirements of this article shall not apply to a particular major stationary source or major modification if:

1. The source or modification would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the following categories:

a. Coal cleaning plants (with thermal dryers).

b. Kraft pulp mills.

c. Portland cement plants.

d. Primary zinc smelters.

e. Iron and steel mills.

f. Primary aluminum ore reduction plants.

g. Primary copper smelters.

h. Municipal incinerators capable of charging more than 250 tons of refuse per day.

i. Hydrofluoric acid plants.

j. Sulfuric acid plants.

k. Nitric acid plants.

l. Petroleum refineries.

m. Lime plants.

n. Phosphate rock processing plants.

o. Coke oven batteries.

p. Sulfur recovery plants.

q. Carbon black plants (furnace process).

r. Primary lead smelters.

s. Fuel conversion plants.

t. Sintering plants.

u. Secondary metal production plants.

v. Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

w. Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

x. Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

y. Taconite ore processing plants.

z. Glass fiber processing plants.

aa. Charcoal production plants.

bb. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input.

cc. Any other stationary source category which, as of August 7, 1980, is being regulated under 40 CFR Part 60 or 61; or

2. The source or modification is a portable stationary source that has previously received a permit under this article, and

a. The owner proposes to relocate the source and emissions of the source at the new location would be temporary;

b. The emissions from the source would not exceed its allowable emissions;

c. The emissions from the source would affect no class I area and no area where an applicable increment is known to be violated; and

d. Reasonable notice is given to the department prior to the relocation identifying the proposed new location and the probable duration of operation at the new location. Such notice shall be given to the department not less than 10 days in advance of the proposed relocation unless a different time duration is previously approved by the department.

B. The requirements of this article shall not apply to a major stationary source or major modification with respect to a particular pollutant if the owner demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment in 9VAC5-20-204.

C. The requirements of 9VAC5-80-1715, 9VAC5-80-1735, and 9VAC5-80-1755 shall not apply to a major stationary source or major modification with respect to a particular pollutant, if the allowable emissions of that pollutant from the source, or the net emissions increase of that pollutant from the modification:

1. Would affect no class I area and no area where an applicable increment is known to be violated; and

2. Would be temporary.

D. The requirements of 9VAC5-80-1715, 9VAC5-80-1735, and 9VAC5-80-1755 as they relate to any maximum allowable increase for a class II area shall not apply to a major modification at a stationary source that was in existence on March 1, 1978, if the net increase in allowable emissions of each regulated NSR pollutant from the modification after the application of best available control technology would be less than 50 tons per year.

E. The department may exempt a proposed major stationary source or major modification from the requirements of 9VAC5-80-1735 with respect to monitoring for a particular pollutant if:

1. The emissions increase of the pollutant from the new source or the net emissions increase of the pollutant from the modification would cause, in any area, air quality impacts less than the following amounts:

Carbon monoxide -- 575 μg/m³, 8-hour average

Nitrogen dioxide -- 14 μg/m³, annual average

PM_2.5 -- 0 µg/m³, 24-hour average*

PM₁₀ -- 10 µg/m³, 24-hour average

Sulfur dioxide -- 13 μg/m³, 24-hour average

Ozone**

Lead -- 0.1 μg/m³, 3-month average

Fluorides -- 0.25 μg/m³, 24-hour average

Total reduced sulfur -- 10 μg/m³, 1-hour average

Hydrogen sulfide -- 0.2 μg/m³, 1-hour average

Reduced sulfur compounds -- 10 μg/m³, 1-hour average; or

*No exemption is available with regard to PM_2.5.

**No de minimis air quality level is provided for ozone. However, any net increase of 100 tons per year or more of volatile organic compounds or NO_X subject to this article would be required to perform an ambient impact analysis including the gathering of ambient air quality data.

2. The concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in subdivision 1 of this subsection, or the pollutant is not listed in subdivision 1 of this subsection.

F. The requirements of this article shall not apply to a particular major stationary source with respect to the use of an alternative fuel or raw material if the following conditions are met:

1. The owner demonstrates to the department that, as a result of trial burns at the owner's facility or other facilities or other sufficient data, the emissions resulting from the use of the alternative fuel or raw material supply are decreased. No demonstration will be required for the use of processed animal fat, processed fish oil, processed vegetable oil, distillate oil, or any mixture thereof in place of the same quantity of residual oil to fire industrial boilers.

2. The use of an alternative fuel or raw material would not be subject to review under this article as a major modification.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 25, Issue 20, eff. July 23, 2009; Volume 27, Issue 11, eff. March 2, 2011; Volume 27, Issue 23, eff. August 17, 2011; Volume 30, Issue 18, eff. June 4, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1700 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1705 Control technology review

A. A major stationary source or major modification shall meet each applicable emissions limitation under the implementation plan and each applicable emissions standard and standard of performance under 40 CFR Parts 60, 61 and 63.

B. A new major stationary source shall apply best available control technology for each regulated NSR pollutant that it would have the potential to emit in significant amounts.

C. A major modification shall apply best available control technology for each regulated NSR pollutant for which it would result in a significant net emissions increase at the source. This requirement applies to each proposed emissions unit at which a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation in the unit.

D. For phased construction projects, the determination of best available control technology shall be reviewed and modified as appropriate at the latest reasonable time that occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the owner of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of best available control technology for the source.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1710 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1715 Source impact analysis

A. The owner of the proposed source or modification shall demonstrate that allowable emission increases from the proposed source or modification, in conjunction with all other applicable emissions increases or reductions (including secondary emissions), would not cause or contribute to air pollution in violation of:

1. Any ambient air quality standard in any air quality control region; or

2. Any applicable maximum allowable increase over the baseline concentration in any area.

B. The following applies to any new major stationary source or major modification if it would cause or contribute to a violation of any ambient air quality standard.

1. A new major stationary source or major modification will be considered to cause or contribute to a violation of an ambient air quality standard when such source or modification would, at a minimum, exceed the following significance levels at any locality that does not or would not meet the applicable air quality standard:

| Pollutant | Annual | Averaging time (hours) | | | | | --- | --- | --- | --- | --- | --- | | 24 | 8 | 3 | 1 | | | | SO₂ | 1.0 μg/m³ | 5.0 μg/m³ | | 25.0 μg/m³ | | | PM₁₀ | 1.0 μg/m³ | 5.0 μg/m³ | | | | | PM_2.5 | 0.3 mg/m³ | 1.2 mg/m³ | | | | | NO₂ | 1.0 μg/m³ | | | | | | CO | | | 500 μg/m³ | | 2000 μg/m³ |

2. A proposed new major stationary source or major modification may reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to, at a minimum, compensate for its adverse ambient impact where the new major stationary source or major modification would otherwise cause or contribute to a violation of any ambient air quality standard. In the absence of such emission reductions, the department will deny the proposed construction.

3. The requirements of this subsection do not apply to a major stationary source or major modification with respect to a particular pollutant if the owner demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment in 9VAC5-20-204.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Volume 30, Issue 18, eff. June 4, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1720 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1725 Air quality models

A. All applications of air quality modeling involved in this article shall be based on the applicable air quality models, data bases, and other requirements specified in Appendix W to 40 CFR Part 51.

B. Where an air quality impact model specified in Appendix W to 40 CFR Part 51 is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis, or, where appropriate, on a generic basis for a specific state program. Written approval of the administrator shall be obtained for any modification or substitution. In addition, use of a modified or substituted model shall be subject to notice and opportunity for public comment under procedures developed in accordance with 9VAC5-80-1775.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1730 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1735 Air quality analysis

A. Preapplication analysis shall be conducted as follows:

1. Any application for a permit under this article shall contain an analysis of ambient air quality in the area that the major stationary source or major modification would affect for each of the following pollutants:

a. For the source, each pollutant that it would have the potential to emit in a significant amount;

b. For the modification, each pollutant for which it would result in a significant net emissions increase.

2. With respect to any such pollutant for which no ambient air quality standard exists, the analysis shall contain such air quality monitoring data as the department determines is necessary to assess ambient air quality for that pollutant in any area that the emissions of that pollutant would affect.

3. With respect to any such pollutant (other than nonmethane hydrocarbons) for which such a standard does exist, the analysis shall contain continuous air quality monitoring data gathered for purposes of determining whether emissions of that pollutant would cause or contribute to a violation of the standard or any maximum allowable increase.

4. In general, the continuous air quality monitoring data that is required shall have been gathered over a period of at least one year and shall represent at least the year preceding receipt of the application, except that, if the department determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year (but not to be less than four months), the data that is required shall have been gathered over at least that shorter period.

5. The owner of a proposed stationary source or modification of volatile organic compounds who satisfies all conditions of §IV of Appendix S to 40 CFR Part 51 may provide post-approval monitoring data for ozone in lieu of providing preconstruction data as required under this subsection.

B. The owner of a major stationary source or major modification shall, after construction of the stationary source or modification, conduct such ambient monitoring as the department determines is necessary to determine the effect emissions from the stationary source or modification may have, or are having, on air quality in any area.

C. The owner of a major stationary source or major modification shall meet the requirements of Appendix B to 40 CFR Part 58 during the operation of monitoring stations for purposes of satisfying this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1740 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1745 Source information

The owner of a proposed source or modification shall submit all information necessary to perform any analysis or make any determination required under this article.

A. With respect to a source or modification to which 9VAC5-80-1705, 9VAC5-80-1715, 9VAC5-80-1735, and 9VAC5-80-1755 apply, such information shall include:

1. A description of the nature, location, design capacity, and typical operating schedule of the source or modification, including specifications and drawings showing its design and plant layout;

2. A detailed schedule for construction of the source or modification;

3. A detailed description as to what system of continuous emission reduction is planned for the source or modification, emission estimates, and any other information necessary to determine that best available control technology would be applied.

B. Upon request of the department, the owner shall also provide information on:

1. The air quality impact of the source or modification, including meteorological and topographical data necessary to estimate such impact; and

2. The air quality impacts, and the nature and extent of any or all general commercial, residential, industrial, and other growth that has occurred since the baseline date in the area the source or modification would affect.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1750 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1755 Additional impact analyses

A. The owner shall provide an analysis of the impairment to visibility, soils and vegetation that would occur as a result of the source or modification and general commercial, residential, industrial and other growth associated with the source or modification. The owner need not provide an analysis of the impact on vegetation having no significant commercial or recreational value.

B. The owner shall provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial and other growth associated with the source or modification.

C. The department may require monitoring of visibility in any federal class I area near the proposed new stationary source or major modification for such purposes and by such means as the department deems necessary and appropriate.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1760 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1765 Sources affecting federal class I areas -- additional requirements

A. The department shall transmit to the administrator a copy of each permit application relating to a major stationary source or major modification and provide notice to the administrator of the following actions related to the consideration of such permit:

1. Notification of the permit application status as provided in 9VAC5-80-1773 A.

2. Notification of the public comment period on the application as provided in 9VAC5-80-1775 F 2.

3. Notification of the final determination on the application and issuance of the permit as provided in 9VAC5-80-1773 D.

4. Notification of any other action deemed appropriate by the department.

B. The department shall provide written notice of any permit application for a proposed major stationary source or major modification, the emissions from which may affect a class I area, to the federal land manager and the federal official charged with direct responsibility for management of any lands within any such area. Such notification shall include a copy of all information relevant to the permit application and shall be given within 30 days of receipt and at least 60 days prior to any public hearing on the application for a permit to construct. Such notification shall include an analysis of the proposed source's anticipated impacts on visibility in the federal class I area. The department shall also provide the federal land manager and such federal officials with a copy of the preliminary determination required under 9VAC5-80-1773 B, and shall make available to them any materials used in making that determination, promptly after the department makes such determination. Finally, the department shall also notify all affected federal land managers within 30 days of receipt of any advance notification of any such permit application.

C. The federal land manager and the federal official charged with direct responsibility for management of such lands have an affirmative responsibility to protect the air quality related values (including visibility) of such lands and to consider, in consultation with the department, whether a proposed source or modification will have an adverse impact on such values.

D. The department shall consider any analysis performed by the federal land manager, provided within 30 days of the notification required by subsection B of this section, that shows that a proposed new major stationary source or major modification may have an adverse impact on visibility in any federal class I area. Where the department finds that such an analysis does not demonstrate to the satisfaction of the department that an adverse impact on visibility will result in the federal class I area, the department shall, in the notice of public hearing on the permit application, either explain this decision or give notice as to where the explanation can be obtained.

E. The federal land manager of any such lands may demonstrate to the department that the emissions from a proposed source or modification would have an adverse impact on the air quality-related values (including visibility) of those lands, notwithstanding that the change in air quality resulting from emissions from such source or modification would not cause or contribute to concentrations that would exceed the maximum allowable increases for a class I area. If the department concurs with such demonstration, then it shall not issue the permit.

F. The owner of a proposed source or modification may demonstrate to the federal land manager that the emissions from such source or modification would have no adverse impact on the air quality related values of any such lands (including visibility), notwithstanding that the change in air quality resulting from emissions from such source or modification would cause or contribute to concentrations that would exceed the maximum allowable increases for a class I area. If the federal land manager concurs with such demonstration and so certifies, the department may, provided that the applicable requirements of this article are otherwise met, issue the permit with such emission limitations as may be necessary to assure that emissions of sulfur dioxide, PM_2.5, PM₁₀, and nitrogen oxides would not exceed the following maximum allowable increases over minor source baseline concentration for such pollutants:

| MAXIMUM ALLOWABLE INCREASE (micrograms per cubic meter) | | | | --- | --- | --- | | PM_2.5: | | | | | Annual arithmetic mean | 4 | | | 24 hour maximum | 9 | | PM₁₀: | | | | | Annual arithmetic mean | 17 | | | 24 hour maximum | 30 | | Sulfur dioxide: | | | | | Annual arithmetic mean | 20 | | | 24-hour maximum | 91 | | | Three-hour maximum | 325 | | Nitrogen dioxide: | | | | | Annual arithmetic mean | 25 |

G. The owner of a proposed source or modification that cannot be approved under subsection F of this section may demonstrate to the governor that the source or modification cannot be constructed by reason of any maximum allowable increase for sulfur dioxide for a period of 24 hours or less applicable to any class I area and, in the case of federal mandatory class I areas, that a variance under this clause would not adversely affect the air quality related values of the area (including visibility). The governor, after consideration of the federal land manager's recommendation (if any) and subject to the federal land manager's concurrence, may, after notice and public hearing, grant a variance from such maximum allowable increase. If such variance is granted, the department shall issue a permit to such source or modification pursuant to the requirements of subsection I of this section, provided that the applicable requirements of this article are otherwise met.

H. In any case whether the governor recommends a variance in which the federal land manager does not concur, the recommendations of the governor and the federal land manager shall be transmitted to the president. The president may approve the governor's recommendation if he finds that the variance is in the national interest. If the variance is approved, the department shall issue a permit pursuant to the requirements of subsection I of this section, provided that the applicable requirements of this article are otherwise met.

I. In the case of a permit issued pursuant to subsection G or H of this section the source or modification shall comply with such emission limitations as may be necessary to assure that emissions of sulfur dioxide from the source or modification would not (during any day on which the otherwise applicable maximum allowable increases are exceeded) cause or contribute to concentrations that would exceed the following maximum allowable increases over the baseline concentration and to assure that such emissions would not cause or contribute to concentrations which exceed the otherwise applicable maximum allowable increases for periods of exposure of 24 hours or less for more than 18 days, not necessarily consecutive, during any annual period:

| MAXIMUM ALLOWABLE INCREASE (micrograms per cubic meter) | | | | --- | --- | --- | | Period of exposure | Low terrain areas | High terrain areas | | 24-hour maximum | 36 | 62 | | 3-hour maximum | 130 | 221 |

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 27, Issue 23, eff. August 17, 2011; Errata, 27:24 VA.R. 2646 August 1, 2011; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1770 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1773 Action on permit application

A. Within 30 days after receipt of an application, the department will notify the applicant of the status of the application. The notification of the initial determination with regard to the status of the application will be provided by the department in writing and will include (i) a determination as to which provisions of the new source review program are applicable, (ii) the identification of any deficiencies, and (iii) a determination as to whether the application contains sufficient information to begin application review. The determination that the application has sufficient information to begin review is not necessarily a determination that it is complete. Within 30 days after receipt of any additional information, the department will notify the applicant in writing of any deficiencies in such information. The date of receipt of a complete application shall be, for the purpose of this article, the date on which the department received all required information and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met, if applicable.

B. The department will normally process an application according to the steps specified in subdivisions 1 through 4 of this subsection. Processing time for these steps is normally one year following receipt of a complete application. The department may extend this time period if additional information is needed.

1. Complete the preliminary review and analysis in accordance with 9VAC5-80-1705 and the preliminary determination whether construction should be approved, approved with conditions, or disapproved.

2. Complete the public participation requirements in accordance with 9VAC5-80-1775.

3. Consider the public comments received in accordance with 9VAC5-80-1775.

4. Complete the final review and analysis and the final determination of the department.

C. The department will consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing required by 9VAC5-80-1775 E in making a final decision on the application. No later than 10 days after the close of the public comment period, the applicant may submit a written response to any comments submitted by the public. The department will consider the applicant's response in making a final decision. The department will make all comments available for public inspection in the same locations where the department made available preconstruction information relating to the proposed source or modification.

D. After completion of the steps in subsections B and C of this section, the department will take final action on the application as provided in Part I (9VAC5-80-5 et seq.) of this chapter.

E. The department will notify the applicant in writing of the final decision and make such notification available for public inspection at the same location where the department made available preconstruction information and public comments relating to the source or modification.

F. The applicant may appeal the decision pursuant to Part VIII (9VAC5-170-190 et seq.) of 9VAC5-170 (Regulation for General Administration).

G. Within five days after notification to the applicant pursuant to subsection C of this section, the notification and any comments received pursuant to the public comment period and public hearing will be made available for public inspection at the same location as was the information in 9VAC5-80-1775 F 1.

H. In granting a permit pursuant to this section, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit pursuant to this section, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1775 Public participation

A. No later than 30 days after receiving the initial determination notification required under 9VAC5-80-1773 A, the applicant shall notify the public about the proposed source as required in subsection B of this section. The applicant shall also provide an informational briefing about the proposed source for the public as required in subsection C of this section.

B. The public notice required under subsection A of this section shall be placed by the applicant in at least one newspaper of general circulation in the affected air quality control region. The notice shall be approved by the department and shall include (i) the name, location, and type of the source and (ii) the time and place of the informational briefing.

C. The informational briefing shall be held in the locality where the source is or will be located and at least 30 days, but no later than 60 days, following the day of the publication of the public notice in the newspaper. The applicant shall inform the public about the operation and potential air quality impact of the source and answer any questions concerning air quality about the proposed source from those in attendance at the briefing. At a minimum, the applicant shall provide information on and answer questions about (i) specific pollutants and the total quantity of each which the applicant estimates will be emitted and (ii) the control technology proposed to be used at the time of the informational briefing. Representatives from the department will attend and provide information and answer questions on the permit application review process.

D. Upon a determination by the department that an alternative plan will achieve the desired results in an equally effective manner, an applicant for a permit may implement an alternative plan for notifying the public as required in subsection B of this section and for providing the informational briefing as required in subsection C of this section.

E. The department will provide opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the source or modification, alternatives to the source or modification, the control technology required, and other appropriate considerations.

F. The department will notify the public by advertisement in a newspaper of general circulation in each region in which the proposed source or modification would be constructed of the application, the preliminary determination, the degree of increment consumption that is expected from the source or modification, and the opportunity for comment at a public hearing as well as written public comment. The notification will contain a statement of the estimated local impact of the proposed source or modification, which at a minimum will provide information regarding specific pollutants and the total quantity of each that may be emitted, and will list the type and quantity of any fuels to be used. The notification will be published at least 30 days prior to the day of the public hearing. Written comments will be accepted by the board for at least 15 days after any hearing.

1. All materials the applicant submitted, exclusive of confidential information under 9VAC5-170-60; a copy of the preliminary determination; and a copy or summary of other materials, if any, considered in making the preliminary determination will be available for public inspection during the entire public comment period in at least one location in the affected air quality control region.

2. A copy of the notice will be sent to the applicant, the administrator, and to officials and agencies having cognizance over the location where the proposed construction would occur as follows: (i) local air pollution control agencies, (ii) the chief elected official and chief administrative officer of the city and county where the source or modification would be located and of any other locality particularly affected, (iii) the planning district commission, and (iv) any state, federal land manager, or Indian governing body whose lands may be affected by emissions from the source or modification.

3. Notices of public comment periods and public hearings for major stationary sources and major modifications published under this section shall meet the requirements of § 10.1-1307.01 of the Virginia Air Pollution Control Law.

G. Reserved.

H. The department will take final action on the application as provided in 9VAC5-80-1773 D.

I. In order to facilitate the efficient issuance of permits under Articles 1 (9VAC5-80-50 et seq.) and 3 (9VAC5-80-360 et seq.) of this part, upon request of the applicant the department will process the permit application under this article using public participation procedures meeting the requirements of this section and 9VAC5-80-270 or 9VAC5-80-670, as applicable.

J. If appropriate, the department may hold a public briefing on the preliminary determination prior to the public comment period but no later than the day before the beginning of the public comment period. The department will notify the public of the time and place of the briefing by advertisement in a newspaper of general circulation in the air quality control region in which the proposed source or modification would be constructed. The notification will be published at least 30 days prior to the day of the briefing.

K. If the department finds that there is a locality particularly affected by (i) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (ii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a new fossil fuel-fired compressor station facility used to transport natural gas, or (iv) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas:

1. The applicant shall perform the following:

a. Publish a notice in at least one local paper of general circulation in any locality particularly affected at least 60 days prior to the close of any public comment period. Such notice shall (i) contain a statement of the estimated local impact of the proposed action; (ii) provide information regarding specific pollutants and the total quantity of each that may be emitted; (iii) list the type, quantity, and source of any fuel to be used; (iv) advise the public as to the date and location of a public hearing; and (v) advise the public where to obtain information regarding the proposed action. The department shall post such notice on the department website and on a department social media account; and

b. Mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.

2. The department shall post the notice required in subdivision 1 a of this subsection on the department website and on a department social media account.

3. Written comments shall be accepted by the department for at least 30 days after any hearing on such variance or permit, unless the director chooses to shorten the period.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1780 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1785 Source obligation

A. Any owner who constructs or operates a source or modification not in accordance (i) with the application submitted pursuant to this article or (ii) with the terms and conditions of any permit to construct or operate, or any owner of a source or modification subject to this article who commences construction or operation without applying for and receiving a permit hereunder, shall be subject to appropriate enforcement action including, but not limited to, any specified in 9VAC5-80-1985.

B. The provisions of this subsection apply to projects at an existing emissions unit at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner elects to use the method specified in subdivisions a through c of the definition of "projected actual emissions" for calculating projected actual emissions.

1. Before beginning actual construction of the project, the owner shall document and maintain a record of the following information:

a. A description of the project;

b. Identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could be affected by the project; and

c. A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under subdivision c of the definition of "projected actual emissions" and an explanation for why such amount was excluded, and any netting calculations, if applicable.

2. If the emissions unit is an existing electric utility steam generating unit, no less than 30 days before beginning actual construction, the owner shall provide a copy of the information set out in subdivision 1 of this subsection to the department. Nothing in this subdivision shall be construed to require the owner of such a unit to obtain any determination from the department before beginning actual construction.

3. The owner shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in subdivision 1 b of this section; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of five years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity of or potential to emit that regulated NSR pollutant at such emissions unit.

4. If the unit is an existing electric utility steam generating unit, the owner shall submit a report to the department within 60 days after the end of each calendar year during which records must be generated under subdivision 3 of this subsection setting out the unit's annual emissions during the calendar year that preceded submission of the report.

5. If the unit is an existing unit other than an electric utility steam generating unit, the owner shall submit a report to the department if the annual emissions, in tons per year, from the project identified in subdivision 1 of this subsection, exceed the baseline actual emissions (as documented and maintained pursuant to subdivision 1 c of this subsection), by a significant amount for that regulated NSR pollutant, and if such emissions differ from the preconstruction projection as documented and maintained pursuant to subdivision 1 c of this subsection. Such report shall be submitted to the department within 60 days after the end of such calendar year. The report shall contain the following:

a. The name, address and telephone number of the major stationary source;

b. The annual emissions as calculated pursuant to subdivision 3 of this subsection; and

c. Any other information that the owner wishes to include in the report (for example, an explanation as to why the emissions differ from the preconstruction projection).

C. The owner of the source shall make the information required to be documented and maintained pursuant to subsection B of this section available for review upon a request for inspection by the department or the general public pursuant to the requirements contained in 9VAC5-170-60.

D. Approval to construct shall not relieve any owner of the responsibility to comply fully with applicable provisions of the implementation plan and any other requirements under local, state or federal law.

E. For each project subject to subsection B of this section, the owner shall provide notice of the availability of the information set out in subdivision B 1 of this section to the department no less than 30 days before beginning actual construction. The notice shall include the location of the information and the name, address and telephone number of the contact from whom the information may be obtained. Should subsequent information become available to the department to indicate that a given project subject to subsection B is a part of a major modification that resulted in a significant emissions increase, the department will proceed as if the owner is in violation of 9VAC5-80-1625 A and may institute appropriate enforcement action as provided in subsection A of this section. Nothing in this subsection shall be construed to require the owner of the source to obtain any determination from the department before beginning actual construction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1790 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1795 Environmental impact statements

Whenever any proposed source or modification is subject to action by a federal agency that might necessitate preparation of an environmental impact statement pursuant to the National Environmental Policy Act (42 USC 4321), review conducted pursuant to this article shall be coordinated by the administrator with the broad environmental reviews under that Act and under § 309 of the federal Clean Air Act to the maximum extent feasible and reasonable.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1800 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1805 Disputed permits

If a permit is proposed to be issued for any major stationary source or major modification proposed for construction in any state that the governor of an affected state or Indian governing body of an affected tribe determines will cause or contribute to a cumulative change in air quality in excess of that allowed in this part within the affected state or Indian reservation, the governor or Indian governing body may request the administrator to enter into negotiations with the persons involved to resolve such dispute. If requested by any state or Indian governing body involved, the administrator shall make a recommendation to resolve the dispute and protect the air quality related values of the lands involved. If the persons involved do not reach agreement, the administrator shall resolve the dispute. The administrator's determination, or the results of agreements reached through other means, shall become part of the applicable implementation plan and shall be enforceable as part of such plan.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1810 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1815 Interstate pollution abatement

A. The owner of each source or modification, which may significantly contribute to levels of air pollution in excess of an ambient air quality standard in any air quality control region outside the Commonwealth, shall provide written notice to all nearby states of the air pollution levels that may be affected by such source at least 60 days prior to the date of commencement of construction.

B. Any state or political subdivision may petition the administrator for a finding that any source or modification emits or would emit any air pollutant in amounts that will prevent attainment or maintenance of any ambient air quality standard or interfere with measures for the prevention of significant deterioration or the protection of visibility in the implementation plan for such state. Within 60 days after receipt of such petition and after a public hearing, the administrator will make such a finding or deny the petition.

C. Notwithstanding any permit granted pursuant to this article, no owner or other person shall commence construction or modification or begin operation of a source to which a finding has been made under the provisions of subsection B of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1820 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1825 Innovative control technology

A. Prior to the close of the public comment period under 9VAC5-80-1775, an owner of a proposed major stationary source or major modification may request, in writing, that the department approve a system of innovative control technology.

B. The department, with the consent of the governor(s) of affected state(s), will determine that the source or modification may employ a system of innovative control technology, if:

1. The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function;

2. The owner agrees to achieve a level of continuous emissions reduction equivalent to that which would have been required under 9VAC5-80-1705 B by a date specified by the department. Such date shall not be later than four years from the time of startup or seven years from permit issuance;

3. The source or modification would meet the requirements of 9VAC5-80-1705 and 9VAC5-80-1715 based on the emissions rate that the stationary source employing the system of innovative control technology would be required to meet on the date specified by the department;

4. The source or modification would not, before the date specified by the department:

a. Cause or contribute to a violation of an applicable ambient air quality standard; or

b. Affect any area where an applicable increment is known to be violated;

5. All other applicable requirements including those for public participation have been met; and

6. The provisions of 9VAC5-80-1765 (relating to class I areas) have been satisfied with respect to all periods during the life of the source or modification.

C. The department will withdraw any approval to employ a system of innovative control technology made under this article, if:

1. The proposed system fails by the specified date to achieve the required continuous emissions reduction rate; or

2. The proposed system fails before the specified date so as to contribute to an unreasonable risk to public health, welfare, or safety; or

3. The department decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety.

D. If a source or modification fails to meet the requirement level of continuous emission reduction within the specified time period or the approval is withdrawn in accordance with subsection C of this section, the department may allow the source or modification up to an additional three years to meet the requirement for the application of best available control technology through use of a demonstrated system of control.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1830 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1835 [Reserved]

Historical Notes

Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1840 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1845 [Reserved]

Historical Notes

Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1850 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1855 [Reserved]

Historical Notes

Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1860 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1865 Actuals plantwide applicability limits (PALs)

A. The department may approve the use of an actuals PAL for any existing major stationary source if the PAL meets the requirements of this section. The term "PAL" shall mean "actuals PAL" throughout this section.

1. Any physical change in or change in the method of operation of a major stationary source that maintains its total sourcewide emissions below the PAL level, meets the requirements of this section, and complies with the PAL permit:

a. Is not a major modification for the PAL pollutant;

b. Does not have to be approved through this article; and

c. Is not subject to the provisions in 9VAC5-80-1605 C (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

2. Except as provided under subdivision 1 c of this subsection, a major stationary source shall continue to comply with all applicable federal or state requirements, emission limitations, and work practice requirements that were established prior to the effective date of the PAL.

B. As part of a permit application requesting a PAL, the owner of a major stationary source shall submit the following information to the department for approval:

1. A list of all emissions units at the source designated as small, significant, or major based on their potential to emit. In addition, the owner of the source shall indicate which, if any, federal or state applicable requirements, emission limitations, or work practices apply to each unit.

2. Calculations of the baseline actual emissions (with supporting documentation). Baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown, and malfunction.

3. The calculation procedures that the major stationary source owner proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by subdivision N 1 of this section.

C. The general requirements set forth in this subsection shall apply to the establishment of PALs.

1. The department may establish a PAL at a major stationary source, provided that at a minimum, the following requirements are met:

a. The PAL shall impose an annual emission limitation in tons per year that is enforceable as a practical matter for the entire major stationary source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major stationary source owner shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.

b. The PAL shall be established in a PAL permit that meets the public participation requirements in subsection D of this section.

c. The PAL permit shall contain all the requirements of subsection F of this section.

d. The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source.

e. Each PAL shall regulate emissions of only one pollutant.

f. Each PAL shall have a PAL effective period of 10 years.

g. The owner of the major stationary source with a PAL shall comply with the monitoring, recordkeeping, and reporting requirements provided in subsections M, N, and O of this section for each emissions unit under the PAL through the PAL effective period.

2. At no time during or after the PAL effective period are emissions reductions of a PAL pollutant that occur during the PAL effective period creditable as decreases for purposes of offsets under 9VAC5-80-2120 F through N unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

D. PALs for existing major stationary sources shall be established, renewed, or increased through the public participation procedures prescribed in the applicable permit programs identified in the definition of PAL permit. In no case may the department issue a PAL permit unless the department provides the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The department will address all material comments before taking final action on the permit.

E. The actuals PAL level for a major stationary source shall be established as the sum of the baseline actual emissions of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant (as reflected in the definition of "significant") level for the PAL pollutant. When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period shall be used to determine the baseline actual emissions for all existing emissions units. However, a different consecutive 24-month period may be used for each different PAL pollutant. Emissions associated with units that were permanently shut down after this 24-month period shall be subtracted from the PAL level. Emissions from units on which actual construction began after the 24-month period shall be added to the PAL level in an amount equal to the potential to emit of the units. The department will specify a reduced PAL level or levels (in tons per year) in the PAL permit to become effective on the future compliance dates of any applicable federal or state regulatory requirements that the department is aware of prior to issuance of the PAL permit. For instance, if the source owner will be required to reduce emissions from industrial boilers in half from baseline emissions of 60 ppm NO_X to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such units.

F. The PAL permit shall contain, at a minimum, the following information:

1. The PAL pollutant and the applicable sourcewide emission limitation in tons per year.

2. The PAL permit effective date and the expiration date of the PAL (PAL effective period).

3. Specification in the PAL permit that if a major stationary source owner applies to renew a PAL in accordance with subsection J of this section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the department, or until the department determines that the revised PAL permit will not be issued.

4. A requirement that emission calculations for compliance purposes shall include emissions from startups, shutdowns, and malfunctions.

5. A requirement that, once the PAL expires, the major stationary source is subject to the requirements of subsection I of this section.

6. The calculation procedures that the major stationary source owner shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total as required by subdivision N 1 of this section.

7. A requirement that the major stationary source owner monitor all emissions units in accordance with the provisions under subsection M of this section.

8. A requirement to retain the records required under subsection N of this section on site. Such records may be retained in an electronic format.

9. A requirement to submit the reports required under subsection O of this section by the required deadlines.

10. Any other requirements that the department deems necessary to implement and enforce the PAL.

G. The PAL effective period shall be 10 years.

H. The requirements for the reopening of the PAL permit set forth in this subsection shall apply to actuals PALs.

1. During the PAL effective period, the department will reopen the PAL permit to:

a. Correct typographical or calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL;

b. Reduce the PAL if the owner of the major stationary source creates creditable emissions reductions for use as offsets under 9VAC5-80-2120 F through N; and

c. Revise the PAL to reflect an increase in the PAL as provided under subsection L of this section.

2. The department may reopen the PAL permit for any of the following reasons:

a. Reduce the PAL to reflect newly applicable federal requirements (e.g., NSPS) with compliance dates after the PAL effective date.

b. Reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and that the department may impose on the major stationary source.

c. Reduce the PAL if the department determines that a reduction is necessary to avoid causing or contributing to a violation of an ambient air standard or ambient air increment in 9VAC5-80-1635, or to an adverse impact on an air quality related value that has been identified for a federal class I area by a federal land manager and for which information is available to the general public.

3. Except for the permit reopening in subdivision 1 a of this subsection for the correction of typographical or calculation errors that do not increase the PAL level, all other reopenings shall be carried out in accordance with the public participation requirements of subsection D of this section.

I. Any PAL that is not renewed in accordance with the procedures in subsection J of this section shall expire at the end of the PAL effective period, and the following requirements shall apply:

1. Each emissions unit (or each group of emissions units) that existed under the PAL shall comply with an allowable emission limitation under a revised permit established according to the following procedures:

a. Within the time frame specified for PAL renewals in subdivision J 2 of this section, the major stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each group of emissions units, if such a distribution is more appropriate as decided by the department) by distributing the PAL allowable emissions for the major stationary source among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under subdivision K 4 of this section, such distribution shall be made as if the PAL had been adjusted.

b. The department will decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the department determines is appropriate.

2. Each emissions unit shall comply with the allowable emission limitation on a 12-month rolling basis. The department may approve the use of monitoring systems (source testing, emission factors, etc.) other than CEMS, CERMS, PEMS, or CPMS to demonstrate compliance with the allowable emission limitation.

3. Until the department issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as required under subdivision 1 b of this subsection, the source shall continue to comply with a sourcewide, multiunit emissions cap equivalent to the level of the PAL emission limitation.

4. Any physical change in or change in the method of operation at the major stationary source will be subject to major NSR program requirements if such change meets the definition of "major modification."

5. The major stationary source owner shall continue to comply with any state or federal applicable requirements (such as BACT, RACT, or NSPS) that may have applied either during the PAL effective period or prior to the PAL effective period except for those emission limitations that had been established pursuant to 9VAC5-80-1605 C, but were eliminated by the PAL in accordance with the provisions in subdivision A 1 c of this section.

J. The requirements for the renewal of the PAL permit set forth in this subsection shall apply to actuals PALs.

1. The department will follow the procedures specified in subsection D of this section in approving any request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During such public review, any person may propose a PAL level for the source for consideration by the department.

2. A major stationary source owner shall submit a timely application to the department to request renewal of a PAL. A timely application is one that is submitted at least six months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner of a major stationary source submits a complete application to renew the PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued, or until the department determines that the revised permit with the renewed PAL will not be issued, and a permit is issued pursuant to subsection I of this section.

3. The application to renew a PAL permit shall contain the following information:

a. The information required in subsection B of this section.

b. A proposed PAL level.

c. The sum of the potential to emit of all emissions units under the PAL (with supporting documentation).

d. Any other information the owner wishes the department to consider in determining the appropriate level for renewing the PAL.

K. The requirements for the adjustment of the PAL set forth in this subsection shall apply to actuals PALs. In determining whether and how to adjust the PAL, the department will consider the options outlined in subdivisions 1 and 2 of this subsection. However, in no case may any such adjustment fail to comply with subdivision 3 of this subdivision.

1. If the emissions level calculated in accordance with subsection E of this section is equal to or greater than 80% of the PAL level, the department may renew the PAL at the same level without considering the factors set forth in subdivision 2 of this subsection; or

2. The department may set the PAL at a level that it determines to be more representative of the source's baseline actual emissions, or that it determines to be more appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the department in a written rationale.

3. Notwithstanding subdivisions 1 and 2 of this subsection:

a. If the potential to emit of the major stationary source is less than the PAL, the department will adjust the PAL to a level no greater than the potential to emit of the source; and

b. The department will not approve a renewed PAL level higher than the current PAL, unless the major stationary source has complied with the provisions of subsection L of this section.

4. If the compliance date for a state or federal requirement that applies to the PAL source occurs during the PAL effective period, and if the department has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or federal operating permit renewal, whichever occurs first.

L. The requirements for increasing a PAL during the PAL effective period set forth in this subsection shall apply to actuals PALs.

1. The department may increase a PAL emission limitation only if the owner of the major stationary source complies with the following provisions:

a. The owner of the major stationary source shall submit a complete application to request an increase in the PAL limit for a PAL major modification. Such application shall identify the emissions units contributing to the increase in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL.

b. As part of this application, the major stationary source owner shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emissions of the new or modified emissions units exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In such a case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER with which that emissions unit shall currently comply.

c. The owner obtains a major NSR permit for all emissions units identified in subdivision 1 a of this subsection, regardless of the magnitude of the emissions increase resulting from them (i.e., no significant levels apply). These emissions units shall comply with any emissions requirements resulting from the major NSR program process (e.g., BACT), even though they have also become subject to the PAL or continue to be subject to the PAL.

2. The PAL permit shall require that the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

3. The department will calculate the new PAL as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with subdivision 1 b of this subsection), plus the sum of the baseline actual emissions of the small emissions units.

4. The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice requirements of subsection D of this section.

M. The requirements for monitoring the PAL set forth in this subsection apply to actuals PALs.

1. The general requirements for monitoring a PAL set forth in this subdivision apply to actuals PALs.

a. Each PAL permit shall contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit shall be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by such system shall meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

b. The PAL monitoring system shall employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in subdivision 2 of this subdivision and must be approved by the department.

c. Notwithstanding subdivision 1 b of this subdivision, the owner may also employ an alternative monitoring approach that meets subdivision 1 a of this subsection if approved by the department.

d. Failure to use a monitoring system that meets the requirements of this section renders the PAL invalid.

2. The following are acceptable general monitoring approaches when conducted in accordance with the minimum requirements in subdivisions 3 through 9 of this subsection:

a. Mass balance calculations for activities using coatings or solvents;

b. CEMS;

c. CPMS or PEMS; and

d. Emission factors.

3. An owner using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

a. Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

b. Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; and

c. Where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner shall use the highest value of the range to calculate the PAL pollutant emissions unless the department determines there is site-specific data or a site-specific monitoring program to support another content within the range.

4. An owner using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

a. CEMS shall comply with applicable Performance Specifications found in 40 CFR Part 60, Appendix B; and

b. CEMS shall sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.

5. An owner using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

a. The CPMS or the PEMS shall be based on current site-specific data demonstrating a correlation between the monitored parameters and the PAL pollutant emissions across the range of operation of the emissions unit; and

b. Each CPMS or PEMS shall sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the department, while the emissions unit is operating.

6. An owner using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

a. All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development;

b. The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

c. If technically practicable, the owner of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within six months of PAL permit issuance, unless the department determines that testing is not required.

7. A source owner shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

8. Notwithstanding the requirements in subdivisions 3 through 7 of this subsection, where an owner of an emissions unit cannot demonstrate a correlation between the monitored parameters and the PAL pollutant emissions rate at all operating points of the emissions unit, the department will, at the time of permit issuance:

a. Establish default values for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating points; or

b. Determine that operation of the emissions unit during operating conditions when there is no correlation between monitored parameters and the PAL pollutant emissions is a violation of the PAL.

9. All data used to establish the PAL pollutant shall be revalidated through performance testing or other scientifically valid means approved by the department. Such testing shall occur at least once every five years after issuance of the PAL.

N. The requirements for recordkeeping in the PAL permit set forth in this subsection shall apply to actuals PALs.

1. The PAL permit shall require an owner to retain a copy of all records necessary to determine compliance with any requirement of this section and of the PAL, including a determination of each emissions unit's 12-month rolling total emissions, for five years from the date of such record.

2. The PAL permit shall require an owner to retain a copy of the following records for the duration of the PAL effective period plus five years:

a. A copy of the PAL permit application and any applications for revisions to the PAL; and

b. Each annual certification of compliance pursuant to the federal operating permit and the data relied on in certifying the compliance.

O. The owner shall submit semi-annual monitoring reports and prompt deviation reports to the department in accordance with the federal operating permit program. The reports shall meet the following requirements:

1. The semi-annual report shall be submitted to the department within 30 days of the end of each reporting period. This report shall contain the following information:

a. The identification of owner and operator and the permit number.

b. Total annual emissions (tons per year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to subdivision N 1 of this section.

c. All data relied upon, including, but not limited to, any quality assurance or quality control data, in calculating the monthly and annual PAL pollutant emissions.

d. A list of any emissions units modified or added to the major stationary source during the preceding six-month period.

e. The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken.

f. A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by subdivision M 7 of this section.

g. A signed statement by the responsible official (as defined by the federal operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

2. The major stationary source owner shall promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to 9VAC5-80-110 F 2 b shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed by 9VAC5-80-110 F 2 b. The reports shall contain the following information:

a. The identification of owner and operator and the permit number;

b. The PAL requirement that experienced the deviation or that was exceeded;

c. Emissions resulting from the deviation or the exceedance; and

d. A signed statement by the responsible official (as defined by the applicable federal operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

3. The owner shall submit to the department the results of any revalidation test or method within three months after completion of such test or method.

P. The department will not issue a PAL that does not comply with the requirements of this section after September 1, 2006. The department may supersede any PAL that was established prior to September 1, 2006, with a PAL that complies with the requirements of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 31, Issue 22, eff. August 13, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1870 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1915 Actions to combine permit terms and conditions

A. General requirements for actions to combine permit terms and conditions are as follows:

1. Except as provided in subdivision 3 of this subsection, the department may take actions to combine permit terms and conditions as provided under subsections B through E of this section.

2. Requests to combine permit terms and conditions may be initiated by the permittee or by the department.

3. Under no circumstances may an action to combine permit terms and conditions be used for any of the following:

a. To combine the terms and conditions of (i) a federal operating permit, (ii) a PAL permit, or (iii) any permit that is or will be part of the implementation plan.

b. To take an action to issue a permit or change a permit for the fabrication, erection, installation, demolition, relocation, addition, replacement, or modification of an emissions unit that would result in a change in emissions that would otherwise (i) be subject to review under this article or (ii) require a permit or permit amendment under the new source review program.

c. To allow any stationary source or emissions unit to violate any federal requirement.

d. To take an action to issue a permit or change a permit for any physical change in or change in the method of operation of a major stationary source that is subject to the provisions in 9VAC5-80-1605 C (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

B. The department may take actions to combine the terms and conditions of state operating permits and new source review permits along with any changes to state operating permits and new source review permits.

C. If the department and the owner make a mutual determination that it facilitates improved compliance or the efficient processing and issuing of permits, the department may take an action to combine the terms and conditions of permits for emissions units within a stationary source into one or more permits. Likewise the department may require that applications for permits for emissions units within a stationary source required by any permit program be combined into one application.

D. Actions to combine the terms and conditions of permits are subject to the following conditions:

1. Each term or condition in the combined permit shall be accompanied by a statement that specifies and references the origin (enabling permit program) of, along with the regulatory or any other authority for, the term or condition.

2. Each term or condition in the combined permit shall be accompanied by a statement that specifies the effective date of the term or condition.

3. Each term or condition in the combined permit shall be identified by its original designation (i.e., state-only enforceable or federally and state enforceable) consistent with the applicable enforceability designation of the term or condition in the contributing permit.

4. Except as provided in subsection E of this section, all terms and conditions in the contributing permits shall be included in the combined permit without change. The combined permit will supersede the contributing permits, which will no longer be effective.

E. Actions to make changes to permit terms and conditions as may be necessary to facilitate actions to combine permit terms and conditions may be accomplished in accordance with the minor amendment procedures (unless specified otherwise in this section) of the enabling permit program (i.e., the permit program that is the origin of the term or condition), subject to the following conditions:

1. Updates to regulatory or other authorities may be accomplished in accordance with the administrative amendment procedures of the enabling permit program.

2. If two or more terms or conditions apply to the same emissions unit or emissions units and are substantively equivalent, the more restrictive of the duplicate terms or conditions may be retained and the less restrictive one removed, subject to the provisions of subdivision 4 of this subsection.

3. If two or more similar terms or conditions apply to the same emissions unit or emissions units and one is substantively more restrictive than the others, the more restrictive of the terms or conditions shall be retained, regardless of whether the less restrictive terms or conditions are removed. If the less restrictive of the similar terms or conditions is removed, the provisions of subdivision 4 of this subsection apply.

4. The removal of similar terms or conditions from contributing permits is subject to the following conditions:

a. If any one of the terms or conditions removed is federally and state enforceable, the more restrictive term or condition that is retained in the combined permit shall be federally and state enforceable.

b. If any one of the terms or conditions originates in a permit subject to a major NSR program, that major NSR program shall become the effective enabling permit program for the more restrictive term or condition that is retained in the combined permit. If more than one major NSR program is the basis for a term or condition, all of the applicable major NSR programs shall be the enabling permit program for that term or condition.

c. The regulatory basis for all of the similar terms or conditions that are removed shall be included in the reference for the term or condition that is retained.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 20, eff. July 23, 2009; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1925 Actions to change permits

A. The general requirements for actions to make changes to permits issued under this article are as follows:

1. Except as provided in subdivision 3 of this subsection changes to a permit issued under this article shall be made as specified under subsections B and C of this section and 9VAC5-80-1935 through 9VAC5-80-1965.

2. Changes to a permit issued under this article may be initiated by the permittee as specified in subsection B of this section or by the department as specified in subsection C of this section.

3. Changes to a permit issued under this article and incorporated into a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part shall be made as specified in Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part.

B. The requirements for changes initiated by the permittee are as follows:

1. The permittee may initiate a change to a permit by submitting a written request to the department for an administrative permit amendment, a minor permit amendment or a significant permit amendment. The requirements for these permit changes can be found in 9VAC5-80-1935 through 9VAC5-80-1955.

2. A request for a change by a permittee shall include a statement of the reason for the proposed change.

C. The department may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-1965.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1930 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1935 Administrative permit amendments

A. Administrative permit amendments shall be used for and limited to the following:

1. Correction of typographical or any other error, defect or irregularity which does not substantially affect the permit.

2. Identification of a change in the name, address, or phone number of any person identified in the permit, or of a similar minor administrative change at the source.

3. Change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department and the requirements of 9VAC5-80-2170 have been fulfilled.

B. The administrative permit amendment procedures are as follows:

1. The department will normally take final action on a request for an administrative permit amendment no more than 60 days from receipt of the request.

2. The department will incorporate the changes without providing notice to the public under 9VAC5-80-1775. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

3. The owner may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1940 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1945 Minor permit amendments

A. Minor permit amendment procedures shall be used only for those permit amendments that meet all of the following criteria:

1. Do not violate any applicable federal requirement.

2. Do not involve significant changes to existing monitoring, reporting, or recordkeeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

3. Do not require or change a case-by-case determination of an emissions limitation or other requirement.

4. Do not seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

5. Are not required to be processed as a significant amendment under 9VAC5-80-1955; or as an administrative permit amendment under 9VAC5-80-1935.

B. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments that meet any of the following criteria:

1. Involve the use of economic incentives, emissions trading, and other similar approaches, to the extent that such minor permit amendment procedures are explicitly provided for in a regulation of the board or a federally-approved program.

2. Require new or more frequent monitoring or reporting by the permittee.

3. Designate any term or permit condition that meets the criteria in 9VAC5-80-1625 G 1 as state-only enforceable as provided in 9VAC5-80-1625 G 2 for any permit issued under this article or any regulation from which this article is derived.

C. Minor permit amendment procedures may be used for permit amendments involving the rescission of a provision of a permit if the department and the owner make a mutual determination that the provision is rescinded because all of the underlying statutory or regulatory requirements (i) upon which the provision is based or (ii) that necessitated inclusion of the provision are no longer applicable. In order for the underlying statutory or regulatory requirements to be considered no longer applicable, the provision of the permit that is being rescinded must not cover a regulated NSR pollutant.

D. A request for the use of minor permit amendment procedures shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs, along with a request that such procedures be used. The applicant may, at the applicant's discretion, include a suggested proposed permit amendment.

E. The public participation requirements of 9VAC5-80-1775 shall not extend to minor permit amendments.

F. Normally within 90 days of receipt by the department of a complete request under minor permit amendment procedures, the department will do one of the following:

1. Issue the permit amendment as proposed.

2. Deny the permit amendment request.

3. Determine that the requested amendment does not meet the minor permit amendment criteria and should be reviewed under the significant amendment procedures.

G. The requirements for making changes are as follows:

1. The owner may make the change proposed in the minor permit amendment request immediately after the request is filed.

2. After the change under subdivision 1 of this subsection is made, and until the department takes any of the actions specified in subsection F of this section, the source shall comply with both the applicable regulatory requirements governing the change and the proposed permit amendment.

3. During the time period specified in subdivision 2 of this subsection, the owner need not comply with the existing permit terms and conditions the owner seeks to modify if the applicant has submitted a proposed permit amendment. However, if the owner fails to comply with the proposed permit terms and conditions during this time period, the existing permit terms and conditions the owner seeks to modify may be enforced against the owner.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1950 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1955 Significant amendment procedures

A. The criteria for use of significant amendment procedures are as follows:

1. Significant amendment procedures shall be used for requesting permit amendments that do not qualify as minor permit amendments under 9VAC5-80-1945 or as administrative amendments under 9VAC5-80-1935.

2. Significant amendment procedures shall be used for those permit amendments that meet any of the following criteria:

a. Involve significant changes to existing monitoring, reporting, or recordkeeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

b. Require or change a case-by-case determination of an emissions limitation or other requirement.

c. Seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

B. A request for a significant permit amendment shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs. The applicant may, at the applicant's discretion, include a suggested draft permit amendment.

C. The provisions of 9VAC5-80-1775 shall apply to requests made under this section.

D. The department will normally take final action on significant permit amendments within 180 days after receipt of a complete request. The department may extend this time period if additional information is needed.

E. The owner shall not make the change applied for in the significant amendment request until the amendment is approved by the department under subsection D of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1960 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1965 Reopening for cause

A. A permit may be reopened and amended under any of the following situations:

1. Additional regulatory requirements become applicable to the emissions units covered by the permit after a permit is issued but prior to commencement of construction.

2. The department determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

3. The department determines that the permit must be amended to assure compliance with the applicable regulatory requirements or that the terms and conditions of the permit are not sufficient to meet all of the requirements contained in this article.

B. Proceedings to reopen and reissue a permit shall follow the same procedures as apply to initial permit issuance and shall affect only those parts of the permit for which cause to reopen exists. Such reopening shall be made as expeditiously as practicable.

C. Reopenings shall not be initiated before a notice of such intent is provided to the source by the department at least 30 days in advance of the date that the permit is to be reopened, except that the department may provide a shorter time period in the case of an emergency.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1970 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 1, 1997; repealed, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-1975 Transfer of permits

A. No person shall transfer a permit from one location to another, or from one piece of equipment to another.

B. In the case of a transfer of ownership of a stationary source, the new owner shall abide by any current permit issued to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of a stationary source, the owner shall abide by any current permit issued under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

D. The provisions of this section concerning the transfer of a permit from one location to another shall not apply to the relocation of portable facilities that are exempt from the provisions of this article by 9VAC5-80-1695 A 2.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1985 Permit invalidation, suspension, revocation, and enforcement

A. A permit granted pursuant to this article shall become invalid if a program of continuous construction or modification is not commenced within 18 months from the date the permit is granted.

B. A permit granted pursuant to this article shall become invalid if a program of construction or modification is discontinued for a period of 18 months or more or if a program of construction or modification is not completed within a reasonable time. This provision does not apply to the period between construction of the approved phases of a phased construction project; each phase shall commence construction within 18 months of the projected and approved commencement date.

C. The department may extend the periods prescribed in subsections A and B of this section upon satisfactory demonstration that an extension is justified. Provided there is no substantive change to the application information, the review and analysis, and the decision of the department, such extensions may be granted using the procedures for minor amendments in 9VAC5-80-1945.

D. Any owner who constructs or operates a source or modification not in accordance (i) with the application submitted pursuant to this article, or (ii) with the terms and conditions of any permit to construct or operate, or any owner of a source or modification subject to this article who commences construction or operation without applying for and receiving a permit hereunder, shall be subject to appropriate enforcement action including, but not limited to, any specified in this section.

E. Permits issued under this article shall be subject to such terms and conditions set forth in the permit as the department may deem necessary to ensure compliance with all applicable requirements of the regulations of the board.

F. The department may revoke any permit if the permittee:

1. Knowingly makes material misstatements in the permit application or any amendments thereto;

2. Fails to comply with the terms or conditions of the permit;

3. Fails to comply with any emission standards applicable to an emissions unit included in the permit;

4. Causes emissions from the stationary source that result in violations of, or interfere with the attainment and maintenance of, any ambient air quality standard; or fails to operate in conformance with any applicable control strategy, including any emission standards or emission limitations, in the implementation plan in effect at the time that an application is submitted; or

5. Fails to comply with the applicable provisions of this article.

G. The department may suspend, under such conditions and for such period of time as the department may prescribe, any permit for any of the grounds for revocation contained in subsection B of this section or for any other violations of the regulations of the board.

H. The permittee shall comply with all terms and conditions of the permit. Any permit noncompliance constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action or (ii) revocation.

I. Violation of the regulations of the board shall be grounds for revocation of permits issued under this article and are subject to the civil charges, penalties and all other relief contained in 9VAC5 Chapter 20 (9VAC5-20) and the Virginia Air Pollution Control Law.

J. The department will notify the applicant in writing of its decision, with its reasons to change, suspend or revoke a permit, or to render a permit invalid.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Regisrter Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-1995 Existence of permit no defense

The existence of a permit under this article shall not constitute a defense to a violation of the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia) or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

Article 9 Permits for Major Stationary Sources and Major Modifications Locating in Nonattainment Areas or the Ozone Transport Region

9VAC5-80-2000 Applicability

A. The provisions of this article apply to the construction of any new major stationary source or a major modification that is major for the pollutant for which the area is designated as nonattainment. Different pollutants, including individual precursors, are not summed to determine applicability of a major stationary source or major modification.

B. The provisions of this article apply in (i) nonattainment areas designated in 9VAC5-20-204 or (ii) the Ozone Transport Region as defined in 9VAC5-80-2010 C. This article applies to all localities in the Ozone Transport Region regardless of a locality's nonattainment status.

C. If the Ozone Transport Region is designated attainment for ozone, sources located or planning to locate in the region shall be subject to the offset requirements for areas classified as moderate in 9VAC5-80-2120 B 2. If the Ozone Transport Region is designated nonattainment for ozone, sources located or planning to locate in the region shall be subject to the offset requirements of 9VAC5-80-2120 B depending on the classification except if the classification is marginal or there is no classification, the classification shall be moderate for purpose of applying 9VAC5-80-2120 B.

D. At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then the requirements of this article shall apply to the source or modification as though construction had not commenced on the source or modification.

E. Unless specified otherwise, the provisions of this article apply as follows:

1. Provisions referring to "sources," "new and/or modified sources" or "stationary sources" apply to the construction of all major stationary sources and major modifications.

2. Any emissions units or pollutants not subject to the provisions of this article may be subject to the provisions of Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), or Article 8 (9VAC5-80-1605 et seq.) of this part.

3. Provisions referring to "state and federally enforceable" and "federally and state enforceable" or similar wording shall mean "state-only enforceable" for terms and conditions of a permit designated state-only enforceable under 9VAC5-80-2020 E.

F. Unless otherwise approved by the department or prescribed in these regulations, when this article is amended, the previous provisions of this article shall remain in effect for all applications that are deemed complete under the provisions of 9VAC5-80-2060 A prior to September 1, 2006. Any permit applications that have not been determined to be complete as of September 1, 2006, shall be subject to the new provisions.

G. Regardless of the exemptions provided in this article, no owner or other person shall circumvent the requirements of this article by causing or allowing a pattern of ownership or development over a geographic area of a source which, except for the pattern of ownership or development, would otherwise require a permit.

H. The requirements of this article will be applied in accordance with the following principles:

1. Except as otherwise provided in subsection I of this section, and consistent with the definition of "major modification," a project is a major modification for a regulated NSR pollutant if it causes two types of emissions increases: (i) a significant emissions increase and (ii) a significant net emissions increase. A project is not a major modification if it does not cause a significant emissions increase. If a project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

2. The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to subdivisions 3 and 4 of this subsection. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the source (i.e., the second step of the process) is contained in the definition of "net emissions increase." Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

3. The actual-to-projected-actual applicability test for projects that only involve existing emissions units shall be as provided in this subdivision. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the projected actual emissions and the baseline actual emissions for each existing emissions unit, equals or exceeds the significant amount for that pollutant.

4. The actual-to-potential test for projects that only involve construction of a new emissions unit shall be as provided in this subdivision. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the potential to emit from each new emissions unit following completion of the project and the baseline actual emissions of these units before the project equals or exceeds the significant amount for that pollutant.

5. The hybrid test for projects that involve multiple types of emissions units shall be as provided in this subdivision. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in subdivisions 3 and 4 of this subsection as applicable with respect to each emissions unit, for each type of emissions unit is significant for that pollutant. For example, if a project involves both an existing emissions unit and a new unit, the projected increase is determined by summing the values determined using the method specified in subdivision 3 of this subsection for the existing unit and using the method specified in subdivision 4 of this subsection for the new unit.

I. For any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with the requirements under 9VAC5-80-2144.

J. The provisions of 40 CFR Part 60, Part 61 and Part 63 cited in this article apply only to the extent that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5 Chapter 50 and Article 1 (9VAC5-60-60 et seq.) and Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5 Chapter 60.

K. The provisions of 40 CFR Part 51 and Part 58 cited in this article apply only to the extent that they are incorporated by reference in 9VAC5-20-21.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.e of Virginia; Clean Air Act (§§ 110, 172, 173, 181); 40 CFR Parts 51 and 52.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 21, Issue 4, eff. December 1, 2004; Volume 22, Issue 23, eff. September 1, 2006; Volume 33, Issue 17, eff. May 17, 2017; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2010 Definitions

A. As used in this article, all words or terms not defined here shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

B. For the purpose of this article, 9VAC5-50-270, and any related use, the words or terms shall have the meanings given them in subsection C of this section.

C. Terms defined.

"Actual emissions" means the actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with subdivisions a, b, and c of this definition, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under 9VAC5-80-2144. Instead, the definitions of "projected actual emissions" and "baseline actual emissions" shall apply for those purposes.

a. In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period that precedes the particular date and that is representative of normal source operation. The department will allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

b. The department may presume that the source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

c. For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

"Actuals PAL for a major stationary source" means a PAL based on the baseline actual emissions of all emissions units at the source that emit or have the potential to emit the PAL pollutant.

"Administrator" means the administrator of the U.S. Environmental Protection Agency (EPA) or an authorized representative.

"Allowable emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally and state enforceable limits that restrict the operating rate, hours of operation, or both) and the most stringent of the following:

a. The applicable standards set forth in 40 CFR Parts 60, 61, and 63;

b. Any applicable implementation plan emissions limitation including those with a future compliance date; or

c. The emissions limit specified as a federally and state enforceable permit condition, including those with a future compliance date.

For the purposes of actuals PALs, "allowable emissions" shall also be calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.

"Applicable federal requirement" means all of, but not limited to, the following as they apply to emissions units in a source subject to this article (including requirements that have been promulgated or approved by the administrator through rulemaking at the time of permit issuance but have future-effective compliance dates):

a. Any standard or other requirement provided for in an implementation plan established pursuant to § 110 or 111(d) of the federal Clean Air Act, including any source-specific provisions such as consent agreements or orders.

b. Any limit or condition in any construction permit issued under the new source review program or in any operating permit issued pursuant to the state operating permit program.

c. Any emission standard, alternative emission standard, alternative emission limitation, equivalent emission limitation, or other requirement established pursuant to § 112 or 129 of the federal Clean Air Act as amended in 1990.

d. Any new source performance standard or other requirement established pursuant to § 111 of the federal Clean Air Act, and any emission standard or other requirement established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

e. Any limitations and conditions or other requirement in a Virginia regulation or program that has been approved by EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

f. Any requirement concerning accident prevention under § 112(r)(7) of the federal Clean Air Act.

g. Any compliance monitoring requirements established pursuant to either § 504(b) or 114(a)(3) of the federal Clean Air Act.

h. Any standard or other requirement for consumer and commercial products under § 183(e) of the federal Clean Air Act.

i. Any standard or other requirement for tank vessels under § 183(f) of the federal Clean Air Act.

j. Any standard or other requirement in 40 CFR Part 55 to control air pollution from outer continental shelf sources.

k. Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the federal Clean Air Act, unless the administrator has determined that such requirements need not be contained in a permit issued under this article.

l. With regard to temporary sources subject to 9VAC5-80-130, (i) any ambient air quality standard, except applicable state requirements, and (ii) requirements regarding increments or visibility as provided in Article 8 (9VAC5-80-1605 et seq.) of this part.

"Baseline actual emissions" means the rate of emissions, in tons per year, of a regulated NSR pollutant, as determined in accordance with the following:

a. For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner within the five-year period immediately preceding when the owner begins actual construction of the project. The department may allow the use of a different time period upon a determination that it is more representative of normal source operation.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24-month period.

(3) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR pollutant.

(4) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by subdivision a (2) of this definition.

b. For an existing emissions unit other than an electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner within the 10-year period immediately preceding either the date the owner begins actual construction of the project, or the date a complete permit application is received by the department for a permit required either under this section or under a plan approved by the administrator, whichever is earlier, except that the 10-year period shall not include any period earlier than November 15, 1990. The department will allow the use of a different time period upon a determination that it is more representative of normal source operation.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24-month period.

(3) The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the source shall currently comply, had such source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions need only be adjusted if the state has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 9VAC5-80-2120 K.

(4) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period shall be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR pollutant.

(5) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by subdivisions b (2) and b (3) of this definition.

c. For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit.

d. For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in subdivision a of this definition, for other existing emissions units in accordance with the procedures contained in subdivision b of this definition, and for a new emissions unit in accordance with the procedures contained in subdivision c of this definition.

"Begin actual construction" means, in general, initiation of physical onsite construction activities on an emissions unit that are of a permanent nature. Such activities include installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those onsite activities other than preparatory activities which mark the initiation of the change.

"Best available control technology" or "BACT" means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant that would be emitted from any proposed major stationary source or major modification that the department, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant that would exceed the emissions allowed by any applicable standard under 40 CFR Parts 60, 61, and 63. If the department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice, or operation and shall provide for compliance by means that achieve equivalent results.

"Building, structure, facility, or installation" means all of the pollutant-emitting activities that belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "major group" (i.e., which have the same two-digit code) as described in the "Standard Industrial Classification Manual," as amended by the supplement (see 9VAC5-20-21).

"Clean coal technology" means any technology, including technologies applied at the precombustion, combustion, or post-combustion stage, at a new or existing facility that will achieve significant reductions in air emissions of sulfur dioxide or nitrogen oxides associated with the utilization of coal in the generation of electricity, or process steam that was not in widespread use as of November 15, 1990.

"Clean coal technology demonstration project" means a project using funds appropriated under the heading "Department of Energy-Clean Coal Technology," up to a total amount of $2.5 billion for commercial demonstration of clean coal technology, or similar projects funded through appropriations for EPA. The federal contribution for a qualifying project shall be at least 20% of the total cost of the demonstration project.

"Commence," as applied to construction of a major stationary source or major modification, means that the owner has all necessary preconstruction approvals or permits and either has:

a. Begun, or caused to begin, a continuous program of actual onsite construction of the source, to be completed within a reasonable time; or

b. Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner, to undertake a program of actual construction of the source, to be completed within a reasonable time.

"Complete application" means that the application contains all the information necessary for processing the application and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met. Designating an application complete for purposes of permit processing does not preclude the department from requesting or accepting additional information.

"Construction" means any physical change in or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in actual emissions.

"Continuous emissions monitoring system" or "CEMS" means all of the equipment that may be required to meet the data acquisition and availability requirements of this article, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

"Continuous emissions rate monitoring system" or "CERMS" means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

"Continuous parameter monitoring system" or "CPMS" means all of the equipment necessary to meet the data acquisition and availability requirements of this article, to monitor process and control device operational parameters (e.g., control device secondary voltages and electric currents) and other information (e.g., gas flow rate, O₂ or CO₂ concentrations), and to record average operational parameter values on a continuous basis.

"Electric utility steam generating unit" means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25-megawatt electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

"Emissions cap" means any limitation on the rate of emissions of any air pollutant from one or more emissions units established and identified as an emissions cap in any permit issued pursuant to the new source review program or operating permit program.

"Emissions unit" means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric steam generating unit. For purposes of this article, there are two types of emissions units: (i) a new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than two years from the date such emissions unit first operated; and (ii) an existing emissions unit is any emissions unit that is not a new emissions unit. A replacement unit is an existing emissions unit.

"Enforceable as a practical matter" means that the permit contains emission limitations that are enforceable by the department and meet the following criteria:

a. Are permanent;

b. Contain a legal obligation for the owner to adhere to the terms and conditions;

c. Do not allow a relaxation of a requirement of the implementation plan;

d. Are technically accurate and quantifiable;

e. Include averaging times or other provisions that allow at least monthly (or a shorter period if necessary to be consistent with the implementation plan) checks on compliance. This may include the following: compliance with annual limits in a rolling basis, monthly or shorter limits, and other provisions consistent with this article and other regulations of the board; and

f. Require a level of recordkeeping, reporting and monitoring sufficient to demonstrate compliance.

"Federal land manager" means, with respect to any lands in the United States, the secretary of the department with authority over such lands.

"Federally enforceable" means all limitations and conditions that are enforceable by the administrator and citizens under the federal Clean Air Act or that are enforceable under other statutes administered by the administrator. Federally enforceable limitations and conditions include the following:

a. Emission standards, alternative emission standards, alternative emission limitations, and equivalent emission limitations established pursuant to § 112 of the federal Clean Air Act as amended in 1990.

b. New source performance standards established pursuant to § 111 of the federal Clean Air Act, and emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

c. All terms and conditions (unless expressly designated as not federally enforceable) in a federal operating permit, including any provisions that limit a source's potential to emit.

d. Limitations and conditions that are part of an implementation plan established pursuant to § 110, 111(d), or 129 of the federal Clean Air Act.

e. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA into the implementation plan.

f. Limitations and conditions (unless expressly designated as not federally enforceable) that are part of a state operating permit where the permit and the permit program pursuant to which it was issued meet all of the following criteria:

(1) The operating permit program has been approved by EPA into the implementation plan under § 110 of the federal Clean Air Act.

(2) The operating permit program imposes a legal obligation that operating permit holders adhere to the terms and limitations of such permits and provides that permits that do not conform to the operating permit program requirements and the requirements of EPA's underlying regulations may be deemed not "federally enforceable" by EPA.

(3) The operating permit program requires that all emission limitations, controls, and other requirements imposed by such permits will be at least as stringent as any other applicable limitations and requirements contained in the implementation plan or enforceable under the implementation plan, and that the program may not issue permits that waive, or make less stringent, any limitations or requirements contained in or issued pursuant to the implementation plan, or that are otherwise "federally enforceable."

(4) The limitations, controls, and requirements in the permit in question are permanent, quantifiable, and otherwise enforceable as a practical matter.

(5) The permit in question was issued only after adequate and timely notice and opportunity for comment by EPA and the public.

g. Limitations and conditions in a regulation of the board or program that has been approved by EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

h. Individual consent agreements that EPA has legal authority to create.

"Federal operating permit" means a permit issued under the federal operating permit program.

"Federal operating permit program" means an operating permit system (i) for issuing terms and conditions for major stationary sources, (ii) established to implement the requirements of Title V of the federal Clean Air Act and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of this part.

"Fugitive emissions" means those emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

"Lowest achievable emissions rate" or "LAER" means for any source, the more stringent rate of emissions based on the following:

a. The most stringent emissions limitation that is contained in the implementation plan of any state for such class or category of stationary source, unless the owner of the proposed stationary source demonstrates that such limitations are not achievable; or

b. The most stringent emissions limitation that is achieved in practice by such class or category of stationary sources. This limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within the stationary source. In no event shall the application of this term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an applicable new source standard of performance.

"Major emissions unit" means (i) any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or (ii) any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant for nonattainment areas in subdivision a (1) of the definition of "major stationary source."

"Major modification"

a. Means any physical change in or change in the method of operation of a major stationary source that would result in (i) a significant emissions increase of a regulated NSR pollutant; and (ii) a significant net emissions increase of that pollutant from the source.

b. Any significant emissions increase from any emissions units or net emissions increase at a source that is considered significant for volatile organic compounds shall be considered significant for ozone.

c. A physical change in or change in the method of operation shall not include the following:

(1) Routine maintenance, repair, and replacement.

(2) Use of an alternative fuel or raw material by reason of an order under § 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act.

(3) Use of an alternative fuel by reason of an order or rule § 125 of the federal Clean Air Act.

(4) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste.

(5) Use of an alternative fuel or raw material by a stationary source that:

(a) The source was capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally and state enforceable permit condition which was established after December 21, 1976, pursuant to 40 CFR 52.21 or this chapter; or

(b) The source is approved to use under any permit issued under 40 CFR 52.21 or this chapter.

(6) An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally and state enforceable permit condition that was established after December 21, 1976, pursuant to 40 CFR 52.21 or this chapter.

(7) Any change in ownership at a stationary source.

(8) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

(a) The applicable implementation plan; and

(b) Other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is terminated.

d. This definition shall not apply with respect to a particular regulated NSR pollutant when the source is complying with the requirements under 9VAC5-80-2144 for a PAL for that pollutant. Instead, the definition for "PAL major modification" shall apply.

"Major new source review (NSR) permit" means a permit issued under the major new source review program.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165, and 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Major stationary source"

a. Means:

(1) Any stationary source of air pollutants that emits, or has the potential to emit, (i) 100 tons per year or more of a regulated NSR pollutant, (ii) 50 tons per year or more of volatile organic compounds or nitrogen oxides in ozone nonattainment areas classified as serious in 9VAC5-20-204, (iii) 25 tons per year or more of volatile organic compounds or nitrogen oxides in ozone nonattainment areas classified as severe in 9VAC5-20-204, or (iv) 100 tons per year or more of nitrogen oxides or 50 tons per year of volatile organic compounds in the Ozone Transport Region; or

(2) Any physical change that would occur at a stationary source not qualifying under subdivision a (1) of this definition as a major stationary source if the change would constitute a major stationary source by itself.

b. A major stationary source that is major for volatile organic compounds shall be considered major for ozone.

c. The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this article whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources:

(1) Coal cleaning plants (with thermal dryers).

(2) Kraft pulp mills.

(3) Portland cement plants.

(4) Primary zinc smelters.

(5) Iron and steel mills.

(6) Primary aluminum ore reduction plants.

(7) Primary copper smelters.

(8) Municipal incinerators (or combinations of them) capable of charging more than 250 tons of refuse per day.

(9) Hydrofluoric acid plants.

(10) Sulfuric acid plants.

(11) Nitric acid plants.

(12) Petroleum refineries.

(13) Lime plants.

(14) Phosphate rock processing plants.

(15) Coke oven batteries.

(16) Sulfur recovery plants.

(17) Carbon black plants (furnace process).

(18) Primary lead smelters.

(19) Fuel conversion plants.

(20) Sintering plants.

(21) Secondary metal production plants.

(22) Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140).

(23) Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input.

(24) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels.

(25) Taconite ore processing plants.

(26) Glass fiber manufacturing plants.

(27) Charcoal production plants.

(28) Fossil fuel steam electric plants of more than 250 million British thermal units per hour heat input.

(29) Any other stationary source category, which as of August 7, 1980, is being regulated under 40 CFR Part 60, 61, or 63.

"Minor new source review (NSR) permit" means a permit issued under the minor new source review program.

"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation) that are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 6 (9VAC5-80-1100 et seq.) of this part.

"Necessary preconstruction approvals or permits" means those permits required under the NSR program that are part of the applicable implementation plan.

"Net emissions increase" means:

a. With respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

(1) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to 9VAC5-80-2000 H; and

(2) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under this subdivision shall be determined as provided in the definition of "baseline actual emissions," except that subdivisions a (3) and b (4) of that definition shall not apply.

b. An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs before the date that the increase from the particular change occurs. For sources located in ozone nonattainment areas classified as serious or severe in 9VAC5-20-204, an increase or decrease in actual emissions of volatile organic compounds or nitrogen oxides is contemporaneous with the increase from the particular change only if it occurs during a period of five consecutive calendar years which includes the calendar year in which the increase from the particular change occurs.

c. An increase or decrease in actual emissions is creditable only if:

(1) It occurs between the date five years before construction on the particular change commences and the date that the increase from the particular change occurs; and

(2) The department has not relied on it in issuing a permit for the source pursuant to this article which permit is in effect when the increase in actual emissions from the particular change occurs.

d. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

e. A decrease in actual emissions is creditable only to the extent that:

(1) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

(2) It is enforceable as a practical matter at and after the time that actual construction on the particular change begins;

(3) The department has not relied on it in issuing any permit pursuant to this chapter or the department has not relied on it in demonstrating attainment or reasonable further progress in the implementation plan; and

(4) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

f. An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

g. Subdivision a of the definition of "actual emissions" shall not apply for determining creditable increases and decreases or after a change.

"New source performance standard" or "NSPS" means the U.S. Environmental Protection Agency Regulations on Standards of Performance for New Stationary Sources, as promulgated in 40 CFR Part 60 and designated in 9VAC5-50-410.

"New source review (NSR) permit" means a permit issued under the new source review program.

"New source review (NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations; and (iii) codified in Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of this part.

"Nonattainment major new source review (NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of § 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 9 (9VAC5-80-2000 et seq.) of this part. Any permit issued under such a program is a major NSR permit.

"Nonattainment pollutant" means, within a nonattainment area, the pollutant for which such area is designated nonattainment. For ozone nonattainment areas, the nonattainment pollutants shall be volatile organic compounds (including hydrocarbons) and nitrogen oxides.

"Ozone transport region" means the area established by § 184(a) of the federal Clean Air Act or any other area established by the administrator pursuant to § 176A of the federal Clean Air Act for purposes of ozone. For the purposes of this article, the Ozone Transport Region consists of the following localities: Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.

"Plantwide applicability limitation" or "PAL" means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established sourcewide in accordance with 9VAC5-80-2144.

"PAL effective date" generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

"PAL effective period" means the period beginning with the PAL effective date and ending 10 years later.

"PAL major modification" means, notwithstanding the definitions for "major modification" and "net emissions increase," any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

"PAL permit" means the state operating permit issued by the department that establishes a PAL for a major stationary source.

"PAL pollutant" means the pollutant for which a PAL is established at a major stationary source.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally and state enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source. For the purposes of actuals PALs, any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable or enforceable as a practical matter by the state.

"Predictive emissions monitoring system" or "PEMS" means all of the equipment necessary to monitor process and control device operational parameters (e.g., control device secondary voltages and electric currents) and other information (e.g., gas flow rate, O₂ or CO₂ concentrations), and calculate and record the mass emissions rate (e.g., pounds per hour) on a continuous basis.

"Prevention of significant deterioration (PSD) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of § 165 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 8 (9VAC5-80-1605 et seq.) of this part.

"Project" means a physical change in or change in the method of operation of an existing major stationary source.

"Projected actual emissions" means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the five years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the source. In determining the projected actual emissions before beginning actual construction, the owner shall:

a. Consider all relevant information, including but not limited to historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the state or federal regulatory authorities, and compliance plans under the approved plan;

b. Include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and

c. Exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have emitted during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth, provided such exclusion shall not reduce any calculated increases in emissions that are caused by, result from, or are related to the particular project; or

d. In lieu of using the method set out in subdivisions a, b, and c of this definition, may elect to use the emissions unit's potential to emit, in tons per year, as defined under the definition of "potential to emit."

"Public comment period" means a time during which the public shall have the opportunity to comment on the new or modified source permit application information (exclusive of confidential information), the preliminary review and analysis of the effect of the source upon the ambient air quality, and the preliminary decision of the department regarding the permit application.

"Reasonable further progress" means the annual incremental reductions in emissions of a given air pollutant (including substantial reductions in the early years following approval or promulgation of an implementation plan and regular reductions thereafter) that are sufficient in the judgment of the department to provide for attainment of the applicable ambient air quality standard within a specified nonattainment area by the attainment date prescribed in the implementation plan for such area.

"Reasonably available control technology" or "RACT" means the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available, considering technological and economic feasibility.

"Regulated NSR pollutant" means any of the following:

a. Nitrogen oxides or any volatile organic compound.

b. Any pollutant for which an ambient air quality standard has been promulgated.

c. Any pollutant that is identified under this subdivision as a constituent or precursor of a general pollutant listed under subdivision a or b of this definition, provided that such constituent or precursor pollutant may only be regulated under this article as part of regulation of the general pollutant. Precursors identified for purposes of this article shall be the following:

(1) Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone nonattainment areas.

(2) Sulfur dioxide, nitrogen oxides, volatile organic compounds, and ammonia are precursors to PM_2.5 in any PM_2.5 nonattainment area.

(3) Nitrogen oxides are presumed to be precursors to PM_2.5 in all PM_2.5 nonattainment areas, unless the department determines that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM_2.5 concentrations.

(4) Volatile organic compounds and ammonia are presumed not to be precursors to PM_2.5 in any PM_2.5 nonattainment area, unless the department determines that emissions of volatile organic compounds or ammonia from sources in a specific area are a significant contributor to that area's ambient PM_2.5 concentrations.

d. PM_2.5 emissions and PM₁₀ emissions shall include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures. On or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM_2.5 and PM₁₀ in permits issued under this article. Compliance with emissions limitations for PM_2.5 and PM₁₀ issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this article.

"Replacement unit" means an emissions unit for which all the following criteria are met. No creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced.

a. The emissions unit is a reconstructed unit within the meaning of 40 CFR 60.15(b)(1), or the emissions unit completely takes the place of an existing emissions unit.

b. The emissions unit is identical to or functionally equivalent to the replaced emissions unit.

c. The replacement does not alter the basic design parameters of the process unit.

d. The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.

"Secondary emissions" means emissions that would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this article, secondary emissions shall be specific, well defined, quantifiable, and affect the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include emissions from any off-site support facility that would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions that come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

"Significant" means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

a. Ozone nonattainment areas classified as serious or severe in 9VAC5-20-204.

| POLLUTANT | EMISSIONS RATE | | --- | --- | | Carbon Monoxide | 100 tons per year (tpy) | | Nitrogen Oxides | 25 tpy | | Sulfur Dioxide | 40 tpy | | PM₁₀ | 15 tpy | | PM_2.5 | 10 tpy of direct PM_2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM_2.5 precursor under the definition of "regulated NSR pollutant" | | Ozone | 25 tpy of volatile organic compounds | | Lead | 0.6 tpy |

b. Other nonattainment areas.

| POLLUTANT | EMISSIONS RATE | | --- | --- | | Carbon Monoxide | 100 tons per year (tpy) | | Nitrogen Oxides | 40 tpy | | Sulfur Dioxide | 40 tpy | | PM₁₀ | 15 tpy | | PM_2.5 | 10 tpy of direct PM_2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM_2.5 precursor under the definition of "regulated NSR pollutant" | | Ozone | 40 tpy of volatile organic compounds | | Lead | 0.6 tpy |

"Significant emissions increase" means, for a regulated NSR pollutant, an increase in emissions that is significant for that pollutant.

"Significant emissions unit" means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit.

"Small emissions unit" means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant.

"State enforceable" means all limitations and conditions that are enforceable as a practical matter, including any regulation of the board, those requirements developed pursuant to 9VAC5-170-160, requirements within any applicable order or variance, and any permit requirements established pursuant to this chapter.

"State operating permit" means a permit issued under the state operating permit program.

"State operating permit program" means an operating permit program (i) for issuing limitations and conditions for stationary sources, (ii) promulgated to meet EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit, and practicable enforceability, and (iii) codified in Article 5 (9VAC5-80-800 et seq.) of this part.

"Stationary source" means any building, structure, facility, or installation that emits or may emit a regulated NSR pollutant.

"Synthetic minor" means a stationary source whose potential to emit is constrained by state-enforceable and federally enforceable limits, so as to place that stationary source below the threshold at which it would be subject to permit or other requirements governing major stationary sources in regulations of the board or in the federal Clean Air Act.

"Temporary clean coal technology demonstration project" means a clean coal technology demonstration project that is operated for a period of five years or less, and that complies with the applicable implementation plan and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; Errata, 15:13 VA.R. 1955 March 15, 1999; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002; Volume 18, Issue 14, eff. May 1, 2002; Volume 21, Issue 4, eff. December 1, 2004; Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 20, eff. July 23, 2009; Volume 27, Issue 11, eff. March 2, 2011; Volume 27, Issue 23, eff. August 17, 2011; Volume 31, Issue 22, eff. August 13, 2015; Volume 33, Issue 17, eff. May 17, 2017; Volume 36, Issue 12, eff. March 4, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2020 General

A. No owner or other person shall begin actual construction or modification of any new major stationary source or major modification without first obtaining from the department a permit to construct and operate such source. The permit will state that the major stationary source or major modification shall meet all the applicable requirements of this article.

B. No owner or other person shall relocate any emissions unit from one stationary source to another without first obtaining from the department a permit to relocate the unit.

C. The department will take actions to combine permit terms and conditions as provided in 9VAC5-80-2195. Actions to combine permit terms and conditions involve relocating the terms and conditions contained in two or more permits issued to single stationary source to a single permit document. Actions to combine permit terms and conditions in and of themselves are not a mechanism for making changes to permits; such actions shall be taken under 9VAC5-80-2200 as explained in subsection D of this section.

D. The department will take actions to make changes to permit terms and conditions as provided in 9VAC5-80-2200. Nothing in this subsection is intended to imply that once an action has been taken to make a change to a permit, the resulting permit change may not be combined with other terms and conditions in a single permit document as provided in subsection C of this section.

E. All terms and conditions of any permit issued under this article shall be federally enforceable except those that are designated state-only enforceable under subdivision 1 of this subsection. Any term or condition that is not federally enforceable shall be designated as state-only enforceable as provided in subdivision 2 of this subsection.

1. A term or condition of any permit issued under this article shall not be federally enforceable if it is derived from or is designed to implement Article 2 (9VAC5-40-130 et seq.) of 9VAC5-40 (Existing Stationary Sources), Article 2 (9VAC5-50-130 et seq.) of 9VAC5-50 (New and Modified Stationary Sources), Article 4 (9VAC5-60-200 et seq.) of 9VAC5-60 (Hazardous Air Pollutant Sources), or Article 5 (9VAC5-60-300) of 9VAC5-60 (Hazardous Air Pollutant Sources).

2. Any term or condition of any permit issued under this article that is not federally enforceable shall be marked in the permit as state-only enforceable and shall only be enforceable by the department. Incorrectly designating a term or condition as state-only enforceable shall not provide a shield from federal enforcement of a term or condition that is legally federally enforceable.

F. Nothing in the regulations of the board shall be construed to prevent the department from granting permits for programs of construction or modification in planned incremental phases. In such cases, all net emissions increases from all emissions units covered by the program shall be added together for determining the applicability of this article.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2030 Applications

A. A single application is required identifying at a minimum each emissions unit subject to the provisions of this article. The application shall be submitted according to procedures acceptable to the department. However, where several emissions units are included in one project, a single application covering all units in the project may be submitted.

B. A separate application is required for each stationary source.

C. For projects with phased development, a single application should be submitted covering the entire project.

D. Any application form, report, or certification submitted to the department shall comply with the provisions of 9VAC5-20-230.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2040 Application information required

A. The department will furnish application forms to applicants. Completion of these forms serves as initial registration of new and modified sources.

B. Each application for a permit shall include such information as may be required by the department to determine the effect of the proposed source on the ambient air quality and to determine compliance with the emissions standards which are applicable. The information required shall include, but is not limited to, the following:

1. Company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager or contact or both.

2. A description of the source's processes and products (by Standard Industrial Classification Code).

3. All emissions of regulated NSR pollutants.

a. A permit application shall describe all emissions of regulated NSR pollutants emitted from any emissions unit or group of emissions units to be covered by the permit.

b. Emissions shall be calculated as required in the permit application form or instructions.

c. Fugitive emissions shall be included in the permit application to the extent quantifiable.

4. Emissions rates in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method.

5. Actual emission rates in tons per year and other information as may be necessary to determine the net emissions increase of actual emissions.

6. Information needed to determine or regulate emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.

7. Identification and description of air pollution control equipment and compliance monitoring devices or activities.

8. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated NSR pollutants at the source.

9. Calculations on which the information in subdivisions 3 through 8 of this subsection are based. Any calculations shall include sufficient detail to permit assessment of the validity of such calculations.

10. Any additional information or documentation that the department deems necessary to review and analyze the air pollution aspects of the stationary source or emissions unit, including the submission of measured air quality data at the proposed site prior to construction or modification. Such measurements shall be accomplished using procedures acceptable to the department.

11. For major stationary sources, the location and registration number for all stationary sources owned or operated by the applicant (or by any entity controlling, controlled by, or under common control with the applicant) in the Commonwealth.

12. For major stationary sources, the analyses required by 9VAC5-80-2090 2 shall be provided by the applicant. Upon request, the department will advise an applicant of the reasonable geographic limitation on the areas to be subject to an analysis to determine the air quality impact at the proposed source.

C. The above information and analysis shall be determined and presented according to procedures and using methods acceptable to the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2050 Standards and conditions for granting permits

A. No permit will be granted pursuant to this article unless it is shown to the satisfaction of the department that the following standards and conditions have been met:

1. The source shall be designed, built and equipped to comply with standards of performance prescribed under 9VAC5 Chapter 50 (9VAC5-50).

2. The source shall be designed, built and equipped to operate without causing a violation of the applicable provisions of regulations of the board or the applicable control strategy portion of the implementation plan.

3. The department determines that the following occurs:

a. By the time the source is to commence operation, sufficient offsetting emissions reductions shall have been obtained in accordance with 9VAC5-80-2120 such that total allowable emissions of qualifying nonattainment pollutants from existing sources in the region, from new or modified sources which are not major emitting facilities, and from the proposed source will be sufficiently less than total emissions from existing sources, as determined in accordance with the requirements of this article, prior to the application for such permit to construct or modify so as to represent (when considered together with any applicable control measures in the implementation plan) reasonable further progress; or

b. In the case of a new or modified major stationary source which is located in a zone, within the nonattainment area, identified by the administrator, in consultation with the Secretary of Housing and Urban Development, as a zone to which economic development should be targeted, that emissions of such pollutant resulting from the proposed new or modified major stationary source shall not cause or contribute to emissions levels which exceed the allowance permitted for such pollutant for such area from new or modified major stationary sources in the implementation plan; and

c. Any emission reductions required as a precondition of the issuance of a permit under subdivision a or b of this subdivision shall be state and federally enforceable before such permit may be issued.

4. The applicant shall demonstrate that all major stationary sources owned or operated by such applicant (or by any entity controlling, controlled by, or under common control with such applicant) in the Commonwealth are subject to emission limitations and are in compliance, or on a schedule for compliance, with all applicable emission limitations and standards under these regulations.

5. The administrator has not determined that the applicable implementation plan is not being adequately implemented for the nonattainment area in which the proposed source is to be constructed or modified in accordance with the requirements of this article.

6. The applicant shall demonstrate, through an analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed source, that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.

B. Permits granted pursuant to this article may contain emissions standards as necessary to implement the provisions of this article and 9VAC5-50-270. The following criteria shall be met in establishing emission standards to the extent necessary to assure that emissions levels are enforceable as a practical matter:

1. Standards may include the level, quantity, rate, or concentration or any combination of them for each affected pollutant.

2. In no case shall a standard result in emissions that would exceed the emissions rate based on the potential to emit of the emissions unit.

3. The standard may prescribe, as an alternative to or a supplement to an emission limitation, an equipment, work practice, fuels specification, process materials, maintenance, or operational standard, or any combination of them.

C. Permits issued under this article shall contain, but not be limited to, any of the following elements as necessary to ensure that the permits are enforceable as a practical matter:

1. Emission standards.

2. Conditions necessary to enforce emission standards. Conditions may include, but not be limited to, any of the following:

a. Limit on fuel sulfur content.

b. Limit on production rates with time frames as appropriate to support the emission standards.

c. Limit on raw material usage rate.

d. Limits on the minimum required capture, removal and overall control efficiency for any air pollution control equipment.

3. Specifications for permitted equipment, identified as thoroughly as possible. The identification shall include, but not be limited to, type, rated capacity, and size.

4. Specifications for air pollution control equipment installed or to be installed.

5. Specifications for air pollution control equipment operating parameters and the circumstances under which such equipment shall be operated, where necessary to ensure that the required overall control efficiency is achieved. The operating parameters may include, but not be limited to, any of the following:

a. Pressure indicators and required pressure drop.

b. Temperature indicators and required temperature.

c. pH indicators and required pH.

d. Flow indicators and required flow.

6. Requirements for proper operation and maintenance of any pollution control equipment, and appropriate spare parts inventory.

7. Stack test requirements.

8. Reporting or recordkeeping requirements, or both.

9. Continuous emission or air quality monitoring requirements, or both.

10. Other requirements as may be necessary to ensure compliance with the applicable regulations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2060 Action on permit application

A. Within 30 days after receipt of an application, the department will notify the applicant of the status of the application. The notification of the initial determination with regard to the status of the application shall be provided by the department in writing and shall include (i) a determination as to which provisions of the new source review program are applicable, (ii) the identification of any deficiencies, and (iii) a determination as to whether the application contains sufficient information to begin application review. The determination that the application has sufficient information to begin review is not necessarily a determination that it is complete. Within 30 days after receipt of any additional information, the department will notify the applicant in writing of any deficiencies in such information. The date of receipt of a complete application for processing under subsection B of this section shall be the date on which the department received all required information and the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met, if applicable.

B. The department will normally process an application according to the steps specified in subdivisions 1 through 4 of this subsection. Processing time for these steps is normally 180 days following receipt of a complete application. The department may extend this time period if additional information is needed.

1. Complete the preliminary review and analysis in accordance with 9VAC5-80-2090 and the preliminary determination of the department.

2. Complete the public participation requirements in accordance with 9VAC5-80-2070.

3. Consider the public comments received in accordance with 9VAC5-80-2070.

4. Complete the final review and analysis and the final determination of the department.

C. After completion of the steps in subsection B of this section, the department will take final action on the request and application as provided in Part I (9VAC5-80-5 et seq.) of this chapter.

D. The department will notify the applicant in writing of its decision on the application, including its reasons, and shall also specify the applicable emission limitations. These emission limitations are applicable during any emission testing conducted in accordance with 9VAC5-80-2080.

E. The applicant may appeal the decision pursuant to Part VIII (9VAC5-170-190 et seq.) of 9VAC5 Chapter 170.

F. Within five days after notification to the applicant pursuant to subsection C of this section, the notification and any comments received pursuant to the public comment period and public hearing shall be made available for public inspection at the same location as was the information in 9VAC5-80-2070 F 1.

G. In granting a permit pursuant to this section, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit pursuant to this section, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2070 Public participation

A. No later than 30 days after receiving the initial determination notification required under 9VAC5-80-2060 A, the applicant shall notify the public about the proposed source as required in subsection B of this section. The applicant shall also provide an informational briefing about the proposed source for the public as required in subsection C of this section.

B. The public notice required under subsection A of this section shall be placed by the applicant in at least one newspaper of general circulation in the affected air quality control region. The notice shall be approved by the department and shall include (i) the name, location, and type of the source and (ii) the time and place of the informational briefing.

C. The informational briefing shall be held in the locality where the source is or will be located and at least 30 days, but no later than 60 days, following the day of the publication of the public notice in the newspaper. The applicant shall inform the public about the operation and potential air quality impact of the source and answer any questions concerning air quality about the proposed source from those in attendance at the briefing. At a minimum, the applicant shall provide information on and answer questions about (i) specific pollutants and the total quantity of each which the applicant estimates will be emitted and (ii) the control technology proposed to be used at the time of the informational briefing. Representatives from the department will attend and provide information and answer questions on the permit application review process.

D. Upon determination by the department that an alternative plan will achieve the desired results in an equally effective manner, an applicant for a permit may implement an alternative plan for notifying the public as required in subsection B of this section and for providing the informational briefing as required in subsection C of this section.

E. Prior to the decision of the department, all permit applications will be subject to a public comment period of at least 30 days. In addition, at the end of the public comment period, a public hearing shall be held with notice in accordance with subsection F of this section.

F. The department will notify the public by advertisement in at least one newspaper of general circulation in the affected air quality control region of the opportunity for public comment and the public hearing on the information available for public inspection under the provisions of subdivision 1 of this subsection. The notification shall be published at least 30 days prior to the day of the public hearing. Written comments will be accepted by the department for at least 15 days after any hearing.

1. Information on the permit application; exclusive of confidential information under 9VAC5-170-60, as well as the preliminary review and analysis and preliminary determination of the department shall be available for public inspection during the entire public comment period in at least one location in the affected air quality control region.

2. A copy of the notice shall be sent to all local air pollution control agencies having jurisdiction in the affected air quality control region, all states sharing the affected air quality control region, and to the regional EPA administrator U.S. Environmental Protection Agency.

3. Notices of public comment periods and public hearings for major stationary sources and major modifications published under this section shall meet the requirements of § 10.1-1307.01 of the Virginia Air Pollution Control Law.

G.

Reserved.

H. The department will take final action on the application as provided in 9VAC5-80-2060 C.

I. In order to facilitate the efficient issuance of permits under Articles 1 (9VAC5-80-50 et seq.) and 3 (9VAC5-80-360 et seq.) of this part, upon request of the applicant the department will process the permit application under this article using public participation procedures meeting the requirements of this section and 9VAC5-80-270 or 9VAC5-80-670, as applicable.

J. If appropriate, the department may provide a public briefing on its review of the permit application prior to the public comment period but no later than the day before the beginning of the public comment period. If the department provides a public briefing, the requirements of subsection F of this section concerning public notification shall be followed.

K. If the department finds that there is a locality particularly affected by (i) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (ii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a new fossil fuel-fired compressor station facility used to transport natural gas, or (iv) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas:

1. The applicant shall perform the following:

a. Publish a notice in at least one local paper of general circulation in any locality particularly affected at least 60 days prior to the close of any public comment period. Such notice shall (i) contain a statement of the estimated local impact of the proposed action; (ii) provide information regarding specific pollutants and the total quantity of each that may be emitted; (iii) list the type, quantity, and source of any fuel to be used; (iv) advise the public as to the date and location of a public hearing; and (v) advise the public where to obtain information regarding the proposed action. The department shall post such notice on the department website and on a department social media account; and

b. Mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.

2. The department shall post the notice required in subdivision 1 a of this subsection on the department website and on a department social media account.

3. Written comments shall be accepted by the department for at least 30 days after any hearing on such variance or permit, unless the director chooses to shorten the period.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 6, eff. December 31, 2008; Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2080 Compliance determination and verification by performance testing

A. Compliance with standards of performance shall be determined in accordance with the provisions of 9VAC5-50-20 and shall be verified by performance tests in accordance with the provisions of 9VAC5-50-30.

B. Testing required by this section shall be conducted within 60 days by the owner after achieving the maximum production rate at which the new or modified source will be operated, but not later than 180 days after initial startup of the source; and 60 days thereafter the department shall be provided by the owner with two or, upon request, more copies of a written report of the results of the tests.

C. The requirements of this section shall be met unless the department:

1. Specifies or approves, in specific cases, the use of a reference method with minor changes in methodology;

2. Approves the use of an equivalent method;

3. Approves the use of an alternative method, the results of which the department has determined to be adequate for indicating whether a specific source is in compliance;

4. Waives the requirement for testing because, based upon a technical evaluation of the past performance of similar source types, using similar control methods, the department reasonably expects the new or modified source to perform in compliance with applicable standards; or

5. Waives the requirement for testing because the owner of the source has demonstrated by other means to the department's satisfaction that the source is in compliance with the applicable standard.

D. The provisions for the granting of waivers under subsection C of this section are intended for use in determining the initial compliance status of a source. The granting of a waiver does not obligate the department to grant any waivers once the source has been in operation for more than one year beyond the initial startup date.

E. The granting of a waiver under this section does not shield the source from potential enforcement of any permit term or condition, applicable requirements of the implementation plan, or any other applicable federal requirements promulgated under the federal Clean Air Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2090 Application review and analysis

No permit shall be granted pursuant to this article unless compliance with the standards in 9VAC5-80-2050 is demonstrated to the satisfaction of the department by a review and analysis of the application performed on a source-by-source basis as specified below:

1. Applications shall be subject to a control technology review to determine if such source will be designed, built and equipped to comply with all applicable standards of performance prescribed under 9VAC5 Chapter 50 (9VAC5-50).

2. Applications shall be subject to an air quality analysis to determine the impact of nonattainment pollutant emissions.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2091 Source obligation

A. Any owner who constructs or operates a source or modification not in accordance (i) with the application submitted pursuant to this article or (ii) with the terms and conditions of any permit to construct or operate, or any owner of a source or modification subject to this article who commences construction or operation without applying for and receiving a permit hereunder, shall be subject to appropriate enforcement action including, but not limited to, any specified in 9VAC5-80-2180.

B. The following provisions apply to projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner elects to use the method specified in subdivisions a through c of the definition of "projected actual emissions" for calculating projected actual emissions:

1. Before beginning actual construction of the project, the owner shall document and maintain a record of the following information:

a. A description of the project;

b. Identification of the emissions units whose emissions of a regulated NSR pollutant could be affected by the project; and

c. A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under subdivision c of the definition of "projected actual emissions" and an explanation for why such amount was excluded, and any netting calculations, if applicable.

2. If the emissions unit is an existing electric utility steam generating unit, no less than 30 days before beginning actual construction, the owner shall provide a copy of the information set out in subdivision 1 of this subsection to the department. Nothing in this subdivision shall be construed to require the owner of such a unit to obtain any determination from the department before beginning actual construction.

3. The owner shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions units identified in subdivision 1 b of this subsection; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of five years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

4. If the unit is an existing electric utility steam generating unit, the owner shall submit a report to the department within 60 days after the end of each year during which records shall be generated under subdivision 3 of this subsection setting out the unit's annual emissions during the year that preceded submission of the report.

5. If the unit is an existing unit other than an electric utility steam generating unit, the owner shall submit a report to the department if the annual emissions, in tons per year, from the project identified in subdivision 1 of this subsection, exceed the baseline actual emissions (as documented and maintained pursuant to subdivision 1 c of this subsection) by a significant amount for that regulated NSR pollutant, and if such emissions differ from the preconstruction projection as documented and maintained pursuant to subdivision 1 c of this subsection. Such report shall be submitted to the department within 60 days after the end of such year. The report shall contain the following:

a. The name, address and telephone number of the major stationary source;

b. The annual emissions as calculated pursuant to subdivision 3 of this subsection; and

c. Any other information that the owner wishes to include in the report (e.g., an explanation as to why the emissions differ from the preconstruction projection).

C. The owner shall make the information required to be documented and maintained pursuant to subsection A of this section available for review upon a request for inspection by the department or the general public pursuant to the requirements contained in 9VAC5-80-270 or 9VAC5-80-670.

D. Approval to construct shall not relieve any owner of the responsibility to comply fully with applicable provisions of the implementation plan and any other requirements under local, state or federal law.

E. For each project subject to subsection B of this section, the owner shall provide notice of the availability of the information set out in subdivision B 1 of this section to the department no less than 30 days before beginning actual construction. The notice shall include the location of the information and the name, address and telephone number of the contact from whom the information may be obtained. Should subsequent information become available to the department to indicate that a given project subject to subsection B of this section is a part of a major modification that resulted in a significant emissions increase, the department will proceed as if the owner is in violation of 9VAC5-80-1625 A and may institute appropriate enforcement action as provided in subsection A of this section. Nothing in this subsection shall be construed to require the owner of the source to obtain any determination from the department before beginning actual construction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2100 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; repealed, Virginia Register Volume 18, Issue 14, eff. May 1, 2002.

9VAC5-80-2110 Interstate pollution abatement

A. The owner of each new or modified source, which may significantly contribute to levels of air pollution in excess of an ambient air quality standard in any quality control region outside the Commonwealth, shall provide written notice to all nearby states of the air pollution levels which may be affected by such source at least 60 days prior to the date of commencement of construction or modification.

B. Any state or political subdivision may petition the administrator for a finding that any new or modified source emits or would emit any air pollutant in amounts which will prevent attainment or maintenance of any ambient air quality standard or interfere with measures for the prevention of significant deterioration or the protection of visibility in the implementation plan for such state. Within 60 days after receipt of such petition and after a public hearing, the administrator will make such a finding or deny the petition.

C. Notwithstanding any permit granted pursuant to this article, no owner or other person shall commence construction or modification or begin operation of a source to which a finding has been made under the provisions of subsection B of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-2120 Offsets

A. Owners shall comply with the offset requirements of this article by obtaining emission reductions from the same source or other sources in the same nonattainment area, except that for ozone precursor pollutants the department may allow the owner to obtain such emission reductions in another nonattainment area if (i) the other area has an equal or higher nonattainment classification than the area in which the source is located and (ii) emissions from such other area contribute to a violation of the ambient air quality standard in the nonattainment area in which the source is located. By the time a new or modified source begins operation, such emission reductions shall (i) be in effect, (ii) be state and federally enforceable and (iii) assure that the total tonnage of increased emissions of the air pollutant from the new or modified source shall be offset by an equal or greater reduction, as applicable, in the actual emissions of such air pollutant from the same or other sources in the nonattainment area.

B. The (i) ratio of total emission reductions of volatile organic compounds to total increased emissions of volatile organic compounds or (ii) the ratio of total emission reductions of nitrogen oxides to total increased emissions of nitrogen oxides in ozone nonattainment areas designated in 9VAC5-20-204 shall be at least the following:

| 1. Nonattainment areas classified as marginal | 1.1 to one. | | --- | --- | | 2. Nonattainment areas classified as moderate | 1.15 to one. | | 3. Nonattainment areas classified as serious | 1.2 to one. | | 4. Nonattainment areas classified as severe | 1.3 to one. | | 5. Nonattainment areas with any other classification or no classification | 1 to one. |

The ratio of total actual emissions reductions of the nonattainment pollutant to the emissions increase shall be at least 1 to one unless an alternative ratio is provided above for the applicable nonattainment area designated in 9VAC5-20-204.

C. Emission reductions otherwise required by these regulations shall not be creditable as emissions reductions for purposes of any such offset requirement. Incidental emission reductions which are not otherwise required by these regulations shall be creditable as emission reductions for such purposes if such emission reductions meet the requirements of subsection A of this section.

D. The department will allow an owner to offset by alternative or innovative means emission increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source that tests rocket engines or motors under the following conditions:

1. Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source that is permitted to test such engines on November 15, 1990.

2. The source demonstrates to the satisfaction of the department that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source.

3. The source has obtained a written finding from the U.S. Department of Defense, U.S. Department of Transportation, National Aeronautics and Space Administration, or other appropriate federal agency, that the testing of rocket motors or engines at the facility is required for a program essential to the national security.

4. The owner will comply with an alternative measure, imposed by the department, designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the department may impose an emissions fee to be paid to the department which shall be an amount no greater than 1.5 times the average cost of stationary source control measures adopted in that nonattainment area during the previous three years. The department will utilize the fees in a manner that maximizes the emissions reductions in that nonattainment area.

E. For sources subject to the provisions of this article, the baseline for determining credit for emissions reduction is the emissions limit under the applicable implementation plan in effect at the time the application to construct is filed, except that the offset baseline shall be the actual emissions of the source from which offset credit is obtained where:

1. The demonstration of reasonable further progress and attainment of ambient air quality standards is based upon the actual emissions of sources located within a designated nonattainment area; or

2. The applicable implementation plan does not contain an emissions limitation for that source or source category.

F. Where the emissions limit under the applicable implementation plan allows greater emissions than the potential to emit of the source, emissions offset credit will be allowed only for control below this potential.

G. For an existing fuel combustion source, credit shall be based on the allowable emissions under the applicable implementation plan for the type of fuel being burned at the time the application to construct is filed. If the owner of the existing source commits to switch to a cleaner fuel at some future date, emissions offset credit based on the allowable (or actual) emissions for the fuels involved is not acceptable, unless the permit is conditioned to require the use of a specified alternative control measure which would achieve the same degree of emissions reduction should the source switch back to a dirtier fuel at some later date. The department will ensure that adequate long-term supplies of the new fuel are available before granting emissions offset credit for fuel switches.

H. Emissions reductions achieved by shutting down an existing source or curtailing production or operating hours below baseline levels may be generally credited if such reductions are permanent, quantifiable, and federally and state enforceable. In addition, the shutdown or curtailment is creditable only if it occurred on or after January 1, 1991.

I. No emissions credit may be allowed for replacing one volatile organic compound with another of lesser reactivity.

J. Where this article does not adequately address a particular issue, the provisions of Appendix S to 40 CFR Part 51 shall be followed to the extent that they do not conflict with this section. The provisions of Appendix S to 40 CFR Part 51 apply only to the extent that they are incorporated by reference in 9VAC5-20-21.

K. Credit for an emissions reduction can be claimed to the extent that the department has not relied on it in issuing any permit under this chapter or has not relied on it in demonstrating attainment or reasonable further progress.

L. The total tonnage of increased emissions, in tons per year, resulting from a major modification that shall be offset in accordance with § 173 of the federal Clean Air Act shall be determined by summing the difference between the allowable emissions after the modification and the actual emissions before the modification for each emissions unit.

M. In meeting the emissions offset requirements of this section, the emissions offsets obtained shall be for the same regulated NSR pollutant unless interprecursor offsetting is permitted for a particular pollutant as specified in this subsection.

1. The offset requirements in this section for direct PM_2.5 emissions or emissions of precursors of PM_2.5 may be satisfied by offsetting reductions in direct PM_2.5 emissions or emissions of any PM_2.5 precursor identified under subdivision c of the definition of "regulated NSR pollutant" if such offsets comply with the interprecursor trading hierarchy and ratio established for a particular nonattainment area. The department may allow the offset requirement of this section for direct PM_2.5 emissions or precursors of PM_2.5 to be satisfied by offsetting reductions in direct PM_2.5 emissions or emissions of any PM_2.5 precursor using a ratio approved by the department for the nonattainment area after public review and comment as provided in subsections N and O of this section.

2. The offset requirements of this section for emissions of the ozone precursors NO_X and VOC may be satisfied, where appropriate, by offsetting reductions in actual emissions of either of those precursors if the requirements for such offsets under subdivision 3 of this subsection and all other requirements for such offsets are also satisfied.

3. For any case-specific permit ratio for ozone proposed by a permit applicant to be used for a particular permit, the following information shall be submitted to the department to support approval of the ratio:

a. The description of the air quality model used to propose a case-specific ratio;

b. The proposed ratio for the precursor substitution and accompanying calculations; and

c. A modeling demonstration showing that such ratios as applied to the proposed project and credit source will provide an equivalent or greater air quality benefit with respect to ground level concentrations in the ozone nonattainment area than an offset of the emitted precursor would achieve.

N. Prior to the decision of the department, the offsetting ratio will be subject to a public comment period of at least 30 days. The department will notify the public by notice on the department webpage of the opportunity for public comment on the offsetting ratio and supporting information as available for public inspection under the provisions of subsection O of this section. The notification shall be published at least 30 days prior to the close of the public comment period.

O. Information on the offsetting ratio and supporting information, as well as the preliminary determination of the department, shall be available for public inspection during the entire public comment period on the department webpage.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 27, Issue 23, eff. August 17, 2011; Volume 36, Issue 12, eff. March 4, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2130 De minimis increases and stationary source modification alternatives for ozone nonattainment areas classified as serious or severe in 9VAC5-20-204

A. Increased emissions of volatile organic compounds or nitrogen oxides resulting from any physical change in, or change in the method of operation of, a major stationary source located in an ozone nonattainment area classified as serious or severe in 9VAC5-20-204 shall be considered de minimis for purposes of determining the applicability of the permit requirements under this article if the increase in net emissions of the same pollutant from such source is 25 tons or less when aggregated with all other net increases in emissions from the source over a period of five consecutive calendar years which includes the calendar year in which such increase occurred.

B. The following shall apply to modifications of major stationary sources emitting less than 100 tons per year of volatile organic compounds or nitrogen oxides.

1. Any physical change in, or change in the method of operation of, a major stationary source with a potential to emit of less than 100 tons per year of volatile organic compounds or nitrogen oxides which results in an increase in emissions of the same pollutant from any discrete operation, unit, or other pollutant emitting activity at that source that is not de minimis under subsection A of this section shall be considered a major modification under this article. However, in applying emission standards under 9VAC5 Chapter 50 (9VAC5-50) to the source, the requirement to apply best available control technology shall be substituted for the requirement to comply with the lowest achievable emissions rate.

2. If the owner elects to offset the increase of volatile organic compounds or of nitrogen oxides by a greater reduction in emissions of the pollutant being increased from other operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1, such increase shall not be considered a major modification under this article.

C. The following shall apply to modifications of major stationary sources emitting 100 tons per year or more of volatile organic compounds or nitrogen oxides.

1. Any physical change in, or change in the method of operation of, a major stationary source with a potential to emit 100 tons per year or more of volatile organic compounds or nitrogen oxides which results in an increase in emissions of the same pollutant from any discrete operation, unit, or other pollutant emitting activity at that source that is not de minimis under subsection A of this section shall be considered a major modification under this article.

2. In applying emission standards under 9VAC5 Chapter 50 (9VAC5-50) to the source, the requirement to apply best available control technology shall be substituted for the requirement to comply with the lowest achievable emissions rate, if the owner elects to offset the increase by a greater reduction in emissions of the pollutant being increased from other operations, units, or activities within the source at an internal offset ratio of at least 1.3 to one.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; Clean Air Act (§§ 110, 112, 165, 173, 182 and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-2140 Exemptions

A. The provisions of this article do not apply to a source or modification that would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the source or modification and the source does not belong to any of the following categories:

1. Coal cleaning plants (with thermal dryers);

2. Kraft pulp mills;

3. Portland cement plants;

4. Primary zinc smelters;

5. Iron and steel mills;

6. Primary aluminum ore reduction plants;

7. Primary copper smelters;

8. Municipal incinerators capable of charging more than 250 tons of refuse per day;

9. Hydrofluoric acid plants;

10. Sulfuric acid plants;

11. Nitric acid plants;

12. Petroleum refineries;

13. Lime plants;

14. Phosphate rock processing plants;

15. Coke oven batteries;

16. Sulfur recovery plants;

17. Carbon black plants (furnace process);

18. Primary lead smelters;

19. Fuel conversion plants;

20. Sintering plants;

21. Secondary metal production plants;

22. Chemical process plants (which shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140);

23. Fossil-fuel boilers (or combination of them) totaling more than 250 million British thermal units per hour heat input;

24. Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

25. Taconite ore processing plants;

26. Glass fiber processing plants;

27. Charcoal production plants;

28. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; and

29. Any other stationary source category which, as of August 7, 1980, is being regulated under 40 CFR Parts 60, 61 or 63.

B. The requirements of this article shall not apply to a particular major stationary source with respect to the use of an alternative fuel or raw material if the following conditions are met:

1. The owner demonstrates to the department that, as a result of trial burns at the owner's facility or other facilities or other sufficient data, the emissions resulting from the use of the alternative fuel or raw material supply are decreased. No demonstration will be required for the use of processed animal fat, processed fish oil, processed vegetable oil, distillate oil, or any mixture thereof in place of the same quantity of residual oil to fire industrial boilers.

2. The use of an alternative fuel or raw material would not be subject to review under this article as a major modification.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 20, eff. July 23, 2009; Volume 27, Issue 11, eff. March 2, 2011; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2141 [Reserved]

Historical Notes

Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006.

9VAC5-80-2144 Actuals plantwide applicability limits (PALs)

A. The department may approve the use of an actuals PAL for any existing major stationary source (except as provided in subdivision 1 of this subsection) if the PAL meets the requirements of this section. The term "PAL" shall mean "actuals PAL" throughout this section.

1. No PAL shall be allowed for VOC or NO_X for any source located in an extreme ozone nonattainment area.

2. Any physical change in or change in the method of operation of a source that maintains its total sourcewide emissions below the PAL level, meets the requirements of this section, and complies with the PAL permit:

a. Is not a major modification for the PAL pollutant;

b. Does not have to be approved through this article; and

c. Is not subject to the provisions in 9VAC5-80-2000 D (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

3. Except as provided under subdivision 2 c of this subsection, a source shall continue to comply with all applicable federal or state requirements, emission limitations, and work practice requirements that were established prior to the effective date of the PAL.

B. As part of a permit application requesting a PAL, the owner of a major stationary source shall submit the following information to the department for approval:

1. A list of all emissions units at the source designated as small, significant, or major based on their potential to emit. In addition, the owner shall indicate which, if any, federal or state applicable requirements, emission limitations, or work practices apply to each unit.

2. Calculations of the baseline actual emissions, with supporting documentation. Baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown, and malfunction.

3. The calculation procedures that the owner proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by subdivision N 1 of this section.

C. The general requirements set forth in this subsection shall apply to the establishment of PALs.

1. The department may establish a PAL at a major stationary source, provided that at a minimum, the following requirements are met:

a. The PAL shall impose an annual emission limitation in tons per year that is enforceable as a practical matter for the entire source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the owner shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month rolling average). For each month during the first 11 months from the PAL effective date, the owner shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.

b. The PAL shall be established in a PAL permit that meets the public participation requirements in subsection D of this section.

c. The PAL permit shall contain all the requirements of subsection F of this section.

d. The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant.

e. Each PAL shall regulate emissions of only one pollutant.

f. Each PAL shall have a PAL effective period of 10 years.

g. The owner shall comply with the monitoring, recordkeeping, and reporting requirements provided in subsections M, N, and O of this section for each emissions unit under the PAL through the PAL effective period.

2. At no time (during or after the PAL effective period) are emissions reductions of a PAL pollutant, which occur during the PAL effective period, creditable as decreases for purposes of offsets under 9VAC5-80-2120 F through N unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

D. PALs for existing major stationary sources shall be established, renewed, or increased through the public participation procedures prescribed in the applicable permit programs identified in the definition of PAL permit. In no case may the department issue a PAL permit unless the department provides the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The department will address all material comments before taking final action on the permit.

E. The actuals PAL level for a major stationary source shall be established as the sum of the baseline actual emissions of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for the PAL pollutant or under the federal Clean Air Act, whichever is lower. When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period shall be used to determine the baseline actual emissions for all existing emissions units. However, a different consecutive 24-month period may be used for each different PAL pollutant. Emissions associated with units that were permanently shut down after this 24-month period shall be subtracted from the PAL level. Emissions from units on which actual construction began after the 24-month period shall be added to the PAL level in an amount equal to the potential to emit of the units. The department will specify a reduced PAL level (in tons per year) in the PAL permit to become effective on the future compliance dates of any applicable federal or state regulatory requirements that the department is aware of prior to issuance of the PAL permit. For instance, if the source owner will be required to reduce emissions from industrial boilers in half from baseline emissions of 60 ppm NO_X to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such units.

F. The PAL permit shall contain, at a minimum, the following information:

1. The PAL pollutant and the applicable sourcewide emission limitation in tons per year.

2. The PAL permit effective date and the expiration date of the PAL (PAL effective period).

3. Specification in the PAL permit that if an owner applies to renew a PAL in accordance with subsection J of this section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the department or until the department determines that the revised PAL permit will not be issued.

4. A requirement that emission calculations for compliance purposes include emissions from startups, shutdowns and malfunctions.

5. A requirement that, once the PAL expires, the source is subject to the requirements of subsection I of this section.

6. The calculation procedures that the owner shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by subdivision N 1 of this section.

7. A requirement that the owner monitor all emissions units in accordance with the provisions under subsection M of this section.

8. A requirement to retain the records required under subsection N of this section on site. Such records may be retained in an electronic format.

9. A requirement to submit the reports required under subsection O of this section by the required deadlines.

10. Any other requirements that the department deems necessary to implement and enforce the PAL.

G. The PAL effective period shall be 10 years.

H. The requirements for reopening of a PAL permit set forth in this section shall apply to actuals PALs.

1. During the PAL effective period, the department will reopen the PAL permit to:

a. Correct typographical and calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL;

b. Reduce the PAL if the owner creates creditable emissions reductions for use as offsets under 9VAC5-80-2120 F through N; and

c. Revise the PAL to reflect an increase in the PAL as provided under subsection L of this section.

2. The department may reopen the PAL permit for any of the following reasons:

a. Reduce the PAL to reflect newly applicable federal requirements (e.g., NSPS) with compliance dates after the PAL effective date.

b. Reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and that the department may impose on the major stationary source.

c. Reduce the PAL if the department determines that a reduction is necessary to avoid causing or contributing to a violation of an ambient air quality standard or ambient air increment in 9VAC5-80-1635, or to an adverse impact on an air quality related value that has been identified for a federal class I area by a federal land manager and for which information is available to the general public.

3. Except for the permit reopening in subdivision 1 a of this subsection for the correction of typographical and calculation errors that do not increase the PAL level, all other reopenings shall be carried out in accordance with the public participation requirements of subsection D of this section.

I. Any PAL which is not renewed in accordance with the procedures in subsection J of this section shall expire at the end of the PAL effective period, and the following requirements shall apply:

1. Each emissions unit or each group of emissions units that existed under the PAL shall comply with an allowable emission limitation under a revised permit established according to the following procedures:

a. Within the timeframe specified for PAL renewals in subdivision J 2 of this section, the source shall submit a proposed allowable emission limitation for each emissions unit (or each group of emissions units, if such a distribution is more appropriate as decided by the department) by distributing the PAL allowable emissions for the source among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under subdivision K 4 of this section, such distribution shall be made as if the PAL had been adjusted.

b. The department will decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the department determines is appropriate.

2. Each emissions unit shall comply with the allowable emission limitation on a 12-month rolling basis. The department may approve the use of monitoring systems (such as source testing or emission factors) other than CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission limitation.

3. Until the department issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as required under subdivision 1 b of this subsection, the source shall continue to comply with a sourcewide, multiunit emissions cap equivalent to the level of the PAL emission limitation.

4. Any physical change or change in the method of operation at the source will be subject to the nonattainment major NSR requirements if such change meets the definition of "major modification."

5. The owner shall continue to comply with any state or federal applicable requirements (such as BACT, RACT, or NSPS) that may have applied either during the PAL effective period or prior to the PAL effective period except for those emission limitations that had been established pursuant to 9VAC5-80-2000 D, but were eliminated by the PAL in accordance with the provisions in subdivision A 2 c of this section.

J. The requirements for the renewal of the PAL permit set forth in this subsection shall apply to actuals PALs.

1. The department will follow the procedures specified in subsection D of this section in approving any request to renew a PAL, and will provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During such public review, any person may propose a PAL level for the source for consideration by the department.

2. The owner shall submit a timely application to the department to request renewal of a PAL. A timely application is one that is submitted at least six months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner submits a complete application to renew the PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued, or until the department determines that the revised permit with the renewed PAL will not be issued, and a permit is issued pursuant to subsection I of this section.

3. The application to renew a PAL permit shall contain the following information:

a. The information required in subsection B of this section.

b. A proposed PAL level.

c. The sum of the potential to emit of all emissions units under the PAL, with supporting documentation.

d. Any other information the owner wishes the department to consider in determining the appropriate level for renewing the PAL.

K. The requirements for the adjustment of the PAL set forth in this subsection shall apply to actuals PALs. In determining whether and how to adjust the PAL, the department will consider the options outlined in subdivisions 1 and 2 of this subsection. However, in no case may any such adjustment fail to comply with subdivision 3 of this subsection.

1. If the emissions level calculated in accordance with subsection E of this section is equal to or greater than 80% of the PAL level, the department may renew the PAL at the same level without considering the factors set forth in subdivision 2 of this subsection; or

2. The department may set the PAL at a level that it determines to be more representative of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the department in its written rationale.

3. Notwithstanding subdivisions 1 and 2 of this subsection:

a. If the potential to emit of the source is less than the PAL, the department will adjust the PAL to a level no greater than the potential to emit of the source; and

b. The department will not approve a renewed PAL level higher than the current PAL, unless the source has complied with the provisions for increasing a PAL under subsection L of this section.

4. If the compliance date for a state or federal requirement that applies to the PAL source occurs during the PAL effective period, and if the department has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or federal operating permit renewal, whichever occurs first.

L. The requirements for increasing a PAL during the PAL effective period set forth in this subsection shall apply to actuals PALs.

1. The department may increase a PAL emission limitation only if the owner of the major stationary source complies with the following provisions:

a. The owner shall submit a complete application to request an increase in the PAL limit for a PAL major modification. Such application shall identify the emissions units contributing to the increase in emissions so as to cause the source's emissions to equal or exceed its PAL.

b. As part of this application, the owner shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emissions of the new or modified emissions units exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In such a case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER with which that emissions unit shall currently comply.

c. The owner obtains a major NSR permit for all emissions units identified in subdivision 1 a of this subsection, regardless of the magnitude of the emissions increase resulting from them (i.e., no significant levels apply). These emissions units shall comply with any emissions requirements resulting from the nonattainment major NSR program process (e.g., LAER), even though they have also become subject to the PAL or continue to be subject to the PAL.

2. The PAL permit shall require that the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

3. The department will calculate the new PAL as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with subdivision 1 b of this subsection), plus the sum of the baseline actual emissions of the small emissions units.

4. The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice requirements of subsection D of this section.

M. The requirements for monitoring the PAL set forth in this subsection apply to actuals PALs.

1. The general requirements for monitoring a PAL set forth in this subdivision apply to actuals PALs.

a. Each PAL permit shall contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit shall be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by such system shall meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

b. The PAL monitoring system shall employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in subdivision 2 of this subsection and must be approved by the department.

c. Notwithstanding subdivision 1 b of this subsection, the owner may also employ an alternative monitoring approach that meets subdivision 1 a of this subsection if approved by the department.

d. Failure to use a monitoring system that meets the requirements of this section renders the PAL invalid.

2. The following are acceptable general monitoring approaches when conducted in accordance with the minimum requirements in subdivisions 3 through 9 of this subsection:

a. Mass balance calculations for activities using coatings or solvents;

b. CEMS;

c. CPMS or PEMS; and

d. Emission factors.

3. An owner using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

a. Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

b. Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; and

c. Where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner shall use the highest value of the range to calculate the PAL pollutant emissions unless the department determines there is site-specific data or a site-specific monitoring program to support another content within the range.

4. An owner using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

a. CEMS shall comply with applicable performance specifications found in 40 CFR Part 60, appendix B; and

b. CEMS shall sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.

5. An owner using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

a. The CPMS or the PEMS shall be based on current site-specific data demonstrating a correlation between the monitored parameters and the PAL pollutant emissions across the range of operation of the emissions unit; and

b. Each CPMS or PEMS shall sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the department, while the emissions unit is operating.

6. An owner using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

a. All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development;

b. The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

c. If technically practicable, the owner of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within six months of PAL permit issuance, unless the department determines that testing is not required.

7. The owner shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

8. Notwithstanding the requirements in subdivisions 3 through 7 of this subsection, where an owner of an emissions unit cannot demonstrate a correlation between the monitored parameters and the PAL pollutant emissions rate at all operating points of the emissions unit, the department will, at the time of permit issuance:

a. Establish default values for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating points; or

b. Determine that operation of the emissions unit during operating conditions when there is no correlation between monitored parameters and the PAL pollutant emissions is a violation of the PAL.

9. All data used to establish the PAL pollutant shall be revalidated through performance testing or other scientifically valid means approved by the department. Such testing shall occur at least once every five years after issuance of the PAL.

N. The requirements for recordkeeping in the PAL permit set forth in this subsection shall apply to actuals PALs.

1. The PAL permit shall require the owner to retain a copy of all records necessary to determine compliance with any requirement of this section and of the PAL, including a determination of each emissions unit's 12-month rolling total emissions, for five years from the date of such record.

2. The PAL permit shall require an owner to retain a copy of the following records for the duration of the PAL effective period plus five years:

a. A copy of the PAL permit application and any applications for revisions to the PAL; and

b. Each annual certification of compliance pursuant to the federal operating permit and the data relied on in certifying the compliance.

O. The owner shall submit semi-annual monitoring reports and prompt deviation reports to the department in accordance with the federal operating permit program. The reports shall meet the following requirements:

1. The semi-annual report shall be submitted to the department within 30 days of the end of each reporting period. This report shall contain the following information:

a. Identification of the owner and the permit number.

b. Total annual emissions in tons per year based on a 12-month rolling total for each month in the reporting period recorded pursuant to subdivision N 1 of this section.

c. All data relied upon, including, but not limited to, any quality assurance or quality control data, in calculating the monthly and annual PAL pollutant emissions.

d. A list of any emissions units modified or added to the source during the preceding six-month period.

e. The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken.

f. A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by subdivision M 7 of this section.

g. A signed statement by the responsible official (as defined by the federal operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

2. The owner shall promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to 9VAC5-80-110 F 2 b shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed by 9VAC5-80-110 F 2 b. The reports shall contain the following information:

a. Identification of the owner and the permit number;

b. The PAL requirement that experienced the deviation or that was exceeded;

c. Emissions resulting from the deviation or the exceedance; and

d. A signed statement by the responsible official (as defined by the federal operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

3. The owner shall submit to the department the results of any revalidation test or method within three months after completion of such test or method.

P. The department will not issue a PAL that does not comply with the requirements of this section after September 1, 2006. The department may supersede any PAL that was established prior to September 1, 2006, with a PAL that complies with the requirements of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 23, eff. September 1, 2006; amended, Virginia Register Volume 31, Issue 22, eff. August 13, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2150 Compliance with local zoning requirements

No provision of this part or any permit issued thereunder shall relieve an owner of the responsibility to comply in all respects with any existing zoning ordinances and regulations in the locality in which the source is located or proposes to be located; provided, however, that such compliance does not relieve the department of its duty under 9VAC5-170-170 and § 10.1-1307 E of the Virginia Air Pollution Control Law to independently consider relevant facts and circumstances.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2160 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; repealed, Virginia Register Volume 18, Issue 14, eff. May 1, 2002.

9VAC5-80-2170 Transfer of permits

A. No person shall transfer a permit from one location to another, or from one piece of equipment to another.

B. In the case of a transfer of ownership of a stationary source, the new owner shall abide by any current permit issued to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of a stationary source, the owner shall abide by any current permit issued under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2180 Permit invalidation, suspension, revocation, and enforcement

A. A permit granted pursuant to this article shall become invalid if a program of continuous construction or modification is not commenced within 18 months from the date the permit is granted.

B. A permit granted pursuant to this article shall become invalid if a program of construction or modification is discontinued for a period of 18 months or more or if a program of construction or modification is not completed within a reasonable time. This provision does not apply to the period between construction of the approved phases of a phased construction project; each phase shall commence construction within 18 months of the projected and approved commencement date.

C. The department may extend the periods prescribed in subsections A and B of this section upon satisfactory demonstration that an extension is justified. Provided there is no substantive change to the application information, the review and analysis, and the decision of the department, such extensions may be granted using the procedures for minor amendments in 9VAC5-80-2220.

D. Any owner who constructs or operates a source or modification not in accordance (i) with the application submitted pursuant to this article, or (ii) with the terms and conditions of any permit to construct or operate, or any owner of a source or modification subject to this article who commences construction or operation without applying for and receiving a permit hereunder, shall be subject to appropriate enforcement action including, but not limited to, any specified in this section.

E. Permits issued under this article shall be subject to such terms and conditions set forth in the permit as the department may deem necessary to ensure compliance with all applicable requirements of the regulations of the board.

F. The department may revoke any permit if the permittee:

1. Knowingly makes material misstatements in the permit application or any amendments thereto;

2. Fails to comply with the terms or conditions of the permit;

3. Fails to comply with any emission standards applicable to an emissions unit included in the permit;

4. Causes emissions from the stationary source which result in violations of, or interfere with the attainment and maintenance of, any ambient air quality standard; or fails to operate in conformance with any applicable control strategy, including any emission standards or emission limitations, in the implementation plan in effect at the time that an application is submitted; or

5. Fails to comply with the applicable provisions of this article.

G. The department may suspend, under such conditions and for such period of time as the department may prescribe, any permit for any of the grounds for revocation contained in subsection F of this section or for any other violations of the regulations of the board.

H. The permittee shall comply with all terms and conditions of the permit. Any permit noncompliance constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action or (ii) revocation.

I. Violation of the regulations of the board shall be grounds for revocation of permits issued under this article and are subject to the civil charges, penalties and all other relief contained in Part V (9VAC5-170-120 et seq.) of 9VAC5 Chapter 170 and the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia).

J. The department will notify the applicant in writing of its decision, with its reasons, to change, suspend or revoke a permit or to render a permit invalid.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002; Volume 22, Issue 23, eff. September 1, 2006; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2190 Existence of permit no defense

The existence of a permit under this article shall not constitute a defense to a violation of the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia) or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 11, eff. April 1, 1999; amended, Virginia Register Volume 18, Issue 14, eff. May 1, 2002.

9VAC5-80-2195 Actions to combine permit terms and conditions

A. General requirements for actions to combine permit terms and conditions are as follows:

1. Except as provided in subdivision 3 of this subsection, the department may take actions to combine permit terms and conditions as provided under subsections B through E of this section.

2. Requests to combine permit terms and conditions may be initiated by the permittee or by the department.

3. Under no circumstances may an action to combine permit terms and conditions be used for any of the following:

a. To combine the terms and conditions of (i) a federal operating permit, (ii) a PAL permit, or (iii) any permit that is or will be part of the implementation plan.

b. To take an action to issue a permit or change a permit for the fabrication, erection, installation, demolition, relocation, addition, replacement, or modification of an emissions unit that would result in a change in emissions that would otherwise (i) be subject to review under this article or (ii) require a permit or permit amendment under the new source review program.

c. To allow any stationary source or emissions unit to violate any federal requirement.

d. To take an action to issue a permit or change a permit for any physical change in or change in the method of operation of a major stationary source that is subject to the provisions in 9VAC5-80-2000 D (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

B. The department may take actions to combine the terms and conditions of state operating permits and new source review permits, along with any changes to state operating permits and new source review permits.

C. If the department and the owner make a mutual determination that it facilitates improved compliance or the efficient processing and issuing of permits, the department may take an action to combine the terms and conditions of permits for emissions units within a stationary source into one or more permits. Likewise the department may require that applications for permits for emissions units within a stationary source required by any permit program be combined into one application.

D. Actions to combine the terms and conditions of permits are subject to the following conditions:

1. Each term or condition in the combined permit shall be accompanied by a statement that specifies and references the origin (enabling permit program) of, along with the regulatory or any other authority for, the term or condition.

2. Each term or condition in the combined permit shall be accompanied by a statement that specifies the effective date of the term or condition.

3. Each term or condition in the combined permit shall be identified by its original designation (i.e., state-only enforceable or federally and state enforceable) consistent with the applicable enforceability designation of the term or condition in the contributing permit.

4. Except as provided in subsection E of this section, all terms and conditions in the contributing permits shall be included in the combined permit without change. The combined permit will supersede the contributing permits, which will no longer be effective.

E. Actions to make changes to permit terms and conditions as may be necessary to facilitate actions to combine permit terms and conditions may be accomplished in accordance with the minor amendment procedures (unless specified otherwise in this section) of the enabling permit program (i.e., the permit program that is the origin of the term or condition), subject to the following conditions:

1. Updates to regulatory or other authorities may be accomplished in accordance with the administrative amendment procedures of the enabling permit program.

2. If two or more terms or conditions apply to the same emissions unit or emissions units and are substantively equivalent, the more restrictive of the duplicate terms or conditions may be retained and the less restrictive one removed, subject to the provisions of subdivision 4 of this subsection.

3. If two or more similar terms or conditions apply to the same emissions unit or emissions units and one is substantively more restrictive than the others, the more restrictive of the terms or conditions shall be retained, regardless of whether the less restrictive terms or conditions are removed. If the less restrictive of the similar terms or conditions is removed, the provisions of subdivision 4 of this subsection apply.

4. The removal of similar terms or conditions from contributing permits is subject to the following conditions:

a. If any one of the terms or conditions removed is federally and state enforceable, the more restrictive term or condition that is retained in the combined permit shall be federally and state enforceable.

b. If any one of the terms or conditions originates in a permit subject to a major NSR program, that major NSR program shall become the effective enabling permit program for the more restrictive term or condition that is retained in the combined permit. If more than one major NSR program is the basis for a term or condition, all of the applicable major NSR programs shall be the enabling permit program for that term or condition.

c. The regulatory basis for all of the similar terms or conditions that are removed shall be included in the reference for the term or condition that is retained.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 20, eff. July 23, 2009; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2200 Actions to change permits

A. The general requirements for actions to make changes to permits issued under this article are as follows:

1. Except as provided in subdivision 3 of this subsection, changes to a permit issued under this article shall be made as specified under subsections B and C of this section and 9VAC5-80-2210 through 9VAC5-80-2240.

2. Changes to a permit issued under this article may be initiated by the permittee as specified in subsection B of this section or by the department as specified in subsection C of this section.

3. Changes to a permit issued under this article and incorporated into a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part shall be made as specified in Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part.

B. The requirements for changes initiated by the permittee are as follows:

1. The permittee may initiate a change to a permit by submitting a written request to the department for an administrative permit amendment, a minor permit amendment or a significant permit amendment. The requirements for these permit changes can be found in 9VAC5-80-2210 through 9VAC5-80-2230.

2. A request for a change by a permittee shall include a statement of the reason for the proposed change.

C. The department may initiate a change to a permit through the use of permit reopenings as specified in 9VAC5-80-2240.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 14, eff. May 1, 2002; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2210 Administrative permit amendments

A. Administrative permit amendments shall be used for and limited to the following:

1. Correction of typographical or any other error, defect or irregularity that does not substantially affect the permit.

2. Identification of a change in the name, address, or phone number of any person identified in the permit, or of a similar minor administrative change at the source.

3. Change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department and the requirements of 9VAC5-80-2170 have been fulfilled.

B. The administrative permit amendment procedures are as follows:

1. The department will normally take final action on a request for an administrative permit amendment no more than 60 days from receipt of the request.

2. The department will incorporate the changes without providing notice to the public under 9VAC5-80-2070. However, any such permit revisions shall be designated in the permit amendment as having been made pursuant to this section.

3. The owner may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 14, eff. May 1, 2002; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2220 Minor permit amendments

A. Minor permit amendment procedures shall be used only for those permit amendments that meet all of the following criteria:

1. Do not violate any applicable federal requirement.

2. Do not involve significant changes to existing monitoring, reporting, or record keeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or record keeping requirements.

3. Do not require or change a case-by-case determination of an emissions limitation or other requirement.

4. Do not seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

5. Are not required to be processed as a significant amendment under 9VAC5-80-2230 or as an administrative permit amendment under 9VAC5-80-2210.

B. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments that meet any of the following criteria:

1. Involve the use of economic incentives, emissions trading, and other similar approaches, to the extent that such minor permit amendment procedures are explicitly provided for in a regulation of the board or a federally-approved program.

2. Require new or more frequent monitoring or reporting by the permittee.

3. Designate any term or permit condition that meets the criteria in 9VAC5-80-2020 E 1 as state-only enforceable as provided in 9VAC5-80-2020 E 2 for any permit issued under this article or any regulation from which this article is derived.

C. Minor permit amendment procedures may be used for permit amendments involving the rescission of a provision of a permit if the department and the owner make a mutual determination that the provision is rescinded because all of the underlying statutory or regulatory requirements (i) upon which the provision is based or (ii) that necessitated inclusion of the provision are no longer applicable. In order for the underlying statutory and regulatory requirements to be considered no longer applicable, the provision of the permit that is being rescinded must not cover a regulated NSR pollutant.

D. A request for the use of minor permit amendment procedures shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs, along with a request that such procedures be used. The applicant may, at the applicant's discretion, include a suggested proposed permit amendment.

E. The public participation requirements of 9VAC5-80-2070 shall not extend to minor permit amendments.

F. Normally within 90 days of receipt by the department of a complete request under minor permit amendment procedures, the department will do one of the following:

1. Issue the permit amendment as proposed.

2. Deny the permit amendment request.

3. Determine that the requested amendment does not meet the minor permit amendment criteria and should be reviewed under the significant amendment procedures.

G. The requirements for making changes are as follows:

1. The owner may make the change proposed in the minor permit amendment request immediately after the request is filed.

2. After the change under subdivision 1 of this subsection is made, and until the department takes any of the actions specified in subsection F of this section, the source shall comply with both the applicable regulatory requirements governing the change and the proposed permit amendment.

3. During the time period specified in subdivision 2 of this subsection, the owner need not comply with the existing permit terms and conditions the owner seeks to modify if the applicant has submitted a proposed permit amendment. However, if the owner fails to comply with the proposed permit terms and conditions during this time period, the existing permit terms and conditions the owner seeks to modify may be enforced against the owner.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 14, eff. May 1, 2002; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2230 Significant amendment procedures

A. The criteria for use of significant amendment procedures are as follows:

1. Significant amendment procedures shall be used for requesting permit amendments that do not qualify as minor permit amendments under 9VAC5-80-2220 or as administrative amendments under 9VAC5-80-2210.

2. Significant amendment procedures shall be used for those permit amendments that meet any of the following criteria:

a. Involve significant changes to existing monitoring, reporting, or record keeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.

b. Require or change a case-by-case determination of an emissions limitation or other requirement.

c. Seek to establish or change a permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, an emissions cap assumed to avoid classification as a modification under the new source review program.

B. A request for a significant permit amendment shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs. The applicant may, at the applicant's discretion, include a suggested draft permit amendment.

C. The provisions of 9VAC5-80-2070 shall apply to requests made under this section.

D. The department will normally take final action on significant permit amendments within 180 days after receipt of a complete request. The department may extend this time period if additional information is needed.

E. The owner shall not make the change applied for in the significant amendment request until the amendment is approved by the department under subsection D of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 14, eff. May 1, 2002; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 6, eff. December 31, 2008; Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2240 Reopening for cause

A. A permit may be reopened and amended under any of the following situations:

1. Additional regulatory requirements become applicable to the emissions units covered by the permit after a permit is issued but prior to commencement of construction.

2. The department determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

3. The department determines that the permit must be amended to assure compliance with the applicable regulatory requirements or that the terms and conditions of the permit are not sufficient to meet all of the requirements contained in this article.

B. Proceedings to reopen and reissue a permit shall follow the same procedures as apply to initial permit issuance and shall affect only those parts of the permit for which cause to reopen exists. Such reopening shall be made as expeditiously as practicable.

C. Reopenings shall not be initiated before a notice of such intent is provided to the source by the department at least 30 days in advance of the date that the permit is to be reopened, except that the department may provide a shorter time period in the case of an emergency.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 14, eff. May 1, 2002; amended, Virginia Register Volume 22, Issue 23, eff. September 1, 2006; Volume 25, Issue 20, eff. July 23, 2009; Volume 39, Issue 5, eff. November 23, 2022.

Article 10 Permit Application Fees for Stationary Sources

9VAC5-80-2250 Applicability

Article 10 Permit Application Fees for Stationary Sources

A. Except as provided in subsection C of this section, the provisions of this article apply to permit applications as follows:

1. Permit applications subject to review under the provisions of Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part.

2. Permit applications subject to review under the provisions of Article 5 (9VAC5-80-800 et seq.) of this part.

3. Permit applications subject to review under the provisions of Article 6 (9VAC5-80-1100 et seq.) of this part.

4. Permit applications subject to review under the provisions of Article 7 (9VAC5-80-1400 et seq.) of this part.

5. Permit applications subject to review under the provisions of Article 8 (9VAC5-80-1605 et seq.) or Article 9 (9VAC5-80-2000 et seq.) of this part.

6. Permit applications subject to review under the provisions of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

B. The provisions of this article apply throughout the Commonwealth of Virginia.

C. The provisions of this article shall not apply to the following:

1. Applications that are received by the appropriate regional office prior to July 1, 2012, except that applications that are received prior to July 1, 2012, and are amended on or after July 1, 2012, may be subject to the permit application fee due as if the application was received on or after July 1, 2012, less any permit application fee amount paid for that application prior to July 1, 2012. The provisions of 9VAC5-80-2290 apply to amended permit applications.

2. Applications for an administrative permit amendment or an administrative permit modification to an existing permit.

3. Applications for permits or changes to permits for a true minor source.

D. The department shall make any final determinations required by this article, including, but not limited to:

1. The applicability of this article;

2. Any applicability determinations required pursuant to Articles 1 (9VAC5-80-50 et seq.), 3 (9VAC5-80-360 et seq.), 5 (9VAC5-80-800 et seq.), 6 (9VAC5-80-1100 et seq.), 7 (9VAC5-80-1400 et seq.), 8 (9VAC5-80-1605 et seq.) and 9 (9VAC5-80-2000 et seq.) of this part and pursuant to 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) that affect the applicability of this article;

3. The amount of permit application fees owed; and

4. The applicability of words or terms to a particular stationary source or permit application.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 112, 165, 173, and 182 and Title V of the federal Clean Air Act; and 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 21, Issue 4, eff. December 1, 2004; Volume 28, Issue 22, eff. July 1, 2012.

9VAC5-80-2260 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection D of this section.

B. As used in this article, all words and terms not defined in subsection D of this section shall have the meanings given them in 9VAC5-80-60 C, 9VAC5-80-370, 9VAC5-80-810 C, 9VAC5-80-1110 C, 9VAC5-80-1410 C, 9VAC5-80-1615 C, 9VAC5-80-2010 C, 9VAC5-85-30 C, 9VAC5-85-50 C, or 9VAC5-85-70 C, as may apply, unless otherwise required by context.

C. All words and terms not defined in subsection D of this section and not defined as provided in subsection B of this section shall have the meanings given them in 9VAC5-80-5 or 9VAC5-10 (General Definitions), unless otherwise required by context.

D. Terms defined.

"Complete" means, in reference to an application for a permit, that the application contains all of the information necessary for processing the application. Designating an application complete for the purposes of permit processing does not preclude the department from requesting or accepting any additional information.

"Major new source review permit" or "major NSR permit" means a permit that is issued under the major new source review (major NSR) program or a permit that is issued pursuant to the minor new source review (minor NSR) program in which one or more of the provisions have been combined from a permit issued under the major NSR program. A major NSR permit may contain provisions that are subject to the requirements of the minor NSR program.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 112, 165, and 173 of the federal Clean Air Act and associated regulations; and (iii) codified in Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of this part and Part III (9VAC5-85-40 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

"Minor new source review permit" or "minor NSR permit" means a permit that is issued pursuant to the minor new source review (minor NSR) program in which none of the provisions have been combined from a major NSR permit.

"Permit amendment" means (i) a change to a permit that was issued pursuant to Article 5 (9VAC5-80-800 et seq.), Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), or Article 9 (9VAC5-80-2000 et seq.) of this part; (ii) an administrative change to a permit issued pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part; or (iii) a change to a permit issued pursuant to Part III (9VAC5-85-40 et seq.) or Part IV (9VAC5-85-60 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

"Permit modification" means a change, other than an administrative permit amendment, to a permit that was issued pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or pursuant to Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

"State major permit" means a minor NSR permit that is issued for a stationary source having the potential to emit 100 tons per year or more of any air pollutant, considering the state enforceable and federally enforceable permit limits in that permit.

"State operating permit" means a permit issued pursuant to Article 5 (9VAC5-80-800 et seq.) of this part or Part IV (9VAC5-85-60 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

"Synthetic minor permit" means a permit that is issued under the provisions of Article 5 (9VAC5-80-800 et seq.) or Article 6 (9VAC5-80-1100 et seq.) of this part or Part IV (9VAC5-85-60 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) for a stationary source that would otherwise be subject to permit requirements under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) except for state enforceable and federally enforceable permit limits in that permit.

"Title V permit" means a federal operating permit issued pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

"Title V general permit" means a general permit issued pursuant to the provisions of 9VAC5-80-120.

"True minor source" means a stationary source that would not be subject to permit requirements under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) even without considering any state enforceable or federally enforceable permit limitations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 28, Issue 22, eff. July 1, 2012; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-80-2270 General

A. Any person submitting a permit application subject to this article shall pay a permit application fee in the amount determined in accordance with 9VAC5-80-2280 or 9VAC5-80-2282, as appropriate.

B. Permit application fees collected pursuant to this article for sources subject to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or subject to Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) shall not be used for any purpose other than as provided in Title V of the federal Clean Air Act and associated regulations and policies.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Volume 28, Issue 22, eff. July 1, 2012; Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-2280 Permit application fee calculation prior to January 1, 2018

Each permit application subject to this article that is received by the appropriate regional office prior to January 1, 2018, shall be subject to a permit application fee. The amount of the application fee shall be calculated as follows:

1. The amount of the permit application fee shall be the largest applicable base permit application fee amount from Table 8-10A, adjusted annually by the change in the Consumer Price Index (CPI) as specified in subdivision 2 of this subsection.

| TABLE 8-10A BASE PERMIT APPLICATION FEES FOR STATIONARY SOURCES | | | | --- | --- | --- | | Application for: | Base Permit Application Fee Amount | | | Sources subject to Title V permitting requirements: | | | | | Major NSR permit | $30,000 | | | Major NSR permit amendment (except administrative) | $7,000 | | | State major permit | $15,000 | | | Minor NSR permit (that is not also a state major permit) | $1,500 | | | Minor NSR permit amendment (except administrative) | $750 | | | Title V permit | $20,000 | | | Title V permit renewal | $10,000 | | | Title V permit modification (except administrative) | $3,500 | | | State operating permit | $7,000 | | | State operating permit amendment (except administrative) | $3,500 | | | Title V General Permit | $500 | | Sources subject to the requirements of a synthetic minor permit: | | | | | Minor NSR permit | $500 | | | Minor NSR permit amendment (except administrative) | $250 | | | State operating permit | $1,500 | | | State operating permit amendment (except administrative) | $800 |

2. The annual adjustment of the permit application fees shall be based upon the annually adjusted permit application fee amounts for the preceding calendar year and the change in the CPI value published by the U.S. Department of Labor for all-urban consumers over the 12-month period ending on August 31 of the calendar year preceding the calendar year in which the application is first received by the appropriate regional office of the department.

a. The CPI for all-urban consumers published by the U.S. Department of Labor may be obtained online from the Bureau of Labor Statistics website at http://data.bls.gov/cgi-bin/surveymost?cu.

b. There is no CPI adjustment for applications received prior to January 1, 2013.

3. The amount of the annually CPI-adjusted permit application fee shall be rounded down to the nearest whole dollar.

4. Applications that are received prior to January 1, 2018, and that are amended on or after January 1, 2018, are subject to the permit application fee calculated pursuant to the provisions 9VAC5-80-2282 B.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70 and 72.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Volume 28, Issue 22, eff. July 1, 2012; Errata, 28:24 VA.R. 1961 July 30, 2012; amended, Virginia Register Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-2282 Permit application fee calculation on and after January 1, 2018

A. Each permit application subject to this article that is received by the appropriate regional office on or after January 1, 2018, shall be subject to a permit application fee. The amount of the application fee shall be calculated as follows:

1. The amount of the permit application fee shall be the largest applicable base permit application fee amount from Table 8-10B, adjusted annually on January 1 of each calendar year after 2018 as specified in subdivisions 2 and 3 of this subsection.

| TABLE 8-10B BASE PERMIT APPLICATION FEES FOR STATIONARY SOURCES | | | | --- | --- | --- | | Application for: | Base Permit Application Fee Amount | | | Sources subject to Title V permitting requirements: | | | | | Major NSR permit | $63,000 | | | Major NSR permit amendment (except administrative) | $10,000 | | | State major permit | $25,000 | | | Minor NSR permit (that is not also a state major permit) | $5,000 | | | Minor NSR permit amendment (except administrative) | $2,500 | | | Title V permit | $35,000 | | | Title V permit renewal | $15,000 | | | Title V permit modification (except administrative) | $4,000 | | | State operating permit | $10,000 | | | State operating permit amendment (except administrative) | $4,000 | | | Title V General Permit | $531 | | Sources subject to the requirements of a synthetic minor permit: | | | | | Minor NSR permit | $3,000 | | | Minor NSR permit amendment (except administrative) | $1,000 | | | State operating permit | $5,000 | | | State operating permit amendment (except administrative) | $2,500 |

2. Except as provided in subdivision 3 of this subsection, the annual adjustment of the permit application fees shall be based upon the permit application fee amounts for the preceding calendar year and the change in the CPI value published by the U.S. Department of Labor for all-urban consumers over the 12-month period ending on August 31 of the calendar year preceding the calendar year in which the application is received by the appropriate regional office of the department.

a. The CPI for all-urban consumers published by the U.S. Department of Labor may be obtained online from the Bureau of Labor Statistics website at http://data.bls.gov/cgi-bin/surveymost?cu.

b. There is no CPI adjustment of fees for applications received during calendar year 2019.

3. Instead of a CPI adjustment, each permit application fee amount for applications received in calendar year 2019 shall be increased to 10% more than the base permit application fee amount provided in Table 8-10B.

4. The amount of the permit application fee that is calculated as provided in subdivisions 1, 2, and 3 of this subsection shall be rounded down to the nearest whole dollar.

B. The provisions of this section also apply to permit applications received by the appropriate regional office prior to January 1, 2018, and amended on or after January 1, 2018. Those amended applications are subject to the permit application fee due as if the application was received on or after January 1, 2018, less any prior permit application fee amount paid for that application.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-2290 Permit application fee payment

A. The permit application fee required by this article is due on the date that the permit application is received by the appropriate regional office of the department. The permit application fee is nonrefundable. Incomplete payment shall be deemed as nonpayment.

B. The permit application shall not be considered complete until a permit application fee for the proper amount is received. Review of the application will not proceed past an initial applicability determination until a permit application fee for the proper amount is received.

C. The permit application fee shall be paid by check, draft, or postal money order made payable to the Treasurer of Virginia and mailed or sent electronically to the address specified by the department.

D. The permit application should be mailed or submitted electronically to the appropriate regional office of the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 112, 165, 173, and 182 and Title V of the federal Clean Air Act; 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Volume 28, Issue 22, eff. July 1, 2012; Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-80-2300 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; repealed, Volume 28, Issue 22, eff. July 1, 2012.

Article 11 Annual Permit Maintenance Fees for Stationary Sources

9VAC5-80-2310 Applicability

Article 11 Annual Permit Maintenance Fees for Stationary Sources

A. Except as provided in subsection C of this section, the provisions of this article apply to any stationary source that has begun normal operation and:

1. The stationary source is subject to the provisions of a permit issued pursuant to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or pursuant to Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation);

2. The stationary source is subject to the permit requirements of Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation), and is operating under an application shield under the provisions of 9VAC5-80-80 F or 9VAC5-80-430 F; or

3. The stationary source is subject to the permit requirements of Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) in the absence of a permit issued under Article 5 (9VAC5-80-800 et seq.) or Article 6 (9VAC5-80-1100 et seq.) of this part or Part IV (9VAC5-85-60 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

B. The provisions of this article apply throughout the Commonwealth of Virginia.

C. The provisions of this article shall not apply to any stationary source that began normal operation during the calendar year for which the annual permit maintenance fee is assessed.

D. The department shall make any final determinations required by this article, including:

1. The applicability of this article;

2. The amount of permit maintenance fees owed; and

3. The applicability of terms to a particular stationary source or permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 22, eff. July 1, 2012; amended, Virginia Register Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-2320 Definitions

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection D of this section.

B. As used in this article, all words and terms not defined in subsection D of this section shall have the meanings given them in 9VAC5-80-60 C, 9VAC5-80-370, 9VAC5-80-810 C, 9VAC5-80-1110 C, 9VAC5-80-1410 C, 9VAC5-80-1615 C, 9VAC5-80-2010 C, 9VAC5-85-30 C, 9VAC5-85-50 C, or 9VAC5-85-70 C as may apply, unless otherwise required by context.

C. All words and terms not defined in subsection D of this section and not defined as provided in subsection B of this section shall have the meanings given them in 9VAC5-80-5 or 9VAC5-10 (General Definitions), unless otherwise required by context.

D. Terms defined.

"Area source" means any stationary source that is not a major source. For purposes of this article, the phrase "area source" shall not include motor vehicles or nonroad vehicles.

"Normal operation" means, for the purposes of this article, any operation of a stationary source or part of a stationary source after the testing and shakedown operations following the construction of the stationary source or following the first phase of the phased construction of a stationary source.

"Synthetic minor source" means a stationary source whose potential to emit is constrained by state enforceable and federally enforceable limits, so as to place that stationary source below the threshold at which it would be subject to permit or other requirements governing major stationary sources in regulations of the board or in the federal Clean Air Act and associated regulations.

"Synthetic minor 80% source" or "SM-80 source" means a synthetic minor source that emits or has the potential to emit a regulated pollutant at or above 80% of the major source threshold for that pollutant.

"Title V complex major source" means, for the purposes of this article, a major source that is subject to a total of seven or more subparts in 40 CFR Parts 60, 61, and 63 that contain standards applicable to that stationary source.

"Title V major source" means, for the purposes of this article, a major source that is subject to a total of less than seven subparts in 40 CFR Parts 60, 61, and 63 that contain standards applicable to that stationary source.

"Title V source by rule" means for the purposes of this article, an area source that is subject to permitting requirements under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part because it is subject to a standard, limitation, emission guideline, or other requirement under § 111 or 112 of the federal Clean Air Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 22, eff. July 1, 2012.

9VAC5-80-2330 General

A. The owner of any stationary source subject to this article shall pay an annual permit maintenance fee in the amount determined in accordance with 9VAC5-80-2340 or 9VAC5-80-2342, as appropriate.

B. Annual permit maintenance fees collected pursuant to this article for sources subject to Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or subject to Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) shall not be used for any purpose other than as provided in Title V of the federal Clean Air Act and associated regulations and policies.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 22, eff. July 1, 2012; amended, Virginia Register Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-2340 Annual permit maintenance fee calculation prior to January 1, 2018

A. Prior to January 1, 2018, each stationary source subject to this article shall be assessed an annual permit maintenance fee.

B. The amount of the permit maintenance fee shall be calculated as follows:

1. The amount of the annual permit maintenance fee shall be the largest applicable base permit maintenance fee amount from Table 8-11A, adjusted annually by the change in the Consumer Price Index (CPI) as specified in subdivision 2 of this subsection.

| TABLE 8-11A BASE PERMIT MAINTENANCE FEES FOR STATIONARY SOURCES | | | --- | --- | | Stationary Source Type | Base Permit Maintenance Fee Amount | | Title V Complex Major Source | $10,000 | | Title V Major Source | $3,500 | | Title V Source By Rule | $1,500 | | Synthetic Minor 80% Source | $1,000 |

2. The annual adjustment of the permit maintenance fees shall be based upon the annual permit maintenance fee amount for the preceding calendar year and the change in the CPI value published by the U.S. Department of Labor for all-urban consumers over the 12-month period ending on August 31 of the calendar year preceding the calendar year in which the permit maintenance fee is assessed.

a. The CPI for all-urban consumers published by the U.S. Department of Labor may be obtained online from the Bureau of Labor Statistics website at http://data.bls.gov/cgi-bin/surveymost?cu.

b. No CPI adjustment shall be made for annual permit maintenance fees assessed in calendar year 2012.

3. The amount of the annual permit maintenance fee shall be rounded down to the nearest whole dollar.

C. The provisions of this section shall not apply to any synthetic minor source that is not a synthetic minor 80% source and is not otherwise subject to the permit requirements of Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this part or Part II (9VAC5-85-20 et seq.) of 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 22, eff. July 1, 2012; amended, Virginia Register Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-2342 Annual permit maintenance fee calculation on and after January 1, 2018

A. On and after January 1, 2018, each stationary source subject to this article shall be assessed a permit maintenance fee on an annual basis.

B. The amount of the annual permit maintenance fee shall be calculated as follows:

1. The amount of the annual permit maintenance fee shall be the largest applicable base permit maintenance fee amount from Table 8-11B, adjusted annually as specified in subdivisions 2 and 3 of this subsection.

| TABLE 8-11B BASE PERMIT MAINTENANCE FEES FOR STATIONARY SOURCES | | | --- | --- | | Stationary Source Type | Base Permit Maintenance Fee Amount | | Title V Complex Major Source | $21,263 | | Title V Major Source | $7,442 | | Title V Source By Rule | $2,392 | | Synthetic Minor 80% Source (SM-80 Source) | $1,594 | | Synthetic Minor Source (other than SM-80 Source) | $500 |

2. Except as provided in subdivision 3 of this subsection, the annual adjustment of the permit maintenance fees shall be based upon the annual permit maintenance fee amount for the preceding calendar year and the change in the CPI value published by the U.S. Department of Labor for all-urban consumers over the 12-month period ending on August 31 of the calendar year preceding the calendar year in which the permit maintenance fee is assessed and billed.

a. The CPI for all-urban consumers published by the U.S. Department of Labor may be obtained online from the Bureau of Labor Statistics website at http://data.bls.gov/cgi-bin/surveymost?cu.

b. No annual CPI adjustment shall be made to permit maintenance fees for source types in years for which the adjusted permit maintenance fees for those source types are specified in subdivision 3 of this subsection.

3. Other adjustments to annual permit maintenance fees shall be made as follows:

a. Adjusted permit maintenance fees that are assessed and billed in calendar year 2019 shall be as specified in Table 8-11C.

| TABLE 8-11C ADJUSTED PERMIT MAINTENANCE FEES BILLED IN CALENDAR YEAR 2019 | | | --- | --- | | Stationary Source Type | Permit Maintenance Fee Amount | | Title V Complex Major Source | $23,389 | | Title V Major Source | $8,186 | | Title V Source By Rule | $2,790 | | Synthetic Minor 80% Source | $1,860 | | Synthetic Minor Source (other than SM-80 Source) | $550 |

b. Adjusted annual permit maintenance fees for Title V Sources by Rule and SM-80 Sources that are assessed and billed in calendar year 2020 shall be as specified in Table 8-11D. Annual permit maintenance fees for other stationary source types that are assessed and billed in calendar year 2020 shall be adjusted as specified in subdivision 2 of this subsection.

| TABLE 8-11D ADJUSTED PERMIT MAINTENANCE FEES BILLED IN CALENDAR YEAR 2020 | | | --- | --- | | Stationary Source Type | Permit Maintenance Fee Amount | | Title V Source By Rule | $3,189 | | Synthetic Minor 80% Source | $2,126 |

4. The amount of the annual permit maintenance fee shall be rounded down to the nearest whole dollar.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V); 40 CFR Parts 51, 61, 63, 70, and 72.
• Historical Notes: Derived from Virginia Register Volume 34, Issue 7, eff. January 1, 2018.

9VAC5-80-2350 Annual permit maintenance fee payment

A. Upon determining that the owner of a stationary source owes an annual permit maintenance fee, the department will mail or send electronically a bill for the fee to that owner no later than August 1.

B. Within 30 days following the date of the postmark or electronic submittal on the bill, the owner shall respond in one of the following ways:

1. The owner may pay the fee in full.

2. The owner may request that the fee amount be revised if the owner can document that the status of the permits on which the fee was based is in error. This request shall include appropriate source identification data, copies of all valid air permits, the revised fee amount, adequate supporting documentation, and other information as the department may require. The owner shall file the request with the appropriate regional office in a form acceptable to the department. If the department approves the request, the revised fee amount shall be paid in full within 30 days of the date of approval.

C. The annual permit maintenance fee shall be paid by check, draft, or money order made payable to the Treasurer of Virginia and mailed to the address specified by the department.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 22, eff. July 1, 2012; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation

Part I Applicability

9VAC5-85-10 Applicability

A. Except as provided in subsection C of this section, the provisions of this chapter shall apply to permit actions for a stationary source that emits, or has the potential to emit, any air pollutant subject to regulation. For the purposes of this part, "subject to regulation" means, for any air pollutant, that the pollutant is subject to either a provision in the federal Clean Air Act, or a nationally applicable regulation codified by the administrator in Subchapter C of 40 CFR Chapter I, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit, or restrict the quantity of emissions of that pollutant released from the regulated activity.

B. The provisions of this chapter apply throughout the Commonwealth of Virginia.

C. The provisions of this chapter shall not apply to the following:

1. Permit actions under Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5-80. Nothing in this chapter shall be construed as designating greenhouse gases as a regulated air pollutant for the purposes of Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5-80.

2. Permit actions under Article 7 (9VAC5-80-1400 et seq.) of Part II of 9VAC5-80.

3. Permit actions under Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 3, eff. January 2, 2011.

Part II Federal (Title V) Operating Permit Actions

9VAC5-85-20 Federal (Title V) operating permit actions

The requirements of Article 1 (9VAC5-80-50 et seq.) and Article 3 (9VAC5-80-360 et seq.) of Part II of 9VAC5-80 shall apply, except that the terms defined shall have the meaning given them in this part.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 3, eff. January 2, 2011.

9VAC5-85-30 Definitions

A. For the purpose of applying this part in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in 9VAC5-80-60 (Definitions) or 9VAC5-80-370 (Definitions), as applicable, except for the terms defined in subsection C of this section.

B. Unless otherwise required by context, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions) or 9VAC5-80-5 (Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Greenhouse gases (GHGs)" means the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

"Major stationary source" means, in lieu of subdivision b in the definition of "major source" in 9VAC5-80-60, a major stationary source of air pollutants, as defined in § 302 of the federal Clean Air Act, that directly emits, or has the potential to emit, 100 tpy or more of any air pollutant subject to regulation (including any major source of fugitive emissions of any such pollutant, as determined by rule by the administrator). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source for the purposes of § 302(j) of the federal Clean Air Act, unless the source belongs to one of the 27 categories of stationary sources as listed in subdivisions b (1) through (27) in the definition of "major source" in 9VAC5-80-60.

"Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a provision in the federal Clean Air Act, or a nationally applicable regulation codified by the administrator in Subchapter C of 40 CFR Chapter I, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit, or restrict the quantity of emissions of that pollutant released from the regulated activity. The following exceptions shall apply:

1. GHGs shall not be subject to regulation unless, as of July 1, 2011, the GHG emissions are at a stationary source emitting or having the potential to emit 100,000 tons per year (tpy) CO₂ equivalent emissions (CO₂e).

2. The term "tpy CO₂ equivalent emissions (CO₂e)" shall represent an amount of GHGs emitted, and shall be computed by multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas's associated global warming potential published at Table A-1 to Subpart A of 40 CFR Part 98, and summing the resultant value for each to compute a tpy CO₂e. For purposes of this subdivision, prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of nonfossilized and biodegradable organic material originating from plants, animals, or micro-organisms (including products, byproducts, residues, and waste from agriculture, forestry, and related industries as well as the nonfossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of nonfossilized and biodegradable organic material).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 3, eff. January 2, 2011; amended, Virginia Register Volume 28, Issue 3, eff. November 9, 2011.

Part III Prevention of Significant Deterioration Permit Actions

9VAC5-85-40 Prevention of significant deterioration area permit actions

The requirements of Article 8 (9VAC5-80-1605 et seq.) of Part II of 9VAC5-80 shall apply, with the following exceptions:

1. The terms defined shall have the meaning given to them in this part.

2. The department, at its discretion, may apply the provisions of 9VAC5-85-55 in lieu of 9VAC5-80-1865 (Actuals plantwide applicability limits (PALs)).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 3, eff. January 2, 2011; amended, Virginia Register Volume 30, Issue 11, eff. March 13, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-85-50 Definitions

A. For the purpose of applying this part in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in 9VAC5-80-1615 (Definitions), except for the terms defined in subsection C of this section.

B. Unless otherwise required by context, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions) or 9VAC5-80-5 (Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Actuals PAL" means (i) for major stationary sources, a PAL based on the baseline actual emissions of all emissions units at the source that emit or have the potential to emit the PAL pollutant or (ii) for GHG-only sources, a PAL based on the baseline actual emissions of all emissions units at the source, that emit or have the potential to emit GHGs.

"Allowable emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits that restrict the operating rate or hours of operation, or both) and the most stringent of the following:

1. The allowable emissions for any emissions unit as calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit; or

2. An emissions unit's potential to emit.

"Baseline actual emissions for a GHG PAL" means the average rate, in tons per year CO₂e or tons per year GHG, as applicable, at which the emissions unit actually emitted GHGs during any consecutive 24-month period selected by the owner within the 10-year period immediately preceding either the date the owner begins actual construction of the project or the date a complete permit application is received by the department for a permit required under this part. For any existing electric utility steam generating unit, baseline actual emissions for a GHG PAL means the average rate, in tons per year CO₂e or tons per year GHG, as applicable, at which the emissions unit actually emitted the GHGs during any consecutive 24-month period selected by the owner within the five-year period immediately preceding the date the owner begins actual construction of the project, except that the department will allow the use of a different time period upon a determination that it is more representative of normal source operation.

1. The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

2. The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24-month period.

3. The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the stationary source shall currently comply, had such stationary source been required to comply with such limitations during the consecutive 24-month period.

4. The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual GHG emissions and for adjusting this amount if required by subdivisions 2 and 3 of this definition.

"Emissions unit" means any part of a stationary source that emits or has the potential to emit GHGs. For purposes of 9VAC5-85-55, there are two types of emissions units: (i) a new emissions unit is any emissions unit that is or will be newly constructed and that has existed for less than two years from the date such emissions unit first operated, and (ii) an existing emissions unit is any emissions unit that does not meet the definition of a new emissions unit. A replacement unit is an existing emissions unit.

"GHG-only source" means any existing stationary source that emits or has the potential to emit GHGs in the amount equal to or greater than the amount of GHGs on a mass basis that would be sufficient for a new source to trigger permitting requirements for GHGs under the definition of "major stationary source" and the amount of GHGs on a CO₂e basis that would be sufficient for a new source to trigger permitting requirements for GHGs under the definition of "subject to regulation" at the time the PAL permit is being issued, but does not emit or have the potential to emit any other non-GHG regulated NSR pollutant at or above the applicable major source threshold. A GHG-only source may only obtain a PAL for GHG emissions under 9VAC5-85-55.

"Greenhouse gases" or "GHGs" means the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

"Major emissions unit" means (i) for any major stationary source obtaining a GHG PAL issued on a mass basis, a major emissions unit as defined in 9VAC5-80-1615 C or (ii) for a GHG PAL issued on a CO₂e basis, any emissions unit that emits or has the potential to emit equal to or greater than the amount of GHGs on a CO₂e basis that would be sufficient for a new source to trigger permitting requirements under the definition of "subject to regulation" at the time the PAL permit is being issued.

"Major stationary source" means a major stationary source that is defined in and subject to Article 8 (9VAC5-80-1605 et seq.) of 9VAC5-80 (Permits for Stationary Sources) and that meets the definition of "subject to regulation."

"Minor source" means any stationary source that does not meet either (i) the definition of "major stationary source" for any pollutant at the time the PAL is issued or (ii) the definition of "subject to regulation."

"Plantwide applicability limitation" or "PAL" means an emission limitation expressed on a mass basis in tons per year, or expressed in tons per year CO₂e for a CO₂e-based GHG emission limitation, for a pollutant at a major stationary source or GHG-only source, that is enforceable as a practical matter and established sourcewide in accordance with 9VAC5-85-55.

"PAL effective date" generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

"PAL effective period" means the period beginning with the PAL effective date and ending 10 years later.

"PAL major modification" means, notwithstanding the definitions for "major modification" and "net emissions increase" as defined in 9VAC5-80-1615 C and the definition of "subject to regulation" of this section, any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

"PAL permit" means the major NSR permit, the state operating permit, or the federal operating permit that establishes a PAL for a major stationary source or a GHG-only source.

"PAL pollutant" means the pollutant for which a PAL is established at a major stationary source or a GHG-only source. For a GHG-only source, the only available PAL pollutant is greenhouse gases.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable or enforceable as a practical matter. Secondary emissions do not count in determining the potential to emit of a stationary source. For the purposes of actuals PALs, any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable or enforceable as a practical matter by the state.

"Regulated NSR pollutant" means:

1. Any pollutant for which an ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the administrator (e.g., volatile organic compounds and NO_X are precursors for ozone);

2. Any pollutant that is subject to any standard promulgated under § 111 of the federal Clean Air Act;

3. Any class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act; or

4. Any pollutant that otherwise is subject to regulation under the federal Clean Air Act as defined in the definition of "subject to regulation."

5. Notwithstanding subdivisions 1 through 4 of this definition, the term "regulated NSR pollutant" shall not include any or all hazardous air pollutants either listed in § 112 of the federal Clean Air Act, or added to the list pursuant to § 112(b)(2) of the federal Clean Air Act, and which have not been delisted pursuant to § 112(b)(3) of the federal Clean Air Act, unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under § 108 of the federal Clean Air Act.

"Replacement unit" means an emissions unit for which all the following criteria are met. No creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced.

1. The emissions unit is a reconstructed unit within the meaning of 40 CFR 60.15(b)(1), or the emissions unit completely takes the place of an existing emissions unit.

2. The emissions unit is identical to or functionally equivalent to the replaced emissions unit.

3. The replacement does not change the basic design parameters of the process unit.

4. The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.

"Significant emissions unit" means (i) for a GHG PAL issued on a mass basis, an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit or (ii) for a GHG PAL issued on a CO₂e basis, any emissions unit that emits or has the potential to emit GHGs on a CO₂e basis in amounts equal to or greater than the amount that would qualify the unit as small emissions unit, but less than the amount that would qualify the unit as a major emissions unit.

"Small emissions unit" means (i) for a GHG PAL issued on a mass basis, an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in this section or in the federal Clean Air Act, whichever is lower or (ii) for a GHG PAL issued on a CO₂e basis, an emissions unit that emits or has the potential to emit less than the amount of GHGs on a CO₂e basis defined as "significant" for the purposes of subdivision 3 of the definition of "subject to regulation" at the time the PAL permit is being issued.

"Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a provision in the federal Clean Air Act, or a nationally applicable regulation codified by the administrator in Subchapter C of 40 CFR Chapter I, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit or restrict the quantity of emissions of that pollutant released from the regulated activity. The following exceptions shall apply:

1. GHGs shall not be subject to regulation except as provided in subdivisions 4 and 5 of this definition and shall not be subject to regulation if the stationary source maintains its total sourcewide emissions below the GHG PAL level, meets the requirements of 9VAC5-85-55, and complies with the PAL permit containing the GHG PAL. A GHG-only source with a valid CO₂e-based GHG PAL shall be considered to be a minor source for GHG.

2. For purposes of subdivisions 3, 4, and 5 of this definition, the term "tpy CO₂ equivalent emissions (CO₂e)" shall represent an amount of GHGs emitted, and shall be computed as follows:

a. Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas's associated global warming potential published at Table A-1 to Subpart A of 40 CFR Part 98. For purposes of this subdivision, prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of nonfossilized and biodegradable organic material originating from plants, animals, or micro-organisms (including products, byproducts, residues, and waste from agriculture, forestry, and related industries as well as the nonfossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of nonfossilized and biodegradable organic material).

b. Sum the resultant value from subdivision a of this subdivision for each gas to compute a tpy CO₂e.

3. The term "emissions increase" as used in subdivisions 4 and 5 of this definition shall mean that both a significant emissions increase (as calculated using the procedures in 9VAC5-80-1605 G) and a significant net emissions increase (as defined in 9VAC5-80-1615 C) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO₂e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and "significant" is defined as 75,000 tpy CO₂e instead of applying the value in subdivision b of the definition of "significant" in 9VAC5-80-1615 C.

4. Beginning January 2, 2011, the pollutant GHGs is subject to regulation if:

a. The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO₂e or more; or

b. The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO₂e or more.

5. Beginning July 1, 2011, in addition to the provisions in subdivision 4 of this definition, the pollutant GHGs shall also be subject to regulation:

a. At a new stationary source that will emit or have the potential to emit 100,000 tpy CO₂e; or

b. At an existing stationary source that emits or has the potential to emit 100,000 tpy CO₂e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO₂e or more.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 3, eff. January 2, 2011; amended, Virginia Register Volume 28, Issue 3, eff. November 9, 2011; Volume 30, Issue 11, eff. March 13, 2014; Volume 31, Issue 22, eff. August 13, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-85-55 Actuals plantwide applicability limits (PALs)

A. The following applicability requirements shall apply:

1. The department may approve the use of an actuals PAL for GHGs on either a mass basis or a CO₂e basis for any existing major stationary source or any existing GHG-only source if the PAL meets the requirements of this section. The term "PAL" shall mean "actuals PAL" throughout this section.

2. Any physical change in or change in the method of operation of a major stationary source or a GHG-only source that maintains its total sourcewide emissions below the PAL level, meets the requirements of this section, and complies with the PAL permit:

a. Is not a major modification for the PAL pollutant;

b. Does not have to be approved through Article 8 (9VAC5-80-1605 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources) or this part;

c. Is not subject to the provisions of 9VAC5-80-1605 C (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program); and

d. Does not make GHGs subject to regulation.

3. Except as provided under subdivision 2 c of this subsection, a major stationary source or a GHG-only source shall continue to comply with all applicable federal or state requirements, emission limitations, and work practice requirements that were established prior to the effective date of the PAL.

B. As part of a permit application requesting a PAL, the owner of a major stationary source or a GHG-only source shall submit the following information to the department for approval:

1. A list of all emissions units at the source designated as small, significant, or major based on their potential to emit. In addition, the owner of the source shall indicate which, if any, federal or state applicable requirements, emission limitations, or work practices apply to each unit.

2. Calculations of the baseline actual emissions, with supporting documentation. Baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown, and malfunction.

3. The calculation procedures that the owner proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by subdivision M 1 of this section.

4. As part of a permit application requesting a GHG PAL, the owner of a major stationary source or a GHG-only source shall submit a statement by the owner that clarifies whether the source is an existing major source as defined in the definition of "major stationary source" or a GHG-only source.

C. The department may establish a PAL at a major stationary source or a GHG-only source, provided that at a minimum, the following requirements are met. At no time during or after the PAL effective period are emissions reductions of a PAL pollutant that occur during the PAL effective period creditable as decreases for purposes of offsets under 9VAC5-80-2120 F through L unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

1. The PAL shall impose an annual emission limitation expressed on a mass basis in tons per year, or expressed in tons per year CO₂e, that is enforceable as a practical matter, for the entire major stationary source or GHG-only source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source or GHG-only source owner shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major stationary source or GHG-only source owner shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.

2. The PAL shall be established in a PAL permit that meets the public participation requirements in subsection D of this section.

3. The PAL permit shall contain all the requirements of subsection F of this section.

4. The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source or GHG-only source.

5. Each PAL shall regulate emissions of only one pollutant.

6. Each PAL shall have a PAL effective period of 10 years.

7. The owner of the major stationary source or GHG-only source with a PAL shall comply with the monitoring, recordkeeping, and reporting requirements provided in subsections L, M, and N of this section for each emissions unit under the PAL through the PAL effective period.

D. PALs for existing major stationary sources or GHG-only sources shall be established, renewed, or increased through the public participation procedures prescribed in the applicable permit programs identified in the definition of "PAL permit." This includes the requirement that the department provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The department will address all material comments before taking final action on the permit.

E. Setting the 10-year actuals PAL level shall be accomplished as follows:

1. Except as provided in subdivisions 2 and 3 of this subsection, the actuals PAL level on a mass basis for a major stationary source or a GHG-only source shall be established as the sum of the baseline actual emissions of the PAL pollutant for each emissions unit at the source, plus an amount equal to the applicable significant level for the PAL pollutant under the definition of "significant" in 9VAC5-80-1615 C.

2. For newly constructed units, which do not include modifications to existing units, on which actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as specified in subdivision 1 of this subsection, the emissions shall be added to the PAL level in an amount equal to the potential to emit of the units.

3. For a CO₂e based GHG PAL, the actuals PAL level shall be established as the sum of the GHGs baseline actual emissions of GHGs for each emissions unit at the source, plus an amount equal to the amount defined as significant on a CO₂e basis for the purposes of subdivision 3 of the definition of "subject to regulation" at the time the PAL permit is being issued. When establishing the actuals PAL level for a CO₂e-based PAL, only one consecutive 24-month period shall be used to determine the baseline actual emissions for all existing emissions units. Emissions associated with units that were permanently shut down after this 24-month period shall be subtracted from the PAL level. The department will specify a reduced PAL level (in tons per year CO₂e) in the PAL permit to become effective on the future compliance date of any applicable federal or state regulatory requirement that the department is aware of prior to issuance of the PAL permit.

F. The PAL permit shall contain, at a minimum, the following information:

1. The PAL pollutant and the applicable sourcewide emission limitation in tons per year CO₂e.

2. The PAL permit effective date and the expiration date of the PAL (PAL effective period).

3. Specification in the PAL permit that if a major stationary source or a GHG-only source owner applies to renew a PAL in accordance with subsection J of this section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the department.

4. A requirement that emission calculations for compliance purposes shall include emissions from startups, shutdowns, and malfunctions.

5. A requirement that, once the PAL expires, the major stationary source or GHG-only source is subject to the requirements of subdivision I of this section.

6. The calculation procedures that the major stationary source or GHG-only source owner shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total as required by subdivision M 1 of this section.

7. A requirement that the GHG-only source owner shall monitor all emissions units in accordance with the provisions under subsection L of this section.

8. A requirement to retain the records required under subsection M of this section on site. Such records may be retained in an electronic format.

9. A requirement to submit the reports required under subsection N of this section by the required deadlines.

10. Any other requirements that the department deems necessary to implement and enforce the PAL.

11. A permit for a GHG PAL issued to a GHG-only source shall also include a statement denoting that GHG emissions at the source will not be subject to regulation as long as the source complies with the PAL.

G. The PAL effective period shall be 10 years.

H. The following requirements for reopening the PAL permit shall apply:

1. During the PAL effective period the department will reopen the PAL permit to:

a. Correct typographical or calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL;

b. Reduce the PAL if the owner creates creditable emissions reductions for use as offsets under 9VAC5-80-2120 F through N; and

c. Revise the PAL to reflect an increase in the PAL as provided under subsection K of this section.

2. The department may reopen the PAL permit for the following reasons:

a. Reduce the PAL to reflect newly applicable federal requirements (for example, NSPS) with compliance dates after the PAL effective date; and

b. Reduce the PAL consistent with any other requirement that is enforceable as a practical matter and that the department may impose on the major stationary source or GHG-only source.

3. Except for the permit reopening in subdivision 1 a of this subsection for the correction of typographical or calculation errors that do not increase the PAL level, all other reopenings shall be carried out in accordance with the public participation requirements of subsection D of this section.

I. Any PAL that is not renewed in accordance with the procedures in subsection J of this section shall expire at the end of the PAL effective period, and the following requirements shall apply:

1. Each emissions unit or each group of emissions units that existed under the PAL shall comply with an allowable emission limitation under a revised permit established according to the following procedures:

a. Within the time frame specified for PAL renewals in subdivision J 2 of this section, the major stationary source or GHG-only source shall submit a proposed allowable emission limitation for each emissions unit (or each group of emissions units, if such a distribution is more appropriate as decided by the department) by distributing the PAL allowable emissions for the major stationary source or GHG-only source among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under subdivision J 5 of this section, such distribution shall be made as if the PAL had been adjusted.

b. The department will decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the department determines is appropriate.

2. Each emissions unit shall comply with the allowable emission limitation on a 12-month rolling basis. The department may approve the use of monitoring systems (source testing, emission factors, etc.) other than CEMS, CERMS, PEMS, or CPMS to demonstrate compliance with the allowable emission limitation.

3. Until the department issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as required under subdivision 1 b of this subsection, the source shall continue to comply with a sourcewide, multiunit emissions cap equivalent to the level of the PAL emission limitation.

4. Any physical change or change in the method of operation at the major stationary source or GHG-only source shall be subject to major NSR requirements if such change meets the definition of "major modification" in 9VAC5-80-1615 C.

5. The major stationary source or GHG-only source owner shall continue to comply with any state or federal applicable requirements (such as BACT, RACT, NSPS) that may have applied either during the PAL effective period or prior to the PAL effective period except for those emission limitations that had been established pursuant to 9VAC5-80-1605 C, but were eliminated by the PAL in accordance with the provisions in subdivision A 2 c of this section.

J. PALs shall be renewed as follows:

1. The department will follow the procedures specified in subsection D of this section in approving any request to renew a PAL for a major stationary source or a GHG-only source and will provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During such public review, any person may propose a PAL level for the source for consideration by the department.

2. A major stationary source or a GHG-only source owner shall submit a timely application to the department to request renewal of a PAL. A timely application is one that is submitted at least six months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner of a major stationary source or a GHG-only source submits a complete application to renew the PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued.

3. The application to renew a PAL permit shall contain the following information:

a. The information required in subdivisions B 1, B 2, and B 3 of this section.

b. A proposed PAL level.

c. The sum of the potential to emit of all emissions units under the PAL (with supporting documentation).

d. Any other information the owner wishes the department to consider in determining the appropriate level for renewing the PAL.

4. In determining whether and how to adjust the PAL, the department will consider the following options; however, in no case may any such adjustment fail to comply with subdivision 4 c of this subsection:

a. If the emissions level calculated in accordance with subsection E of this section is equal to or greater than 80% of the PAL level, the department may renew the PAL at the same level without considering the factors set forth in subdivision 4 b of this subsection; or

b. The department may set the PAL at a level that it determines to be more representative of the source's baseline actual emissions, or that it determines to be more appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the department in its written rationale.

c. Notwithstanding subdivisions 4 a and 4 b of this subsection (i) if the potential to emit of the major stationary source or GHG-only source is less than the PAL, the department will adjust the PAL to a level no greater than the potential to emit of the source and (ii) the department will not approve a renewed PAL level higher than the current PAL, unless the major stationary source or GHG-only source has complied with the provisions of subsection K of this section.

5. If the compliance date for a state or federal requirement that applies to the PAL source occurs during the PAL effective period, and if the department has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or federal operating permit renewal, whichever occurs first.

K. A PAL may be increased during the PAL effective period as follows:

1. The department may increase a PAL emission limitation only if the major stationary source or GHG-only source complies with the following provisions:

a. The owner of the major stationary source or GHG-only source shall submit a complete application to request an increase in the PAL limit for a PAL major modification. Such application shall identify the emissions units contributing to the increase in emissions so as to cause the GHG-only source's emissions to equal or exceed its PAL.

b. As part of this application, the major stationary source or GHG-only source owner shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emissions of the new or modified emissions units exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In such a case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER with which that emissions unit shall currently comply.

c. The owner obtains a major NSR permit for all emissions units identified in subdivision 1 a of this subsection, regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply). These emissions units shall comply with any emissions requirements resulting from the major NSR process (for example, BACT), even though they have also become subject to the PAL or continue to be subject to the PAL.

2. The PAL permit shall require that the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

3. The department will calculate the new PAL as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with subdivision 1 b of this subsection), plus the sum of the baseline actual emissions of the small emissions units.

4. The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice requirements of subsection D of this section.

L. Monitoring requirements for PALs shall be as follows:

1. The following general requirements apply:

a. Each PAL permit shall contain enforceable requirements for the monitoring system that accurately determine plantwide emissions of the PAL pollutant in terms of CO₂e per unit of time. Any monitoring system authorized for use in the PAL permit shall be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by such system shall meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

b. The PAL monitoring system shall employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in subdivision 2 of this subsection and shall be approved by the department.

c. Notwithstanding subdivision 1 b of this subsection, the owner may also employ an alternative monitoring approach that meets subdivision 1 a of this subsection if approved by the department.

d. Failure to use a monitoring system that meets the requirements of this subsection renders the PAL invalid.

2. The following are acceptable general monitoring approaches when conducted in accordance with the following minimum requirements:

a. Mass balance calculations for activities using coatings or solvents;

b. CEMS;

c. CPMS or PEMS; and

d. Emission factors.

3. An owner using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

a. Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

b. Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; and

c. Where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner shall use the highest value of the range to calculate the PAL pollutant emissions unless the department determines there is site-specific data or a site-specific monitoring program to support another content within the range.

4. An owner using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

a. CEMS shall comply with applicable Performance Specifications found in Appendix B to 40 CFR Part 60; and

b. CEMS shall sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.

5. An owner using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

a. The CPMS or the PEMS shall be based on current site-specific data demonstrating a correlation between the monitored parameters and the PAL pollutant emissions across the range of operation of the emissions unit; and

b. Each CPMS or PEMS shall sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the department, while the emissions unit is operating.

6. An owner using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

a. All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development;

b. The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

c. If technically practicable, the owner of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within six months of PAL permit issuance, unless the department determines that testing is not required.

7. A source owner shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

8. Notwithstanding the requirements in subdivisions 3 through 7 of this subsection, where an owner of an emissions unit cannot demonstrate a correlation between the monitored parameters and the PAL pollutant emissions rate at all operating points of the emissions unit, the department will, at the time of permit issuance:

a. Establish default values for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating points; or

b. Determine that operation of the emissions unit during operating conditions when there is no correlation between monitored parameters and the PAL pollutant emissions is a violation of the PAL.

9. All data used to establish the PAL pollutant shall be revalidated through performance testing or other scientifically valid means approved by the department. Such testing shall occur at least once every five years after issuance of the PAL.

M. Recordkeeping requirements shall be as follows:

1. The PAL permit shall require the owner to retain a copy of all records necessary to determine compliance with any requirement of this section and of the PAL, including a determination of each emissions unit's 12-month rolling total emissions, for five years from the date of such record.

2. The PAL permit shall require the owner to retain a copy of the following records for the duration of the PAL effective period plus five years:

a. A copy of the PAL permit application and any applications for revisions to the PAL; and

b. Each annual certification of compliance pursuant to the federal operating permit program and the data relied on in certifying the compliance.

N. The owner shall submit semi-annual monitoring reports and prompt deviation reports to the department in accordance with the federal operating permit program. The reports shall meet the following requirements:

1. The semi-annual report shall be submitted to the department within 30 days of the end of each reporting period. This report shall contain the following information:

a. The identification of owner and the permit number.

b. Total annual emissions (expressed on a mass-basis in tons per year, or expressed in tons per year CO₂e) based on a 12-month rolling total for each month in the reporting period recorded pursuant to subdivision M 1 of this section.

c. All data relied upon, including, but not limited to, any quality assurance or quality control data, in calculating the monthly and annual PAL pollutant emissions.

d. A list of any emissions units modified or added to the major stationary source or GHG-only source during the preceding six-month period.

e. The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken.

f. A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by subdivision L 7 of this section.

g. A signed statement by the responsible official (as defined by the federal operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

2. The major stationary source or GHG-only source owner shall promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to 9VAC5-80-110 F 2 b shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed by the applicable program implementing 9VAC5-80-110 F 2 b. The reports shall contain the following information:

a. The identification of owner and the permit number;

b. The PAL requirement that experienced the deviation or that was exceeded;

c. Emissions resulting from the deviation or the exceedance; and

d. A signed statement by the responsible official (as defined by the federal operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

3. The owner shall submit to the department the results of any revalidation test or method within three months after completion of such test or method.

O. The department will not issue a PAL that does not comply with the requirements of this part after March 13, 2014. The department may supersede any PAL that was established prior to March 13, 2014, with a PAL that complies with the requirements of this section.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 11, eff. March 13, 2014; amended, Virginia Register Volume 31, Issue 22, eff. August 13, 2015; Volume 39, Issue 5, eff. November 23, 2022.

Part IV State Operating Permit Actions

9VAC5-85-60 State operating permit actions

Within the limits of 9VAC5-80-800 C, the requirements of Article 5 (9VAC5-80-800 et seq.) of Part II of 9VAC5-80 may apply, except that the terms defined shall have the meaning given them in this part.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 3, eff. January 2, 2011.

9VAC5-85-70 Definitions

A. For the purpose of applying this part in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in 9VAC5-80-810 (Definitions), except for the terms defined in subsection C of this section.

B. Unless otherwise required by context, all terms not defined herein shall have the meaning given them in 9VAC5-10 (General Definitions) or 9VAC5-80-5 (Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Regulated air pollutant" means any of the following:

1. Nitrogen oxides or any volatile organic compound.

2. Any pollutant for which an ambient air quality standard has been promulgated.

3. Any pollutant subject to any standard promulgated under § 111 of the federal Clean Air Act.

4. Any Class I or II substance subject to a standard promulgated under or established by Title VI of the federal Clean Air Act concerning stratospheric ozone protection.

5. Any pollutant subject to a standard promulgated under or other requirements established under § 112 of the federal Clean Air Act concerning hazardous air pollutants and any pollutant regulated under Subpart C of 40 CFR 68.

6. Any pollutant subject to a regulation adopted by the board.

7. Any pollutant subject to regulation under the Virginia Air Pollution Control Law.

8. Any pollutant that otherwise is subject to regulation under the federal Clean Air Act as defined in the definition of "subject to regulation."

"Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a provision in the federal Clean Air Act, or a nationally applicable regulation codified by the administrator in Subchapter C of 40 CFR Chapter I, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit or restrict the quantity of emissions of that pollutant released from the regulated activity.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 3, eff. January 2, 2011.

Chapter 91 Regulations for the Control of Motor Vehicle Emissions in the Northern Virginia Area

Part II General Provisions

9VAC5-91-30 Applicability and authority of the department

A. The provisions of this chapter, unless specified otherwise, apply to the following:

1. Any owner of an affected motor vehicle, including new motor vehicles, specified in subsection B of this section. References made to responsibilities or requirements applicable to an affected motor vehicle shall mean that the owner shall be responsible for compliance with all applicable provisions of this chapter.

2. Any owner of an emissions inspection station or fleet emissions inspection station under the auspices of the enhanced emissions inspection program. References made to responsibilities or requirements of emissions inspection stations or fleet emissions inspection stations shall mean that the owner, permittee or certificate holder, as appropriate, shall be responsible for compliance with all applicable provisions of this chapter.

3. Any person who conducts an emissions inspection under the auspices of the enhanced emissions inspection program.

4. Any owner of an emissions repair facility performing emissions repairs on motor vehicles affected by this chapter. References made to responsibilities or requirements of certified emissions repair facilities shall mean that the owner, permittee or certificate holder, as appropriate, shall be responsible for compliance with all applicable provisions of this chapter.

5. Any emissions repair technician performing emissions repairs on motor vehicles affected by this chapter.

6. Any on-road emissions inspector conducting on-road testing.

7. Any person or corporation that has entered into a contract with the director to provide services in accordance with this chapter.

B. The provisions of this chapter, unless specified otherwise, apply to the following affected motor vehicles:

1. Any affected motor vehicle, including new motor vehicles, registered by the Virginia Department of Motor Vehicles and garaged within the Northern Virginia program area.

2. Any affected motor vehicle, including new motor vehicles, registered by the Virginia Department of Motor Vehicles and garaged outside of the Northern Virginia program area but operated primarily in the Northern Virginia program area.

3. Any affected motor vehicle, including new motor vehicles not registered by the Department of Motor Vehicles but operated primarily in the Northern Virginia program area.

4. Any affected motor vehicle, including new motor vehicles owned or operated as part of a fleet located outside the Northern Virginia program area but operated primarily in the Northern Virginia program area.

C. As provided in the Virginia Motor Vehicle Emissions Control Law, affected motor vehicles shall be submitted for biennial emissions inspections and shall be in compliance with this chapter.

1. Motor vehicles having obtained a valid enhanced emissions inspection pass from another program area or another state within the most recent 12 months may be determined by the director to be in compliance with the enhanced emissions inspection required by this chapter for initial registration in Virginia. The valid period for such emissions inspection shall be one year. The proof of emissions inspection results from an enhanced emissions inspection program shall be presented to the Department of Motor Vehicles in such cases. The vehicle and proof of compliance may be presented to the department for verification purposes in order to resolve questions or disputes. Such vehicles are subject to all other provisions of this chapter.

2. The director may temporarily defer the emissions inspection requirement for motor vehicles registered in but temporarily located outside the program area at the time of such requirement based on information including, but not limited to, the location of the vehicle, the reason for and length of its temporary location, and demonstration that it is not practical or reasonable to return the vehicle to the program area for inspection. All such information shall be provided by the owner and is subject to verification by the department.

3. Clean screen vehicles may be determined by the director to be in compliance with the enhanced emissions inspection required by this chapter.

D. Motor vehicles being titled for the first time shall be considered to have an enhanced emissions inspection valid for four years from the month of the first titling unless identified by the remote sensing program as violating the emissions standards for that program. A vehicle manufactured for the current model year or any of the three immediately preceding model years shall be considered to have a valid emissions inspection unless identified by the remote sensing program as violating the emissions standards established for that program. Such vehicles are not exempt from the emissions inspection program and are subject to all other provisions of this chapter.

E. Pursuant to § 46.2-1180 B of the Motor Vehicle Emissions Control Law, motor vehicles of the current model year and the four immediately preceding model years, held for resale in a licensed motor vehicle dealer's inventory, may be registered for one year upon sale without obtaining an emissions inspection in accordance with conditions enumerated below.

1. The vehicle must be registered in the program area.

2. The vehicle has not failed nor received a waiver during its most recent emissions inspection.

3. The vehicle has not previously been registered under the provisions of this subsection.

4. The motor vehicle dealer guarantees in writing to the customer and to the department that the emissions equipment on the motor vehicle is operating in compliance with the warranty of the manufacturer or distributor, or both if applicable, at the time of sale.

a. The document supplied must describe the method by which this compliance was determined and provide a copy of any emissions readings obtained from the vehicle for the purpose of making this showing.

b. The document must state in prominent or bold print that the certification in no way warrants or guarantees that the vehicle complied with the emission standards used in the Virginia enhanced emissions inspection program, or similar language approved by the department and that the customer has a right to request an emissions inspection, which may be at the expense of the customer, in lieu of the one year emissions validation period authorized by this subsection.

5. A written request, including the documentation cited above, must be presented to the department not more than 30 days prior to the date of sale so that the department can record such temporary emissions validation period and furnish it to the Department of Motor Vehicles.

6. Such temporary validation period shall not be granted more than once for any motor vehicle.

7. For the purposes of this subsection, any used motor vehicle will be considered to be one model year old on the first day of October of the next calendar year after the model year described on the vehicle title or registration, and shall increase in age by one year on the first day of each October thereafter.

F. Owners or operators of fleets, including fleets of government vehicles and sensitive mission vehicles, shall provide a report to the department annually containing information regarding vehicles operated in the program area sufficient to determine compliance with this chapter. The report shall contain information deemed necessary by the department to determine compliance. Such information shall include, but not be limited to, (i) number of vehicles, (ii) compliance method, and (iii) results of any inspections. Reports shall be in a format and according to a schedule acceptable to the department.

G. Manufacturers and distributors of emissions testing equipment are prohibited from directly or indirectly owning or operating any emissions testing facility or having any direct or indirect financial interest in any such facility other than the leasing of or providing financing for equipment related to emissions testing.

H. The provisions of this chapter, unless specified otherwise, apply only to those pollutants for which emission standards are set forth in Part III (9VAC5-91-160 et seq.) and Part XIV (9VAC5-91-790 et seq.).

I. Applicants for inspection station permits and emissions repair facility certificates shall have a Virginia business license and the application shall only be for a facility in Virginia.

J. By the adoption of this chapter, the board confers upon the department the administrative, enforcement and decision making authority enumerated herein.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 9, eff. December 15, 2012; Volume 29, Issue 24, eff. August 28, 2013; Volume 31, Issue 23, eff. August 12, 2015.

9VAC5-91-40 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-91-41 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; repealed, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.

9VAC5-91-50 Documents incorporated by reference

A. The Administrative Process Act and Virginia Register Act provide that state regulations may incorporate documents by reference. Throughout this chapter, documents of the types specified below have been incorporated by reference.

1. United States Code.

2. Code of Virginia.

3. Code of Federal Regulations.

4. Federal Register.

5. Technical and scientific reference documents.

Additional information on key federal regulations and nonstatutory documents incorporated by reference and their availability may be found in subsection E of this section.

B. Any reference in this chapter to any provision of the Code of Federal Regulations (CFR) shall be considered as the adoption by reference of that provision. The specific version of the provision adopted by reference shall be that contained in the latest revision to the CFR in effect on July 1, 2018, unless noted otherwise. In making reference to the Code of Federal Regulations, 40 CFR Part 35 means Part 35 of Title 40 of the Code of Federal Regulations; 40 CFR 35.20 means § 35.20 in Part 35 of Title 40 of the Code of Federal Regulations.

C. Failure to include in this section any document referenced in this chapter shall not invalidate the applicability of the referenced document.

D. Copies of materials incorporated by reference in this section may be examined by the public at the central office of the Department of Environmental Quality, Air Division, 1111 East Main Street, Suite 1400, Richmond, Virginia, between 8:30 a.m. and 4:30 p.m. of each business day.

E. Information on federal regulations and nonstatutory documents incorporated by reference and their availability may be found below in this subsection.

1. Code of Federal Regulations.

a. The provisions specified below from the Code of Federal Regulations (CFR) are incorporated herein by reference:

(1) 40 CFR Part 51 - Requirements for Preparation, Adoption and Submittal of Implementation Plans, specifically Subpart S (Inspection and Maintenance Program Requirements).

(2) 40 CFR Part 85 - Control of Air Pollution from Mobile Sources, specifically Subpart W (Emission Control System Performance Warranty Short Tests).

b. Copies may be obtained from: Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402; phone (202) 783‑3238.

2. Environmental Protection Agency, Motor Vehicle Emissions Laboratory.

a. The following document is incorporated herein by reference: Environmental Protection Agency technical report, "EPA Recommended Practice for Naming I/M Calibration Gas," EPA-AA-TSS-83‑8‑B, September 1983.

b. The following document is incorporated herein by reference: Environmental Protection Agency technical guidance, Acceleration Simulation Mode Test Procedures, Emission Standards, Quality Control Requirements, and Equipment Specifications," EPA420-B-04‑011, July 2004.

c. Copies may be obtained from: Environmental Protection Agency, Office of Transportation and Air Quality, 2000 Traverwood, Ann Arbor, MI 48105.

3. Building Officials & Code Administrators International, Inc.

a. The following document is incorporated herein by reference: The BOCA National Mechanical Code/1993, Eighth Edition.

b. Copies may be obtained from: Building Officials & Code Administrators International, Inc., 4051 West Flossmoor Road, Country Club Hills, Illinois 60478-5795.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013; Volume 34, Issue 13, eff. February 19, 2018; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-60 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-91-70 Appeal of case decisions

A. Any owner, emissions inspector, emissions repair technician, or other party significantly affected by any action of the director or the department taken without a formal hearing may request a formal hearing in accordance with § 2.2-4020 of the Administrative Process Act, provided a formal hearing has not been waived and a petition requesting such formal hearing is filed with the director within 30 days after notice of the action is mailed, by postal or electronic delivery, or delivered to such owner, emissions inspector, emissions repair technician, or party requesting notification of such action.

B. In cases where the director or the department fails to make a case decision within the time frame specified by § 2.2-4021, the owner, emissions inspector, emissions repair technician, or other party significantly affected, may provide written notice to the director that a decision is due in accordance with § 2.2-4021 of the Administrative Process Act. Appeals thereafter shall be in accordance with the Administrative Process Act.

C. Prior to any formal hearing, an informal fact finding shall be held pursuant to § 2.2-4019 of the Administrative Process Act, unless the named party and the director consent to waive the informal fact finding and go directly to a formal hearing.

D. Any decision of the director resulting from a formal hearing or from an informal fact finding wherein the parties have agreed to waive a formal hearing shall constitute the final decision for purposes of Article V (§ 2.2-4025 et seq.) of the Administrative Process Act.

E. Judicial review of any final decision shall be in accordance with Article V (§ 2.2-4025 et seq.) of the Administrative Process Act.

F. Nothing in this section shall prevent disposition of any case by consent.

G. Any petition for a formal hearing or any notice or petition for an appeal by itself shall not constitute a stay of decision or action.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-91-80 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-91-90 Right of entry

Whenever it is necessary for the purposes of this chapter, the department may enter, at reasonable times, any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys, audits or investigations as authorized by § 46.2-1187.1 of the Virginia Motor Vehicle Emissions Control Law.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.

9VAC5-91-100 Conditions on approvals

A. The director may impose conditions upon permits, licenses, certifications and other approvals issued pursuant to this chapter, (i) which may be necessary to carry out the Virginia Motor Vehicle Emissions Control Law and (ii) which are consistent with this chapter. Except as specified herein, nothing in this chapter shall be understood to limit the power of the department in this regard.

B. A license, permit, or certification applicant may consider any condition imposed by the director as a denial of the requested permit, license, certification or other approval, which shall entitle the applicant to appeal the decision pursuant to 9VAC5-91-70.

C. The existence of a permit, license or certification under this chapter shall not constitute a defense to a violation of the Virginia Air Pollution Control Law, the Virginia Motor Vehicle Emissions Control Law or this chapter and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of any governmental entities having jurisdiction.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.

9VAC5-91-110 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-91-120 Export and import of motor vehicles

A. The catalyst and fuel filler inlet restrictor may be removed from, installed or reinstalled on used motor vehicles scheduled for shipment to or from a foreign country provided that:

1. The export or import of the motor vehicle meets the provisions of subsection B of this section; and

2. The removal of the emissions control equipment does not take place prior to 10 days before the vehicle is turned over to the port authorities and the reinstallation of the emissions control equipment takes place within 10 days after receipt of the vehicle by the motor vehicle owner from the port authorities in the United States if such equipment is required for the vehicle configuration.

B. To be exempted under the provisions of subsection A of this section, the motor vehicle must:

1. Be exported or imported under a U.S. Environmental Protection Agency approved catalyst control program;

2. Be exported or imported under a Department of Defense privately owned vehicle import control program; or

3. Be entered through U.S. Customs under cash bond and formal entry procedures, (19 CFR Part 12—Special classes of merchandise) and be modified to bring it into conformity with applicable federal motor vehicle emission standards (40 CFR Part 86—Control of air pollution from new motor vehicle engines: Certification and test procedures).

C. Nonconforming vehicles may be granted an exemption from the emissions inspection requirement upon (i) submittal and subsequent verification, at the department's discretion, of nonconformity documentation, or (ii) department observation of the vehicle that verifies its status as a nonconforming vehicle.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.

9VAC5-91-130 Relationship of state regulations to federal regulations

A. In order for the Commonwealth to fulfill its obligations under the federal Clean Air Act, some provisions of this chapter are required to be approved by the U.S. Environmental Protection Agency and when approved those provisions become federally enforceable.

B. In cases where this chapter specifies that procedures or methods shall be approved by, acceptable to or determined by the director or the department or specifically provides for decisions to be made by the director or the department, it may be necessary to have such actions (approvals, determinations, exemptions, exclusions, or decisions) reviewed and confirmed as acceptable or approved by the U.S. Environmental Protection Agency in order to make them federally enforceable. Determination of which state actions require federal confirmation or approval and the administrative mechanism for making associated confirmation or approval decisions shall be made on a case-by-case basis in accordance with U.S. Environmental Protection Agency regulations and policy.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.

9VAC5-91-140 Delegation of authority

In accordance with the Motor Vehicle Emissions Control Law, the director, or a designee acting for him, may perform any act provided under this chapter.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.

9VAC5-91-150 Availability of information

A. Emissions data in the possession of the department shall be available to the public without exception.

B. Any other records, reports or information in the possession of the department shall be available to the public with the following exception:

The department shall consider such records, reports or information, or particular part thereof, confidential in accordance with the Virginia Uniform Trade Secrets Act (§ 59.1-336 et seq. of the Code of Virginia) upon a showing satisfactory to the department by any station owner that such records, reports or information, or particular part thereof, meet the criteria in subsection C of this section and the station owner provides a certification to that effect signed by a responsible person for such owner. Such records, reports or information, or particular part thereof, may be disclosed, however, to other officers, employees or authorized representatives of the Commonwealth of Virginia and the U.S. Environmental Protection Agency concerned with carrying out the provisions of the Motor Vehicle Emissions Control Law and the federal Clean Air Act.

C. In order to be exempt from disclosure to the public under subsection B of this section, the information must satisfy the following criteria:

1. Information for which the station owner has been taking and will continue to take measures to protect confidentiality;

2. Information that has not been and is not presently reasonably obtainable without the consent of the station owner or motor vehicle owner by private citizens or other firms through legitimate means other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding;

3. Information which is not publicly available from sources other than the station owner; and

4. Information the disclosure of which would cause substantial harm to the station owner.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.

Part V Emissions Inspector Testing and Licensing

9VAC5-91-380 Emissions inspector licenses and renewals

A. The director shall issue, suspend, revoke or deny licenses, and establish procedures and other instructions for emissions inspectors.

B. Applicants shall qualify under 9VAC5-91-390 and shall demonstrate to the department proof of identification and the ability to properly conduct vehicle emissions inspections according to this chapter prior to being issued an emissions inspector license.

C. Application for licenses shall be made to, and in accordance with procedures approved by, the department.

D. Licenses shall be valid for time periods determined by the department, not to exceed three years from the end of the month in which issued.

1. Upon expiration of the license, the emissions inspector shall no longer be authorized to perform emissions inspections.

2. Upon expiration of the license, the applicant shall be required to pass the testing requirements in 9VAC5-91-390 before being relicensed.

E. When supported by justification which the department deems adequate, the director may, upon written request by an emissions inspector, extend the expiration date of a license by a period not to exceed three months beyond the original expiration date for the purpose of allowing sufficient time for an inspector to correct such deficiencies in the application, such as completion of the required instruction, as have been identified by the department and to allow completion of the application review by the department. Such application for license extension may require demonstration of the applicant's ability to perform an emissions inspection at an emissions inspection or referee facility to the satisfaction of the department.

F. No person shall represent themselves as an emissions inspector without holding a valid emissions inspector license issued by the director and a valid motor vehicle driver's or operator's license.

1. All required licenses shall be made available to department personnel upon request.

2. It is the responsibility of the emissions inspector to have both a current valid emissions inspector and a valid motor vehicle driver's or operator's license. The department will endeavor to notify inspectors prior to the expiration of their emissions inspector license.

3. Licenses shall be valid only for the person to whom they are issued.

4. Emissions inspector identification numbers and access codes are valid only for the person to whom they are issued. Emissions inspectors shall not provide access codes to anyone except department personnel upon request.

G. Upon notification of revocation, the inspector shall surrender to the department all licenses issued by the director. It is the responsibility of the emissions inspector to notify the department of the termination of a suspension period.

H. Emissions inspectors shall keep their current mailing address and place of employment on file with the department and must notify the department of any changes in employment or mailing address.

I. Emissions inspectors may perform emissions inspections at more than one permitted emissions inspection station after notification to the department and with the authorization of the emissions inspection station owners.

J. The provisions of this part apply to current license holders and applicants for initial, renewal, or reinstatement of licenses.

K. Requalification may be required at any time by the department based on the results of monitoring of the performance of the emissions inspector or based on changes in applicable vehicle emissions control or inspection technology. Inspectors may be required to complete instruction or testing to satisfy any deficiencies identified by the department and, if necessary, require demonstration of the inspector's ability to perform an emissions inspection at an emissions inspection station or referee facility. Failure to requalify within three months of notification shall result in expiration of the emissions inspector's licenses.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 19, Issue 3, eff. December 1, 2002; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-390 Qualification requirements for emissions inspector licenses

A. Applications to qualify for emissions inspector licenses shall be filed with the department and the issuance of the licenses shall be administered by the department. Applications for such licenses shall be completed on forms provided by the department. Before an applicant may be given a license, he must comply with the requirements of this section. The department will notify applicants of the evaluation requirements prior to testing.

B. An applicant shall demonstrate the ability to operate the certified analyzer systems properly and perform testing as required by this chapter.

C. No emissions inspector license shall be issued unless it is shown to the satisfaction of the director that the emissions inspector has the ability and resources to perform emissions inspections without causing a violation of the applicable provisions of this chapter and the Virginia Motor Vehicle Emissions Control Law.

D. Any applicant whose license has been revoked shall make a showing to the director that the condition causing the revocation has been corrected to the satisfaction of the director.

E. An applicant shall bear a valid motor vehicle driver's or operator's license and shall present proof of such license to the department at the time of application.

F. An applicant shall demonstrate knowledge, skill, and competence concerning the conduct of emissions inspections. Such knowledge, skill and competence shall be demonstrated by completing training courses approved by the department and by passing a qualification test (scoring 80% or higher) which may include, but not be limited to, knowledge of the following:

1. Operation and purpose of emissions control systems.

2. General relationship of hydrocarbon, oxides of nitrogen (NO_x), and carbon monoxide emissions to timing and air-to-fuel ratio control.

3. General information regarding adjustment and repair based on manufacturers' specifications.

4. This regulation (9VAC5-91).

5. General information regarding contemporary diagnostic and engine tune-up procedures.

6. The provisions of the Emissions Control Systems Performance Warranty pursuant to § 207(b) of the federal Clean Air Act as it applies to this chapter.

7. Visual inspection of the required emissions control equipment for 1973 and newer vehicles.

8. Operation of and proper use, care, maintenance, and gas span checking of certified analyzer systems.

9. Proper use of and distribution of motor vehicle inspection reports, certificates of emissions inspection, and supplemental documents.

10. Inspections for visible smoke emissions.

11. Safety and public health as it applies to the Virginia Vehicle Emissions Control Program.

12. Public relations as it applies to the Virginia Vehicle Emissions Control Program.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-91-400 Conduct of emissions inspectors

Emissions inspectors shall be truthful and cooperate with the department during the conduct of audits, investigations and complaint resolution and all official matters.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.

Part VI Inspection Procedures

9VAC5-91-410 General

A. The key steps in the emissions inspection procedure are as follows:

1. Preliminary inspection of the vehicle to determine whether to accept the vehicle for testing or reject it, as approved by the department and according to 9VAC5-91-420 C. If the vehicle is rejected, the results of such preliminary inspection shall be provided to the customer.

2. Advise the customer of the ability of the emissions inspection station to perform emissions related repairs including the availability of certified emissions repair technicians and necessary equipment. If the vehicle failed the test, inform the customer of their right to seek repairs elsewhere.

3. An agreement between the customer and the emissions inspection station, oral or written, that an emissions inspection will be performed and the requisite fee paid.

4. Determination of the type of emissions test required, ASM or two-speed idle test, or OBD system test for OBD vehicles. For certain OBD vehicles, the director may require an exhaust test (ASM or two-speed idle) in addition to the OBD system test if he conducts appropriate studies and determines that (i) the expected failure rate for exhaust testing for these certain vehicles would be greater than 5.0%, (ii) additional emissions reductions would be achieved, and (iii) the EPA acknowledges such emissions reduction benefits.

5. The inspection of emissions control equipment and an evaluation for the presence of visible smoke.

6. The test of exhaust emissions levels, or the vehicle's on-board diagnostic system if applicable, using a certified analyzer system.

7. The distribution of documents and emissions inspection results. The emissions inspector shall sign each motor vehicle emissions inspection report for each emissions inspection performed by that inspector. The inspector's identification number or the inspector's signature, or both, shall be an endorsement that all aspects of the emissions inspection were performed by the inspector in accordance with this chapter.

8. Advise customers of emissions inspection results, options for waiver if applicable, and the obligation of the station to perform a free retest within 14 days for failed vehicles and the conditions placed on the motorist in regard to free retests.

9. Conduct free retest, if necessary, within 14 days of a chargeable initial test.

B. The emissions inspection station may charge a fee not to exceed the amount specified in § 46.2-1182 of the Code of Virginia.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-420 Inspection procedure; rejection, pass, fail, waiver

A. All aspects of the inspection shall be performed by an emissions inspector, using the instructions programmed in the certified analyzer system and procedures approved by the department, within the designated inspection area, and on the permitted premises.

B. The emissions inspection station shall notify the customer prior to initiating an emissions inspection that the emissions inspection station is either able or unable to perform the emissions-related repairs required by 9VAC5-91-480 for that particular vehicle should that vehicle fail the inspection. The emissions inspector shall not conduct an inspection on a motor vehicle unless the customer gives approval after being so notified.

C. The emissions inspector shall not conduct an inspection on a motor vehicle if the vehicle is in an unsafe condition for testing according to the following conditions. The customer shall be informed of any such condition.

1. The vehicle shall not have holes or detectable leaks in the exhaust system. The inspector may check the system for leaks by listening or visually inspecting for such leaks or by measuring carbon dioxide. The presence of leaks shall cause the vehicle to be rejected from testing.

2. The motor vehicle shall be evaluated for the presence of visible smoke emissions. Those vehicles exhibiting any visible smoke emissions from the engine crankcase or exhaust system or both, shall be rejected from testing.

3. The vehicle shall not have any mechanical problems, such as engine, brake, or transmission problems or engine, radiator, or transmission fluid leaks that would create a safety hazard for the applicable test, or bias test results. Such conditions shall cause the vehicle to be rejected from testing.

4. For vehicles receiving a test while operating on a dynamometer, the vehicle shall be rejected from testing if drive wheel tire tread wear indicators, tire cords, bubbles, cuts, or other damage are visible. Such vehicles shall be rejected from testing if space-saver spare tires are being used on a drive axle or if they do not have reasonably sized tires on the drive axle or axles based on dynamometer manufacturer safety criteria or if the set of tires is a mixture of radial and bias ply. Vehicles may be rejected if they have different sized tires on the drive axle or axles. Drive wheel tires shall be checked for appropriate tire pressure and adjusted as necessary as recommended by the tire or vehicle manufacturer.

5. The vehicle shall be rejected from testing if the fuel filler cap (gas cap) is missing.

6. The vehicle shall be rejected from testing if a known, emissions-related, manufacturers recall has not been satisfied according to Part XI (9VAC5-91-720 et seq.).

7. Vehicles that are overheated shall be rejected from testing. Vehicles that indicate that an overheated condition will be achieved during testing may be rejected from testing at the discretion of the inspector.

8. OBD vehicles shall be rejected from testing for any of the following:

a. The OBD data link cannot be accessed physically or electronically.

b. The testing equipment indicates that the OBD system is in a "not ready" status. A "not ready" status shall be indicated by the following:

(1) For model year 1996 through 2000, three or more monitors indicate "not ready."

(2) For model year 2001 and newer, two or more monitors indicate "not ready."

(3) For vehicles that failed the emissions inspection for a catalytic converter related fault code, and the catalyst monitor indicates "not ready" during a reinspection.

c. The catalyst monitor or oxygen sensor monitor, or both, are not supported, except for models exempt by the director.

d. The OBD system is unable to communicate successfully with the analyzer system.

e. The OBD system indicates evidence of tampering.

f. The director may adjust the number of "not ready" monitors required for rejection from testing for specific vehicle models based upon information from this program or other state programs, vehicle manufacturers, or the EPA.

D. The emissions inspection procedure shall be performed under the following conditions:

1. For vehicles subject to exhaust emissions testing, the entire vehicle shall be in normal operating condition as indicated by a temperature gauge or touch test on the radiator hose. If ASM testing is performed, a cooling fan shall be directed at the engine cooling system if the ambient temperature exceeds 72°F.

2. The inspection shall be performed with the transmission in park or neutral for OBD testing or for two-speed idle testing, or in drive (if automatic), or the appropriate gear to achieve necessary RPM range (if manual) for ASM testing; and with all accessories off.

3. All electronic and mechanical testing equipment shall be properly attached according to vehicle and analyzer system manufacturer requirements and instructions.

4. For vehicles subject to exhaust emissions testing, the analyzer probe shall be properly inserted into the exhaust system.

a. The analyzer probe shall be inserted into the tailpipe as recommended by the gas analyzer manufacturer for a quality sample, or at least 10 inches if not specified by the manufacturer.

b. If a baffle or screen prevents probe insertion to an adequate depth, a suitable probe adapter or extension boot which effectively lengthens the tail pipe must be used.

c. If the vehicle is equipped with multiple unique exhaust outlets, a suitable analyzer system manufacturer recommended adapter or other apparatus shall be used in order to provide a single supply of the sample exhaust to the gas analyzer.

d. Vehicle exhaust shall be vented safely out of the inspection area and facility.

5. If the vehicle stops running or the engine stalls during the test it shall be started as soon as possible and, for vehicles subject to exhaust emissions testing, shall be running for at least 30 seconds prior to the restart of the test.

6. For vehicles subject to exhaust emissions testing, the exhaust test shall be terminated upon reaching the overall maximum test time for the applicable test, or if CO plus CO₂ concentration falls below 6.0% as determined by the analyzer system.

7. Each emissions inspection, whether initial or retest, shall be conducted in its entirety with the exception of (i) conditions which require that the vehicle be rejected from testing in accordance with subsection C of this section, (ii) invalid test conditions, or (iii) conditions beyond the emissions inspector's control that cause the test to be aborted.

E. In consideration of maintaining inspection integrity:

1. The temperature of the inspection area shall be between 41°F and 110°F during the inspection. Inspection area temperatures shall be accurately measured in a well-ventilated location away from vehicle engine and exhaust heat sources and out of direct sunlight. The analyzer system shall not be operated when the temperature of the inspection area is not within the range stated above.

2. The analyzer system shall be kept in a stable environment which affords adequate protection from the weather and local sources of hydrocarbons or other pollutants that may interfere with gas analyzer performance or accuracy of test results, or both.

3. The electrical supply to the analyzer system shall be able to meet the manufacturer's requirements for voltage and frequency stability.

4. The inspection location shall meet all applicable zoning requirements.

5. The analyzer system shall be operated according to quality assurance procedures and other procedures approved by the department.

F. The emissions inspector shall accurately identify and enter vehicle information, visual component and visible smoke inspection results as applicable for vehicle emissions inspection records. The data entered into the certified analyzer system and recorded on the certificate of vehicle emissions inspection shall be the data from the vehicle being inspected and must be obtained from that vehicle.

G. The emissions inspector shall perform an inspection of the emissions control systems. The inspection shall include the following:

1. An examination of the emissions control information decal (sticker) under the hood, reference manual, and applications guide to determine if the vehicle, as manufactured or certified for sale or use within the United States, should be equipped with a catalytic converter system, air injection system, fuel evaporative emissions control system, positive crankcase ventilation system, exhaust gas recirculation valve, on-board diagnostic system, or thermostatic air cleaner system, as appropriate.

2. Based on the determinations made in subdivision 1 of this subsection, a visual inspection for the presence and operability of the catalytic converter system and, for vehicles subject to exhaust emissions testing, the air injection system, fuel evaporative emissions control system, positive crankcase ventilation system, exhaust gas recirculation system and thermostatic air cleaner system. If any of these parts or systems are inoperable, or have been removed or damaged, or rendered inoperable, the vehicle will not qualify for an emissions inspection approval or waiver. If systems are missing which the reference manual or applications guide indicates should be present, the motor vehicle manufacturer's emissions control information provided for that vehicle shall apply. The inspector shall enter the result of the visual inspection, "pass," "fail," or "not applicable" as appropriate into the certified analyzer system. The department may issue a temporary waiver because of the unavailability of component parts listed in subdivision 2 of this subsection if it is determined that the subject components or parts are not available provided the following conditions have been met:

a. The owner of the vehicle obtains a signed statement from the manufacturer's dealer or automotive parts source that supplies parts for the vehicle model indicating the nonavailability of such parts.

b. The statement submitted must be on letterhead or other official form or document and signed by an officer, owner or other responsible official of the automotive parts source.

c. The statement must identify the parts by description and part number and must indicate whether the parts are not currently stocked, have been superseded by other parts, or are out of production.

d. The department may conduct an independent investigation to locate any such parts or to verify the information on the statement prior to the issuance of any vehicle inspection report. The vehicle shall be held to all applicable inspection parameters, test type and standards or other conditions with the exception of the emissions control components and parts that have been verified as unavailable.

e. Any additional requirements to repair the vehicle to meet the applicable emissions standards or to qualify for an emissions inspection waiver under subsection M of this section shall apply.

f. If the department is able to determine that (i) the unavailable part, or parts, is the only method of controlling the emissions for which the vehicle has failed an emissions inspection or (ii) no other repairs will be effective in reducing such emissions, the department may issue a temporary waiver notwithstanding the provisions of subsection M of this section.

3. For OBD vehicles, an electronic inspection of the applicable on-board diagnostic (OBD) system according to manufacturer specifications and procedures approved by the EPA. The exhaust emissions test may also be performed on a limited basis as specified by the department for quality control or program evaluation purposes.

a. Emissions-related failure codes that cause the malfunction indicator lamp to be commanded "on" provided by OBD systems of OBD vehicles shall cause the vehicle to fail the emissions inspection. If testing equipment or visual inspection indicates that the malfunction indicator lamp is inoperable, the vehicle shall fail the emissions inspection. If the testing equipment indicates that the OBD system is in a "not ready" status, the vehicle shall be rejected from testing according to subdivision C 8 of this section.

b. Emissions-related failure codes that cause the malfunction indicator lamp to be commanded "on" as provided by OBD systems of light duty diesel powered vehicles of model years 1997 and newer shall cause the vehicle to fail the inspection. In addition, if the testing equipment or visual examination indicates that the malfunction indicator lamp is inoperable, the vehicle shall fail the emissions inspection. If the testing equipment indicates that the OBD system is in a "not ready" status, the vehicle shall be rejected from testing according to subdivision C 8 of this section. The director may increase or decrease the number of "not ready" monitors allowed based on an analysis of the program data, data from other state's programs and the EPA.

c. The department may exempt vehicle models or some classes of vehicles from OBD testing due to known OBD system problems or anomalies associated with such vehicles. If exempted from OBD testing, such vehicles shall receive the ASM or TSI test as applicable.

H. For vehicles otherwise subject to ASM testing based on model year and weight classification, the department may determine, due to complications identified in this or other state programs, or consultation with vehicle manufacturers, that certain vehicle makes or models shall be tested using the two-speed idle test in lieu of the ASM test or using a mixture of test modes such as an ASM 2525 coupled with an idle test.

I. For 1981 model year and newer vehicles with a GVWR up to and including 8,500 pounds, the exhaust emissions inspection procedure, if applicable, shall be an ASM, two-mode (ASM 5015 plus ASM 2525), loaded test, performed while the vehicle is operating on a dynamometer. The test shall be preceded by a 30-90 second preconditioning period, as determined by the department, using the ASM 2525 load simulation.

J. The exhaust emissions inspection procedure, if applicable, shall be a two-speed idle test as specified in section (II) of Appendix B of 40 CFR Part 51, Subpart S, and 9VAC5-91-440 for the following affected motor vehicles:

1. Vehicles with a GVWR greater than 8,500 pounds and up to and including 10,000 pounds;

2. Vehicles of model years 1980 and older;

3. Vehicles which employ full-time four wheel drive systems;

4. Vehicles which have traction control or anti-lock brake systems which have been determined by the manufacturer or the department to interfere with proper ASM testing; or

5. Vehicles which have some other configuration which has been determined by the department to interfere with proper ASM testing.

K. In order to obtain a vehicle registration from the Department of Motor Vehicles, a certificate of emissions inspection shall be issued by an emissions inspector or the department indicating that the vehicle has either passed the emissions inspection or has received a waiver as specified in subsections L and M of this section. A motor vehicle shall pass the emissions inspection and a certificate of vehicle emissions inspection and a motor vehicle inspection report indicating the vehicle has passed shall be issued if the following conditions are met:

1. The motor vehicle meets the applicable emissions control systems inspection requirements.

2. For vehicles subject to exhaust emissions testing, the vehicle emissions levels are the same as or less than the applicable exhaust emission standards in Part III (9VAC5-91-160 et seq.) and Part XIV (9VAC5-91-790 et seq.), as applicable; or for vehicles subject to OBD, the vehicle passes the OBD test and exhaust emissions test, if applicable.

3. There are no visible smoke emissions from the vehicle engine crankcase or tail pipe, or both.

L. If the vehicle fails the initial emissions inspection, a certificate of emissions inspection and a motor vehicle inspection report shall be issued indicating a failure, and the owner shall have 14 days in which to have repairs or adjustments made and return the vehicle to the emissions inspection station which performed the initial inspection for one free reinspection.

M. A certificate of vehicle emissions inspection waiver may be issued if all of the following conditions are met:

1. The vehicle passes the emissions control systems inspection described by subsection G of this section if applicable.

2. There are no visible smoke emissions from the vehicle engine crankcase or exhaust system, or both.

3. The vehicle continues to exceed applicable emissions standards after emissions related repairs required by 9VAC5-91-480 have been performed.

4. An amount equal to or greater than the adjusted waiver cost for enhanced emissions inspection programs specified in subsection N of this section has been spent on emissions related repairs as specified in 9VAC5-91-480 provided that:

a. Proof that emissions related repairs have been accomplished and costs for that specific vehicle have been provided to the emissions inspection station in the form of an itemized bill, invoice, paid work order, or statement in which emissions related parts or repairs, or both, are specifically identified, and to the extent practical, the inspector can confirm the repairs by visual examination;

b. The emissions inspector has been provided with a properly completed emissions repair data form indicating that the repair work was performed at a certified emissions repair facility and that the repairs were performed by or under the supervision or approval of a certified emissions repair technician at a certified emissions repair facility; and

c. The repair work was performed no earlier than 60 days prior to the initial inspection.

N. The repair cost requirements for waiver eligibility for the enhanced emissions inspection program shall be $450 adjusted to reflect the increase in the Consumer Price Index (CPI) and adjusted annually thereafter, as described at 40 CFR 51.360(a)(7) and § 46.2-1181 C of the Code of Virginia.

O. A waiver shall not be issued for a vehicle which is eligible for the emissions control systems performance warranty, under the provisions of § 207(b) of the federal Clean Air Act. In accordance with the provisions of § 207(b) of the federal Clean Air Act, the repair costs necessary for compliance with emissions standards specified in Part III (9VAC5-91-160 et seq.) and Part XIV (9VAC5-91-790 et seq.) will be borne by the vehicle manufacturer or authorized dealer representative.

P. The analyzer system shall generate an electronic record of the certificate of emissions inspection and transmit the appropriate data to the department and the emissions inspector shall make distribution of the vehicle inspection report to the customer.

Q. The customer shall be advised as specified below upon completion or termination of the inspection procedure.

1. If the test is terminated prior to completion, explain the problem with the vehicle or equipment and, if applicable, advise of free retest and time limit.

2. If the vehicle passes or receives a waiver, provide a motor vehicle inspection report and advise motorist of registration requirement and process, including the process to be used in case of interruption of the electronic data transfer system.

3. If the vehicle fails:

a. Give vehicle inspection report of failure to customer;

b. Advise of type of failure;

c. Advise of free retest and time limit;

d. Advise of repair facility information as provided by the department; and

e. Advise of waiver requirements, if applicable.

R. In cases of complaints or disputes between the emissions inspector or emissions inspection station and the customer, the customer shall be advised of the location and phone number of a department representative to be contacted to obtain assistance in resolving disputes.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-430 ASM test procedure

A. The ASM equipment shall be in proper operating condition according to the manufacturer's instructions prior to initiating a test.

1. The vehicle shall be maneuvered onto the dynamometer with the drive wheels positioned on the dynamometer rolls. Prior to test initiation, the rolls shall be rotated until the vehicle laterally stabilizes on the dynamometer. Vehicles that cannot be stabilized on the dynamometer shall be rejected from testing. Drive wheel tires shall be dried if necessary to prevent slippage.

2. Prior to initiating the ASM exhaust test procedure:

a. Vehicles that are also required to receive OBD testing shall be connected to the appropriate test equipment and vehicle and analyzer system manufacturer instructions.

b. The OBD test, if applicable, shall be performed prior to the ASM test.

3. When ambient temperatures exceed 72°F, testing shall not begin until the cooling fan is positioned and activated. The cooling fan shall be positioned to direct air to the vehicle cooling system, but shall not be directed at the catalytic converter.

4. Testing shall not begin until the vehicle is properly restrained for ASM testing.

5. Testing shall not begin until the exhaust ventilation system is properly functioning and attached or positioned as necessary.

6. To ensure that the motor vehicle and the dynamometer are in a warmed-up condition prior to official testing, a 30-90 second preconditioning, as determined by the department, shall be performed using the ASM 2525 load simulation.

7. Prior to each test or mode of a test, the analyzer system shall automatically select the load setting of the dynamometer.

8. Engine speed shall be monitored by means of an RPM sensor and recorded in the test record.

B. The test sequence shall consist of first chance and, if applicable, second chance tests in both ASM modes described in this section. Vehicles that fail the first chance test as described within 150% of the standard shall receive a second chance test. The department may increase this percentage to 200% when interim or final standards take effect according to 9VAC5-91-170 B. The second chance test shall consist of a repetition of the mode or modes that were failed in the first chance test. The department may eliminate the need to do a second chance test if the vehicle has already failed an emissions component check.

C. The ASM 2525 mode timer shall start when the dynamometer speed (and corresponding power) are maintained at 25 ±1.0 miles per hour for five continuous seconds. If the acceleration simulation exceeds the tolerance specified by the analyzer system equipment manufacturer for more than five consecutive seconds after the mode timer is started, the test mode timer shall be reset. Should this happen a third time, the test shall be aborted and another started. The dynamometer shall apply the required torque load for 25.0 mph at any testing speed within the tolerance of 25 ±1.0 miles per hour (i.e., constant torque load over speed range). The torque tolerance shall be ±5.0% of the correct torque at 25 mph.

1. The analyzer system shall automatically select the proper load setting for the dynamometer and test standards, based on the Equivalent Test Weight (ETW) and the look-up table in Part XIV (9VAC5-91-790 et seq.), using vehicle identification information.

2. If the dynamometer speed or torque falls outside the speed or torque tolerance for more than two consecutive seconds, or for more than five seconds total, the test mode time shall reset to zero and resume timing. The minimum mode length shall be 45 seconds. The maximum mode length shall be 90 seconds elapsed time.

3. During the 10 second period used for the pass/fail decision, dynamometer speed shall not fall more than 0.5 mph (absolute drop, not cumulative). If the speed at the end of the 10 second period is more than 0.5 mph less than the speed at the start of the 10 second period, testing shall continue until the speed stabilizes enough to meet this criterion.

4. The pass/fail analysis shall begin after an elapsed time of 30 seconds, which may include up to 15 seconds of the preconditioning time period if the ASM 2525 torque and speed tolerances are maintained. A pass or fail determination shall be made for the vehicle and the mode shall be terminated as follows:

a. The vehicle shall pass the ASM 2525 mode and the mode shall be immediately terminated if, at any point between an elapsed time of 30 seconds and 90 seconds, the 10 second running average measured values for each pollutant are simultaneously less than or equal to the applicable test standards described in Part XIV (9VAC5-91-790 et seq.).

b. The vehicle shall fail the ASM 2525 mode and the mode shall be terminated if subdivision C 4 a of this section is not satisfied by an elapsed time of 90 seconds.

5. Upon termination of the ASM 2525 mode, the vehicle and dynamometer shall immediately begin a transition to the speed required for the ASM 5015 mode. The dynamometer torque shall smoothly transition during the transition period and shall automatically reset to the load required for the ASM 5015 mode as specified in subdivision D 1 of this section.

D. The ASM 5015 mode timer shall start when the dynamometer speed (and corresponding power) are maintained at 15 ±1.0 miles per hour for five continuous seconds. If the acceleration simulation exceeds the tolerance specified by the analyzer system manufacturer for more than five consecutive seconds after the mode timer is started, the test mode timer shall be reset. Should this happen a third time, the test shall be aborted and another started. The dynamometer shall apply the required torque for 15.0 mph at any testing speed within the tolerance of 15 ±1.0 miles per hour (i.e., constant torque load over speed range). The torque tolerance shall be ±5.0% of the correct torque at 15 mph.

1. The analyzer system shall automatically select the proper load setting for the dynamometer and test standards, based on the ETW and the look-up table in Part XIV (9VAC5-91-790 et seq.), using vehicle identification information.

2. If the dynamometer speed or torque falls outside the speed or torque tolerance for more than two consecutive seconds, or for more than five seconds total, the mode timer shall reset to zero and resume timing. The minimum mode length shall be 40 seconds. The maximum mode length shall be 90 seconds elapsed time.

3. During the 10 second period used for the pass/fail decision, dynamometer speed shall not fall more than 0.5 mph (absolute drop, not cumulative). If the speed at the end of the 10 second period is more than 0.5 mph less than the speed at the start of the 10 second period, testing shall continue until the speed stabilizes enough to meet this criterion.

4. The pass/fail analysis shall begin after an elapsed time of 30 seconds. A pass or fail determination shall be made for the vehicle and the mode shall be terminated as follows:

a. The vehicle shall pass the ASM 5015 mode if, at any point between an elapsed time of 30 seconds and 90 seconds, the 10-second running average measured values for each pollutant are simultaneously less than or equal to the applicable test standards described in Part XIV (9VAC5-91-790 et seq.). If the vehicle passed the ASM 2525 mode, the ASM 5015 mode shall be terminated upon obtaining passing scores for all three pollutants.

b. The vehicle shall fail the first chance ASM 5015 mode if subdivision D 4 a of this section is not satisfied by an elapsed time of 90 seconds.

E. The inspector shall perform a second chance test on vehicles which fail either mode of the previous test sequence as follows:

1. If the vehicle fails the first-chance test, the test timer shall reset to zero and a second-chance test shall be performed, except as noted below. The second-chance test shall have an overall maximum test time of 145 seconds if one mode is repeated, an overall maximum time of 290 seconds if two modes are repeated.

2. If the vehicle failed only the ASM 2525 mode of the first chance test, then that mode shall be repeated upon completion of the first chance ASM 5015 mode. The repeated mode shall be performed as described in this section except that the provisions of subdivision C 5 of this section shall be omitted.

3. If the vehicle failed only the ASM 5015 mode of the first chance test, then the first chance ASM 5015 mode shall not end at 90 seconds but shall continue for up to 180 seconds.

4. If the vehicle failed both ASM 5015 and ASM 2525 modes of the first chance test, then the vehicle shall receive a second-chance test for the ASM 2525 mode immediately following the first chance ASM 5015 mode. If the vehicle fails the second-chance ASM 2525 mode, then the vehicle shall fail the test, otherwise the vehicle shall also receive a second-chance ASM 5015 mode test.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-440 Two-speed idle test procedure

A. The emissions inspection procedure shall be a two-speed idle test as specified in section (II) of Appendix B of 40 CFR Part 51, Subpart S.

1. The two-speed idle test shall consist of a test of the vehicle's exhaust emissions at idle and at 2500 rpm while the vehicle's gear selector is in neutral or park.

2. The idle test shall be administered after the 2500 rpm test. The tests shall be run consecutively.

3. The complete test shall consist of a first chance 2500 RPM mode test; followed by a first chance idle mode test. If either first chance mode fails, the first chance shall be followed by a preconditioning at 2500 RPM for up to three minutes and a second chance 2500 RPM mode test followed by a second chance idle mode. The department may eliminate the need to repeat a mode that passed the first chance test.

4. If the vehicle fails the first chance test, the second chance test and preconditioning shall be omitted if no exhaust hydrocarbon concentration less than 1800 ppm is detected within an elapsed time of 30 seconds. The department may eliminate the need to do a second chance test if the vehicle has already failed an emissions component check.

5. Motor vehicle manufacturers and the Environmental Protection Agency may issue special test instructions for specific vehicle models which shall be followed in lieu of the test procedures specified in this section if such instructions are provided through the administrator.

6. In order to pass the two-speed idle test, the vehicle's exhaust shall not exceed the standards listed in 9VAC5-91-160.

7. Vehicles which are required to receive OBD testing shall be connected to the appropriate test equipment according to vehicle and analyzer manufacturer instructions. The OBD test shall be performed prior to the two-speed idle test.

B. The idle test mode shall be performed as follows:

1. The vehicle transmission shall be in neutral or park and the parking brake applied; the engine shall be operating at curb idle and there shall not be any manipulation of the engine throttle mechanism.

2. The engine speed (RPM) shall be obtained and shall be between 400 and 1250 RPM for the duration of the test mode.

3. The pass/fail analysis shall begin after an elapsed time of 10 seconds.

4. The idle mode elapsed time shall be 30 seconds.

5. The exhaust concentrations shall be measured as percent carbon monoxide and parts per million hydrocarbons after stabilized readings are obtained and averaged over the last five seconds at the end of the idle test mode.

C. The 2500 RPM test mode shall be performed as follows:

1. The vehicle transmission shall be in neutral or park.

2. The vehicle engine speed shall be increased from idle to between 2200 and 2800 RPM and maintained at that level.

3. If the engine speed varies outside the parameters of 2200 to 2800 RPM for more than two seconds during a sampling period, the 2500 RPM mode shall be invalid and the 2500 RPM test shall be restarted. If the engine speed varies outside such parameters for more than a cumulative total of 10 seconds, the 2500 RPM test mode shall be invalid and another initiated.

4. The pass/fail analysis shall begin after an elapsed time of 10 seconds.

5. The 2500 RPM mode elapsed time shall be 30 seconds.

6. The exhaust concentrations shall be measured as percent carbon monoxide and parts per million hydrocarbons after stabilized readings are obtained and averaged over the last five seconds at the end of the 2500 RPM test mode.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-450 (Repealed.)

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; repealed, Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-91-460 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.

9VAC5-91-480 Emissions related repairs

A. Emissions related repairs generally include only those adjustments to and maintenance and repair of the motor vehicle components and systems which are directly related to the reduction of exhaust and evaporative emissions necessary to comply with the applicable emissions standards. The expenditure for emissions related repairs does not include the inspection fee as specified in § 46.2-1182 of the Virginia Motor Vehicle Emissions Control Law or the expenses associated with the adjustments to and maintenance, replacement, and repair of emissions control equipment if the need for such adjustment, maintenance, or repair is due to obvious disconnection of, tampering with, or abuse to such emissions control equipment.

B. Repairs and maintenance including but not limited to the following systems may qualify as emissions related repairs insofar as the purpose is to reduce exhaust or evaporative emissions:

1. Air intake systems.

2. Ignition systems.

3. Electrical systems.

4. Fuel control systems.

5. Emissions control systems.

6. Basic engine systems.

7. Engine cooling systems for microprocessor based air and fuel control systems.

8. On-board diagnostic systems.

C. The cost of emissions related repairs may qualify for repair costs applicable toward the waiver cost threshold under 9VAC5-91-420 N 5 only if performed at a certified emissions repair facility. The repairs shall be performed by or under the supervision or approval of a certified emissions repair technician.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.

9VAC5-91-490 Engine and fuel changes

A. For those vehicles in which the original engine has been replaced, the following conditions shall apply:

1. The emissions standards and applicable emissions control equipment for the year and model of the vehicle body or chassis, or the engine, whichever is newer, according to the registration or title, shall apply.

2. For those diesel powered vehicles which have been converted to operate on fuels other than diesel, the emissions standards and applicable emissions control equipment for the year, make and model of the gasoline equivalent for the vehicle chassis, according to the registration, shall apply.

3. Exceptions and final determinations regarding this section may be granted by the department provided information is verifiable by inspection of the vehicle engine and emissions control equipment by the department.

B. For those vehicles that were assembled by other than a licensed manufacturer, such as kit cars, the applicable emissions control equipment and emissions standards shall be based upon a determination of the year of the vehicle engine. The year of the engine shall be presumed to be that stated by the vehicle owner unless it is determined by the department, after physical inspection of the vehicle engine, that the year of the engine is other than stated by the owner. The emissions standards for a vehicle of this classification shall be determined by the year of manufacture of the engine.

C. For those vehicles which have the capability or are equipped to operate on either gasoline or an alternative fuel, and are subject to emissions inspections, the vehicle shall be tested while operating on gasoline containing no more than 15% ethanol or methanol.

D. In order to provide for the accurate inspection and registration coordination of motor vehicles in which the original engine has been replaced, questions shall be referred to the department for resolution.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.

Part XI Manufacturer Recall

9VAC5-91-720 Vehicle manufacturer recall

A. Motor vehicles subject to the enhanced emissions inspection program shall have any known emissions-related, vehicle manufacturer recall requirement satisfied prior to testing, as feasible and practicable pending the availability of an emissions recall database, installation of necessary hardware and software, and on a schedule as determined by the director.

B. Manufacturers' emissions-related recall requirements may be pursuant to either a "Voluntary Emissions Recall" as defined at 40 CFR 85.1902(d) or to a remedial plan determination made pursuant to 42 USC § 7541(c).

C. The motor vehicle owner shall provide proof of compliance with such recall requirement to the emissions inspector or to the department.

1. Such proof shall consist of dated receipts from a motor vehicle dealer or repair facility authorized by the vehicle manufacturer to perform such repair or adjustment required by the recall.

2. The motor vehicle owner is responsible for obtaining satisfactory resolution of any such recall requirement and retaining all pertinent records and data.

D. Notification by mail, by postal or electronic delivery, to the motor vehicle owner of an emissions-related manufacturer recall at least 60 days prior to the requirement for an emissions inspection shall constitute adequate notice. Such notice may be provided through motor vehicle registration renewal notification, motor vehicle dealer notification, notification by the department, or other means.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013.

9VAC5-91-730 Exemptions; temporary extensions

A. An exemption to the requirement to comply with emissions-related manufacturer recall may be granted by the director upon a showing, documented by corroborating information from the vehicle manufacturer or dealer, that such recall is no longer valid or can no longer be complied with due to technical reasons.

B. An extension of the vehicle emissions inspection valid period may be granted by the department for the purpose of compliance with emissions-related manufacturer recall upon a showing, documented by corroborating information from the vehicle manufacturer or dealer, that required parts, tools or required technological information is unavailable. Such extension shall be for a period which reflects the demonstrated need, not to exceed two years.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.

Part XII On-Road Testing

9VAC5-91-740 General requirements

A. The on-road testing program shall conform, at a minimum, to the requirements of 40 CFR 51.371 and § 46.2-1178.1 of the Code of Virginia applicable to the program area in which it is employed.

B. The emissions standards for the on-road remote sensing program are the on-road high emitter emissions standards, the clean screen vehicle standards, or both.

C. The on-road testing program and clean screen program including the emissions standards applicable thereto shall apply to any affected motor vehicles registered or operated primarily in the program area.

D. An on-road clean screen program shall be implemented according to the following schedule:

1. On and after July 1, 2012, and before July 1, 2013, an on-road clean screen program shall be limited to no more than 10% of the motor vehicles described in subsection C of this section that are eligible for emissions inspection during the applicable 12-month period;

2. On and after July 1, 2013, and before July 1, 2014, an on-road clean screen program shall be limited to no more than 20% of the motor vehicles described in subsection C of this section that are eligible for emissions inspection during the applicable 12-month period; and

3. On and after July 1, 2014, an on-road clean screen program shall be limited to no more than 30% of the motor vehicles described in subsection C of this section that are eligible for emissions inspection during the applicable 12-month period.

E. The on-road emissions inspector shall issue a clean screen vehicle notification to owners of affected motor vehicles that have met the clean screen emissions standards. The notification shall be issued in a timeframe compatible with the Virginia Department of Motor Vehicles vehicle registration renewal notification.

F. A motor vehicle owner who has received a clean screen vehicle notification may choose to meet the vehicle registration requirements of § 46.2-1183 of the Code of Virginia by participating in the clean screen program according to § 46.2-1178.1 E of the Code of Virginia.

G. The on-road emissions inspector performing on-road testing under this subsection may charge each motor vehicle owner who elects to participate in the on-road clean screen program an inspection fee in an amount as designated in § 46.2-1182 of the Code of Virginia.

H. The director may reduce the percentage of vehicles eligible to participate in the on-road clean screen program as is necessary to meet applicable air quality requirements under the federal Clean Air Act in accordance with § 46.2-1178 C of the Code of Virginia.

I. At the discretion of the director, the implementation or operation of the clean screen program may be suspended or revoked for failure to operate in accordance with the provisions of Article 22 (§ 46.2-1176 et seq.) of Chapter 10 of Title 46.2 of the Code of Virginia and the regulations adopted thereunder.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 21, Issue 19, eff. June 29, 2005; Volume 29, Issue 9, eff. December 15, 2012; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-741 Financial assistance program

A. Vehicles identified by on-road testing that fail to meet emissions standards may qualify for financial assistance for emissions-related diagnostic and repair services.

B. Repairs shall be performed by, or under the supervision or approval of, a certified emissions repair technician at a certified emissions repair facility.

C. The department will notify owners of vehicles that violate the remote sensing requirements of 9VAC5-91-180. The notification will inform owners of the potential for financial assistance and how to apply for the assistance for repairs to vehicles identified via remote sensing if they meet the eligibility requirements in 9VAC5-91-742 and the subsidy percentage of total eligible repair costs.

D. For affected motor vehicles subject to a confirmation test, the department may provide a subsidy of up to 50% of the amount spent on emissions related repairs up to a maximum of 50% of the waiver amount for repairs performed to comply with the emission standards prescribed in 9VAC5-91-160 and 9VAC5-91-170. The director may increase or decrease the subsidy percentage depending upon the number of applications received, average expenditure for repair, and availability of funds.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1178.2 and 46.2-1180 of the Code of Virginia; § 182 of the federal Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 19, eff. June 29, 2005.

9VAC5-91-742 Eligibility requirements for financial assistance

A. In order to qualify for financial assistance, a person shall meet the following requirements, as applicable:

1. Be the registered owner of an eligible vehicle for which all appropriate registration fees for the vehicle with the Department of Motor Vehicles have been paid.

2. Have a household income that is less than or equal to 133% of the federal Poverty Guidelines, as published by the United States Department of Health and Human Services; and

3. Spend a minimum copayment of one hundred dollars on emissions-related repairs at a certified vehicle emissions repair facility. Money spent to correct tampered emissions control systems or to make a vehicle test ready shall not be included in the copayment. Repairs shall meet the requirements of 9VAC5-91-741 B.

B. In order to qualify for financial assistance, a vehicle shall be an affected motor vehicle that:

1. Is subject to the provisions of § 46.2-1177 of the Code of Virginia;

2. Can be driven under its own power to the emissions repair facility;

3. Is currently registered or is operated primarily in the program area;

4. Has a current and valid Virginia Motor Vehicle Safety Inspection as provided in §§ 46.2-1157 and 46.2-1158 of the Code of Virginia; and

5. Has been issued a notice of violation under 9VAC5-91-750 B.

C. The owners of the following vehicles are not eligible for financial assistance:

1. A vehicle undergoing a transfer of ownership.

2. A vehicle being initially registered in Virginia.

3. A nonconforming vehicle.

4. A vehicle powered exclusively by a clean special fuel.

5. A vehicle owned or operated by a fleet.

6. A vehicle registered to a nonprofit organization.

7. A vehicle owned or leased by a commercial entity.

8. A vehicle owned or leased by a government entity.

9. A vehicle registered as an antique vehicle.

10. A vehicle that is unable to complete a motor vehicle emissions inspection according to 9VAC5-91-410 through 9VAC5-91-490.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1178.2 and 46.2-1180 of the Code of Virginia; § 182 of the federal Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 19, eff. June 29, 2005.

9VAC5-91-743 Application and documentation requirements

A. Persons seeking financial assistance shall submit a completed application to the department or its designee with original signature.

B. The application shall include copies of the following documents, as applicable:

1. Any invoices for emissions-related repairs performed pursuant to a notification of violation issued under 9VAC5-91-750 B prior to applying financial assistance.

2. Any emissions repair data forms from the certified emissions repair facility supporting the repair invoices.

3. Any other information as may be required by the department to determine eligibility and/or compliance.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1178.2 and 46.2-1180 of the Code of Virginia; § 182 of the federal Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 19, eff. June 29, 2005.

9VAC5-91-750 Operating procedures; violation of on-road high emitter standards

A. Remote sensing equipment shall be operated in accordance with the remote sensing equipment manufacturers operating instructions and any contract or agreement between the department and the equipment operator.

B. Motor vehicles determined by remote sensing equipment to have exceeded on-road high emitter standards shall be considered to have violated such emissions standards.

1. Owners of such motor vehicles will be issued a notice of violation and shall be subject to the civil charges in 9VAC5-91-760 unless waived pursuant to this section.

2. Upon a determination by the department that a violation has occurred, motorists will be informed by the department or its representative of the failure to comply with emissions standards and of the dates, times, and places such remote sensing measurement occurred.

C. Civil charges assessed pursuant to this part will be waived if, within 30 days of the date of the notice of the violation, the motor vehicle owner provides proof to the department that:

1. Since the date of the violation, the vehicle has passed, or received a waiver as the result of, a confirmation test, or

2. Within the 12 months prior to the violation, the vehicle had received an emissions inspection waiver.

D. The requirement for an emissions inspection or payment of civil charges, based on a remote sensing failure, may be waived by the department if the affected motor vehicle in question is, by virtue of its registration date, required to have an emissions inspection within three months of the date of the remote sensing measurement that indicates the vehicle has (i) exceeded the on-road high emitter emission standards; or (ii) has received a waiver within the 12 months prior to the violation.

E. For 1996 and newer model vehicles with OBD, the director may require that the vehicle pass an exhaust test (ASM or two-speed idle) in addition to the OBD system test.

F. Notices of violation and civil charges may be issued to any motorist no more than two times in any 365-day period for any one motor vehicle.

History

• Statutory Authority: § 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 21, Issue 19, eff. June 29, 2005; Volume 29, Issue 9, eff. December 15, 2012; Volume 35, Issue 5, eff. November 28, 2018.

9VAC5-91-760 Schedule of civil charges

A. No charge shall exceed an adjusted maximum charge of $450 adjusted annually by using 1990 as the base year and applying the consumer price index.

B. For violations measured in accordance with 9VAC5-91-750 B to be up to 150% of the applicable standard, the charge shall not exceed 50% of the adjusted maximum charge in subsection A of this section.

C. For violations measured in accordance with 9VAC5-91-750 B to be over 150% of the applicable standard, the charge shall not exceed the adjusted maximum charge in subsection A of this section.

D. Civil charges assessed pursuant to this part shall be paid into the state treasury according to § 46.2-1178.1 of the Code of Virginia.

E. For the purpose of applying a civil charge as prescribed in this section, the degree of violation shall be determined by averaging the highest percentages by which the emissions standard was exceeded for each remote sensing measurement in which at least one of the applicable standards was exceeded.

History

• Statutory Authority: §§ 46.2-1178.1, 46.2-1178.2 and 46.2-1180 of the Code of Virginia; § 182 of the federal Clean Air Act; 40 CFR Part 51, Subpart S.
• Historical Notes: Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 21, Issue 19, eff. June 29, 2005.

9VAC5-91-770 (Repealed.)

Federal Facilities (REPEALED)

Historical Notes

Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.

Chapter 130 Regulation for Open Burning

Part I General Provisions

9VAC5-130-10 Applicability

A. Except as provided in subsections C and D of this section, the provisions of this chapter apply to any person who permits or engages in open burning or who permits or engages in burning using special incineration devices. Special incineration devices, including open pit incinerators, are exempt from permitting requirements according to the provisions of 9VAC5-80-1105 and such exemption applies throughout the Commonwealth of Virginia.

B. This part and Part II (9VAC5-130-30 et seq.) of this chapter apply to volatile organic compounds emissions control areas (see 9VAC5-20-206). This part and Parts III (9VAC5-130-50 et seq.) and IV (9VAC5-130-100 et seq.) of this chapter apply throughout the Commonwealth of Virginia.

C. This chapter does not apply to such an extent as to prohibit the burning of leaves by persons on property where they reside if the local governing body of the county, city or town in which such persons reside has enacted an otherwise valid ordinance (under the provisions of § 10.1-1308 of the Virginia Air Pollution Control Law) regulating such burning in all or any part of the locality as required in Part IV of this chapter.

D. This chapter does not apply to air curtain incinerators subject to the provisions of (i) Article 45 (9VAC5-40-6250 et seq.), Article 46 (9VAC5-40-6550 et seq.), or Article 54 (9VAC5-40-7950 et seq.) of 9VAC5-40 (Existing Stationary Sources) or (ii) Subparts Eb, AAAA or CCCC of 40 CFR Part 60.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 12, eff. March 18, 2009; amended, Virginia Register Volume 31, Issue 21, eff. July 15, 2015.

9VAC5-130-20 Definitions

A. For the purpose of this chapter and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this chapter, all terms not defined here shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms defined:

"Air curtain incinerator" means an incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor. Air curtain incinerators are not to be confused with conventional combustion devices with enclosed fireboxes and controlled air technology such as mass burn, modular, and fluidized bed combustors.

"Automobile graveyard" means any lot or place that is exposed to the weather and upon which more than five motor vehicles of any kind, incapable of being operated, and that it would not be economically practical to make operative, are placed, located or found.

"Built-up area" means any area with a substantial portion covered by industrial, commercial or residential buildings.

"Clean burning waste" means waste that is not prohibited to be burned under this chapter and that consists only of (i) 100% wood waste, (ii) 100% clean lumber or clean wood, (iii) 100% yard waste, or (iv) 100% mixture of only any combination of wood waste, clean lumber, clean wood or yard waste.

"Clean lumber" means wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote.

"Clean wood" means uncontaminated natural or untreated wood. Clean wood includes, but is not limited to, byproducts of harvesting activities conducted for forest management or commercial logging, or mill residues consisting of bark, chips, edgings, sawdust, shavings or slabs. It does not include wood that has been treated, adulterated, or chemically changed in some way; treated with glues, binders or resins; or painted, stained or coated.

"Commercial waste" means all solid waste generated by establishments engaged in business operations other than manufacturing or construction. This category includes, but is not limited to, waste resulting from the operation of stores, markets, office buildings, restaurants and shopping centers.

"Construction waste" means solid waste that is produced or generated during construction, remodeling, or repair of pavements, houses, commercial buildings and other structures. Construction waste consists of lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids, and garbage are not construction wastes and the disposal of such materials shall be in accordance with the regulations of the Virginia Waste Management Board.

"Debris waste" or "vegetative debris" means wastes resulting from land clearing operations. Debris wastes include but are not limited to stumps, wood, brush, leaves, soil and road spoils.

"Demolition waste" means that solid waste that is produced by the destruction of structures, or their foundations, or both, and includes the same materials as construction waste.

"Garbage" means readily putrescible discarded materials composed of animal, vegetable or other organic matter.

"Hazardous waste" means a "hazardous waste" as described in 9VAC20-60 (Virginia Hazardous Waste Management Regulations).

"Household waste" means any waste material, including garbage, trash and refuse derived from households. For purposes of this regulation, households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas. Household wastes do not include sanitary waste in septic tanks (septage) that is regulated by other state agencies.

"Industrial waste" means any solid waste generated by manufacturing or industrial process that is not a regulated hazardous waste. Such waste may include but is not limited to waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Junk" means old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber, debris, waste, or junked, dismantled, or wrecked automobiles, or parts thereof, iron, steel, and other old or scrap ferrous or nonferrous material.

"Junkyard" means an establishment or place of business that is maintained, operated, or used for storing, keeping, buying, or selling junk, or for the maintenance or operation of an automobile graveyard, and the term shall include garbage dumps and sanitary landfills.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill. See Part I (9VAC20-81-10 et seq.) of 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Local landfill" means any landfill located within the jurisdiction of a local government.

"Open burning" means the combustion of solid waste without:

1. Control of combustion air to maintain adequate temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

3. Control of the combustion products' emission.

"Open pit incinerator" means a device used to burn waste for the primary purpose of reducing the volume by removing combustible matter. Such devices function by directing a curtain of air at an angle across the top of a trench or similarly enclosed space, thus reducing the amount of combustion byproducts emitted into the atmosphere. The term also includes trench burners, air curtain incinerators and over draft incinerators.

"Refuse" means all solid waste products having the characteristics of solids rather than liquids and that are composed wholly or partially of materials such as garbage, trash, rubbish, litter, residues from clean up of spills or contamination or other discarded materials.

"Regular burn site" means state controlled property where burning conducted by the Virginia Department of Transportation is expected to occur greater than once per year.

"Salvage operation" means any operation consisting of a business, trade or industry participating in salvaging or reclaiming any product or material, such as, but not limited to, reprocessing of used motor oils, metals, chemicals, shipping containers or drums, and specifically including automobile graveyards and junkyards.

"Sanitary landfill" means an engineered land burial facility for the disposal of household waste that is so located, designed, constructed, and operated to contain and isolate the waste so that it does not pose a substantial present or potential hazard to human health or the environment. A sanitary landfill also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste from conditionally exempt small quantity generators, construction, demolition, or debris waste and nonhazardous industrial solid waste. See Part I (9VAC20-81-10 et seq.) of 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Smoke" means small gas-borne particulate matter consisting mostly, but not exclusively, of carbon, ash and other material in concentrations sufficient to form a visible plume.

"Special incineration device" means an open pit incinerator, conical or teepee burner, or any other device specifically designed to provide good combustion performance.

"Wood waste" means untreated wood and untreated wood products, including tree stumps (whole or chipped), trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings, and shavings. Wood waste does not include:

1. Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands.

2. Construction, renovation, or demolition wastes.

3. Clean lumber.

"Volatile organic compound emissions control area" means an area designated as such under 9VAC5-20-206.

"Yard waste" means grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs that come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include (i) construction, renovation, and demolition wastes or (ii) clean wood.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 12, eff. March 18, 2009; amended, Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Volume 31, Issue 21, eff. July 15, 2015.

Part II Volatile Organic Compound Emissions Control Areas

9VAC5-130-30 Open burning prohibitions

A. No owner or other person shall cause or permit open burning of refuse or use of special incineration devices except as provided in 9VAC5-130-40.

B. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of rubber tires, asphaltic materials, crankcase oil, impregnated wood or other rubber or petroleum based materials except when conducting bona fide firefighting instruction at firefighting training schools having permanent facilities.

C. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of hazardous waste or containers for such materials.

D. No owner or other person shall cause or permit open burning or the use of a special incineration device for the purpose of a salvage operation or for the destruction of commercial/industrial waste.

E. Upon declaration of an alert, warning or emergency stage of an air pollution episode as described in 9VAC5-70 (Air Pollution Episode Prevention) or when deemed advisable by the board to prevent a hazard to, or an unreasonable burden upon, public health or welfare, no owner or other person shall cause or permit open burning or use of a special incineration device; and any in-process burning or use of special incineration devices shall be immediately terminated in the designated air quality control region.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 12, eff. March 18, 2009; amended, Virginia Register Volume 31, Issue 21, eff. July 15, 2015.

9VAC5-130-40 Permissible open burning

A. Open burning or the use of special incineration devices is permitted in the following instances provided the provisions of subsections B through E of 9VAC5-130-30 are met:

1. Upon the request of an owner or a responsible civil or military public official, the board may approve open burning or the use of special incineration devices under controlled conditions for the elimination of a hazard that constitutes a threat to the public health, safety or welfare and that cannot be remedied by other means consonant with the circumstances presented by the hazard. Such uses of open burning or the use of special incineration devices may include, but are not limited to, the following:

a. Destruction of deteriorated or unused explosives and munitions on government or private property when other means of disposal are not available. Hazardous waste permits may be required under the provisions of 9VAC20-60 (Virginia Hazardous Waste Management Regulations).

b. Destruction of debris caused by floods, tornadoes, hurricanes or other natural disasters where alternate means of disposal are not economical or practical and when it is in the best interest of the citizens of the Commonwealth. Solid waste management permits may be required under the provisions of 9VAC20-81 (Solid Waste Management Regulations).

c. On-site destruction of animal or plant life that is infested, or reasonably believed to be infested, by a pest or disease in order to (i) suppress, control, or eradicate an infestation or pest; (ii) prevent or retard the spread of an infestation or pest; or (iii) prevent further disease transmission or progression.

2. Open burning is permitted for training and instruction of government and public firefighters under the supervision of the designated official and industrial in-house firefighting personnel with clearance from the local firefighting authority. The designated official in charge of the training shall notify and obtain the approval of the regional director prior to conducting the training exercise. Training schools where permanent facilities are installed for firefighting instruction are exempt from this notification requirement. Buildings that have not been demolished may be burned under the provisions of this subdivision only.

3. Open burning or the use of special incineration devices is permitted for the destruction of classified military documents under the supervision of the designated official.

4. Open burning is permitted for camp fires or other fires that are used solely for recreational purposes, for ceremonial occasions, for outdoor noncommercial preparation of food, and for warming of outdoor workers provided the materials specified in subsections B and C of 9VAC5-130-30 are not burned.

5. Open burning is permitted for the on-site destruction of leaves and tree, yard, and garden trimmings located on the premises of private property, provided that no regularly scheduled collection service for leaves and tree, yard, and garden trimmings is available at the adjacent street or public road.

6. Open burning is permitted for the on-site destruction of household waste by homeowners or tenants, provided that no regularly scheduled collection service for such refuse is available at the adjacent street or public road.

7. Open burning is permitted for the destruction of any combustible liquid or gaseous material by burning in a flare or flare stack. Use of a flare or flare stack for the destruction of hazardous waste or commercial/industrial waste is allowed provided written approval is obtained from the board and the facility is in compliance with Article 4, Emission Standards for Toxic Pollutants from Existing Sources (Rule 6-4), (9VAC5-60-200 et seq.) and Article 5, Emission Standards for Toxic Pollutants from New and Modified Sources (Rule 6-5), (9VAC5-60-300 et seq.) of Part II of Hazardous Air Pollutant Sources. Permits issued under 9VAC5-80 (Permits for Stationary Sources) may be used to satisfy the requirement for written approval. This activity must be consistent with the provisions of 9VAC20-60 (Virginia Hazardous Waste Management Regulations).

8. Open burning or the use of special incineration devices is permitted on site for the destruction of clean burning waste and debris waste resulting from property maintenance, from the development or modification of roads and highways, parking areas, railroad tracks, pipelines, power and communication lines, buildings or building areas, sanitary landfills, or from any other clearing operations. Open burning or the use of special incineration devices for the purpose of such destruction is prohibited from May 1 through September 30.

9. Open burning is permitted for forest management, agricultural practices, and highway construction and maintenance programs approved by the board (see 9VAC5-130-50), provided the following conditions are met:

a. The burning shall be at least 1,000 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted; and

b. The burning shall be attended at all times.

10. Open burning or the use of special incineration devices is permitted for the destruction of clean burning waste and debris waste on the site of local landfills provided that the burning does not take place on land that has been filled and covered so as to present an underground fire hazard due to the presence of methane gas. Open burning or the use of special incineration devices for the purpose of such destruction is prohibited May 1 through September 30.

B. Open burning or the use of special incineration devices permitted under the provisions of this chapter does not exempt or excuse any owner or other person from the consequences, liability, damages or injuries that may result from such conduct; nor does it excuse or exempt any owner or other person from complying with other applicable laws, ordinances, regulations and orders of the governmental entities having jurisdiction, even though the open burning is conducted in compliance with this chapter. In this regard special attention should be directed to § 10.1-1142 of the Code of Virginia, which is enforced by the Department of Forestry.

C. With regard to the provisions of subsection B of this section, special attention should also be directed to the regulations of the Virginia Waste Management Board. No destruction of waste by open burning or transportation of waste to be destroyed by open burning shall take place in violation of the regulations of the Virginia Waste Management Board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 12, eff. March 18, 2009; amended, Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Volume 31, Issue 21, eff. July 15, 2015.

Part III Special Statewide Requirements for Forestry, Agricultural, and Highway Programs

9VAC5-130-50 Forest management, agricultural practices, and highway construction and maintenance programs

A. Open burning may be used for the following forest management practices provided the burning is conducted in accordance with the Department of Forestry's smoke management plan to:

1. Reduce forest fuels and minimize the effect of wild fires.

2. Control undesirable growth of hardwoods.

3. Control disease in pine seedlings.

4. Prepare forest land for planting or seeding.

5. Create a favorable habitat for certain species.

6. Remove dead vegetation for the maintenance of railroad, highway and public utility right-of-way.

B. In the absence of other means of disposal, open burning may be used for the following agricultural practices to:

1. Destroy undesirable or diseased vegetation.

2. Clear orchards and orchard prunings.

3. Destroy empty fertilizer and chemical containers.

4. Denature seed and grain that may no longer be suitable for agricultural purposes.

5. Prevent loss from frost or freeze damage.

6. Create a favorable habitat for certain species.

7. Destroy strings and plastic ground cover remaining in the field after being used in growing staked tomatoes.

C. Open burning may be used for the destruction of vegetative debris generated by highway construction and maintenance programs conducted by the Virginia Department of Transportation (VDOT) provided the burning is conducted in accordance with VDOT's best management practices (BMP) for vegetative debris and the following requirements are met:

1. The department has approved the BMP.

2. The local department regional office shall be notified at least five business days before commencement of a burn.

3. No liquid accelerants (e.g., diesel, motor oil, etc.) or other prohibited materials (e.g., building debris, treated wood, painted wood, paper, cardboard, asphaltic materials, tires, metal, garbage, etc.) shall be used.

4. No burn activity shall be conducted in a VOC emission control area from May 1 through September 30 or in violation of § 10.1-1142 of the Code of Virginia.

5. No more than one burn event per regular burn site shall be scheduled or commenced per 60-day period.

6. The open burn shall be extinguished for reasons including but not limited to the following:

a. Unfavorable meteorological conditions (i.e., high winds or air stagnation);

b. Official declaration by a governmental entity of a pollution alert, code red air quality action day, or air quality health advisory where the burn activity is occurring; or

c. The emission of smoke, ashes, dust, dirt, odors, or any other substance creates a threat to public health, a nuisance, a pollution problem, a fire hazard, a safety hazard, or impairment to visibility on traveled roads or airports.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 12, eff. March 18, 2009; amended, Virginia Register Volume 31, Issue 21, eff. July 15, 2015.

9VAC5-130-60 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 31, Issue 21, eff. July 15, 2015.

9VAC5-130-70 (Reserved)

Historical Notes

Reserved, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-130-80 (Reserved)

Historical Notes

Reserved, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

9VAC5-130-90 (Reserved)

Historical Notes

Reserved, Virginia Register Volume 25, Issue 12, eff. March 18, 2009.

Part IV Local Ordinances

9VAC5-130-100 Local ordinances on open burning

A. General.

1. If the governing body of any locality wishes to adopt an ordinance relating to air pollution and governing open burning within its jurisdiction, the ordinance must first be approved by the board (see § 10.1-1321 B of the Code of Virginia).

2. In order to assist local governments in a VOC control area with the development of ordinances acceptable to the board, the ordinance in subsection C of this section is offered as a model. For local governments located outside of a VOC control area, an ordinance must contain, at a minimum, the provisions in the title, purpose, definitions, and exemptions sections of the model ordinance in subsection C of this section.

3. If a local government wishes to adopt the language of the model ordinance without changing any wording except that enclosed by parentheses, that government's ordinance shall be deemed to be approved by the board on the date of local adoption provided that a copy of the ordinance is filed with the department upon its adoption by the local government.

4. If a local government wishes to change any wording of the model ordinance aside from that enclosed by parentheses in order to construct a local ordinance, that government shall request the approval of the board prior to adoption of the ordinance by the local jurisdiction. A copy of the ordinance shall be filed with the department upon its adoption by the local government.

5. Local ordinances that have been approved by the board prior to April 1, 1996, remain in full force and effect as specified by their promulgating authorities.

B. Establishment and approval of local ordinances varying from the model.

1. Any local governing body proposing to adopt or amend an ordinance relating to open burning that differs from the model local ordinance in subsection C of this section shall first obtain the approval of the board for the ordinance or amendment as specified in subdivision A 4 of this section. The board in approving local ordinances will consider, but will not be limited to, the following criteria:

a. The local ordinance shall provide for intergovernmental cooperation and exchange of information.

b. Adequate local resources will be committed to enforcing the proposed local ordinance.

c. The provisions of the local ordinance shall be as strict as state regulations, except as provided for leaf burning in § 10.1-1308 of the Virginia Air Pollution Control Law.

2. Approval of any local ordinance may be withdrawn if the board determines that the local ordinance is less strict than state regulations or if the locality fails to enforce the ordinance.

3. If a local ordinance must be amended to conform to an amendment to state regulations, such local amendment will be made within six months of the effective date of the amended state regulations.

4. Local ordinances are a supplement to state regulations. Any provisions of local ordinances that have been approved by the board and are more strict than state regulations shall take precedence over state regulations within the respective locality. If a locality fails to enforce its own ordinance, the board reserves the right to enforce state regulations.

5. A local governing body may grant a variance to any provision of its air pollution control ordinance(s) provided that:

a. A public hearing is held prior to granting the variance;

b. The public is notified of the application for a variance by notice in at least one major newspaper of general circulation in the affected locality at least 30 days prior to the date of the hearing; and

c. The variance does not permit any owner or other person to take action that would result in a violation of any provision of state regulations unless a variance is granted by the board. The public hearings required for the variances to the local ordinance and state regulations may be conducted jointly as one proceeding.

6. 9VAC5-170-150 shall not apply to local ordinances concerned solely with open burning.

C. Model ordinance.

This ordinance shall be known as the (local jurisdiction) Ordinance for the Regulation of Open Burning.

The purpose of this ordinance is to protect public health, safety, and welfare by regulating open burning within (local jurisdiction) to achieve and maintain, to the greatest extent practicable, a level of air quality that will provide comfort and convenience while promoting economic and social development. This ordinance is intended to supplement the applicable regulations promulgated by the State Air Pollution Control Board and other applicable regulations and laws.

For the purpose of this ordinance and subsequent amendments or any orders issued by (local jurisdiction), the words or phrases shall have the meanings given them in this section.

"Automobile graveyard" means any lot or place that is exposed to the weather and upon which more than five motor vehicles of any kind, incapable of being operated, and that it would not be economically practical to make operative, are placed, located or found.

"Built-up area" means any area with a substantial portion covered by industrial, commercial or residential buildings.

"Clean burning waste" means waste that is not prohibited to be burned under this ordinance and that consists only of (i) 100% wood waste, (ii) 100% clean lumber or clean wood, (iii) 100% yard waste, or (iv) 100% mixture of only any combination of wood waste, clean lumber, clean wood or yard waste.

"Clean lumber" means wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote.

"Clean wood" means uncontaminated natural or untreated wood. Clean wood includes, but is not limited to, byproducts of harvesting activities conducted for forest management or commercial logging, or mill residues consisting of bark, chips, edgings, sawdust, shavings or slabs. It does not include wood that has been treated, adulterated, or chemically changed in some way; treated with glues, binders or resins; or painted, stained or coated.

"Construction waste" means solid waste that is produced or generated during construction remodeling, or repair of pavements, houses, commercial buildings and other structures. Construction waste consists of lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids, and garbage are not construction wastes and the disposal of such materials must be in accordance with the regulations of the Virginia Waste Management Board.

"Debris waste" means wastes resulting from land clearing operations. Debris wastes include but are not limited to stumps, wood, brush, leaves, soil and road spoils.

"Demolition waste" means that solid waste that is produced by the destruction of structures, or their foundations, or both, and includes the same materials as construction waste.

"Garbage" means readily putrescible discarded materials composed of animal, vegetable or other organic matter.

"Hazardous waste" means a "hazardous waste" as described in 9VAC20-60 (Virginia Hazardous Waste Management Regulations).

"Household waste" means any waste material, including garbage, trash and refuse derived from households. For purposes of this regulation, households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas. Household wastes do not include sanitary waste in septic tanks (septage) that is regulated by state agencies.

"Industrial waste" means any solid waste generated by manufacturing or industrial process that is not a regulated hazardous waste. Such waste may include but is not limited to waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Junkyard" means an establishment or place of business that is maintained, operated, or used for storing, keeping, buying, or selling junk, or for the maintenance or operation of an automobile graveyard, and the term shall include garbage dumps and sanitary landfills.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill. See 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Local landfill" means any landfill located within the jurisdiction of a local government.

"Open burning" means the combustion of solid waste without:

1. Control of combustion air to maintain adequate temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

3. Control of the combustion products' emission.

"Open pit incinerator" means a device used to burn waste for the primary purpose of reducing the volume by removing combustible matter. Such devices function by directing a curtain of air at an angle across the top of a trench or similarly enclosed space, thus reducing the amount of combustion byproducts emitted into the atmosphere. The term also includes trench burners, air curtain incinerators and over draft incinerators.

"Refuse" means all solid waste products having the characteristics of solids rather than liquids and that are composed wholly or partially of materials such as garbage, trash, rubbish, litter, residues from clean up of spills or contamination or other discarded materials.

"Salvage operation" means any operation consisting of a business, trade or industry participating in salvaging or reclaiming any product or material, such as, but not limited to, reprocessing of used motor oils, metals, chemicals, shipping containers or drums, and specifically including automobile graveyards and junkyards.

"Sanitary landfill" means an engineered land burial facility for the disposal of household waste that is so located, designed, constructed, and operated to contain and isolate the waste so that it does not pose a substantial present or potential hazard to human health or the environment. A sanitary landfill also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste from conditionally exempt small quantity generators, construction, demolition, or debris waste and nonhazardous industrial solid waste. See 9VAC20-81 (Solid Waste Management Regulations) for further definitions of these terms.

"Smoke" means small gas-borne particulate matter consisting mostly, but not exclusively, of carbon, ash and other material in concentrations sufficient to form a visible plume.

"Special incineration device" means an open pit incinerator, conical or teepee burner, or any other device specifically designed to provide good combustion performance.

"Wood waste" means untreated wood and untreated wood products, including tree stumps (whole or chipped), trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings, and shavings. Wood waste does not include:

1. Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands.

2. Construction, renovation, or demolition wastes.

3. Clean lumber.

"Yard waste" means grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs that come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include (i) construction, renovation, and demolition wastes or (ii) clean wood.

A. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of refuse except as provided in this ordinance.

B. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of rubber tires, asphaltic materials, crankcase oil, impregnated wood or other rubber or petroleum based materials except when conducting bona fide firefighting instruction at firefighting training schools having permanent facilities.

C. No owner or other person shall cause or permit open burning or the use of a special incineration device for the destruction of hazardous waste or containers for such materials.

D. No owner or other person shall cause or permit open burning or the use of a special incineration device for the purpose of a salvage operation or for the destruction of commercial/industrial waste.

E. Open burning or the use of special incineration devices permitted under the provisions of this ordinance does not exempt or excuse any owner or other person from the consequences, liability, damages or injuries that may result from such conduct; nor does it excuse or exempt any owner or other person from complying with other applicable laws, ordinances, regulations and orders of the governmental entities having jurisdiction, even though the open burning is conducted in compliance with this ordinance. In this regard special attention should be directed to § 10.1-1142 of the Forest Fire Law of Virginia, the regulations of the Virginia Waste Management Board, and the State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution.

F. Upon declaration of an alert, warning or emergency stage of an air pollution episode as described in 9VAC5-70 (Air Pollution Episode Prevention) or when deemed advisable by the State Air Pollution Control Board to prevent a hazard to, or an unreasonable burden upon, public health or welfare, no owner or other person shall cause or permit open burning or use of a special incineration device; and any in process burning or use of special incineration devices shall be immediately terminated in the designated air quality control region.

The following activities are exempted to the extent covered by the State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution:

A. Open burning for training and instruction of government and public firefighters under the supervision of the designated official and industrial in-house firefighting personnel;

B. Open burning for camp fires or other fires that are used solely for recreational purposes, for ceremonial occasions, for outdoor noncommercial preparation of food, and for warming of outdoor workers;

C. Open burning for the destruction of any combustible liquid or gaseous material by burning in a flare or flare stack;

D. Open burning for forest management, agricultural practices, and highway construction and maintenance programs approved by the State Air Pollution Control Board; and

E. Open burning for the destruction of classified military documents.

A. Open burning is permitted on site for the destruction of leaves and tree, yard and garden trimmings located on the premises of private property, provided that the following conditions are met:

1. The burning takes place on the premises of the private property; (and)

2. The location of the burning is not less than 300 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted (; and

3. No regularly scheduled collection service for such trimmings is available at the adjacent street or public road).

B. Open burning is permitted on site for the destruction of household waste by homeowners or tenants, provided that the following conditions are met:

1. The burning takes place on the premises of the dwelling;

2. Animal carcasses or animal wastes are not burned;

3. Garbage is not burned; (and)

4. The location of the burning is not less than 300 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted (; and

5. No regularly scheduled collection service for such refuse is available at the adjacent street or public road).

C. Open burning is permitted on site for destruction of debris waste resulting from property maintenance, from the development or modification of roads and highways, parking areas, railroad tracks, pipelines, power and communication lines, buildings or building areas, sanitary landfills, or from any other clearing operations that may be approved by (designated local official), provided the following conditions are met:

1. All reasonable effort shall be made to minimize the amount of material burned, with the number and size of the debris piles approved by (designated local official);

2. The material to be burned shall consist of brush, stumps and similar debris waste and shall not include demolition material;

3. The burning shall be at least 500 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted;

4. The burning shall be conducted at the greatest distance practicable from highways and air fields;

5. The burning shall be attended at all times and conducted to ensure the best possible combustion with a minimum of smoke being produced;

6. The burning shall not be allowed to smolder beyond the minimum period of time necessary for the destruction of the materials; and

7. The burning shall be conducted only when the prevailing winds are away from any city, town or built-up area.

D. Open burning is permitted for destruction of debris on the site of local landfills provided that the burning does not take place on land that has been filled and covered so as to present an underground fire hazard due to the presence of methane gas, provided that the following conditions are met:

1. The burning shall take place on the premises of a local sanitary landfill that meets the provisions of the regulations of the Virginia Waste Management Board;

2. The burning shall be attended at all times;

3. The material to be burned shall consist only of brush, tree trimmings, yard and garden trimmings, clean burning waste, clean burning debris waste, or clean burning demolition waste;

4. All reasonable effort shall be made to minimize the amount of material that is burned;

5. No materials may be burned in violation of the regulations of the Virginia Waste Management Board or the State Air Pollution Control Board. The exact site of the burning on a local landfill shall be established in coordination with the regional director and (designated local official); no other site shall be used without the approval of these officials. (Designated local official) shall be notified of the days during which the burning will occur.

(E. Sections 000-6 A through D notwithstanding, no owner or other person shall cause or permit open burning or the use of a special incineration device May 1 through September 30.¹)

A. When open burning of debris waste (Section 000-6 C) or open burning of debris on the site of a local landfill (Section 000-6 D) is to occur within (local jurisdiction), the person responsible for the burning shall obtain a permit from (designated local official) prior to the burning. Such a permit may be granted only after confirmation by (designated local official) that the burning can and will comply with the provisions of this ordinance and any other conditions that are deemed necessary to ensure that the burning will not endanger the public health and welfare or to ensure compliance with any applicable provisions of the State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution. The permit may be issued for each occasion of burning or for a specific period of time deemed appropriate by (designated local official).

B. Prior to the initial installation (or reinstallation, in cases of relocation) and operation of special incineration devices, the person responsible for the burning shall obtain a permit from (designated local official), such permits to be granted only after confirmation by (designated local official) that the burning can and will comply with the applicable provisions in Regulations for the Control and Abatement of Air Pollution and that any conditions are met that are deemed necessary by (designated local official) to ensure that the operation of the devices will not endanger the public health and welfare. Permits granted for the use of special incineration devices shall at a minimum contain the following conditions:

1. All reasonable effort shall be made to minimize the amount of material that is burned. Such efforts shall include, but are not limited to, the removal of pulpwood, sawlogs and firewood.

2. The material to be burned shall consist of brush, stumps and similar debris waste and shall not include demolition material.

3. The burning shall be at least 300 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted; burning shall be conducted at the greatest distance practicable from highways and air fields. If (designated local official) determines that it is necessary to protect public health and welfare, he may direct that any of the above cited distances be increased.

4. The burning shall be attended at all times and conducted to ensure the best possible combustion with a minimum of smoke being produced. Under no circumstances should the burning be allowed to smolder beyond the minimum period of time necessary for the destruction of the materials.

5. The burning shall be conducted only when the prevailing winds are away from any city, town or built-up area.

6. The use of special incineration devices shall be allowed only for the destruction of debris waste, clean burning construction waste, and clean burning demolition waste.

7. Permits issued under this subsection shall be limited to a specific period of time deemed appropriate by (designated local official).

(C. An application for a permit under Section 000-7 A or 000-7 B shall be accompanied by a processing fee of $____.²)

A. Any violation of this ordinance is punishable as a Class 1 misdemeanor. (See § 15.2-1429 of the Code of Virginia.)

B. Each separate incident may be considered a new violation.

---

¹This provision shall be included in ordinances for jurisdictions within volatile organic compound emissions control areas. It may be included in ordinances for jurisdictions outside these areas.

²The fee stipulation in this section is optional at the discretion of the jurisdiction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, 111, 123, 129, 171, 172, and 182 of the Clean Air Act; 40 CFR Parts 51 and 60.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 12, eff. March 18, 2009; amended, Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Volume 31, Issue 21, eff. July 15, 2015.

Chapter 140 Regulation for Emissions Trading Programs

Article 1 NOx Budget Program General Provisions

9VAC5-140-10 Purpose

Article 1 NO_x Budget Program General Provisions

This part establishes general provisions and the applicability, permitting, and monitoring provisions for the NO_x Budget Program for nonelectric generating units (non-EGUs) as a means of mitigating the interstate transport of ozone and nitrogen oxides.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-20 Definitions

A. As used in this part, all words or terms not defined here shall have the meanings given them in 9VAC5-10, unless otherwise required by context.

B. For the purpose of this part and any related use, the following words or terms shall have the following meanings unless the context clearly indicates otherwise:

"Account certificate of representation" means the completed and signed submission required by Article 2 (9VAC5-140-100 et seq.) of this part for certifying the designation of a NO_x authorized account representative for a NO_x Budget source or a group of identified NO_x Budget sources who is authorized to represent the owners and operators of such source or sources and of the NO_x Budget units at such source or sources with regard to matters under the NO_x Budget Program.

"Administrator" means the Administrator of the U.S. Environmental Protection Agency or the administrator's duly authorized representative.

"Automated data acquisition and handling system" or "DAHS" means that component of the CEMS, or other emissions monitoring system approved for use under Article 8 (9VAC5-140-700 et seq.) of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by Article 8 (9VAC5-140-700 et seq.) of this part.

"Boiler" means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

"CAA" means the Clean Air Act, 42 USC § 7401 et seq., as amended by P.L. No. 101-549 (November 15, 1990).

"Combined cycle system" means a system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.

"Combustion turbine" means an enclosed fossil or other fuel-fired device that is comprised of a compressor, a combustor, and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.

"Commence commercial operation" means, with regard to a unit that serves a generator, to have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation. Except as provided in 9VAC5-140-50, for a unit that is a NO_x Budget unit under 9VAC5-140-40 on the date the unit commences commercial operation, such date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified, reconstructed, or repowered. Except as provided in 9VAC5-140-50, for a unit that is not a NO_x Budget unit under 9VAC5-140-40 on the date the unit commences commercial operation, the date the unit becomes a NO_x Budget unit under 9VAC5-140-40 shall be the unit's date of commencement of commercial operation.

"Commence operation" means to have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber. Except as provided in 9VAC5-140-50, for a unit that is a NO_x Budget unit under 9VAC5-140-40 on the date of commencement of operation, such date shall remain the unit's date of commencement of operation even if the unit is subsequently modified, reconstructed, or repowered. Except as provided in 9VAC5-140-50, for a unit that is not a NO_x Budget unit under 9VAC5-140-40 on the date of commencement of operation, the date the unit becomes a NO_x Budget unit under 9VAC5-140-40 shall be the unit's date of commencement of operation.

"Common stack" means a single flue through which emissions from two or more units are exhausted.

"Continuous emission monitoring system" or "CEMS" means the equipment required under Article 8 (9VAC5-140-700 et seq.) of this part to sample, analyze, measure, and provide, by readings taken at least once every 15 minutes of the measured parameters, a permanent record of nitrogen oxides emissions, expressed in tons per hour for nitrogen oxides. The following systems are component parts included, consistent with 40 CFR Part 75, in a continuous emission monitoring system:

1. Flow monitor;

2. Nitrogen oxides pollutant concentration monitors;

3. Diluent gas monitor (oxygen or carbon dioxide) when such monitoring is required by Article 8 (9VAC5-140-700 et seq.) of this part;

4. A continuous moisture monitor when such monitoring is required by Article 8 (9VAC5-140-700 et seq.) of this part; and

5. An automated data acquisition and handling system.

"Control period" means the period beginning May 1 of a year and ending on September 30 of the same year, inclusive, except for the calendar year 2004, the period shall begin May 31.

"Electricity for sale under firm contract to the grid" means electricity for sale where the capacity involved is intended to be available at all times during the period covered by a guaranteed commitment to deliver, even under adverse conditions.

"Emissions" means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the administrator by the NO_x authorized account representative and as determined by the administrator in accordance with Article 8 (9VAC5-140-700 et seq.) of this part.

"Fossil fuel" means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

"Fossil fuel-fired" means, with regard to a unit:

1. For units that commenced operation before January 1, 1996, the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50% of the annual heat input on a Btu basis during 1995 or, if a unit had no heat input in 1995, during the last year of operation of the unit prior to 1995;

2. For units that commenced operation on or after January 1, 1996, and before January 1, 1997, the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50% of the annual heat input on a Btu basis during 1996; or

3. For units that commence operation on or after January 1, 1997, (i) the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50% of the annual heat input on a Btu basis during any year or (ii) the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50% of the annual heat input on a Btu basis during any year, provided that the unit shall be "fossil fuel-fired" as of the date, during such year, on which the unit begins combusting fossil fuel.

"Generator" means a device that produces electricity.

"Heat input" means the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) and the fuel feed rate into a combustion device (in mass of fuel/time), as measured, recorded, and reported to the administrator by the NO_x authorized account representative and as determined by the administrator in accordance with Article 8 (9VAC5-140-700 et seq.) of this part, and does not include the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

"Implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, that has been approved in Subpart VV of 40 CFR Part 52 by the administrator under § 110 of the CAA, or promulgated under § 110(c) of the CAA, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the CAA and that implements the relevant requirements of the CAA.

"Life-of-the-unit, firm power contractual arrangement" means a unit participation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and associated energy from any specified unit and pays its proportional amount of such unit's total costs, pursuant to a contract:

1. For the life of the unit;

2. For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or

3. For a period equal to or greater than 25 years or 70% of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

"Maximum design heat input" means the ability of a unit to combust a stated maximum amount of fuel per hour on a steady state basis, as determined by the physical design and physical characteristics of the unit.

"Maximum potential hourly heat input" means an hourly heat input used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use Appendix D of 40 CFR Part 75 to report heat input, this value should be calculated, in accordance with 40 CFR Part 75, using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value should be reported, in accordance with 40 CFR Part 75, using the maximum potential flow rate and either the maximum carbon dioxide concentration (in percent CO₂) or the minimum oxygen concentration (in percent O₂).

"Maximum potential NO_x emission rate" means the emission rate of nitrogen oxides (in lb/mmBtu) calculated in accordance with section 3 of Appendix F of 40 CFR Part 75, using the maximum potential nitrogen oxides concentration as defined in section 2 of Appendix A of 40 CFR Part 75, and either the maximum oxygen concentration (in percent O₂) or the minimum carbon dioxide concentration (in percent CO₂), under all operating conditions of the unit except for unit start up, shutdown, and upsets.

"Maximum rated hourly heat input" means a unit-specific maximum hourly heat input (mmBtu) that is the higher of the manufacturer's maximum rated hourly heat input or the highest observed hourly heat input.

"Monitoring system" means any monitoring system that meets the requirements of Article 8 (9VAC5-140-700 et seq.) of this part, including a continuous emissions monitoring system, an excepted monitoring system, or an alternative monitoring system.

"Nameplate capacity" means the maximum electrical generating output (in MWe) that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings as measured in accordance with the U.S. Department of Energy standards.

"NO_x authorized account representative" means, for a NO_x Budget source or NO_x Budget unit at the source, the natural person who is authorized by the owners and operators of the source and all NO_x Budget units at the source, in accordance with Article 2 (9VAC5-140-100 et seq.) of this part, to represent and legally bind each owner and operator in matters pertaining to the NO_x Budget Program.

"NO_x Budget permit" means the legally binding and federally enforceable written document, or portion of such document, issued by the permitting authority under this part, including any permit revisions, specifying the NO_x Budget Program requirements applicable to a NO_x Budget source, to each NO_x Budget unit at the NO_x Budget source, and to the owners and operators and the NO_x authorized account representative of the NO_x Budget source and each NO_x Budget unit.

"NO_x Budget source" means a source that includes one or more NO_x Budget units.

"NO_x Budget Program" means a program established in accordance with this part and approved and administered by the administrator pursuant to 40 CFR 51.121 or established by the administrator pursuant to 40 CFR 52.34.

"NO_x Budget unit" means a unit that is subject to the NO_x Budget program under 9VAC5-140-40.

"Operator" means any person who operates, controls, or supervises a NO_x Budget unit or a NO_x Budget source and shall include any holding company, utility system, or plant manager of such a unit or source.

"Owner" means any of the following persons:

1. Any holder of any portion of the legal or equitable title in a NO_x Budget unit;

2. Any holder of a leasehold interest in a NO_x Budget unit; or

3. Any purchaser of power from a NO_x Budget unit under a life-of-the-unit, firm power contractual arrangement. However, unless expressly provided for in a leasehold agreement, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the NO_x Budget unit.

"Permitting authority" means the State Air Pollution Control Board.

"Receive" or "receipt of" means, when referring to the permitting authority or the administrator, to come into possession of a document, information, or correspondence (whether sent in writing or by authorized electronic transmission), as indicated in an official correspondence log, or by a notation made on the document, information, or correspondence, by the permitting authority or the administrator in the regular course of business.

"Reference method" means any direct test method of sampling and analyzing for an air pollutant as specified in Appendix A of 40 CFR Part 60.

"Source" means any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any regulated air pollutant under the CAA. For purposes of § 502(c) of the CAA, a "source," including a "source" with multiple units, shall be considered a single "facility."

"State" means the Commonwealth of Virginia. The term "state" shall have its conventional meaning where such meaning is clear from the context.

"State operating permit" means a permit issued under Article 5 (9VAC5-80-800 et seq.) of Part II of 9VAC5 Chapter 80.

"State operating permit regulations" means the regulations codified in Article 5 (9VAC5-80-800 et seq.) of Part II of 9VAC5 Chapter 80.

"Submit" or "serve" means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

1. In person;

2. By United States Postal Service; or

3. By other means of dispatch or transmission and delivery. Compliance with any "submission," "service," or "mailing" deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

"Title V operating permit" means a permit issued under Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of Part II of 9VAC5 Chapter 80.

"Title V operating permit regulations" means the regulations codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of Part II of 9VAC5 Chapter 80.

"Ton" or "tonnage" means any "short ton" (i.e., 2,000 pounds). Total tons for a control period shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with Article 8 (9VAC5-140-700 et seq.) of this part, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons.

"Unit" means a fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.

"Unit operating day" means a calendar day in which a unit combusts any fuel.

"Unit operating hour" or "hour of unit operation" means any hour (or fraction of an hour) during which a unit combusts any fuel.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; Errata, 18:22 VA.R. 2953 July 15, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-30 Measurements, abbreviations, and acronyms

Measurements, abbreviations, and acronyms used in this part are defined as follows:

Btu-British thermal unit.

hr-hour.

lb-pounds.

mmBtu-million Btu.

MWe-megawatt electrical.

ton-2000 pounds.

CO₂-carbon dioxide.

NO_x-nitrogen oxides.

O₂-oxygen.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-35 Federal regulations incorporated by reference

A. The U.S. Environmental Protection Agency regulations cited in this part are, unless indicated otherwise, incorporated by reference into this part as amended by the word or phrase substitutions given in subsection B of this section. The complete text of the federal regulations incorporated in Part I of this chapter by reference is contained in 40 CFR Part 75. The 40 CFR part and section numbers appearing throughout this part identify the specific provisions of the federal regulations incorporated by reference. The specific version of the federal regulations adopted by reference shall be that contained in the CFR (2016) in effect July 1, 2016. Reference to the various provisions of the Code of Federal Regulations are structured as in the following example: 40 CFR Part 75 means Part 75 of Title 40 of the Code of Federal Regulations; 40 CFR 75.1 means Section 75.1 in Part 75 of Title 40 of the Code of Federal Regulations.

B. In all of the federal regulations incorporated by reference substitute:

1. "Board" for "administrator."

2. "Board" for "U.S. Environmental Protection Agency" (except in references).

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-40 Applicability

Except as provided in subdivision 3 of this section, the following units shall be NO_x Budget units, and any source that includes one or more such units shall be a NO_x Budget source, subject to the requirements of this part:

1. a. For units that commenced operation before January 1, 1997, a unit serving during 1995 or 1996 a generator that had a nameplate capacity greater than 25 MWe and produced electricity for sale under a firm contract to the electric grid.

b. For units that commenced operation on or after January 1, 1997, and before January 1, 1999, a unit serving during 1997 or 1998 a generator that had a nameplate capacity greater than 25 MWe and produced electricity for sale under a firm contract to the electric grid.

c. For units that commence operation on or after January 1, 1999, a unit serving at any time a generator that has a nameplate capacity greater than 25 MWe and produces electricity for sale.

2. For units that commenced operation before January 1, 1997, a unit that has a maximum design heat input greater than 250 mmBtu/hr and that did not serve during 1995 or 1996 a generator producing electricity for sale under a firm contract to the electric grid.

3. For units covered by the Cross-State Air Pollution Rule (40 CFR Parts 52, 78, and 97), an exemption to this chapter shall apply.

4. For units that commenced operation on or after January 1, 1997, and before January 1, 1999, a unit that has a maximum design heat input greater than 250 mmBtu/hr and that did not serve during 1997 or 1998 a generator producing electricity for sale under a firm contract to the electric grid.

5. For units that commence operation on or after January 1, 1999, a unit with a maximum design heat input greater than 250 mmBtu/hr that at no time serves a generator producing electricity for sale

.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-50 Retired unit exemption

A. This section applies to any NO_x Budget unit that is permanently retired.

B. 1. Any NO_x Budget unit that is permanently retired shall be exempt from the NO_x Budget Program, except for the provisions of this section, 9VAC5-140-20, 9VAC5-140-30, 9VAC5-140-40, and 9VAC5-140-70.

2. The exemption under subdivision 1 of this subsection shall become effective the day on which the unit is permanently retired. Within 30 days of permanent retirement, the NO_x authorized account representative (authorized in accordance with Article 2 (9VAC5-140-100 et seq.) of this part) shall submit a statement to the permitting authority otherwise responsible for administering any NO_x Budget permit for the unit. A copy of the statement shall be submitted to the administrator. The statement shall state (in a format prescribed by the permitting authority) that the unit is permanently retired and will comply with the requirements of subsection C of this section.

3. After receipt of the notice under subdivision 2 of this subsection, the permitting authority will amend any permit covering the source at which the unit is located to add the provisions and requirements of the exemption under subdivision 1 of this subsection and subsection C of this section.

C. 1. A unit exempt under this section shall not emit any nitrogen oxides, starting on the date that the exemption takes effect.

2. a. A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a Title V operating permit shall not resume operation unless the NO_x authorized account representative of the source submits a complete NO_x Budget permit application under 9VAC5-140-220 for the unit not less than 18 months (or such lesser time provided by the permitting authority) prior to the date on which the unit is to first resume operation.

b. A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a state operating permit shall not resume operation unless the NO_x authorized account representative of the source submits a complete NO_x Budget permit application under 9VAC5-140-220 for the unit not less than 18 months (or such lesser time provided by the permitting authority) prior to the date on which the unit is to first resume operation.

3. The owners and operators and, to the extent applicable, the NO_x authorized account representative of a unit exempt under this section shall comply with the requirements of the NO_x Budget Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.

4. For a period of five years from the date the records are created, the owners and operators of a unit exempt under this section shall retain at the source that includes the unit, records demonstrating that the unit is permanently retired. The five-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the permitting authority or the administrator. The owners and operators bear the burden of proof that the unit is permanently retired.

a. On the earlier of the following dates, a unit exempt under subsection B of this section shall lose its exemption:

(1) The date on which the NO_x authorized account representative submits a NO_x Budget permit application under subdivision 2 of this subsection;

(2) The date on which the NO_x authorized account representative is required under subdivision 2 of this subsection to submit a NO_x Budget permit application; or

(3) The date on which the unit resumes operation, if the unit is not required to submit a NO_x Budget permit application.

b. For the purpose of applying monitoring requirements under Article 8 (9VAC5-140-700 et seq.) of this part, a unit that loses its exemption under this section shall be treated as a unit that commences operation or commercial operation on the first date on which the unit resumes operation.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-60 Standard requirements

A. The following requirements concerning permits shall apply:

1. The NO_x authorized account representative of each NO_x Budget source required to have a federally enforceable permit and each NO_x Budget unit required to have a federally enforceable permit at the source shall:

a. Submit to the permitting authority a complete NO_x Budget permit application under 9VAC5-140-220 in accordance with the deadlines specified in 9VAC5-140-210 B and C;

b. Submit in a timely manner any supplemental information that the permitting authority determines is necessary in order to review a NO_x Budget permit application and issue or deny a NO_x Budget permit.

2. The owners and operators of each NO_x Budget source required to have a federally enforceable permit and each NO_x Budget unit required to have a federally enforceable permit at the source shall have a NO_x Budget permit issued by the permitting authority and operate the unit in compliance with such NO_x Budget permit.

3. The owners and operators of a NO_x Budget source that is not otherwise required to have a federally enforceable permit are not required to submit a NO_x Budget permit application, and to have a NO_x Budget permit, under Article 3 (9VAC5-140-200 et seq.) of this part for such NO_x Budget source.

B. The following requirements concerning monitoring shall apply:

1. The owners and operators and, to the extent applicable, the NO_x authorized account representative of each NO_x Budget source and each NO_x Budget unit at the source, shall comply with the monitoring requirements of Article 8 (9VAC5-140-700 et seq.) of this part.

2. The emissions measurements recorded and reported in accordance with Article 8 (9VAC5-140-700 et seq.) of this part shall be used to determine compliance by the unit.

C. The following requirements concerning recordkeeping and reporting shall apply:

1. Unless otherwise provided, the owners and operators of the NO_x Budget source and each NO_x Budget unit at the source shall keep on site at the source each of the following documents for a period of five years from the date the document is created. This period may be extended for cause, at any time prior to the end of five years, in writing by the permitting authority or the administrator.

a. The account certificate of representation for the NO_x authorized account representative for the source and each NO_x Budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation, in accordance with 9VAC5-140-130; provided that the certificate and documents shall be retained on site at the source beyond such five-year period until such documents are superseded because of the submission of a new account certificate of representation changing the NO_x authorized account representative.

b. All emissions monitoring information, in accordance with Article 8 (9VAC5-140-700 et seq.) of this part; provided that to the extent that Article 8 (9VAC5-140-700 et seq.) of this part provides for a three-year period for recordkeeping, the three-year period shall apply.

c. Copies of all reports, compliance certifications, and other submissions and all records made or required under the NO_x Budget Program.

d. Copies of all documents used to complete a NO_x Budget permit application and any other submission under the NO_x Budget Program or to demonstrate compliance with the requirements of the NO_x Budget Program.

2. The NO_x authorized account representative of a NO_x Budget source and each NO_x Budget unit at the source shall submit the reports and compliance certifications required under the NO_x Budget Program, including those under Article 8 (9VAC5-140-700 et seq.) of this part.

D. The following requirements concerning liability shall apply:

1. Any person who knowingly violates any requirement or prohibition of the NO_x Budget Program, a NO_x Budget permit, or an exemption under 9VAC5-140-50 shall be subject to enforcement pursuant to the Air Pollution Control Law of Virginia or applicable federal law.

2. Any person who knowingly makes a false material statement in any record, submission, or report under the NO_x Budget Program shall be subject to criminal enforcement pursuant to the Air Pollution Control Law of Virginia or applicable federal law.

3. No permit revision shall excuse any violation of the requirements of the NO_x Budget Program that occurs prior to the date that the revision takes effect.

4. Each NO_x Budget source and each NO_x Budget unit shall meet the requirements of the NO_x Budget Program.

5. Any provision of the NO_x Budget Program that applies to a NO_x Budget source (including a provision applicable to the NO_x authorized account representative of a NO_x Budget source) shall also apply to the owners and operators of such source and of the NO_x Budget units at the source.

6. Any provision of the NO_x Budget Program that applies to a NO_x Budget unit (including a provision applicable to the NO_x authorized account representative of a NO_x Budget unit) shall also apply to the owners and operators of such unit. Except with regard to the requirements applicable to units with a common stack under Article 8 (9VAC5-140-700 et seq.) of this part, the owners and operators and the NO_x authorized account representative of one NO_x Budget unit shall not be liable for any violation by any other NO_x Budget unit of which they are not owners or operators or the NO_x authorized account representative and that is located at a source of which they are not owners or operators or the NO_x authorized account representative.

E. No provision of the NO_x Budget Program, a NO_x Budget permit application, a NO_x Budget permit, or an exemption under 9VAC5-140-50 shall be construed as exempting or excluding the owners and operators and, to the extent applicable, the NO_x authorized account representative of a NO_x Budget source or NO_x Budget unit from compliance with any other provision of the applicable implementation plan, a federally enforceable permit, or the CAA.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; Errata, 18:22 VA.R. 2953 July 15, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-70 Computation of time

A. Unless otherwise stated, any time period scheduled under the NO_x Budget Trading Program to begin on the occurrence of an act or event shall begin on the day the act or event occurs.

B. Unless otherwise stated, any time period scheduled under the NO_x Budget Trading Program to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.

C. Unless otherwise stated, if the final day of any time period under the NO_x Budget Trading Program falls on a weekend or a state or federal holiday, the time period shall be extended to the next business day.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002.

9VAC5-140-80 [Reserved]. (Reserved)

9VAC5-140-90 [Reserved]. (Reserved)

Article 2 NOX Authorized Account Representative for NOX Budget Sources

9VAC5-140-100 Authorization and responsibilities of the NOx authorized account representative

Article 2 NO_X Authorized Account Representative for NO_X Budget Sources

A. Except as provided under 9VAC5-140-110, each NO_x Budget source, including all NO_x Budget units at the source, shall have one and only one NO_x authorized account representative with regard to all matters under the NO_x Budget Program concerning the source or any NO_x Budget unit at the source.

B. The NO_x authorized account representative of the NO_x Budget source shall be selected by an agreement binding on the owners and operators of the source and all NO_x Budget units at the source.

C. Upon receipt by the administrator of a complete account certificate of representation under 9VAC5-140-130, the NO_x authorized account representative of the source shall represent and, by his representations, actions, inactions, or submissions, legally bind each owner and operator of the NO_x Budget source represented and each NO_x Budget unit at the source in all matters pertaining to the NO_x Budget Program, notwithstanding any agreement between the NO_x authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the NO_x authorized account representative by the permitting authority, the administrator, or a court regarding the source or unit.

D. No NO_x Budget permit shall be issued for a NO_x Budget unit at a source until the administrator has received a complete account certificate of representation under 9VAC5-140-130 for a NO_x authorized account representative of the source and the NO_x Budget units at the source.

E. 1. Each submission under the NO_x Budget Program shall be submitted, signed, and certified by the NO_x authorized account representative for each NO_x Budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the NO_x authorized account representative: "I am authorized to make this submission on behalf of the owners and operators of the NO_x Budget sources or NO_x Budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

2. The permitting authority and the administrator will accept or act on a submission made on behalf of owner or operators of a NO_x Budget source or a NO_x Budget unit only if the submission has been made, signed, and certified in accordance with subdivision 1 of this subsection.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-110 Alternate NOx authorized account representative

A. An account certificate of representation may designate one and only one alternate NO_x authorized account representative who may act on behalf of the NO_x authorized account representative. The agreement by which the alternate NO_x authorized account representative is selected shall include a procedure for authorizing the alternate NO_x authorized account representative to act in lieu of the NO_x authorized account representative.

B. Upon receipt by the administrator of a complete account certificate of representation under 9VAC5-140-130, any representation, action, inaction, or submission by the alternate NO_x authorized account representative shall be deemed to be a representation, action, inaction, or submission by the NO_x authorized account representative.

C. Except in this section and 9VAC5-140-100 A, 9VAC5-140-120, and 9VAC5-140-130, whenever the term "NO_x authorized account representative" is used in this part, the term shall be construed to include the alternate NO_x authorized account representative.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-120 Changing the NOx authorized account representative and the alternate NOx authorized account representative; changes in the ...

A. The NO_x authorized account representative may be changed at any time upon receipt by the administrator of a superseding complete account certificate of representation under 9VAC5-140-130. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous NO_x authorized account representative prior to the time and date when the administrator receives the superseding account certificate of representation shall be binding on the new NO_x authorized account representative and the owners and operators of the NO_x Budget source and the NO_x Budget units at the source.

B. The alternate NO_x authorized account representative may be changed at any time upon receipt by the administrator of a superseding complete account certificate of representation under 9VAC5-140-130. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate NO_x authorized account representative prior to the time and date when the administrator receives the superseding account certificate of representation shall be binding on the new alternate NO_x authorized account representative and the owners and operators of the NO_x Budget source and the NO_x Budget units at the source.

C. 1. In the event a new owner or operator of a NO_x Budget source or a NO_x Budget unit is not included in the list of owners and operators submitted in the account certificate of representation, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the NO_x authorized account representative and any alternate NO_x authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the permitting authority or the administrator, as if the new owner or operator were included in such list.

2. Within 30 days following any change in the owners and operators of a NO_x Budget source or a NO_x Budget unit, including the addition of a new owner or operator, the NO_x authorized account representative or alternate NO_x authorized account representative shall submit a revision to the account certificate of representation amending the list of owners and operators to include the change.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002.

9VAC5-140-130 Account certificate of representation

A. A complete account certificate of representation for a NO_x authorized account representative or an alternate NO_x authorized account representative shall include the following elements in a format prescribed by the administrator:

1. Identification of the NO_x Budget source and each NO_x Budget unit at the source for which the account certificate of representation is submitted.

2. The name, address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the NO_x authorized account representative and any alternate NO_x authorized account representative.

3. A list of the owners and operators of the NO_x Budget source and of each NO_x Budget unit at the source.

4. The following certification statement by the NO_x authorized account representative and any alternate NO_x authorized account representative: "I certify that I was selected as the NO_x authorized account representative or alternate NO_x authorized account representative, as applicable, by an agreement binding on the owners and operators of the NO_x Budget source and each NO_x Budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NO_x Budget Program on behalf of the owners and operators of the NO_x Budget source and of each NO_x Budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the permitting authority, the administrator, or a court regarding the source or unit."

5. The signature of the NO_x authorized account representative and any alternate NO_x authorized account representative and the dates signed.

B. Unless otherwise required by the permitting authority or the administrator, documents of agreement referred to in the account certificate of representation shall not be submitted to the permitting authority or the administrator. Neither the permitting authority nor the administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-140 Objections concerning the NOx authorized account representative

A. Once a complete account certificate of representation under 9VAC5-140-130 has been submitted and received, the permitting authority and the administrator shall rely on the account certificate of representation unless and until a superseding complete account certificate of representation under 9VAC5-140-130 is received by the administrator.

B. Except as provided in 9VAC5-140-120 A or B, no objection or other communication submitted to the permitting authority or the administrator concerning the authorization, or any representation, action, inaction, or submission of the NO_x authorized account representative shall affect any representation, action, inaction, or submission of the NO_x authorized account representative or the finality of any decision or order by the permitting authority or the administrator under the NO_x Budget Program.

C. Neither the permitting authority nor the administrator shall adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any NO_x authorized account representative, including private legal disputes concerning the proceeds of NO_x allowance transfers.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-150 [Reserved]. (Reserved)

Article 3 Permits

9VAC5-140-200 General NOx Budget program permit requirements

Article 3 Permits

A. For each NO_x Budget source required to have a federally enforceable permit, such permit shall include a NO_x Budget permit administered by the permitting authority.

1. For NO_x Budget sources required to have a Title V operating permit, the NO_x Budget portion of the Title V permit shall be administered in accordance with the permitting authority's Title V operating permits regulations.

2. For NO_x Budget sources required to have a state operating permit, the NO_x Budget portion of the state operating permit shall be administered in accordance with the permitting authority's regulations promulgated to administer state operating permits.

B. Each NO_x Budget permit (including a draft or proposed NO_x Budget permit, if applicable) shall contain all applicable NO_x Budget program requirements and shall be a complete and segregable portion of the permit under subsection A of this section.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-210 Submission of NOx Budget permit applications

A. The NO_x authorized account representative of any NO_x Budget source required to have a federally enforceable permit shall submit to the permitting authority a complete NO_x Budget permit application under 9VAC5-140-220 by the applicable deadline in subsection B of this section.

B. 1. The following requirements shall apply to NO_x Budget sources required to have a Title V operating permit:

a. For any source with one or more NO_x Budget units under 9VAC5-140-40 that commenced operation before January 1, 2001, the NO_x authorized account representative shall submit a complete NO_x Budget permit application under 9VAC5-140-220 covering such NO_x Budget units to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before May 31, 2004.

b. For any source with any NO_x Budget unit under 9VAC5-140-40 that commences operation on or after January 1, 2001, the NO_x authorized account representative shall submit a complete NO_x Budget permit application under 9VAC5-140-220 covering such NO_x Budget unit to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004, or the date on which the NO_x Budget unit commences operation.

2. The following requirements shall apply to NO_x Budget sources required to have a state operating permit:

a. For any source with one or more NO_x Budget units under 9VAC5-140-40 that commenced operation before January 1, 2001, the NO_x authorized account representative shall submit a complete NO_x Budget permit application under 9VAC5-140-220 covering such NO_x Budget units to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before May 31, 2004.

b. For any source with any NO_x Budget unit under 9VAC5-140-40 that commences operation on or after January 1, 2001, the NO_x authorized account representative shall submit a complete NO_x Budget permit application under 9VAC5-140-220 covering such NO_x Budget unit to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004, or the date on which the NO_x Budget unit commences operation.

C. For a NO_x Budget source required to have a Title V operating permit, the NO_x authorized account representative shall submit a complete NO_x Budget permit application under 9VAC5-140-220 for the NO_x Budget source covering the NO_x Budget units at the source in accordance with the permitting authority's Title V operating permits regulations addressing operating permit renewal.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; Errata, 18:22 VA.R. 2953 July 15, 2002.

9VAC5-140-220 Information requirements for NOx Budget permit applications

A complete NO_x Budget permit application shall include the following elements concerning the NO_x Budget source for which the application is submitted, in a format prescribed by the permitting authority:

1. Identification of the NO_x Budget source, including plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration, if applicable;

2. Identification of each NO_x Budget unit at the NO_x Budget source; and

3. The standard requirements under 9VAC5-140-60.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-230 NOx Budget permit contents

A. Each NO_x Budget permit (including any draft or proposed NO_x Budget permit, if applicable) will contain all elements required for a complete NO_x Budget permit application under 9VAC5-140-220.

B. Each NO_x Budget permit is deemed to incorporate automatically the definitions of terms under 9VAC5-140-20.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.); 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-240 Effective date of initial NOx Budget permit

The initial NO_x Budget permit covering a NO_x Budget unit for which a complete NO_x Budget permit application is timely submitted under 9VAC5-140-210 B shall become effective by the later of:

1. May 31, 2004;

2. May 1 of the year in which the NO_x Budget unit commences operation, if the unit commences operation on or before May 1 of that year;

3. The date on which the NO_x Budget unit commences operation, if the unit commences operation during a control period; or

4. May 1 of the year following the year in which the NO_x Budget unit commences operation, if the unit commences operation on or after October 1 of the year.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002.

9VAC5-140-250 NOx Budget permit revisions

A. For a NO_x Budget source with a Title V operating permit, except as provided in 9VAC5-140-230 B, the permitting authority will revise the NO_x Budget permit, as necessary, in accordance with the permitting authority's Title V operating permit regulations addressing permit revisions.

B. For a NO_x Budget source with a state operating permit, except as provided in 9VAC5-140-230 B, the permitting authority will revise the NO_x Budget permit, as necessary, in accordance with the permitting authority's state operating permit regulations addressing permit revisions.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002.

9VAC5-140-260 [Reserved]. (Reserved)

Article 4 (Repealed)

9VAC5-140-300 (Repealed.)

Article 4 (Repealed)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-310 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-320 (Repealed.) (Reserved)

Historical Notes

Reserved, Virginia Register Volume 18, Issue 14, eff. July 17, 2002; repealed Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

Article 5 (Repealed)

9VAC5-140-400 (Repealed.)

Article 5 (Repealed)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-410 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-420 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; Errata, 18:22 VA.R. 2953 July 15, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-430 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; Errata, 18:22 VA.R. 2953 July 15, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-440 (Repealed.) (Reserved)

Historical Notes

Reserved, Virginia Register Volume 18, Issue 14, eff. July 17, 2002; repealed Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

Article 6 (Repealed)

9VAC5-140-500 (Repealed.)

Article 6 (Repealed)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-510 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-520 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-530 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-540 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-550 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Errata, 20:13 VA.R. 1643 March 8, 2004; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-560 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-570 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-580 (Repealed.) (Reserved)

Historical Notes

Reserved, Virginia Register Volume 18, Issue 14, eff. July 17, 2002; repealed Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

Article 7 (Repealed)

9VAC5-140-600 (Repealed.)

Article 7 (Repealed)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-610 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-620 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-630 (Repealed.) (Reserved)

Historical Notes

Reserved, Virginia Register Volume 18, Issue 14, eff. July 17, 2002; repealed Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

Article 8 Monitoring and Reporting

9VAC5-140-700 General requirements

Article 8 Monitoring and Reporting

A. The owners and operators, and to the extent applicable, the NO_x authorized account representative of a NO_x Budget unit shall comply with the monitoring and reporting requirements as provided in this article and in Subpart H of 40 CFR Part 75. For purposes of complying with such requirements, the definitions in 9VAC5-140-20 and in 40 CFR 72.2 shall apply, and the terms "affected unit," "designated representative," and "continuous emission monitoring system" (or "CEMS") in 40 CFR Part 75 shall be replaced by the terms "NO_x Budget unit," "NO_x authorized account representative," and "continuous emission monitoring system" (or "CEMS"), respectively, as defined in 9VAC5-140-20.

B. The owner or operator of each NO_x Budget unit shall meet the following requirements:

1. Install all monitoring systems required under this article for monitoring NO_x mass. This includes all systems required to monitor NO_x emission rate, NO_x concentration, heat input, and flow, in accordance with 40 CFR 75.71 and 40 CFR 75.72.

2. Install all monitoring systems for monitoring heat input.

3. Successfully complete all certification tests required under 9VAC5-140-710 and meet all other provisions of this article and 40 CFR Part 75 applicable to the monitoring systems under subdivisions 1 and 2 of this subsection.

4. Record and report data from the monitoring systems under subdivisions 1 and 2 of this subsection.

C. The owner or operator shall meet the requirements of subdivisions B 1, B 2, and B 3 of this section on or before the following dates and shall record and report data on and after the following dates:

1. NO_x Budget units under 9VAC5-140-40 that commence operation before January 1, 2003, shall comply with the requirements of this article by May 1, 2003.

2. NO_x Budget units under 9VAC5-140-40 that commence operation on or after January 1, 2003, and that report on an annual basis under 9VAC5-140-740 D shall comply with the requirements of this article by the later of the following dates:

a. May 1, 2003; or

b. The earlier of:

(1) 180 days after the date on which the unit commences operation; or

(2) For units under subdivision 1 of 9VAC5-140-40, 90 days after the date on which the unit commences commercial operation.

3. NO_x Budget units under 9VAC5-140-40 that commence operation on or after January 1, 2003, and that report on a control period basis under 9VAC5-140-740 D shall comply with the requirements of this article by the later of the following dates:

a. The earlier of:

(1) 180 days after the date on which the unit commences operation; or

(2) For units under subdivision 1 of 9VAC5-140-40, 90 days after the date on which the unit commences commercial operation.

b. However, if the applicable deadline under subdivision 3 a of this subsection does not occur during a control period, May 1; immediately following the date determined in accordance with subdivision 3 a of this subsection.

4. For a NO_x Budget unit with a new stack or flue for which construction is completed after the applicable deadline under subdivision 1, 2, or 3 of this subsection:

a. 90 days after the date on which emissions first exit to the atmosphere through the new stack or flue;

b. However, if the unit reports on a control period basis under 9VAC5-140-740 D and the applicable deadline under subdivision 4 a of this subsection does not occur during the control period, May 1 immediately following the applicable deadline in subdivision 4 a of this subsection.

D. The owner or operator of a NO_x Budget unit under subdivision C 2, C 3, or C 4 of this section shall determine, record, and report NO_x mass emissions, heat input rate, and any other values required to determine NO_x mass emissions (e.g., NO_x emission rate and heat input rate, or NO_x concentration and stack flow rate) in accordance with 40 CFR 75.70(g), from the date and hour that the unit starts operating until the date and hour on which the continuous emission monitoring system, excepted monitoring system under Appendix D or E of 40 CFR Part 75, or excepted monitoring methodology under 40 CFR 75.19 is provisionally certified.

E. 1. No owner or operator of a NO_x Budget unit or a non-NO_x Budget unit monitored under 40 CFR 75.72(b)(2)(ii) shall use any alternative monitoring system, alternative reference method, or any other alternative for the required continuous emission monitoring system without having obtained prior written approval in accordance with 9VAC5-140-750.

2. No owner or operator of a NO_X Budget unit or a non-NO_x Budget unit monitored under 40 CFR 75.72(b)(2)(ii) shall operate the unit so as to discharge, or allow to be discharged, NO_x emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this article and 40 CFR Part 75 except as provided for in 40 CFR 75.74.

3. No owner or operator of a NO_x Budget unit or a non-NO_x Budget unit monitored under 40 CFR 75.72(b)(2)(ii) shall disrupt the continuous emission monitoring system, any portion thereof, or any other approved emission monitoring method, and thereby avoid monitoring and recording NO_x mass emissions discharged into the atmosphere, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this article and 40 CFR Part 75 except as provided for in 40 CFR 75.74.

4. No owner or operator of a NO_x Budget unit or a non-NO_x Budget unit monitored under 40 CFR 75.72(b)(2)(ii) shall retire or permanently discontinue use of the continuous emission monitoring system, any component thereof, or any other approved emission monitoring system under this article, except under any one of the following circumstances:

a. During the period that the unit is covered by a retired unit exemption under 9VAC5-140-50 that is in effect;

b. The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this article and 40 CFR Part 75, by the permitting authority for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or

c. The NO_x authorized account representative submits notification of the date of certification testing of a replacement monitoring system in accordance with 9VAC5-140-710 A 2.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.) 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-710 Initial certification and recertification procedures

A. The owner or operator of a NO_x Budget unit shall comply with the following initial certification and recertification procedures, except that the owner or operator of a unit that qualifies to use the low mass emissions excepted monitoring methodology under 40 CFR 75.19 shall also meet the requirements of subsection C of this section and the owner or operator of a unit that qualifies to use an alternative monitoring system under Subpart E of 40 CFR Part 75 shall also meet the requirements of subsection D of this section.

1. The owner or operator shall ensure that each emission monitoring system required by Subpart H of 40 CFR Part 75 (that includes the automated data acquisition and handling system) successfully completes all of the initial certification testing required under 40 CFR 75.20. The owner or operator shall ensure that all applicable certification tests are successfully completed by the deadlines specified in 9VAC5-140-700 C. In addition, whenever the owner or operator installs a monitoring system in order to meet the requirements of this part in a location where no such emission monitoring system was previously installed, initial certification according to 40 CFR 75.20 is required.

2. Whenever the owner or operator makes a replacement, modification, or change in a certified emission monitoring system that may significantly affect the ability of the system to accurately measure or record NO_x mass emissions or heat input rate or to meet the requirements of 40 CFR 75.21 or Appendix B to 40 CFR Part 75, the owner or operator shall recertify the emission monitoring system according to 40 CFR 75.20(b). Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that may significantly change the stack flow or concentration profile, the owner or operator shall recertify the continuous emissions monitoring system according to 40 CFR 75.20(b). Examples of changes that require recertification include: replacement of the analyzer, complete replacement of an existing continuous emission monitoring system, or change in location or orientation of the sampling probe or site.

3. a. The NO_x authorized account representative shall submit to the permitting authority, the EPA Region III Office and the administrator a written notice of the dates of certification in accordance with 9VAC5-140-730.

b. The NO_x authorized account representative shall submit to the permitting authority a certification application for each emission monitoring system required under Subpart H of 40 CFR Part 75. A complete certification application shall include the information specified in Subpart H of 40 CFR Part 75.

c. Except for units using the low mass emission excepted methodology under 40 CFR 75.19, the provisional certification date for a monitor shall be determined using the procedures set forth in 40 CFR 75.20(a)(3). A provisionally certified monitor may be used under the NO_x Budget Program for a period not to exceed 120 days after receipt by the permitting authority of the complete certification application for the monitoring system under subdivision 3 b of this subsection. Data measured and recorded by the provisionally certified monitoring system, in accordance with the requirements of 40 CFR Part 75, shall be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the permitting authority does not invalidate the provisional certification by issuing a notice of disapproval within 120 days of receipt of the complete certification application by the permitting authority.

d. The permitting authority shall issue a written notice of approval or disapproval of the certification application to the owner or operator within 120 days of receipt of the complete certification application under subdivision 3 b of this subsection. In the event the permitting authority does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of 40 CFR Part 75 and is included in the certification application will be deemed certified for use under the NO_x Budget Program.

(1) If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of 40 CFR Part 75, then the permitting authority will issue a written notice of approval of the certification application within 120 days of receipt.

(2) A certification application will be considered complete when all of the applicable information required to be submitted under subdivision 3 b of this subsection has been received by the permitting authority. If the certification application is not complete, then the permitting authority will issue a written notice of incompleteness that sets a reasonable date by which the NO_x authorized account representative shall submit the additional information required to complete the certification application. If the NO_x authorized account representative does not comply with the notice of incompleteness by the specified date, then the permitting authority may issue a notice of disapproval under subdivision 3 d (3) of this subsection.

(3) If the certification application shows that any monitoring system does not meet the performance requirements of this part, or if the certification application is incomplete and the requirement for disapproval under subdivision 3 d (2) of this subsection has been met, the permitting authority will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the permitting authority and the data measured and recorded by each uncertified monitoring system shall not be considered valid quality-assured data beginning with the date and hour of provisional certification. The owner or operator shall follow the procedures for loss of certification in subdivision 3 e of this subsection for each monitoring system that is disapproved for initial certification.

(4) The permitting authority may issue a notice of disapproval of the certification status of a monitor in accordance with 9VAC5-140-720 B.

e. If the permitting authority issues a notice of disapproval of a certification application under subdivision 3 d (3) of this subsection or a notice of disapproval of certification status under subdivision 3 d (4) of this subsection, then:

(1) The owner or operator shall substitute the following values, for each hour of unit operation during the period of invalid data specified under 40 CFR 75.20(a)(4)(iii), 40 CFR 75.20(b)(5), 40 CFR 75.20(h)(4), or 40 CFR 75.21(e) and continuing until the date and hour specified under 40 CFR 75.20(a)(5)(i):

(a) For units using or intending to monitor for NO_x emission rate and heat input or for units using the low mass emission excepted methodology under 40 CFR 75.19, the maximum potential NO_x emission rate and the maximum potential hourly heat input of the unit.

(b) For units intending to monitor for NO_x mass emissions using a NO_x pollutant concentration monitor and a flow monitor, the maximum potential concentration of NO_x and the maximum potential flow rate of the unit under section 2.1 of Appendix A of 40 CFR Part 75;

(2) The NO_x authorized account representative shall submit a notification of certification retest dates and a new certification application in accordance with subdivisions 3 a and b of this subsection; and

(3) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the permitting authority's notice of disapproval, no later than 30 unit operating days after the date of issuance of the notice of disapproval.

B. The owner or operator of a gas-fired or oil-fired unit using the low mass emissions excepted methodology under 40 CFR 75.19 shall meet the applicable general operating requirements of 40 CFR 75.10 and the applicable requirements of 40 CFR 75.19. The owner or operator of such a unit shall also meet the applicable certification and recertification procedures of subsection A of this section, except that the excepted methodology shall be deemed provisionally certified for use under the NO_x Budget Program as of the date on which the certification application is received by the administrator. The methodology shall be considered to be certified either upon receipt of a written notice of approval from the administrator or, if such notice is not provided, at the end of the administrator's 120-day review period. However, a provisionally certified or certified low mass emissions excepted methodology shall not be used to report data under the NO_x Budget Program prior to the applicable commencement date specified in 40 CFR 75.19(a)(1)(ii).

C. The NO_x authorized account representative representing the owner or operator of each unit applying to monitor using an alternative monitoring system approved by the administrator and, if applicable, the permitting authority under Subpart E of 40 CFR Part 75 shall apply for certification to the permitting authority prior to use of the system under the NO_x Budget Program. The NO_x authorized account representative shall apply for recertification following a replacement, modification or change according to the procedures in subsection A of this section. The owner or operator of an alternative monitoring system shall comply with the notification and application requirements for certification according to the procedures specified in subdivision A 3 of this section and 40 CFR 75.20(f).

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.) 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-720 Out of control periods

A. Whenever any emission monitoring system fails to meet the quality assurance requirements of Appendix B of 40 CFR Part 75, data shall be substituted using the applicable procedures in Subpart D, Subpart H, Appendix D, or Appendix E of 40 CFR Part 75.

B. Whenever both an audit of a monitoring system and a review of the initial certification or recertification application reveal that any system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under 9VAC5-140-710 or the applicable provisions of 40 CFR Part 75, both at the time of the initial certification or recertification application submission and at the time of the audit, the permitting authority will issue a notice of disapproval of the certification status of such system. For the purposes of this subsection an audit shall be either a field audit or an audit of any information submitted to the permitting authority or the administrator. By issuing the notice of disapproval, the permitting authority revokes prospectively the certification status of the system. The data measured and recorded by the system shall not be considered valid quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests. The owner or operator shall follow the initial certification or recertification procedures in 9VAC5-140-710 for each disapproved system.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002.

9VAC5-140-730 Notifications

The NO_x authorized account representative for a NO_x Budget unit shall submit written notice to the permitting authority and the administrator in accordance with 40 CFR 75.61.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.) 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-740 Recordkeeping and reporting

A. The NO_x authorized account representative shall comply with all recordkeeping and reporting requirements in this section, with the recordkeeping and reporting requirements under 40 CFR 75.73, and with the requirements of 9VAC5-140-100 E 1.

B. The owner or operator of a unit shall comply with requirements of 40 CFR 75.62, except that the monitoring plan is only required to include the information required by Subpart H of 40 CFR Part 75.

C. The NO_x authorized account representative shall submit an application to the permitting authority within 45 days after completing all initial certification or recertification tests required under 9VAC5-140-710 including the information required under Subpart H of 40 CFR Part 75.

D. The NO_x authorized account representative shall submit quarterly reports, as follows:

1. If the owner or operator of the NO_x Budget unit chooses to meet the annual reporting requirements of this article, the NO_x authorized account representative shall submit a quarterly report, documenting the NO_x mass emissions from the unit, for each calendar quarter beginning with:

a. For a unit that commences operation before January 1, 2003, the calendar quarter covering May 1, 2003, through June 30, 2003. NO_x mass emission data shall be recorded and reported from the first hour on May 1, 2003; or

b. For a unit that commences operation on or after January 1, 2003:

(1) The calendar quarter in which the unit commences operation, if unit operation commences during a control period. NO_x mass emission data shall be recorded and reported from the date and hour when the unit commences operation; or

(2) The calendar quarter that includes May 1 through June 30 of the first control period following the date on which the unit commences operation if the unit does not commence operation during a control period. NO_x mass emission data shall be recorded and reported from the first hour on May 1 of that control period.

2. The NO_x authorized account representative shall either:

a. Meet all of the requirements of 40 CFR Part 75 related to monitoring and reporting NO_x mass emissions during the entire year and meet the reporting deadlines specified in subdivision 1 of this subsection; or

b. Submit quarterly reports, documenting NO_x mass emissions from the unit, only for the period from May 1 through September 30 of each year and including the data described in 40 CFR 75.74 (c)(6). The NO_x authorized account representative shall submit such quarterly reports, beginning with:

(1) For a unit that commences operation before January 1, 2003, the calendar quarter covering May 1 through June 30, 2003. NO_x mass emission data shall be recorded and reported from the first hour of May 1, 2003;

(2) For a unit that commences operation on or after January 1, 2003, and during a control period, the calendar quarter in which the unit commences operation. NO_x mass emission data shall be reported from the date and hour corresponding to when the unit commences operation; or

(3) For a unit that commences operation on or after January 1, 2003, and not during a control period, the calendar quarter that includes May 1 through June 30 of the first control period after the unit commences operation. NO_x mass emission data shall be recorded and reported from the first hour on May 1 of the first control period after the unit commences operation.

3. The NO_x authorized account representative shall submit each quarterly report to the administrator within 30 days following the end of the calendar quarter covered by the report. Quarterly reports shall be submitted in the manner specified in Subpart H of 40 CFR Part 75 and 40 CFR 75.64. Quarterly reports are only required to include all of the data and information required in Subpart H of 40 CFR Part 75 for each NO_x Budget unit (or group of units using a common stack).

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.) 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-750 Petitions

The NO_x authorized account representative of a NO_x Budget unit may submit a petition under 40 CFR 75.66 to the permitting authority and the administrator requesting approval to apply an alternative to any requirement of this article.

Application of an alternative to any requirement of this article is in accordance with this article only to the extent the petition is approved by the permitting authority and the administrator.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; Clean Air Act (42 USC § 7401 et seq.) 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-760 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-770 [Reserved]. (Reserved)

Article 9 (Repealed)

9VAC5-140-800 (Repealed.)

Article 9 (Repealed)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-810 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-820 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-830 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-840 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-850 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-860 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; Errata, 18:22 VA.R. 2953 July 15, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-870 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; Errata, 18:22 VA.R. 2953 July 15, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-880 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-890 (Repealed.) (Reserved)

Historical Note

Reserved, Virginia Register Volume 18, Issue 14, eff. July 17, 2002; repealed Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

Article 10 (Repealed)

9VAC5-140-900 (Repealed.)

Article 10 (Repealed)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-910 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-920 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-930 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 20, eff. July 17, 2002; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; repealed, Virginia Register Volume 34, Issue 5, eff. November 29, 2017.

9VAC5-140-1010 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; amended, Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1020 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; amended, Virginia Register Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1030 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1040 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1050 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1060 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; amended, Virginia Register Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1061 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. December 26, 2007; repealed, Virginia Register Volume 26, Issue 23, eff. August 18, 2010.

9VAC5-140-1062 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. December 26, 2007; repealed, Virginia Register Volume 26, Issue 23, eff. August 18, 2010.

9VAC5-140-1070 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1080 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1100 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1110 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1120 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1130 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1140 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1150 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1200 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1210 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1220 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1230 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1240 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1300 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1400 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1410 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1420 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2673-2674 April 16, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1430 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1500 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1510 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1520 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1530 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1540 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1550 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1560 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1570 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1600 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1610 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1620 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1700 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1710 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1720 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1730 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1740 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1750 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1800 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1810 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1820 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1830 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1840 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1850 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1860 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1870 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-1880 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2010 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; amended, Virginia Register Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2020 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; amended, Virginia Register Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2030 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2040 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2050 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2060 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2061 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. December 26, 2007; repealed, Virginia Register Volume 26, Issue 23, eff. August 18, 2010.

9VAC5-140-2062 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. December 26, 2007; repealed, Virginia Register Volume 26, Issue 23, eff. August 18, 2010.

9VAC5-140-2070 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2080 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2100 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2110 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2120 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2130 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2140 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2150 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2200 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2210 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2220 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2230 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2240 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2300 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2400 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2405 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2410 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2420 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2430 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2500 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2510 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2520 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2530 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2540 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2550 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2560 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2570 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2600 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2610 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2620 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2700 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2710 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2720 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2730 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2740 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2750 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2800 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2810 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2820 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2830 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2840 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2850 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2860 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2870 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-2880 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3010 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; amended, Virginia Register Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3020 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; amended, Virginia Register Volume 25, Issue 12, eff. March 18, 2009; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3030 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3040 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3050 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3060 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3061 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. December 26, 2007; repealed, Virginia Register Volume 26, Issue 23, eff. August 18, 2010.

9VAC5-140-3062 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. December 26, 2007; repealed, Virginia Register Volume 26, Issue 23, eff. August 18, 2010.

9VAC5-140-3070 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3080 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3100 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3110 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3120 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3130 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3140 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3150 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3200 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3210 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3220 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3230 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3240 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3300 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3400 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; amended, Virginia Register Volume 24, Issue 5, eff. December 12, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3410 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3420 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3500 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3510 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3520 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3530 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3540 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3550 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3560 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3570 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3600 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3610 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3620 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3700 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3710 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3720 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3730 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3740 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3750 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3800 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3810 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3820 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3830 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3840 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3850 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3860 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3870 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-3880 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 14, eff. April 18, 2007; repealed, Virginia Register Volume 33, Issue 4, eff. November 16, 2016.

9VAC5-140-5010 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5020 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5030 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5040 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5050 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5060 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5070 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5080 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5090 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5100 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5110 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5120 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5130 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5140 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5150 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5160 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5200 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5210 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5220 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5230 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5240 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5250 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5300 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5400 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5410 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5420 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5430 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5500 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5510 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5520 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5530 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5540 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5550 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5560 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5570 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5580 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5600 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Errata, 23:16 VA.R. 2672-2674 April 16, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5610 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5620 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5630 (Repealed.)

Historical Notes

Previously reserved; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5700 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5710 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5720 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5730 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5740 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

9VAC5-140-5750 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 13, eff. April 4, 2007; repealed, Virginia Register Volume 28, Issue 25, eff. September 27, 2012.

Article 1 CO2 Budget Trading Program General Provisions [Repealed]

9VAC5-140-6010 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6020 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6030 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6040 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6045 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 36, Issue 25, eff. July 10, 2020.

9VAC5-140-6050 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6060 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6070 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

Article 2 CO2 Authorized Account Representative for CO2 Budget Sources [Repealed]

9VAC5-140-6080 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6090 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6100 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6110 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6120 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6130 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

Article 3 Permits [Repealed]

9VAC5-140-6140 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6150 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6160 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

Article 4 Compliance Certification [Repealed]

9VAC5-140-6170 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6180 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

Article 5 CO2 Allowance Allocations [Repealed]

9VAC5-140-6190 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6200 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6210 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6211 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 36, Issue 25, eff. July 10, 2020.

9VAC5-140-6215 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 36, Issue 25, eff. July 10, 2020.

Article 6 CO2 Allowance Tracking System [Repealed]

9VAC5-140-6220 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6230 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6240 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6250 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6260 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6270 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6280 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6290 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

Article 7 CO2 Allowance Transfers [Repealed]

9VAC5-140-6300 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6310 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6320 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6325 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

Article 8 Monitoring, Reporting, and Recordkeeping [Repealed]

9VAC5-140-6330 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6340 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6350 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6360 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6370 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6380 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6390 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6400 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

Article 9 Auction of CO2 CCR and ECR Allowances [Repealed]

9VAC5-140-6410 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6420 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; amended, Virginia Register Volume 36, Issue 25, eff. July 10, 2020; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6430 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 36, Issue 25, eff. July 10, 2020.

9VAC5-140-6435 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 36, Issue 25, eff. July 10, 2020.

9VAC5-140-6440 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 20, eff. June 26, 2019; repealed, Virginia Register Volume 39, Issue 25, eff. August 30, 2023.

9VAC5-140-6445 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 39, Issue 25, eff. August 30, 2023; repealed, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 1 CO2 Budget Trading Program General Provisions

9VAC5-140-7010 Purpose

This part establishes the Virginia component of the CO₂ Budget Trading Program, which is designed to reduce anthropogenic emissions of CO₂, a greenhouse gas, from CO₂ budget sources in a manner that is protective of human health and the environment and is economically efficient.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6010, reinstated 9VAC5-140-7010, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7020 Definitions

A. As used in this part, all words or terms not defined here shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by the context.

B. For the purpose of this part and any related use, the words or terms shall have the meanings given them in this section.

C. Terms defined.

"Account number" means the identification number given by the department or its agent to each COATS account.

"Acid Rain emission limitation" means, as defined in 40 CFR 72.2, a limitation on emissions of sulfur dioxide (SO₂) or nitrogen oxides (NO_X) under the Acid Rain Program under Title IV of the CAA.

"Acid Rain Program" means a multistate SO₂ and NO_X air pollution control and emission reduction program established by the administrator under Title IV of the CAA and 40 CFR Parts 72 through 78.

"Adjustment for banked allowances" means an adjustment applied to the Virginia CO₂ Budget Trading Program base budget for allocation years 2021 through 2025 to address allowances held in general and compliance accounts, including compliance accounts established pursuant to the CO₂ Budget Trading Program, but not including accounts opened by participating states.

"Administrator" means the administrator of the U.S. Environmental Protection Agency or the administrator's authorized representative.

"Allocate" or "allocation" means the determination by the department of the number of CO₂ allowances recorded in the CO₂ allowance account of a CO₂ budget unit.

"Allocation year" means a calendar year for which the department allocates CO₂ allowances pursuant to Article 5 (9VAC5-140-7190 et seq.) of this part. The allocation year of each CO₂ allowance is reflected in the unique identification number given to the allowance pursuant to 9VAC5-140-7250 C.

"Allowance auction" or "auction" means an auction in which the department or its agent offers CO₂ allowances for sale.

"Attribute" means a characteristic associated with electricity generated using a particular renewable fuel, such as its generation date, facility geographic location, unit vintage, emissions output, fuel, state program eligibility, or other characteristic that can be identified, accounted for, and tracked.

"Attribute credit" means a credit that represents the attributes related to one megawatt-hour of electricity generation.

"Automated Data Acquisition and Handling System" or "DAHS" means that component of the Continuous Emissions Monitoring System (CEMS), or other emissions monitoring system approved for use under Article 8 (9VAC5-140-7330 et seq.) of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by Article 8 (9VAC5-140-7330 et seq.) of this part.

"Billing meter" means a measurement device used to measure electric or thermal output for commercial billing under a contract. The facility selling the electric or thermal output shall have different owners from the owners of the party purchasing the electric or thermal output.

"Boiler" means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

"CO₂ allowance" means a limited authorization by the department or participating state under the CO₂ Budget Trading Program to emit up to one ton of CO₂, subject to all applicable limitations contained in this part.

"CO₂ allowance deduction" or "deduct CO₂ allowances" means the permanent withdrawal of CO₂ allowances by the department or its agent from a COATS compliance account to account for the number of tons of CO₂ emitted from a CO₂ budget source for a control period or an interim control period determined in accordance with Article 8 (9VAC5-140-7330 et seq.) of this part, or for the forfeit or retirement of CO₂ allowances as provided by this part.

"CO₂ Allowance Tracking System" or "COATS" means the system by which the department or its agent records allocations, deductions, and transfers of CO₂ allowances under the CO₂ Budget Trading Program. The tracking system may also be used to track CO₂ allowance prices and emissions from affected sources.

"CO₂ Allowance Tracking System account" means an account in COATS established by the department or its agent for purposes of recording the allocation, holding, transferring, or deducting of CO₂ allowances.

"CO₂ allowance transfer deadline" means midnight of March 1 occurring after the end of the relevant control period and each relevant interim control period, or if that March 1 is not a business day, midnight of the first business day thereafter and is the deadline by which CO₂ allowances shall be submitted for recordation in a CO₂ budget source's compliance account for the source to meet the CO₂ requirements of 9VAC5-140-7050 C for a control period and each interim control period immediately preceding such deadline.

"CO₂ allowances held" or "hold CO₂ allowances" means the CO₂ allowances recorded by the department or its agent, or submitted to the department or its agent for recordation, in accordance with Article 6 (9VAC5-140-7220 et seq.) and Article 7 (9VAC5-140-7300 et seq.) of this part, in a COATS account.

"CO₂ authorized account representative" means, for a CO₂ budget source and each CO₂ budget unit at the source, the natural person who is authorized by the owners and operators of the source and all CO₂ budget units at the source, in accordance with Article 2 (9VAC5-140-7080 et seq.) of this part, to represent and legally bind each owner and operator in matters pertaining to the CO₂ Budget Trading Program or, for a general account, the natural person who is authorized, under Article 6 (9VAC5-140-7220 et seq.) of this part, to transfer or otherwise dispose of CO₂ allowances held in the general account. If the CO₂ budget source is also subject to the Acid Rain Program, CSAPR NO_X Annual Trading Program, CSAPR NO_X Ozone Season Trading Program, CSAPR SO₂ Group 1 Trading Program, or CSAPR SO₂ Group 2 Trading Program, then for a CO₂ Budget Trading Program compliance account, this natural person shall be the same person as the designated representative as defined in the respective program.

"CO₂ authorized alternate account representative" means, for a CO₂ budget source and each CO₂ budget unit at the source, the alternate natural person who is authorized by the owners and operators of the source and all CO₂ budget units at the source, in accordance with Article 2 (9VAC5-140-7080 et seq.) of this part, to represent and legally bind each owner and operator in matters pertaining to the CO₂ Budget Trading Program or, for a general account, the alternate natural person who is authorized, under Article 6 (9VAC5-140-7220 et seq.) of this part, to transfer or otherwise dispose of CO₂ allowances held in the general account. If the CO₂ budget source is also subject to the Acid Rain Program, CSAPR NO_X Annual Trading Program, CSAPR NO_X Ozone Season Trading Program, CSAPR SO₂ Group 1 Trading Program, or CSAPR SO₂ Group 2 Trading Program then, for a CO₂ Budget Trading Program compliance account, this alternate natural person shall be the same person as the alternate designated representative as defined in the respective program.

"CO₂ budget emissions limitation" means, for a CO₂ budget source, the tonnage equivalent, in CO₂ emissions in a control period or an interim control period of the CO₂ allowances available for compliance deduction for the source for a control period or an interim control period.

"CO₂ budget permit" means the portion of the legally binding permit issued by the department pursuant to 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) to a CO₂ budget source or CO₂ budget unit that specifies the CO₂ Budget Trading Program requirements applicable to the CO₂ budget source, to each CO₂ budget unit at the CO₂ budget source, and to the owners and operators and the CO₂ authorized account representative of the CO₂ budget source and each CO₂ budget unit.

"CO₂ budget source" means a source that includes one or more CO₂ budget units.

"CO₂ Budget Trading Program" means a multistate CO₂ air pollution control and emissions reduction program established according to this part and corresponding regulations in other states as a means of reducing emissions of CO₂ from CO₂ budget sources.

"CO₂ budget unit" means a unit that is subject to the CO₂ Budget Trading Program requirements under 9VAC5-140-7040.

"CO₂ cost containment reserve allowance" or "CO₂ CCR allowance" means an allowance that has been sold at an auction for the purpose of containing the cost of CO₂ allowances. CO₂ CCR allowances offered for sale at an auction are separate from and additional to CO₂ allowances allocated from the Virginia CO₂ Budget Trading Program base and adjusted budgets. CO₂ CCR allowances are subject to all applicable limitations contained in this part.

"CO₂ cost containment reserve trigger price" or "CCR trigger price" means the minimum price at which CO₂ CCR allowances are offered for sale by the department or its agent at an auction. The CCR trigger price in calendar year 2021 shall be $13. The CCR trigger price in calendar year 2022 shall be $13.91. Each calendar year thereafter, the CCR trigger price shall be 1.07 multiplied by the CCR trigger price from the previous calendar year, rounded to the nearest whole cent, as shown in Table 140-1A. Virginia's CO₂ Budget Trading Program was not active from January 1, 2024, to June 30, 2026, inclusive, and requirements of Virginia's CO₂ Budget Trading Program were not applicable during that time period, however, the CCR trigger price shall include escalations during the period the program was not active.

| Table 140-1A CO₂ CCR Trigger Price | | | --- | --- | | 2021 | $13.00 | | 2022 | $13.91 | | 2023 | $14.88 | | 2024 | $15.92 | | 2025 | $17.03 | | 2026 | $18.22 | | 2027 | $19.50 | | 2028 | $20.87 | | 2029 | $22.33 | | 2030 | $23.89 |

"CO₂ emissions containment reserve allowance" or "CO₂ ECR allowance" means a CO₂allowance that is withheld from sale at an auction by the department for the purpose of additional emission reduction in the event of lower than anticipated emission reduction costs.

"CO₂ emissions containment reserve trigger price" or "ECR trigger price" means the price below which CO₂ allowances will be withheld from sale by the department or its agent at an auction. The ECR trigger price in calendar year 2021 shall be $6.00. Each calendar year thereafter, the ECR trigger price shall be 1.07 multiplied by the ECR trigger price from the previous calendar year, rounded to the nearest whole cent, as shown in Table 140-1B. Virginia's CO₂ Budget Trading Program was not active from January 1, 2024, to June 30, 2026, inclusive, and requirements of Virginia's CO₂ Budget Trading Program were not applicable during that time period, however, the ECR trigger price shall include escalations during the period the program was not active.

| Table 140-1B CO₂ ECR Trigger Price | | | --- | --- | | 2021 | $6.00 | | 2022 | $6.42 | | 2023 | $6.87 | | 2024 | $7.35 | | 2025 | $7.86 | | 2026 | $8.41 | | 2027 | $9.00 | | 2028 | $9.63 | | 2029 | $10.30 | | 2030 | $11.02 |

"CO₂ offset allowance" means a CO₂ allowance that is awarded to the sponsor of a CO₂ emissions offset project by a participating state and is subject to the relevant compliance deduction limitations of the participating state's corresponding offset regulations as a means of reducing CO₂ from CO₂ budget sources.

"Combined cycle system" means a system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.

"Combustion turbine" means an enclosed fossil or other fuel-fired device that is comprised of a compressor (if applicable), a combustor, and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.

"Commence commercial operation" means, with regard to a unit that serves a generator, to have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation. For a unit that is a CO₂ budget unit under 9VAC5-140-7040 on the date the unit commences commercial operation, such date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified, reconstructed, or repowered. For a unit that is not a CO₂ budget unit under 9VAC5-140-7040 on the date the unit commences commercial operation, the date the unit becomes a CO₂ budget unit under 9VAC5-140-7040 shall be the unit's date of commencement of commercial operation.

"Commence operation" means to begin any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber. For a unit that is a CO₂ budget unit under 9VAC5-140-7040 on the date of commencement of operation, such date shall remain the unit's date of commencement of operation even if the unit is subsequently modified, reconstructed, or repowered. For a unit that is not a CO₂ budget unit under 9VAC5-140-7040 on the date of commencement of operation, the date the unit becomes a CO₂ budget unit under 9VAC5-140-7040 shall be the unit's date of commencement of operation.

"Compliance account" means a COATS account, established by the department or its agent for a CO₂ budget source under Article 6 ( 9VAC5-140-7220 et seq.) of this part, in which CO₂ allowances available for use by the source for a control period and each interim control period are held for the purpose of meeting the CO₂ requirements of 9VAC5-140-7050 C.

"Continuous Emissions Monitoring System" or "CEMS" means the equipment required under Article 8 (9VAC5-140-7330 et seq.) of this part to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated DAHS), a permanent record of stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with 40 CFR Part 75 and Article 8 (9VAC5-140-7330 et seq.) of this part. The following systems are types of CEMS required under Article 8 (9VAC5-140-7330 et seq.) of this part:

a. A flow monitoring system, consisting of a stack flow rate monitor and an automated DAHS and providing a permanent, continuous record of stack gas volumetric flow rate, in standard cubic feet per hour;

b. A NO_X emissions rate (or NO_X-diluent) monitoring system, consisting of a NO_X pollutant concentration monitor, a diluent gas (CO₂ or O₂) monitor, and an automated DAHS and providing a permanent, continuous record of NO_X concentration, in parts per million (ppm), diluent gas concentration, in percent CO₂ or O₂, and NO_X emissions rate, in pounds per million British thermal units (lb/MMBtu);

c. A moisture monitoring system, as defined in 40 CFR 75.11(b)(2) and providing a permanent, continuous record of the stack gas moisture content, in percent H₂O;

d. A CO₂ monitoring system, consisting of a CO₂ pollutant concentration monitor (or an O₂ monitor plus suitable mathematical equations from which the CO₂ concentration is derived) and an automated DAHS and providing a permanent, continuous record of CO₂ emissions, in percent CO₂; and

e. An O₂ monitoring system, consisting of an O₂ concentration monitor and an automated DAHS and providing a permanent, continuous record of O₂, in percent O₂.

"Control period" means a three-calendar-year time period with the exception noted in this definition. The fifth control period is from January 1, 2021, to December 31, 2023, inclusive, which is the first control period of Virginia's participation in the CO₂ Budget Trading Program. The first two calendar years of each control period are each defined as an interim control period, beginning on January 1, 2021. There shall be a one-time six-month control period from July 1, 2026, to December 31, 2026, inclusive.

"Cross State Air Pollution Rule (CSAPR) NO_X Annual Trading Program" means a multistate NO_X air pollution control and emission reduction program established in accordance with Subpart AAAAA of 40 CFR Part 97 and 40 CFR 52.38(a), including such a program that is revised in a SIP revision approved by the administrator under 40 CFR 52.38(a)(3) or (4) or that is established in a SIP revision approved by the administrator under 40 CFR 52.38(a)(5), as a means of mitigating interstate transport of fine particulates and NO_X.

"Cross State Air Pollution Rule (CSAPR) NO_X Ozone Season Trading Program" means a multistate NO_X air pollution control and emission reduction program established in accordance with Subpart BBBBB of 40 CFR Part 97 and 40 CFR 52.38(b), including such a program that is revised in a SIP revision approved by the administrator under 40 CFR 52.38(b)(3) or (4) or that is established in a SIP revision approved by the administrator under 40 CFR 52.38(b)(5), as a means of mitigating interstate transport of ozone and NO_X.

"Cross State Air Pollution Rule (CSAPR) SO₂ Group 1 Trading Program" means a multistate SO₂ air pollution control and emission reduction program established in accordance with Subpart CCCCC of 40 CFR Part 97 and 40 CFR 52.39(a), (b), (d) through (f), (j), and (k), including such a program that is revised in a SIP revision approved by the administrator under 40 CFR 52.39(d) or (e) or that is established in a SIP revision approved by the administrator under 40 CFR 52.39(f), as a means of mitigating interstate transport of fine particulates and SO₂.

"Cross State Air Pollution Rule (CSAPR) SO₂ Group 2 Trading Program" means a multistate SO₂ air pollution control and emission reduction program established in accordance with Subpart DDDDD of 40 CFR Part 97 and 40 CFR 52.39(a), (c), and (g) through (k), including such a program that is revised in a SIP revision approved by the administrator under 40 CFR 52.39(g) or (h) or that is established in a SIP revision approved by the administrator under 40 CFR 52.39(i), as a means of mitigating interstate transport of fine particulates and SO₂.

"Department" means the Virginia Department of Environmental Quality.

"Excess emissions" means any tonnage of CO₂ emitted by a CO₂ budget source during an interim control period or a control period that exceeds the CO₂ budget emissions limitation for the source.

"Excess interim emissions" means any tonnage of CO₂ emitted by a CO₂ budget source during an interim control period multiplied by 0.50 that exceeds the CO₂ budget emissions limitation for the source.

"Fossil fuel" means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

"Fossil fuel-fired" means the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than 5.0% of the annual heat input on a Btu basis during any year.

"General account" means a COATS account established under Article 6 (9VAC5-140-7220 et seq.) of this part that is not a compliance account.

"Gross generation" means the electrical output in MWe at the terminals of the generator.

"Interim control period" means a one-calendar-year time period during each of the first and second calendar years of each three-year control period. The first interim control period starts January 1, 2021, and ends December 31, 2021, inclusive. The second interim control period starts January 1, 2022, and ends December 31, 2022, inclusive. Each successive three-year control period will have two interim control periods, comprised of each of the first two calendar years of that control period. Virginia's CO₂ Budget Trading Program was not active from January 1, 2024, to June 30, 2026, inclusive, and requirements of Virginia's CO₂ Budget Trading Program were not applicable during that time period.

"Life-of-the-unit contractual arrangement" means either:

a. A unit participation power sales agreement under which a customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity or associated energy from any specified unit pursuant to a contract:

(1) For the life of the unit;

(2) For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or

(3) For a period equal to or greater than 25 years or 70% of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period; or

b. Any energy conversion or energy tolling agreement that has a primary term of 20 years or more and pursuant to which the purchaser is required to deliver fuel to the CO₂ budget source or CO₂ budget unit and is entitled to receive all of the nameplate capacity and associated energy generated by such source or unit for the entire contractual period. Such agreements shall be subject to 9VAC5-140-7325. Such purchaser shall not be considered an "owner" as defined under this section.

"Maximum potential hourly heat input" means an hourly heat input used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use Appendix D of 40 CFR Part 75 to report heat input, this value shall be calculated, in accordance with 40 CFR Part 75, using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value shall be reported, in accordance with 40 CFR Part 75, using the maximum potential flow rate and either the maximum CO₂ concentration in percent CO₂ or the minimum O₂ concentration in percent O₂.

"Minimum reserve price" means, in calendar year 2021, $2.38. Each calendar year thereafter, the minimum reserve price shall be 1.025 multiplied by the minimum reserve price from the previous calendar year, rounded to the nearest whole cent. Virginia's CO₂ Budget Trading Program was not active from January 1, 2024, to June 30, 2026, inclusive, and requirements of Virginia's CO₂ Budget Trading Program were not applicable during that time period, however, the minimum reserve price shall include escalations during the period the program was not active.

"Monitoring system" means any monitoring system that meets the requirements of Article 8 (9VAC5-140-7330 et seq.) of this part, including a CEMS, an excepted monitoring system, or an alternative monitoring system.

"Nameplate capacity" means the maximum electrical output in MWe that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings as measured in accordance with the U.S. Department of Energy standards.

"Net-electric output" means the amount of gross generation in MWh the generators produce, including output from steam turbines, combustion turbines, and gas expanders, as measured at the generator terminals, less the electricity used to operate the plant (i.e., auxiliary loads); such uses include fuel handling equipment, pumps, fans, pollution control equipment, other electricity needs, and transformer losses as measured at the transmission side of the step up transformer (e.g., the point of sale).

"Non-CO₂ budget unit" means a unit that does not meet the applicability criteria of 9VAC5-140-7040.

"Operator" means any person who operates, controls, or supervises a CO₂ budget unit or a CO₂ budget source and shall include any holding company, utility system, or plant manager of such a unit or source.

"Owner" means any of the following persons:

a. Any holder of any portion of the legal or equitable title in a CO₂ budget unit;

b. Any holder of a leasehold interest in a CO₂ budget unit, other than a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the CO₂ budget unit;

c. Any purchaser of power from a CO₂ budget unit under a life-of-the-unit contractual arrangement in which the purchaser controls the dispatch of the unit; or

d. With respect to any general account, any person who has an ownership interest with respect to the CO₂ allowances held in the general account and who is subject to the binding agreement for the CO₂ authorized account representative to represent that person's ownership interest with respect to the CO₂ allowances.

"Participating state" means a state that has established a corresponding regulation as part of the CO₂ Budget Trading Program.

"Receive" or "receipt of" means, when referring to the department or its agent, to come into possession of a document, information, or correspondence (whether sent in writing or by authorized electronic transmission) as indicated in an official correspondence log, or by a notation made on the document, information, or correspondence by the department or its agent in the regular course of business.

"Recordation," "record," or "recorded" means, with regard to CO₂ allowances, the movement of CO₂ allowances by the department or its agent from one COATS account to another for purposes of allocation, transfer, or deduction.

"Reserve price" means the minimum acceptable price for each CO₂ allowance in a specific auction. The reserve price at an auction is either the minimum reserve price or the CCR trigger price, as specified in Article 9 (9VAC5-140-7410 et seq.) of this part.

"Serial number" means, when referring to CO₂ allowances, the unique identification number assigned to each CO₂ allowance by the department or its agent under 9VAC5-140-7250 C.

"Source" means any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any air pollutant. A source, including a source with multiple units, shall be considered a single facility.

"Submit" or "serve" means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

a. In person;

b. By United States Postal Service; or

c. By other means of dispatch or transmission and delivery.

Compliance with any "submission," "service," or "mailing" deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

"Ton" or "tonnage" means any short ton, or 2,000 pounds. For the purpose of determining compliance with the CO₂ requirements of 9VAC5-140-7050 C, total tons for an interim control period or a control period shall be calculated as the sum of all recorded hourly emissions, or the tonnage equivalent of the recorded hourly emissions rates, in accordance with Article 8 (9VAC5-140-7330 et seq.) of this part, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons. A short ton is equal to 0.9072 metric tons.

"Total useful energy" means the sum of gross electrical generation and useful net thermal energy.

"Undistributed CO₂ allowances" means CO₂ allowances originally allocated to a set aside account as pursuant to 9VAC5-140-7210 that were not distributed.

"Unit" means a fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.

"Unit operating day" means a calendar day in which a unit combusts any fuel.

"Unsold CO₂ allowances" means CO₂ allowances that have been made available for sale in an auction conducted by the department or its agent, but not sold.

"Useful net thermal energy" means energy:

a. In the form of direct heat, steam, hot water, or other thermal form that is used in the production and beneficial measures for heating, cooling, humidity control, process use, or other thermal end use energy requirements, excluding thermal energy used in the power production process (e.g., house loads and parasitic loads); and

b. For which fuel or electricity would otherwise be consumed.

"Virginia CO₂ Budget Trading Program adjusted budget" means an adjusted budget determined in accordance with 9VAC5-140-7210 and is the annual amount of CO₂ tons available in Virginia for allocation in a given allocation year, in accordance with the CO₂ Budget Trading Program. CO₂ CCR allowances offered for sale at an auction are separate from and additional to CO₂ allowances allocated from the Virginia CO₂ Budget Trading Program adjusted budget.

"Virginia CO₂ Budget Trading Program base budget" means the budget specified in 9VAC5-140-7190. CO₂ CCR allowances offered for sale at an auction are separate from and additional to CO₂ allowances allocated from the Virginia CO₂ Budget Trading Program base budget.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6020, reinstated 9VAC5-140-7020, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7030 Measurements, abbreviations, and acronyms

Measurements, abbreviations, and acronyms used in this part are defined as follows:

Btu - British thermal unit.

CAA - federal Clean Air Act.

CCR - cost containment reserve.

CEMS - Continuous Emissions Monitoring System.

COATS - CO₂ Allowance Tracking System.

CO₂ - carbon dioxide.

DAHS - Data Acquisition and Handling System.

H₂O - water.

lb - pound.

LME - low mass emissions.

MMBtu - million British thermal units.

MW - megawatt.

MWe - megawatt electrical.

MWh - megawatt hour.

NO_X - nitrogen oxides.

O₂ - oxygen.

ORIS - Office of Regulatory Information Systems.

QA/QC - quality assurance/quality control.

ppm - parts per million.

SO₂ - sulfur dioxide.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6030, reinstated 9VAC5-140-7030, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7040 Applicability

A. Any fossil fuel-fired unit that serves an electricity generator with a nameplate capacity equal to or greater than 25 MWe shall be a CO₂ budget unit, and any source that includes one or more such units shall be a CO₂ budget source, subject to the requirements of this part.

B. Exempt from the requirements of this part is any fossil fuel CO₂ budget source located at or adjacent to and physically interconnected with a manufacturing facility that, prior to January 1, 2020, and in every subsequent calendar year, met either of the following requirements:

1. Supplies less than or equal to 10% of its annual net electrical generation to the electric grid; or

2. Supplies less than or equal to 15% of its annual total useful energy to any entity other than the manufacturing facility to which the CO₂ budget source is interconnected.

For the purpose of subdivision 1 of this subsection, annual net electrical generation shall be determined as follows:

(ES – EP) / EG x 100

Where:

ES = electricity sales to the grid from the CO₂ budget source

EP = electricity purchases from the grid by the CO₂ budget source and the manufacturing facility to which the CO₂ budget source is interconnected

EG = electricity generation

Such exempt CO₂ budget source shall have an operating permit containing the applicable restrictions under this subsection. An application for such operating permit shall be submitted to the department no later than January 1, 2022.

C. Virginia's CO₂ Budget Trading Program was not active from January 1, 2024, to June 30, 2026, inclusive, and requirements of Virginia's CO₂ Budget Trading Program were not applicable during that time period.

D. There is a one-time six-month control period from July 1, 2026, to December 31, 2026, inclusive.

E. When referenced in permits issued by the board or department prior to July 1, 2026, the following citations have the following meanings:

1. 9VAC5-140-6010 means 9VAC5-140-7010.

2. 9VAC5-140-6020 means 9VAC5-140-7020.

3. 9VAC5-140-6030 means 9VAC5-140-7030.

4. 9VAC5-140-6040 means 9VAC5-140-7040.

5. 9VAC5-140-6050 means 9VAC5-140-7050.

6. 9VAC5-140-6060 means 9VAC5-140-7060.

7. 9VAC5-140-6070 means 9VAC5-140-7070.

8. 9VAC5-140-6080 means 9VAC5-140-7080.

9. 9VAC5-140-6090 means 9VAC5-140-7090.

10. 9VAC5-140-6100 means 9VAC5-140-7100.

11. 9VAC5-140-6110 means 9VAC5-140-7110.

12. 9VAC5-140-6120 means 9VAC5-140-7120.

13. 9VAC5-140-6130 means 9VAC5-140-7130.

14. 9VAC5-140-6140 means 9VAC5-140-7140.

15. 9VAC5-140-6150 means 9VAC5-140-7150.

16. 9VAC5-140-6160 means 9VAC5-140-7160.

17. 9VAC5-140-6170 means 9VAC5-140-7170.

18. 9VAC5-140-6180 means 9VAC5-140-7180.

19. 9VAC5-140-6190 means 9VAC5-140-7190.

20. 9VAC5-140-6200 means 9VAC5-140-7200.

21. 9VAC5-140-6210 means 9VAC5-140-7210.

22. 9VAC5-140-6220 means 9VAC5-140-7220.

23. 9VAC5-140-6230 means 9VAC5-140-7230.

24. 9VAC5-140-6240 means 9VAC5-140-7240.

25. 9VAC5-140-6250 means 9VAC5-140-7250.

26. 9VAC5-140-6260 means 9VAC5-140-7260.

27. 9VAC5-140-6270 means 9VAC5-140-7270.

28. 9VAC5-140-6280 means 9VAC5-140-7280.

29. 9VAC5-140-6290 means 9VAC5-140-7290.

30. 9VAC5-140-6300 means 9VAC5-140-7300.

31. 9VAC5-140-6310 means 9VAC5-140-7310.

32. 9VAC5-140-6320 means 9VAC5-140-7320.

33. 9VAC5-140-6325 means 9VAC5-140-7325.

34. 9VAC5-140-6330 means 9VAC5-140-7330.

35. 9VAC5-140-6340 means 9VAC5-140-7340.

36. 9VAC5-140-6350 means 9VAC5-140-7350.

37. 9VAC5-140-6360 means 9VAC5-140-7360.

38. 9VAC5-140-6370 means 9VAC5-140-7370.

39. 9VAC5-140-6380 means 9VAC5-140-7380.

40. 9VAC5-140-6410 means 9VAC5-140-7410.

41. 9VAC5-140-6420 means 9VAC5-140-7420.

42. 9VAC5-140-6440 means 9VAC5-140-7440.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6040, reinstated 9VAC5-140-7040, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7050 Standard requirements

A. Permit requirements shall be as follows.

1. The CO₂ authorized account representative of each CO₂ budget source required to have an operating permit pursuant to 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation) and each CO₂ budget unit required to have an operating permit pursuant to 9VAC5-85 shall:

a. Submit to the department a complete CO₂ budget permit application under 9VAC5-140-7160 in accordance with the deadlines specified in 9VAC5-140-7150; and

b. Submit in a timely manner any supplemental information that the department determines is necessary in order to review the CO₂ budget permit application and issue or deny a CO₂ budget permit.

2. The owners and operators of each CO₂ budget source required to have an operating permit pursuant to 9VAC5-85 , Permits for Stationary Sources of Pollutants Subject to Regulation, and each CO₂ budget unit required to have an operating permit pursuant to 9VAC5-85 for the source shall have a CO₂ budget permit and operate the CO₂ budget source and the CO₂ budget unit at the source in compliance with such CO₂ budget permit.

B. Monitoring requirements shall be as follows.

1. The owners and operators and, to the extent applicable, the CO₂ authorized account representative of each CO₂ budget source and each CO₂ budget unit at the source shall comply with the monitoring requirements of Article 8 (9VAC5-140-7330 et seq.) of this part.

2. The emissions measurements recorded and reported in accordance with Article 8 (9VAC5-140-7330 et seq.) of this part shall be used to determine compliance by the unit with the CO₂ requirements under subsection C of this section.

C. CO₂ requirements shall be as follows.

1. The owners and operators of each CO₂ budget source and each CO₂ budget unit at the source shall hold CO₂ allowances available for compliance deductions under 9VAC5-140-7260, as of the CO₂ allowance transfer deadline, in the source's compliance account in an amount not less than the total CO₂ emissions that have been generated as a result of combusting fossil fuel for an interim control period or control period from all CO₂ budget units at the source, less the CO₂ allowances deducted to meet the requirements of subdivision 2 of this subsection, with respect to the previous two interim control periods as determined in accordance with Article 6 (9VAC5-140-7220 et seq.) and Article 8 (9VAC5-140-7330 et seq.) of this part.

2. The owners and operators of each CO₂ budget source and each CO₂ budget unit at the source shall hold CO₂ allowances available for compliance deductions under 9VAC5-140-7260, as of the CO₂ allowance transfer deadline, in the source's compliance account in an amount not less than the total CO₂ emissions that have been generated as a result of combusting fossil fuel for the interim control period from all CO₂ budget units at the source multiplied by 0.50, as determined in accordance with Article 6 (9VAC5-140-7220 et seq.) and Article 8 (9VAC5-140-7330 et seq.) of this part.

3. Each ton of CO₂ emitted in excess of the CO₂ budget emissions limitation for a control period shall constitute a separate violation of this part and applicable state law.

4. Each ton of excess interim emissions shall constitute a separate violation of this part and applicable state law.

5. A CO₂ budget unit shall be subject to the requirements under subdivision 1 of this subsection starting on the later of January 1, 2021, or the date on which the unit commences operation.

6. CO₂ allowances shall be held in, deducted from, or transferred among COATS accounts in accordance with Article 5 (9VAC5-140-7190 et seq.), Article 6 (9VAC5-140-7220 et seq.), and Article 7 (9VAC5-140-7300 et seq.) of this part.

7. A CO₂ allowance shall not be deducted, to comply with the requirements under subdivision 1 or 2 of this subsection, for a control period that ends prior to the year for which the CO₂ allowance was allocated.

8. A CO₂ allowance under the CO₂ Budget Trading Program is a limited authorization by the department to emit one ton of CO₂ in accordance with the CO₂ Budget Trading Program. No provision of the CO₂ Budget Trading Program, the CO₂ budget permit application, or the CO₂ budget permit or any provision of law shall be construed to limit the authority of the department or a participating state to terminate or limit such authorization.

9. A CO₂ allowance under the CO₂ Budget Trading Program does not constitute a property right.

D. The owners and operators of a CO₂ budget source that has excess emissions in a control period shall:

1. Forfeit the CO₂ allowances required for deduction under 9VAC5-140-7260 D 1; and

2. Pay any fine, penalty, or assessment or comply with any other remedy imposed under 9VAC5-140-7260 D 2.

E. Recordkeeping and reporting requirements shall be as follows:

1. Unless otherwise provided, the owners and operators of the CO₂ budget source and each CO₂ budget unit at the source shall keep on site at the source each of the following documents for a period of 10 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 10 years, in writing by the department.

a. The account certificate of representation for the CO₂ authorized account representative for the source and each CO₂ budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation, in accordance with 9VAC5-140-7110, provided that the certificate and documents shall be retained on site at the source beyond such 10-year period until such documents are superseded because of the submission of a new account certificate of representation changing the CO₂ authorized account representative.

b. All emissions monitoring information, in accordance with Article 8 (9VAC5-140-7330 et seq.) of this part and 40 CFR 75.57.

c. Copies of all reports, compliance certifications, and other submissions and all records made or required under the CO₂ Budget Trading Program.

d. Copies of all documents used to complete a CO₂ budget permit application and any other submission under the CO₂ Budget Trading Program or to demonstrate compliance with the requirements of the CO₂ Budget Trading Program.

2. The CO₂ authorized account representative of a CO₂ budget source and each CO₂ budget unit at the source shall submit the reports and compliance certifications required under the CO₂ Budget Trading Program, including those under Article 4 (9VAC5-140-7170 et seq.) of this part.

F. Liability requirements shall be as follows.

1. No permit revision shall excuse any violation of the requirements of the CO₂ Budget Trading Program that occurs prior to the date that the revision takes effect.

2. Any provision of the CO₂ Budget Trading Program that applies to a CO₂ budget source, including a provision applicable to the CO₂ authorized account representative of a CO₂ budget source, shall also apply to the owners and operators of such source and of the CO₂ budget units at the source.

3. Any provision of the CO₂ Budget Trading Program that applies to a CO₂ budget unit, including a provision applicable to the CO₂ authorized account representative of a CO₂ budget unit, shall also apply to the owners and operators of such unit.

G. No provision of the CO₂ Budget Trading Program, a CO₂ budget permit application, or a CO₂ budget permit shall be construed as exempting or excluding the owners and operators and, to the extent applicable, the CO₂ authorized account representative of the CO₂ budget source or CO₂ budget unit from compliance with any other provisions of applicable state and federal law or regulations.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6050, reinstated 9VAC5-140-7050, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7060 Computation of time

A. Unless otherwise stated, any time period scheduled, under the CO₂ Budget Trading Program, to begin on the occurrence of an act or event shall begin on the day the act or event occurs.

B. Unless otherwise stated, any time period scheduled, under the CO₂ Budget Trading Program, to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.

C. Unless otherwise stated, if the final day of any time period, under the CO₂ Budget Trading Program, falls on a weekend or a state or federal holiday, the time period shall be extended to the next business day.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6060, reinstated 9VAC5-140-7060, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7070 Severability

If any provision of this part, or its application to any particular person or circumstances, is held invalid, the remainder of this part, and the application thereof to other persons or circumstances, shall not be affected thereby.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6070, reinstated 9VAC5-140-7070, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 2 CO2 Authorized Account Representative for CO2 Budget Sources

9VAC5-140-7080 Authorization and responsibilities of the CO2 authorized account representative

A. Except as provided under 9VAC5-140-7090, each CO₂ budget source, including all CO₂ budget units at the source, shall have one and only one CO₂ authorized account representative, with regard to all matters under the CO₂ Budget Trading Program concerning the source or any CO₂ budget unit at the source.

B. The CO₂ authorized account representative of the CO₂ budget source shall be selected by an agreement binding on the owners and operators of the source and all CO₂ budget units at the source and must act in accordance with the account certificate of representation under 9VAC5-140-7110.

C. Upon receipt by the department or its agent of a complete account certificate of representation under 9VAC5-140-7110, the CO₂ authorized account representative of the source shall represent and, by his representations, actions, inactions, or submissions, legally bind each owner and operator of the CO₂ budget source represented and each CO₂ budget unit at the source in all matters pertaining to the CO₂ Budget Trading Program, notwithstanding any agreement between the CO₂ authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the CO₂ authorized account representative by the department or a court regarding the source or unit.

D. No CO₂ budget permit shall be issued, and no COATS account shall be established for a CO₂ budget source, until the department or its agent has received a complete account certificate of representation under 9VAC5-140-7110 for a CO₂ authorized account representative of the source and the CO₂ budget units at the source.

E. Each submission under the CO₂ Budget Trading Program shall be submitted, signed, and certified by the CO₂ authorized account representative for each CO₂ budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the CO₂ authorized account representative: "I am authorized to make this submission on behalf of the owners and operators of the CO₂ budget sources or CO₂ budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

F. The department or its agent will accept or act on a submission made on behalf of owners or operators of a CO₂ budget source or a CO₂ budget unit only if the submission has been made, signed, and certified in accordance with subsection E of this section.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6080, reinstated 9VAC5-140-7080, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7090 CO2 authorized alternate account representative

A. An account certificate of representation may designate one and only one CO₂ authorized alternate account representative who may act on behalf of the CO₂ authorized account representative. The agreement by which the CO₂ authorized alternate account representative is selected shall include a procedure for authorizing the CO₂ authorized alternate account representative to act in lieu of the CO₂ authorized account representative.

B. Upon receipt by the department or its agent of a complete account certificate of representation under 9VAC5-140-7110, any representation, action, inaction, or submission by the CO₂ authorized alternate account representative shall be deemed to be a representation, action, inaction, or submission by the CO₂ authorized account representative.

C. Except in this section and 9VAC5-140-7080 A, 9VAC5-140-7100, 9VAC5-140-7110, and 9VAC5-140-7230, whenever the term "CO₂ authorized account representative" is used in this part, the term shall be construed to include the CO₂ authorized alternate account representative.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6090, reinstated 9VAC5-140-7090, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7100 Changing the CO2 authorized account representative and the CO2 authorized alternate account representative; changes in the owners and operators

A. The CO₂ authorized account representative may be changed at any time upon receipt by the department or its agent of a superseding complete account certificate of representation under 9VAC5-140-7110. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO₂ authorized account representative or CO₂ authorized alternate account representative prior to the time and date when the department or its agent receives the superseding account certificate of representation shall be binding on the new CO₂ authorized account representative and the owners and operators of the CO₂ budget source and the CO₂ budget units at the source.

B. The CO₂ authorized alternate account representative may be changed at any time upon receipt by the department or its agent of a superseding complete account certificate of representation under 9VAC5-140-7110. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO₂ authorized alternate account representative or CO₂ authorized alternate account representative prior to the time and date when the department or its agent receives the superseding account certificate of representation shall be binding on the new CO₂ authorized alternate account representative and the owners and operators of the CO₂ budget source and the CO₂ budget units at the source.

C. Changes in the owners and operators shall be addressed as follows.

1. In the event a new owner or operator of a CO₂ budget source or a CO₂ budget unit is not included in the list of owners and operators submitted in the account certificate of representation, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the CO₂ authorized account representative and any CO₂ authorized alternate account representative of the source or unit, and the decisions, orders, actions, and inactions of the department, as if the new owner or operator were included in such list.

2. Within 30 days following any change in the owners and operators of a CO₂ budget source or a CO₂ budget unit, including the addition of a new owner or operator, the CO₂ authorized account representative or CO₂ authorized alternate account representative shall submit a revision to the account certificate of representation amending the list of owners and operators to include the change.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6100, reinstated 9VAC5-140-7100, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7110 Account certificate of representation

A. A complete account certificate of representation for a CO₂ authorized account representative or a CO₂ authorized alternate account representative shall include the following elements in a format prescribed by the department or its agent:

1. Identification of the CO₂ budget source and each CO₂ budget unit at the source for which the account certificate of representation is submitted;

2. The name, address, email address, telephone number, and facsimile transmission number of the CO₂ authorized account representative and any CO₂ authorized alternate account representative;

3. A list of the owners and operators of the CO₂ budget source and of each CO₂ budget unit at the source;

4. The following certification statement by the CO₂ authorized account representative and any CO₂ authorized alternate account representative: "I certify that I was selected as the CO₂ authorized account representative or CO₂ authorized alternate account representative, as applicable, by an agreement binding on the owners and operators of the CO₂ budget source and each CO₂ budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO₂ Budget Trading Program on behalf of the owners and operators of the CO₂ budget source and of each CO₂ budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the department or a court regarding the source or unit."; and

5. The signature of the CO₂ authorized account representative and any CO₂ authorized alternate account representative and the dates signed.

B. Unless otherwise required by the department or its agent, documents of agreement referred to in the account certificate of representation shall not be submitted to the department or its agent. Neither the department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6110, reinstated 9VAC5-140-7110, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7120 Objections concerning the CO2 authorized account representative

A. Once a complete account certificate of representation under 9VAC5-140-7110 has been submitted and received, the department and its agent will rely on the account certificate of representation unless and until the department or its agent receives a superseding complete account certificate of representation under 9VAC5-140-7110.

B. Except as provided in 9VAC5-140-7100 A or B, no objection or other communication submitted to the department or its agent concerning the authorization, or any representation, action, inaction, or submission of the CO₂ authorized account representative shall affect any representation, action, inaction, or submission of the CO₂ authorized account representative or the finality of any decision or order by the department or its agent under the CO₂ Budget Trading Program.

C. Neither the department nor its agent will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any CO₂ authorized account representative, including private legal disputes concerning the proceeds of CO₂ allowance transfers.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6120, reinstated 9VAC5-140-7120, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7130 Delegation by CO2 authorized account representative and CO2 authorized alternate account representative

A. A CO₂ authorized account representative may delegate, to one or more natural persons, his authority to make an electronic submission to the department or its agent under this part.

B. A CO₂ authorized alternate account representative may delegate, to one or more natural persons, his authority to make an electronic submission to the department or its agent under this part.

C. To delegate authority to make an electronic submission to the department or its agent in accordance with subsections A and B of this section, the CO₂ authorized account representative or CO₂ authorized alternate account representative, as appropriate, shall submit to the department or its agent a notice of delegation, in a format prescribed by the department that includes the following elements:

1. The name, address, email address, telephone number, and facsimile transmission number of such CO₂ authorized account representative or CO₂ authorized alternate account representative;

2. The name, address, email address, telephone number, and facsimile transmission number of each such natural person, referred to as the "electronic submission agent";

3. For each such natural person, a list of the type of electronic submissions under subsection A or B of this section for which authority is delegated to him; and

4. The following certification statement by such CO₂ authorized account representative or CO₂ authorized alternate account representative: "I agree that any electronic submission to the department or its agent that is by a natural person identified in this notice of delegation and of a type listed for such electronic submission agent in this notice of delegation and that is made when I am a CO₂ authorized account representative or CO₂ authorized alternate account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 9VAC5-140-7130 D shall be deemed to be an electronic submission by me. Until this notice of delegation is superseded by another notice of delegation under 9VAC5-140-7130 D, I agree to maintain an email account and to notify the department or its agent immediately of any change in my email address unless all delegation authority by me under 9VAC5-140-7130 is terminated."

D. A notice of delegation submitted under subsection C of this section shall be effective, with regard to the CO₂ authorized account representative or CO₂ authorized alternate account representative identified in such notice, upon receipt of such notice by the department or its agent and until receipt by the department or its agent of a superseding notice of delegation by such CO₂ authorized account representative or CO₂ authorized alternate account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.

E. Any electronic submission covered by the certification in subdivision C 4 of this section and made in accordance with a notice of delegation effective under subsection D of this section shall be deemed to be an electronic submission by the CO₂ authorized account representative or CO₂ authorized alternate account representative submitting such notice of delegation.

F. A CO₂ authorized account representative may delegate, to one or more natural persons, his authority to review information in the CO₂ allowance tracking system under this part.

G. A CO₂ authorized alternate account representative may delegate, to one or more natural persons, his authority to review information in the CO₂ allowance tracking system under this part.

H. To delegate authority to review information in the CO₂ allowance tracking system in accordance with subsections F and G of this section, the CO₂ authorized account representative or CO₂ authorized alternate account representative, as appropriate, shall submit to the department or its agent a notice of delegation, in a format prescribed by the department that includes the following elements:

1. The name, address, email address, telephone number, and facsimile transmission number of such CO₂ authorized account representative or CO₂ authorized alternate account representative;

2. The name, address, email address, telephone number, and facsimile transmission number of each such natural person, referred to as the "reviewer";

3. For each such natural person, a list of the type of information under subsection F or G of this section for which authority is delegated to him; and

4. The following certification statement by such CO₂ authorized account representative or CO₂ authorized alternate account representative: "I agree that any information that is reviewed by a natural person identified in this notice of delegation and of a type listed for such information accessible by the reviewer in this notice of delegation and that is made when I am a CO₂ authorized account representative or CO₂ authorized alternate account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under subsection I of this section shall be deemed to be a reviewer by me. Until this notice of delegation is superseded by another notice of delegation under subsection I of this section, I agree to maintain an email account and to notify the department or its agent immediately of any change in my email address unless all delegation authority by me under this section is terminated."

I. A notice of delegation submitted under subsection H of this section shall be effective, with regard to the CO₂ authorized account representative or CO₂ authorized alternate account representative identified in such notice, upon receipt of such notice by the department or its agent and until receipt by the department or its agent of a superseding notice of delegation by such CO₂ authorized account representative or CO₂ authorized alternate account representative as appropriate. The superseding notice of delegation may replace any previously identified reviewer, add a new reviewer, or eliminate entirely any delegation of authority.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6130, reinstated 9VAC5-140-7130, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 3 Permits

9VAC5-140-7140 CO2 budget permit requirements

A. Each CO₂ budget source shall have a permit issued by the department pursuant to 9VAC5-85 (Permits for Stationary Sources of Pollutants Subject to Regulation).

B. Each CO₂ budget permit shall contain all applicable CO₂ Budget Trading Program requirements and shall be a complete and distinguishable portion of the permit under subsection A of this section.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6140, reinstated 9VAC5-140-7140, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7150 Submission of CO2 budget permit applications

For any CO₂ budget source, the CO₂ authorized account representative shall submit a complete CO₂ budget permit application under 9VAC5-140-7160 covering such CO₂ budget source to the department by the later of January 1, 2021, or 12 months before the date on which the CO₂ budget source, or a new unit at the source, commences operation.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6150, reinstated 9VAC5-140-7150, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7160 Information requirements for CO2 budget permit applications

A complete CO₂ budget permit application shall include the following elements concerning the CO₂ budget source for which the application is submitted, in a format prescribed by the department:

1. Identification of the CO₂ budget source, including plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration of the U.S. Department of Energy if applicable;

2. Identification of each CO₂ budget unit at the CO₂ budget source; and

3. The standard requirements under 9VAC5-140-7050.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6160, reinstated 9VAC5-140-7160, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 4 Compliance Certification

9VAC5-140-7170 Compliance certification report

A. For each control period in which a CO₂ budget source is subject to the CO₂ requirements of 9VAC5-140-7050 C, the CO₂ authorized account representative of the source shall submit to the department by March 1 following the relevant control period, a compliance certification report. A compliance certification report is not required as part of the compliance obligation during an interim control period.

B. The CO₂ authorized account representative shall include in the compliance certification report under subsection A of this section the following elements, in a format prescribed by the department:

1. Identification of the source and each CO₂ budget unit at the source;

2. At the CO₂ authorized account representative's option, the serial numbers of the CO₂ allowances that are to be deducted from the source's compliance account under 9VAC5-140-7260 for the control period; and

3. The compliance certification under subsection C of this section.

C. In the compliance certification report under subsection A of this section, the CO₂ authorized account representative shall certify, based on reasonable inquiry of those persons with primary responsibility for operating the source and the CO₂ budget units at the source in compliance with the CO₂ Budget Trading Program, whether the source and each CO₂ budget unit at the source for which the compliance certification is submitted was operated during the calendar years covered by the report in compliance with the requirements of the CO₂ Budget Trading Program, including:

1. Whether the source was operated in compliance with the CO₂ requirements of 9VAC5-140-7050 C;

2. Whether the monitoring plan applicable to each unit at the source has been maintained to reflect the actual operation and monitoring of the unit, and contains all information necessary to attribute CO₂ emissions to the unit, in accordance with Article 8 ( 9VAC5-140-7330 et seq.) of this part;

3. Whether all the CO₂ emissions from the units at the source were monitored or accounted for through the missing data procedures and reported in the quarterly monitoring reports, including whether conditional data were reported in the quarterly reports in accordance with Article 8 (9VAC5-140-7330 et seq.) of this part. If conditional data were reported, the owner or operator shall indicate whether the status of all conditional data has been resolved and all necessary quarterly report resubmissions have been made;

4. Whether the facts that form the basis for certification under Article 8 (9VAC5-140-7330 et seq.) of this part of each monitor at each unit at the source, or for using an excepted monitoring method or alternative monitoring method approved under Article 8 (9VAC5-140-7330 et seq.) of this part, if any, have changed; and

5. If a change is required to be reported under subdivision 4 of this subsection, specify the nature of the change, the reason for the change, when the change occurred, and how the unit's compliance status was determined subsequent to the change, including what method was used to determine emissions when a change mandated the need for monitor recertification.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6170, reinstated 9VAC5-140-7170, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7180 Action on compliance certifications

A. The department or its agent may review and conduct independent audits concerning any compliance certification or any other submission under the CO₂ Budget Trading Program and make appropriate adjustments of the information in the compliance certifications or other submissions.

B. The department or its agent may deduct CO₂ allowances from or transfer CO₂ allowances to a source's compliance account based on the information in the compliance certifications or other submissions, as adjusted under subsection A of this section.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6180, reinstated 9VAC5-140-7180, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 5 CO2 Allowance Allocations

9VAC5-140-7190 Base budgets

A. The Virginia CO₂ Budget Trading Program base budget shall be as follows:

1. For 2021, the Virginia CO₂ Budget Trading Program base budget is 27.16 million tons.

2. For 2022, the Virginia CO₂ Budget Trading Program base budget is 26.32 million tons.

3. For 2023, the Virginia CO₂ Budget Trading Program base budget is 25.48 million tons.

4. For 2024, the Virginia CO₂ Budget Trading Program base budget is 24.64 million tons.

5. For 2025, the Virginia CO₂ Budget Trading Program base budget is 23.80 million tons.

6. For 2026, the Virginia CO₂ Budget Trading Program base budget is half of 22.96 million tons, or 11.48 million tons, for the period from July 1, 2026, to December 31, 2026, inclusive.

7. For 2027, the Virginia CO₂ Budget Trading Program base budget is 22.12 million tons.

8. For 2028, the Virginia CO₂ Budget Trading Program base budget is 21.28 million tons.

9. For 2029, the Virginia CO₂ Budget Trading Program base budget is 20.44 million tons.

10. For 2030, the Virginia CO₂ Budget Trading Program base budget is 19.60 million tons.

B. For 2031 and each succeeding calendar year, the Virginia CO₂ Budget Trading Program base budget is 19.60 million tons unless modified as a result of a program review and future regulatory action.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6190, reinstated 9VAC5-140-7190, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7200 Undistributed and unsold CO2 allowances

A. The department will retire undistributed CO₂ allowances at the end of each control period.

B. The department will retire unsold CO₂ allowances at the end of each control period.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6200, reinstated 9VAC5-140-7200, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7210 CO2 allowance allocations

A. The department will allocate the Virginia CO₂ Budget Trading Program base budget CO₂ allowances to the Virginia Auction Account.

B. For allocation years 2021 through 2030, the Virginia CO₂ Budget Trading Program adjusted budget shall be the maximum number of allowances available for allocation in a given allocation year, except for CO₂ CCR allowances.

C. In the event that the CCR is triggered during an auction, the department will allocate CO₂ CCR allowances, separate from and additional to the Virginia CO₂ Budget Trading Program base budget set forth in 9VAC5-140-7190 to the Virginia Auction Account. The CCR allocation is for the purpose of containing the cost of CO₂ allowances. The department will allocate CO₂ CCR allowances as follows:

1. On or before January 1, 2021, and each year thereafter, the department will allocate CO₂ CCR allowances equal to the quantity in Table 140-5A.

| Table 140-5A CO₂ CCR Allowances from 2021 Forward | | | --- | --- | | 2021 | 2.716 million tons | | 2022 | 2.632 million tons | | 2023 | 2.548 million tons | | 2024 | 2.464 million tons | | 2025 | 2.380 million tons | | 2026 | 1.148 million tons | | 2027 | 2.212 million tons | | 2028 | 2.128 million tons | | 2029 | 2.044 million tons | | 2030 and each year thereafter | 1.960 million tons |

2. CCR allowances allocated for a calendar year will be automatically transferred to the Virginia Auction Account to be auctioned. Following each auction, all CO₂ CCR allowances sold at auction will be transferred to winning bidders' accounts as CO₂ CCR allowances.

3. Unsold CO₂ CCR allowances will remain in the Virginia Auction Account to be re-offered for sale at auction within the same calendar year. CO₂ CCR allowances remaining unsold at the end of the calendar year in which they were originated will be made unavailable for sale at future auctions.

D. In the event that the ECR is triggered during an auction, the department will authorize its agent to withhold CO₂ allowances as needed. The department will further authorize its agent to convert and transfer any CO₂ allowances that have been withheld from any auction into the Virginia ECR account. The ECR withholding is for the purpose of additional emission reduction in the event of lower than anticipated emission reduction costs. The department's agent will withhold CO₂ ECR allowances as follows:

1. If the condition in 9VAC5-140-7420 C 1 is met at an auction, then the maximum number of CO₂ ECR allowances that will be withheld from that auction will be equal to the quantity shown in Table 140-5B minus the total quantity of CO₂ ECR allowances that have been withheld from any prior auction in that calendar year. Any CO₂ ECR allowances withheld from an auction will be transferred into the Virginia ECR account.

| Table 140-5B ECR Allowances from 2021 Forward | | | --- | --- | | 2021 | 2.716 million tons | | 2022 | 2.632 million tons | | 2023 | 2.548 million tons | | 2024 | 2.464 million tons | | 2025 | 2.380 million tons | | 2026 | 1.148 million tons | | 2027 | 2.212 million tons | | 2028 | 2.128 million tons | | 2029 | 2.044 million tons | | 2030 and each year thereafter | 1.960 million tons |

2. Allowances that have been transferred into the Virginia ECR account shall not be withdrawn.

E. The adjustment for banked allowances will be as follows. On March 15, 2021, the department may determine the adjustment for banked allowances quantity for allocation years 2021 through 2025 through the application of the following formula:

TABA = ((TA – TAE)/5) x RS%

Where:

TABA is the adjustment for banked allowances quantity in tons.

TA, adjustment, is the total quantity of allowances of vintage years prior to 2021 held in general and compliance accounts, including compliance accounts established pursuant to the CO₂ Budget Trading Program but not including accounts opened by participating states, as reflected in the CO₂ Allowance Tracking System on March 15, 2021.

TAE, adjustment emissions, is the total quantity of 2018, 2019, and 2020 emissions from all CO₂ budget sources in all participating states, reported pursuant to CO₂ Budget Trading Program as reflected in the CO₂ Allowance Tracking System on March 15, 2021.

RS% is Virginia budget divided by the regional budget.

F. CO₂ Budget Trading Program adjusted budgets for 2021 through 2025 shall be determined as follows: on April 15, 2021, the department will determine the Virginia CO₂ Budget Trading Program adjusted budgets for the 2021 through 2025 allocation years by the following formula:

AB = BB – TABA

Where:

AB is the Virginia CO₂ Budget Trading Program adjusted budget.

BB is the Virginia CO₂ Budget Trading Program base budget.

TABA is the adjustment for banked allowances quantity in tons.

G. The department or its agent will publish the CO₂ trading program adjusted budgets for the 2021 through 2025 allocation years.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6210, reinstated 9VAC5-140-7210, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 6 CO2 Allowance Tracking System

9VAC5-140-7220 CO2 Allowance Tracking System accounts

A. Consistent with 9VAC5-140-7230 A, the department or its agent will establish one compliance account for each CO₂ budget source. Allocations of CO₂ allowances pursuant to Article 5 (9VAC5-140-7190 et seq.) of this part and deductions or transfers of CO₂ allowances pursuant to 9VAC5-140-7180, 9VAC5-140-7260, 9VAC5-140-7280, or Article 7 (9VAC5-140-7300 et seq.) of this part will be recorded in the compliance accounts in accordance with this section.

B. Consistent with 9VAC5-140-7230 B, the department or its agent will establish, upon request, a general account for any person. Transfers of CO₂ allowances pursuant to Article 7 (9VAC5-140-7300 et seq.) of this part will be recorded in the general account in accordance with this article.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6220, reinstated 9VAC5-140-7220, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7230 Establishment of accounts

A. Upon receipt of a complete account certificate of representation under 9VAC5-140-7110, the department or its agent will establish an allowance account and a compliance account for each CO₂ budget source for which an account certificate of representation was submitted.

B. General accounts shall operate as follows.

1. Any person may apply to open a general account for the purpose of holding and transferring CO₂ allowances. An application for a general account may designate one and only one CO₂ authorized account representative and one and only one CO₂ authorized alternate account representative who may act on behalf of the CO₂ authorized account representative. The agreement by which the CO₂ authorized alternate account representative is selected shall include a procedure for authorizing the CO₂ authorized alternate account representative to act in lieu of the CO₂ authorized account representative. A complete application for a general account shall be submitted to the department or its agent and shall include the following elements in a format prescribed by the department or its agent:

a. Name, address, email address, telephone number, and facsimile transmission number of the CO₂ authorized account representative and any CO₂ authorized alternate account representative;

b. At the option of the CO₂ authorized account representative, organization name and type of organization;

c. A list of all persons subject to a binding agreement for the CO₂ authorized account representative or any CO₂ authorized alternate account representative to represent their ownership interest with respect to the CO₂ allowances held in the general account;

d. The following certification statement by the CO₂ authorized account representative and any CO₂ authorized alternate account representative: "I certify that I was selected as the CO₂ authorized account representative or the CO₂ authorized alternate account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to CO₂ allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO₂ Budget Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the department or its agent or a court regarding the general account.";

e. The signature of the CO₂ authorized account representative and any CO₂ authorized alternate account representative and the dates signed; and

f. Unless otherwise required by the department or its agent, documents of agreement referred to in the application for a general account shall not be submitted to the department or its agent. Neither the department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

2. Authorization of the CO₂ authorized account representative shall be as follows:

a. Upon receipt by the department or its agent of a complete application for a general account under subdivision 1 of this subsection:

(1) The department or its agent will establish a general account for the person for whom the application is submitted.

(2) The CO₂ authorized account representative and any CO₂ authorized alternate account representative for the general account shall represent and, by his representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to CO₂ allowances held in the general account in all matters pertaining to the CO₂ Budget Trading Program, notwithstanding any agreement between the CO₂ authorized account representative or any CO₂ authorized alternate account representative and such person. Any such person shall be bound by any order or decision issued to the CO₂ authorized account representative or any CO₂ authorized alternate account representative by the department or its agent or a court regarding the general account.

(3) Any representation, action, inaction, or submission by any CO₂ authorized alternate account representative shall be deemed to be a representation, action, inaction, or submission by the CO₂ authorized account representative.

b. Each submission concerning the general account shall be submitted, signed, and certified by the CO₂ authorized account representative or any CO₂ authorized alternate account representative for the persons having an ownership interest with respect to CO₂ allowances held in the general account. Each such submission shall include the following certification statement by the CO₂ authorized account representative or any CO₂ authorized alternate account representative: "I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the CO₂ allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

c. The department or its agent will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with subdivision 2 b of this subsection.

3. Changing CO₂ authorized account representative and CO₂ authorized alternate account representative, and changes in persons with ownership interest, shall be accomplished as follows:

a. The CO₂ authorized account representative for a general account may be changed at any time upon receipt by the department or its agent of a superseding complete application for a general account under subdivision 1 of this subsection. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO₂ authorized account representative, or the previous CO₂ authorized alternate account representative, prior to the time and date when the department or its agent receives the superseding application for a general account shall be binding on the new CO₂ authorized account representative and the persons with an ownership interest with respect to the CO₂ allowances in the general account.

b. The CO₂ authorized alternate account representative for a general account may be changed at any time upon receipt by the department or its agent of a superseding complete application for a general account under subdivision 1 of this subsection. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO₂ authorized account representative, or the previous CO₂ authorized alternate account representative, prior to the time and date when the department or its agent receives the superseding application for a general account shall be binding on the new alternate CO₂ authorized account representative and the persons with an ownership interest with respect to the CO₂ allowances in the general account.

c. In the event a new person having an ownership interest with respect to CO₂ allowances in the general account is not included in the list of such persons in the application for a general account, such new person shall be deemed to be subject to and bound by the application for a general account, the representations, actions, inactions, and submissions of the CO₂ authorized account representative and any CO₂ authorized alternate account representative, and the decisions, orders, actions, and inactions of the department or its agent, as if the new person were included in such list.

d. Within 30 days following any change in the persons having an ownership interest with respect to CO₂ allowances in the general account, including the addition or deletion of persons, the CO₂ authorized account representative or any CO₂ authorized alternate account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the CO₂ allowances in the general account to include the change.

4. Objections concerning CO₂ authorized account representative shall be governed as follows:

a. Once a complete application for a general account under subdivision 1 of this subsection has been submitted and received, the department or its agent will rely on the application unless and until a superseding complete application for a general account under subdivision 1 of this subsection is received by the department or its agent.

b. Except as provided in subdivisions 3 a and 3 b of this subsection, no objection or other communication submitted to the department or its agent concerning the authorization, or any representation, action, inaction, or submission of the CO₂ authorized account representative or any CO₂ authorized alternate account representative for a general account shall affect any representation, action, inaction, or submission of the CO₂ authorized account representative or any CO₂ authorized alternate account representative or the finality of any decision or order by the department or its agent under the CO₂ Budget Trading Program.

c. Neither the department nor its agent will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the CO₂ authorized account representative or any CO₂ authorized alternate account representative for a general account, including private legal disputes concerning the proceeds of CO₂ allowance transfers.

5. Delegation by CO₂ authorized account representative and CO₂ authorized alternate account representative shall be accomplished as follows:

a. A CO₂ authorized account representative may delegate, to one or more natural persons, his authority to make an electronic submission to the department or its agent provided for under this article and Article 7 ( 9VAC5-140-7300 et seq.) of this part.

b. A CO₂ authorized alternate account representative may delegate, to one or more natural persons, his authority to make an electronic submission to the department or its agent provided for under this article and Article 7 ( 9VAC5-140-7300 et seq.) of this part.

c. To delegate authority to make an electronic submission to the department or its agent in accordance with subdivisions 5 a and 5 b of this subsection, the CO₂ authorized account representative or CO₂ authorized alternate account representative, as appropriate, shall submit to the department or its agent a notice of delegation, in a format prescribed by the department that includes the following elements:

(1) The name, address, email address, telephone number, and facsimile transmission number of such CO₂ authorized account representative or CO₂ authorized alternate account representative;

(2) The name, address, email address, telephone number, and facsimile transmission number of each such natural person, referred to as "electronic submission agent";

(3) For each such natural person, a list of the type of electronic submissions under subdivision 5 c (1) or 5 c (2) of this subsection for which authority is delegated to him; and

(4) The following certification statement by such CO₂ authorized account representative or CO₂ authorized alternate account representative: "I agree that any electronic submission to the department or its agent that is by a natural person identified in this notice of delegation and of a type listed for such electronic submission agent in this notice of delegation and that is made when I am a CO₂ authorized account representative or CO₂ authorized alternate account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 9VAC5-140-7230 B 5 d shall be deemed to be an electronic submission by me. Until this notice of delegation is superseded by another notice of delegation under 9VAC5-140-7230 B 5 d, I agree to maintain an email account and to notify the department or its agent immediately of any change in my email address unless all delegation authority by me under 9VAC5-140-7230 B 5 is terminated."

d. A notice of delegation submitted under subdivision 5 c of this subsection shall be effective, with regard to the CO₂ authorized account representative or CO₂ authorized alternate account representative identified in such notice, upon receipt of such notice by the department or its agent and until receipt by the department or its agent of a superseding notice of delegation by such CO₂ authorized account representative or CO₂ authorized alternate account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.

e. Any electronic submission covered by the certification in subdivision 5 c (4) of this subsection and made in accordance with a notice of delegation effective under subdivision 5 d of this subsection shall be deemed to be an electronic submission by the CO₂ authorized account representative or CO₂ authorized alternate account representative submitting such notice of delegation.

C. The department or its agent will assign a unique identifying number to each account established under subsection A or B of this section.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6230, reinstated 9VAC5-140-7230, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7240 CO2 Allowance Tracking System responsibilities of CO2 authorized account representative

Following the establishment of a COATS account, all submissions to the department or its agent pertaining to the account, including submissions concerning the deduction or transfer of CO₂ allowances in the account, shall be made only by the CO₂ authorized account representative for the account.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6240, reinstated 9VAC5-140-7240, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7250 Recordation of CO2 allowance allocations

A. By January 1 of each calendar year, the department or its agent will record in the following accounts:

1. In each CO₂ budget source's allowance account, the CO₂ allowances allocated to those sources by the department prior to being auctioned; and

2. In each CO₂ budget source's compliance account, the allowances purchased at auction by CO₂ budget units at the source under 9VAC5-140-7210 A.

B. Each year the department or its agent will record CO₂ allowances, as allocated to the unit under Article 5 (9VAC5-140-7190 et seq.) of this part, in the compliance account for the year after the last year for which CO₂ allowances were previously allocated to the compliance account. Each year, the department or its agent will also record CO₂ allowances, as allocated under Article 5 (9VAC5-140-7190 et seq.) of this part, in an allocation set-aside for the year after the last year for which CO₂ allowances were previously allocated to an allocation set-aside.

C. Serial numbers for allocated CO₂ allowances shall be managed as follows. When allocating CO₂ allowances to and recording them in an account, the department or its agent will assign each CO₂ allowance a unique identification number that will include digits identifying the year for which the CO₂ allowance is allocated.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6250, reinstated 9VAC5-140-7250, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7260 Compliance

A. CO₂ allowances that meet the following criteria are available to be deducted for a CO₂ budget source to comply with the CO₂ requirements of 9VAC5-140-7050 C for a control period or an interim control period.

1. The CO₂ allowances are of allocation years that fall within a prior control period, the same control period, or the same interim control period for which the allowances will be deducted.

2. The CO₂ allowances are held in the CO₂ budget source's compliance account as of the CO₂ allowance transfer deadline for that control period or interim control period or are transferred into the compliance account by a CO₂ allowance transfer correctly submitted for recordation under 9VAC5-140-7300 by the CO₂ allowance transfer deadline for that control period or interim control period.

3. For CO₂ offset allowances generated by other participating states, the number of CO₂ offset allowances that are available to be deducted in order for a CO₂ budget source to comply with the CO₂ requirements of 9VAC5-140-7050 C for a control period or an interim control period shall not exceed 3.3% of the CO₂ budget source's CO₂ emissions for that control period, or may not exceed 3.3% of 0.50 times the CO₂ budget source's CO₂ emissions for an interim control period, as determined in accordance with this article and Article 8 (9VAC5-140-7330 et seq.) of this part.

4. The CO₂ allowances are not necessary for deductions for excess emissions for a prior control period under subsection D of this section.

B. Following the recordation, in accordance with 9VAC5-140-7310, of CO₂ allowance transfers submitted for recordation in the CO₂ budget source's compliance account by the CO₂ allowance transfer deadline for a control period or an interim control period, the department or its agent will deduct CO₂ allowances available under subsection A of this section to cover the source's CO₂ emissions, as determined in accordance with Article 8 ( 9VAC5-140-7330 et seq.) of this part, for the control period or interim control period, as follows:

1. Until the amount of CO₂ allowances deducted equals the number of tons of total CO₂ emissions, or 0.50 times the number of tons of total CO₂ emissions for an interim control period, determined in accordance with Article 8 (9VAC5-140-7330 et seq.) of this part, from all CO₂ budget units at the CO₂ budget source for the control period or interim control period; or

2. If there are insufficient CO₂ allowances to complete the deductions in subdivision 1 of this subsection, until no more CO₂ allowances available under subsection A of this section remain in the compliance account.

C. Identification of available CO₂ allowances by serial number and default compliance deductions shall be managed as follows:

1. The CO₂ authorized account representative for a source's compliance account may request that specific CO₂ allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period or interim control period in accordance with subsection B or D of this section. Such identification shall be made in the compliance certification report submitted in accordance with 9VAC5-140-7170.

2. The department or its agent will deduct CO₂ allowances for an interim control period or a control period from the CO₂ budget source's compliance account, in the absence of an identification or in the case of a partial identification of available CO₂ allowances by serial number under subdivision 1 of this subsection, as follows: Any CO₂ allowances that are available for deduction under subdivision 1 of this subsection. CO₂ allowances shall be deducted in chronological order (i.e., CO₂ allowances from earlier allocation years shall be deducted before CO₂ allowances from later allocation years). In the event that some, but not all, CO₂ allowances from a particular allocation year are to be deducted, CO₂ allowances shall be deducted by serial number, with lower serial number allowances deducted before higher serial number allowances.

D. Deductions for excess emissions shall be managed as follows.

1. After making the deductions for compliance under subsection B of this section, the department or its agent will deduct from the CO₂ budget source's compliance account a number of CO₂ allowances equal to three times the number of the source's excess emissions. In the event that a source has insufficient CO₂ allowances to cover three times the number of the source's excess emissions, the source shall be required to immediately transfer sufficient allowances into its compliance account.

2. Any CO₂ allowance deduction required under subdivision 1 of this subsection shall not affect the liability of the owners and operators of the CO₂ budget source or the CO₂ budget units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violation, as ordered under applicable state law. The following guidelines will be followed in assessing fines, penalties, or other obligations:

a. For purposes of determining the number of days of violation, if a CO₂ budget source has excess emissions for a control period, each day in the control period constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.

b. Each ton of excess emissions is a separate violation.

c. For purposes of determining the number of days of violation, if a CO₂ budget source has excess interim emissions for an interim control period, each day in the interim control period constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.

d. Each ton of excess interim emissions is a separate violation.

3. The propriety of the department's determination that a CO₂ budget source had excess emissions and the concomitant deduction of CO₂ allowances from that CO₂ budget source's account may be later challenged in the context of the initial administrative enforcement, or any civil or criminal judicial action arising from or encompassing that excess emissions violation. The commencement or pendency of any administrative enforcement, or civil or criminal judicial action arising from or encompassing that excess emissions violation will not act to prevent the department or its agent from initially deducting the CO₂ allowances resulting from the department's original determination that the relevant CO₂ budget source has had excess emissions. Should the department's determination of the existence or extent of the CO₂ budget source's excess emissions be revised either by a settlement or final conclusion of any administrative or judicial action, the department will act as follows:

a. In any instance where the department's determination of the extent of excess emissions was too low, the department will take further action under subdivisions 1 and 2 of this subsection to address the expanded violation.

b. In any instance where the department's determination of the extent of excess emissions was too high, the department will distribute to the relevant CO₂ budget source a number of CO₂ allowances equaling the number of CO₂ allowances deducted which are attributable to the difference between the original and final quantity of excess emissions. Should such CO₂ budget source's compliance account no longer exist, the CO₂ allowances will be provided to a general account selected by the owner or operator of the CO₂ budget source from which they were originally deducted.

E. The department or its agent will record in the appropriate compliance account all deductions from such an account pursuant to subsections B and D of this section.

F. Action by the department on submissions shall be as follows:

1. The department may review and conduct independent audits concerning any submission under the CO₂ Budget Trading Program and make appropriate adjustments of the information in the submissions.

2. The department may deduct CO₂ allowances from or transfer CO₂ allowances to a source's compliance account based on information in the submissions, as adjusted under subdivision 1 of this subsection.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6260, reinstated 9VAC5-140-7260, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7270 Banking

Each CO₂ allowance that is held in a compliance account or a general account will remain in such account unless and until the CO₂ allowance is deducted or transferred under 9VAC5-140-7180, 9VAC5-140-7260, 9VAC5-140-7280, or Article 7 (9VAC5-140-7300 et seq.) of this part.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6270, reinstated 9VAC5-140-7270, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7280 Account error

The department or its agent may, at its sole discretion and on its own motion, correct any error in any COATS account. Within 10 business days of making such correction, the department or its agent will notify the CO₂ authorized account representative for the account.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6280, reinstated 9VAC5-140-7280, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7290 Closing of general accounts

A. A CO₂ authorized account representative of a general account may instruct the department or its agent to close the account by submitting a statement requesting deletion of the account from the COATS and by correctly submitting for recordation under 9VAC5-140-7300 a CO₂ allowance transfer of all CO₂ allowances in the account to one or more other COATS accounts.

B. If a general account shows no activity for a period of one year or more and does not contain any CO₂ allowances, the department or its agent may notify the CO₂ authorized account representative for the account that the account will be closed in the COATS 30 business days after the notice is sent. The account will be closed after the 30-day period unless before the end of the 30-day period the department or its agent receives a correctly submitted transfer of CO₂ allowances into the account under 9VAC5-140-7300 or a statement submitted by the CO₂ authorized account representative demonstrating to the satisfaction of the department or its agent good cause as to why the account should not be closed. The department or its agent will have sole discretion to determine if the owner or operator of the unit demonstrated that the account should not be closed.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6290, reinstated 9VAC5-140-7290, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 7 CO2 Allowance Transfers

9VAC5-140-7300 Submission of CO2 allowance transfers

The CO₂ authorized account representatives seeking recordation of a CO₂ allowance transfer shall submit the transfer to the department or its agent. To be considered correctly submitted, the CO₂ allowance transfer shall include the following elements in a format specified by the department or its agent:

1. The numbers identifying both the transferor and transferee accounts;

2. A specification by serial number of each CO₂ allowance to be transferred;

3. The printed name and signature of the CO₂ authorized account representative of the transferor account and the date signed;

4. The date of the completion of the last sale or purchase transaction for the allowance, if any; and

5. The purchase or sale price of the allowance that is the subject of a sale or purchase transaction under subdivision 4 of this section.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6300, reinstated 9VAC5-140-7300, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7310 Recordation

A. Within five business days of receiving a CO₂ allowance transfer, except as provided in subsection B of this section, the department or its agent will record a CO₂ allowance transfer by moving each CO₂ allowance from the transferor account to the transferee account as specified by the request, provided that:

1. The transfer is correctly submitted under 9VAC5-140-7300; and

2. The transferor account includes each CO₂ allowance identified by serial number in the transfer.

B. A CO₂ allowance transfer into or out of a compliance account that is submitted for recordation following the CO₂ allowance transfer deadline and that includes any CO₂ allowances that are of allocation years that fall within a control period prior to or the same as the control period to which the CO₂ allowance transfer deadline applies will not be recorded until after completion of the process pursuant to 9VAC5-140-7260 B.

C. Where a CO₂ allowance transfer submitted for recordation fails to meet the requirements of subsection A of this section, the department or its agent will not record such transfer.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6310, reinstated 9VAC5-140-7310, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7320 Notification

A. Within five business days of recordation of a CO₂ allowance transfer under 9VAC5-140-7310, the department or its agent will notify each party to the transfer. Notice will be given to the CO₂ authorized account representatives of both the transferor and transferee accounts.

B. Within 10 business days of receipt of a CO₂ allowance transfer that fails to meet the requirements of 9VAC5-140-7310 A, the department or its agent will notify the CO₂ authorized account representatives of both accounts subject to the transfer of (i) a decision not to record the transfer and (ii) the reasons for such nonrecordation.

C. Nothing in this section shall preclude the submission of a CO₂ allowance transfer for recordation following notification of nonrecordation.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6320, reinstated 9VAC5-140-7320, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7325 Life-of-the-unit contractual arrangements

A. A power purchaser entered into a life-of-the-unit contractual arrangement as described in subdivision b of the definition of "life-of-the-unit contractual arrangement" with a CO₂ budget source or unit shall be responsible for acquiring and transferring all allowances to the CO₂ budget source or unit that are necessary for demonstrating compliance with the CO₂ budget trading program.

B. The CO₂ budget source or unit shall provide a copy of the energy conversion or energy tolling agreement to the department within six months of July 10, 2020. If such agreement is subject to third-party disclosure restrictions, the CO₂ budget source or unit shall provide purchaser within 10 days prior written notice of its intention to disclose the agreement to the department and request confidential treatment from the public disclosure of such agreement. The department will grant a request for confidential treatment pursuant to applicable statutory and regulatory requirements addressing confidential information.

C. The CO₂ budget source or unit shall be responsible for compliance with and otherwise be subject to all other requirements of this part and the CO₂ budget trading program.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6325, reinstated 9VAC5-140-7325, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 8 Monitoring, Reporting, and Recordkeeping

9VAC5-140-7330 General requirements

A. The owners and operators, and to the extent applicable, the CO₂ authorized account representative of a CO₂ budget unit shall comply with the monitoring, recordkeeping, and reporting requirements as provided in this section and all applicable sections of 40 CFR Part 75. Where referenced in this article, the monitoring requirements of 40 CFR Part 75 shall be adhered to in a manner consistent with the purpose of monitoring and reporting CO₂ mass emissions pursuant to this part. For purposes of complying with such requirements, the definitions in 9VAC5-140-7020 and in 40 CFR 72.2 shall apply, and the terms "affected unit," "designated representative," and "CEMS" in 40 CFR Part 75 shall be replaced by the terms "CO₂ budget unit," "CO₂ authorized account representative," and "CEMS," respectively, as defined in 9VAC5-140-7020. For units not subject to an Acid Rain emissions limitation, the term "administrator" in 40 CFR Part 75 shall be replaced with "the department or its agent." Owners or operators of a CO₂ budget unit who monitor a non-CO₂ budget unit pursuant to the common, multiple, or bypass stack procedures in 40 CFR 75.72(b)(2)(ii), or 40 CFR 75.16 (b)(2)(ii)(B) pursuant to 40 CFR 75.13, for purposes of complying with this part, shall monitor and report CO₂ mass emissions from such non-CO₂ budget units according to the procedures for CO₂ budget units established in this article.

B. The owner or operator of each CO₂ budget unit shall meet the following general requirements for installation, certification, and data accounting.

1. Install all monitoring systems necessary to monitor CO₂ mass emissions in accordance with 40 CFR Part 75, except for equation G-1. Equation G-1 in Appendix G shall not be used to determine CO₂ emissions under this part. This may require systems to monitor CO₂ concentration, stack gas flow rate, O₂ concentration, heat input, and fuel flow rate.

2. Successfully complete all certification tests required under 9VAC5-140-7340 and meet all other requirements of this section and 40 CFR Part 75 applicable to the monitoring systems under subdivision 1 of this subsection.

3. Record, report, and quality-assure the data from the monitoring systems under subdivision 1 of this subsection.

C. The owner or operator shall meet the monitoring system certification and other requirements of subsection B of this section on or before the following dates. The owner or operator shall record, report, and quality-assure the data from the monitoring systems under subdivision B 1 of this section on and after the following dates:

1. The owner or operator of a CO₂ budget unit, except for a CO₂ budget unit under subdivision 2 of this subsection, shall comply with the requirements of this section by January 1, 2021.

2. The owner or operator of a CO₂ budget unit that commences commercial operation July 1, 2021, shall comply with the requirements of this section by (i) January 1, 2022, or (ii) the earlier of 90 unit operating days after the date on which the unit commences commercial operation or 180 calendar days after the date on which the unit commences commercial operation.

3. For the owner or operator of a CO₂ budget unit for which construction of a new stack or flue installation is completed after the applicable deadline under subdivision 1 or 2 of this subsection by the earlier of (i) 90 unit operating days after the date on which emissions first exit to the atmosphere through the new stack or flue or (ii) 180 calendar days after the date on which emissions first exit to the atmosphere through the new stack or flue.

D. Data shall be reported as follows:

1. Except as provided in subdivision 2 of this subsection, the owner or operator of a CO₂ budget unit that does not meet the applicable compliance date set forth in subsection C of this section for any monitoring system under subdivision B 1 of this section shall, for each such monitoring system, determine, record, and report maximum potential, or as appropriate minimum potential, values for CO₂ concentration, CO₂ emissions rate, stack gas moisture content, fuel flow rate, heat input, and any other parameter required to determine CO₂ mass emissions in accordance with 40 CFR 75.31(b)(2) or (c)(3) or Section 2.4 of Appendix D of 40 CFR Part 75 as applicable.

2. The owner or operator of a CO₂ budget unit that does not meet the applicable compliance date set forth in subdivision C 3 of this section for any monitoring system under subdivision B 1 of this section shall, for each such monitoring system, determine, record, and report substitute data using the applicable missing data procedures in Subpart D, or Appendix D of 40 CFR Part 75, in lieu of the maximum potential, or as appropriate minimum potential, values for a parameter if the owner or operator demonstrates that there is continuity between the data streams for that parameter before and after the construction or installation under subdivision C 3 of this section.

a. CO₂ budget units subject to an Acid Rain emissions limitation or CSAPR NO_X Ozone Season Trading Program that qualify for the optional SO₂, NO_X, and CO₂ (for Acid Rain) or NO_X (for CSAPR NO_X Ozone Season Trading Program) emissions calculations for low mass emissions (LME) units under 40 CFR 75.19 and report emissions for such programs using the calculations under 40 CFR 75.19, shall also use the CO₂ emissions calculations for LME units under 40 CFR 75.19 for purposes of compliance with these regulations.

b. CO₂ budget units subject to an Acid Rain emissions limitation that do not qualify for the optional SO₂, NO_X, and CO₂ (for Acid Rain) or NO_X (for CSAPR NO_X Ozone Season Trading Program) emissions calculations for LME units under 40 CFR 75.19 shall not use the CO₂ emissions calculations for LME units under 40 CFR 75.19 for purposes of compliance with these regulations.

c. CO₂ budget units not subject to an Acid Rain emissions limitation shall qualify for the optional CO₂ emissions calculation for LME units under 40 CFR 75.19, provided that they emit less than 100 tons of NO_X annually and no more than 25 tons of SO₂ annually.

3. The owner or operator of a CO₂ budget unit shall report net-electric output data to the department as required by Article 5 (9VAC5-140-7190 et seq.) of this part.

E. Prohibitions shall be as follows.

1. No owner or operator of a CO₂ budget unit shall use any alternative monitoring system, alternative reference method, or any other alternative for the required CEMS without having obtained prior written approval in accordance with 9VAC5-140-7380.

2. No owner or operator of a CO₂ budget unit shall operate the unit so as to discharge, or allow to be discharged, CO₂ emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this article and 40 CFR Part 75.

3. No owner or operator of a CO₂ budget unit shall disrupt the CEMS, any portion thereof, or any other approved emissions monitoring method, and thereby avoid monitoring and recording CO₂ mass emissions discharged into the atmosphere, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this article and 40 CFR Part 75.

4. No owner or operator of a CO₂ budget unit shall retire or permanently discontinue use of the CEMS, any component thereof, or any other approved emissions monitoring system under this article, except under any one of the following circumstances:

a. The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this article and 40 CFR Part 75, by the department for use at that unit that provides emissions data for the same pollutant or parameter as the retired or discontinued monitoring system; or

b. The CO₂ authorized account representative submits notification of the date of certification testing of a replacement monitoring system in accordance with 9VAC5-140-7340 D 3 a.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6330, reinstated 9VAC5-140-7330, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7340 Initial certification and recertification procedures

A. The owner or operator of a CO₂ budget unit shall be exempt from the initial certification requirements of this section for a monitoring system under 9VAC5-140-7330 B 1 if the following conditions are met:

1. The monitoring system has been previously certified in accordance with 40 CFR Part 75; and

2. The applicable quality-assurance and quality-control requirements of 40 CFR 75.21 and Appendix B and Appendix D of 40 CFR Part 75 are fully met for the certified monitoring system described in subdivision 1 of this subsection.

B. The recertification provisions of this section shall apply to a monitoring system under 9VAC5-140-7330 B 1 exempt from initial certification requirements under subsection A of this section.

C. Notwithstanding subsection A of this section, if the administrator has previously approved a petition under 40 CFR 75.72(b)(2)(ii), or 40 CFR 75.16(b)(2)(ii)(B) as pursuant to 40 CFR 75.13 for apportioning the CO₂ emissions rate measured in a common stack or a petition under 40 CFR 75.66 for an alternative requirement in 40 CFR Part 75, the CO₂ authorized account representative shall submit the petition to the department under 9VAC5-140-7380 A to determine whether the approval applies under this program.

D. Except as provided in subsection A of this section, the owner or operator of a CO₂ budget unit shall comply with the following initial certification and recertification procedures for a CEMS and an excepted monitoring system under Appendix D of 40 CFR Part 75 and under 9VAC5-140-7330 B 1. The owner or operator of a unit that qualifies to use the low mass emissions excepted monitoring methodology in 40 CFR 75.19 or that qualifies to use an alternative monitoring system under Subpart E of 40 CFR Part 75 shall comply with the procedures in subsection E or F of this section, respectively.

1. For initial certification, the owner or operator shall ensure that each CEMS required under 9VAC5-140-7330 B 1, which includes the automated DAHS, successfully completes all of the initial certification testing required under 40 CFR 75.20 by the applicable deadlines specified in 9VAC5-140-7330 C. In addition, whenever the owner or operator installs a monitoring system to meet the requirements of this article in a location where no such monitoring system was previously installed, initial certification in accordance with 40 CFR 75.20 is required.

2. For recertification, the following requirements shall apply.

a. Whenever the owner or operator makes a replacement, modification, or change in a certified CEMS under 9VAC5-140-7330 B 1 that the administrator or the department determines significantly affects the ability of the system to accurately measure or record CO₂ mass emissions or to meet the quality-assurance and quality-control requirements of 40 CFR 75.21 or Appendix B to 40 CFR Part 75, the owner or operator shall recertify the monitoring system according to 40 CFR 75.20(b).

b. For systems using stack measurements such as stack flow, stack moisture content, CO₂ or O₂ monitors, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that the administrator or the department determines to significantly change the flow or concentration profile, the owner or operator shall recertify the CEMS according to 40 CFR 75.20(b). Examples of changes that require recertification include replacement of the analyzer, change in location or orientation of the sampling probe or site, or change of flow rate monitor polynomial coefficients.

3. The approval process for initial certifications and recertification shall be as follows: subdivisions 3 a through 3 d of this subsection apply to both initial certification and recertification of a monitoring system under 9VAC5-140-7330 B 1. For recertifications, replace the words "certification" and "initial certification" with the word "recertification," replace the word "certified" with "recertified," and proceed in the manner prescribed in 40 CFR 75.20(b)(5) and (g)(7) in lieu of subdivision 3 e of this subsection.

a. The CO₂ authorized account representative shall submit to the department or its agent, the appropriate EPA Regional Office and the administrator a written notice of the dates of certification in accordance with 9VAC5-140-7360.

b. The CO₂ authorized account representative shall submit to the department or its agent a certification application for each monitoring system. A complete certification application shall include the information specified in 40 CFR 75.63.

c. The provisional certification date for a monitor shall be determined in accordance with 40 CFR 75.20(a)(3). A provisionally certified monitor may be used under the CO₂ Budget Trading Program for a period not to exceed 120 days after receipt by the department of the complete certification application for the monitoring system or component thereof under subdivision 3 b of this subsection. Data measured and recorded by the provisionally certified monitoring system or component thereof, in accordance with the requirements of 40 CFR Part 75, will be considered valid quality-assured data, retroactive to the date and time of provisional certification, provided that the department does not invalidate the provisional certification by issuing a notice of disapproval within 120 days of receipt of the complete certification application by the department.

d. The department will issue a written notice of approval or disapproval of the certification application to the owner or operator within 120 days of receipt of the complete certification application under subdivision 3 b of this subsection. In the event the department does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of 40 CFR Part 75 and is included in the certification application will be deemed certified for use under the CO₂ Budget Trading Program.

(1) If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of 40 CFR Part 75, then the department will issue a written notice of approval of the certification application within 120 days of receipt.

(2) If the certification application is incomplete, then the department will issue a written notice of incompleteness that sets a reasonable date by which the CO₂ authorized account representative shall submit the additional information required to complete the certification application. If the CO₂ authorized account representative does not comply with the notice of incompleteness by the specified date, then the department may issue a notice of disapproval under subdivision 3 d (3) of this subsection. The 120-day review period shall not begin before receipt of a complete certification application.

(3) If the certification application shows that any monitoring system or component thereof does not meet the performance requirements of 40 CFR Part 75, or if the certification application is incomplete and the requirement for disapproval under subdivision 3 d (2) of this subsection is met, then the department will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the department and the data measured and recorded by each uncertified monitoring system or component thereof shall not be considered valid quality assured data beginning with the date and hour of provisional certification. The owner or operator shall follow the procedures for loss of certification in subdivision 3 e of this subsection for each monitoring system or component thereof, which is disapproved for initial certification.

(4) The department may issue a notice of disapproval of the certification status of a monitor in accordance with 9VAC5-140-7350 B.

e. If the department issues a notice of disapproval of a certification application under subdivision 3 d (3) of this subsection or a notice of disapproval of certification status under subdivision 3 d (3) of this subsection, then:

(1) The owner or operator shall substitute the following values for each disapproved monitoring system, for each hour of unit operation during the period of invalid data beginning with the date and hour of provisional certification and continuing until the time, date, and hour specified under 40 CFR 75.20(a)(5)(i) or 40 CFR 75.20(g)(7): (i) for units using or intending to monitor for CO₂ mass emissions using heat input or for units using the low mass emissions excepted methodology under 40 CFR 75.19, the maximum potential hourly heat input of the unit; or (ii) for units intending to monitor for CO₂ mass emissions using a CO₂ pollutant concentration monitor and a flow monitor, the maximum potential concentration of CO₂ and the maximum potential flow rate of the unit under Section 2.1 of Appendix A of 40 CFR Part 75;

(2) The CO₂ authorized account representative shall submit a notification of certification retest dates and a new certification application in accordance with subdivisions 3 a and 3 b of this subsection; and

(3) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the department's notice of disapproval, no later than 30 unit operating days after the date of issuance of the notice of disapproval.

E. The owner or operator of a unit qualified to use the low mass emissions excepted methodology under 9VAC5-140-7330 D 3 shall meet the applicable certification and recertification requirements of 40 CFR 75.19(a)(2), 40 CFR 75.20(h), and this section. If the owner or operator of such a unit elects to certify a fuel flow meter system for heat input determinations, the owner or operator shall also meet the certification and recertification requirements in 40 CFR 75.20(g).

F. The CO₂ authorized account of each unit for which the owner or operator intends to use an alternative monitoring system approved by the administrator and, if applicable, the department under Subpart E of 40 CFR Part 75 shall comply with the applicable notification and application procedures of 40 CFR 75.20(f).

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6340, reinstated 9VAC5-140-7340, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7350 Out-of-control periods

A. Whenever any monitoring system fails to meet the quality assurance/quality control (QA/QC) requirements or data validation requirements of 40 CFR Part 75, data shall be substituted using the applicable procedures in Subpart D or Appendix D of 40 CFR Part 75.

B. Whenever both an audit of a monitoring system and a review of the initial certification or recertification application reveal that any monitoring system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under 9VAC5-140-7340 or the applicable provisions of 40 CFR Part 75, both at the time of the initial certification or recertification application submission and at the time of the audit, the department or administrator will issue a notice of disapproval of the certification status of such monitoring system. For the purposes of this subsection, an audit shall be either a field audit or an audit of any information submitted to the department or the administrator. By issuing the notice of disapproval, the department or administrator revokes prospectively the certification status of the monitoring system. The data measured and recorded by the monitoring system shall not be considered valid quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests for the monitoring system. The owner or operator shall follow the initial certification or recertification procedures in 9VAC5-140-7340 for each disapproved monitoring system.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6350, reinstated 9VAC5-140-7350, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7360 Notifications

The CO₂ authorized account representative for a CO₂ budget unit shall submit written notice to the department and the administrator in accordance with 40 CFR 75.61.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6360, reinstated 9VAC5-140-7360, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7370 Recordkeeping and reporting

A. The CO₂ authorized account representative shall comply with all recordkeeping and reporting requirements in this section, the applicable recordkeeping and reporting requirements under 40 CFR 75.73, and the requirements of 9VAC5-140-7080 E.

B. The owner or operator of a CO₂ budget unit shall submit a monitoring plan in the manner prescribed in 40 CFR 75.62.

C. The CO₂ authorized account representative shall submit an application to the department within 45 days after completing all CO₂monitoring system initial certification or recertification tests required under 9VAC5-140-7340, including the information required under 40 CFR 75.63 and 40 CFR 75.53(e) and (f).

D. The CO₂ authorized account representative shall submit quarterly reports, as follows:

1. The CO₂ authorized account representative shall report the CO₂ mass emissions data for the CO₂ budget unit, in an electronic format prescribed by the department unless otherwise prescribed by the department for each calendar quarter.

2. The CO₂ authorized account representative shall submit each quarterly report to the department or its agent within 30 days following the end of the calendar quarter covered by the report. Quarterly reports shall be submitted in the manner specified in Subpart H of 40 CFR Part 75 and 40 CFR 75.64. Quarterly reports shall be submitted for each CO₂ budget unit, or group of units using a common stack, and shall include all of the data and information required in Subpart G of 40 CFR Part 75, except for opacity, heat input, NO_X, and SO₂ provisions.

3. The CO₂ authorized account representative shall submit to the department or its agent a compliance certification in support of each quarterly report based on reasonable inquiry of those persons with primary responsibility for ensuring that all of the unit's emissions are correctly and fully monitored. The certification shall state that:

a. The monitoring data submitted were recorded in accordance with the applicable requirements of this article and 40 CFR Part 75, including the quality assurance procedures and specifications;

b. For a unit with add-on CO₂ emissions controls and for all hours where data are substituted in accordance with 40 CFR 75.34(a)(1), the add-on emissions controls were operating within the range of parameters listed in the QA/QC program under Appendix B of 40 CFR Part 75 and the substitute values do not systematically underestimate CO₂ emissions; and

c. The CO₂ concentration values substituted for missing data under Subpart D of 40 CFR Part 75 do not systematically underestimate CO₂ emissions.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6370, reinstated 9VAC5-140-7370, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7380 Petitions

A. Except as provided in subsection C of this section, the CO₂ authorized account representative of a CO₂ budget unit that is subject to an Acid Rain emissions limitation may submit a petition to the administrator under 40 CFR 75.66 and to the department requesting approval to apply an alternative to any requirement of 40 CFR Part 75. Application of an alternative to any requirement of 40 CFR Part 75 is in accordance with this article only to the extent that the petition is approved in writing by the administrator, and subsequently approved in writing by the department.

B. Petitions for a CO₂ budget unit that is not subject to an Acid Rain emissions limitation shall meet the following requirements.

1. The CO₂ authorized account representative of a CO₂ budget unit that is not subject to an Acid Rain emissions limitation may submit a petition to the administrator under 40 CFR 75.66 and to the department requesting approval to apply an alternative to any requirement of 40 CFR Part 75. Application of an alternative to any requirement of 40 CFR Part 75 is in accordance with this article only to the extent that the petition is approved in writing by the administrator and subsequently approved in writing by the department.

2. In the event that the administrator declines to review a petition under subdivision 1 of this subsection, the CO₂ authorized account representative of a CO₂ budget unit that is not subject to an Acid Rain emissions limitation may submit a petition to the department requesting approval to apply an alternative to any requirement of this article. That petition shall contain all of the relevant information specified in 40 CFR 75.66. Application of an alternative to any requirement of this article is in accordance with this article only to the extent that the petition is approved in writing by the department.

C. The CO₂ authorized account representative of a CO₂ budget unit that is subject to an Acid Rain emissions limitation may submit a petition to the administrator under 40 CFR 75.66 and to the department requesting approval to apply an alternative to a requirement concerning any additional CEMS required under the common stack provisions of 40 CFR 75.72 or a CO₂ concentration CEMS used under 40 CFR 75.71(a)(2). Application of an alternative to any such requirement is in accordance with this article only to the extent the petition is approved in writing by the administrator and subsequently approved in writing by the department.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6380, reinstated 9VAC5-140-7380, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7390 [Reserved]

History

• Historical Notes: Former 9VAC5-140-6390, reinstated and reserved 9VAC5-140-7390, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7400 [Reserved]

History

• Statutory Authority: § of the Code of Virginia.
• Historical Notes: Former 9VAC5-140-7400, reinstated and reserved 9VAC5-140-7400, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 9 Auction of CO2 CCR and ECR Allowances

9VAC5-140-7410 Purpose

The following requirements shall apply to each allowance auction. The department or its agent may specify additional information in the auction notice for each auction. Such additional information may include the time and location of the auction, auction rules, registration deadlines, and any additional information deemed necessary or useful.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6400, reinstated 9VAC5-140-7400, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

9VAC5-140-7420 General requirements

A. The department's agent will include the following information in the auction notice for each auction:

1. The number of CO₂ allowances offered for sale at the auction, not including any CO₂ CCR allowances;

2. The number of CO₂ CCR allowances that will be offered for sale at the auction if the condition of subdivision B 1 of this section is met;

3. The minimum reserve price for the auction;

4. The CCR trigger price for the auction;

5. The maximum number of CO₂ allowances that may be withheld from sale at the auction if the condition of subdivision D 1 of this section is met; and

6. The ECR trigger price for the auction.

B. The department's agent will follow these rules for the sale of CO₂ CCR allowances.

1. CO₂ CCR allowances shall only be sold at an auction in which total demand for allowances, above the CCR trigger price, exceeds the number of CO₂ allowances available for purchase at the auction, not including any CO₂ CCR allowances.

2. If the condition of subdivision 1 of this subsection is met at an auction, then the number of CO₂ CCR allowances offered for sale by the department or its agent at the auction shall be equal to the number of CO₂ CCR allowances in the Virginia Auction Account at the time of the auction.

3. After all of the CO₂ CCR allowances in the Virginia Auction Account have been sold in a given calendar year, no additional CO₂ CCR allowances will be sold at any auction for the remainder of that calendar year, even if the condition of subdivision 1 of this subsection is met at an auction.

4. At an auction in which CO₂ CCR allowances are sold, the reserve price for the auction shall be the CCR trigger price.

5. If the condition of subdivision 1 of this subsection is not satisfied, no CO₂ CCR allowances shall be offered for sale at the auction, and the reserve price for the auction shall be equal to the minimum reserve price.

C. The department's agent shall implement the reserve price as follows: (i) no allowances shall be sold at any auction for a price below the reserve price for that auction and (ii) if the total demand for allowances at an auction is less than or equal to the total number of allowances made available for sale in that auction, then the auction clearing price for the auction shall be the reserve price.

D. The department's agent will meet the following rules for the withholding of CO₂ ECR allowances from an auction.

1. CO₂ ECR allowances shall only be withheld from an auction if the demand for allowances would result in an auction clearing price that is less than the ECR trigger price prior to the withholding from the auction of any ECR allowances.

2. If the condition in subdivision 1 of this subsection is met at an auction, then the maximum number of CO₂ ECR allowances that may be withheld from that auction will be equal to the quantity shown in Table 140-5B of 9VAC5-140-7210 E minus the total quantity of CO₂ ECR allowances that have been withheld from any prior auction in that calendar year. Any CO₂ ECR allowances withheld from an auction will be transferred into the Virginia ECR Account.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6420, reinstated 9VAC5-140-7420, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Article 10 Program Monitoring and Review

9VAC5-140-7440 Program monitoring and review

In conjunction with the CO₂ Budget Trading Program program monitoring and review process, the department will evaluate impacts of the program specific to Virginia, including economic, energy, and environmental impacts and impacts on vulnerable and environmental justice and underserved communities. The department will, in evaluating the impacts on environmental justice communities, including low income, minority, and tribal communities, develop and implement a plan to ensure increased participation of environmental justice communities in the review.

History

• Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the Code of Virginia; §§ 108, 109, 110, and 302 of the Clean Air Act; 40 CFR Part 51.
• Historical Notes: Former 9VAC5-140-6440, reinstated 9VAC5-140-7440, Virginia Register Volume 42, Issue 20, eff. April 24, 2026.

Chapter 151 Regulation for Transportation Conformity

Part I General Definitions

9VAC5-151-10 Definitions

A. For the purpose of this chapter and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in this section.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used shall have the meanings given them by the federal Clean Air Act, Titles 23 and 49 of the United States Code, 40 CFR 93.101, other U.S. Environmental Protection Agency regulations, other USDOT regulations, 9VAC5-170-20 (definitions, Regulation for General Administration), or commonly ascribed to them by recognized authorities, in that order of priority.

C. Terms defined.

"Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access.

"Applicable implementation plan" or "implementation plan" means, as defined in § 302(q) of the federal Clean Air Act, the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under § 110, or promulgated under § 110(c), or promulgated or approved pursuant to regulations promulgated under § 301(d) and which implements the relevant requirements of the federal Clean Air Act.

"Board" means the State Air Pollution Control Board or its designated representative.

"Control strategy implementation plan revision" means the implementation plan that contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy the federal Clean Air Act requirements for demonstrations of reasonable further progress and attainment (including implementation plan revisions submitted to satisfy §§ 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d); §§ 192(a) and 192(b), for nitrogen dioxide; and any other applicable provision of the federal Clean Air Act requiring a demonstration of reasonable further progress or attainment).

"Criteria pollutant" means any pollutant for which a national ambient air quality standard is established in 40 CFR Part 50.

"DEQ" means any employee or other representative of the Virginia Department of Environmental Quality, as designated by the director.

"DEQ Director" means the director of the Virginia Department of Environmental Quality or a designated representative.

"Donut areas" means geographic areas outside a metropolitan planning area boundary, but inside the boundary of a nonattainment or maintenance area that contains any part of one or more metropolitan areas. These areas are not isolated rural nonattainment and maintenance areas.

"Emergency" means a situation that immediately and unreasonably affects, or has the potential to immediately and unreasonably affect, public health, safety, or welfare; the health of animal or plant life; or property, whether used for recreational, commercial, industrial, agricultural or other reasonable use.

"EPA" means the U.S. Environmental Protection Agency.

"Federal Clean Air Act" means Chapter 85 (§ 7401 et seq.) of Title 42 of the United States Code.

"FHWA" means the Federal Highway Administration of U.S. Department of Transportation (USDOT).

"FHWA/FTA project" means any highway or transit project that is proposed to receive funding assistance and approval through the Federal-Aid Highway Program or the federal mass transit program, or requires FHWA or FTA approval for some aspect of the project, such as connection to an interstate highway or deviation from applicable design standards on the interstate system.

"FTA" means the Federal Transit Administration of USDOT.

"Highway project" means an undertaking to implement or modify a highway facility or highway-related program. Such an undertaking consists of all required phases necessary for implementation. For analytical purposes, it must be defined sufficiently to:

1. Connect logical termini and be of sufficient length to address environmental matters on a broad scope;

2. Have independent utility or significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and

3. Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

"Isolated rural nonattainment and maintenance areas" means areas that do not contain or are not part of any metropolitan planning area as designated under the transportation planning regulations. Isolated rural areas do not have federally required metropolitan transportation plans or TIPs and do not have projects that are part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. Projects in such areas are instead included in statewide transportation improvements programs. These areas are not donut areas.

"LPO" or "Lead Planning Organization" means the organization certified by the state as being responsible for the preparation of control strategy implementation plan revisions for nonattainment areas under § 174 of the federal Clean Air Act. The organization includes elected officials of local governments in the affected nonattainment area, and representatives of DEQ, VDOT, the MPO(s) for the affected area, and other agencies and organizations that have responsibilities for developing, submitting or implementing any of the plan revisions. It is the forum for cooperative air quality planning decisionmaking.

"Maintenance area" means any geographic region of the United States previously designated nonattainment under § 107 of the federal Clean Air Act and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan.

"Maintenance plan" means a revision to the applicable implementation plan, meeting the requirements of § 175A of the federal Clean Air Act.

"MPO" or "Metropolitan Planning Organization" means the organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 USC § 134 and created as a result of the designation process in 23 USC § 134(d). It is the forum for cooperative transportation decision-making.

"NEPA" means the National Environmental Policy Act of 1969 as amended (42 USC § 4321 et seq.)

"NEPA process completion" means, with respect to FHWA or FTA, the point at which there is a specific action to make a determination that a project is categorically excluded, to make a Finding of No Significant Impact, or to issue a record of decision on a Final Environmental Impact Statement under NEPA.

"Nonattainment area" means any geographic region of the United States that has been designated as nonattainment under § 107 of the federal Clean Air Act for any pollutant for which a national ambient air quality standard exists.

"PM₁₀" means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers as measured by the applicable reference method or an equivalent method.

"Project" means a highway project or transit project.

"Recipient of funds designated under Title 23 USC or the Federal Transit Laws" means any agency at any level of state, county, city, or regional government that routinely receives Title 23 USC or Federal Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA projects or equipment, purchase equipment, or undertake other services or operations via contracts or agreements. This definition does not include private landowners or developers, or contractors or entities that are only paid for services or products created by their own employees.

"Regionally significant project" means a transportation project (other than an exempt project) that is on a facility that serves regional transportation needs (such as access to and from the area outside of the region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, etc., or transportation terminals as well as most terminals themselves) and would normally be included in the modeling of a metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional highway travel.

"TCM" or "transportation control measure" means any measure that is specifically identified and committed to in the applicable implementation plan, including a substitute or additional TCM that is incorporated into the applicable implementation plan through the process established in § 176(c)(8) of the federal Clean Air Act, that is either one of the types listed in § 108 of the federal Clean Air Act, or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the first sentence of this definition, vehicle technology-based, fuel-based, and maintenance-based measures that control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of this chapter.

"TIP" or "transportation improvement program" means a transportation improvement program developed by a metropolitan planning organization under 23 USC § 134(j).

"Transit" means mass transportation by bus, rail, or other conveyance that provides general or special service to the public on a regular and continuing basis. It does not include school buses or charter or sightseeing services.

"Transit project" means an undertaking to implement or modify a transit facility or transit-related program; purchase transit vehicles or equipment; or provide financial assistance for transit operations. It does not include actions that are solely within the jurisdiction of local transit agencies, such as changes in routes, schedules, or fares. It may consist of several phases. For analytical purposes, it must be defined inclusively enough to:

1. Connect logical termini and be of sufficient length to address environmental matters on a broad scope;

2. Have independent utility or independent significance, i.e., be a reasonable expenditure even if no additional transportation improvements in the area are made; and

3. Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

"Transportation plan" means the official intermodal metropolitan transportation plan that is developed through the metropolitan planning process for the metropolitan planning area, developed pursuant to 23 CFR Part 450.

"Transportation project" means a highway project or a transit project.

"USDOT" means the U.S. Department of Transportation.

"VDOT" means the Virginia Department of Transportation.

"VDRPT" means the Virginia Department of Rail and Public Transportation.

"Welfare" means that language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176 (c) of the federal Clean Air Act.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008.

Part II General Provisions

9VAC5-151-20 Applicability

A. The provisions of this chapter shall apply to the following actions:

1. Except as provided for in subsection C of this section or 40 CFR 93.126, conformity determinations are required for:

a. The adoption, acceptance, approval, or support of transportation plans and transportation plan amendments developed pursuant to 23 CFR Part 450 or 49 CFR Part 613 by a MPO or USDOT;

b. The adoption, acceptance, approval, or support of TIPs and TIP amendments developed pursuant to 23 CFR Part 450 or 49 CFR Part 613 by a MPO or USDOT; and

c. The approval, funding, or implementation of FHWA/FTA projects.

2. Conformity determinations are not required under this chapter for individual projects that are not FHWA/FTA projects. However, 40 CFR 93.121 applies to the projects if they are regionally significant.

3. This chapter shall apply to conformity determinations for which the final decision is made on or after the program approval date. For purposes of applying this subdivision, the program approval date of the regulation adopted by the board on March 26, 2007, shall be the date 30 days after the date on which a notice is published in the Virginia Register acknowledging that the administrator has approved the regulation adopted by the board on March 26, 2007.

B. The provisions of this chapter shall apply in all nonattainment and maintenance areas for transportation-related criteria pollutants for which the area is designated nonattainment or has a maintenance plan.

1. The provisions of this chapter apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide (CO), nitrogen dioxide (NO₂), particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM₁₀); and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM_2.5).

2. The provisions of this chapter also apply with respect to emissions of the following precursor pollutants:

a. Volatile organic compounds (VOCs) and nitrogen oxides (NO_X) in ozone areas;

b. NO_X in nitrogen dioxide areas;

c. VOCs or NO_X or both, in PM₁₀ areas:

(1) If the EPA Regional Administrator or the DEQ Director has made a finding that transportation-related emissions of one or both of these precursors within the nonattainment area are a significant contributor to the PM₁₀ nonattainment problem and has so notified the MPO and USDOT; or

(2) If the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy;

d. NO_X in PM_2.5areas:

(1) Unless both the EPA Regional Administrator and the DEQ Director have made a finding that transportation-related emissions of NO_X within the nonattainment area are not a significant contributor to the PM_2.5nonattainment problem and have so notified the MPO and USDOT; or

(2) The applicable implementation plan (or implementation plan submission) does not establish an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy; and

e. VOC, sulfur dioxide (S0₂) and/or ammonia (NH₃) in PM_2.5 areas either:

(1) If the EPA Regional Administrator or the DEQ Director has made a finding that transportation-related emissions of any of these precursors within the nonattainment area are a significant contributor to the PM_2.5 nonattainment problem and has so notified the MPO and USDOT; or

(2) If the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy.

3. The provisions of this chapter apply to PM_2.5 nonattainment and maintenance areas with respect to PM_2.5 from re-entrained road dust if the EPA Regional Administrator or the DEQ Director has made a finding that re-entrained road dust emissions within the area are a significant contributor to the PM_2.5 nonattainment problem and has so notified the MPO and USDOT, or if the applicable implementation plan (or implementation plan submission) includes re-entrained road dust in the approved (or adequate) budget as part of the reasonable further progress, attainment or maintenance strategy. Re-entrained road dust emissions are produced by travel on paved and unpaved roads (including emissions from anti-skid and deicing materials).

4. The provisions of this chapter apply to maintenance areas through the last year of the area's maintenance plan approved under § 175A(b) of the federal Clean Air Act, unless the applicable implementation plan specifies that the provisions of this chapter shall apply for more than 20 years.

C. In order to receive any FHWA/FTA approved or funding actions, including NEPA approvals, for a project phase subject to this chapter, a currently conforming transportation plan and TIP must be in place at the time of project approval as described in 40 CFR 93.114, except as provided by 40 CFR 93.114(b).

D. For areas or portions of areas that have been continuously designated attainment or not designated for any National Ambient Air Quality Standard for ozone, CO, PM₁₀, PM_2.5 or NO₂ since 1990 and are subsequently redesignated to nonattainment or designated nonattainment for any National Ambient Air Quality Standard for any of these pollutants, the provisions of this chapter shall not apply with respect to that National Ambient Air Quality Standard for 12 months following the effective date of final designation to nonattainment for each National Ambient Air Quality Standard for such pollutant.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 110, and 182 of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 33, Issue 4, eff. November 16, 2016; Volume 36, Issue 12, eff. March 4, 2020.

9VAC5-151-30 Authority of board and DEQ

A. No provision of this chapter shall limit the power of the board to take such appropriate action as necessary to control and abate air pollution in emergency situations.

B. In accordance with the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia) and the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and by the adoption of this chapter, the board confers upon the DEQ the administrative, enforcement and decision making authority enumerated in this chapter.

C. The board reserves the right to exercise its authority in any of the powers delegated in this chapter should it choose to do so.

D. The DEQ Director has final authority to adjudicate contested decisions of subordinates delegated powers by him prior to appeal of the decisions to the circuit court or consideration by the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007.

Part III Criteria and Procedures for Making Conformity Determinations

9VAC5-151-40 General

The Environmental Protection Agency (EPA) regulations promulgated at 40 CFR Part 93, Subpart A (Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 USC or the Federal Transit Laws) and designated in 9VAC5-151-50 are incorporated by reference into this chapter as amended by the word or phrase substitutions given in 9VAC5-151-60. The 40 CFR section numbers appearing in 9VAC5-151-50 identify the specific provisions incorporated by reference. The specific version of the provisions incorporated by reference shall be that contained in the CFR (2012) in effect July 1, 2012.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176 (c) of the federal Clean Air Act.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 23, eff. August 15, 2012.

9VAC5-151-50 Designated provisions

Section—Title

40 CFR 93.101 Definitions.

40 CFR 93.102 Applicability.

40 CFR 93.103 Priority.

40 CFR 93.104 Frequency of conformity determinations.

40 CFR 93.106 Content of transportation plans.

40 CFR 93.107 Relationship of transportation plan and TIP conformity with the NEPA process.

40 CFR 93.108 Fiscal constraints for transportation plans and TIPs.

40 CFR 93.109 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General.

40 CFR 93.110 Criteria and procedures: Latest planning assumptions.

40 CFR 93.111 Criteria and procedures: Latest emissions model.

40 CFR 93.112 Criteria and procedures: Consultation.

40 CFR 93.113 Criteria and procedures: Timely implementation of TCMs.

40 CFR 93.114 Criteria and procedures: Currently conforming transportation plan and TIP.

40 CFR 93.115 Criteria and procedures: Projects from a plan and TIP.

40 CFR 93.116 Criteria and procedures: Localized CO, PM₁₀, and PM_2.5 violations (hot-spots).

40 CFR 93.117 Criteria and procedures: Compliance with PM₁₀ and PM_2.5 control measures.

40 CFR 93.118 Criteria and procedures: Motor vehicle emissions budget.

40 CFR 93.119 Criteria and procedures: Interim emissions in areas without motor vehicle emissions budgets.

40 CFR 93.120 Consequences of control strategy implementation plan failures.

40 CFR 93.121 Requirements for adoption or approval of projects by other recipients of funds designated under Title 23 USC or the Federal Transit Laws.

40 CFR 93.122 Procedures for determining regional transportation-related emissions.

40 CFR 93.123 Procedures for determining localized CO, PM₁₀, and PM_2.5 concentrations (hot-spot analysis).

40 CFR 93.124 Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission).

40 CFR 93.125 Enforceability of design concept and scope and project-level mitigation and control measures.

40 CFR 93.126 Exempt projects.

40 CFR 93.127 Projects exempt from regional emissions analyses.

40 CFR 93.128 Traffic signal synchronization projects.

40 CFR 93.129 Special exemptions from conformity requirements for pilot program areas.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007.

9VAC5-151-60 Word or phrase substitutions

In all of the provisions designated in 9VAC5-151-50 substitute:

1. DEQ Director for director of the state air quality agency or state air agency.

2. MPO for agency or organization developing the transportation plan.

3. VDOT for state department of transportation.

4. USDOT for DOT.

5. This chapter for this subpart.

6. 9VAC5-151-20 B for § 93.102(b).

7. 9VAC5-151-20 D for § 93.102(d)

8. 9VAC5-151-70 for § 93.105.

9. 9VAC5-151-70 D 1 f for § 93.105(c)(1)(vii).

10. 9VAC5-151-70 B and F for § 93.105 (a)(2) and (e).

11. 9VAC5-151-70 D 1 a for § 93.105(c)(1)(i).

12. 9VAC5-151-70 D 1 c for § 93.105(c)(1)(iii).

13. 9VAC5-151-70 E for § 93.105(d).

14. 9VAC5-151-70 F for § 93.105(e).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007.

9VAC5-151-61 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; repealed, Virginia Register Volume 25, Issue 6, eff. December 31, 2008.

9VAC5-151-70 Consultation

A. The MPOs, LPOs, DEQ, VDOT and VDRPT shall undertake the procedures prescribed in this section for interagency consultation, conflict resolution and public consultation with each other and with local or regional offices of EPA, FHWA, and FTA on the development of control strategy implementation plan revisions, the list of TCMs in the applicable implementation plan, transportation plans, TIPs, and associated conformity determinations required by this chapter.

B. Until EPA grants approval of this chapter, the MPOs, and VDOT and VDRPT, prior to making conformity determinations, shall provide reasonable opportunity for consultation with LPOs, DEQ and EPA on the issues in subdivision D 1 of this section.

C. The provisions of this subsection shall be followed with regard to general factors associated with interagency consultation.

1. Representatives of the MPOs, VDOT, VDRPT, FHWA, and FTA shall undertake an interagency consultation process, in accordance with subdivisions 1 and 3 of this subsection and subsection D of this section, with the LPOs, DEQ and EPA on the development of implementation plans, transportation plans, TIPs, any revisions to the preceding documents, and associated conformity determinations.

a. MPOs, or their designee, shall be the lead agencies responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the transportation plan, the TIP, and any amendments or revisions thereto. In the case of nonmetropolitan areas, VDOT shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the statewide transportation plan, the statewide TIP, and any amendments or revisions thereto. The MPOs shall be the lead agencies responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to any determinations of conformity under this chapter for which the MPO is responsible.

b. It shall be the affirmative responsibility of the lead agency to initiate the process by notifying other participants, convene meetings, assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner, prepare summaries of consultation meetings, maintain a written record of the consultation process, provide final documents and supporting information to each agency after approval or adoption, and to assure the adequacy of the interagency consultation process with respect to the subject document or decision.

c. Regular consultation on major activities (such as the development of a transportation plan, the development of a TIP, or any determination of conformity on transportation plans or TIPs) shall include meetings beginning on a date determined by the lead agency to be adequate to meet the date a final document is required and continuing at frequency mutually determined by the affected agencies. In addition, technical meetings shall be convened as necessary.

d. Each lead agency in the consultation process shall confer with all other agencies identified under subdivision 1 of this subsection with an interest in the document to be developed, provide all information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, and prior to taking any action, consider the views of each agency and respond to those views in a timely, substantive written manner prior to any final decision on the documents. The views and written responses shall be made part of the record of any decision or action.

e. It shall be the responsibility of each agency specified in subdivision 1 of this subsection, when not fulfilling the responsibilities of lead agency, to confer with the lead agency and other participants in the consultation process, review and comment as appropriate (including comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, provide input on any area of substantive expertise or responsibility, and provide technical assistance to the lead agency or to the consultation process when requested.

2. Representatives of the LPOs, DEQ, and EPA shall undertake an interagency consultation process, in accordance with this subdivision and subdivision 3 of this subsection, with MPOs, VDOT, VDRPT, FHWA, and FTA on the development of control strategy implementation plan revisions, the list of TCMs in the applicable implementation plan, and any revisions to the preceding documents.

a. The DEQ, in conjunction with the LPOs, shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of control strategy implementation plan revisions, the credits associated with the list of TCMs in the applicable implementation plan, and any amendments or revisions thereto.

b. It shall be the affirmative responsibility of the lead agency to initiate the process by notifying other participants, convene meetings, assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner, prepare minutes of consultation meetings, maintain a written record of the consultation process, provide final documents and supporting information to each agency after approval or adoption, and to assure the adequacy of the interagency consultation process with respect to the subject document or decision.

c. Regular consultation on the development of any control strategy implementation plan revision shall include meetings beginning on a date determined by the lead agency to be adequate to meet the date a final document is required and continuing at frequency mutually determined by the affected agencies. In addition, technical meetings shall be convened as necessary.

d. Each lead agency in the consultation process shall confer with all other agencies identified under subdivision 1 of this subsection with an interest in the document to be developed, provide all information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, and prior to taking any action, consider the views of each agency and respond to those views in a timely, substantive written manner prior to any final decision on the documents. The views and written responses shall be made part of the record of any decision or action.

e. It shall be the responsibility of each agency specified in subdivision 1 of this subsection, when not fulfilling the responsibilities of lead agency, to confer with the lead agency and other participants in the consultation process, review and comment as appropriate (including comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, provide input on any area of substantive expertise or responsibility, and provide technical assistance to the lead agency or to the consultation process when requested.

3. The specific roles and responsibilities of various participants in the interagency consultation process shall be as follows:

a. The MPOs shall be responsible for the following:

(1) Developing metropolitan transportation plans and TIPs in accordance with 23 CFR Part 450 and 49 CFR Part 613 and the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (Public Law No. 109-59).

(2) Adopting conformity determinations in conjunction with the adoption of transportation plans and TIPs and any revisions to the documents.

(3) In cooperation with VDOT, with assistance from VDRPT:

(a) Developing conformity assessments and associated documentation.

(b) Evaluating potential TCM projects and impacts.

(c) (i) Developing or approving transportation and related socio-economic data and planning assumptions, or both, and (ii) providing the data and assumptions for use in air quality analysis for implementation plan tracking and conformity of transportation plans, TIPs and projects.

(d) Monitoring regionally significant projects.

(e) Providing technical and policy input into the development of emissions budgets.

(f) Assuring the proper completion of transportation modeling, regional emissions analyses and documentation of timely implementation of TCMs needed for conformity assessments.

(g) Involving the DEQ and LPOs continuously in the process.

(h) Consulting with FHWA and FTA on (i) timely action on final findings of conformity, after consultation with other agencies as provided in this section; and (ii) guidance on conformity and the transportation planning process to agencies in interagency consultation.

(i) Consulting with EPA on (i) review and approval of updated motor vehicle emissions factors, emission inventories and budgets; and (ii) guidance on conformity criteria and procedures to the agencies involved in the interagency consultation process.

b. The VDOT, with assistance from the VDRPT, shall be responsible for the following:

(1) Developing statewide transportation plans and statewide TIPs.

(2) Providing demand forecasting and on-road mobile source emission inventories.

(3) Circulating draft and final project environmental documents to other agencies.

(4) Convening air quality technical review meetings on specific projects as needed or when requested by other agencies.

(5) In cooperation with the MPOs:

(a) Developing conformity assessments and associated documentation.

(b) Evaluating potential TCM projects and impacts.

(c) (i) Developing or approving transportation and related planning assumptions, or both, and (ii) providing the data and assumptions for use in air quality analysis for implementation plan tracking and conformity of transportation plans, TIPs and projects.

(d) Monitoring regionally significant projects.

(e) Providing technical and policy input into the development of emissions budgets.

(f) Assuring the proper completion of transportation modeling, regional emissions analyses and documentation of timely implementation of TCMs need for conformity assessments.

(g) Involving the DEQ and LPOs continuously in the process.

(h) Consulting with FHWA and FTA on (i) timely action on final findings of conformity, after consultation with other agencies as provided in this section; and (ii) guidance on conformity and the transportation planning process to agencies in interagency consultation.

(i) Consulting with EPA on (i) review and approval of updated motor vehicle emissions factors, emission inventories and budgets; and (ii) guidance on conformity criteria and procedures to the agencies involved in the interagency consultation process.

c. The LPOs shall be responsible for the following:

(1) Developing emissions inventories and budgets.

(2) Developing control strategy implementation plan revisions and maintenance plans.

(3) Providing a staff liaison to the MPOs for conformity and to be responsive to MPO requests for information and technical guidance.

(4) Involving the MPOs, VDOT AND VDRPT continuously in the process.

d. The DEQ shall be responsible for the following:

(1) Developing emissions inventories and budgets.

(2) Tracking attainment of air quality standards, and emission factor model updates.

(3) Gaining final approval at state level for control strategy implementation plan revisions and maintenance plans.

(4) Providing a staff liaison to the LPOs for conformity and to be responsive to LPO requests for information and technical guidance.

(5) Involving the LPOs continuously in the process.

e. The FHWA and FTA shall be responsible for the following:

(1) Assuring timely action on final findings of conformity, after consultation with other agencies as provided in this section.

(2) Providing guidance on conformity and the transportation planning process to agencies in interagency consultation.

f. The EPA shall be responsible for the following:

(1) Reviewing and approving updated motor vehicle emissions factors.

(2) Providing guidance on conformity criteria and procedures to agencies in interagency consultation.

(3) Assuring timely action on conformity analysis and findings and implementation plan revisions.

4. The MPOs, LPOs, DEQ, VDOT and VDRPT may enter into agreements to set forth specific consultation procedures in more detail that are not in conflict with this section.

D. The provisions of this subsection shall be followed with regard to specific processes associated with interagency consultation.

1. An interagency consultation process involving the MPOs, LPOs, DEQ, VDOT, VDRPT, EPA, FHWA, and FTA shall be undertaken for the following:

a. Evaluating and choosing each model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emission analyses, including vehicle miles traveled (VMT) forecasting, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

b. Determining which transportation projects should be considered "regionally significant" for the purpose of regional emission analysis (in addition to those functionally classified as principal arterial or higher; or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

c. Evaluating whether projects otherwise exempted from meeting the requirements of 40 CFR 93.126 and 40 CFR 93.127 should be treated as nonexempt in cases where potential adverse emissions impacts may exist for any reason, to be initiated by VDOT, in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

d. Making a determination, as required by 40 CFR 93.113(c)(1), whether past obstacles to implementation of TCMs that are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether state and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs, to be initiated by VDOT as lead agency, in consultation with the MPOs and VDRPT, and conducted in accordance with subdivisions C 1 and 3 of this section. This consultation process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs or substitute TCMs or other emission reduction measures.

e. Notifying all parties to the consultation process of transportation plan or TIP amendments that merely add or delete exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127, to be initiated by VDOT in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

f. Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 CFR 93.109(g)(2)(iii), to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section.

g. Determining what forecast of vehicle miles traveled (VMT) to use in establishing or tracking emissions budgets, developing transportation plans, TIPs, or control strategy implementation plan revisions, or making conformity determinations, to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section.

2. An interagency consultation process in accordance with subsection C of this section involving the MPOs, LPOs, DEQ, VDOT, and VDRPT shall be undertaken for the following:

a. Evaluating events that may trigger new conformity determinations in addition to those triggering events established by 40 CFR 93.104, to be initiated by VDOT, in consultation with the MPOs and DEQ, and conducted in accordance with subdivisions C 1 and 3 of this section.

b. Consulting on emissions analysis for transportation activities that cross the borders of MPOs or nonattainment areas, to be initiated by VDOT in consultation with the MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.

3. Where the metropolitan planning area does not include the entire nonattainment or maintenance area, an interagency consultation process in accordance with subdivisions C 1 and 3 of this section involving the MPOs and VDOT shall be undertaken for cooperative planning and analysis for purposes of determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenance area, to be initiated by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of this section.

4. To assure that plans for construction of regionally significant projects that are not FHWA or FTA projects (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered), including all those by recipients of funds designated under Title 23 USC or the Federal Transit Act, are disclosed to the MPO on a regular basis, and to assure that any changes to those plans are immediately disclosed, an interagency consultation process shall be undertaken, to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section involving the MPO, VDOT, VDRPT, and recipients of funds designated under Title 23 USC or the Federal Transit Act.

5. An interagency consultation process in accordance with subsections C 1 and 3 of this section involving the MPOs and other recipients of funds designated under Title 23 USC or the Federal Transit Act shall be undertaken for developing assumptions regarding the location and design concept and scope of projects that are disclosed to the MPO as required by subdivision 4 of this subsection but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR 93.122, to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section.

6. An interagency consultation process in accordance with subdivisions C 1 and 3 of this section shall be undertaken for the design, schedule, and funding of research and data collection efforts and model developments in regional transportation (such as household or travel transportation surveys) to be initiated by the MPO, in consultation with VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section.

E. The provisions of this subsection shall be followed with regard to conflict resolution associated with interagency consultation.

1. Unresolved conflicts among state agencies, or between state agencies and the MPO(s), or among MPO member jurisdictions, shall be identified by an MPO or agency in writing to the other MPO, DEQ, VDOT, or VDRPT, with copies to FHWA, FTA and EPA. The MPO's or agency's written notice shall:

a. Explain the nature of the conflict;

b. Review options for resolving the conflict;

c. Describe the MPO's or agency's proposal to resolve the conflict;

d. Explain the consequences of not reaching a resolution; and

e. Request that comments on the matter be received within two weeks.

2. If the above action does not result in a resolution to the conflict, either of the following shall apply:

a. If the conflict is between the MPOs or between the MPO(s) and VDOT or VDRPT or both, then the parties shall follow the coordination procedures of 23 CFR 450.210.

b. If the conflict is between the MPO(s) or VDOT or VDRPT and the DEQ and the conflict can not be resolved by the affected agency heads, then the DEQ Director may elevate the conflict to the Governor in accordance with the procedures of subdivision 3 of this section. If the DEQ Director does not appeal to the Governor within 14 days as provided in subdivision 3 a of this subsection, the MPO or VDOT or VDRPT may proceed with its final conformity determination.

3. Appeals to the Governor by the DEQ Director under the provisions of subdivision 2 b of this subsection shall be in accordance with the following procedures:

a. The DEQ Director has 14 calendar days to appeal to the Governor after the MPO(s) or VDOT or VDRPT has notified the DEQ Director of the agency's or MPO's resolution of DEQ's comments. The notification to the DEQ Director shall be in writing and shall be hand-delivered. The 14-day clock shall commence when VDOT or VDRPT or the MPO has confirmed receipt by the DEQ Director of the agency's or MPO's resolution of the DEQ's comments.

b. The appeal to the Governor shall consist of the following: the conformity determination and any supporting documentation; DEQ's comments on the determination; the MPO(s) or VDOT or VDRPT resolution of DEQ's comments; and DEQ's appeal document.

c. The DEQ shall provide a complete appeal package to the MPO, VDOT and VDRPT within 24 hours of the time the appeal is filed with the Governor's Office.

d. If the Governor does not concur with the conformity determination, he may direct revision of the applicable implementation plan, revision of the planned program of projects, revision of the conformity analysis or any combination of the preceding.

e. If the Governor concurs with the conformity determination made by the MPO and VDOT, the MPO and VDOT may proceed with the final conformity determination.

f. The Governor may delegate his role in this process, but not to the agency head or staff of DEQ, VDOT or VDRPT or the Commonwealth Board of Transportation.

4. Nothing in this section shall prevent the state agencies and MPOs from making efforts upon their own initiative to obtain mutual conflict resolution through conference or other appropriate means.

F. The provisions of this subsection shall be followed with regard to public consultation.

1. The MPOs shall establish a proactive involvement process that provides reasonable opportunity for review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the MPO at the beginning of the public comment period and prior to taking formal action on a conformity determination for all transportation plans and TIPs, consistent with the requirements of 23 CFR 450.316(a).

2. The MPOs shall specifically address in writing public comments regarding plans for a regionally significant project, not receiving FHWA or FTA funding or approval, and how the project is properly reflected in the emission analysis supporting a proposed conformity finding for a transportation plan or TIP.

3. The MPOs shall also provide an opportunity for public involvement in conformity determinations for projects where otherwise required by law.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; § 176(c) of the federal Clean Air Act.
• Historical Notes: Derived from Virginia Register Volume 23, Issue 17, eff. May 31, 2007; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 23, eff. August 15, 2012.

Chapter 160 Regulation for General Conformity

Part I General Definitions

9VAC5-160-10 General

A. For the purpose of this chapter and subsequent amendments or any orders issued by the board, the words or terms shall have the meanings given them in 9VAC5-160-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used shall have the meanings given them by the federal Clean Air Act, other U.S. Environmental Protection Agency (EPA) regulations, 9VAC50-170-20 (definitions, Regulation for General Administration) or commonly ascribed to them by recognized authorities, in that order of priority.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-160-20 Terms defined

"Administrator" means the Administrator of EPA or an authorized representative.

"Affected federal land manager" means the federal agency or the federal official charged with direct responsibility for management of an area designated as class I under the federal Clean Air Act, and located within 100 kilometers of the proposed federal action.

"Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access.

"Applicability analysis" means the process of determining if the federal action shall be supported by a conformity determination.

"Applicable implementation plan" means the portion or portions of the state implementation plan, or the most recent revision thereof, which has been approved under § 110(k) of the federal Clean Air Act, or a federal implementation plan promulgated under § 110(c) of the federal Clean Air Act, or promulgated or approved pursuant to regulations promulgated under § 301(d) of the federal Clean Air Act and which implements the relevant requirements of the federal Clean Air Act.

"Areawide air quality modeling analysis" means an assessment on a scale that includes the entire nonattainment area or maintenance area using an air quality dispersion model or photochemical grid model to determine the effects of emissions on air quality, for example, an assessment using EPA's community multi-scale air quality (CMAQ) modeling system.

"Board" means the State Air Pollution Control Board or its designated representative.

"Cause or contribute to a new violation" means a federal action that:

1. Causes a new violation of a national ambient air quality standard at a location in a nonattainment or maintenance area which would otherwise not be in violation of the standard during the future period in question if the federal action were not taken; or

2. Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a national ambient air quality standard at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation.

"Caused by" means, as used in the terms "direct emissions" and "indirect emissions," emissions that would not otherwise occur in the absence of the federal action.

"Confidential business information" or "CBI" means information that has been determined by a federal agency, in accordance with its applicable regulations, to be a trade secret, or commercial or financial information obtained from a person and privileged or confidential and is exempt from required disclosure under the federal Freedom of Information Act (5 USC § 552(b)(4)).

"Conformity determination" means the evaluation (made after an applicability analysis is completed) that a federal action conforms to the applicable implementation plan and meets the requirements of this regulation.

"Conformity evaluation" means the entire process from the applicability analysis through the conformity determination that is used to demonstrate that the federal action conforms to the requirements of this regulation.

"Consultation" means that one party confers with another identified party, provides all information to that party needed for meaningful input, and, prior to taking any action, considers the views of that party and responds to those views in a timely, substantive, written manner prior to any final decision on the action. The views and written response shall be made part of the record of any decision or action.

"Continuing program responsibility" means a federal agency has responsibility for emissions caused by (i) actions it takes itself; or (ii) actions of nonfederal entities that the federal agency, in exercising its normal programs and authorities, approves, funds, licenses, or permits, provided the agency can impose conditions on any portion of the action that could affect the emissions.

"Continuous program to implement" means that the federal agency has started the action identified in the plan and does not stop the actions for more than an 18-month period, unless it can demonstrate that such a stoppage was included in the original plan.

"Control" means the ability to regulate the emissions from the action. The ability to regulate may be demonstrated directly, such as through the use of emission control equipment, or indirectly, such as through the implementation of regulations or conditions on the nature of the activity that may be established in permits or approvals or by the design of the action. An example of control includes the ability of a federal agency to control the level of vehicle emissions by controlling the size of a parking facility and setting requirements for employee trip reductions.

"Criteria pollutant" means any pollutant for which there is established a national ambient air quality standard in 40 CFR Part 50.

"Department" means any employee or other representative of the Virginia Department of Environmental Quality, as designated by the director.

"Direct emissions" means those emissions of a criteria pollutant or its precursors that are caused or initiated by the federal action and originate in a nonattainment or maintenance area and occur at the same time and place as the action and are reasonably foreseeable.

"Director" means the Director of the Virginia Department of Environmental Quality.

"Emergency" means, in the context of 9VAC5-160-30, a situation where extremely quick action on the part of federal agencies involved is needed and where the timing of the federal activities makes it impractical to meet the requirements of this regulation, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts, and military mobilizations.

"Emergency" means, in the context of 9VAC5-160-40, a situation that immediately and unreasonably affects, or has the potential to immediately and unreasonably affect, public health, safety or welfare; the health of animal or plant life; or property, whether used for recreational, commercial, industrial, agricultural or other reasonable use.

"Emissions budgets" means those portions of the total allowable emissions defined in the applicable implementation plan for a certain date for the purpose of meeting reasonable further progress milestones or attainment or maintenance demonstrations, for any criteria pollutant or its precursors, specifically allocated by the applicable implementation plan to mobile sources, to any stationary source or class of stationary sources, to any federal action or any class of action, to any class of area sources, or to any subcategory of the emissions inventory. The allocation system shall be specific enough to assure meeting the criteria of § 176(c)(1)(B) of the federal Clean Air Act. An emissions budget may be expressed in terms of an annual period, a daily period, or other period established in the applicable implementation plan.

"Emissions inventory" means a listing of information on the location, type of source, type and quantity of pollutant emitted as well as other parameters of the emissions.

"Emissions offsets" means, for the purposes of 9VAC5-160-160, emissions reductions which are quantifiable, consistent with the applicable implementation plan attainment and reasonable future progress demonstrations, surplus to reductions required by, and credited to, other applicable implementation plan provisions, enforceable under both state and federal law, and permanent within the timeframe specified by that program. Emissions reductions intended to be achieved as emissions offsets under this regulation shall be monitored and enforced in a manner equivalent to that under the new source review program.

"EPA" means the U.S. Environmental Protection Agency.

"Facility" means something that is built, installed, or established to serve a particular purpose; includes, but is not limited to, buildings, installations, public works, businesses, commercial and industrial plants, shops and stores, heating and power plants, apparatus, processes, operations, structures, and equipment of all types.

"Federal action" means any activity engaged in by a federal agency, or any activity that a federal agency supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to transportation plans, programs, and projects developed, funded, or approved under Title 23 USC or the Federal Transit Act (49 USC § 5301 et seq.). Where the federal action is a permit, license, or other approval for some aspect of a nonfederal undertaking, the relevant action is the part, portion, or phase that the nonfederal undertaking that requires the federal permit, license, or approval.

"Federal agency" means a department, agency, or instrumentality of the federal government.

"Federal Clean Air Act" means Chapter 85 (§ 7401 et seq.) of Title 42 of the United States Code.

"Increase the frequency or severity of any existing violation of any standard in any area" means to cause a nonattainment area to exceed a standard more often, or to cause a violation at a greater concentration than previously existed or would otherwise exist during the future period in question, if the project were not implemented.

"Indirect emissions" means those emissions of a criteria pollutant or its precursors:

1. That are caused or initiated by the federal action and originate in the same nonattainment or maintenance area, but occur at a different time or place as the action;

2. That are reasonably foreseeable;

3. That the agency can practically control; and

4. For which the agency has a continuing program responsibility.

For the purposes of this definition, even if a federal licensing, rulemaking, or other approving action is a required initial step for a subsequent activity that causes emissions, such initial steps do not mean that a federal agency can practically control any resulting emissions.

"Lead planning organization" means the organization certified by the state as being responsible for the preparation of control strategy implementation plan revisions for nonattainment areas under § 174 of the federal Clean Air Act. The organization includes elected officials of local governments in the affected nonattainment area, and representatives of the department, the Virginia Department of Transportation, the metropolitan planning organizations for the affected area, and other agencies and organizations that have responsibilities for developing, submitting or implementing any of the plan revisions. It is the forum for cooperative air quality planning decision-making.

"Local air quality modeling analysis" means assessment of localized impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadways on a federal facility that uses an air quality dispersion model (e.g., Industrial Source Complex Model or Emission and Dispersion Model System) to determine the effects of emissions on air quality.

"Maintenance area" means an area that was designated as nonattainment and has been redesignated in 40 CFR Part 81 to attainment, meeting the provisions of § 107(d)(3)(E) of the federal Clean Air Act and has a maintenance plan approved under § 175A of the federal Clean Air Act.

"Maintenance plan" means a revision to the applicable implementation plan, meeting the requirements of § 175A of the federal Clean Air Act.

"Metropolitan planning organization" means the policy board of an organization created as a result of the designation process in 23 USC § 134(d).

"Milestone" means as defined in §§ 182(g) and 189(c)(1) of the federal Clean Air Act. A milestone consists of an emissions level and the date on which it is required to be achieved.

"Mitigation measure" means any method of reducing emissions of the pollutant or its precursor taken at the location of the federal action and used to reduce the impact of the emissions of that pollutant caused by the action.

"National ambient air quality standards" means those standards established pursuant to § 109 of the federal Clean Air Act.

"NEPA" means the National Environmental Policy Act of 1969 as amended (42 USC § 4321 et seq.)

"New source review (NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 110 (a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations, and (iii) Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources) of the Regulations for the Control and Abatement of Air Pollution.

"Nonattainment area" means any geographic region of the United States which has been designated as nonattainment under § 107 of the federal Clean Air Act for any pollutant for which a national ambient air quality standard exists.

"PM₁₀" means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers as measured by the applicable reference method or an equivalent method.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Precursors of a criteria pollutant" means:

1. For ozone,

a. Nitrogen oxides, unless an area is exempted from nitrogen oxides requirements under § 182(f) of the federal Clean Air Act, and

b. Volatile organic compounds.

2. For PM₁₀, those pollutants described in the PM₁₀ nonattainment area applicable implementation plan as significant contributors to the PM₁₀ levels.

3. For PM_2.5, (i) sulfur dioxide in all PM_2.5 nonattainment and maintenance areas, (ii) nitrogen oxides in all PM_2.5 nonattainment and maintenance areas unless both the department and EPA determine that it is not a significant precursor, and (iii) volatile organic compounds and ammonia only in PM_2.5 nonattainment or maintenance areas where either the department or EPA determines that they are significant precursors.

"Reasonably foreseeable emissions" means projected future direct and indirect emissions that are identified at the time the conformity determination is made; the location of such emissions is known; and the emissions are quantifiable, as described and documented by the federal agency based on its own information and after reviewing any information presented to the federal agency.

"Regional water or wastewater projects" means construction, operation, and maintenance of water or wastewater conveyances, water or wastewater treatment facilities, and water storage reservoirs which affect a large portion of a nonattainment or maintenance area.

"Restricted information" means information that is privileged or that is otherwise protected from disclosure pursuant to applicable statutes, executive orders, or regulations. Such information includes, but is not limited to, classified national security information, protected critical infrastructure information, sensitive security information, and proprietary business information.

"Source" means any one or combination of the following: buildings, structures, facilities, installations, articles, machines, equipment, landcraft, watercraft, aircraft, or other contrivances which contribute, or may contribute, either directly or indirectly to air pollution. Any activity by any person that contributes, or may contribute, either directly or indirectly to air pollution, including, but not limited to, open burning, generation of fugitive dust or emissions, and cleaning with abrasives or chemicals.

"Take or start the federal action" means the date that the federal agency signs or approves the permit, license, grant, or contract or otherwise physically begins the federal action that requires a conformity evaluation under this chapter.

"Total of direct and indirect emissions" means the sum of direct and indirect emissions increases and decreases caused by the federal action, that is, the "net" emissions considering all direct and indirect emissions. Any emissions decreases used to reduce the total shall have already occurred or shall be enforceable under state and federal law. The portion of emissions which are exempt or presumed to conform under 9VAC5-160-30 are not included in the "total of direct and indirect emissions," except as provided in 9VAC5-160-30 M. The "total of direct and indirect emissions" includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. Segmentation of projects for conformity analyses when emissions are reasonably foreseeable is prohibited.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Welfare" means that language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, human-made materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 14, Issue 3, eff. January 1, 1998; Errata, 14:7 VA.R. 1175 December 22, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

Part II General Provisions

9VAC5-160-30 Applicability

A. The provisions of this chapter shall apply in all nonattainment and maintenance areas for criteria pollutants for which the area is designated nonattainment or has a maintenance plan. Conformity requirements for newly designated nonattainment areas are not applicable until one year after the effective date of the final nonattainment designation for each national ambient air quality standard and pollutant in accordance with § 176(c)(6) of the federal Clean Air Act.

B. The provisions of this chapter apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide, nitrogen dioxide, particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM₁₀), and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM_2.5).

C. The provisions of this chapter apply with respect to emissions of the following precursor pollutants:

1. For ozone:

a. Nitrogen oxides, unless an area is exempted from nitrogen oxides requirements under § 182(f) of the federal Clean Air Act, and

b. Volatile organic compounds.

2. For PM₁₀, those pollutants described in the PM₁₀ nonattainment area applicable implementation plan as significant contributors to the PM₁₀ levels.

3. For PM_2.5, (i) sulfur dioxide in all PM_2.5 nonattainment and maintenance areas, (ii) nitrogen oxides in all PM_2.5 nonattainment and maintenance areas unless both the department and EPA determine that it is not a significant precursor, and (iii) volatile organic compounds and ammonia only in PM_2.5 nonattainment or maintenance areas where either the department or EPA determines that they are significant precursors.

D. Conformity determinations for federal actions related to transportation plans, programs, and projects developed, funded, or approved under Title 23 USC or the Federal Transit Act (49 USC § 5301 et seq.) shall meet the procedures and criteria of 9VAC5-151 (Regulation for Transportation Conformity), in lieu of the procedures set forth in this chapter.

E. For federal actions not covered by subsection D of this section, a conformity determination is required for each criteria pollutant or precursor where the total of direct and indirect emissions of the criteria pollutant or precursor in a nonattainment or maintenance area caused by a federal action would equal or exceed any of the rates in subdivision 1 or 2 of this subsection.

1. For the purposes of this subsection, the following rates apply in nonattainment areas:

| | Tons per year | | --- | --- | | Ozone (VOCs or NO_X): | | | Serious nonattainment areas | 50 | | Severe nonattainment areas | 25 | | Extreme nonattainment areas | 10 | | Other ozone nonattainment areas outside an ozone transport region | 100 | | Other ozone nonattainment areas inside an ozone transport region: | | | VOC | 50 | | NO_X | 100 | | Carbon monoxide, all nonattainment areas | 100 | | Sulfur dioxide or nitrogen dioxide, all nonattainment areas | 100 | | PM₁₀: | | | Moderate nonattainment areas | 100 | | Serious nonattainment areas | 70 | | PM_2.5 (direct emissions, SO₂, NO_X, VOC, and ammonia): | | | Moderate nonattainment areas | 100 | | Serious nonattainment areas | 70 | | Lead, all nonattainment areas | 25 |

2. For the purposes of this subsection, the following rates apply in maintenance areas:

| | Tons per year | | --- | --- | | Ozone (NO_x), sulfur dioxide, or nitrogen dioxide, all maintenance areas | 100 | | Ozone (VOCs): | | | Maintenance areas inside an ozone transport region | 50 | | Maintenance areas outside an ozone transport region | 100 | | Carbon monoxide, all maintenance areas | 100 | | PM₁₀, all maintenance areas | 100 | | PM_2.5 (direct emissions, SO₂, NO_X, VOC, and ammonia): | 100 | | All maintenance areas | 100 | | Lead, all maintenance areas | 25 |

F. The requirements of this section shall not apply to the following federal actions:

1. Actions where the total of direct and indirect emissions are below the emissions levels specified in subsection E of this section.

2. The following actions which would result in no emissions increase or an increase in emissions that is clearly de minimis:

a. Judicial and legislative proceedings.

b. Continuing and recurring activities such as permit renewals where activities conducted shall be similar in scope and operation to activities currently being conducted.

c. Rulemaking and policy development and issuance.

d. Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities.

e. Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training of law-enforcement personnel.

f. Administrative actions such as personnel actions, organizational changes, debt management, internal agency audits, program budget proposals, and matters relating to administration and collection of taxes, duties, and fees.

g. The routine, recurring transportation of materiel and personnel.

h. Routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations (when no new support facilities or personnel are required) to perform as operational groups and for repair or overhaul or both.

i. Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal shall be at an approved disposal site.

j. With respect to existing structures, properties, facilities, and lands where future activities conducted shall be similar in scope and operation to activities currently being conducted at the existing structures, properties, facilities, and lands, actions such as relocation of personnel, disposition of federally-owned existing structures, properties, facilities, and lands, rent subsidies, operation and maintenance cost subsidies, the exercise of receivership or conservatorship authority, assistance in purchasing structures, and the production of coins and currency.

k. The granting of leases, licenses such as for exports and trade, permits, and easements where activities conducted shall be similar in scope and operation to activities currently being conducted.

l. Planning, studies, and provision of technical assistance.

m. Routine operation of facilities, mobile assets, and equipment.

n. Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the form or method of the transfer.

o. The designation of empowerment zones, enterprise communities, or viticultural areas.

p. Actions by any of the federal banking agencies or the federal reserve banks, including actions regarding charters, applications, notices, licenses, the supervision or examination of depository institutions or depository institution holding companies, access to the discount window, or the provision of financial services to banking organizations or to any state, agency, or instrumentality of the United States.

q. Actions by the Board of Governors of the federal reserve system or any federal reserve bank to effect monetary or exchange rate policy.

r. Actions that implement a foreign affairs function of the United States.

s. Actions or portions thereof associated with transfers of land, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, reasonable condition is met, such as promptly after the land is certified as meeting the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9601 et seq., and where the federal agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real properties.

t. Transfers of real property, including land, facilities, and related personal property from a federal entity to another federal entity, and assignments of real property, including land, facilities, and related personal property from a federal entity to another federal entity, for subsequent deeding to eligible applicants.

u. Actions by the Department of the Treasury to effect fiscal policy and to exercise the borrowing authority of the United States.

v. Air traffic control activities and adopting approach, departure, and en route procedures for aircraft operations above the mixing height specified in the applicable implementation plan. Where the applicable implementation plan does not specify a mixing height, the federal agency may use the 3,000 feet above ground level as a default mixing height, unless the agency demonstrates that use of a different mixing height is appropriate because the change in emissions at and above that height caused by the federal action is de minimis.

3. Actions where the emissions are not reasonably foreseeable, such as the following:

a. Initial outer continental shelf lease sales that are made on a broad scale and are followed by exploration and development plans on a project level.

b. Electric power marketing activities that involve the acquisition, sale, and transmission of electric energy.

4. Individual actions that implement a decision to conduct or carry out a program that has been found to conform to the applicable implementation plan, such as prescribed burning actions which are consistent with a conforming land management plan, that has been found to conform to the applicable implementation plan. The land management plan shall have been found to conform within the past five years.

G. Notwithstanding the other requirements of this section, a conformity determination is not required for the following federal actions or portions thereof:

1. The portion of an action that includes major or minor new or modified stationary sources that require a permit under the new source review program.

2. Actions in response to emergencies that are typically commenced on the order of hours or days after the emergency and, if applicable, that meet the requirements of subsection H of this section.

3. Research, investigations, studies, demonstrations, or training (other than those exempted under subdivision F 2 of this section), where no environmental detriment is incurred, or the particular action furthers air quality research, as determined by the department.

4. Alteration and additions of existing structures as specifically required by new or existing applicable environmental legislation or environmental regulations (for example, hush houses for aircraft engines and scrubbers for air emissions).

5. Direct emissions from remedial and removal actions carried out under CERCLA and associated regulations to the extent the emissions either comply with the substantive requirements of the new source review program or are exempted from other environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA.

H. Federal actions that are part of a continuing response to an emergency or disaster under subdivision G 2 of this section and that are to be taken more than six months after the commencement of the response to the emergency or disaster under subdivision G 2 of this section are exempt from the requirements of this subsection only if:

1. The federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional six months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests, and foreign policy commitments; or

2. For actions that are to be taken after those actions covered by subdivision H 1 of this section, the federal agency makes a new determination as provided in subdivision H 1 of this section, and:

a. Provides a draft copy of the written determinations required to affected EPA regional offices, the affected states and air pollution control agencies, and any federally recognized Indian tribal government in the nonattainment or maintenance area. Those organizations shall be allowed 15 days from the beginning of the extension period to comment on the draft determination; and

b. Within 30 days after making the determination, publish a notice of the determination by placing a prominent advertisement in a daily newspaper of general circulation in the area affected by the action.

3. If additional actions are necessary in response to an emergency or disaster under subdivision G 2 of this section beyond the specified time period in subdivision 2 of this subsection, a federal agency may make a new written determination as described in subdivision 2 of this subsection for as many six-month periods as needed, but in no case shall this exemption extend beyond three six-month periods except where an agency provides information to EPA and the department stating that the conditions that gave rise to the emergency exemption continue to exist and how such conditions effectively prevent the agency from conducting a conformity evaluation.

I. Notwithstanding other requirements of this chapter, actions specified by individual federal agencies that have met the criteria set forth in subdivision J 1, J 2, or J 3 of this section and the procedures set forth in subsection K of this section are presumed to conform, except as provided in subsection M of this section. Actions specified by individual federal agencies as presumed to conform shall not be used in combination with one another when the total direct and indirect emissions from the combination of actions would equal or exceed any of the rates specified in subdivision E 1 or E 2 of this section.

J. The federal agency shall meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in either subdivision 1, 2, or 3 of this subsection.

1. The federal agency shall clearly demonstrate, using methods consistent with this regulation, that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not:

a. Cause or contribute to any new violation of any standard in any area;

b. Interfere with the provisions in the applicable implementation plan for maintenance of any standard;

c. Increase the frequency or severity of any existing violation of any standard in any area;

d. Delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable implementation plan for purposes of:

(1) A demonstration of reasonable further progress;

(2) A demonstration of attainment; or

(3) A maintenance plan.

2. The federal agency shall provide documentation that the total of direct and indirect emissions from the future actions would be below the emission rates for a conformity determination that are established in subsection B of this section, based, for example, on similar actions taken over recent years.

3. The federal agency shall clearly demonstrate that the emissions from the type or category of actions and the amount of emissions from the action are included in the applicable implementation plan and the department provides written concurrence that the emissions from the actions along with all other expected emissions in the area will not exceed the emission budget in the applicable implementation plan.

K. In addition to meeting the criteria for establishing exemptions set forth in subdivision J 1, J 2, or J 3 of this section, the following procedures shall also be complied with to presume that activities shall conform:

1. The federal agency shall identify through publication in the Federal Register its list of proposed activities that are presumed to conform, and the basis for the presumptions. The notice shall clearly identify the type and size of the action that would be presumed to conform and provide criteria for determining if the type and size of action qualifies it for the presumption;

2. The federal agency shall notify the appropriate EPA regional offices, department, and local air quality agencies and, where applicable, the lead planning organization, and the metropolitan planning organization and provide at least 30 days for the public to comment on the list of proposed activities presumed to conform. If the presumed to conform action has regional or national application (e.g., the action will cause emission increases in excess of the de minimis levels identified in subsection E of this section in more than one EPA region), the federal agency, as an alternative to sending it to EPA regional offices, may send the draft conformity determination to EPA, Office of Air Quality Planning and Standards;

3. The federal agency shall document its response to all the comments received and make the comments, response, and final list of activities available to the public upon request; and

4. The federal agency shall publish the final list of such activities in the Federal Register.

L. Emissions from the following actions are presumed to conform:

1. Actions at installations with facility-wide emission budgets meeting the requirements in 9VAC5-160-181 provided that the department has included the emission budget in the EPA-approved applicable implementation plan and the emissions from the action along with all other emissions from the installation will not exceed the facility-wide emission budget.

2. Prescribed fires conducted in accordance with a smoke management program that meets the requirements of EPA's Interim Air Quality Policy on Wildland and Prescribed Fires (April 1998) or an equivalent replacement EPA policy.

3. Emissions for actions that the department identifies in the EPA-approved applicable implementation plan as presumed to conform.

M. Even though an action would otherwise be presumed to conform under subsection I or L of this section, an action shall not be presumed to conform and the requirements of 9VAC5-160-110 through 9VAC5-160-180, 9VAC5-160-182 through 9VAC5-160-184, and 9VAC5-160-190 shall apply to the action if EPA or a third party shows that the action would:

1. Cause or contribute to any new violation of any standard in any area;

2. Interfere with provisions in the applicable implementation plan for maintenance of any standard;

3. Increase the frequency or severity of any existing violation of any standard in any area; or

4. Delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable implementation plan for purposes of (i) a demonstration of reasonable further progress, (ii) a demonstration of attainment, or (iii) a maintenance plan.

N. Any measures used to affect or determine applicability of this chapter, as determined under this section, shall result in projects that are in fact de minimis, shall result in the de minimis levels prior to the time the applicability determination is made, and shall be state or federally enforceable. Any measures that are intended to reduce air quality impacts for this purpose shall be identified (including the identification and quantification of all emission reductions claimed) and the process for implementation (including any necessary funding of the measures and tracking of the emission reductions) and enforcement of the measures shall be described, including an implementation schedule containing explicit timelines for implementation. Prior to a determination of applicability, the federal agency making the determination shall obtain written commitments from the appropriate persons or agencies to implement any measures which are identified as conditions for making the determinations. The written commitment shall describe the mitigation measures and the nature of the commitment, in a manner consistent with the previous sentence. After this regulation is approved by EPA, enforceability through the applicable implementation plan of any measures necessary for a determination of applicability shall apply to all persons who agree to reduce direct and indirect emissions associated with a federal action for a conformity applicability determination.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia; §§ 108, 109, 182, and 302 of the Clean Air Act; 40 CFR Parts 50, 53, and 58.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011; Errata, 27:15 VA.R. 1978 March 28, 2011; amended, Virginia Register Volume 33, Issue 4, eff. November 16, 2016; Volume 33, Issue 17, eff. May 17, 2017; Volume 36, Issue 12, eff. March 4, 2020.

9VAC5-160-40 Authority of board and department

A. No provision of this chapter shall limit the power of the board to take such appropriate action as necessary to control and abate air pollution in emergency situations.

B. In accordance with the Virginia Air Pollution Control Law and the Administrative Process Act and by the adoption of this chapter, the board confers upon the department the administrative, enforcement and decision making authority enumerated in this chapter.

C. The board reserves the right to exercise its authority in any of the powers delegated in this chapter should it choose to do so.

D. The director has final authority to adjudicate contested decisions of subordinates delegated powers by the director prior to appeal of the decisions to the circuit court or consideration by the board.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997.

9VAC5-160-50 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

9VAC5-160-80 Relationship of state regulations to federal regulations

A. In order for the Commonwealth of Virginia to fulfill its obligations under the federal Clean Air Act, some provisions of this chapter are required to be approved by EPA and when approved those provisions become federally enforceable.

B. In cases where this chapter specifies that procedures or methods shall be approved by, acceptable to, or determined by the board or department or other similar phrasing or specifically provide for decisions to be made by the board or department, it may be necessary to have the actions (approvals determinations, exemptions, exclusions, or decisions) reviewed and confirmed as acceptable or approved by EPA in order to make them federally enforceable. Determination of which state actions require federal confirmation or approval and the administrative mechanism for making associated confirmation or approval decisions shall be made on a case-by-case basis in accordance with EPA regulations and policy.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997.

9VAC5-160-90 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.

Part III Criteria and Procedures for Making Conformity Determinations

9VAC5-160-110 General

A. No federal agency shall engage in, support in any way, or provide financial assistance for, license, or permit, or approve any activity which does not conform to an applicable implementation plan.

B. A federal agency must make a determination that a federal action conforms to the applicable implementation plan in accordance with the requirements of this chapter before the action is taken.

C. Reserved.

D. Notwithstanding any provision of this chapter, a determination that an action is in conformity with the applicable implementation plan does not exempt the action from any other requirements of the applicable implementation plan, NEPA, or the federal Clean Air Act.

E. If an action would result in emissions originating in more than one nonattainment or maintenance area, the conformity must be evaluated for each area separately.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-120 Federal agency conformity responsibility

Any department, agency, or instrumentality of the federal government taking an action subject to this regulation shall make its own conformity determination consistent with the requirements of this part. In making its conformity determination, a federal agency shall follow the requirements in 9VAC5-160-130 through 9VAC5-160-180 and 9VAC5-160-182 through 9VAC5-160-185 and shall consider comments from any interested parties. Where multiple federal agencies have jurisdiction for various aspects of a project, a federal agency may choose to adopt the analysis of another federal agency or develop its own analysis in order to make its conformity determination.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-130 Reporting requirements

A. A federal agency making a conformity determination under 9VAC5-160-120 through 9VAC5-160-180 and 9VAC5-160-182 through 9VAC5-160-184 shall provide to the appropriate EPA regional office or offices, department and local air quality agencies, any federally recognized Indian tribal government in the nonattainment or maintenance area and, where applicable, affected federal land managers, the lead planning organization, and the metropolitan planning organization, a 30-day notice that describes the proposed action and the federal agency's draft conformity determination on the action. If the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in 9VAC5-160-30 E in three or more EPA regions), the federal agency, as an alternative to sending it to EPA regional offices, may provide the notice to EPA's Office of Air Quality Planning and Standards.

B. A federal agency shall notify the appropriate EPA regional office or offices, department and local air quality agencies, any federally recognized Indian tribal government in the nonattainment or maintenance area and, where applicable, affected federal land managers, the lead planning organization, and the metropolitan planning organization within 30 days after making a final conformity determination under 9VAC5-160-160.

C. The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, security manuals, or executive orders concerning the use, access, and release of such materials. Subject to applicable procedures to protect restricted information from public disclosure, any information or materials excluded from the draft or final conformity determination or supporting materials may be made available in a restricted information annex to the determination for review by federal and department representatives who have received appropriate clearances to review the information.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-140 Public participation

A. Upon request by any person regarding a specific federal action, a federal agency shall make available, subject to the limitation in subsection E of this section, for review its draft conformity determination under 9VAC5-160-160 with supporting materials that describe the analytical methods and conclusions relied upon in making the applicability analysis and draft conformity determination.

B. A federal agency shall make public its draft conformity determination under 9VAC5-160-160 by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action and by providing 30 days for written public comment prior to taking any formal action on the draft determination. This comment period may be concurrent with any other public involvement such as occurs in the NEPA process. If the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in 9VAC5-160-30 E in three or more EPA regions), the federal agency, as an alternative to publishing separate notices, may publish a notice in the Federal Register.

C. A federal agency shall document its response to all the comments received on its draft conformity determination under 9VAC5-160-160 and make the comments and responses available, subject to the limitation in subsection E of this section, upon request by any person regarding a specific federal action, within 30 days of the final conformity determination.

D. A federal agency shall make public its final conformity determination under 9VAC5-160-160 for a federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action within 30 days of the final conformity determination. If the action would have multi-regional or national impacts, the federal agency, as an alternative, may publish the notice in the Federal Register.

E. The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, or executive orders concerning the release of such materials.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-150 Reevaluation of conformity

A. Once a conformity determination is completed by a federal agency, that determination is not required to be reevaluated if the agency has maintained a continuous program to implement the action, the determination has not lapsed as specified in subsection B of this section, or any modification to the action does not result in an increase in emissions above the levels specified in 9VAC5-160-30 B. If a conformity determination is not required for the action at the time NEPA analysis is completed, the date of the finding of no significant impact for an environmental assessment, a record of decision for an environmental impact statement, or a categorical exclusion determination may be used as a substitute date for the conformity determination date.

B. The conformity status of a federal action automatically lapses five years from the date a final conformity determination is reported under 9VAC5-160-130, unless the federal action has been completed or a continuous program to implement the federal action has commenced.

C. Ongoing federal activities at a given site showing continuous progress are not new actions and do not require periodic redeterminations so long as such activities are within the scope of the final conformity determination reported under 9VAC5-160-130.

D. If the federal agency originally determined through the applicability analysis that a conformity determination was not necessary because the emissions for the action were below the limits in 9VAC5-160-30 B and changes to the action would result in the total emissions from the action being above the limits in 9VAC5-160-30 B, then the federal agency shall make a conformity determination.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-160 Criteria for determining conformity of general federal actions

A. An action required under 9VAC5-160-30 to have a conformity determination for a specific pollutant, shall be determined to conform to the applicable implementation plan if, for each pollutant that exceeds the rates in 9VAC5-160-30 E, or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of subsection C of this section, and meets any of the following requirements:

1. For any criteria pollutant or precursor, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable implementation plan's attainment or maintenance demonstration or reasonable further progress milestone or in a facility-wide emission budget included in an applicable implementation plan in accordance with 9VAC5-160-181;

2. For precursors of ozone, nitrogen dioxide, or particulate matter, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violations in the past, in the area with the federal action) through a revision to the applicable implementation plan or a similarly enforceable measure that effects emission reductions so that there is no net increase in emissions of that pollutant;

3. For any directly emitted criteria pollutant, the total of direct and indirect emissions from the action meets the requirements:

a. Specified in subsection B of this section, based on areawide air quality modeling analysis and local air quality modeling analysis; or

b. Meet the requirements of subdivision 5 of this subsection, and, for local air quality modeling analysis, the requirement of subsection B of this section;

4. For carbon monoxide or particulate matter:

a. Where the department determines (in accordance with 9VAC5-160-120 and 9VAC5-160-130 and consistent with the applicable implementation plan) that an areawide air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in subsection B of this section, based on local air quality modeling analysis; or

b. Where the department determines (in accordance with 9VAC5-160-120 and 9VAC5-160-130 and consistent with the applicable implementation plan) that an areawide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in subsection B of this section, based on areawide modeling, or meet the requirements of subdivision 5 of this subsection; or

5. For ozone or nitrogen dioxide, and for the purposes of subdivisions 3 b and 4 b of this subsection, each portion of the action or the action as a whole meets any of the following requirements:

a. Where EPA has approved a revision to the applicable implementation plan after the area was designated as nonattainment and the department makes a determination that as provided in subdivision 5 a (1) of this subsection or where the Commonwealth of Virginia makes a commitment as provided in subdivision 5 a (2) of this subsection:

(1) The total of direct and indirect emissions from the action or portion thereof is determined and documented by the department to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed the emissions budgets specified in the applicable implementation plan.

(2) The total of direct and indirect emissions from the action or portion thereof is determined and documented by the department to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would exceed an emissions budgets specified in the applicable implementation plan and the Governor or the Governor's designee for state implementation plan actions makes a written commitment to EPA which includes the following:

(a) A specific schedule for adoption and submittal of a revision to the applicable implementation plan which would achieve the needed emissions reductions prior to the time emissions from the federal action would occur;

(b) Identification of specific measures for incorporation into the applicable implementation plan which would result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable implementation plan;

(c) A demonstration that all existing applicable implementation plan requirements are being implemented in the area for the pollutants affected by the federal action, and that local authority to implement additional requirements has been fully pursued;

(d) A determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action; and

(e) Written documentation including all air quality analyses supporting the conformity determination.

(3) Where a federal agency made a conformity determination based on a commitment from the Commonwealth of Virginia under subdivision 5 a (2) of this subsection, and the department has submitted an implementation plan to EPA covering the time period during which the emissions will occur or is scheduled to submit such an implementation plan within 18 months of the conformity determination, the commitment is automatically deemed a call for a revision to the applicable implementation plan by EPA under § 110(k)(5) of the federal Clean Air Act, effective on the date of the federal conformity determination and requiring response within 18 months or any shorter time within which the Commonwealth of Virginia commits to revise the applicable implementation plan.

(4) Where a federal agency made a conformity determination based on a commitment from the Commonwealth of Virginia under subdivision 5 a (2) of this subsection and the department has not submitted an implementation plan covering the time period when the emissions will occur or is not scheduled to submit such an implementation plan within 18 months of the conformity determination, the department will, within 18 months, submit to EPA a revision to the existing implementation plan committing to include the emissions in the future implementation plan revision.

b. The action or portion thereof, as determined by the metropolitan planning organization, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable implementation plan under 40 CFR Part 51, Subpart T, or 40 CFR Part 93, Subpart A.

c. The action or portion thereof fully offsets its emissions within the same nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violation in the past, in the area with the federal action) through a revision to the applicable implementation plan or an equally enforceable measure that effects emissions reductions equal to or greater than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that pollutant.

d. Where EPA has not approved a revision to the relevant implementation plan since the area was redesignated or classified, the total of direct and indirect emissions from the action for the future years (described in 9VAC5-160-170) do not increase emissions with respect to the baseline emissions.

(1) The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during:

(a) The most current calendar year with a complete emissions inventory available before an area is designated unless EPA sets another year;

(b) The emission budget in the applicable implementation plan; or

(c) The year of the baseline inventory in the PM₁₀-applicable implementation plan.

(2) The baseline emissions are the total of direct and indirect emissions calculated for the future years (described in 9VAC5-160-170 D) using the historic activity levels (described in subdivision 5 d (1) of this subsection) and appropriate emission factors for the future years.

e. Where the action involves regional water or wastewater projects or both, the projects are sized to meet only the needs of population projections that are in the applicable implementation plan, based on assumptions regarding per capita use that are developed or approved in accordance with 9VAC5-160-170 A.

B. The areawide or local air quality modeling analyses or both shall:

1. Meet the requirements of 9VAC5-160-170; and

2. Show that the action does not:

a. Cause or contribute to any new violation of any standard in any area; or

b. Increase the frequency or severity of any existing violation of any standard in any area.

C. Notwithstanding any other requirements of this section, an action subject to this section may not be determined to conform to the applicable implementation plan unless the total of direct and indirect emissions from the action is in compliance or consistent with all relevant requirements and milestones contained in the applicable implementation plan, such as elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements, and the action is otherwise in accordance with all relevant requirements of the applicable implementation plan.

D. Any analyses required under this section shall be completed, and any mitigation requirements necessary for a finding of conformity shall be identified in accordance with 9VAC5-160-180 before the determination of conformity is made.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-170 Procedures for conformity determinations

A. The analyses required under this section shall be based on the latest planning assumptions.

1. All planning assumptions (including, but not limited to, per capita water and sewer use, vehicle miles traveled per capita or per household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, wood stoves per household, and the geographic distribution of population growth) shall be derived from the estimates of current and future population, employment, travel, and congestion most recently approved by the metropolitan planning organization or other agency authorized to make the estimates, where available. The conformity determination shall also be based on the latest assumptions about current and future background concentrations and other federal actions.

2. Any revisions to these estimates used as part of the conformity determination, including projected shifts in geographic location or level of population, employment, travel, and congestion shall be approved by the metropolitan planning organization or other agency authorized to make the estimates for the urban area.

B. The analyses required under this subsection shall be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are inappropriate, the federal agency may obtain written approval from the appropriate EPA Regional Administrator for a modification or substitution of another technique on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program.

1. For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of the applicable implementation plan shall be used for the conformity analysis as specified in subdivisions 1 a and 1 b of this subsection.

a. The EPA shall publish in the Federal Register a notice of availability of any new motor vehicle emissions model.

b. A grace period of three months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used unless EPA announces a longer grace period in the Federal Register. Conformity analyses for which the analysis was begun during the grace period or no more than three months before the Federal Register notice of availability of the latest emission model may continue to use the previous version of the model specified by EPA.

2. For nonmotor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the "Compilation of Air Pollutant Emission Factors (AP-42)" shall be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary sources which are part of the conformity analysis.

C. The air quality modeling analyses required under this section shall be based on the applicable air quality models, databases, and other requirements specified in Appendix W of 40 CFR Part 51.

D. The analyses required under this subsection shall be based on the total of direct and indirect emissions from the action and shall reflect emission scenarios that are expected to occur under each of the following cases:

1. The attainment year specified in the applicable implementation plan or, if the applicable implementation plan does not specify an attainment year, the latest attainment year possible under the federal Clean Air Act; or

2. The last year for which emissions are projected in the maintenance plan;

3. The year during which the total of direct and indirect emissions from the action is expected to be the greatest on an annual basis; and

4. Any year for which the applicable implementation plan specifies an emissions budget.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-180 Mitigation of air quality impacts

A. Any measures that are intended to mitigate air quality impacts shall be identified (including the identification and quantification of all emission reductions claimed) and the process for implementation (including any necessary funding of the measures and tracking of the emission reductions) and enforcement of the measures shall be described, including an implementation schedule containing explicit timelines for implementation.

B. Prior to determining that a federal action is in conformity, the federal agency making the conformity determination shall obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity decisions. The written commitment shall describe the mitigation measures and the nature of the commitment, in a manner consistent with subsection A of this section.

C. Persons or agencies voluntarily committing to mitigation measures to facilitate positive conformity determinations shall comply with the obligations of the commitments.

D. In instances where the federal agency is licensing, permitting, or otherwise approving the action of another governmental or private entity, approval by the federal agency shall be conditioned on the other entity meeting the mitigation measures set forth in the conformity determination as provided in subsection A of this section.

E. When necessary because of changed circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination. Any proposed change in the mitigation measures is subject to the reporting requirements of 9VAC5-160-130 and the public participation requirements of 9VAC5-160-140.

F. Written comments to mitigation measures shall be obtained prior to a positive conformity determination, and such commitments shall be fulfilled.

G. After EPA approves this regulation, any agreements, including mitigation measures, necessary for a conformity determination shall be both state and federally enforceable. Enforceability through the applicable implementation plan shall apply to all persons who agree to mitigate direct and indirect emissions associated with a federal action for a conformity determination.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-181 Conformity evaluation for federal installations with facility-wide emission budgets

A. The department may, in cooperation with federal agencies or third parties authorized by the agency that operate installations subject to federal oversight, develop and adopt a facility-wide emission budget to be used for demonstrating conformity under 9VAC5-160-160 A 1. The facility-wide budget shall meet the following criteria:

1. Be for a set time period;

2. Cover the pollutants or precursors of the pollutants for which the area is designated nonattainment or maintenance;

3. Include specific quantities allowed to be emitted on an annual or seasonal basis;

4. The emissions from the facility along with all other emissions in the area will not exceed the emission budget for the area;

5. Include specific measures to ensure compliance with the budget, such as periodic reporting requirements or compliance demonstration, when the federal agency is taking an action that would otherwise require a conformity determination;

6. Be submitted to EPA as a revision to the applicable implementation plan; and

7. The revision to the applicable implementation plan shall be approved by EPA.

B. The facility-wide budget developed and adopted in accordance with subsection A of this section may be revised by following the requirements in subsection A of this section.

C. Total direct and indirect emissions from federal actions in conjunction with all other emissions subject to general conformity from the facility that do not exceed the facility budget adopted pursuant to subsection A of this section are presumed to conform to the applicable implementation plan and do not require a conformity analysis.

D. If the total direct and indirect emissions from the federal actions in conjunction with the other emissions subject to general conformity from the facility exceed the budget adopted pursuant to subsection A of this section, the action shall be evaluated for conformity. A federal agency may use the compliance with the facility-wide emissions budget as part of the demonstration of conformity, i.e., the agency would have to mitigate or offset the emissions that exceed the emission budget.

E. If the applicable implementation plan for the area includes a category for construction emissions, the negotiated budget may exempt construction emissions from further conformity analysis.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-182 Emissions beyond the time period covered by the applicable implementation plan

If a federal action would result in total direct and indirect emissions above the applicable thresholds that would be emitted beyond the time period covered by the applicable implementation plan, the federal agency may (i) demonstrate conformity with the last emission budget in the applicable implementation plan or (ii) request the Commonwealth of Virginia to adopt an emissions budget for the action for inclusion in the applicable implementation plan. The Commonwealth of Virginia will submit a revision of the applicable implementation plan to EPA within 18 months either including the emissions in the existing implementation plan or establishing an enforceable commitment to include the emissions in future revisions to the applicable implementation plan based on the latest planning assumptions at the time of the revision to the applicable implementation plan. No such commitment by the Commonwealth of Virginia shall restrict the Commonwealth of Virginia's ability to require RACT, RACM, or any other control measures within the Commonwealth of Virginia's authority to ensure timely attainment of the national ambient air quality standards.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-183 Timing of offsets and mitigation measures

A. The emissions reductions from an offset or mitigation measure used to demonstrate conformity shall occur during the same calendar year as the emission increases from the action except as provided in subsection B of this section.

B. The department may approve emissions reductions in other years provided:

1. The reductions are greater than the emission increases by the following ratios:

| | Extreme nonattainment areas: | 1.5:1 | | --- | --- | --- | | | Severe nonattainment areas: | 1.3:1 | | | Serious nonattainment areas: | 1.2:1 | | | Moderate nonattainment areas: | 1.15:1 | | | All other areas: | 1.1:1 |

2. The time period for completing the emissions reductions shall not exceed twice the period of the emissions.

3. The offset or mitigation measure with emissions reductions in another year shall not:

a. Cause or contribute to a new violation of any air quality standard;

b. Increase the frequency or severity of any existing violation of any air quality standard; or

c. Delay the timely attainment of any standard or any interim emissions reductions or other milestones in any area.

C. The approval by the department of an offset or mitigation measure with emissions reductions in another year does not relieve the Commonwealth of Virginia of any obligation to meet any implementation plan or federal Clean Air Act milestone or deadline. The approval of an alternate schedule for mitigation measures is at the discretion of the department, and it is not required to approve an alternate schedule.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-184 Inter-precursor mitigation measures and offsets

Federal agencies shall reduce the same type of pollutant as being increased by the federal action except the department may approve offsets or mitigation measures of different precursors of the same criteria pollutant, if such trades are allowed by the Commonwealth of Virginia in 9VAC5-80 (Permits for Stationary Sources) as approved in the applicable implementation plan, are technically justified, and have a demonstrated environmental benefit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-185 Early emission reduction credit programs at federal facilities and installation subject to federal oversight

A. Federal facilities and installations subject to federal oversight may, with the approval of the department, create an early emissions reductions credit program. The federal agency may create the emission reduction credits in accordance with the requirements in subsection B of this section and use them in accordance with subsection C of this section.

B. Creation of emission reduction credits shall be accomplished as follows:

1. Emissions reductions shall be quantifiable through the use of standard emission factors or measurement techniques. If nonstandard factors or techniques to quantify the emissions reductions are used, the federal agency shall receive approval from the department and from the EPA regional office. The emission reduction credits do not have to be quantified before the reduction strategy is implemented, but shall be quantified before the credits are used in the general conformity evaluation.

2. The emission reduction methods shall be consistent with the applicable implementation plan attainment and reasonable further progress demonstrations.

3. The emissions reductions shall not be required by or credited to other applicable implementation plan provisions.

4. Both the department and federal air quality agencies shall be able to take legal action to ensure continued implementation of the emission reduction strategy. In addition, private citizens shall also be able to initiate action to ensure compliance with the control requirement.

5. The emissions reductions shall be permanent or the timeframe for the reductions shall be specified.

6. The federal agency shall document the emissions reductions and provide a copy of the document to the department and the EPA regional office for review. The documentation shall include a detailed description of the emission reduction strategy and a discussion of how it meets the requirements of subdivisions 1 through 5 of this subsection.

C. The emission reduction credits created in accordance with subsection B of this section may be used, subject to the following limitations, to reduce the emissions increase from a federal action at the facility for the conformity evaluation.

1. If the technique used to create the emission reduction is implemented at the same facility as the federal action and could have occurred in conjunction with the federal action, then the credits may be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in 9VAC5-160-30 and as offsets or mitigation measures required by 9VAC5-160-160.

2. If the technique used to create the emission reduction is not implemented at the same facility as the federal action or could not have occurred in conjunction with the federal action, then the credits shall not be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in 9VAC5-160-30, but may be used to offset or mitigate the emissions as required by 9VAC5-160-160.

3. Emissions reductions credits shall be used in the same year in which they are generated.

4. Once the emission reduction credits are used, they shall not be used as credits for another conformity evaluation. However, unused credits from a strategy used for one conformity evaluation may be used for another conformity evaluation as long as the reduction credits are not double counted.

5. Federal agencies shall notify the department and the EPA regional office when the emission reduction credits are being used.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-190 Savings provision

The requirements of 40 CFR Part 93 to demonstrate conformity required under § 176(c) of the federal Clean Air Act apply to all federal actions in designated nonattainment and maintenance areas where EPA has not approved this regulation. When EPA approves this regulation in a revision to the Commonwealth of Virginia applicable implementation plan, a conformity evaluation is governed by the approved or approved portion of this regulation. The regulations contained in 40 CFR Part 93 apply only for the portions, if any, of the 40 CFR Part 93 requirements not contained in the provisions of this regulation approved by EPA. In addition, any previously applicable implementation plan requirements shall remain enforceable until EPA approves the revision to the Commonwealth of Virginia's applicable implementation plan to specifically include the revised requirements or remove requirements.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; amended, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

9VAC5-160-200 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 12, Issue 26, eff. January 1, 1997; repealed, Virginia Register Volume 27, Issue 11, eff. March 2, 2011.

Chapter 170 Regulation for General Administration

Part I Definitions

9VAC5-170-10 Use of terms

A. For the purpose of this chapter and subsequent amendments to it, of regulations of the board, or of orders issued by the department, the words or terms shall have the meanings given them in 9VAC5-170-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in the regulations of the board, terms used shall have the meanings commonly ascribed to them by recognized authorities.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-20 Terms defined

"Administrative proceeding" means an informal fact finding or formal hearing.

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Air pollution" means the presence in the outdoor atmosphere of one or more substances that are or may be harmful or injurious to human health, welfare, or safety; to animal or plant life; or to property; or that unreasonably interfere with the enjoyment by the people of life or property.

"Board" means the State Air Pollution Control Board or its designated representative. When used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter,"board" means the Department of Environmental Quality.

"Case decision" means any determination that a named party as a matter of past or present fact, or as a matter of threatened or contemplated private action, either is or is not, or may or may not be (i) in violation of any law or regulations, or (ii) in compliance with any existing requirement for obtaining or retaining a permit or other right or benefit. Case decisions include, but are not limited to, consent orders, consent agreements, orders, special orders, emergency special orders, permits, waivers, and licenses. Case decisions do not include notices of violations, variances, regulations, or inspection reports.

"Confidential information" means secret formulae, secret processes, secret methods, or other trade secrets that are proprietary information certified by the signature of the responsible person for the owner to meet the following criteria: (i) information for which the owner has been taking and will continue to take measures to protect confidentiality, (ii) information that has not been and is not presently reasonably obtainable without the owner's consent by private citizens or other firms through legitimate means other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding, (iii) information that is not publicly available from sources other than the owner, and (iv) information the disclosure of which would cause substantial harm to the owner.

"Consent agreement" means an agreement that the owner or another person will perform specific actions for the purpose of diminishing or abating the causes of air pollution or for the purpose of coming into compliance with the regulations of the board, by mutual agreement of the owner or another person and the department.

"Consent order" means a consent agreement issued as an order. Consent orders may be issued without a formal hearing.

"Department" means an employee or other representative of the Virginia Department of Environmental Quality as designated by the director.

"Director" means the Director of the Virginia Department of Environmental Quality or a designated representative.

"Disclosure form" means the financial statement required by § 2.2-3114 of the State and Local Government Conflict of Interests Act (Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia).

"Emergency" means a situation that immediately and unreasonably affects, or has the potential to immediately and unreasonably affect, public health, safety, or welfare; the health of animal or plant life; or property, whether used for recreational, commercial, industrial, agricultural, or other reasonable use.

"Emergency special order" means an order of the department issued under the provisions of § 10.1-1309 B of the Code of Virginia, after declaring a state of emergency and without a formal hearing, to owners who are permitting or causing air pollution to cease the pollution. These orders shall become invalid if a formal hearing is not held within 10 days after the effective date.

"Enabling law" or "enabling laws" means provisions of the Constitution and statutes of the Commonwealth of Virginia authorizing the board to make regulations or the department to decide cases or containing procedural requirements therefor, including, but not limited to, the (i) Virginia Air Pollution Control Law and (ii) the Virginia Motor Vehicle Emissions Control Law.

"Evidentiary hearing" means a formal proceeding that provides opportunity for interested persons to submit factual proofs in formal proceedings as provided in § 2.2-4009 of the Administrative Process Act in connection with the making of regulations. Evidentiary hearings do not include the informational inquiries of an informal nature provided in § 2.2-4007.01 B of the Administrative Process Act.

"Federal Clean Air Act" means 42 USC 7401 et seq., 91 Stat 685.

"Formal hearing" means a formal proceeding that provides for the right of private parties to submit factual proofs as provided in § 2.2-4020 of the Administrative Process Act in connection with case decisions. Formal hearings do not include the factual inquiries of an informal nature provided in § 2.2-4019 of the Administrative Process Act.

"Informal fact finding" means an informal conference or consultation proceeding used to ascertain the fact basis for case decisions as provided in § 2.2-4019 of the Administrative Process Act.

"Locality" means a city, town, county, or other public body created by or pursuant to state law.

"Order" means a decision or directive of the department, including special orders, emergency special orders, and other orders of all types, rendered for the purpose of diminishing or abating the causes of air pollution or enforcement of the regulations of the board. Unless specified otherwise in the Virginia Air Pollution Control Law or in the regulations of the board, orders shall be issued only after the appropriate administrative proceeding.

"Owner" means a person, including bodies politic and corporate, associations, partnerships, personal representatives, trustees, and committees, as well as individuals, who owns, leases, operates, controls, or supervises a source.

"Party" means, for the purposes of Part VIII (9VAC5-170-190 et seq.) of this chapter, a person named in the record who actively participates in the administrative proceeding or offers comments through the public participation process. The term "party" also means the department.

"Person" means an individual, a corporation, a partnership, an association, a governmental body, a municipal corporation, or another legal entity.

"Pollutant" means a substance the presence of which in the outdoor atmosphere is or may be harmful or injurious to human health, welfare, or safety; to animal or plant life; or to property; or which unreasonably interferes with the enjoyment by the people of life or property.

"Potential conflict of interest" means a personal interest as defined in § 2.2-3101 of the State and Local Government Conflict of Interests Act (Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia).

"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 2.2-4007.01 B of the Administrative Process Act, held to afford people an opportunity to submit views and data relative to a matter on which a decision of the board or the department is pending.

"Public meeting" means an informal proceeding conducted by the department in conjunction with the notice of intended regulatory action to afford people an opportunity to submit comments relative to intended regulatory actions.

"Public participation process" means any element of a board or department decision making process that involves the use of a public meeting, public hearing, or evidentiary hearing.

"Regulations of the board" means regulations adopted by the State Air Pollution Control Board under a provision of the Code of Virginia.

"Source" means one or combination of the following: buildings, structures, facilities, installations, articles, machines, equipment, landcraft, watercraft, aircraft, or other contrivances that contribute, or may contribute, either directly or indirectly to air pollution. An activity by a person that contributes, or may contribute, either directly or indirectly to air pollution, including, but not limited to, open burning, generation of fugitive dust or emissions, and cleaning with abrasives or chemicals.

"Special order" means an order of the department issued:

1. Under the provisions of § 10.1-1309 of the Code of Virginia:

a. To owners who are permitting or causing air pollution to cease and desist from the pollution;

b. To owners who have failed to construct facilities in accordance with or have failed to comply with plans for the control of air pollution submitted by them to, and approved by the department, to construct facilities in accordance with or otherwise comply with the approved plan;

c. To owners who have violated or failed to comply with the terms and provisions of an order or directive issued by the department to comply with the terms and provisions;

d. To owners who have contravened duly adopted and promulgated air quality standards and policies to cease and desist from the contravention and to comply with the air quality standards and policies; and

e. To require an owner to comply with the provisions of the Virginia Air Pollution Control Law and a decision of the department; or

2. Under the provisions of § 10.1-1309.1 of the Code of Virginia, which require that an owner file with the department a plan to abate, control, prevent, remove, or contain a substantial and imminent threat to public health or the environment that is reasonably likely to occur if the source ceases operations.

"Variance" means the temporary exemption of an owner or other person from the regulations of the board, or a temporary change in the regulations of the board as they apply to an owner or other person.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Virginia Motor Vehicle Emissions Control Law" means Article 22 (§ 46.2-1176 et seq.) of Chapter 10 of Title 46.2 of the Code of Virginia.

"Virginia Register Act" means Chapter 41 (§ 2.2-4100 et seq.) of Title 2.2 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 25, Issue 5, eff. January 1, 2009; Volume 31, Issue 4, eff. November 19, 2014; Volume 39, Issue 5, eff. November 23, 2022.

Part II General Provisions

9VAC5-170-30 Applicability

A. The provisions of this chapter, unless specified otherwise, shall apply throughout the Commonwealth of Virginia.

B. The provisions of this chapter, unless specified otherwise, shall apply in the administration of all regulations of the board to the extent not covered in a specific regulation of the board. In cases where the provisions of this chapter conflict with another regulation of the board, the provisions of the other regulation shall apply.

C. No provision of this chapter shall limit the power of the department to take appropriate action as necessary to control and abate air pollution in emergency situations.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-40 Hearings and proceedings

A. Four types of proceedings are used in the administration of the following programs.

1. A public hearing is held in each of two situations, as explained below.

a. A public hearing is required before considering regulations in accordance with § 10.1-1308 of the Virginia Air Pollution Control Law. The procedure for a public hearing shall conform to § 2.2-4007.01 B of the Administrative Process Act, except as modified by §§ 10.1-1307 F and 10.1-1308 of the Virginia Air Pollution Control Law, and to 9VAC5-5 (Public Participation Guidelines).

b. A public hearing is required before considering variances and amendments to and revocation of variances in accordance with § 10.1-1307 C of the Virginia Air Pollution Control Law. The procedure for a public hearing shall conform to § 10.1-1307 C of the Virginia Air Pollution Control Law and to the provisions of 9VAC5-170-140.

2. An informal fact finding is used to negotiate and to make case decisions. The procedure for an informal fact finding shall conform to § 2.2-4019 of the Administrative Process Act.

3. A formal hearing is held in each of two situations.

a. A formal hearing is held for the enforcement or review of orders and permits and for the enforcement of regulations in accordance with § 10.1-1307 D and § 10.1-1322 A of the Virginia Air Pollution Control Law. The procedures for this type of hearing shall conform to § 2.2-4020 of the Administrative Process Act, except as modified by § 10.1-1307 D and F of the Virginia Air Pollution Control Law.

b. A formal hearing is held for special orders or emergency special orders for the enforcement or review of orders and permits and for the enforcement of regulations in accordance with § 10.1-1309 of the Virginia Pollution Control Law. The procedures for this type of hearing shall conform to § 2.2-4020 of the Administrative Process Act, except as modified by §§ 10.1-1307 F and 10.1-1309 of the Virginia Air Pollution Control Law.

4. An evidentiary hearing may be held for the making of regulations. The procedure for this type of hearing shall conform to § 2.2-4009 of the Administrative Process Act.

B. The department may adopt policies and procedures to supplement the statutory procedural requirements for the various hearings and proceedings cited in subdivisions A 1, A 2, and A 3 of this section.

C. Records of hearings and proceedings may be kept in one of the following forms:

1. Oral statements or testimony at a public hearing will be stenographically or electronically recorded, and may be transcribed to written form.

2. Oral statements or testimony at an informal fact finding will be stenographically or electronically recorded, and may be transcribed to written form.

3. Formal hearings and evidentiary hearings will be recorded by a court reporter or electronically recorded for transcription to written form.

D. Availability of records of hearings and proceedings shall be as follows:

1. A copy of the electronic recording or the transcript of a public hearing, if transcribed, will be provided within a reasonable time to anyone upon receipt of a written request and payment of the cost; if not transcribed, the additional cost of preparation will be paid by the person making the request.

2. A copy of the electronic recording or the transcript of an informal fact finding, if transcribed, will be provided within a reasonable time to anyone upon receipt of a written request and payment of cost; if not transcribed, the additional cost of preparation will be paid by the person making the request.

3. Anyone desiring a copy of the transcript of a formal hearing or evidentiary hearing recorded by a court reporter may purchase the copy directly from the court reporter; if not transcribed, the additional cost of preparation will be paid by the person making the request.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 25, Issue 5, eff. January 1, 2009; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-50 Policy and procedural information and guidance

A. The director may adopt detailed policies and procedures which:

1. Request data and information in addition to and in amplification of the provisions of the regulations of the board;

2. Specify the methods and means that may be used to determine compliance with applicable provisions of the regulations of the board;

3. Set forth the format by which all data and information should be submitted; and

4. Set forth how the regulatory programs should be implemented.

B. In cases where the regulations of the board specify that procedures or methods shall be approved by, acceptable to, or determined by the board or other similar phrasing, such phrasing shall be interpreted such as consistent with the Air Pollution Control Law of Virginia (§ 10.1-1300 et seq. of the Code of Virginia) The owner may request information and guidance concerning the proper procedures and methods, and the director shall furnish in writing such information on a case-by-case basis.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-60 Availability of information

A. Emission data in the possession of the department shall be available to the public without exception.

B. Other records, reports, or information in the possession of the department shall be available to the public with the following exception. The department shall consider records, reports, or information confidential in accordance with §§ 10.1-1314 and 10.1-1314.1 of the Virginia Air Pollution Control Law upon a showing satisfactory to the department by an owner that records, reports, or information meet the criteria in subsection C of this section and the owner provides a certification to that effect signed by a responsible representative of the owner. Records, reports or information may be disclosed, however, to other officers, employees or authorized representatives of the Commonwealth of Virginia and the U.S. Environmental Protection Agency concerned with carrying out the provisions of the Virginia Air Pollution Control Law and the federal Clean Air Act.

C. In order to be exempt from disclosure to the public under subsection B of this section, the record, report or information must satisfy the following criteria:

1. Information for which the owner has been taking and will continue to take measures to protect confidentiality;

2. Information that has not been and is not presently reasonably obtainable without the owner's consent by private citizens or other firms through legitimate means other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding;

3. Information which is not publicly available from sources other than the owner; and

4. Information the disclosure of which would cause substantial harm to the owner.

D. The department shall have the right to substitute information which is not confidential for information claimed as confidential and to inquire as to the basis of the confidentiality claim. Upon approval of the department, an owner may substitute information which is not confidential for information claimed as confidential. Information substituted shall be limited to that which would have the same substantive effect in analyses conducted by the department as the information for which the inquiry is made.

E. The responsible representative of the owner who certifies information as confidential which does not meet the criteria in subsection C of this section shall be in violation of the Virginia Air Pollution Control Law.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-70 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part III Regulations and Orders

9VAC5-170-80 Establishment of regulations and orders

A. Regulations of the board shall be adopted, amended or repealed in accordance with the provisions of the enabling laws, Articles 1 (§ 2.2-4000 et seq.) and 2 (§ 2.2-4006 et seq.) of the Administrative Process Act, and 9VAC5-5 (Public Participation Guidelines).

B. Regulations, amendments, and repeals shall become effective as provided in § 2.2-4015 of the Administrative Process Act.

C. If necessary in an emergency situation, the board may adopt, amend or stay a regulation as an exclusion under § 2.2-4011 of the Administrative Process Act, but the regulation shall remain effective no longer than one year unless readopted following the requirements of subsection A of this section. The provisions of this subsection are not applicable to emergency special orders of the department; these orders are subject to the provisions of subsection E of this section.

D. The Administrative Process Act and Virginia Register Act provide that state regulations may incorporate documents by reference. Throughout the regulations of the board, documents of the types specified below have been incorporated by reference.

1. United States Code.

2. Code of Virginia.

3. Code of Federal Regulations.

4. Federal Register.

5. Technical and scientific reference documents.

Additional information on specific documents which have been incorporated by reference and on the availability of these documents may be found in the specific regulations of the board which incorporate the documents.

E. Orders, special orders, and emergency special orders may be issued pursuant to § 10.1-1307 D, § 10.1-1309, or § 10.1-1309.1 of the Virginia Air Pollution Control Law.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 25, Issue 5, eff. January 1, 2009; Volume 39, Issue 5, eff. November 23, 2022.

Part IV (Repealed)

9VAC5-170-90 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; repealed, Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-170-100 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; repealed, Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC5-170-110 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; repealed, Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Part V Enforcement

9VAC5-170-120 Enforcement of regulations, permits, and orders

A. As provided in § 10.1-1186(10) of the Code of Virginia, the director has independent authority to compel compliance with the Virginia Air Pollution Control Law, regulations of the board, permits, certifications, and case decisions. However, whenever the director has reason to believe that a violation of any provision of the regulations of the board or a permit or order has occurred, he may serve notice on the suspected violator, citing the applicable provision of the regulations of the board, permit, or order and the facts on which the suspected violation is based. The director may obtain compliance through one of the enforcement proceedings provided in subdivisions 1 and 2 of this subsection.

1. The director may obtain compliance through administrative means. These means may be a variance, order, special order, control program, consent agreement, or another mechanism that requires compliance by a specific date. The means and the associated date shall be determined on a case-by-case basis and shall not allow an unreasonable delay in compliance.

2. The director may obtain compliance through legal means pursuant to § 10.1-1307.3, § 10.1-1316, or § 10.1-1320 of the Virginia Air Pollution Control Law.

B. Nothing in this section shall prevent the director from making efforts to obtain voluntary compliance through conference, warning or other appropriate means.

C. Orders, consent orders, delayed compliance orders, special orders, and emergency special orders are considered administrative means, and the department reserves the right to use these means in lieu of or to provide a legal basis for the enforcement of administrative means approved by the director under subsection A of this section.

D. Case decisions regarding the enforcement of regulations, orders, and permits shall be made by the director. Case decisions of the director that are made pursuant to a formal hearing may be regarded as a final decision and appealed pursuant to 9VAC5-170-200 D, with the review being on the record and not de novo with opportunity for oral argument. Case decisions of the director that are made pursuant to an informal fact finding may be appealed pursuant to 9VAC5-170-200 A.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-130 Right of entry

A. Whenever it is necessary for the purposes of the regulations of the board, the department or an agent authorized by the department may at reasonable times enter an establishment or upon property, public or private, for the purpose of obtaining information or conducting surveys or investigation as authorized by § 10.1-1315 or 46.2-1187.1 of the Code of Virginia.

B. Upon the procurement of an inspection warrant signed by a judge of the circuit court whose territorial jurisdiction encompasses the property or premises to be inspected or entered, the department or an agent authorized by the department may enter any property or premises and conduct any inspection, testing, or collection of samples for testing required or authorized by state law or regulation in connection with the manufacturing, emitting, or presence of a toxic substance, as authorized by § 19.2-393 et seq. of the Code of Virginia.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VI Variances, Ordinances, and Approvals

9VAC5-170-140 Variances

A. Pursuant to § 10.1-1307 C of the Virginia Air Pollution Control Law, the department may grant local variances to a provision of the regulations of the board after an investigation and public hearing; except that no local variances shall be granted from regulations adopted by the board pursuant to § 10.1-1308 of the Code of Virginia related to the requirements of § 10.1-1308 E of the Code of Virginia or Article 4 (§ 10.1-1329 et seq.) of Chapter 13 of Title 10.1 of the Code of Virginia. If a local variance is appropriate, the department shall issue an order to this effect. The order shall be subject to amendment or revocation at any time.

B. The department shall adopt variances and amend or revoke variances if warranted only after conducting a public hearing pursuant to public advertisement in at least one major newspaper of general circulation in the affected area of the subject, date, time, and place of the public hearing at least 30 days prior to the scheduled hearing.

C. The public participation procedures of § 10.1-1307.01 of the Virginia Air Pollution Control Law shall be followed in the consideration of variances.

D. Notwithstanding the requirements of subsection B of this section, if the department finds that there is a locality particularly affected by a variance involving (i) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (ii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a new fossil fuel-fired compressor station facility used to transport natural gas, or (iv) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas:

1. The applicant shall perform the following:

a. Publish a notice in at least one local paper of general circulation in any locality particularly affected at least 60 days prior to the close of any public comment period. Such notice shall (i) contain a statement of the estimated local impact of the proposed action; (ii) provide information regarding specific pollutants and the total quantity of each that may be emitted; (iii) list the type, quantity, and source of any fuel to be used; (iv) advise the public as to the date and location of a public hearing; and (v) advise the public where to obtain information regarding the proposed action. The department shall post such notice on the department website and on a department social media account; and

b. Mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.

2. The department shall post the notice required in subdivision 1 a of this subsection on the department website and on a department social media account.

3. Written comments shall be accepted by the department for at least 30 days after any hearing on such variance or permit, unless the director chooses to shorten the period.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-150 Local ordinances

A. Local ordinances shall be established and approved as follows:

1. The governing body of any locality proposing to adopt an ordinance, or an amendment to an existing ordinance, relating to air pollution shall first obtain the approval of the department as to the provisions of the ordinance or amendment. Except for an ordinance or amendment pertaining solely to open burning, the department shall not approve an ordinance or amendment which regulates an emission source that is required to register with the department or to obtain a permit pursuant to Virginia Air Pollution Control Law and the regulations of the board. The department in approving local ordinances will consider, but will not be limited to, the following criteria:

a. The local ordinance shall provide for intergovernmental cooperation and exchange of information.

b. Adequate local resources will be committed to enforcing the proposed local ordinance.

c. The provisions of the local ordinance shall be as strict as state regulations, except as provided for leaf burning in § 10.1-1308 of the Virginia Air Pollution Control Law.

2. Approval of a local ordinance shall be withdrawn if the department determines that the local ordinance is less strict than state regulations, or if the locality fails to enforce the ordinance.

3. If a local ordinance must be amended to conform to an amendment to state regulations, the local amendment will be made within six months. If the necessary amendment is not made within six months, the department may rescind its approval of the ordinance.

B. Local ordinances shall provide for reporting information required by the department to fulfill its responsibilities under the Virginia Air Pollution Control Law and the federal Clean Air Act. Reports shall include, but are not limited to monitoring data, surveillance programs, procedures for investigation of complaints, variance hearings, and status of control programs and permits.

C. Local ordinances are a supplement to state regulations. Provisions of local ordinances which have been approved by the department and are more strict than state regulations shall take precedence over state regulations within the respective locality. It is the intention of the department to coordinate activities among the enforcement officers of the various localities in the enforcement of local ordinances and state regulations. The department will also provide technical and other assistance to local authorities in the investigation and study of air pollution problems, and in the enforcement of local ordinances and state regulations. The department emphasizes its intention to assist in the local enforcement of local ordinances. If a locality fails to enforce its own ordinance, the department reserves the right to enforce state regulations.

D. A local governing body may grant a variance to a provision of its air pollution control ordinance provided that:

1. A public hearing is held by the locality prior to granting the variance;

2. The public is notified of the application for a variance by advertisement in at least one major newspaper of general circulation in the affected locality and a major newspaper of general circulation in the state capital area at least 30 days prior to the date of the public hearing by the locality; and

3. The variance does not permit an owner or other person to take action that would result in a violation of a provision of state regulations unless a variance is granted by the department. The local public hearing required for the variances to the local ordinance and the public hearing required under state regulations may be conducted jointly as one proceeding.

E. This section shall not apply to the approval of local ordinances concerning open burning established pursuant to 9VAC5-40-5640 D.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; Errata, 14:7 VA.R. 1175 December 22, 1997; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-160 Conditions on approvals

A. The department may impose conditions upon permits and other approvals which may be necessary to carry out the policy of the Virginia Air Pollution Control Law, and which are consistent with the regulations of the board. Except as otherwise specified, nothing in this chapter shall be understood to limit the power of the department in this regard. If the owner or other person fails to adhere to the conditions, the department may automatically cancel the permit or approvals. This section shall apply, but not be limited, to approval of variances, approval of control programs, and granting of permits.

B. An owner may consider a condition imposed by the department as a denial of the requested approval or permit, which shall entitle the applicant to appeal the decision of the department pursuant to 9VAC5-170-200.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-170 Considerations for approval actions

Pursuant to the provisions of § 10.1-1307 E of the Virginia Air Pollution Control Law, the board in making regulations and the department in approving variances, control programs, or permits, shall consider facts and circumstances relevant to the reasonableness of the activity involved and the regulations proposed to control it, including:

1. The character and degree of injury to, or interference with safety, health, or the reasonable use of property which is caused or threatened to be caused;

2. The social and economic value of the activity involved;

3. The suitability of the activity to the area in which it is located, except that consideration of this factor shall be satisfied if the local governing body of a locality in which a facility or activity is proposed has resolved that the location and operation of the proposed facility or activity is suitable to the area in which it is located; and

4. The scientific and economic practicality of reducing or eliminating the discharge resulting from the activity.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VII Delegation of Authority

9VAC5-170-180 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VIII Appeal of Department Actions

9VAC5-170-190 General provisions

A. Except as provided in subsections B and C of this section, this part applies to the appeal of case decisions and other actions or inactions of the department.

B. The provisions of this part do not apply to the appeal of the promulgation of regulations or variances. Appeals of the promulgation of regulations and variances shall be pursued under Article 4 (§ 2.2-4026 et seq.) of the Administrative Process Act.

C. The provisions of this part do not apply to permit actions subject to Part I (9VAC5-80-5 et seq.) of 9VAC5-80 with respect to any party except the named party.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-200 Appeal procedures

A. An owner or other party significantly affected by an action of the department taken without a formal hearing, or by inaction of the department, may request a formal hearing in accordance with § 2.2-4020 of the Administrative Process Act, provided a petition requesting a formal hearing is filed with the department. In cases involving actions of the department, the petition shall be filed within 30 days after notice of the action is mailed, by postal or electronic delivery, or delivered to the owner or party requesting notification of the action.

B. Prior to a formal hearing, an informal fact finding shall be held pursuant to § 2.2-4019 of the Administrative Process Act unless waived by the named party and the department.

C. A decision of the department resulting from a formal hearing shall constitute the final decision of the department.

D. Judicial review of a final decision of the department shall be afforded in accordance with § 10.1-1318 of the Virginia Air Pollution Control Law and § 2.2-4026 of the Administrative Process Act.

E. Nothing in this section shall prevent disposition of a case by consent.

F. A petition for a formal hearing or a notice or petition for an appeal by itself shall not constitute a stay of decision or action. A stay of decision shall be sought through appropriate legal channels.

G.

The director has final authority to adjudicate contested decisions of subordinates delegated powers by the director prior to appeal of decisions to the circuit court.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 25, Issue 6, eff. December 31, 2008; Volume 29, Issue 24, eff. August 28, 2013; Volume 39, Issue 5, eff. November 23, 2022.

Part IX CONFLICT OF INTEREST

9VAC5-170-210 General

A. Pursuant to § 128(a)(2) of the federal Clean Air Act, the director, in the director's capacity of approving permits or enforcement orders, shall adequately disclose any potential conflicts of interest. Such disclosure shall be made annually through the applicable disclosure forms set forth in § 2.2-3117 or 2.2-3118 of the State and Local Conflict of Interests Act (Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia) as required in § 2.2-3114 of the State and Local Conflict of Interests Act. All terms used in the disclosure forms shall have the meaning as set forth in the State and Local Conflict of Interests Act.

B. Conduct concerning personal interest in transactions shall be governed by § 2.2-3112 of the State and Local Conflict of Interests Act. All terms used regarding personal interest in transactions shall have the meaning as set forth in the State and Local Conflict of Interests Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 31, Issue 4, eff. November 19, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Chapter 210 Regulation for Dispute Resolution

Part I Definitions

9VAC5-210-10 Use of terms

A. For the purpose of this chapter and subsequent amendments to it, of regulations of the board, or of orders issued by the board, the words or terms shall have the meanings given them in 9VAC5-210-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in the regulations of the board, terms used shall have the meanings commonly ascribed to them.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001.

9VAC5-210-20 Terms defined

"Board" means the State Air Pollution Control Board.

"Conciliation" means a process in which a neutral facilitates settlement by clarifying issues and serving as an intermediary for negotiations in a manner that is generally more informal and less structured than mediation.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or his designee.

"Dispute resolution," "dispute resolution procedure," or "dispute resolution proceeding" means any structured process in which a neutral assists disputants in reaching a voluntary settlement by means of dispute resolution techniques such as mediation, conciliation, early neutral evaluation, nonjudicial settlement conferences, or any other proceeding leading to a voluntary settlement conducted consistent with the requirements of this chapter. The term includes the orientation session.

"Dispute resolution program" means a program that offers dispute resolution services to the public that is run by the Commonwealth or any private for-profit or not-for-profit (including nonprofit) organization, political subdivision, or public corporation, or a combination of these.

"Dispute resolution services" includes screening and intake of disputants, conducting dispute resolution proceedings, drafting agreements, and providing information or referral services.

"Mediation" means a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.

"Mediator" means a neutral who is an impartial third party selected by agreement of the parties to a controversy to assist them in mediation. As used in this chapter, this word may refer to a single person or to two or more people.

"Neutral" means a person who is trained or experienced in conducting dispute resolution proceedings and in providing dispute resolution services. As used in this chapter, this word may refer to a single person or to two or more people.

"Orientation session" means a preliminary meeting during which the dispute resolution proceeding is explained to the parties and the parties and the neutral assess the case and decide whether to continue with a dispute resolution proceeding or adjudication.

"Party" means an interested person who has chosen to be and who is eligible to be a disputant in a dispute resolution proceeding. An interested person is eligible if he (i) has attended a public meeting or public hearing on the permit or regulation in dispute and is therefore named in the public record, (ii) is the applicant for the permit in dispute, or (iii) is the department.

"Person" means an individual, a corporation, a partnership, an association, a government body, a municipal corporation, or any other legal entity.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Part II General Provisions

9VAC5-210-30 Applicability

A. The provisions of this chapter, unless specified otherwise, shall apply throughout the Commonwealth of Virginia.

B. The provisions of this chapter, unless specified otherwise, shall apply in the administration of all regulations of the board to the extent not covered by a specific regulation of the board. In cases where the provisions of this chapter conflict with another regulation of the board, the provisions of the other regulation shall apply.

C. No provision of this chapter shall limit the power of the board to take appropriate action as necessary to carry out its duties under the Virginia Air Pollution Control Law.

D. By the adoption of this chapter, the board confers upon the director the administrative, enforcement, and decision-making authority articulated in this chapter.

E. Nothing in this chapter shall create or alter any right, action, or cause of action, or be interpreted or applied in a manner inconsistent with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), with applicable federal law, or with any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.

F. For a permit in dispute, dispute resolution may not be initiated after the final permit is issued. For a regulation in dispute, dispute resolution may not be initiated after the final regulation is adopted.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-40 Purpose and scope

A. This chapter shall be construed to encourage the fair, expeditious, voluntary, consensual resolution of disputes. It shall not be construed to preclude collaborative community problem solving.

B. Dispute resolution shall be used to resolve only those disputes that reveal significant issues of disagreement among parties and may be used unless the board decides that it is not in the public interest to do so.

C. The decision to employ dispute resolution is in the board's sole discretion and is not subject to judicial review.

D. The outcome of any dispute resolution procedure shall not be binding upon the board but may be considered by the board in issuing a permit or promulgating a regulation.

E. Dispute resolution may be used to resolve a dispute relating to the promulgation, amendment, or repeal of a regulation that is subject to the public participation process prescribed in Article 2 (§ 2.2-4006 et seq. of the Code of Virginia) of the Administrative Process Act.

F. Dispute resolution may be used to resolve a dispute involving any process relating to the issuance of a permit. Dispute resolution may be used in this case only with the consent and participation of the permit applicant and may be terminated at any time at the request of the permit applicant.

G. The board shall consider not using dispute resolution in the circumstances listed in § 10.1-1186.3 A of the Code of Virginia.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-50 Costs

A. Compensation of the neutral and any other associated common costs, such as rental fees, shall be the responsibility of the parties. Compensation of each party's counsel and other individual costs shall be the responsibility of that party alone, unless the parties agree otherwise.

B. An agreement regarding compensation and other associated costs shall be reached between the neutral and the parties before the dispute resolution procedure commences and shall be memorialized in writing.

C. In the absence of an agreement to the contrary, all costs shall be paid by the parties in equal shares.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-60 Date, time, and place

The dispute resolution procedure shall be conducted in any place within the Commonwealth of Virginia, on any date, and at any time agreeable to the parties and the neutral.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-70 Attendance at the dispute resolution procedure

A. All parties shall attend all sessions of the dispute resolution procedure. Any party who fails to attend any session shall be conclusively deemed to have dropped out of the dispute resolution procedure. A party may satisfy the attendance requirement by sending a representative familiar with the facts of the case. This representative shall have the authority to negotiate and to recommend settlement to the party that he represents.

B. Any party may have the assistance of an attorney or other representative during any session of the dispute resolution procedure.

C. Persons who are not parties or representatives of parties may attend dispute resolution sessions only with the permission of all parties and with the consent of the neutral.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-80 Confidentiality

A. The provisions of § 8.01-576.10 of the Code of Virginia concerning the confidentiality of dispute resolution shall govern all dispute resolution proceedings held pursuant to this chapter except when the board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation. The board shall inform the parties in the order of referral issued under 9VAC5-210-150 what this information is expected to be. If the board later decides that it will need additional information before it can issue the permit or promulgate the regulation, it shall so notify the parties as expeditiously as possible. If any of the information requested by the board would normally be protected by the confidentiality provisions of this section, the parties shall waive that protection when delivering the requested information to the board. Notwithstanding the above, any information qualifying as confidential under the Air Pollution Control Law shall remain confidential.

B. With the exception noted in subsection A of this section, all memoranda, work products, and other materials contained in the case files of a neutral or dispute resolution program are confidential. Any communication made during dispute resolution that relates to the controversy, including screening, intake, and scheduling a dispute resolution proceeding, whether made to the neutral or dispute resolution program staff, to a party, or to any other person, is confidential. Any party's lack of consent to participate in the dispute resolution process, at any point in the process, is confidential.

C. A written settlement agreement shall not be confidential, unless the parties otherwise agree in writing.

D. Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except:

1. When all parties to the dispute resolution process agree, in writing, to waive the confidentiality;

2. To the extent necessary, in a subsequent action between the neutral or dispute resolution program and a party to the dispute resolution proceeding for damages arising out of the dispute resolution process;

3. Statements, memoranda, materials, and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in the dispute resolution procedure;

4. Where a threat to inflict bodily injury is made;

5. Where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime;

6. Where an ethics complaint is made against the neutral by a party to the dispute resolution proceeding to the extent necessary for the complainant to prove misconduct and the neutral to defend against such complaint;

7. Where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party's legal representative based on conduct occurring during a mediation;

8. Where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-576.12 of the Code of Virginia in a proceeding to vacate a mediated agreement; or

9. As provided by law or rule other than the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

E. The use of attorney work product in dispute resolution shall not result in a waiver of the attorney work product privilege.

F. Unless otherwise specified by the parties, no dispute resolution procedure shall be electronically or stenographically recorded.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-90 Public participation

A. In general, when a dispute has been referred to dispute resolution, the public shall be so notified by a notice placed in the Virginia Register of Regulations. The public also may be notified by any other means deemed appropriate by the board. The notice shall state the nature of the dispute and the name, telephone number, postal address, and e-mail address of the department staff person to whom a member of the public should apply in order to become a party. The notice shall allow for a response time of at least 10 business days following publication.

B. Anyone who is interested in becoming a party in the pending dispute resolution and who meets the eligibility criteria specified in the definition of "party" in 9VAC5-210-20 shall, within the time allotted in the notice, apply to the department staff person listed in the notice. The application shall include the name, telephone number, postal address, and, if applicable, the email address of the interested person. The application shall also include a brief statement setting forth the factual nature and the extent of the interest of the requester in the dispute.

C. The director shall respond to the application of the interested person in writing, explaining the obligations of a party to dispute resolution concerning attendance and costs. The director shall also request that the interested person submit a dated and signed statement as follows: "I understand that by becoming a party to dispute resolution, I am obligated to abide by Virginia law and regulations concerning dispute resolution and that I incur partial financial responsibility for the dispute resolution procedure."

D. After receiving the signed and dated statement from the interested person as required by subsection C of this section, the director may consider this person a party and proceed accordingly.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 40, Issue 5, eff. October 23, 2023.

9VAC5-210-100 Standards for and authority of neutral

A. A neutral participating in a dispute resolution procedure pursuant to this chapter shall comply with all provisions of this section. A neutral shall indicate compliance by filing with the director a signed, written statement as follows: "I agree to comply with Virginia's statutes and regulations governing dispute resolution, including § 10.1-1186.3 of the Code of Virginia and 9VAC5-210-10 et seq."

B. A neutral acting as a mediator shall adhere to the Judicial Council of Virginia's Standards of Ethics and Professional Responsibility for Certified Mediators, effective July 1, 2011, and the standards and duty provisions of § 8.01-581.24 of the Code of Virginia. A neutral conducting a nonmediation dispute resolution proceeding shall adhere to the requirements of § 8.01-576.9 of the Code of Virginia.

C. If a complaint is made to the director that a neutral has failed to comply with all the provisions of the applicable regulations, laws, and Judicial Council Standards during a dispute resolution proceeding, the director shall notify the neutral of the complaint and shall give the neutral 10 business days to respond in writing. If the director deems the response unsatisfactory, or if no response is made by the deadline, the director shall remove the neutral from the ongoing dispute resolution process. The parties to the terminated dispute resolution procedure shall decide whether to continue in the same dispute resolution procedure with a new neutral, to begin a new dispute resolution procedure, or to forego further dispute resolution.

D. The recommendation of a neutral is not a case decision as defined in § 2.2-4001 of the Administrative Process Act and therefore may not be appealed.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-110 Resumes of neutrals and descriptions of dispute resolution programs

The department may maintain a file containing the resumes of neutrals and descriptions of dispute resolution programs. The file shall contain a disclaimer stating, "Inclusion of a resume or dispute resolution program description in this file does not constitute an endorsement of a neutral or a dispute resolution program, nor should negative implications be drawn from the fact that a neutral's resume or a dispute resolution program description is not included in this file. Parties are not obligated to choose a neutral or dispute resolution program from those whose resumes and descriptions are maintained in this file."

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-120 Enforcement of written settlement agreement

The board may incorporate the terms of the written settlement agreement into decisions pertinent to the case.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001.

9VAC5-210-130 Referral of disputes to dispute resolution

A. The board, consistent with the provisions of 9VAC5-210-40 G, may refer a dispute to dispute resolution.

B. A party other than the board may request dispute resolution by applying to the director.

1. The application shall contain the following:

a. A request for dispute resolution, specifying mediation or another dispute resolution procedure;

b. The names, postal addresses, telephone numbers, email addresses, or other appropriate communication addresses or numbers of all known parties to the dispute and of their attorneys, if known; and

c. A statement of issues and a summary of the basis for the dispute.

2. Filing an application constitutes consent to referral of the dispute to dispute resolution.

3. Filing an application shall not stay any proceeding and shall have no effect on any procedural or substantive right of any party to the dispute.

4. Under normal circumstances, within 14 business days of the receipt of an application from a party requesting dispute resolution, the director shall review the application to determine if the dispute is suitable for dispute resolution, shall decide which form of dispute resolution is appropriate, and shall notify the parties in writing accordingly.

5. If the director has decided that mediation is appropriate, the provisions of Part III (9VAC5-210-140 et seq.) of this chapter shall apply.

6. If the director has decided that a dispute resolution proceeding other than mediation is appropriate, the director shall specify what that proceeding is. The appointment of the neutral for this proceeding shall follow the procedure for the appointment of a mediator as specified in 9VAC5-210-140. The parties and the neutral shall determine the appropriate procedures for conducting this dispute resolution proceeding.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 40, Issue 5, eff. October 23, 2023.

Part III Mediation Procedures

9VAC5-210-140 Appointment of mediator

A. If the director has decided that mediation is appropriate, any party may nominate a mediator.

B. If all parties agree with the nomination, the director shall appoint that person the mediator for the case and shall notify the parties accordingly.

C. If all parties do not agree with the nomination, the following procedure shall apply:

1. By a date specified by the director, each party shall name up to three mediators who would be acceptable to that party. These mediators may or may not have resumes on file with the department.

2. The director shall compile a list of the names submitted and send it to the parties.

3. Upon receipt of the list, each party may strike two names and return the list to the director within 14 business days following the date on which the list was mailed.

4. On the next business day after the 14-day period expires or as soon as practicable thereafter, the director shall appoint a mediator from the remaining list of names and shall notify the parties accordingly.

D. Once the mediator is appointed, the director shall send the mediator an acceptance form to sign and return. The acceptance form shall require the mediator to append his signature to the following statements:

1. That the mediator agrees to abide by the applicable dispute resolution and mediation statutes, regulations, and ethical standards;

2. That the mediator agrees to attempt to complete the mediation within 60 business days from the date of his appointment; and

3. That the mediator foresees no potential conflict of interest in agreeing to mediate the case. A determination of conflict of interest shall be made by the director or board on a case-by-case basis.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-150 Orientation session

A. Once the mediator has been appointed, the board shall issue a referral to the mediator and the parties. This referral shall include a list of the information that the board, in its preliminary judgment, expects to use in making its final decision regarding the case. This list shall contain the caveat that the board may require other information as yet unspecified at some point in the future. All parties shall attend one orientation session with the mediator unless excused pursuant to subsection B of this section.

B. The board shall excuse a party from participation in the orientation session if, within 14 business days after issuance of the order of referral, a statement signed by the party is filed with the board. This statement shall declare that the mediation process has been explained to the party and that the party does not wish to participate in the orientation session.

C. The orientation session shall be conducted at any place within the Commonwealth of Virginia, at any time, and on any date convenient to the mediator and the parties.

D. At least seven business days before the orientation session, each party shall provide the mediator with a statement outlining his perspective on the facts and issues of the case. At the discretion of the mediator, these statements may be mutually exchanged by the parties.

E. During the orientation session, the parties, assisted by the mediator, shall determine the manner in which the issues in dispute shall be framed and addressed. In the absence of agreement by the parties, the mediator shall make this determination.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC5-210-160 Continuation, termination, and resolution of mediation

A. Following the orientation session, mediation shall proceed in any manner agreed on by the parties and the mediator in conformance with the provisions of 9VAC5-210-50 through 9VAC5-210-80.

B. Mediation may be terminated through written notice by the permit applicant or the director at any time before settlement is reached.

C. Mediation shall continue if a party other than the permit applicant or the director chooses to opt out of mediation following the orientation session. A party who chooses to opt out of mediation at any time following the orientation session or who, through nonattendance, is conclusively deemed to have dropped out of the dispute resolution procedure shall not be bound by any written settlement agreement resulting from the mediation but shall be bound by the cost provisions of 9VAC5-210-50 and the confidentiality provisions of 9VAC5-210-80.

D. If the mediation is terminated before settlement is reached, the parties shall resume the same status as before mediation and may proceed with the formal adjudication as if mediation had not taken place. The board shall not refer the case to mediation a second time.

E. If the mediation results in settlement, a written settlement agreement shall be signed and dated by each party or by that party's authorized representative.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Chapter 510 Nonmetallic Mineral Processing General Permit

Part I Definitions

9VAC5-510-10 General

A. For the purpose of this chapter or any orders issued by the board, the words or terms shall have the meanings given them in 9VAC5-510-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used shall have the meaning given them by 9VAC5-10-20 (general definitions, Regulations for the Control and Abatement of Air Pollution), 9VAC5-170-20 (definitions, Regulation for General Administration), or commonly ascribed to them by recognized authorities, in that order of priority.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-20 Terms defined

"Actual emissions" means the actual emissions of a pollutant from a stationary source or emissions unit reflecting the rate, in tons per year, at which the source or unit actually emitted the pollutant during the most recent annual period. Actual emissions shall be calculated using the source or unit's actual operating hours, in place emission controls, production rates, and types of materials processed, stored, or combusted during the annual period. Valid continuous emission monitoring data or source test data shall be preferentially used to determine actual emissions. In the absence of valid continuous emissions monitoring data or source test data, the basis for determining actual emissions shall be any or all of the following as may be determined by the department: throughputs of process materials; throughputs of materials stored; usage of materials; data provided in manufacturer's product specifications, material volatile organic compound content reports or laboratory analyses; other information required by this chapter and other regulations of the board; or information requested in writing by the department. All calculations of actual emissions shall use U.S. Environmental Protection Agency or department-approved methods, including emission factors and assumptions.

"Annual period" means a period of 12 consecutive months determined on a rolling basis with a new 12-month period beginning on the first day of each calendar month.

"Federal operating permit" means a permit issued pursuant to Article 1 (9VAC5-80-50 et seq.) of Part II of 9VAC5 Chapter 80.

"Fugitive dust" means particulate matter composed of soil or other materials, or both, of natural origin. Fugitive dust may include emissions from haul roads, wind erosion of exposed surfaces and storage piles and other activities in which the material is either removed, stored, transported or redistributed.

"Fugitive emissions" means emissions which are generated by industrial or other activities and which do not pass through a stack, chimney, vent or other functionally equivalent opening, but which may escape from openings (such as windows, doors, ill-fitting closures or poorly maintained equipment) or material handling equipment.

"General permit" means the terms and conditions in Part IV (9VAC5-510-170 et seq.) of this chapter that meet the requirements of Part III (9VAC5-510-90 et seq.) of this chapter and issued under the provisions 9VAC5-80-1030 and 9VAC5-80-1250.

"New source review program" means a program for the preconstruction review and permitting of new stationary sources or emissions units or expansions to existing ones in accordance with regulations promulgated to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act.

"Nonmetallic mineral" means any of the following minerals or any mixture of which the majority is any of the following minerals:

1. Crushed and broken stone, including limestone, dolomite, granite, traprock, sandstone, quartz, quartzite, marl, marble, slate, shale, oil shale, and shell.

2. Sand and gravel.

3. Clay including kaolin, fireclay, bentonite, fuller's earth, ball clay, and common clay.

4. Rock salt.

5. Gypsum.

6. Sodium compounds, including sodium carbonate, sodium chloride, and sodium sulfate.

7. Pumice.

8. Gilsonite.

9. Talc and pyrophyllite.

10. Boron, including borax, kernite, and colemanite.

11. Barite.

12. Fluorospar.

13. Feldspar.

14. Diatomite.

15. Perlite.

16. Vermiculite.

17. Mica.

18. Kyanite, including andalusite, sillimanite, topaz, and dumortierite.

"Nonmetallic mineral processing facility" means any combination of equipment that is used to crush or grind any nonmetallic mineral wherever located, including lime plants, power plants, steel mills, asphalt concrete plants, portland cement plants, or any other facility processing nonmetallic minerals. Includes activity at facilities where the primary purpose is classified as Standard Industrial Classification (SIC) Code 1411, 1422, 1423, 1429, 1442, 1446, 1455, 1459, and 1499 as described in the Standard Industrial Classification Manual (see 9VAC5-20-21). Includes stationary diesel engines. Also includes activity at facilities classified under other SIC codes that may be colocated within the nonmetallic mineral processing area, unless they are expressly excluded by this chapter.

"Permittee" means the owner of a nonmetallic mineral processing facility covered under this general permit.

"Portable facility" means any nonmetallic mineral processing facility that is mounted on any chassis or skids and may be moved by the application of a lifting or pulling force. In addition, there shall be no cable, chain, turnbuckle, bolt or other means (except electrical connections) by which any piece of equipment is attached or clamped to any anchor, slab, or structure, including bedrock that must be removed prior to the application of a lifting or pulling force for the purpose of transporting the unit.

"Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is state and federally enforceable.

"Relocation" means a change in physical location of a nonmetallic mineral processing facility or an emissions unit from one nonmetallic mineral processing facility to another nonmetallic mineral processing facility.

"Spreadsheet" means the Aggregate Processing Emission Calculation Spreadsheet and the Stationary Diesel Engine Emission Calculation Spreadsheet.

"State operating permit" means a permit issued pursuant to Article 5 (9VAC5-80-800 et seq.) of Part II of 9VAC5 Chapter 80.

Part II

General Provisions

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

Part II General Provisions

9VAC5-510-30 Purpose and basis

A. The purpose of the general permit is to require the owners of existing and new emissions units in the nonmetallic mineral processing industry to construct, modify, relocate and operate within the terms and conditions of a general permit that forms the legally enforceable basis for all regulatory and statutory requirements.

B. This general permit is being issued under the authority of 9VAC5-80-1030 and 9VAC5-80-1250.

C. This chapter does not require any owner to apply for coverage under the general permit but provides the opportunity for an owner to apply for coverage if the nonmetallic mineral processing facility meets the applicability criteria in 9VAC5-510-40 and all other requirements of this chapter.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-40 Applicability

A. This chapter applies to any nonmetallic mineral processing facility.

B. This chapter applies throughout the Commonwealth of Virginia.

C. Nothing in this section shall prevent any owner of a stationary source from obtaining authorization to operate the nonmetallic mineral processing facilities under the general permit while operating the remainder of the source under any permit issued pursuant to 9VAC5 Chapter 80 (9VAC5-80).

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-50 General

A. The permittee shall operate the stationary source in conformance with all applicable regulations of the board.

B. Nonmetallic mineral processing facilities desiring authority to operate under the general permit shall register with the department as required under 9VAC5-20-160. For emissions units or groups of emissions units covered, the completion or updating of the spreadsheet shall be considered registration.

C. No provision of this chapter shall limit the power of the board to issue an operating permit pursuant to 9VAC5 Chapter 80 (9VAC5-80).

D. This chapter shall not relieve any stationary source from complying with the requirements of (i) any otherwise applicable permit issued under 9VAC5 Chapter 80 (9VAC5-80), (ii) any condition or term of any permit issued under 9VAC5 Chapter 80 (9VAC5-80), or (iii) any provision of a permit program. This chapter shall not preclude issuance of any permit with conditions or terms necessary to ensure compliance with this chapter.

E. For any nonmetallic mineral processing facility to be covered by the general permit, all equipment and emissions units at a stationary source that make up the nonmetallic mineral processing facility shall be covered by the general permit.

F. By the adoption of this chapter, the board confers upon the department the administrative, enforcement and decision making authority enumerated herein.

G. The promulgating of amendments to this regulation shall invalidate any authorization to operate under the general permit one year after the effective date of the amendments. Owners may reapply for authorization to operate under the amended general permit and the department may grant the authorization to operate as provided in 9VAC5-510-150.

H. Any decisions of the board or department made pursuant to this chapter may be appealed pursuant to 9VAC5-170-200, § 10.1-1318 of the Virginia Air Pollution Control Law, and the Administrative Process Act.

I. This general permit may not be used to meet the requirements of 9VAC5-80-120.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-60 Existence of permit no defense

The existence of a permit under this chapter shall not constitute a defense of a violation of the Virginia Air Pollution Control Law or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of the governmental entities having jurisdiction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-70 Circumvention

A. No owner or other person shall cause or permit the installation or use of any device or any means which, without resulting in reduction in the total amount of air pollutants emitted, conceals or dilutes an emission of air pollutants which would otherwise violate this chapter. Such concealment includes, but is not limited to, either of the following:

1. The use of gaseous diluents to achieve compliance with a visible emissions standard or with a standard which is based on the concentration of a pollutant in gases discharged to the atmosphere.

2. The piecemeal carrying out of an operation to avoid coverage by a standard that applies only to operations larger than a specified size.

B. This section does not prohibit the construction of a stack.

C. Regardless of the exemptions provided in this chapter, permits shall be required of owners who circumvent the requirements of this chapter by causing or allowing a pattern of ownership or development over a geographic area of a source which, except for the pattern of ownership or development, would otherwise require a permit.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-80 Enforcement of a general permit

A. The following general requirements apply:

1. Pursuant to § 10.1-1322 of the Code of Virginia, failure to comply with any term or condition of the general permit shall be considered a violation of the Virginia Air Pollution Control Law.

2. Authorization to operate under the general permit may be revoked if the owner does any of the following:

a. Knowingly makes material misstatements in the application for coverage or any amendments thereto.

b. Violates, fails, neglects or refuses to comply with (i) the terms or conditions of the permit, (ii) any applicable requirements, or (iii) the applicable provisions of this chapter.

3. The department may suspend, under such conditions and for such period of time as the department may prescribe, any authorization to operate under the general permit for any of the grounds for revocation contained in subdivision 2 of this subsection or for any other violations of the regulations of the board.

4. Upon revocation of the authorization to operate under the general permit, the owner may request reauthorization to operate under the general permit and the department may grant the request at its discretion upon resolution of the issues that led to revocation.

B. The following requirements apply with respect to penalties:

1. An owner who violates or fails, neglects or refuses to obey any provision of this chapter or the Virginia Air Pollution Control Law, any applicable requirement, or any permit term or condition shall be subject to the provisions of § 10.1-1316 of the Virginia Air Pollution Control Law.

2. Any owner who knowingly violates any provision of this chapter or the Virginia Air Pollution Control Law, any applicable requirement, or any permit term or condition shall be subject to the provisions of § 10.1-1320 of the Virginia Air Pollution Control Law.

3. Any owner who knowingly makes any false statement, representation or certification in any form, in any notice or report required by a permit, or who knowingly renders inaccurate any required monitoring device or method shall be subject to the provisions of § 10.1-1320 of the Virginia Air Pollution Control Law.

C. The following requirements apply with respect to appeals:

1. The department will notify the applicant in writing of its decision, with its reasons, to deny suspend or revoke the authorization to operate under the general permit in accordance with the Administrative Process Act.

2. Appeal from any decision of the department under subdivision 1 of this subsection may be taken as provided by 9VAC5-170-200, § 10.1-1318 of the Virginia Air Pollution Control Law, and the Administrative Process Act.

D. The following requirements apply with respect to inspections and right of entry:

1. The director, as authorized under § 10.1-1307.3 of the Virginia Air Pollution Control Law and 9VAC5-170-60, has the authority to require that air pollution records and reports be made available upon request and to require owners to develop, maintain, and make available such other records and information as are deemed necessary for the proper enforcement of the general permit.

2. The director, as authorized under § 10.1-1307.3 of the Virginia Air Pollution Control Law, has the authority, upon presenting appropriate credentials to the owner, to do the following:

a. Enter without delay and at reasonable times any business establishment, construction site, or other area, workplace, or environment in the Commonwealth; and

b. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, without prior notice, unless such notice is authorized by the department or its representative, any such business establishment or place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and question privately any such employer, officer, owner, operator, agent, or employee. If such entry or inspection is refused, prohibited, or otherwise interfered with, the department shall have the power to seek from a court having equity jurisdiction an order compelling such entry or inspection.

E. The board may enforce the general permit through the use of other enforcement mechanisms such as consent orders and special orders. The procedures for using these mechanisms are contained in 9VAC5-170-80 and 9VAC5-170-120 and in §§ 10.1-1307 D, 10.1-1309, and 10.1-1309.1 of the Virginia Air Pollution Control Law.

Part III

General Permit Administrative Procedures

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

Part III General Permit Administrative Procedures

9VAC5-510-90 Requirements for granting an authorization to operate under the general permit

A. The department may grant an authorization to operate under the general permit for a source that meets the applicability criteria in 9VAC5-510-40. The authorization to operate may include an authorization to construct, modify and relocate the source operating under the general permit.

B. After the initial authorization to construct, modify, relocate and operate under the general permit has been granted for a nonmetallic mineral processing facility, new and modified emissions units at the facility may operate under the general permit in accordance with the terms and conditions of the general permit.

C. Stationary sources or emissions units subject to the general permit shall comply with all requirements applicable to other permits issued under 9VAC5 Chapter 80 (9VAC5-80).

D. The general permit is issued in accordance with § 2.2-4006 A 9 of the Administrative Process Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-100 Applications for coverage under the general permit and notices of termination

A. Nonmetallic mineral processing facilities that qualify for the general permit may apply to the department for coverage under the terms and conditions of the general permit.

B. A single application is required identifying each emissions unit or groups of emissions units to be covered by the general permit. The application shall be submitted according to the requirements of this section, 9VAC5-510-110 and procedures approved by the department. Where several emissions units are included in one stationary source, a single application covering all units in the source shall be submitted. A separate application is required for each stationary source subject to this chapter.

C. The application shall meet the requirements of this chapter and include all information necessary to determine qualification for and to assure compliance with the general permit.

D. Coverage under the general permit may be terminated by the permittee by filing a completed notice of termination as specified in 9VAC5-510-130 B. The notice of termination shall be filed in situations (i) where all emissions associated with the facility authorized by the general permit are eliminated, (ii) when the facility authorized by the general permit has been determined to be shutdown in accordance with 9VAC5-20-220, or (iii) where the facility is covered by a permit issued under the provisions of 9VAC5 Chapter 80 (9VAC5-80).

E. Any application form, report, compliance certification, or other document required to be submitted to the department under this chapter shall meet the requirements of 9VAC5-20-230.

F. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in an application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-110 Required information for initial applications

A. The department will furnish application forms to applicants. The information required by this section shall be determined and submitted according to procedures and methods acceptable to the department.

B. Each initial application for coverage under the general permit shall include, but not be limited to, the following:

1. Information specified in 9VAC5-510-130 A.

2. Additional information that the department deems necessary to implement and enforce other requirements of the regulations of the board or to determine the applicability of such requirements.

3. Any additional information or documentation that the department deems necessary to review and analyze the air pollution aspects of the source.

4. A certification of compliance with all applicable requirements by a responsible official.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-120 Required information for modifications and relocations

The following information is required prior to modification of a facility or relocation of an emission unit:

1. The permittee shall provide written notification to the regional director, including a revised spreadsheet and a plant layout or flow diagram each time equipment is installed at a facility. The notification shall be submitted at least 15 days before the equipment is installed at the facility unless otherwise approved by the regional director.

2. The permittee shall provide written notification to the regional director, including a revised spreadsheet and a plant layout or flow diagram, each time an emissions unit is relocated. This notification shall be submitted within 15 days of the date the emissions unit leaves the facility, unless otherwise approved by the regional director.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-130 Application statement and notice of termination forms

A. The required statement for initial applications shall be in the following form:

NONMETALLIC MINERAL PROCESSING GENERAL PERMIT

APPLICATION STATEMENT

(please print or type)

1. Name of company:

2. Name of owner:

3. Name of plant:

4. Mailing address:

5. Plant site manager or contact:

6. Telephone number:

7. Registration number:

(new sites leave blank)

8. Project name:

9. Description of activity (minerals processed):

10. Primary standard industrial classification (SIC) code:

Secondary SIC codes:

11. County:

12. Location:

13. A spreadsheet and a plant layout or flow diagram for all emissions units at the nonmetallic mineral processing facility for which the application is submitted. The following information shall be included for each piece of equipment:

a. The total rated crushing capacity for all primary crushers at the facility.

b. A description of the equipment, including applicability of any standard of performance under 40 CFR Part 60, as follows:

(1) Widths of belt conveyors.

(2) Dimensions of the top screen and configuration (e.g., triple deck) of the screening unit.

(3) Rated capacity (ton/hr) of each crusher.

(4) Rated capacity (ton or ton/hr) of all other equipment not exempt from new source review program requirements.

c. A unique ID number.

d. The date the equipment was manufactured.

e. The dates any required performance testing was conducted and submitted to the regional director.

f. Total rated horsepower of all stationary diesel engines.

g. Maximum hours of operation or gallons of fuel to be consumed, for each stationary diesel engine.

h. A description and accounting of all emissions of regulated air pollutants from all emissions units or groups of emissions units. Emissions shall be determined in a manner acceptable to the department. Fugitive emissions shall be included in the application as provided in the spreadsheet.

14. Calculations on which the information in subdivision 14 h of this subsection is based to the extent not covered in the spreadsheet. Any calculations shall include sufficient detail to permit assessment of the validity of the calculations and to enable the department to verify the actual emissions and potential to emit for the stationary source. This may include, but not be limited to, the following:

a. Actual and potential emissions in tons per annual period for each emissions unit or group of emission units.

b. Information needed to determine emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.

c. Identification and description of air pollution control equipment and compliance monitoring devices or activities.

15. Attach to this application an aerial photo or scale map which clearly shows the property boundaries and plant site.

Certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

Signatures: Date:

Signatures: Date:

Name of persons signing above: (printed or typed)

(printed or typed)

Titles:

For Department use only:

Accepted/Not accepted by: Date:

Required attachments:

1. Local government certification form (greenfield sites only)

2. Spreadsheet and a plant layout or flow diagram

3. Aerial photo or scale map

B. The required notice of termination shall be in the following form:

NONMETALLIC MINERAL PROCESSING GENERAL PERMIT

NOTICE OF TERMINATION

1. Nonmetallic mineral processing general permit number:

2. Reason for termination request (Choose one):

a. The emissions associated with facility have been eliminated.

b. The facility authorized by the general permit has been determined to be shutdown in accordance with 9VAC5-20-220.

c. A permit has been issued for the facility covered by the general permit issued under the provisions of 9VAC5 Chapter 80 (9VAC5-80).

3. On what date do you wish coverage under this general permit to terminate?

4. Facility owner

Name:

Mailing address:

City: State: Zip code:

Phone:

5. Facility location

Name:

Address:

City: State: Zip code:

6. Certification:

"I certify under penalty of law that all emissions associated with the identified facility have been eliminated, that the facility authorized by the general permit has been determined to be shutdown in accordance with 9VAC5-20-220, or that a permit has been issued covering the facility under the provisions of 9VAC5 Chapter 80 (9VAC5-80). I understand that by submitting this notice of termination, I am no longer authorized to operate under the general permit. I also understand that the submittal of this notice of termination does not release an owner from liability for any violations of this permit under the Air Pollution Control Law."

Signatures: Date:

Date:

Name of persons signing above: (printed or typed)

(printed or typed)

Titles:

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002; amended, Virginia Register Volume 40, Issue 5, eff. October 23, 2023.

9VAC5-510-140 General permit content

A. The general permit issued under this chapter will include the elements provided in this section.

B. The general permit will contain terms and conditions setting forth the applicable emission standards and requirements sufficient to assure compliance with the regulations of the board.

C. The general permit will contain terms and conditions setting forth the following requirements with respect to emission testing sufficient to assure compliance with the emission standards and requirements of the permit:

1. Requirements providing that owners of nonmetallic mineral processing facilities subject to the general permit may conduct emission tests, establish and maintain records, and make periodic emission reports as necessary to determine the actual emissions for the facility.

2. For cases where the owner elects to use the emission testing to determine the actual emissions for the facility, the permit will prescribe the procedures for the conduct of the emission tests.

D. The general permit will contain terms and conditions setting forth the following requirements with respect to emission monitoring sufficient to assure compliance with the emission standards and requirements of the permit:

1. Requirements providing that owners of nonmetallic mineral processing facilities subject to the general permit may install, calibrate, operate and maintain equipment for continuously monitoring and recording emissions or process parameters or both, and establish and maintain records, and make periodic emission reports as necessary to determine the actual emissions for the facility.

2. For cases where the owner elects to use the emission monitoring to determine the actual emissions for the facility, the permit will prescribe the procedures for the installation, calibration, operation and maintenance of equipment for continuously monitoring and recording emissions or process parameters or both.

E. The general permit will contain terms and conditions setting forth the following requirements concerning recordkeeping and reporting sufficient to assure compliance with the emission standards and requirements of the permit:

1. Requirements providing that owners of nonmetallic mineral processing facilities subject to the general permit shall establish and maintain records, provide notifications and reports, revise reports, report emission tests or monitoring results in a manner and form and using procedures as the general permit may prescribe.

2. Procedures for providing notifications and reports, revising reports, maintaining records or reporting emission test or monitoring results.

F. The general permit will contain terms and conditions with respect to enforcement sufficient to assure compliance with the emission standards and requirements of the permit.

G. The general permit will contain terms and conditions setting forth the following requirements with respect to compliance sufficient to assure compliance with the terms and conditions of the permit:

1. Requirements providing for compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit.

2. Requirements providing for inspection and entry sufficient to assure compliance with the terms and conditions of the permit. At a minimum the permit will require that, upon presentation of credentials and other documents as may be required by law, the owner shall allow the department to perform the following:

a. Enter upon the premises where the source is located or emissions-related activity is conducted, or where records must be kept under the terms and conditions of the permit.

b. Have access to and copy, at reasonable times, any records that must be kept under the terms and conditions of the permit.

c. Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit.

d. Sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements.

H. The permit will contain terms and conditions pertaining to other requirements as may be necessary to ensure compliance with the regulations of the board, the Virginia Air Pollution Control Law and the federal Clean Air Act.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-150 Granting an authorization to operate under the general permit

A. The department will grant authorization to operate under the conditions and terms of the general permit to sources that meet the applicability criteria set forth in 9VAC5-510-40.

B. Granting an authorization to operate under the general permit to a nonmetallic mineral processing facility covered by the general permit is not subject to the public participation procedures under § 2.2-4006 A 9 of the Administrative Process Act.

C. A response to each application for coverage under the general permit will be provided within 30 days.

D. Nonmetallic mineral processing facilities covered under a general permit will be issued a letter, a certificate, or any other document which would attest that the facility is authorized to operate under the general permit. The document will be accompanied by a copy of the general permit and the application submitted by the permittee.

E. The letter, certificate or other document, along with the copy of the general permit, application and 40 CFR Part 60, subpart OOO, shall be retained by the department and at the stationary source.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-160 Transfer of authorizations to operate under the general permit

A. No person shall transfer an authorization to operate under the general permit from one stationary source to another or from one piece of equipment to another.

B. In the case of a transfer of ownership of a stationary source, the new owner shall comply with any permit issued or authorization to operate under the general permit granted to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of a stationary source, the owner shall comply with any permit issued or authorization to operate under the general permit granted under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

Part IV

General Permit Terms And Conditions

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

Part IV General Permit Terms and Conditions

9VAC5-510-170 General permit

Any owner whose application is accepted by the director will receive the following permit and shall comply with the requirements in it and be subject to all requirements of this chapter and the regulations of the board.

General Permit No.: Air510

Effective date: December 1, 2002

GENERAL PERMIT FOR NONMETALLIC MINERAL PROCESSING

In compliance with the provisions of the Air Pollution Control Law and regulations adopted pursuant to it, owners of nonmetallic mineral processing facilities are authorized to operate under the authority of this permit, except those where board regulations or policies prohibit such operation.

This general permit covers all owners of activities located at nonmetallic mineral processing facilities where the primary purpose is classified as Standard Industrial Classifications 1411, 1422, 1423, 1429, 1442, 1446, 1455, 1459, and 1499.

The authorization to operate under this permit shall be in accordance with this cover page, 9VAC5-510-180—General Terms and Conditions, 9VAC5-510-190—Emission Standards, 9VAC5-510-200—Compliance Determination and Verification by Emission Testing, 9VAC5-510-210—Compliance Determination and Verification by Emission Monitoring, 9VAC5-510-220—Recordkeeping Requirements, 9VAC5-510-230—Reporting Requirements, 9VAC5-510-240—Compliance Certifications, and 9VAC5-510-250—Enforcement, as specified in 9VAC5-510-180 through 9VAC5-510-250.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002; Errata, 19:7 VA.R. 1119 December 16, 2002.

9VAC5-510-180 General terms and conditions

A. The permittee may construct and operate a nonmetallic mineral processing facility in accordance with conditions of this permit located within the boundaries of the Commonwealth of Virginia, except those where board regulations or policies prohibit such activities.

B. Sources operating under this permit shall operate in compliance with the standards set in 9VAC5 Chapters 40 (9VAC5-40), 50 (9VAC5-50) and 60 (9VAC5-60) and other applicable provisions of the regulations of the board.

C. Sources operating under this permit shall meet the emission standards in 9VAC5-510-190 in order to continue to operate under the authority of this permit.

D. The permittee shall comply with the terms and conditions of the general permit prior to commencing any physical or operational change or activity which will result in making the facility subject to the new source review program.

E. If the permittee makes any change in the design or operation of the facility which will result in making the facility subject to the new source review program, he shall evidence the change in writing to the department within 30 days of implementation of the change.

F. The permittee shall not make any changes in design or operation of the affected facility which will result in actual emissions that exceed the emission standards specified in 9VAC5-510-190.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-190 Emissions standards

A. The permittee shall not cause or allow to be discharged into the atmosphere from any covered emissions units any visible emissions in excess of the limits specified in subdivisions 1, 2 and 3 of this subsection.

1. Equipment manufactured or fabricated on or prior to August 31, 1983, shall not exceed an opacity of 20% when averaged over a six-minute period.

2. Equipment manufactured or fabricated after August 31, 1983, shall comply with 40 CFR Part 60, Subpart 000, 9VAC5-50-260 and the following standards:

a. Crushing: primary and secondary—15% opacity, tertiary—7% opacity.

b. Screening, conveyor transfers, and surge bins—10% opacity.

c. Fabric filter exhausts—7% opacity.

d. Wash plants—no visible emissions from wet screening and subsequent processing up to next crusher or storage bin.

3. Other nonspecific emission points including loadout and stationary diesel engines are limited to 10% opacity.

4. The opacity standards prescribed under this subsection shall apply at all times except during periods of startup, shutdown, malfunction, and as otherwise provided in the applicable standard. This subdivision shall apply only to (i) emission units, the construction, modification or relocation of which commenced on or after March 17, 1972; and (ii) emission units, the reconstruction of which commenced on or after December 10, 1976.

B. The permittee shall not cause or allow to be discharged into the atmosphere from any covered emissions units any particulate matter in excess of the limits specified in subdivisions 1 and 2 of this subsection.

1. Fabric filter exhausts controlling equipment manufactured or fabricated on or prior to August 31, 1983, shall not exceed the following limits:

a. For facilities located in AQCR 7, the limits in Table 510A (ref: 9VAC5-40-270).

b. For facilities located in the remainder of the Commonwealth, 0.05 grains/dscf (ref: Article 14 (9VAC5-40-1820 et seq.) of 9VAC5 Chapter 40).

TABLE 510A

Process Weight Rate Maximum Allowable Emission Rate

Lb/Hr Tons/Hr Lb/HR

100 0.050 0.46

150 0.075 0.66

200 0.100 0.85

250 0.125 1.03

300 0.150 1.20

350 0.175 1.35

400 0.200 1.50

450 0.225 1.63

500 0.250 1.77

550 0.275 1.85

600 0.300 2.01

650 0.325 2.12

700 0.350 2.24

750 0.375 2.34

800 0.400 2.43

850 0.425 2.53

900 0.450 2.62

950 0.475 2.72

1000 0.500 2.80

1100 0.55 2.97

1200 0.60 3.12

1300 0.65 3.26

1400 0.70 3.40

1500 0.75 3.54

1600 0.80 3.66

1700 0.85 3.79

1800 0.90 3.91

1900 0.95 4.03

2000 1.00 4.14

2100 1.05 4.24

2200 1.10 4.34

2300 1.15 4.44

2400 1.20 4.55

2500 1.25 4.64

2600 1.30 4.74

2700 1.35 4.84

2800 1.40 4.92

2900 1.45 5.02

3000 1.50 5.10

3100 1.55 5.18

3200 1.60 5.27

3300 1.65 5.36

3400 1.70 5.44

3500 1.75 5.52

3600 1.80 5.61

3700 1.85 5.69

3800 1.90 5.77

3900 1.95 5.85

4000 2.00 5.93

4100 2.05 6.01

4200 2.10 6.08

4300 2.15 6.15

4400 2.20 6.22

4500 2.25 6.30

4600 2.30 6.37

4700 2.35 6.45

4800 2.40 6.52

4900 2.45 6.60

5000 2.50 6.67

5500 2.75 7.03

6000 3.00 7.37

6500 3.25 7.71

7000 3.50 8.05

7500 3.75 8.39

8000 4.00 8.71

8500 4.25 9.03

9000 4.50 9.36

9500 4.75 9.67

10000 5.00 10.00

11000 5.50 10.63

12000 6.00 11.28

13000 6.50 11.89

14000 7.00 12.50

15000 7.50 13.13

16000 8.00 13.74

17000 8.50 14.36

18000 9.00 14.97

19000 9.50 15.58

20000 10.00 16.19

30000 15.00 22.22

40000 20.00 28.30

50000 25.00 34.30

60000 or more 30.00 or more 40.00

2. Fabric filter exhausts controlling equipment manufactured or fabricated after August 31, 1983, shall not exceed 0.05 g/dscm (0.022 grains/dscf) (ref: 40 CFR Part 60, Subpart 000).

C. Fugitive dust/emissions controls shall include the following or equivalent as a minimum:

1. Fugitive dust/emissions from drills, stockpiles, material handling, screens, crushers, load-outs, and traffic areas shall be controlled by wet suppression or equivalent.

2. All material being stockpiled subject to windblown emissions shall be kept moist to control dust during storage and handling or covered at all times to minimize emissions.

3. Haul roads shall be controlled by wet suppression or equivalent.

4. Reasonable precautions shall be taken to prevent deposition of dirt on public roads and subsequent dust emissions. Materials spilled or tracked onto public paved surfaces shall be promptly removed to prevent particulate matter from becoming airborne.

D. In order to operate under the authority of this permit, a nonmetallic mineral processing facility shall not exceed any of the following:

1. The total rated crushing capacity for all primary crushers at the facility, including portable stone processing equipment temporarily located at the site, shall not exceed 5,000 tons per hour.

2. The total amount of fuel to be consumed by all stationary diesel engines, including portable equipment temporarily located at the site, shall not exceed 331,022 gallons of fuel per annual period.

3. The total actual emissions of any regulated pollutant from the stationary source shall not exceed 99 tons per annual period. Particulate matter emissions shall be used to determine compliance with this subdivision only if particulate matter (PM10) emissions cannot be quantified in a manner acceptable to the department.

E. The fuel used in stationary diesel engines shall be distillate oil or diesel fuel meeting ASTM specifications for No. 1 or No. 2 distillate oil or diesel fuel.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-200 Compliance determination and verification by emission testing

A. The permittee may conduct emission tests, establish and maintain records, and make periodic emission reports as necessary to determine the actual emissions for the nonmetallic mineral processing facility.

B. Upon request of the department, the permittee shall conduct emission tests as are necessary to determine the type or amount or both of the pollutants emitted from the facility or whether the facility will be in compliance with 9VAC5-510-190 or any other provisions of any regulation of the board.

C. The emission testing conducted under this section shall be carried out in accordance with subdivisions 1 and 2 of this subsection or the provisions of 9VAC5 Chapters 40 9VAC5-40), 50 9VAC5-50) and 60 9VAC5-60), as applicable, or by other means acceptable to the department.

1. Visible emissions evaluations shall be conducted in accordance with 40 CFR Part 60, Subpart A, Method 9 or Method 22, as applicable.

2. Grain loading evaluations shall be conducted in accordance with 40 CFR Part 60, Subpart A, Method 5 or Method 17, as applicable.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-210 Compliance determination and verification by emission monitoring

A. The permittee may install, calibrate, operate and maintain equipment for continuously monitoring and recording emissions or process parameters or both, and establish and maintain records, and make periodic emission reports as necessary to determine the actual emissions for the nonmetallic mineral processing facility.

B. Upon request of the department, the permittee shall install, calibrate, maintain and operate equipment for continuously monitoring and recording emissions or process parameters or both as are necessary to determine the type or amount or both of the pollutants emitted from the facility or whether the facility will be in compliance with 9VAC5-510-190 or any other provisions of any regulation of the board.

C. The emission monitoring conducted under this section shall be carried out in accordance with the provisions of 9VAC5 Chapters 40 (9VAC5-40), 50 (9VAC5-50) or 60 (9VAC5-60), as applicable, and 40 CFR 60.674 or by other means acceptable to the department.

D. Where the applicable requirement cited in subsection C of this section does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), periodic monitoring shall be conducted sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the general permit, as reported pursuant to 9VAC5-510-220 C 1. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements of this subsection.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-220 Recordkeeping requirements

A. The permittee shall comply with the recordkeeping requirements in this section. The recordkeeping requirements of this permit shall not replace any recordkeeping requirement contained in other state or federal rules or regulations.

B. The permittee shall maintain records for each emission unit or groups of emission units sufficient to determine the actual emissions of the nonmetallic mineral processing facility. The permittee shall maintain records of emission data and operating parameters necessary to demonstrate compliance with this permit. These records shall be available for inspection by the department and shall be current for the most recent three years.

C. To meet the requirements of 9VAC5-510-210 with respect to recordkeeping, the permittee shall comply with the following:

1. Records of monitoring information shall include the following:

a. The date, place as defined in the authorization to operate under the general permit, and time of sampling or measurements.

b. The date or dates analyses were performed.

c. The company or entity that performed the analyses.

d. The analytical techniques or methods used.

e. The results of such analyses.

f. The operating conditions existing at the time of sampling or measurement.

2. Records of all monitoring data and support information shall be retained for at least three years from the date of the monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit.

D. The recordkeeping requirements under this section shall be carried out in accordance with the provisions of 9VAC5 Chapters 40 (9VAC5-40), 50 (9VAC5-50) and 60 (9VAC5-60), as applicable, or by other means acceptable to the department.

E. In order to ensure the proper operation of air pollution control equipment, the permittee shall perform the following:

1. Develop a maintenance schedule and maintain records of all scheduled and nonscheduled maintenance to air pollution control equipment. These records shall be maintained on site for three years and shall be made available to department upon request.

2. Maintain an inventory of spare parts needed to minimize the duration of air pollution control equipment breakdowns.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-230 Reporting requirements

A. The permittee shall comply with the reporting requirements in this section. Any document (including reports) required by a permit term or condition to be submitted to the department shall contain a certification by a responsible official that meets the requirements of 9VAC5-510-100 E.

B. The permittee shall submit, according to procedures established by the department, an annual emissions update. Any additional information requested by the department under this subsection shall be submitted to the department within 30 days of the date of request.

C. To meet the requirements of 9VAC5-510-210 with respect to reporting, the permittee shall submit reports of any required monitoring at least every six months. All instances of deviations from permit requirements shall be clearly identified in such reports.

D. The permittee shall furnish written notification to the department and the regional office of the U.S. Environmental Protection Agency of the following:

1. The actual date on which construction or installation or modification or reconstruction or relocation of any emission unit commenced, postmarked or submitted electronically within 30 days after that date.

2. The actual startup date of the emission unit within 15 days after that date.

3. The anticipated date of visible emissions evaluations for affected facilities subject to 40 CFR Part 60, Subpart OOO, postmarked or submitted electronically at least 30 days prior to that date.

4. The anticipated date of stack emissions tests of the affected facilities subject to 40 CFR Part 60, Subpart OOO, postmarked or submitted electronically at least 30 days prior to that date.

E. Within 30 days of completion, the permittee shall furnish written notification of equipment replacement, to include the following information, as applicable (for crushing, grinding, screening, elevator/belt conveying, bagging, storage bins, and truck/rail enclosed loading stations):

1. The rated capacity, in tons per hour, of the crusher being replaced and the replacement crusher.

2. The total surface area of the top screen deck of:

a. The screening operation being replaced; and

b. The replacement screening operation.

3. The conveyor belt width of:

a. The conveyor operation being replaced; and

b. The replacement conveyor.

4. The rated storage capacity, in tons, of:

a. The bins being replaced; and

b. The replacement bins.

5. A description of the control device used to reduce particulate matter emissions from the equipment and a list of all other pieces of equipment controlled by the same device.

6. The estimated age of the emissions units being replaced.

7. The identification of the emission standards applicable to the equipment being replaced and the replacement equipment.

F. The permittee shall comply with the reporting requirements of 9VAC5-20-180 concerning facility and control equipment maintenance or malfunction.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-510-240 Compliance

A. The department will evaluate a nonmetallic mineral processing facility's compliance with the emission standards in 9VAC5-510-190 as part of the department's annual compliance process. In performing the evaluation, the department will consider any annual emission update submitted pursuant to 9VAC5-510-230.

B. Upon presentation of credentials and other documents as may be required by law, the permittee shall allow the department to perform the following:

1. Enter upon the premises where the source is located or emissions-related activity is conducted, or where records must be kept under the terms and conditions of the permit.

2. Have access to and copy, at reasonable times, any records that must be kept under the terms and conditions of the permit.

3. Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit.

4. Sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements.

Department representatives will report to the site office and notify a company official or representative of their presence immediately upon entering any operation, as required by Mine Safety and Health Agency standards. For purposes of this condition, the time for inspection shall be deemed reasonable during regular business hours or whenever the facility is in operation. Nothing contained herein shall make an inspection time unreasonable during an emergency.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

9VAC5-510-250 Enforcement

A. Violation of this permit is subject to the enforcement provisions including, but not limited to, those contained in 9VAC5 Chapter 170 (9VAC5-170) and §§ 10.1-1309, 10.1-1309.1, 10.1-1311 and 10.1-1316 of the Virginia Air Pollution Control Law.

B. If any condition, requirement or portion of the permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of the permit.

C. The permittee shall comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the Virginia Air Pollution Control Law and is grounds (i) for enforcement action or (ii) for suspension or revocation of the authorization to operate under the general permit.

D. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

E. The authorization to operate under the general permit may be suspended or revoked for cause as specified in 9VAC5-510-80. The filing by a permittee of a (i) request for reauthorization to operate under a general permit, or (ii) notification of termination, planned changes or anticipated noncompliance does not stay any permit condition.

F. The owner of the nonmetallic mineral processing facility shall be subject to enforcement action under 9VAC5-510-80 for operation without a permit if the facility is later determined by the department not to qualify for the conditions and terms of the general permit.

G. The general permit does not convey any property rights of any sort, or any exclusive privilege.

H. The permittee shall furnish to the department, within a reasonable time, any information that the department may request in writing to determine whether cause exists for suspending or revoking the authorization to operate under the general permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the department copies of records required to be kept by the permit and, for information claimed to be confidential, the permittee shall furnish such records to the department along with a claim of confidentiality meeting the requirements of 9VAC5-170-60.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 3, eff. December 1, 2002.

Chapter 520 Biomass Energy Generator General Permit for a Pilot Test Facility

Part I Definitions

9VAC5-520-10 General

A. For the purpose of this chapter or any orders issued by the board, the words or terms shall have the meanings given them in 9VAC5-510-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used shall have the meanings given them by 9VAC5-80-1110 (Permits for New and Modified Stationary Sources), 9VAC5-10-20 (Regulations for the Control and Abatement of Air Pollution), or 9VAC5-170-20 (Regulation for General Administration); or commonly ascribed to them by recognized authorities, in that order of priority.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-20 Terms defined

"Agricultural processed co-products" means residual plant materials or products extracted from plant materials. This does not include products created as a result of a chemical reaction in which the plant materials have been intentionally chemically altered such as, but not limited to, biodiesel or glycerin.

"Biomass" means organic material that is available on a renewable or recurring basis, including:

1. Forest-related materials, including uncontaminated mill residues, logging residues, forest thinning, slash, brush, low-commercial value materials or undesirable species, and woody material harvested for the purpose of forest fire fuel reduction or forest health and watershed improvement;

2. Agricultural-related materials, including orchard trees, vineyard, grain or crop residues, including straws, aquatic plants and agricultural processed co-products and waste products, including fats, oils, greases, whey, and lactose;

3. Animal waste, including manure and slaughterhouse and other animal processing waste;

4. Solid woody waste materials, including landscape trimmings, waste pallets, crates and manufacturing, construction, and demolition wood wastes, excluding pressure-treated, chemically treated or painted wood wastes, and wood contaminated with plastic;

5. Crops and trees planted for the purpose of being used to produce energy;

6. Landfill gas, wastewater treatment gas, and biosolids, including organic waste byproducts generated during the wastewater treatment process; and

7. Municipal solid waste, excluding tires and medical and hazardous waste.

"Biomass pilot test facility" means a facility that (i) is being operated using biomass as a fuel to obtain emissions testing data in order to determine if a source is subject to any new source review permit program, and (ii) includes the qualified energy generator and any fuel preparation, storage, and handling emission units.

"Biosolids" means a sewage sludge that has received an established treatment for required pathogen control and is treated or managed to reduce vector attraction to a satisfactory level and contains acceptable levels of pollutants, such that it is acceptable for use for land application, marketing, or distribution in accordance with 9VAC25-32 (Virginia Pollution Abatement Permit Program Regulation).

"Clean wood" means uncontaminated natural wood. Clean wood includes, but is not limited to, byproducts of harvesting activities conducted for forest management or commercial logging, or uncontaminated mill residues consisting of bark, chips, edgings, sawdust, shavings, or slabs. It does not include wood that has been treated with glues, binders, or resins.

"Construct and test" means to construct a biomass pilot test facility and associated equipment including a qualified energy generator, and to then conduct appropriate testing in accordance with 9VAC5-520-180 in order to determine the uncontrolled emissions rate from the facility. If the facility is determined to be exempt from all new source review permit programs in accordance with 9VAC5-520-170, the biomass pilot test facility may continue to operate in accordance with the terms and conditions of 9VAC5-520-180 J 2.

"Construction wood waste" means solid wood waste that is produced or generated during construction, renovation, remodeling, or repair of houses, commercial buildings, and other structures.

"Contaminated" means, in reference to wood, wood products, or wood residues, those that are painted, pigment-stained, chemically treated (other than with fungicide, glue, binder or resin), or pressure-treated with preservative compounds including, but not limited to, chromate copper arsenate, pentachlorophenol, or creosote.

"Criteria pollutants" means any pollutant for which an ambient air quality standard is established under 9VAC5-30 (Ambient Air Quality Standards).

"Demolition wood waste" means solid woody waste resulting from the destruction of structures and includes the same materials as construction wood waste.

"Exempt facility" means a biomass pilot test facility that has uncontrolled emissions below the permit emissions threshold values in 9VAC5-520-170 and is not required to obtain any new source review permit but must operate according to the terms and conditions set forth in 9VAC5-520-180 J 2.

"Garbage" means readily putrescible discarded materials composed of animal, vegetable, or other organic matter.

"General permit" means, for a biomass pilot test facility, the terms and conditions in Part IV (9VAC5-520-160 et seq.) of this chapter that meet the requirements of Part II (9VAC5-520-30 et seq.) and Part III (9VAC5-520-90 et seq.) of this chapter and issued under the provisions of 9VAC5-80-1250.

"Hazardous waste" means a hazardous waste as defined in 9VAC20-60 (Hazardous Waste Management Regulations) or 40 CFR Part 261.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill as defined in Part I (9VAC20-80-10 et seq.) of 9VAC20-80 (Solid Waste Management Regulations).

"Landscape trimmings" means trees, tree branches, bushes, shrubs, and clippings from tree branches, bushes, and shrubs that come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Landscape trimmings do not include collected leaves, grass, or grass clippings.

"Major new source review (NSR) permit" means a permit issued under the major new source review program.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165, and 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 3 (9VAC5-80-360 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources).

"Manufacturing wood waste" means uncontaminated solid woody waste and wood residue that is generated by one or more manufacturing processes. Such waste includes, but is not limited to, bark, sawdust, chips, scraps, slabs, millings, and shavings, but does not include process waste, byproduct, or co-product in which the wood or residue has been chemically treated, such as that resulting from pulp and paper production or from cellulose production.

"Minor new source review (NSR) permit" means a permit issued under the minor new source review program.

"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects that are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 6 (9VAC5-80-1100 et seq.) of Part II of this chapter. The minor NSR program may also be used to implement the terms and conditions designated as state-only enforceable; however, those terms and conditions shall not be applicable federal requirements.

"Municipal solid waste" means household, commercial/retail, or institutional waste. Household waste includes garbage, trash, and refuse discarded by residential dwellings, hotels, motels, and other similar permanent or temporary housing. Commercial/retail waste includes all solid waste discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities. Institutional waste includes materials discarded by schools, hospitals (nonmedical), nonmanufacturing activities at prisons and government facilities, and other similar establishments or facilities. Household, commercial/retail, and institutional waste does include yard waste. Household, commercial/retail, and institutional waste does not include used oil, sewage sludge, wood pallets, construction and demolition wastes, clean wood, industrial process or manufacturing wastes, medical waste, or motor vehicles (including motor vehicle parts or vehicle fluff).

"New source review (NSR) permit" means a permit issued under the new source review program.

"New source review (NSR) program" means a preconstruction review and permit program (i) for new stationary sources or modifications (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act and associated regulations; and (iii) codified in Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources).

"Nitrogen oxides" or "NO_X" means all oxides of nitrogen except nitrous oxide, as measured by the applicable reference method, or an equivalent or alternative method.

"Particulate matter" or "PM" means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than 100 micrometers.

"Particulate matter (PM) emissions" means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air as measured by the applicable reference method or an equivalent or alternative method.

"Permit emission thresholds" means the value at which a permitting applicability determination can be made for a biomass pilot test facility based upon the quantity of emissions from that facility in accordance with the requirements of 9VAC5-520-170.

"Permittee" means the owner of an affected emissions unit covered under the general permit.

"PM_2.5" means fine particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers as measured by the applicable reference method or an equivalent method.

"PM_2.5 emissions" means finely divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers emitted to the ambient air as measured by the applicable reference method or an equivalent or alternative method.

"PM₁₀" means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers as measured by the applicable reference method or an equivalent method.

"PM₁₀ emissions" means finely divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal 10 micrometers emitted to the ambient air as measured by the applicable reference method or an equivalent or alternative method.

"Postmark" means an official mark on a piece of mail or date mark on electronic communications that records the date and place of mailing or origination of an electronic communication.

"Potential to emit" means an emission rate based on the maximum capacity of a biomass pilot test facility to emit a toxic pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the facility to emit a toxic pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or its effect on emissions is state or federally enforceable. Fugitive emissions shall be included in determining a biomass pilot test facility's potential to emit.

"Qualified energy generator" means a commercial facility located in the Commonwealth (i) with the capacity annually to generate no more than five megawatts (MW) of electricity, or that produces the equivalent amount of energy in the form of fuel, steam, or other energy product; (ii) that is generated or produced solely from biomass; and (iii) that is sold to an unrelated person or stationary source or used in a manufacturing process. For the purposes of this chapter the phrase "capacity annually to generate no more than 5 MW of electricity" shall mean a nameplate capacity equal to or less than 5 MW that is operated in conjunction with a biomass pilot test facility.

"Reasonable time" means business operating hours unless in response to a complaint.

"Reference method" means any method of sampling and analyzing for an air pollutant as described in the following EPA regulations:

1. For ambient air quality standards in 9VAC5-30 (Ambient Air Quality Standards): The applicable appendix of 40 CFR Part 50 or any method that has been designated as a reference method in accordance with 40 CFR Part 53, except that it does not include a method for which a reference designation has been canceled in accordance with 40 CFR 53.11 or 40 CFR 53.16.

2. For emission standards in 9VAC5-40 (Existing Stationary Sources) and 9VAC5-50 (New and Modified Stationary Sources): Appendix M of 40 CFR Part 51 or Appendix A of 40 CFR Part 60.

3. For emission standards in 9VAC5-60 (Hazardous Air Pollutant Sources): Appendix B of 40 CFR Part 61 or Appendix A of 40 CFR Part 63.

"Refuse" means all solid waste products having the characteristics of solids rather than liquids and that are composed wholly or partially of materials such as garbage, trash, rubbish, litter, residues from clean up of spills or contamination, or other discarded materials.

"Solid woody waste" means waste consisting of uncontaminated wood and wood product, including tree stumps, trees, or tree limbs (any of which may be whole or cut). Solid woody waste does not include wood or wood products mixed with soil or other nonwood materials such as plastic, metal, cement, or mineral fibers.

"Sulfur dioxide" or "SO₂" means a colorless gas at standard conditions having a molecular composition of one sulfur atom and two oxygen atoms as measured by the applicable reference method or an equivalent or alternative method.

"Uncontrolled emissions or uncontrolled emissions rate" means the emission rate from an emissions unit when operating at maximum capacity without air pollution control equipment. Air pollution control equipment includes control equipment that is not vital to its operation, except that its use enables the owner to conform to applicable air pollution control laws and regulations. Annual uncontrolled emissions shall be based on the maximum annual rated capacity (based on 8,760 hours of operation per year) of the emissions unit, unless the emissions unit or stationary source is subject to state and federally enforceable permit conditions that limit the annual hours of operation. Enforceable permit conditions on the type or amount of material combusted, stored, or processed may be used in determining the uncontrolled emission rate of an emissions unit or stationary source. The uncontrolled emission rate of a stationary source is the sum of the uncontrolled emission rates of the individual emissions units. Secondary emissions do not count in determining the uncontrolled emission rate of a stationary source.

"Volatile organic compound" or "VOC" means volatile organic compound as defined in 9VAC5-10.

"Wood product" means manufactured wood such as plywood, particleboard, fiberboard, hardboard, oriented strand board, and engineered structural products made from clean wood with or without glue, binder, or resin. Wood product does not include products made with other nonwood materials such as plastic, metal, cement, or mineral fibers.

"Wood residue" means, in reference to logging, manufacturing or milling processes, woody waste that is generated by the cutting, chipping, grinding, shaping, or smoothing of wood or wood products. Wood residue includes bark, chips, edging sawdust, shavings, or slabs and may include small amounts of glue, binder, or resin from wood products. Wood residue does not include woody waste mixed with soil or other nonwood materials such as plastic, metal, cement, or mineral fibers.

"Yard waste" means collected leaves, grass, grass clippings, bushes, or shrubs, and clippings from bushes and shrubs that come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include (i) construction, renovation, and demolition wastes or (ii) clean wood.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

Part II General Provisions

9VAC5-520-30 Basis

This general permit is being issued under the authority of § 10.1-1308.1 of the Code of Virginia and 9VAC5-80-1250.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-40 Applicability and designation of affected emissions unit

A. The affected emissions unit to which the provisions of this chapter apply is each qualified energy generator that is a biomass pilot test facility for which testing is commenced on or after May 25, 2011.

B. This chapter applies throughout the Commonwealth of Virginia.

C. Any qualified energy generator, the construction or operation of which is subject to the major new source review program, shall not be eligible for the general permit.

D. Any qualified energy generator subject to § 129 of the federal Clean Air Act shall not be eligible for the general permit.

E. Any qualified energy generator that has initially applied for and received the authority to construct and operate under the general permit may apply for the authority to construct and operate under the general permit again for a different biomass fuel if the initial biomass fuel was found to be exempt. Once a qualified energy generator is issued a new source review permit for a specified biomass fuel as required under 9VAC5-520-180 J 3, the qualified energy generator will be subject to the provisions of 9VAC5-80 (Permits for Stationary Sources).

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-50 General authorization; conditions requiring a new source review permit

A. A biomass pilot test facility desiring authority to construct and test under the general permit shall comply with the requirements of the general permit, may be subject to applicable requirements of 9VAC5-80 (Permits for Stationary Sources), and shall register with the department as required under 9VAC5-20-160.

B. A biomass pilot test facility may continue to operate under the terms and conditions set forth in 9VAC5-520-180 J 2 provided the test results demonstrate the emissions are below the permit emission threshold limits of 9VAC5-520-170 and the facility is exempt from the minor source permitting requirements.

C. No general permit for a biomass pilot test facility will be issued until the department has received a submission that the facility is not a major source subject to the provisions of Article 1, 3, 7, 8, or 9 of Part II of 9VAC5-80 (Permits for Stationary Sources). Each submission shall include the following statement by the permittee or authorized representative: "I am authorized to make this submission on behalf of the owners and operators of the biomass pilot test facility for which the submission is made. I certify under penalty of law that the statements and information submitted in this document and all its attachments were prepared in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I certify, based on my knowledge of the biomass pilot test facility and the attached mathematical or engineering demonstration or both, that the facility is not a major source, is not located at a major source defined in this chapter, or is not subject to § 129 of the federal Clean Air Act. If information demonstrates that the facility is subject to the provisions of Article 1, 3, 7, 8, or 9 of Part II of 9VAC5-80 (Permits for Stationary Sources) or § 129 of the federal Clean Air Act, the facility will stop operation immediately. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

D. The department may require a permittee that is authorized to construct and test under this general permit to apply for and obtain a minor NSR permit. Any interested person may request the board to take action under this subsection. Cases where an individual minor NSR permit may be required include the following:

1. The emissions are above the permit emission threshold limits of 9VAC5-520-170 for either criteria pollutants or hazardous air pollutants;

2. Circumstances have changed since the time of the request to be authorized to be exempt from permitting so that the emissions are no longer appropriately controlled under the terms and conditions of the exemption letter;

3. Either a temporary or permanent reduction or elimination of the emissions is necessary; or

4. Other relevant factors.

E. Permits may be required on a case-by-case basis. A biomass pilot test facility subject to an individual minor NSR permit according to 9VAC5-520-180 shall be notified of that decision and the reasons for it. The permittee must apply for a permit within 30 days of notice and is subject to the provisions of 9VAC5-520-180 J 3 a and b and 9VAC5-80 (Permits for Stationary Sources).

F. Any permittee authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual minor new source review permit. The permittee shall submit an application as required by 9VAC5-80 (Permits for Stationary Sources).

G. When an individual minor NSR permit is issued to a permittee, coverage under the general permit is automatically terminated on the effective date of the minor NSR permit.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-60 Existence of permit no defense

The existence of a permit under this chapter shall not constitute a defense of a violation of the Virginia Air Pollution Control Law or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances, and orders of the governmental entities having jurisdiction.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-70 Circumvention

A. No owner shall cause or permit the installation or use of any device or any means that, without resulting in reduction in the total amount of air pollutants emitted, conceals or dilutes an emission of air pollutants that would otherwise violate this chapter.

B. This section does not prohibit the construction of a stack.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-80 Enforcement of a general permit

The following general requirements apply:

1. Pursuant to § 10.1-1322 of the Code of Virginia, failure to comply with any term or condition of the general permit shall be considered a violation of the Virginia Air Pollution Control Law.

2. An owner who (i) violates or fails, neglects, or refuses to obey any provision of this chapter or the Virginia Air Pollution Control Law, any applicable requirement, or any permit term or condition; (ii) knowingly makes any false statement, representation, or certification in any form, notice, or report required by a permit; or (iii) knowingly renders inaccurate any required monitoring device or method shall be subject to the provisions of §§ 10.1-1307, 10.1-1309, 10.1-1316, 10.1-1318, and 10.1-1320 of the Virginia Air Pollution Control Law.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

Part III General Permit Administrative Procedures

9VAC5-520-90 Requirements for granting an authorization to construct and test under the general permit

A. The department may grant an authorization to construct and test under the general permit for a biomass pilot test facility that meets the applicability criteria in 9VAC5-520-40 and the testing schedule in 9VAC5-520-180.

B. The general permit will be issued in accordance with § 2.2-4006 A 8 of the Administrative Process Act.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-100 Applications for coverage under the general permit

A. Owners of a biomass pilot test facility that qualifies for the general permit may apply to the department for coverage under the terms and conditions of the general permit.

B. The application shall meet the requirements of this chapter and include all information necessary to determine qualification for and to assure compliance with the general permit.

C. Any application form, report, compliance certification, or other document required to be submitted to the department under this chapter shall meet the requirements of 9VAC5-20-230.

D. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in an application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-110 Required information for initial applications

A. The department will make application forms available to applicants. The information required by this section shall be determined and submitted according to procedures and methods acceptable to the department.

B. Each initial application for coverage under the general permit shall include, but not be limited to, the following:

1. Information specified in the appropriate permit application form for Biomass Pilot Test Facility General Permits as determined by the regional office.

2. A document certification with all applicable requirements completed by a responsible official.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-120 Granting an authorization to construct and test under the general permit

A. The department may grant authorization to construct and test under the conditions and terms of the general permit to sources that meet the applicability criteria set forth in 9VAC5-520-40.

B. Granting an authorization to construct and test under the general permit to a facility covered by the general permit is not subject to the public participation procedures under 9VAC5-80-1170.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-130 Transfer of authorizations to construct and test under the general permit

A. No person shall transfer an authorization to construct and test under the general permit from one biomass pilot test facility to another or from one piece of equipment to another.

B. In the case of a transfer of ownership of a biomass pilot test facility, the new owner shall comply with any permit issued or authorization to construct and test under the general permit granted to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of a biomass pilot test facility source, the owner shall comply with any permit issued or authorization to construct and test under the general permit granted under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

Part IV General Permit Terms and Conditions

9VAC5-520-140 General permit

A. Any owner whose application is approved by the Director of Department of Environmental Quality shall receive this permit and shall comply with the requirements in it and be subject to all requirements of this chapter and the regulations of the board.

B. In compliance with the provisions of the Virginia Air Pollution Control Law and regulations adopted pursuant to it, owners of qualified energy generators are authorized to construct and test under the authority of this permit, except those where board regulations or policies prohibit such operation.

C. The authorization to construct and test under this permit shall be in accordance with the cover letter to this permit, 9VAC5-520-150 (General terms and conditions), 9VAC5-520-160 (Process requirements), 9VAC5-520-170 (Permit emission thresholds), 9VAC5-520-180 (Testing schedule), 9VAC5-520-190 (Compliance determination and verification by emission testing), 9VAC5-520-200 (Recordkeeping requirements), 9VAC5-520-210 (Reporting requirements), 9VAC5-520-220 (Compliance), and 9VAC5-520-230 (Enforcement).

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-150 General terms and conditions

A. The permittee is authorized to construct and test a biomass pilot test facility located within the boundaries of the Commonwealth of Virginia, in accordance with the approved permit application and conditions of this permit except where board regulations or policies prohibit such activities.

B. The permittee shall comply with the terms and conditions of this permit prior to commencing any physical or operational change or activity that will result in making the facility subject to the new source review program.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-160 Process requirements

A. Each biomass pilot test facility shall comply with visible emissions and fugitive dust/emissions standards of Article 1 (9VAC5-50-60 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources). No owner or other person shall cause or permit any materials or property to be handled, transported, stored, used, constructed, altered, repaired, or demolished without taking reasonable precautions to prevent particulate matter from becoming airborne.

B. Each biomass pilot test facility shall comply with the odor standards in Article 2 (9VAC5-50-130 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources). Under no circumstances shall the biomass qualified energy generator or associated raw material storage or handling cause an odor objectionable to individuals of ordinary sensibility.

C. Once per week, the permittee shall observe the biomass pilot test facility's fuel preparation and storage operations to determine if there are any visible emissions excluding stack emissions. The presence of visible emissions shall indicate the need for prompt corrective action. The applicant shall keep a log of the observations. The log shall include the name of the observer, the date and time of the observations, the presence of visible emissions or lack thereof, and the date, time, and description of corrective actions taken whenever visible emissions were observed.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-170 Permit emission threshold

A. In determining whether a biomass pilot test facility is exempt from all new minor source review permit programs, the facility must be determined to be exempt under the provisions of 9VAC5-80 (Permits for Stationary Sources) and both subdivisions 1 and 2 of this subsection.

1. A biomass pilot test facility that measures uncontrolled emissions below the threshold values specified in Table 520-1 qualifies as an exempt facility. All biomass pilot test facilities and ancillary equipment shall be considered in the aggregate. A biomass pilot test facility that measures uncontrolled emissions at or above the permit emission threshold values specified in Table 520-1 provided it does not demonstrate it is a major source, shall obtain a permit according to the applicable provisions of 9VAC5-520-180 J 3.

| | TABLE 520-1 PERMIT EMISSION THRESHOLD VALUES | | | | --- | --- | --- | --- | | | Pollutant | Combined Units (tons/year) | | | | | PM | 25 | | | | PM₁₀ | 15 | | | | PM_2.5 | 10 | | | | NO_X | 40 | | | | SO₂ | 40 | | | | CO | 100 | | | | VOC | 25 |

a. The PM, PM₁₀, and PM_2.5 values listed in Table 520-1 contain filterable and condensable particulates.

b. Permit emission threshold values for combined units listed in Table 520-1 include the qualified energy generator and any fuel preparation/storage emission units.

2. Any biomass pilot test facility with measurements that result in a potential to emit any toxic pollutant below threshold values specified in Article 5 (9VAC5-60-300 et seq.) of 9VAC5-60 (Hazardous Air Pollutant Sources) qualifies as an exempt facility. All biomass pilot test facilities and ancillary equipment shall be considered in the aggregate. Any biomass pilot test facility with measurements that result in a potential to emit any toxic pollutant at or above the threshold values specified in Article 5 (9VAC5-60-300 et seq.) of 9VAC5-60 (Hazardous Air Pollutant Sources) shall obtain a permit according to the applicable provisions of 9VAC5-520-180 J 3 .

B. No applicant shall cause or allow to be discharged into the atmosphere from any biomass pilot test facility any visible emissions in excess of 10% opacity as determined by Reference Method 9 (9VAC5-50-410) from any stack, vent or duct. This opacity standard shall apply at all times except during periods of startup, shutdown, and malfunction.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-180 Testing schedule

A. All testing must be completed within 15 months from the actual startup date as determined under subsection E of this section.

B. Within 30 days after receipt of a biomass pilot test facility general permit application the regional office will notify the applicant of the status of the application with a review letter.

1. If a complete application is received, the review letter will state if the applicant is approved for the biomass pilot test facility general permit. If approved, the applicant has 18 months from the date of the review letter to commence construction of the biomass pilot test facility and its equipment.

2. If a complete application is not received, the applicant has 30 days to submit the additional information needed for a complete application. If the additional information is not received within 30 days, the application will be returned to the applicant and the application will be withdrawn. Within 30 days after receipt of the additional information, the department will respond with another review letter that will state if the applicant is approved for the biomass pilot test facility general permit. If approved, the provisions of subdivision A 1 of this subsection shall apply.

C. Within the approved 18 months, the applicant shall notify the regional office of the actual date on which construction of the biomass pilot test facility commenced within 30 days after such date.

1. The applicant may apply for another 18-month extension to commence construction on the biomass pilot test facility based upon a satisfactory demonstration that an extension is justified.

2. Only one extension is allowed and shall be limited to commencing construction on the biomass pilot test facility.

D. The applicant shall notify the regional office in writing or electronically of the anticipated startup date of the biomass pilot test facility postmarked not more than 60 days nor less than 30 days prior to such date.

E. The applicant shall notify the regional office in writing or electronically of the actual startup date of the biomass pilot test facility within 15 days after such date. The applicant shall operate and perform all testing needed to comply with this permit no later than 15 months from the actual startup date.

F. For each biomass fuel to be utilized, the applicant shall perform (or acquire) a certified fuel test as required by 9VAC5-520-190 A.

G. At least 30 days prior to testing, the applicant shall:

1. Notify the department in writing or electronically of the anticipated date of the performance tests of the biomass pilot test facility;

2. Submit a stack test protocol and visible emissions evaluation test protocol to the regional office; and

3. Submit the results of the certified fuel test or tests to the regional office.

H. The stack testing and visible emissions evaluation tests shall be performed within 60 days after achieving the maximum production rate at which the facility will be operated but in no event later than 180 days after startup of the permitted facility according to 9VAC5-520-190 B, C, and D as appropriate.

I. All results shall be submitted to the regional office in writing or electronically no later than 45 days after test completion of the stack tests and visible emissions evaluation.

J. Within 60 days, the regional office will review the results and notify the applicant of the status of the biomass pilot test facility.

1. If test results demonstrate that the biomass pilot test facility is a major source, the facility shall cease operation immediately.

2. If test results demonstrate that the biomass pilot test facility is exempt from the minor source permitting requirements of all new source review programs, the regional office shall issue the applicant an exemption letter. The biomass pilot test facility will be authorized to operate under the terms and conditions set forth in the exemption letter and the biomass pilot test facility general permit will terminate. Any changes in the proposed operation of the facility may require a permit.

3. If testing demonstrates that the biomass pilot test facility is not exempt from the minor source permitting requirements of all new source review programs, the applicant shall obtain a permit as required by 9VAC5-80 (Permits for Stationary Sources).

a. An application for a new source review permit shall be submitted within 30 days of notification that the permit emission thresholds have been exceeded; if no application is received within the timeframe, the facility shall shut down.

b. The facility shall be authorized to continue to operate according to the terms and conditions of the biomass pilot test facility general permit application until such time as a new source review permit is issued. Once a new source review permit is issued, the facility shall operate according to the terms and conditions of the new source review permit and the authority to construct and operate under the biomass pilot test facility general permit will terminate.

c. All new source review permits will be issued within 90 days from receipt of a complete application.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-190 Compliance determination and verification by emission testing

A. A certified fuel test is required.

1. The permittee shall have a sample analyzed for each type of biomass used during the pilot test period.

2. The results of the fuel analysis shall be used to identify specific constituents of the fuel requiring further emissions testing.

3. The results shall be submitted to the regional office in writing or electronically prior to testing. The submittal shall include:

a. Fuel analysis;

b. Name of company and individual collecting the sample;

c. Identification of sampling method used;

d. Sample (volume or mass);

e. Number of samples taken;

f. Date sample collected;

g. Location of fuel when sample was taken;

h. Date of analysis; and

i. Name of company and individual conducting the analysis.

B. A test protocol for a certified stack test shall be submitted at least 30 days prior to testing.

1. The test protocol shall include information necessary to evaluate the emissions from the biomass pilot test facility and include, but not be limited to, operating rates or production rates as appropriate.

2. The details of conducting the tests shall be arranged with the regional office.

C. A certified stack test or other alternative method of evaluation acceptable to the department shall be conducted for each qualified energy generator stack to determine the quantity of pollutants from each biomass fuel.

1. Performance tests shall be conducted for all criteria pollutants.

2. Performance tests shall be conducted for any toxic pollutants that were found to be contained in the biomass fuel as stated in the certified fuel test.

3. A biomass pilot test facility utilizing a combustion process shall test for any toxic pollutants that are created from combustion (including, but not limited to, acetaldehyde, acrolein, benzene, formaldehyde, hydrochloric acid, hydrogen fluoride, naphthalene, trichloroethylene, and xylene).

4. The tests shall be performed within 60 days after achieving the maximum production rate at which the facility will be operated but in no event later than 180 days after start-up of the permitted facility.

5. Test shall be conducted in accordance with reference methods or an alternative method approved by the department.

6. One copy of the test results shall be submitted to the regional office within 45 days after test completion and shall conform to the test report format in subsection E of this section.

D. A certified visible emissions evaluation shall be conducted.

1. Concurrently with the certified stack test, visible emission evaluations in accordance with Reference Method 9, shall also be conducted on each qualified energy generator.

2. Each test shall consist of 30 sets of 24 consecutive observations (at 15 second intervals) to yield a six minute average.

3. The details of the tests shall be arranged with the regional office.

4. The permittee shall submit a test protocol at least 30 days prior to testing.

5. The evaluation shall be performed, reported, and demonstrate compliance within 60 days after achieving the maximum production rate at which the facility will be operated but in no event later than 180 days after start-up of the permitted facility.

6. Should conditions prevent concurrent opacity observations:

a. The regional office shall be notified in writing or electronically within seven days.

b. Visible emissions testing shall be rescheduled within 30 days.

c. Rescheduled testing shall be conducted under the same conditions (as possible) as the initial performance tests.

7. One copy of the test result shall be submitted to the regional office within 45 days after test completion and shall conform to the test report format in subsection F of this section.

E. The test report format for certified stack tests shall include the following:

1. A report cover containing:

a. The plant name;

b. The plant location;

c. Units tested at the source identified by the agency that have been issued reference numbers;

d. Test dates;

e. The name of the individual conducting the test;

f. The address of the individual conducting the test; and

g. The report date.

2. A certification, including the date certified, that has been signed by:

a. A test team leader or a certified observer;

b. The test reviewer; and

c. A responsible company official.

3. A copy of approved test protocol.

4. A summary including:

a. The reason for testing;

b. Test dates;

c. Identification of the unit tested including the maximum rated capacity for each unit;

d. For each emission unit, a table showing:

(1) The operating rate;

(2) Test methods;

(3) The pollutants tested; and

(4) Test results for each run, including the run average;

e. Process and control equipment data for each run and the average, as required by the test protocol;

f. A statement that the test was conducted in accordance with the test protocol, or identification and discussion of deviations, including the likely impact on results; and

g. Any other important information as determined by the regional office.

5. A description of source operation including:

a. A description of the process;

b. A description of control devices, if necessary;

c. A process and control equipment flow diagram; and

d. A description of sampling port location and a dimensioned cross section. A protocol shall be attached that includes a sketch of the stack (elevation view) showing sampling port locations, upstream and downstream flow disturbances and their distances from ports; and a sketch of stack (plan view) showing sampling ports, ducts entering the stack and stack diameter or dimensions.

6. Test results, including:

a. Detailed test results for each run;

b. Sample calculations; and

c. A description of collected samples, including audits, when applicable.

7. An appendix, including:

a. Raw production data;

b. Raw field data;

c. Laboratory reports;

d. Chain of custody records for laboratory samples;

e. Calibration procedures and results;

f. Project participants and contact information;

g. Observers' names (including their industry and agency affiliation);

h. Related correspondence; and

i. Standard procedures.

F. The test report format for visible emissions evaluations shall include the following.

1. A report cover containing:

a. The plant name;

b. The plant location;

c. Units tested at the source identified by the department that have been issued reference numbers;

d. Test dates;

e. The name of the individual conducting the test;

f. The address of individual conducting test; and

g. The report date.

2. A certification, including the date certified, that has been signed by:

a. A test team leader or a certified observer; and

b. A responsible company official.

3. Copy of approved test protocol.

4. A summary including:

a. The reason for testing;

b. Test dates;

c. Identification of the unit tested including the maximum rated capacity for each unit;

d. Summarized process and control equipment data for each run and the average, as required by the test protocol;

e. A statement certifying that the test was conducted in accordance with the test protocol or, if not conducted according to protocol, identification and discussion of deviations, including the likely impact on results; and

f. Any other important information.

5. A description of source operation including:

a. A description of the process;

b. A description of control devices, if necessary;

c. A process and control equipment flow diagram; and

d. A description of sampling port location and a dimensioned cross section. A protocol shall be attached that includes a sketch of the stack (elevation view) showing sampling port locations, upstream and downstream flow disturbances and their distances from ports; and a sketch of stack (plan view) showing sampling ports, ducts entering the stack and stack diameter or dimensions.

6. The detailed test results for each run.

7. An appendix including:

a. The names of project participants and their titles;

b. The observers' names including their industry and agency affiliation;

c. Related correspondence; and

d. Standard procedures.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-200 Recordkeeping requirements

A. The permittee shall maintain records on site for each emission unit or groups of emission units sufficient to determine the actual emissions of the biomass pilot test facility.

1. Records shall include, but not be limited to, emission data and operating parameters during emissions testing.

2. The content and format of such records shall be determined in consultation with the regional office.

3. These records shall be available for inspection by the department and shall be current for the most recent five years.

B. The permittee shall prepare and maintain the following information:

1. Records of monitoring information including:

a. The date of sampling or measurements;

b. The place as defined in the authorization to operate under this general permit;

c. The time of sampling or measurements;

d. The date or dates analyses were performed;

e. Each biomass utilized and the rate of consumption;

f. The company or entity that performed the analyses;

g. The analytical techniques or methods used;

h. The results of such analyses;

i. The operating conditions existing at the time of sampling or measurement;

j. Results of all stack tests, visible emission evaluations, and certified fuel tests;

k. The copies of all notifications submitted to the regional office;

l. The operating schedule as stated in 9VAC5-520-180;

m. All visible emission records as required in 9VAC5-520-190 D; and

n. Documentation that the unit does not exceed the 5 MW nameplate capacity threshold.

2. Records of all monitoring data and support information shall be retained for five years and available onsite for inspection by the department during the pilot test trial period.

C. In order to ensure the proper operation of the biomass pilot test facility, the permittee shall perform the following:

1. Develop a maintenance schedule and maintain records of all scheduled and nonscheduled maintenance to the biomass pilot test facility. These records shall be maintained on site for five years and shall be made available to department upon request.

2. Maintain verification that personnel operating the biomass pilot test facility are properly trained to do so.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-210 Reporting requirements

A. The permittee shall comply with the reporting requirements in this section. Any document (including reports) required by a permit term or condition to be submitted to the department shall contain a document certification signed by a responsible official that meets the requirements of 9VAC5-20-230.

B. The permittee shall furnish written notification to the department of the following dates relative to the requirements of 9VAC5-520-180:

1. The actual date on which construction or installation of any biomass pilot test facility commenced, postmarked within 30 days after that date;

2. The anticipated startup date of the biomass pilot test facility, postmarked not more than 60 days nor less than 30 days prior to such date;

3. The actual startup date of the biomass pilot test facility postmarked within 15 days after that date;

4. The test protocol, postmarked at least 30 days prior to the date that testing commences; and

5. The test results, no later than 45 days after test completion of the stack tests and visible emissions evaluation.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-220 Compliance

A. Whenever it is necessary for the purpose of the regulations of the board, the board or an agent authorized by the board may at reasonable times enter an establishment or upon property, public or private, for the purpose of obtaining information or conducting surveys or investigations as authorized by § 10.1-1315 or § 46.2-1187.1 of the Code of Virginia.

B. Upon presentation of credentials and other documents as may be required by law, the permittee shall allow the department to perform the following:

1. Enter upon the premises where the source is located or emissions related activity is conducted, or where records must be kept under the terms and conditions of this permit.

2. Have access to and copy, at reasonable times, any records that must be kept under the terms and conditions of this permit.

3. Inspect at reasonable times any facilities, equipment (including monitoring equipment), practices, or operations regulated or required under this permit.

4. Sample or monitor at reasonable times, substances or parameters for the purpose of assuring compliance with this permit or applicable requirements.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

9VAC5-520-230 Enforcement

A. Violation of this permit is subject to the enforcement provisions including, but not limited to, those contained in 9VAC5-170 (Regulation for General Administration) and §§ 10.1-1309, 10.1-1309.1, 10.1-1311, and 10.1-1316 of the Virginia Air Pollution Control Law.

B. If any condition, requirement, or portion of this permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of this permit.

C. The permittee shall comply with all conditions of this permit. Any noncompliance with this permit constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action, or (ii) suspension or revocation of the authorization to operate under this permit.

D. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

E. The authorization to construct and test under this permit may be suspended or revoked for cause as specified in 9VAC5-520-80. The filing by a permittee of (i) a request for reauthorization to operate under this permit, or (ii) notification of termination, planned changes, or anticipated noncompliance does not stay any condition of this permit.

F. The owner of the qualified energy generator may be subject to enforcement action under 9VAC5-520-80 for operation without a permit if the facility is later determined by the department not to qualify for the conditions and terms of this permit.

G. This permit does not convey any property rights of any sort, or any exclusive privilege.

H. The permittee shall furnish to the department, within 30 days of notification, any information that the department may request in writing to determine whether cause exists for suspending or revoking the authorization to operate under this permit or to determine compliance with this permit. Upon request, the permittee shall also furnish to the department copies of records required to be kept by this permit and, for information claimed to be confidential, the permittee shall furnish such records to the department along with a claim of confidentiality meeting the requirements of 9VAC5-170-60.

History

• Statutory Authority: § 10.1-1308.1 of the Code of Virginia; § 110(a) of the federal Clean Air Act; 40 CFR Part 51.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 17, eff. May 25, 2011.

Chapter 530 Electric Generator Voluntary Demand Response General Permit

Part I Definitions

9VAC5-530-10 General

A. For the purpose of this chapter or any orders issued by the board the words or terms used shall have the meanings given them in 9VAC5-530-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used shall have the meaning given them by 9VAC5-80-1110 (definitions, Permits for New and Modified Stationary Sources), 9VAC5-10-20 (general definitions, Regulations for the Control and Abatement of Air Pollution), 9VAC5-170-20 (definitions, Regulation for General Administration), or commonly ascribed to them by recognized authorities, in that order of priority.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-20 Terms defined

"Affected unit" means one or more electric generating units subject to the provisions of this chapter.

"Aggregate rated electrical power output" means (i) the sum or total rated electrical power output for all affected units involved in the application or (ii) in nonattainment areas, the sum or total rated electrical output for all electric generating units, permitted or exempt, located at the facility.

"Attainment area" means any area (other than an area identified as a nonattainment area) that meets the national primary or secondary ambient air quality standards for any pollutant pursuant to § 107 of the federal Clean Air Act (42 USC § 7401 et seq.).

"Biodiesel fuel" means a fuel comprised of mono-alkyl esters of long chain fatty acids derived from vegetable or animal fats, designated B100, and meeting the requirements of ASTM D6751-09.

"Biodiesel blends" means a blend of biodiesel and petroleum diesel fuel meeting either the requirements of ASTM D975-10b (blends up to 5.0%) or ASTM D7467-09 (blends between 6.0% and 20% biodiesel) and designated Bxx where xx represents the biodiesel content of the blend, e.g., B20 for a blend of 20% biodiesel and 80% petroleum diesel fuel.

"Compression ignition unit" or "CI unit" means a type of stationary internal combustion engine that is not a spark ignition engine.

"Demand response" means measures aimed at shifting time of use of electricity from peak-use periods to times of lower demand by inducing retail customers to curtail electricity usage during periods of congestion and higher prices in the electrical grid. Demand response actions are typically undertaken by the source owner in response to a request from a utility or electrical grid system operator or in response to market prices. Demand response participants do not include affected units that are participating in an ISO's Manual 13 Emergency Operations program.

"Diesel fuel" means any liquid obtained from the distillation of petroleum with a boiling point of approximately 150°C to 360°C and that complies with the specifications for S15 diesel fuel oil as defined by the American Society for Testing and Materials in ASTM D975-10b.

"Electric generating unit" means a stationary internal combustion engine that participates in a nonemergency voluntary demand response program (i.e., load curtailment, demand response, peak shaving or like program).

"Emergency" means a condition that arises from sudden and reasonably unforeseeable events where the primary energy or power source is disrupted or disconnected due to conditions beyond the control of an owner or operator of a source including any of the following:

1. A failure of the electrical grid.

2. On-site disaster or equipment failure.

3. Public service emergencies such as flood, fire, natural disaster, or severe weather conditions.

4. An ISO-declared emergency where an ISO emergency is any of the following:

a. An abnormal system condition requiring manual or automatic action to maintain system frequency, to prevent loss of firm load, equipment damage, or tripping of system elements that could adversely affect the reliability of an electric system or the safety of persons or property.

b. Capacity deficiency or capacity excess conditions.

c. A fuel shortage requiring departure from normal operating procedures in order to minimize the use of such scarce fuel.

d. Abnormal natural events or man-made threats that would require conservative operations to posture the system in a more reliable state.

e. An abnormal event external to the ISO service territory that may require ISO action.

"Emergency generator or generation source" means a stationary internal combustion engine that operates only during an emergency, required maintenance or operability and emissions testing.

"General permit" means, for an electric generating unit or units, the terms and conditions in either Part IV (9VAC5-530-140 et seq.) or Part V (9VAC5-530-220) of this chapter that meet the requirements of Part II (9VAC5-530-30 et seq.) and Part III (9VAC5-530-90 et seq.) of this chapter and issued under the provisions of 9VAC5-80-1250.

"Identical affected units" means electric generating units that have the same make, manufacturer, model, year, size, and fuel specifications.

"Integration operational period" means that period of time beginning with the first time the affected unit is started on-site and ending when the affected unit is fully integrated with the source's electrical system. In no case shall this period exceed 30 days.

"Kilowatt (kW) to brake horsepower (bhp)" means the conversion of 1 kW = 1.341 bhp.

"Load curtailment" means an action similar to demand response, with the specific removal or reduction of electrical loads for a limited period of time from a utility grid system in response to a request from the utility or electrical grid system operator.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165 and 173 of the federal Clean Air Act (42 USC § 7401 et seq.) and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II (Permit Procedures) of 9VAC5-80 (Permits for Stationary Sources).

"Manufacturer certified emissions" means the emission levels from a stationary compression ignition engine as identified according to the manufacturers' specifications applicable to that engine's family and model year.

"Model year" means either (i) the calendar year in which the engine was originally produced, or (ii) the annual new model production period of the engine manufacturer if it is different than the calendar year. This must include January 1 of the calendar year for which the model year is named. It may not begin before January 2 of the previous calendar year and it must end by December 31 of the named calendar year. For an engine that is converted to a stationary engine after being placed into service as a nonroad or other nonstationary engine, model year means the calendar year or new model production period in which the engine was originally produced.

"Nonattainment area" means any area that does not meet the national ambient air quality standards for any pollutant pursuant to § 107 of the federal Clean Air Act (42 USC § 7401 et seq.) and listed in 9VAC5-20-204.

"Operation" means the burning of fuel regardless of whether electricity is generated.

"Peak shaving" means measures aimed solely at shifting time of use of electricity from peak use periods to times of lower demand by inducing retail customers to curtail electricity usage during periods of congestion and higher prices in the electrical grid. Peak shaving is typically undertaken at a source owner's discretion in order to reduce maximum electrical usage and, therefore, cost of electrical service to the source owner.

"Reference method" means any method of sampling and analyzing for an air pollutant as described in the following EPA regulations:

1. For ambient air quality standards in 9VAC5-30 (Ambient Air Quality Standards): the applicable appendix of 40 CFR Part 50 or any method that has been designated as a reference method in accordance with 40 CFR Part 53, except that it does not include a method for which a reference designation has been canceled in accordance with 40 CFR 53.11 or 40 CFR 53.16;

2. For emission standards in 9VAC5-40 (Existing Stationary Sources) and 9VAC5-50 (New and Modified Stationary Sources): Appendix M of 40 CFR Part 51 or Appendix A of 40 CFR Part 60; or

3. For emission standards in 9VAC5-60 (Hazardous Air Pollutant Sources): Appendix B of 40 CFR Part 61 or Appendix A of 40 CFR Part 63.

"Spark ignition unit" or "SI unit" means a natural gas or liquefied petroleum gas fueled engine or any other type of engine with a spark plug (or other sparking device) and with operating characteristics significantly similar to the theoretical Otto combustion cycle. Spark ignition engines usually use a throttle to regulate intake air flow to control power during normal operation. Dual-fuel engines in which a liquid fuel (typically diesel fuel) is used for compression ignition and gaseous fuel (typically natural gas) is used as the primary fuel at an annual average ratio of less than two parts diesel fuel to 100 parts total fuel on an energy equivalent basis are spark ignition engines.

"Startup" means the date on which each affected unit completes the integration period, unless an extension for start-up notification as stated in 9VAC5-530-210 A 4 or 9VAC5-530-290 A 4 is approved by the department. An extension request must be submitted seven days prior to the end of the 30-day integration operational period.

"Tier 4 engine or equivalent" means a compression ignition electric generating unit that meets Tier 4 standards of 40 CFR Part 1039 or, for engines greater than 10 liters per cylinder, 40 CFR Part 1042, whether by Tier 4 certification or by add-on controls to meet the applicable emission standards for the model year and size of the engine.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Errata, 28:14 VA.R. 1283 March 12, 2012.

Part II General Provisions

9VAC5-530-30 Purpose

The purpose of this general permit is to establish requirements covering an emissions unit category pursuant to § 10.1-1308 of the Code of Virginia and 9VAC5-80-1250.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-40 Applicability and designation of affected emissions unit

A. This chapter applies to each affected unit (i) for which construction, modification, or operation is commenced on or after August 17, 2011, (ii) that does not meet the permit exemption thresholds of 9VAC5-80-1320 C 1 or D 1 and (iii) that meets the requirements of this subsection:

1. For CI units located in either an attainment or nonattainment area with an aggregate rated electrical power output less than or equal to 58,886 kW (78,966 bhp).

2. For SI units located in an attainment area with an aggregate rated electrical power output less than or equal to 60,970kW (81,761 bhp).

3. For SI units located in a nonattainment area with an aggregate rated electrical power output less than or equal to 37,750 kW (50,623 bhp).

B. This chapter applies throughout the Commonwealth of Virginia.

C. The following affected units shall not be eligible for this general permit:

1. Any electric generating unit that is subject to the provisions of the major new source review program as defined in this chapter.

2. Any electric generating unit that is an emergency generator.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Errata, 27:25 VA.R. 2730 August 15, 2011; Errata, 28:14 1283 March 12, 2012.

9VAC5-530-50 General

A. Any owner requesting authority to operate an affected unit shall comply with the requirements of 9VAC5-80 (Permits for Stationary Sources) and register with the department as required under 9VAC5-20-160. Not all parts of the general permit will apply to every owner. The determination of which parts apply will be based on where the unit is located and method of compliance determination. Parts I, II, and III of this chapter apply to all owners. Part IV of this chapter applies to affected units using fuel throughput for compliance determination. Part V of this chapter applies to affected units using hours of operation for compliance determination.

B. The existence of a permit under this chapter shall not constitute a defense of a violation of the Virginia Air Pollution Control Law or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances, and orders of the governmental entities having jurisdiction.

C. Upon request of the department, the owner shall reduce the level of operation or shut down an affected unit as necessary to avoid violating any primary ambient air quality standard and shall not return to normal operation until such time as the ambient air quality standard will not be violated.

D. This general permit to construct or modify each affected unit shall become invalid, unless an extension is granted by the department, if:

1. A program of continuous construction or modification is not commenced within 18 months from the date that this general permit is issued to the owner; or

2. A program of construction or modification is discontinued for a period of 18 months or more, or is not completed within a reasonable time, except for a department-approved period between phases of a phased construction project.

E. At all times, including periods of startup, shutdown, and malfunction, the owner shall, to the extent practicable, maintain and operate the affected unit, including associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions.

F. The owner shall develop a maintenance schedule and maintain records of all scheduled and nonscheduled maintenance.

G. The owner shall have available written operating procedures for equipment. These procedures shall be based on the manufacturer's recommendations, at a minimum.

H. The owner shall train operators in the proper operation of all such equipment and familiarize the operators with the written operating procedures prior to their first operation of such equipment and shall maintain records of the training provided including the names of trainees, the date of training, and the nature of the training.

I. Records of maintenance and training shall be maintained on-site for a period of five years and shall be made available to department personnel upon request. If the site is remotely operated, the maintenance and training records may be kept off-site but shall be made available to the department within three business days of a department request.

J. The owner shall keep a copy of this general permit on the premises of the affected unit to which it applies.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-60 Circumvention, suspension or revocation

A. No owner shall cause or permit the installation or use of any device or any means that, without resulting in reduction in the total amount of air pollutants emitted, conceals or dilutes an emission of air pollutants that would otherwise violate this chapter.

B. This general permit may be suspended or revoked if the owner:

1. Knowingly makes material misstatements in the general permit application or any amendments to it.

2. Fails to comply with the conditions of this general permit.

3. Fails to comply with any emission standards applicable to an affected unit.

4. Causes emissions from the stationary source that result in violations of, or interfere with the attainment and maintenance of, any ambient air quality standard.

5. Fails to operate in conformance with any applicable control strategy, including any emission standards or emission limitations, or applicable regulations of the board in effect at the time an application for this general permit is submitted.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-70 Compliance

A. Whenever it is necessary for the purpose of the regulations of the board, the board or an agent authorized by the board may at reasonable times enter an establishment or upon property, public or private, for the purpose of obtaining information or conducting surveys or investigations as authorized by § 10.1-1315 or 46.2-1187.1 of the Code of Virginia.

B. The time for inspection shall be deemed reasonable during regular business hours or whenever the source is in operation. Nothing contained herein shall make an inspection time unreasonable during an emergency.

C. Upon presentation of credentials and other documents as may be required by law, the owner shall allow the department to perform the following:

1. Enter upon the premises where the source is located or emissions-related activity is conducted or where records must be kept under the terms and conditions of this general permit.

2. Have access to and copy at reasonable times any records that must be kept under the terms and conditions of this general permit.

3. Inspect at reasonable times any facilities, equipment (including monitoring equipment), practices, or operations regulated or required under this general permit.

4. Sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with this general permit or applicable requirements.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-80 Enforcement of a general permit

A. The following general requirements apply:

1. Pursuant to § 10.1-1322 of the Virginia Air Pollution Control Law, failure to comply with any term or condition of the general permit shall be considered a violation of the Virginia Air Pollution Control Law.

2. An owner who (i) violates or fails, neglects, or refuses to obey any provision of this chapter or the Virginia Air Pollution Control Law, any applicable requirement, or any permit term or condition; (ii) knowingly makes any false statement, representation or certification in any form, in any notice or report required by a permit; or (iii) knowingly renders inaccurate any required monitoring device or method shall be subject to the provisions of §§ 10.1-1307, 10.1-1309, 10.1-1316, 10.1-1318, and 10.1-1320 of the Virginia Air Pollution Control Law.

B. Violation of this permit is subject to the enforcement provisions including, but not limited to, those contained in 9VAC5-170 (Regulation for General Administration) and §§ 10.1-1309, 10.1-1309.1, 10.1-1311, and 10.1-1316 of the Virginia Air Pollution Control Law.

C. If any condition, requirement, or portion of this general permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of this general permit.

D. The owner shall comply with all applicable conditions of this general permit. Any noncompliance with this general permit constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action or (ii) suspension or revocation of the authorization to operate under this general permit.

E. It shall not be a defense for an owner in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this general permit.

F. The authorization to operate under this general permit may be suspended or revoked for cause as specified in 9VAC5-530-80. The filing by an owner of a (i) request for reauthorization to operate under this general permit or (ii) notification of termination, planned changes, or anticipated noncompliance does not stay any condition of this general permit.

G. This general permit does not convey any property rights of any sort or any exclusive privilege.

H. Within 30 days of notification, the owner shall furnish to the department any information that the department may request in writing to determine whether cause exists for suspending or revoking the authorization to operate under this general permit or to determine compliance with this general permit. Upon request, the owner shall also furnish to the department copies of records required to be kept by this general permit and, for information claimed to be confidential, the owner shall furnish such records to the department along with a claim of confidentiality meeting the requirements of 9VAC5-170-60.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

Part III General Permit Administrative Procedures

9VAC5-530-90 Requirements for granting an authorization to operate under the general permit

A. The department may grant an authorization to operate under the general permit for an affected unit that meets the applicability criteria in 9VAC5-530-40 and the operating limitations in 9VAC5-530-170 or 9VAC5-530-250.

B. The general permit will be issued in accordance with § 2.2-4006 A 8 of the Administrative Process Act.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-100 Applications for coverage under the general permit

A. The application for an affected unit shall meet the requirements of this chapter and include all information necessary to determine qualification for and to assure compliance with the general permit.

B. Any application form, report, compliance certification, or other document required to be submitted to the department under this chapter shall meet the requirements of 9VAC5-20-230.

C. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in an application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-110 Required information for initial applications

A. The department will make application forms available to applicants. The information required by this section shall be determined and submitted according to procedures and methods acceptable to the department.

B. Each initial application for coverage under the general permit shall include, but not be limited to, the following:

1. Information specified in the appropriate air permit application form for an affected unit as determined by the department.

2. A document certification signed by a responsible official.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-120 Granting an authorization to operate under the general permit

A. The department may grant authorization to operate under the conditions and terms of the general permit to sources that meet the applicability criteria set forth in 9VAC5-530-40.

B. Granting an authorization to operate under the general permit to an affected unit covered by the general permit is not subject to the public participation procedures of 9VAC5-80-1170.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-130 Transfer of authorizations to operate under the general permit

A. No person shall transfer an authorization to operate under the general permit from one affected unit to another or from one piece of equipment to another.

B. In the case of a transfer of ownership of an affected unit, the new owner shall comply with any permit issued or authorization to operate under the general permit granted to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of an affected unit, the owner shall comply with any permit issued or authorization to operate under the general permit granted under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

Part IV General Permit Terms and Conditions for an Affected Unit Using Fuel Throughput for Compliance Demonstration

9VAC5-530-140 General permit

A. Any owner whose application is approved by the director shall receive the following general permit and shall comply with the requirements in it and be subject to all requirements of this chapter and the regulations of the board.

B. In compliance with the provisions of the Virginia Air Pollution Control Law and regulations adopted pursuant to it, owners of affected units are authorized to operate under the authority of this general permit, except those where board regulations or policies prohibit such operation.

C. The authorization to operate under this general permit shall be in accordance with the cover letter to this general permit, 9VAC5-530-150 (General terms and conditions), 9VAC5-530-160 (Monitoring requirements) 9VAC5-530-170 (Operating limits), 9VAC5-530-180 (Emissions limits), 9VAC5-530-190 (Testing requirements), 9VAC5-530-200 (Recordkeeping requirements), and 9VAC5-530-210 (Reporting requirements).

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-150 General terms and conditions

A. The owner is authorized to operate an affected unit located within the boundaries of the Commonwealth of Virginia in accordance with the approved general permit application and conditions of this general permit except where board regulations or policies prohibit such activities.

B. The owner shall comply with the terms and conditions of this general permit prior to commencing any physical or operational change or activity that will result in making the source subject to the new source review program.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-160 Monitoring requirements

A. The owner shall install and use a fuel flow meter to monitor the fuel throughput for each affected unit, calculated monthly as the sum of each consecutive 12-month period.

B. Each fuel flow meter shall be installed, maintained, calibrated, and operated in accordance with approved procedures which shall include, as a minimum, the manufacturer's written requirements or recommendations.

C. The fuel flow meter used to continuously measure the fuel throughput for each affected unit shall be observed by the owner with a frequency of not less than once per month. The owner shall keep a log of the observations from the fuel flow meter.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-170 Operating limits

A. The approved fuels for each CI affected unit are diesel fuel, biodiesel fuel, and biodiesel blends. These fuels shall meet the following specifications:

1. Diesel fuel that meets the ASTM D975-10b specification for S15 diesel fuel oil; maximum sulfur content per shipment, 0.0015%.

2. Biodiesel fuel that meets ASTM specification D6751-09; maximum sulfur content per shipment, 0.0015%.

B. The approved fuels for each SI affected unit are natural gas and liquid petroleum gas (LPG). These fuels shall meet the following specifications:

1. Natural gas with a minimum heat content of 1,000 Btu/scf HHV as determined by ASTM D1826-94 (Reapproved 2010), ASTM D4809-09a, or an equivalent method approved by the department.

2. LPG, including butane and propane, that meets ASTM specification D1835-05, or an equivalent method approved by the department.

C. The combined CI affected unit or units located in either an attainment or nonattainment area, shall consume no more than 502,766 gallons of diesel fuel or 554,230 gallons of biodiesel fuel per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. For affected units using any combination of the two fuels, the quantities of diesel oil and biodiesel, calculated monthly as the sum of each consecutive 12-month period, shall not exceed values that will allow the following equation to hold true:

A x (140,000 Btu/gal) + B x (127,000 Btu/gal) ≤ 70,387 x 10⁶ Btu/yr

where:

A = Number of gallons of diesel fuel burned during any consecutive 12-month period.

B = Number of gallons of biodiesel burned during any consecutive 12-month period.

D. The combined SI affected unit or units located in an attainment area shall consume no more than 775,300 gallons of LPG or 72.88 x 10⁶ cubic feet of natural gas per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. For affected units using any combination of the two fuels, the quantities of natural gas and LPG, calculated monthly as the sum of each consecutive 12-month period, shall not exceed values that will allow the following equation to hold true:

A x (1,000 Btu/ft³) + B x (94,000 Btu/gal) ≤ 72,878 x 10⁶ Btu/yr

where:

A = Number of cubic feet of natural gas burned during any consecutive 12-month period.

B = Number of gallons of LPG burned during any consecutive 12-month period.

E. The combined SI affected unit or units located in a nonattainment area shall consume no more than 480,032 gallons of LPG or 45.12 x 10⁶ cubic feet of natural gas per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. For affected units using any combination of the two fuels, the quantities of natural gas and LPG, calculated monthly as the sum of each consecutive 12-month period, shall not exceed values that will allow the following equation to hold true:

A x (1,000 Btu/ft³) + B x (94,000 Btu/gal) ≤ 45,123 x 10⁶ Btu/yr

where:

A = Number of cubic feet of natural gas burned during any consecutive 12-month period.

B = Number of gallons of LPG burned during any consecutive 12-month period.

F. For affected units using diesel fuel or biodiesel fuel, the owner shall obtain a certification from the fuel supplier with each shipment of diesel fuel or biodiesel fuel. Each fuel supplier certification shall include the following:

1. The name of the fuel supplier;

2. The date on which the diesel fuel or biodiesel was received;

3. The quantity of diesel fuel or biodiesel delivered in the shipment;

4. A statement that the diesel fuel complies with the American Society for Testing and Materials specifications (ASTM D975-10b);

5. A statement that the biodiesel fuel complies with the American Society for Testing and Materials specifications (ASTM D6751-09); and

6. The sulfur content of the diesel fuel or biodiesel fuel.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-180 Emissions limits

A. Manufacturer certified emissions of each CI affected unit located in either an attainment or nonattainment area shall not exceed the limits specified in Table IV-1.

| | Table IV-1 Emissions Limits for CI Units Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.10 | 0.10 | 0.10 | 3.5 | 0.40 | 0.67 | | | | (0.075) | (0.075) | (0.075) | (2.6) | (0.30) | (0.50) | | | | | | | | | | | | 2011-2014 | 0.10 | 0.10 | 0.10 | 3.5 | 0.40 | 0.67 | | | | (0.075) | (0.075) | (0.075) | (2.6) | (0.30) | (0.50) | | | | | | | | | | | | 2015+ | 0.03 | 0.03 | 0.03 | 3.5 | 0.19 | 0.67 | | | | (0.022) | (0.022) | (0.022) | (2.6) | (0.14) | (0.50) |

B. Emissions from the operation of each CI affected unit located in either an attainment or nonattainment area during testing shall not exceed the limits specified in Table IV-2.

| | Table IV-2 Emissions Limits During Testing for CI Units Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.13 | 0.13 | 0.13 | 4.4 | 0.50 | 0.84 | | | | (0.097) | (0.097) | (0.097) | (3.3) | (0.37) | (0.63) | | | | | | | | | | | | 2011-2014 | 0.13 | 0.13 | 0.13 | 4.4 | 0.50 | 0.84 | | | | (0.097) | (0.097) | (0.097) | (3.3) | (0.37) | (0.63) | | | | | | | | | | | | 2015+ | 0.04 | 0.04 | 0.04 | 4.4 | 0.24 | 0.84 | | | | (0.030) | (0.030) | (0.030) | (3.3) | (0.18) | (0.63) |

C. Manufacturer tested emissions limits for each SI affected unit located in either an attainment or nonattainment area shall not exceed the limits specified in Table IV-3.

| | Table IV-3 Emissions Limits for SI Engines Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM _2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.015 | 0.015 | 0.015 | 2.68 | 0.94 | 1.34 | | | | (0.011) | (0.011) | (0.011) | (2.0) | (0.7) | (1.0) | | | | | | | | | | | | 2011+ | 0.015 | 0.015 | 0.015 | 2.68 | 0.94 | 1.34 | | | | (0.011) | (0.011) | (0.011) | (2.0) | (0.7) | (1.0) |

D. Emissions from the operation of each SI affected unit located in either an attainment or nonattainment area during testing shall not exceed the limits specified in Table IV-4.

| | Table IV-4 Emissions Limits During Testing for SI Units Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM _2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.019 | 0.019 | 0.019 | 3.35 | 1.18 | 1.68 | | | | (0.014) | (0.014) | (0.014) | (2.5) | (0.88) | (1.25) | | | | | | | | | | | | 2011+ | 0.019 | 0.019 | 0.019 | 3.35 | 1.18 | 1.68 | | | | (0.014) | (0.014) | (0.014) | (2.5) | (0.88) | (1.25) |

E. Combined source-wide emissions from the operation of affected units shall not exceed the limits specified in Table IV-5.

| | Table IV-5 Combined Source-Wide Emissions Limits for Affected Units | | | | --- | --- | --- | --- | | | Pollutant | Nonattainment Areas Emissions (tons/year) | Attainment Areas Emissions (tons/year) | | | PM | 2.8 | 2.8 | | | PM₁₀ | 2.8 | 2.8 | | | PM_2.5 | 2.8 | 2.8 | | | NO_x | 24.4 | 39.4 | | | CO | 99.4 | 99.4 | | | VOC | 17.1 | 27.6 |

F. Visible emissions from each affected unit shall not exceed 5.0% opacity as determined by Reference Method 9. This condition applies at all times except during startup, shutdown, and malfunction.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-190 Testing requirements

A. Each affected unit shall be constructed and installed so as to allow for emissions testing upon reasonable notice at any time using appropriate methods. Sampling ports shall be provided when requested at the appropriate locations and safe sampling platforms and access shall be provided.

B. No affected unit shall be used for the purposes of preventative maintenance purposes between the hours of 7 a.m. to 5 p.m. any day during the ozone season of May 1 through September 30.

C. Initial performance tests shall be conducted for NO_x, CO, PM₁₀, and PM_2.5 from the affected unit using EPA-approved reference methods to determine compliance with the emission limits contained in 9VAC5-530-180.

1. The tests shall be performed and demonstrate compliance within 60 days after achieving the maximum production rate at which the affected unit or units will be operated, but in no event later than 180 days after startup of the permitted source.

2. Tests shall be conducted in accordance with EPA methods or an alternative method approved by department.

3. The details of the tests are to be arranged with the regional office and the owner shall submit a test protocol at least 30 days prior to testing.

4. One copy of the test results shall be submitted to the department regional office within 45 days after test completion and shall conform to the test report format in subsection D of this section.

5. Testing for multiple identical affected units located at the source shall be conducted as follows:

a. 50% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

6. The owner shall conduct additional performance testing every three years for NO_x, CO, PM₁₀, and PM_2.5to demonstrate compliance with the testing emission limits contained in 9VAC5-530-180. The details of the tests shall be arranged with the regional office. Additional performance testing for multiple identical affected units located at the source shall be conducted as follows:

a. 20% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

D. The test report format for performance testing shall include the following:

1. A report cover containing:

a. The plant name;

b. The plant location;

c. Units tested (including unit reference number if assigned);

d. Test dates;

e. The name of the individual conducting the test;

f. The address of the individual conducting the test; and

g. The report date.

2. A certification, including the date certified, that has been signed by:

a. A test team leader or a certified observer;

b. The test reviewer; and

c. A responsible company official.

3. A copy of approved test protocol.

4. A summary including:

a. The reason for testing;

b. Test dates;

c. Identification of the unit tested including the maximum rated capacity for each unit;

d. For each emission unit, a table showing:

(1) The operating rate;

(2) Test methods;

(3) The pollutants tested; and

(4) Test results for each run, including the run average;

e. Process and control equipment data for each run and the average as required by the test protocol;

f. A statement that the test was conducted in accordance with the test protocol, or identification and discussion of deviations, including the likely impact on results; and

g. Any other important information as determined by the regional office.

5. A description of source operation including:

a. A description of the process;

b. A description of control devices, if necessary;

c. A process and control equipment flow diagram; and

d. A description of sampling port location and a dimensioned cross section. A protocol shall be attached that includes a sketch of the stack (elevation view) showing sampling port locations, upstream and downstream flow disturbances and their distances from ports; and a sketch of stack (plan view) showing sampling ports, ducts entering the stack, and stack diameter or dimensions.

6. Test results, including:

a. Detailed test results for each run;

b. Sample calculations; and

c. A description of collected samples, including audits, when applicable.

7. An appendix, including:

a. Raw production data;

b. Raw field data;

c. Laboratory reports;

d. Chain of custody records for laboratory samples;

e. Calibration procedures and results;

f. Project participants and contact information;

g. Observers' names, including their industry and agency affiliation;

h. Related correspondence; and

i. Standard procedures.

E. Initial Visible Emission Evaluations (VEE) in accordance with Reference Method 9 shall be conducted on each affected unit.

1. The evaluation shall be performed and demonstrate compliance within 60 days after achieving the maximum production rate at which the affected unit or units will be operated, but in no event later than 180 days after startup of the permitted source.

2. Should conditions prevent concurrent opacity observations, the regional office shall be notified in writing within seven days and visible emissions testing shall be rescheduled within 30 days.

3. Rescheduled testing shall be conducted under the same conditions (as possible) as the initial performance tests.

4. Each test shall consist of 30 sets of 24 consecutive observations (at 15 second intervals) to yield a six-minute average.

5. The details of the tests are to be arranged with the regional office and the owner shall submit a test protocol at least 30 days prior to initial testing.

6. One copy of the test results shall be submitted to the department regional office within 45 days after test completion and shall conform to the test report format in 9VAC5-530-190 F.

7. Initial VEE testing for multiple identical affected units located at the source shall be conducted as follows:

a. 50% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

8. The owner shall conduct additional VEE testing every three years to demonstrate compliance with the opacity limit contained in 9VAC5-530-180 F. The details of the tests shall be arranged with the regional office. Additional VEE testing for multiple identical affected units located at the source shall be conducted as follows:

a. 20% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

F. The test report format for visible emissions evaluations shall include the following.

1. A report cover containing:

a. The plant name;

b. The plant location;

c. Units tested at the source identified by the department that have been issued reference numbers;

d. Test dates;

e. The name of the individual conducting the test;

f. The address of individual conducting the test; and

g. The report date.

2. A certification, including the date certified, that has been signed by:

a. A test team leader or a certified observer; and

b. A responsible company official.

3. Copy of the approved test protocol.

4. A summary including:

a. The reason for testing;

b. Test dates;

c. Identification of the unit tested, including the maximum rated capacity for each unit;

d. Summarized process and control equipment data for each run and the average as required by the test protocol;

e. A statement certifying that the test was conducted in accordance with the test protocol or, if not conducted according to protocol, identification and discussion of deviations, including the likely impact on results; and

f. Any other important information.

5. A description of source operation including:

a. A description of the process;

b. A description of control devices, if necessary;

c. A process and control equipment flow diagram; and

d. A description of sampling port location and a dimensioned cross section. A protocol shall be attached that includes a sketch of the stack (elevation view) showing sampling port locations, upstream and downstream flow disturbances and their distances from ports; and a sketch of stack (plan view) showing sampling ports, ducts entering the stack, and stack diameter or dimensions.

6. The detailed test results for each run.

7. An appendix including:

a. Names of project participants and their titles;

b. Observers' names, including their industry and agency affiliation;

c. Related correspondence; and

d. Standard procedures.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-200 Recordkeeping requirements

A. The owner shall maintain records of emission data and operating parameters as necessary and, if requested, provide them to the department within three business days to demonstrate compliance with this general permit.

B. The owner shall maintain records of the occurrence and duration of any bypass, malfunction, shutdown, or failure of the affected unit or its associated air pollution control equipment that results in excess emissions for more than one hour. Records shall include the following: (i) date, (ii) time, (iii) duration, (iv) description (emission unit, pollutant affected, cause), (v) corrective action, (vi) preventive measures taken, and (vii) name of person generating the record.

C. The content and format of such records shall be arranged with the regional office. These records shall include, but are not limited to:

1. Total combined annual throughput of fuel consumed for the affected unit or units, calculated monthly as the sum of each consecutive 12-month period. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. Total annual heat input values to show compliance with subsections C, D, and E of 9VAC5-530-170.

3. All fuel supplier certifications.

4. Engine information including make, model, serial number, model year, maximum engine power, and engine displacement for each affected unit.

5. Written manufacturer specifications or written standard operating procedures prepared by the owner for each affected unit. The written standard operating procedures prepared by the owner cannot be less stringent than the written manufacturer specifications.

6. Results of all stack tests, VEE, and performance evaluations.

7. Operation and control device monitoring records for the fuel flow meter.

8. Scheduled and unscheduled maintenance, testing, and operator training.

D. These records shall be available for inspection by the department and shall be current for the most recent five years.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-210 Reporting requirements

A. The owner shall furnish written notification to the regional office of the following:

1. The actual date on which construction of each affected unit commenced within 30 days after such date.

2. If necessary, the actual date on which the integration operational period of each affected unit commenced within 15 days after such date.

3. The anticipated startup date of each affected unit postmarked or submitted electronically not more than 60 days nor less than 30 days prior to such date.

4. The actual startup date of each affected unit within 15 days after such date.

5. The anticipated date of performance tests of each affected unit postmarked or submitted electronically at least 30 days prior to such date.

B. The owner shall furnish notification to the regional office of malfunctions of the affected unit or related air pollution control equipment that may cause excess emissions for more than one hour.

1. Such notification shall be made as soon as practicable but no later than four daytime business hours after the malfunction is discovered.

2. The owner shall provide a written statement giving all pertinent facts, including the estimated duration of the breakdown, within two weeks of discovery of the malfunction.

3. When the condition causing the failure or malfunction has been corrected and the equipment is again in operation, the owner shall notify the regional office.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

Part V General Permit Terms and Conditions for Electric Generating Units Using Hours of Operation for Compliance Demonstration

9VAC5-530-220 General permit

A. Any owner whose application is approved by the director shall receive the following general permit and shall comply with the requirements in it and be subject to all requirements of this chapter and the regulations of the board.

B. In compliance with the provisions of the Virginia Air Pollution Control Law and regulations adopted pursuant to it, owners of affected units are authorized to operate under the authority of this general permit except those where board regulations or policies prohibit such operation.

C. The authorization to operate under this general permit shall be in accordance with the cover letter to this general permit, 9VAC5-530-2300 (General terms and conditions), 9VAC5-530-240 (Monitoring requirements) 9VAC5-530-250 (Operating limits), 9VAC5-530-260 (Emissions limits), 9VAC5-530-270 (Testing requirements), 9VAC5-530-280 (Recordkeeping requirements), and 9VAC5-530-290 (Reporting requirements).

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-230 General terms and conditions

A. The owner is authorized to operate an affected unit located within the boundaries of the Commonwealth of Virginia in accordance with the approved general permit application and conditions of this general permit except where board regulations or policies prohibit such activities.

B. The owner shall comply with the terms and conditions of this general permit prior to commencing any physical or operational change or activity that will result in making the source subject to the new source review program.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-240 Monitoring requirements

A. The owner shall install and use a nonresettable hour metering device to monitor the monthly and yearly operating hours for each affected unit, calculated monthly as the sum of each consecutive 12-month period. Each nonresettable hour meter shall be installed, maintained, calibrated, and operated in accordance with approved procedures that shall include, as a minimum, the manufacturer's written requirements or recommendations.

B. The hour meter used to continuously measure the hours of operation for each affected unit shall be observed by the owner with a frequency of not less than once per month. The owner shall keep a log of the observations from the hour meter.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-250 Operating limits

A. The approved fuels for each CI affected unit are diesel fuel, biodiesel fuel, and biodiesel blends. These fuels shall meet the following specifications:

1. Diesel fuel that meets the ASTM D975-10b specification for S15 diesel fuel oil; maximum sulfur content per shipment, 0.0015%.

2. Biodiesel fuel that meets ASTM specification D6751-09; maximum sulfur content per shipment, 0.0015%.

B. The approved fuels for each SI affected unit are natural gas and liquid petroleum gas (LPG). These fuels shall meet the following specifications.

1. Natural gas with a minimum heat content of 1,000 Btu/scf HHV as determined by ASTM D1826-94 (Reapproved 2010), D4809-09a, or an equivalent method approved by the department.

2. LPG, including butane and propane, that meets ASTM specification D1835-05 or an equivalent method approved by the department.

C. Each affected unit shall not operate more than 350 hours per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. Total emissions for any consecutive 12-month period, calculated as the sum of all emissions from operations under this condition, shall not exceed the limits stated in 9VAC5-530-260 E.

D. For affected units using diesel fuel or biodiesel fuel the owner shall obtain a certification from the fuel supplier with each shipment of diesel fuel or biodiesel fuel. Each fuel supplier certification shall include the following:

1. The name of the fuel supplier;

2. The date on which the diesel fuel or biodiesel was received;

3. The quantity of diesel fuel or biodiesel delivered in the shipment;

4. A statement that the diesel fuel complies with the American Society for Testing and Materials specifications (ASTM D975-10b) for S15 diesel fuel oil;

5. A statement that the biodiesel fuel complies with the American Society for Testing and Materials specifications (ASTM D6751-09); and

6. The sulfur content of the diesel fuel or biodiesel fuel.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-260 Emissions limits

A. Manufacturer certified emissions of each CI affected unit located in either an attainment or nonattainment area shall not exceed the limits specified in Table V-1.

| | Table V-1 Emissions Limits for CI Units Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.10 | 0.10 | 0.10 | 3.5 | 0.40 | 0.67 | | | | (0.075) | (0.075) | (0.075) | (2.6) | (0.30) | (0.50) | | | | | | | | | | | | 2011-2014 | 0.10 | 0.10 | 0.10 | 3.5 | 0.40 | 0.67 | | | | (0.075) | (0.075) | (0.075) | (2.6) | (0.30) | (0.50) | | | | | | | | | | | | 2015+ | 0.03 | 0.03 | 0.03 | 3.5 | 0.19 | 0.67 | | | | (0.022) | (0.022) | (0.022) | (2.6) | (0.14) | (0.50) |

B. Emissions from the operation of each CI affected unit located in either an attainment or nonattainment area during testing shall not exceed the limits specified in Table V-2.

| | Table V-2 Emissions Limits During Testing for CI Units Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.13 | 0.13 | 0.13 | 4.4 | 0.50 | 0.84 | | | | (0.097) | (0.097) | (0.097) | (3.3) | (0.37) | (0.63) | | | | | | | | | | | | 2011-2014 | 0.13 | 0.13 | 0.13 | 4.4 | 0.50 | 0.84 | | | | (0.097) | (0.097) | (0.097) | (3.3) | (0.37) | (0.63) | | | | | | | | | | | | 2015+ | 0.04 | 0.04 | 0.04 | 4.4 | 0.24 | 0.84 | | | | (0.030) | (0.030) | (0.030) | (3.3) | (0.18) | (0.63) |

C. Manufacturer certified emissions of each SI affected unit located in either an attainment or nonattainment area shall not exceed the limits specified in Table V-3.

| | Table V-3 Emissions Limits for SI Engines Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM _2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.015 | 0.015 | 0.015 | 2.68 | 0.94 | 1.34 | | | | (0.011) | (0.011) | (0.011) | (2.0) | (0.7) | (1.0) | | | | | | | | | | | | 2011+ | 0.015 | 0.015 | 0.015 | 2.68 | 0.94 | 1.34 | | | | (0.011) | (0.011) | (0.011) | (2.0) | (0.7) | (1.0) |

D. Emissions from the operation of each SI affected unit located in either an attainment or nonattainment area during testing shall not exceed the limits specified in Table V-4.

| | Table V-4 Emissions Limits During Testing for SI Units Located in Either an Attainment or Nonattainment Area | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | | | PM | PM₁₀ | PM _2.5 | CO | VOC | NO_x | | | | | | | | | | | | Pre 2011 | 0.019 | 0.019 | 0.019 | 3.35 | 1.18 | 1.68 | | | | (0.014) | (0.014) | (0.014) | (2.5) | (0.88) | (1.25) | | | | | | | | | | | | 2011+ | 0.019 | 0.019 | 0.019 | 3.35 | 1.18 | 1.68 | | | | (0.014) | (0.014) | (0.014) | (2.5) | (0.88) | (1.25) |

E. Combined emissions from the operation of affected units shall not exceed the limits specified in Table V-5.

| | Table V-5 Combined Source-Wide Emissions Limits for Affected Units | | | | --- | --- | --- | --- | | | Pollutant | Nonattainment Areas Emissions (tons/year) | Attainment Areas Emissions (tons/year) | | | PM | 2.8 | 2.8 | | | PM₁₀ | 2.8 | 2.8 | | | PM_2.5 | 2.8 | 2.8 | | | NO_X | 24.4 | 39.4 | | | CO | 99.4 | 99.4 | | | VOC | 17.1 | 27.6 |

F. Visible emissions from each affected unit shall not exceed 5.0% opacity as determined by Reference Method 9. This condition applies at all times except during startup, shutdown, and malfunction.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-270 Testing requirements

A. Each affected unit shall be constructed and installed so as to allow for emissions testing upon reasonable notice at any time using appropriate methods. Sampling ports shall be provided when requested at the appropriate locations and safe sampling platforms and access shall be provided.

B. No affected unit shall be used for the purposes of preventative maintenance purposes between the hours of 7 a.m. to 5 p.m. during the ozone season of May 1 through September 30.

C. Initial performance tests shall be conducted for NO_x, CO, PM₁₀, and PM_2.5 from the affected unit using EPA-approved reference methods to determine compliance with the emission limits contained in 9VAC5-530-260.

1. The tests shall be performed and demonstrate compliance within 60 days after achieving the maximum production rate at which the affected unit will be operated but in no event later than 180 days after startup of the permitted affected unit.

2. Tests shall be conducted in accordance with EPA methods or an alternative method approved by the department.

3. The details of the tests are to be arranged with the regional office and the owner shall submit a test protocol at least 30 days prior to testing.

4. One copy of the test results shall be submitted to the department regional office within 45 days after test completion and shall conform to the test report format in 9VAC5-530-270 D.

5. Testing for multiple identical affected units located at the source shall be conducted as follows:

a. 50% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

6. The owner shall conduct additional performance testing every three years for NO_x, CO, PM₁₀, and PM_2.5 to demonstrate compliance with the testing emission limits contained in 9VAC5-530-260. The details of the tests shall be arranged with the regional office. Additional performance testing for multiple identical affected units located at the source shall be conducted as follows:

a. 20% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

D. The test report format for performance testing shall include the following:

1. A report cover containing:

a. The plant name;

b. The plant location;

c. Units tested (including unit reference number if assigned);

d. Test dates;

e. The name of the individual conducting the test;

f. The address of the individual conducting the test; and

g. The report date.

2. A certification, including the date certified, that has been signed by:

a. A test team leader or a certified observer;

b. The test reviewer; and

c. A responsible company official.

3. A copy of approved test protocol.

4. A summary including:

a. The reason for testing;

b. Test dates;

c. Identification of the unit tested including the maximum rated capacity for each unit;

d. For each emission unit, a table showing:

(1) The operating rate;

(2) Test methods;

(3) The pollutants tested; and

(4) Test results for each run, including the run average;

e. Process and control equipment data for each run and the average, as required by the test protocol;

f. A statement that the test was conducted in accordance with the test protocol, or identification and discussion of deviations, including the likely impact on results; and

g. Any other important information as determined by the regional office.

5. A description of source operation including:

a. A description of the process;

b. A description of control devices, if necessary;

c. A process and control equipment flow diagram; and

d. A description of sampling port location and a dimensioned cross section. A protocol shall be attached that includes a sketch of the stack (elevation view) showing sampling port locations, upstream and downstream flow disturbances and their distances from ports; and a sketch of stack (plan view) showing sampling ports, ducts entering the stack and stack diameter or dimensions.

6. Test results, including:

a. Detailed test results for each run;

b. Sample calculations; and

c. A description of collected samples, including audits, when applicable.

7. An appendix, including:

a. Raw production data;

b. Raw field data;

c. Laboratory reports;

d. Chain of custody records for laboratory samples;

e. Calibration procedures and results;

f. Project participants and contact information;

g. Observers' names including their industry and agency affiliation;

h. Related correspondence; and

i. Standard procedures.

E. Visible Emission Evaluations (VEE) in accordance with Reference Method 9 shall be conducted on each affected unit.

1. The evaluation shall be performed and demonstrate compliance within 60 days after achieving the maximum production rate at which the affected unit will be operated, but in no event later than 180 days after startup of the permitted affected unit.

2. Should conditions prevent concurrent opacity observations, the regional office shall be notified in writing within seven days and visible emissions testing shall be rescheduled within 30 days.

3. Rescheduled testing shall be conducted under the same conditions (as possible) as the initial performance tests.

4. Each test shall consist of 30 sets of 24 consecutive observations (at 15 second intervals) to yield a six-minute average.

5. The details of the tests are to be arranged with the regional office and the owner shall submit a test protocol at least 30 days prior to testing.

6. One copy of the test results shall be submitted to the regional office within 45 days after test completion and shall conform to the test report format in 9VAC5-530-270 F.

7. Initial VEE testing for multiple identical affected units located at the source shall be conducted as follows:

a. 50% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

8. The owner shall conduct additional VEE testing every three years to demonstrate compliance with the opacity limit contained in 9VAC5-530-260 F. The details of the tests shall be arranged with the regional office. Additional VEE testing for multiple identical affected units located at the source shall be conducted as follows:

a. 20% of CI affected units shall be tested.

b. 100% of SI affected units over 500 bhp shall be tested.

F. The test report format for visible emissions evaluations shall include the following.

1. A report cover containing:

a. The plant name;

b. The plant location;

c. Units tested at the source identified by the department that have been issued reference numbers;

d. Test dates;

e. The name of the individual conducting the test;

f. The address of individual conducting the test; and

g. The report date.

2. A certification, including the date certified, that has been signed by:

a. A test team leader or a certified observer; and

b. A responsible company official.

3. Copy of approved test protocol.

4. A summary including:

a. The reason for testing;

b. Test dates;

c. Identification of the unit tested, including the maximum rated capacity for each unit;

d. Summarized process and control equipment data for each run and the average as required by the test protocol;

e. A statement certifying that the test was conducted in accordance with the test protocol or, if not conducted according to protocol, identification and discussion of deviations, including the likely impact on results; and

f. Any other important information.

5. A description of source operation including:

a. A description of the process;

b. A description of control devices, if necessary;

c. A process and control equipment flow diagram; and

d. A description of sampling port location and a dimensioned cross section. A protocol shall be attached that includes a sketch of the stack (elevation view) showing sampling port locations, upstream and downstream flow disturbances and their distances from ports; and a sketch of stack (plan view) showing sampling ports, ducts entering the stack and stack diameter or dimensions.

6. The detailed test results for each run.

7. An appendix including:

a. The names of project participants and their titles;

b. The observers' names, including their industry and agency affiliation;

c. Related correspondence; and

d. Standard procedures.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-280 Recordkeeping requirements

A. The owner shall maintain records of emission data and operating parameters as necessary and, if requested, provide them to the department within three business days to demonstrate compliance with this general permit.

B. The owner shall maintain records of the occurrence and duration of any bypass, malfunction, shutdown, or failure of the affected unit or its associated air pollution control equipment that results in excess emissions for more than one hour. Records shall include the date, time, duration, description (emission unit, pollutant affected, cause), corrective action, preventive measures taken, and name of person generating the record.

C. The content and format of such records shall be arranged with the regional office. These records shall include, but are not limited to:

1. Total combined annual hours of operation for the affected unit or units, calculated monthly as the sum of each consecutive 12-month period. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. All fuel supplier certifications.

3. Engine information including make, model, serial number, model year, maximum engine power, and engine displacement for each affected unit.

4. Written manufacturer specifications or written standard operating procedures prepared by the owner for each affected unit. The written standard operating procedures prepared by the owner cannot be less stringent than the written manufacturer specifications.

5. Results of all stack tests, VEE, and performance evaluations.

6. Operation and control device monitoring records for the nonresettable hour meter.

7. Scheduled and unscheduled maintenance, testing, and operator training.

D. These records shall be available for inspection by the department and shall be current for the most recent five years.

History

• Statutory Authority: §§ 10.1-1307.02 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-530-290 Reporting requirements

A. The owner shall furnish written notification to the regional office of the following:

1. The actual date on which construction of each affected unit commenced within 30 days after such date.

2. If necessary, the actual date on which the integration operational period of each affected unit commenced within 15 days after such date.

3. The anticipated startup date of each affected unit postmarked or submitted electronically not more than 60 days nor less than 30 days prior to such date.

4. The actual startup date of each affected unit within 15 days after such date.

5. The anticipated date of performance tests of each affected unit postmarked or submitted electronically at least 30 days prior to such date.

B. The owner shall furnish notification to the regional office of malfunctions of the affected unit or related air pollution control equipment that may cause excess emissions for more than one hour.

1. Such notification shall be made as soon as practicable, but no later than four daytime business hours after the malfunction is discovered.

2. The owner shall provide a written statement giving all pertinent facts, including the estimated duration of the breakdown, within two weeks of discovery of the malfunction.

3. When the condition causing the failure or malfunction has been corrected and the equipment is again in operation, the owner shall notify the regional office.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

Chapter 540 Emergency Generator General Permit

Part I Definitions

9VAC5-540-10 General

A. For the purpose of applying this chapter in the context of regulations of the board and related uses, the words or terms shall have the meanings given them in 9VAC5-540-20.

B. Unless specifically defined in the Virginia Air Pollution Control Law or in this chapter, terms used shall have the meaning given them by 9VAC5-80-1110 (definitions, Permits for New and Modified Stationary Sources), 9VAC5-10-20 (general definitions, Regulations for the Control and Abatement of Air Pollution), 9VAC5-170-20 (definitions, Regulation for General Administration), or commonly ascribed to them by recognized authorities, in that order of priority.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-20 Terms defined

"Affected unit" means one or more emergency generation units subject to the provisions of this chapter.

"Aggregate rated electrical power output" means (i) the sum or total rated electrical power output for all affected units involved in the application or (ii) in nonattainment areas, the sum or total rated electrical output for all affected units, permitted or exempt, located at the facility.

"Attainment area" means any area (other than an area identified as a nonattainment area) that meets the national ambient air quality standards for any pollutant pursuant to § 107 of the federal Clean Air Act (42 USC § 7401 et seq.).

"Biodiesel fuel" means a fuel comprised of mono-alkyl esters of long chain fatty acids derived from vegetable or animal fats, designated B100, and meeting the requirements of ASTM D6751-09.

"Biodiesel blends" means a blend of biodiesel and petroleum diesel fuel meeting either the requirements of ASTM D975-10b (blends up to 5.0%) or ASTM D7467 (blends between 6.0% and 20% biodiesel) and designated Bxx where xx represents the biodiesel content of the blend, e.g., B20 for a blend of 20% biodiesel and 80% petroleum diesel fuel.

"Compression ignition unit" or "CI unit" means a type of stationary internal combustion engine that is not a spark ignition engine.

"Demand response" means measures aimed at shifting time of use of electricity from peak-use periods to times of lower demand by inducing retail customers to curtail electricity usage during periods of congestion and higher prices in the electrical grid. Demand response actions are typically undertaken by the source owner in response to a request from a utility or electrical grid system operator or in response to market prices. Demand response participants do not include affected units that are participating in an ISO's Manual 13 Emergency Operations program.

"Diesel fuel" means any liquid obtained from the distillation of petroleum with a boiling point of approximately 150°C to 360°C and that complies with the specifications for S15 diesel fuel oil, as defined by the American Society for Testing and Materials in ASTM D975-10b.

"Emergency" means a condition that arises from sudden and reasonably unforeseeable events where the primary energy or power source is disrupted or disconnected due to conditions beyond the control of an owner of a source including any of the following:

1. A failure of the electrical grid.

2. On-site disaster or equipment failure.

3. Public service emergencies such as flood, fire, natural disaster, or severe weather conditions.

4. An ISO-declared emergency, where an ISO emergency is any of the following:

a. An abnormal system condition requiring manual or automatic action to maintain system frequency, to prevent loss of firm load, equipment damage, or tripping of system elements that could adversely affect the reliability of an electric system or the safety of persons or property.

b. Capacity deficiency or capacity excess conditions.

c. A fuel shortage requiring departure from normal operating procedures in order to minimize the use of such scarce fuel.

d. Abnormal natural events or man-made threats that would require conservative operations to posture the system in a more reliable state.

e. An abnormal event external to the ISO service territory that may require ISO action.

"Emergency generation unit" or "emergency generation source" means a stationary internal combustion engine that operates only (i) during an emergency, required maintenance, or operability and emissions testing or (ii) as provided by 9VAC5-540-40 B for certified emergency generators.

"General permit" means, for an emergency generation unit, the terms and conditions in Part IV (9VAC5-540-140 et seq.) of this chapter that meet the requirements of Part II (9VAC5-540-30 et seq.) and Part III (9VAC5-540-90 et seq.) of this chapter and issued under the provisions of 9VAC5-80-1250.

"Identical affected unit" means electric generating units that have the same make, manufacturer, model, year, size, and fuel specifications.

"Independent system operator" or "ISO" means a person who may receive or has received by transfer pursuant to § 56-576 of the Code of Virginia, any ownership or control of, or any responsibility to operate, all or part of the transmission systems in the Commonwealth.

"Integration operational period" means that period of time beginning with the first time the affected unit is started on-site and ending when the affected unit is fully integrated with the source's electrical system. In no case shall this period exceed 30 days.

"ISO-declared emergency" means a condition that exists when the independent system operator, as defined in § 56-576 of the Code of Virginia, notifies electric utilities that an emergency exists or may occur and that complies with the definition of "emergency" adopted by the board.

"Kilowatt (kW) to brake horsepower (bhp)" means the conversion of 1 kW = 1.341 bhp.

"Load curtailment" means an action similar to demand response, with the specific removal or reduction of electrical loads for a limited period of time from a utility grid system in response to a request from the utility or electrical grid system operator.

"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165, and 173 of the federal Clean Air Act (42 USC §§ 7401 et seq.) and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of Part II (Permit Procedures) of 9VAC5-80 (Permits for Stationary Sources.

"Manufacturer certified emissions" means the emission levels from a stationary compression ignition engine as identified according to the manufacturers' specifications applicable to that engine's family and model year.

"Model year" means either (i) the calendar year in which the engine was originally produced or (ii) the annual new model production period of the engine manufacturer if it is different than the calendar year. This must include January 1 of the calendar year for which the model year is named. It may not begin before January 2 of the previous calendar year and it must end by December 31 of the named calendar year. For an engine that is converted to a stationary engine after being placed into service as a nonroad or other nonstationary engine, model year means the calendar year or new model production period in which the engine was originally produced.

"Nonattainment area" means any area that does not meet the national ambient air quality standards for any pollutant pursuant to § 107 of the federal Clean Air Act (42 USC § 7401 et seq.) and listed in 9VAC5-20-204.

"Operation" means the burning of fuel regardless of whether electricity is generated.

"Peak shaving" means measures aimed solely at shifting time of use of electricity from peak-use periods to times of lower demand by inducing retail customers to curtail electricity usage during periods of congestion and higher prices in the electrical grid. Peak shaving is typically undertaken at a source owner's discretion in order to reduce maximum electrical usage and, therefore, cost of electrical service to the source owner.

"Reference method" means any method of sampling and analyzing for an air pollutant as described in the following EPA regulations:

1. For ambient air quality standards in 9VAC5-30 (Ambient Air Quality Standards): the applicable appendix of 40 CFR Part 50 or any method that has been designated as a reference method in accordance with 40 CFR Part 53, except that it does not include a method for which a reference designation has been canceled in accordance with 40 CFR 53.11 or 40 CFR 53.16;

2. For emission standards in 9VAC5-40 (Existing Stationary Sources) and 9VAC5-50 (New and Modified Stationary Sources): Appendix M of 40 CFR Part 51 or Appendix A of 40 CFR Part 60; or

3. For emission standards in 9VAC5-60 (Hazardous Air Pollutant Sources): Appendix B of 40 CFR Part 61 or Appendix A of 40 CFR Part 63.

"Spark ignition unit" or "SI unit" means a natural gas or liquefied petroleum gas fueled engine or any other type of engine with a spark plug (or other sparking device) and with operating characteristics significantly similar to the theoretical Otto combustion cycle. Spark ignition engines usually use a throttle to regulate intake air flow to control power during normal operation. Dual-fuel engines in which a liquid fuel (typically diesel fuel) is used for compression ignition and gaseous fuel (typically natural gas) is used as the primary fuel at an annual average ratio of less than 2 parts diesel fuel to 100 parts total fuel on an energy equivalent basis are spark ignition engines.

"Startup" means the date on which each affected unit completes the integration operational period, unless an extension for start-up notification as stated in subdivision 4 of 9VAC5-540-210 is approved by the department. An extension request must be submitted seven days prior to the end of the 30-day integration operational period.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Errata, 28:14 VA.R. 1283 March 12, 2012; amended, Virginia Register Volume 41, Issue 24, eff. June 16, 2025.

Part II General Provisions

9VAC5-540-30 Purpose

The purpose of this general permit is to establish requirements covering an emissions unity category pursuant to § 10.1-1308 of the Code of Virginia and 9VAC5-80-1250.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-40 Applicability

A. This chapter applies to each affected unit (i) for which construction, modification, or operation is commenced on or after August 17, 2011; (ii) that does not meet the permit exemption thresholds of 9VAC5-80-1105 B 2 b, C 1, or D 1; and (iii) that meets the requirements of this subsection.

1. For CI units, located in an attainment area with an aggregate rated electrical power output identified in Table I:

| Table I Aggregate Rated Electrical Power Output For CI Units in an Attainment Area | | | | --- | --- | --- | | Affected Unit Size kW (bhp) | With a Displacement of: (liters/cylinder) | With a Model Year of: | | x is less than or equal to 6,906 (9,261) | Less than 10 | 2010 | | x is less than or equal to 8,472 (11,361) | Less than 10 | 2011+ | | x is less than or equal to 8,146 (10,924) | x is greater than or equal to 10.0 and less than 15.0 | 2010+ |

2. For CI units, located in a nonattainment area with an aggregate rated electrical power output identified in Table II:

| Table II Aggregate Rated Electrical Power Output For CI Units in a Nonattainment Area | | | | --- | --- | --- | | Affected Unit Size kW (bhp) | With a Displacement of: (liters/cylinder) | With a Model Year of: | | x is less than or equal to 3,850 (5,163) | Less than 10 | 2010 | | x is less than or equal to 4,722 (6,332) | Less than 10 | 2011+ | | x is less than or equal to 4,540 (6,088) | x is greater than or equal to 10.0 and less than 15.0 | 2010+ |

3. For SI units located in an attainment area with an aggregate rated electrical power output less than or equal to 23,535 kW (31,560 bhp).

4. For SI units located in a nonattainment area with an aggregate rated electrical power output less than or equal to 13,115 kW (17,587 bhp).

B. Any emergency generation unit, whether or not located on a military installation as defined in § 15.2-2201 of the Code of Virginia, that has been certified in accordance with 9VAC5-20-230 by the U.S. Department of Defense or relevant branch of the U.S. Armed Forces to the department as mission-critical and essential to the defense of the United States may operate up to 50 hours per year for non-emergency purposes, including planned outages and switch gear and related electrical system testing. Such non-emergency operation shall be consistent with the requirements for emergency engines pursuant to 40 CFR 60.4211(f)(3), 40 CFR 60.4243(d)(3), and 40 CFR 63.6640(f)(3) and (4). Operation for the purposes identified in clause (i) of the definition of emergency generation unit in 9VAC5-540-20 shall not count against the 50 hours per year non-emergency operating allowance provided by this section. Each owner of such emergency generation unit, whether or not located on a military installation as defined in § 15.2-2201 of the Code of Virginia, shall maintain a copy of each certification, or revision thereof, submitted to the department in accordance with 9VAC5-40-50 or 9VAC5-50-50, as applicable. In accordance with 9VAC5-20-230, any certification shall be revised and submitted to the department upon a determination that the provisions of this section no longer apply. These certifications shall be maintained for the life of each applicable emergency generator.

C. This chapter applies throughout the Commonwealth of Virginia.

D. The following affected unit or units shall not be eligible for this general permit:

1. Any affected unit that is subject to the provisions of the major new source review program as defined in this chapter.

2. Any affected unit that operates during non-emergency conditions for purposes other than required maintenance , operability testing, and emissions testing or as provided by subsection B of this section for certified emergency generation units (including peak shaving, demand response, or as part of any other interruptible power supply arrangement with a power provider, other market participant, or system operator). An electric generating unit that operates during non-emergency conditions subject to the provisions of subsection B of this section is not prohibited from obtaining a general permit.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011; Errata, 27:25 VA.R. 2730 August 15, 2011; Errata, 28:14 VA.R. 1283 March 12, 2012; amended, Virginia Register Volume 41, Issue 24, eff. June 16, 2025.

9VAC5-540-50 General

A. Any owner requesting authority to operate an affected unit shall comply with the requirements of 9VAC5-80 (Permits for Stationary Sources) and register with the department as required under 9VAC5-20-160.

B. The existence of a permit under this chapter shall not constitute a defense of a violation of the Virginia Air Pollution Control Law or the regulations of the board and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances, and orders of the governmental entities having jurisdiction.

C. Upon request of the department, the owner shall reduce the level of operation or shut down an affected unit as necessary to avoid violating any primary ambient air quality standard and shall not return to normal operation until such time as the ambient air quality standard will not be violated.

D. This general permit to construct or modify each affected unit shall become invalid, unless an extension is granted by the department, if:

1. A program of continuous construction or modification is not commenced within 18 months from the date that this general permit is issued to the owner; or

2. A program of construction or modification is discontinued for a period of 18 months or more or is not completed within a reasonable time, except for a department-approved period between phases of a phased construction project.

E. At all times, including periods of startup, shutdown, and malfunction, the owner shall, to the extent practicable, maintain and operate the affected unit, including associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions.

F. The owner shall develop a maintenance schedule and maintain records of all scheduled and nonscheduled maintenance.

G. The owner shall have available written operating procedures for equipment. These procedures shall be based on the manufacturer's recommendations, at a minimum.

H. The owner shall train operators in the proper operation of all such equipment and familiarize the operators with the written operating procedures prior to their first operation of such equipment. The owner shall maintain records of the training provided including the names of trainees, the date of training, and the nature of the training.

I. Records of maintenance and training shall be maintained on-site for a period of five years and shall be made available to department personnel upon request. If the site is remotely operated, the maintenance and training records may be kept off-site but shall be made available to the department within three business days of a department request.

J. The owner shall keep a copy of this general permit on the premises of the affected unit to which it applies

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-60 Circumvention, suspension, or revocation

A. No owner shall cause or permit the installation or use of any device or any means that, without resulting in reduction in the total amount of air pollutants emitted, conceals or dilutes an emission of air pollutants that would otherwise violate this chapter.

B. This general permit may be suspended or revoked if the owner:

1. Knowingly makes material misstatements in the general permit application or any amendments to it.

2. Fails to comply with the conditions of this general permit.

3. Fails to comply with any emission standards applicable to an affected unit.

4. Causes emissions from the stationary source that result in violations of, or interfere with the attainment and maintenance of, any ambient air quality standard.

5. Fails to operate in conformance with any applicable control strategy, including any emission standards or emission limitations, or applicable regulations of the board in effect at the time an application for this general permit is submitted.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-70 Compliance

A. Whenever it is necessary for the purpose of the regulations of the board, the board or an agent authorized by the board may at reasonable times enter an establishment or upon property, public or private, for the purpose of obtaining information or conducting surveys or investigations as authorized by § 10.1-1315 or 46.2-1187.1 of the Code of Virginia.

B. The time for inspection shall be deemed reasonable during regular business hours or whenever the source is in operation. Nothing contained herein shall make an inspection time unreasonable during an emergency.

C. Upon presentation of credentials and other documents as may be required by law, the owner shall allow the department to perform the following:

1. Enter upon the premises where the source is located or emissions-related activity is conducted, or where records must be kept under the terms and conditions of this general permit.

2. Have access to and copy, at reasonable times, any records that must be kept under the terms and conditions of this general permit.

3. Inspect at reasonable times any facilities, equipment (including monitoring equipment), practices, or operations regulated or required under this general permit.

4. Sample or monitor at reasonable times substances or parameters for the purpose of ensuring compliance with this general permit or applicable requirements.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-80 Enforcement of a general permit

A. The following general requirements apply:

1. Pursuant to § 10.1-1322 of the Virginia Air Pollution Control Law, failure to comply with any term or condition of the general permit shall be considered a violation of the Virginia Air Pollution Control Law.

2. An owner who (i) violates or fails, neglects, or refuses to obey any provision of this chapter or the Virginia Air Pollution Control Law, any applicable requirement, or any permit term or condition; (ii) knowingly makes any false statement, representation, or certification in any form, in any notice or report required by a general permit; or (iii) knowingly renders inaccurate any required monitoring device or method shall be subject to the provisions of §§ 10.1-1307, 10.1-1309, 10.1-1316, 10.1-1318, and 10.1-1320 of the Virginia Air Pollution Control Law.

B. Violation of this general permit is subject to the enforcement provisions including, but not limited to, those contained in 9VAC5-170 (Regulation for General Administration) and §§ 10.1-1309, 10.1-1309.1, 10.1-1311, and 10.1-1316 of the Virginia Air Pollution Control Law.

C. If any condition, requirement, or portion of this general permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of this general permit.

D. The owner shall comply with all conditions of this general permit. Any noncompliance with this general permit constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action or (ii) suspension or revocation of the authorization to operate under this general permit.

E. It shall not be a defense for an owner in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this general permit.

F. The authorization to operate under this general permit may be suspended or revoked for cause as specified in 9VAC5-530-80. The filing by an owner of a (i) request for reauthorization to operate under this general permit or (ii) notification of termination, planned changes, or anticipated noncompliance does not stay any condition of this general permit.

G. This general permit does not convey any property rights of any sort or any exclusive privilege.

H. Within 30 days of notification, the owner shall furnish to the department any information that the department may request in writing to determine whether cause exists for suspending or revoking the authorization to operate under this general permit or to determine compliance with this general permit. Upon request, the owner shall also furnish to the department copies of records required to be kept by this general permit and, for information claimed to be confidential, the owner shall furnish such records to the department along with a claim of confidentiality meeting the requirements of 9VAC5-170-60.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

Part III General Permit Administrative Procedures

9VAC5-540-90 Requirements for granting an authorization to operate under the general permit

A. The department may grant an authorization to operate under the general permit for an affected unit that meets the applicability criteria in 9VAC5-540-40 and the operating limitations in 9VAC5-540-170.

B. The general permit will be issued in accordance with § 2.2-4006 A 8 of the Administrative Process Act.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-100 Applications for coverage under the general permit

A. The application for an affected unit shall meet the requirements of this chapter and include all information necessary to determine qualification for and to ensure compliance with the general permit.

B. Any application form, report, compliance certification, or other document required to be submitted to the department under this chapter shall meet the requirements of 9VAC5-20-230.

C. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in an application, upon becoming aware of such failure or incorrect submittal, shall promptly submit such supplementary facts or corrected information.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-110 Required information for initial applications

A. The department will make application forms available to applicants. The information required by this section shall be determined and submitted according to procedures and methods acceptable to the department.

B. Each initial application for coverage under the general permit shall include, but not be limited to, the following:

1. Information specified in the appropriate air permit application form for an affected unit as determined by the regional office.

2. A document certification signed by a responsible official.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-120 Granting an authorization to operate under the general permit

A. The department may grant authorization to operate under the conditions and terms of the general permit to sources that meet the applicability criteria set forth in 9VAC5-540-40.

B. Granting an authorization to operate under the general permit to an affected unit covered by the general permit is not subject to the public participation procedures of 9VAC5-80-1170.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-130 Transfer of authorizations to operate under the general permit

A. No person shall transfer an authorization to operate under the general permit from one affected unit to another or from one piece of equipment to another.

B. In the case of a transfer of ownership of an affected unit, the new owner shall comply with any permit issued or authorization to operate under the general permit granted to the previous owner. The new owner shall notify the department of the change in ownership within 30 days of the transfer.

C. In the case of a name change of an affected unit, the owner shall comply with any permit issued or authorization to operate under the general permit granted under the previous source name. The owner shall notify the department of the change in source name within 30 days of the name change.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

Part IV General Permit Terms and Conditions

9VAC5-540-140 General permit

A. Any owner whose application is approved by the director shall receive the following general permit and shall comply with the requirements in it and be subject to all requirements of this chapter and the regulations of the board.

B. In compliance with the provisions of the Virginia Air Pollution Control Law and regulations adopted pursuant to it, owners of affected units are authorized to operate under the authority of this general permit, except those where board regulations or policies prohibit such operation.

C. The authorization to operate under this general permit shall be in accordance with the cover letter to this permit, 9VAC5-540-150 (General terms and conditions), 9VAC5-540-160 (Monitoring requirements) 9VAC5-540-170 (Operating limits), 9VAC5-540-180 (Emissions limits), 9VAC5-540-190 (Testing requirements), 9VAC5-540-200 (Recordkeeping requirements), 9VAC5-540-210 (Reporting requirements), and 9VAC5-540-220 (Enforcement).

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-150 General terms and conditions

A. The owner is authorized to operate an affected unit located within the boundaries of the Commonwealth of Virginia in accordance with the approved permit application and conditions of this general permit except where board regulations or policies prohibit such activities.

B. The owner shall comply with the terms and conditions of this general permit prior to commencing any physical or operational change or activity that will result in making the source subject to the new source review program.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-160 Monitoring requirements

A. The owner shall install and use a nonresettable hour metering device to monitor the operating hours for each affected unit, calculated monthly as the sum of each consecutive 12-month period.

B. Each monitoring device shall be installed, maintained, calibrated, and operated in accordance with approved procedures, which shall include, as a minimum, the manufacturer's written requirements or recommendations.

C. The hour meter used to continuously measure the hours of operation for each affected unit shall be observed by the owner with a frequency of not less than once per month. The owner shall keep a log of the observations from the hour meter.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-170 Operating limits

A. Each affected unit located in an attainment area shall not operate more than 450 hours per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. Total emissions for any consecutive 12-month period, calculated as the sum of all emissions from operations under this condition, shall not exceed the limits stated in of 9VAC5-540-180 F.

B. Each affected unit located in a nonattainment area shall not operate more than 500 hours per year, calculated monthly as the sum of each consecutive 12-month period.

1. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. Total emissions for any consecutive 12-month period, calculated as the sum of all emissions from operations under this condition, shall not exceed the limits stated in 9VAC5-540-180 F.

C. The approved fuels for each CI affected unit are diesel fuel, biodiesel fuel, and biodiesel blends. These fuels shall meet the following specifications:

1. Diesel fuel that meets the ASTM D975-10b specification for S15 fuel oil; maximum sulfur content per shipment, 0.0015%.

2. Biodiesel fuel which meets ASTM specification D6751-09; maximum sulfur content per shipment, 0.0015%.

D. The approved fuels for each SI affected unit are natural gas and liquid petroleum gas (LPG). These fuels shall meet the following specifications.

1. Natural gas with a minimum heat content of 1,000 Btu/scf HHV as determined by ASTM D1826-94 (Reapproved 2010), ASTM D4809-09a, or an equivalent method approved by the department.

2. LPG, including butane and propane, that meets ASTM D1835-05, or an equivalent method approved by the department.

E. For affected units using diesel fuel or biodiesel fuel, the owner shall obtain a certification from the fuel supplier with each shipment of diesel fuel or biodiesel fuel. Each fuel supplier certification shall include the following:

1. The name of the fuel supplier.

2. The date on which the diesel fuel or biodiesel was received.

3. The quantity of diesel fuel or biodiesel delivered in the shipment.

4. A statement that the diesel fuel complies with the American Society for Testing and Materials specifications (ASTM D975-10b) for S15 fuel oil.

5. A statement that the biodiesel fuel complies with the American Society for Testing and Materials specifications (ASTM D6751-09), and

6. The sulfur content of the diesel fuel or biodiesel fuel.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-180 Emissions limits

A. Manufacturer certified emissions of each CI affected unit located in an attainment area shall not exceed the limits specified in Table III.

| Table III Emissions Limits for CI Units Located in Attainment Areas | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Generator Size (kW) | Displacement liters/cylinder | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | | | | x < 8 kW | Less than 10 | 2010+ | 0.4 | 0.4 | 0.4 | 8.0 | 7.5* | | | (x < 11 bhp) | | | (0.30) | (0.30) | (0.30) | (6.0) | (5.6*) | | | | | | | | | | | | | 8 kW ≤ x < 19 kW | Less than 10 | 2010+ | 0.4 | 0.4 | 0.4 | 6.6 | 7.5* | | | (11 bhp ≤ x < 25 bhp) | | | (0.30) | (0.30) | (0.30) | (4.9) | (5.6*) | | | | | | | | | | | | | 19 kW ≤ x < 37 kW | Less than 10 | 2010+ | 0.3 | 0.3 | 0.3 | 5.5 | 7.5* | | | (25 bhp ≤ x < 50 bhp) | | | (0.22) | (0.22) | (0.22) | (4.1) | (5.6*) | | | | | | | | | | | | | 37 kW ≤ x < 75 kW | Less than 10 | 2010+ | 0.4 | 0.4 | 0.4 | 5.0 | 4.7* | | | (50 bhp ≤ x < 100 bhp) | | | (0.30) | (0.30) | (0.30) | (3.7) | (3.5*) | | | | | | | | | | | | | 75 kW ≤ x < 130 kW | Less than 10 | 2010+ | 0.3 | 0.3 | 0.3 | 5.0 | 4.0* | | | (100 bhp ≤ x < 174 bhp) | | | (0.22) | (0.22) | (0.22) | (3.7) | (3.0*) | | | | | | | | | | | | | 130 kW ≤ x < 560 kW | Less than 10 | 2010+ | 0.2 | 0.2 | 0.2 | 3.5 | 4.0* | | | (174 bhp ≤ x < 751 bhp) | | | (0.15) | (0.15) | (0.15) | (2.6) | (3.0*) | | | | | | | | | | | | | 560 kW ≤ x < 2,237 kW | Less than 10 | 2010+ | 0.2 | 0.2 | 0.2 | 3.5 | 6.4* | | | (751 bhp ≤ x < 3,000 bhp) | | | (0.15) | (0.15) | (0.15) | (2.6) | (4.8*) | | | | | | | | | | | | | x ≥ 2,237 kW | Less than 10 | 2010 | 0.54 | 0.54 | 0.54 | 11.4 | 1.3 | 9.2 | | (x ≥ 3,000 bhp) | | | (0.40) | (0.40) | (0.40) | (8.5) | (1.0) | (6.9) | | | | 2011+ | 0.2 | 0.2 | 0.2 | 3.5 | 6.4* | | | | | | (0.15) | (0.15) | (0.15) | (2.6) | (4.8*) | | | | | | | | | | | | | x ≥ 2,237 kW | 10.0 ≤ x < 15.0 | 2010+ | 0.27 | 0.27 | 0.27 | 5.0 | 7.8* | | | (x ≥ 3,000 bhp) | | | (0.20) | (0.20) | (0.20) | (3.7) | (5.8*) | | | *Combined limit for VOC and NO_x | | | | | | | | |

B. Emissions of each CI affected unit located in an attainment area during testing shall not exceed the limits specified in Table IV.

| Table IV Emissions Limits for CI Units Located in Attainment Areas | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Generator Size (kW) | Displacement liters/cylinder | Model Year | Emission Limits (g/kW-hr (g/bhp-hr) | | | | | | | PM | PM10 | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | | | | x < 8 kW | Less than 10 | 2010+ | 0.5 | 0.5 | 0.5 | 10.0 | 9.4* | | | (x < 11 bhp) | | | (0.4) | (0.4) | (0.4) | (7.5) | (7.0*) | | | | | | | | | | | | | 8 kW ≤ x < 19 kW | Less than 10 | 2010+ | 0.5 | 0.5 | 0.5 | 8.3 | 9.4* | | | (11 bhp ≤ x < 25 bhp) | | | (0.4) | (0.4) | (0.4) | (6.2) | (7.0*) | | | | | | | | | | | | | 19 kW ≤ x < 37 kW | Less than 10 | 2010+ | 0.38 | 0.38 | 0.38 | 6.9 | 9.4* | | | (25 bhp ≤ x < 50 bhp) | | | (0.28) | (0.28) | (0.28) | (5.1) | (7.0*) | | | | | | | | | | | | | 37 kW ≤ x < 75 kW | Less than 10 | 2010+ | 0.5 | 0.5 | 0.5 | 6.3 | 5.9* | | | (50 bhp ≤ x < 100 bhp) | | | (0.4) | (0.4) | (0.4) | (4.7) | (4.4*) | | | | | | | | | | | | | 75 kW ≤ x < 130 kW | Less than 10 | 2010+ | 0.38 | 0.38 | 0.38 | 6.3 | 5.0* | | | (100 bhp ≤ x < 174 bhp) | | | (0.28) | (0.28) | (0.28) | (4.7) | (3.7*) | | | | | | | | | | | | | 130 kW ≤ x < 560 kW | Less than 10 | 2010+ | 0.25 | 0.25 | 0.25 | 4.4 | 5.0* | | | (174 bhp ≤ x < 751 bhp) | | | (0.19) | (0.19) | (0.19) | (3.3) | (3.7*) | | | | | | | | | | | | | 560 kW ≤ x < 2,237 kW | Less than 10 | 2010+ | 0.25 | 0.25 | 0.25 | 4.4 | 8.0* | | | (751 bhp ≤ x < 3,000 bhp) | | | (0.19) | (0.19) | (0.19) | (3.3) | (6.0*) | | | | | | | | | | | | | x ≥ 2,237 kW | Less than 10 | 2010 | 0.68 | 0.68 | 0.68 | 14.3 | 1.6 | 11.5 | | (x ≥ 3,000 bhp) | | | (0.51) | (0.51) | (0.51) | (10.7) | (1.2) | (8.6) | | | | 2011+ | 0.25 | 0.25 | 0.25 | 4.4 | 8.0* | | | | | | (0.19) | (0.19) | (0.19) | (3.3) | (6.0*) | | | | | | | | | | | | | x ≥ 2,237 kW | 10.0 ≤ x < 15.0 | 2010+ | 0.34 | 0.34 | 0.34 | 6.3 | 9.8* | | | (x ≥ 3,000 bhp) | | | (0.25) | (0.25) | (0.25) | (4.7) | (7.3*) | | | *Combined limit for VOC and NO_x | | | | | | | | |

C. Manufacturer certified emissions of each CI affected unit located in a nonattainment attainment area shall not exceed the limits specified in Table V.

| Table V Emissions Limits for CI Units Located in Nonattainment Areas | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Generator Size (kW) | Displacement liters/cylinder | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | | | | x < 8 kW | Less than 10 | 2010+ | 0.4 | 0.4 | 0.4 | 8.0 | 6.4* | | | (x < 11 bhp) | | | (0.30) | (0.30) | (0.30) | (6.0) | (4.8*) | | | | | | | | | | | | | 8 kW ≤ x < 19 kW | Less than 10 | 2010+ | 0.4 | 0.4 | 0.4 | 6.6 | 6.4* | | | (11 bhp ≤ x < 25 bhp) | | | (0.30) | (0.30) | (0.30) | (4.9) | (4.8*) | | | | | | | | | | | | | 19 kW ≤ x < 37 kW | Less than 10 | 2010+ | 0.3 | 0.3 | 0.3 | 5.5 | 6.4* | | | (25 bhp ≤ x < 50 bhp) | | | (0.22) | (0.22) | (0.22) | (4.1) | (4.8*) | | | | | | | | | | | | | 37 kW ≤ x < 75 kW | Less than 10 | 2010+ | 0.4 | 0.4 | 0.4 | 5.0 | 4.7* | | | (50 bhp ≤ x < 100 bhp) | | | (0.30) | (0.30) | (0.30) | (3.7) | (3.5*) | | | | | | | | | | | | | 75 kW ≤ x < 130 kW | Less than 10 | 2010+ | 0.3 | 0.3 | 0.3 | 5.0 | 4.0* | | | (100 bhp ≤ x < 174 bhp) | | | (0.22) | (0.22) | (0.22) | (3.7) | (3.0*) | | | | | | | | | | | | | 130 kW ≤ x < 560 kW | Less than 10 | 2010+ | 0.2 | 0.2 | 0.2 | 3.5 | 4.0* | | | (174 bhp ≤ x < 751 bhp) | | | (0.15) | (0.15) | (0.15) | (2.6) | (3.0*) | | | | | | | | | | | | | 560 kW ≤ x < 2,237 kW | Less than 10 | 2010+ | 0.2 | 0.2 | 0.2 | 3.5 | 6.4* | | | (751 bhp ≤ x < 3,000 bhp) | | | (0.15) | (0.15) | (0.15) | (2.6) | (4.8*) | | | | | | | | | | | | | x ≥ 2,237 kW | Less than 10 | 2010 | 0.54 | 0.54 | 0.54 | 11.4 | 1.3 | 6.4 | | (x ≥ 3,000 bhp) | | | (0.40) | (0.40) | (0.40) | (8.5) | (1.0) | (4.8) | | | | 2011+ | 0.2 | 0.2 | 0.2 | 3.5 | 6.4* | | | | | | (0.15) | (0.15) | (0.15) | (2.6) | (4.8*) | | | | | | | | | | | | | x ≥ 2,237 kW | 10.0 ≤ x < 15.0 | 2010+ | 0.27 | 0.27 | 0.27 | 5.0 | 6.4* | | | (x ≥ 3,000 bhp) | | | (0.20) | (0.20) | (0.20) | (3.7) | (4.8*) | | | *Combined limit for VOC and NO_x | | | | | | | | |

D. Emissions from the operation of each CI affected unit located in a nonattainment area during testing shall not exceed the limits specified in Table VI.

| Table VI Emissions Limits During Testing for CI Units Located in Nonattainment Areas | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Generator Size (kW) | Displacement liters/cylinder | Model Year | Emission Limits g/kW-hr (g/bhp-hr) | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | | | | | x < 8 kW | Less than 10 | 2010+ | 0.5 | 0.5 | 0.5 | 10.0 | 8.0* | | | (x < 11 bhp) | | | (0.4) | (0.4) | (0.4) | (7.5) | (6.0*) | | | | | | | | | | | | | 8 kW ≤ x < 19 kW | Less than 10 | 2010+ | 0.5 | 0.5 | 0.5 | 8.3 | 8.0* | | | (11 bhp ≤ x < 25 bhp) | | | (0.4) | (0.4) | (0.4) | (6.2) | (6.0*) | | | | | | | | | | | | | 19 kW ≤ x < 37 kW | Less than 10 | 2010+ | 0.38 | 0.38 | 0.38 | 6.9 | 8.0* | | | (25 bhp ≤ x < 50 bhp) | | | (0.28) | (0.28) | (0.28) | (5.1) | (6.0*) | | | | | | | | | | | | | 37 kW ≤ x < 75 kW | Less than 10 | 2010+ | 0.5 | 0.5 | 0.5 | 6.3 | 5.9* | | | (50 bhp ≤ x < 100 bhp) | | | (0.4) | (0.4) | (0.4) | (4.7) | (4.4*) | | | | | | | | | | | | | 75 kW ≤ x < 130 kW | Less than 10 | 2010+ | 0.38 | 0.38 | 0.38 | 6.3 | 5.0* | | | (100 bhp ≤ x < 174 bhp) | | | (0.28) | (0.28) | (0.28) | (4.7) | (3.7*) | | | | | | | | | | | | | 130 kW ≤ x < 560 kW | Less than 10 | 2010+ | 0.25 | 0.25 | 0.25 | 4.4 | 5.0* | | | (174 bhp ≤ x < 751 bhp) | | | (0.19) | (0.19) | (0.19) | (3.3) | (3.7*) | | | | | | | | | | | | | 560 kW ≤ x < 2,237 kW | Less than 10 | 2010+ | 0.25 | 0.25 | 0.25 | 4.4 | 8.0* | | | (751 bhp ≤ x < 3,000 bhp) | | | (0.19) | (0.19) | (0.19) | (3.3) | (6.0*) | | | | | | | | | | | | | x ≥ 2,237 kW | Less than 10 | 2010 | 0.68 | 0.68 | 0.68 | 14.3 | 1.6 | 8.0 | | (x ≥ 3,000 bhp) | | | (0.51) | (0.51) | (0.51) | (10.7) | (1.2) | (6.0) | | | | 2011+ | 0.25 | 0.25 | 0.25 | 4.4 | 8.0* | | | | | | (0.19) | (0.19) | (0.19) | (3.3) | (6.0*) | | | | | | | | | | | | | x ≥ 2,237 kW | 10.0 ≤ x < 15.0 | 2010+ | 0.34 | 0.34 | 0.34 | 6.3 | 8.0* | | | (x ≥ 3,000 bhp) | | | (0.25) | (0.25) | (0.25) | (4.7) | (6.0*) | | | *Combined limit for VOC and NO_x | | | | | | | | |

E. Emissions from the operation of each SI affected unit shall not exceed the limits specified in Table VII.

| Table VII Emissions Limits for SI Units | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Model Year | Emissions Limits g/kW-hr (g/bhp-hr) | | | | | | | PM | PM₁₀ | PM_2.5 | CO | VOC | NO_x | | | | | | | | | | | 2010+ | 0.015 | 0.015 | 0.015 | 5.3 | 1.3 | 2.7 | | | (0.011) | (0.011) | (0.011) | (4.0) | (1.0) | (2.0) | | | | | | Instead of meeting the limits stated above, the owner may meet the alternative standards below: ( ppmvd at 15% O₂) | | | | | | | | 540 | 86 | 160 |

F. Combined source-wide emissions from the operation of affected units shall not exceed the limits specified in Table VIII.

| Table VIII Combined Source-Wide Emissions Limits for Affected Units | | | | --- | --- | --- | | Pollutant | Nonattainment Area Emissions (tons/year) | Attainment Area Emissions (tons/year) | | PM | 1.4 | 2.3 | | PM₁₀ | 1.4 | 2.3 | | PM_2.5 | 1.4 | 2.3 | | NO_X | 24.4 | 39.4 | | SO₂ | 0.5 | 0.5 | | CO | 48.0 | 77.4 | | VOC | 11.8 | 19.0 |

G. Visible emissions from each affected unit located in an attainment area shall not exceed 10% opacity except during one six-minute period in any one hour in which visible emissions shall not exceed 20% opacity as determined by Reference Method 9. This condition applies at all times except during startup, shutdown, and malfunction.

H. Visible emissions from each affected unit located in a nonattainment area shall not exceed 5.0% opacity except during one six-minute period in any one hour in which visible emissions shall not exceed 10% opacity as determined by the Reference Method 9. This condition applies at all times except during startup, shutdown, and malfunction.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-190 Testing requirements

Each affected unit shall be constructed, or modified and installed so as to allow for emissions testing upon reasonable notice at any time, using appropriate methods.

1. Sampling ports shall be provided when requested at the appropriate locations.

2. Safe sampling platforms and access shall be provided.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-200 Recordkeeping requirements

A. The owner shall maintain on-site records of emission data and operating parameters as necessary to demonstrate compliance with this general permit.

B. The owner shall maintain records of the occurrence and duration of any bypass, malfunction, shutdown, or failure of the source or its associated air pollution control equipment that results in excess emissions for more than one hour. Records shall include the following: (i) date, (ii) time, (iii) duration, (iv) description (affected unit, pollutant affected, cause), (v) corrective action, (vi) preventive measures taken, and (vii) name of person generating the record.

C. The content and format of such records shall be arranged with the regional office. These records shall include, but are not limited to:

1. Total annual hours of operation for each affected unit, calculated monthly as the sum of each consecutive 12-month period. Compliance for the consecutive 12-month period shall be demonstrated monthly by adding the total for the most recently completed calendar month to the individual monthly totals for the preceding 11 months.

2. Records when each affected unit is used for an ISO-declared emergency including, but not limited to, the date, cause of the emergency, the ISO-declared emergency notification, and the hours of operation.

3. Records when each affected unit is used for an emergency that is not an ISO-declared emergency including, but not limited to, the date, cause of the emergency, and the hours of operation.

4. All fuel supplier certifications.

5. Engine information including make, model, serial number, model year, maximum engine power, and engine displacement for each affected unit.

6. Written manufacturer specifications or written standard operating procedures prepared by the owner for each affected unit. The written standard operating procedures prepared by the owner cannot be less stringent than the written manufacturer specifications.

7. Scheduled and unscheduled maintenance, testing, and operator training.

D. These records shall be available for inspection by the department and shall be current for the most recent five years.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

9VAC5-540-210 Reporting requirements

The owner shall furnish written notification to the regional office of the following:

1. The actual date on which construction or modification of each affected unit commenced within 30 days after such date.

2. If necessary, the actual date on which the integration operational period of each affected unit commenced within 15 days after such date.

3. The anticipated start-up date of each affected unit postmarked or submitted electronically not more than 60 days nor less than 30 days prior to such date.

4. The actual start-up date of each affected unit within 15 days after such date.

History

• Statutory Authority: § 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-540-220 Enforcement

A Violation of this general permit is subject to the enforcement provisions including, but not limited to, those contained in 9VAC5-170 (Regulation for General Administration) and §§ 10.1-1309, 10.1-1309.1, 10.1-1311 and 10.1-1316 of the Virginia Air Pollution Control Law.

B. If any condition, requirement or portion of this general permit is held invalid or inapplicable under any circumstance, such invalidity or inapplicability shall not affect or impair the remaining conditions, requirements, or portions of this permit.

C. The owner shall comply with all conditions of this general permit. Any noncompliance with this permit constitutes a violation of the Virginia Air Pollution Control Law and is grounds for (i) enforcement action or (ii) suspension or revocation of the authorization to operate under this permit.

D. It shall not be a defense for an owner in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this general permit.

E. The authorization to operate under this permit may be suspended or revoked for cause as specified in 9VAC5-540-80. The filing by an owner of a (i) request for reauthorization to operate under this general permit or (ii) notification of termination, planned changes, or anticipated noncompliance does not stay any condition of this general permit.

F. This general permit does not convey any property rights of any sort, or any exclusive privilege.

G. Within 30 days of notification, the owner shall furnish to the department any information that the department may request in writing to determine whether cause exists for suspending or revoking the authorization to operate under this general permit or to determine compliance with this general permit. Upon request, the owner shall also furnish to the department copies of records required to be kept by this permit and, for information claimed to be confidential, the owner shall furnish such records to the department along with a claim of confidentiality meeting the requirements of 9VAC5-170-60.

History

• Statutory Authority: §§ 10.1-1307.2 and 10.1-1308 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 23, eff. August 17, 2011.

Agency 15 Department of Environmental Quality

Chapter 11 Public Participation Guidelines

Part I Purpose and Definitions

9VAC15-11-10 Purpose

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Environmental Quality. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC15-11-20 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Environmental Quality, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Part II Notification of Interested Persons

9VAC15-11-30 Notification list

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC15-11-40 Information to be sent to persons on the notification list

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC15-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Part III Public Participation Procedures

9VAC15-11-50 Public comment

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009; amended, Virginia Register Volume 34, Issue 2, eff. November 2, 2017.

9VAC15-11-60 Petition for rulemaking

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC15-11-70 Appointment of regulatory advisory panel

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC15-11-80 Appointment of negotiated rulemaking panel

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC15-11-90 Meetings

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC15-11-100 Public hearings on regulations

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working daysprior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC15-11-110 Periodic review of regulations

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

History

• Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Chapter 20 Guidelines for the Preparation of Environmental Impact Assessments for Oil or Gas Well Drilling Operations in Tidewater Virginia

Part I Applicability and General Requirements

9VAC15-20-10 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Access road" means a paved or unpaved route or path from a public highway or public road to a well site or associated facility.

"Associated facilities" means any facility used for gas or oil operations in the Commonwealth, other than a well or well site.

"Chesapeake Bay Preservation Area" means an area delineated by a local government in accordance with "9VAC25-830: Chesapeake Bay Preservation Area Designation and Management Regulations" and § 62.1-44.15:74 of the Chesapeake Bay Preservation Act. A Chesapeake Bay Preservation Area consists of Resource Protection Areas and Resource Management Areas.

"Cuttings" means fragments of rock produced in a well bore by a drill bit and brought to the surface by drilling fluids or air pressure.

"Department of Environmental Quality" means the Department of Environmental Quality as described in § 10.1-1182 et seq. of the Code of Virginia.

"Department of Energy" means the Department of Energy as described in § 45.2-100 et seq. of the Code of Virginia.

"Director of the Department of Energy" means the Director of the Department of Energy or the director's authorized agent.

"Director of the Department of Environmental Quality" means the Director of the Department of Environmental Quality or the director's authorized agent.

"Drilling fluid" means any fluid or drilling mud circulated in the well bore during drilling operations.

"Economic characteristics" means activities associated with the production, distribution, and consumption of goods and services.

"Enhanced recovery" means (i) any activity involving injection of any air, gas, water, or other fluid into the productive strata; (ii) application of pressure, heat, or other means for the reduction of viscosity of the hydrocarbons; or (iii) the supplying of additional motive force other than normal pumping to increase the production of gas or oil from any well or pool.

"Environment" means the natural, scenic, and historic attributes of Virginia.

"Environmental impact assessment" or "assessment" means that documentation that is required by § 45.2-1646 of the Code of Virginia to be a part of any application for a permit to drill an oil or gas well in Tidewater Virginia.

"Exploratory well" means any well drilled (i) to find and produce gas or oil in an unproven area, (ii) to find a new reservoir in a field previously found to be productive of gas or oil in another reservoir, or (iii) to extend the limits of a known gas or oil reservoir.

"Facilities and equipment" means all infrastructure supporting the development, drilling, construction, completion, or operation of any gas or oil operation including well drilling equipment, well heads, separators, compressors, pumps, manifolds, vehicles, fluid circulation systems, waste handling facilities, storage tanks, valves, pipelines, etc., used to explore for, produce, or transport oil or gas.

"Fiscal characteristics" means the structure of taxation, public revenue, public expenditure, and public debt.

"Gas" or "natural gas" means all natural gas whether hydrocarbon or nonhydrocarbon or any combination or mixture of them, including hydrocarbons, hydrogen sulfide, helium, carbon dioxide, nitrogen, hydrogen, casing head gas, and all other fluids not defined as oil.

"Gas or oil operation" or "operation" means any activity relating to drilling, redrilling, deepening, stimulating, production, enhanced recovery, converting from one type of well to another, combining or physically changing to allow the migration of fluid from one formation to another, plugging, or replugging any well, land disturbing activity relating to the development, construction, operation, and abandonment of a gathering pipeline, the development, operation, maintenance, and restoration of any site involved with gas or oil operations, or any work undertaken at a facility used for gas or oil operations. The term embraces all of the land or property that is used for or that contributes directly or indirectly to a gas or oil operation, including all roads.

"Gas well" means any well that produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gathering pipeline" means (i) a pipeline that is used or intended for use in the transportation of gas or oil from the well to a transmission pipeline or other pipeline regulated by the Federal Energy Regulatory Commission or the State Corporation Commission or (ii) a pipeline that is used or intended for use in the transportation of gas or oil from the well to an off-site storage, marketing, or other facility where the gas or oil is sold.

"Highly erodible soils" means soils (excluding vegetation) with an erodibility index (EI) from sheet and rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T, as defined by the Food Security Act (F.S.A.) Manual of August, 1988 in the "Field Office Technical Guide" of the U.S. Department of Agriculture, Soil Conservation Service, where K is the soil susceptibility to water erosion in the surface layer; R is the rainfall and runoff; LS is the combined effects of slope length and steepness; and T is the soil loss tolerance.

"Highly permeable soils" means soils with a given potential to transmit water through the soil profile. Highly permeable soils are identified as any soil having a permeability equal to or greater than six inches of water movement per hour in any part of the soil profile to a depth of 72 inches (permeability groups "rapid" and "very rapid") as found in the "National Soils Handbook" of July 1983 in the "Field Service Technical Guide" of the U.S. Department of Agriculture, Soil Conservation Service.

"Historic properties" means any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places or the Virginia Historical Landmarks Register including any artifacts, records, and remains that are related to and located within such properties.

"Historic properties survey" means a survey undertaken to establish the presence or absence of historic properties, and any related and necessary management plans developed to conserve such resources.

"Land-disturbing activity" means any change in or reconfiguration of the land surface or vegetation on the land surface through vegetation clearing or earth moving activities including clearing, grading, excavating, drilling, transporting, or filling.

"Mcf" means, when used with reference to natural gas, one thousand cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and at a temperature base of 60°F.

"Natural area preserve" means a natural area that has been dedicated pursuant to § 10.1-213 of the Code of Virginia.

"Natural heritage resources" means the habitat of rare, threatened, or endangered plant and animal species, rare or state significant natural communities or geologic sites, and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth.

"Natural heritage survey" means a survey undertaken to establish the presence or absence of natural heritage resources and any related and necessary management plans developed to conserve such resources.

"Nontidal wetlands" means those wetlands other than tidal wetlands that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency in response to § 404 of the Federal Water Pollution Control Act, in 33 CFR 328.3b.

"Oil" means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, that are produced at the well in liquid form by ordinary production methods and that are not the result of condensation of gas after it leaves the underground reservoir.

"Oil well" means any well that produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Open space" means any land, water, or submerged land that is provided for, preserved for, or used for (i) park or recreational purposes; (ii) conservation of land or other natural resources; (iii) cultural, historic, or scenic purposes; (iv) assisting in the shaping of the character, direction, and timing of community development; or (v) nontidal or tidal wetlands.

"Operations area" means the location of the well, well site, associated facilities, production facilities, access roads, pipeline systems, and other related facilities and equipment necessary to the conduct of a gas or oil operation.

"Person" means any individual or group, any partnership, corporation, association, organization, or other legal entity, including any public body.

"Pipeline corridor" means those areas that pipeline systems pass through or will be constructed to pass through, including associated easements, leases, or rights-of-way.

"Pipeline systems" means all parts of those physical facilities through which gas or oil moves in transportation, including pipes, valves, and other appurtenances attached to pipes such as compressor units, metering stations, regulator stations, delivery stations, holders, or other related facilities.

"Production well" means a well, related production facilities and equipment, and activities related to the drilling of a well for the purpose of developing and producing, or converting an exploratory well to develop or produce, oil or gas from geological strata for the purpose of sale, exchange, transfer, or use by the owner or for the purpose of exchange, transfer, sale, or use by any other person.

"Rare, threatened, or endangered species" means any insect, fish, wildlife, or plant species that is listed as, is a candidate for listing as, or is recommended for listing as a rare, threatened, or endangered species by the U.S. Fish and Wildlife Service, the Department of Agriculture and Consumer Services, the Department of Wildlife Resources, or the Department of Conservation and Recreation.

"Recreational resources" means the broad range of outdoor and indoor public and private areas and facilities, many of which are identified in the "Virginia Outdoors Plan," used in meeting Virginia's recreational needs including public parks, public forests, natural areas, wildlife management areas, lakes and reservoirs, historic resources, trails, rivers, beaches, water access areas, Virginia byways, tidal and nontidal wetlands, and greenways.

"Scenic resources" means features that characterize an area by giving it a special visual identity or that present unique vistas or landscapes, including such features as designated or candidate state or federal scenic rivers, federal or state scenic highways or parkways, Virginia byways, and scenic values as recognized by local, state, or federal governments.

"Tidal wetlands" means "vegetated wetlands" and "nonvegetated wetlands" as defined in § 28.2-1300 of the Code of Virginia.

"Tidewater Virginia" means that area of Virginia as defined in § 62.1-44.15:68 of the Code of Virginia and the localities of Manassas and Manassas Park.

"Virginia Outdoors Plan" means the State Comprehensive Outdoor Recreation Plan developed and administered by the Department of Conservation and Recreation.

"Waste from gas, oil, or geophysical operations" means any substance other than gas or oil that is (i) produced or generated during or results from the development, drilling, and completion of wells and associated facilities or the development and construction of gathering pipelines or (ii) produced or generated during or results from well, pipeline, and associated facilities' operations including brines and produced fluids other than gas or oil. In addition, this term shall include all rubbish and debris, including all material generated during or resulting from well plugging, site restoration, or the removal and abandonment of gathering pipelines and associated facilities.

"Well" means any shaft or hole sunk, drilled, bored, or dug into the earth or into underground strata for the extraction, injection, or replacement of any gaseous or liquid substance, or any shaft or hole sunk or used in conjunction with such extraction, injection, or placement. The term shall not include any shaft or hole sunk, drilled, bored, or dug into the earth for the sole purpose of pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural, or public use and shall not include water boreholes, methane drainage boreholes where the methane is vented or flared rather than produced and saved, subsurface boreholes drilled from the mine face or an underground coal mine, any other boreholes necessary or convenient for the extraction of coal or drilled pursuant to a uranium exploratory program carried out pursuant to the laws of this Commonwealth, or any coal or nonfuel mineral core hole or borehole for the purpose of exploration.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 1.1, eff. November 3, 1993; amended, Virginia Register Volume 30, Issue 13, eff. March 26, 2014; Volume 38, Issue 8, eff. January 5, 2022.

9VAC15-20-20 Authority

This chapter implements § 45.2-1646 of the Code of Virginia, which requires the Department of Environmental Quality to develop criteria and procedures to assure the orderly preparation and evaluation of environmental impact assessments for gas or oil well drilling operations in Tidewater Virginia.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 1.2, eff. November 3, 1993; amended, Virginia Register Volume 38, Issue 8, eff. January 5, 2022.

9VAC15-20-30 Purpose

The purpose of this chapter is to set out criteria and procedures to be followed by gas or oil well drilling permit applicants when preparing environmental impact assessments and by the Department of Environmental Quality, other state agencies, local government officials, and the public when reviewing environmental impact assessments. It is intended to foster the development of useful information which is presented in a manner that assists the Department of Environmental Quality, appropriate state agencies, planning district commissions, potentially affected local governments, and the public in understanding, analyzing and making decisions about the potential environmental, fiscal or economic impacts associated with drilling an oil or gas well in Tidewater Virginia and related production and transportation activities.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 1.3, eff. November 3, 1993.

9VAC15-20-40 Applicability

The environmental impact assessment requirements and criteria apply to all oil or gas well drilling operations, whether an exploratory well or a production well, proposed to occur in Tidewater Virginia. Any person proposing to drill an exploratory well or production well in Tidewater Virginia shall submit to the Department of Energy, as part of the person's application for a permit to drill such a well, an environmental impact assessment.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 1.4, eff. November 3, 1993; amended, Virginia Register Volume 38, Issue 8, eff. January 5, 2022.

9VAC15-20-50 General information requirements

A. The environmental impact assessment is to contain information on and a discussion of the elements outlined in the following sections of this regulation. Discussions should be no longer than necessary to fully explain the issues and potential impacts in a given topical area. Data and analyses should be commensurate with the degree of impact.

B. An environmental impact assessment shall contain a title page; an executive summary; a table of contents; a list of figures; a list of tables; a list of maps and plats; the main body of the report as outlined in this regulation; a list of preparers; a topical index; an annex containing a list of local, state, or federal permits that are applicable to the proposed operations; and other annexes as needed. The executive summary shall summarize the assessment focusing on the major conclusions; the potential environmental, fiscal and economic impacts; and avoidance, minimization or mitigative measures proposed to address environmental, fiscal and economic impacts.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 1.5, eff. November 3, 1993.

Part II Information Requirements

9VAC15-20-60 Description of the gas or oil operation

A. The applicant shall describe the gas or oil operation to be performed. The description of the operation should include information on the location, size (length, height, width and area), and number of such facilities and related land requirements (including easements or rights-of-way). The information should also include a timetable for establishing, completing and removing drilling operations and constructing, operating and removing production facilities.

B. The discussion of the operation shall be accompanied by:

1. A general location map depicting the operations area and surrounding areas at a map scale which is as detailed or more detailed than a map at a scale of 1:24,000; and

2. Detailed site plats of the proposed operations area at a scale no greater than 1:600 depicting the location of:

a. Proposed land-disturbing activities;

b. Facilities and equipment, pipeline corridors, and natural resource features discussed in 9VAC15-20-70 that can be graphically presented and that will be or could be affected by the proposed operation; and

c. Any existing manmade features within the proposed operations area, including but not limited to buildings, water wells, roads, drainage ditches, ponds, etc.

C. The description of the operation shall include a discussion of the following:

1. The type of drilling operation;

2. Power systems, energy or fuel sources necessary for drilling and associated facilities equipment operation;

3. Fluid circulation systems including a discussion of and a list of the proposed drilling fluids, fluid components, toxicity classification, and information on the projected amount and rate of drilling fluid production;

4. Well control and blowout prevention devices including a description of the proposed methods of containment of potential oil, gas or waste fluid releases;

5. Any proposed utility connections for water supply or sewage disposal purposes;

6. Projected types, quantities, and chemical characteristics of waste from gas, oil or geophysical operations, including any planned surface water or groundwater emissions referencing where possible information available from previous gas or oil operations conducted in Tidewater Virginia;

7. Projected types, quantities, and chemical characteristics of solid wastes produced by the operation referencing where possible information from previous gas or oil operations conducted in Tidewater Virginia;

8. Proposed on-site and off-site solid and liquid waste management procedures including waste transfer areas and procedures, disposal areas or facilities, handling facilities and equipment, storage areas and related facilities and equipment, and proposed methods of disposal whether by land application, burying, injection or by other means;

9. Any planned enhanced recovery activities related to the production of gas or oil from the proposed well;

10. Projected air emissions by source, quantity, chemical characteristics, and duration resulting from the proposed operation on an average daily basis referencing where possible information available from previous gas or oil operations conducted in Tidewater Virginia;

11. Methods which will be used to acquire necessary water supplies to conduct the proposed operation including the amount of daily withdrawals, daily or weekly fluctuations in withdrawal rates, duration of withdrawals, and any effects on stream flow, how much water will be needed to support the operation, and how such water supplies will be used in the proposed operation;

12. Descriptions, presented in narrative and graphic format as appropriate, of proposed erosion and sediment control practices and stormwater management practices which will be installed to manage surface water quality;

13. Descriptions, presented in narrative and graphic format as appropriate, of proposed site reclamation and revegetation plans for all operations areas; and

14. Descriptions of proposed gas or oil production and transportation facilities and equipment.

D. A description of land-disturbing activities which will result from the proposed operation should include a discussion of the size, extent and location of activities including the following activities:

1. The clearing of vegetation, including a description of the types of vegetation to be cleared;

2. Land grading and filling activities;

3. Constructing new or expanded access roads;

4. Constructing fluid reserve pits, sumps, dikes, tanks or similar devices;

5. Constructing associated facilities whether inside or outside of the operations area;

6. Constructing and installing pipeline systems including proposed trenching, earth-moving, or vegetation clearing activities; and

7. Constructing and installing gas or oil production facilities and equipment.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.1, eff. November 3, 1993.

9VAC15-20-70 Description of the environment and natural resource features potentially affected by the gas or oil operation

A. The discussion under this part shall include a description of the existing environment and natural resource features that will be or may be affected by the gas or oil operation and how they will be or may be affected. The analysis of the environment and natural resource features shall encompass, at the minimum, any area located within 1320 feet of a proposed well and within 100 feet of proposed pipeline systems or associated facilities unless the applicant for the permit to drill can demonstrate that a smaller impact analysis area is appropriate given the nature and location of the proposed gas or oil operation and the potential impact of such an operation on the environment and natural resources. The 1320-foot distance is half of the statewide well spacing requirement set out for gas wells in § 45.2-1616 of the Code of Virginia and will ensure that the impact analysis for wells established in Tidewater Virginia at the statewide spacing will be tangential. The 100-foot distance from pipelines and associated facilities will ensure that Chesapeake Bay Preservation Areas or other environmentally sensitive resources that may be affected by the oil or gas operation will be detected. The potential for impacts by the proposed oil or gas operation on natural resource features and the environment that are located outside of the 1320-foot impact analysis area for wells and the 100-foot impact analysis area for pipeline systems and associated facilities shall also be considered and discussed. The discussion shall be supported with graphic information in the form of a plat at a scale between 1:1000 and 1:4000 showing the location of natural resources that will be or may be affected by the proposed operation. The discussion shall include:

1. Physical site conditions such as:

a. Topographical features including relief, slope, project area elevation, and landscape features such as beaches, sand dunes, shorelines, etc.;

b. Surface water hydrology and drainage patterns including locations of embayments, rivers or streams and related subaqueous beds, tidal or nontidal wetlands, and the 100-year floodplain in the watershed potentially affected by the proposed operation;

c. Existing surface water quality characteristics and how water quality may be affected by emissions from the proposed operation;

d. Existing air quality and how air quality may be affected by emissions from the proposed operation;

e. Geological conditions such as groundwater hydrogeology, including the depths to the top and bottom of groundwater aquifers; general characteristics of the geologic strata to be penetrated by drilling activities; and a discussion of the possibility for land subsidence and any potential impacts associated with land subsidence which may result from the operation;

f. A description of the existing water quality of groundwater aquifers that will be or may be affected by drilling activities or liquid waste disposal activities focusing particularly on the potability of water in potentially affected aquifers and the extent to which identified aquifers are currently used as domestic or community water supplies;

g. A discussion of the soil types on which an operation will be located, including an identification of prime agricultural lands, highly permeable soils, highly erodible soils, and soil profile descriptions of each representative soil series on the well site to a depth of 72 inches;

h. The identification and location of any public water supply intakes within the watershed where an operation will occur and located within 10 miles downstream of the proposed well site or any public or private water supply wells located within a one-mile radius of the proposed oil or gas well drilling operation; and

i. Chesapeake Bay Preservation Areas, both Resource Protection Areas (RPAs) and Resource Management Areas (RMAs), located within 1320 feet of the proposed operations area.

2. Biological conditions and resources including:

a. A description of the terrestrial and aquatic habitat types and associated flora and fauna, including any natural heritage resources that are documented by performing a natural heritage survey in conformance with methodologies established by the Department of Conservation and Recreation, and any rare, threatened, or endangered species present;

b. A description of the use patterns of terrestrial habitat by wildlife, including areas such as nesting, roosting, breeding, and calving areas or other unique natural habitat;

c. A description of the use patterns of freshwater, estuarine, and marine habitat by terrestrial and aquatic species, including submerged aquatic vegetation, fish spawning areas, shellfish beds, habitat of anadromous fish and other finfish, and benthic organisms; and

d. State Wildlife Management Areas, State Natural Area Preserves, National Wildlife Refuges, or elements of Virginia's National Estuarine Research Reserve System or other unique or important natural communities.

3. Culturally important areas such as historical, open space, and recreational resources, including those resources listed in the Virginia Outdoors Plan, including:

a. Historic properties that are documented by performing a historic properties survey in conformance with guidelines established by the Department of Historic Resources;

b. Public beaches;

c. Scenic resources;

d. Public water access sites;

e. Local, state, or national parks, recreational areas, open space, or forests;

f. State-owned or state managed lands;

g. Federally-owned or federally managed lands;

h. Easements held for agricultural, forestal, open space, horticultural, or other conservation purposes; and

i. Prime agricultural lands as identified by the U.S. Soil Conservation Service and important farm lands as identified by the Virginia Department of Agriculture and Consumer Services.

B. Describe the typical noise levels currently existing at the proposed operations areas. Describe any operation activities that will produce noise over 65 decibels measured at the boundary of the operations area, the source and daily duration of those activities producing the noise, and the estimated external noise level at the nearest noise receptor such as a residence, school, hospital, business, public meeting place, feature identified in the Virginia Outdoors Plan, or wildlife habitat. The applicant should describe what measures, if any, will be taken to reduce projected exterior noise levels below 65 decibels at the nearest receptor.

C. Describe any activities associated with the operation that will produce light or glare within the operations area after sundown and before dawn. Describe the hours that artificial lighting sources will exist, including flaring of wells, gas processing facilities, or production facilities, the intensity of any light sources, and the time such light sources would be in operation. Describe the potential aesthetic, nuisance, safety, or environmental hazards that light or glare may produce outside of the operations area. Describe what steps, if any, that will be taken to minimize light or glare.

D. Describe the actions and measures that will be taken to avoid, minimize, and mitigate impacts on natural, scenic, recreational, and historic resources identified in the assessment. The assessment shall also discuss irrevocable or irreversible losses of the natural resources identified in the assessment.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.2, eff. November 3, 1993; amended, Virginia Register Volume 38, Issue 8, eff. January 5, 2022.

9VAC15-20-80 Procedures for estimating the probability of a discharge

The assessment shall provide an analysis of the probabilities of accidental discharges of oil, condensate, natural gas, and waste from gas, oil or geophysical operations or liquids being released into the environment during drilling, production, and transportation due to well blowout, equipment failure, transportation accidents and other reasons. Such an analysis shall include calculations based upon generally accepted engineering failure analysis procedures. An applicant shall calculate a spill probability analysis for three sizes of discharge events -- minor, moderate, or major. The applicant shall define the categories of minor, moderate or major discharge and describe the sources of information used to formulate the analyses and the assumptions used to construct the analyses. Discharge probability analyses for minor discharges should include calculations for a discharge that would not be expected to escape the operations area.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.3, eff. November 3, 1993.

9VAC15-20-90 Procedures for determining the consequences of a discharge

The environmental impact assessment shall include a description of potential environmental and natural resource effects associated with discharges including the consequences of a discharge on finfish, shellfish and other marine or freshwater organisms; birds and other wildlife; air and water quality; land and water resources; and including the specific environmental and natural resource features listed in 9VAC15-20-70. The analysis should be specific to the proposed operation, the proposed location of the operation, and the natural resources in the vicinity of the proposed operation. The spill analysis shall be completed for oil, condensate, waste from gas, oil or geophysical operations or fluids, and natural gas discharges resulting from minor, moderate or major discharges as defined and described pursuant to the requirements of 9VAC15-20-80.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.4, eff. November 3, 1993.

9VAC15-20-100 Spill release and contingency planning

The environmental impact assessment shall describe procedures that will be developed and implemented to prepare for, equipment that will be installed to detect and respond to, and facilities and equipment that will be installed or available to contain minor, moderate and major discharges of oil, condensate, natural gas, waste from gas, oil, or geophysical operations or fluids as defined pursuant to the requirements of 9VAC15-20-80 as well as fires or other hazards to the environment. A discharge contingency plan prepared in conformance with the requirements of the State Water Control Board's regulation entitled "Facility and Aboveground Storage Tank (AST) Regulation" (9VAC25-91) will fulfill the information requirement of this section.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.5, eff. November 3, 1993; amended, Virginia Register Volume 30, Issue 13, eff. March 26, 2014.

9VAC15-20-110 Hydrogen sulfide release contingency planning

A. A discussion of the potential for encountering hydrogen sulfide shall be included in the assessment. The assessment shall discuss steps that will be taken, if any, to respond if indicators of such gas are encountered, if there exists a potential for a release of hydrogen sulfide gas, or in the event of a hydrogen sulfide release.

B. A hydrogen sulfide release contingency plan should address the following:

1. Methods and devices that will be used to detect hydrogen sulfide gas to prevent the gas from becoming an environmental concern and include a description of detection equipment to be used and equipment testing and calibration procedures.

2. Operating procedures to be employed if the operations area atmospheric concentration of hydrogen sulfide gas reaches limits established by the Department of Labor and Industry in "VR 425-02-36 Air Contaminants (1910.1000)" and include a discussion of:

a. Appropriate emergency notification procedures for local residents, emergency service and medical personnel;

b. Notification procedures for responsible regulatory agencies; and

c. Appropriate visual and audible warning systems for atmospheric hydrogen sulfide gas within the operations area.

3. The potential for continuous low-level hydrogen sulfide emissions (one hour average) to result in concentrations in areas of public access above levels deemed harmful to human health in accordance with the State Air Pollution Control Board's "Emission Standards for Toxic Pollutants from Existing Sources" (9VAC5-60-200 through 9VAC5-60-270) and "Emission Standards for Toxic Pollutants from New and Modified Sources" (9VAC5-60-300 through 9VAC5-60-370).

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.6, eff. November 3, 1993; amended, Virginia Register Volume 30, Issue 13, eff. March 26, 2014.

9VAC15-20-120 Economic impacts

A. Describe the potential impacts of the proposed operation on the economic characteristics of the affected locality and, as necessary, surrounding localities. The information should address how these economic characteristics will be affected during (i) the drilling and construction phases of the operation, and (ii) the production phases of the operation. In all projections constructed by the applicant, the methodology for constructing projections and the assumptions, calculations and computations used to formulate projections should also be presented and described.

B. The description should include information on the following conditions:

1. An analysis of the potential positive or negative effects of the proposed operation on the current population with regard to potential changes in the demographic structure of the locality according to age, income and employment characteristics;

2. An analysis of the projected employment levels including estimates of the variation in employment levels over time for (i) the drilling and construction phases of the operation, including the construction of pipeline systems, associated facilities and production facilities, and (ii) the production phases of the proposed operation. Indicate whether any new positions created by the proposed construction and operations activities may be or will be filled from the labor pool available in the affected locality or in neighboring localities;

3. The types of services that can be provided from businesses located in the affected locality or in surrounding localities. Include a general estimate of the amount of contract awards that will be or could be made available to service providers in the affected locality and neighboring localities and the projected duration of service contracts;

4. The existing land uses, including residential, forestal, agricultural, commercial, industrial, urban, suburban, open space, recreational or other land use characteristics within the locality that will be affected, changed or which may be subject to change as a result of the proposed operation. The discussion shall be supported with graphic information in the form of a plat or plats of existing land uses within 1320 feet of the well and within 100 feet of associated facilities and pipeline systems at a scale between 1:1000 and 1:4000; and

5. The locality's affected industrial and commercial bases and economic conditions with emphasis on dominant economic sectors (i.e., agriculture, forestry, fishing and aquaculture, service industries, and industrial activities). Special attention should be given to the tourism and recreation industries and how they may be affected by the operation. Describe how the proposed location of the operation may adversely affect or displace other natural resource-based commercial activities and enterprises in the affected locality or in neighboring localities such as agriculture, fishing, tourism, forestry, etc.

C. Describe the actions and measures that will be taken to avoid impacts, minimize impacts, and mitigate unavoidable impacts on economic characteristics identified in the assessment. The assessment should also discuss irreversible impacts on or commitments of local economic resources based upon impacts identified in the assessment.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.7, eff. November 3, 1993.

9VAC15-20-130 Fiscal impacts

A. The assessment should present an analysis of the existing fiscal characteristics, revenue structure, and physical infrastructure in the county, city, or town where the proposed operation is to be located to the extent they may be affected by the proposed operation. The applicant should identify measures that may need to be undertaken in order to maintain or expand the services, revenue sources, expenditure levels and capital facilities of the affected local government due to the proposed operation. As appropriate, the applicant should describe any new, upgraded or expanded infrastructure and capital facilities that will be necessary to support the proposed operation, estimates how much improvements may cost and the person or persons who will be responsible for providing necessary infrastructure or capital facility improvements. In all projections of potential effects on infrastructure and related fiscal impacts, methodologies for constructing projections, related assumptions, calculations and computations used to formulate projections should also be presented and described.

B. The assessment should address the following fiscal and infrastructure elements:

1. The transportation systems including roads, railroads or existing oil or gas pipelines that are available to support the operation and how they will be affected by the proposed operation. The discussion should include an estimate of the number of vehicle trips that will be generated on the transportation system, the size of any operational support vehicles, and the design capacity of affected roads relative to the projected size, weight and volume of vehicle traffic. Identify any new transportation system needs, including pipeline systems and roads, necessary to meet the demands of the proposed operation and how the applicant will develop or assist in developing and upgrading necessary transportation systems;

2. Infrastructure and capital facility support systems available including utility services, water services, sewer services, solid waste disposal services and facilities, etc. and the projected demands the proposed operation will place on such systems and their existing capacity to respond to that demand. Identify any needed upgrades or expansion of related infrastructure, equipment or services, estimate the cost of providing upgrades, and describe how the applicant will assist in providing resources to met such needs;

3. The availability of public safety and health services such as hospitals, emergency rescue services, police and fire services and related infrastructure and the capacity to respond to accidents or incidents that may result from the gas or oil operation. Identify any needed upgrades or expansion of related infrastructure, equipment or services, estimate the cost of providing upgrades, and describe how the applicant will assist in providing resources to meet such needs;

4. The distribution of existing temporary and permanent housing units within the locality and whether these will be adequate to accommodate the projected influx of the operation workers. Discuss how any need for temporary housing may affect existing land uses. Also, discuss how any projected housing needs will be met by the applicant if available units are insufficient to meet the projected housing demand; and

5. The public service needs, including but not limited to educational services, recreational needs, and social services, that will be generated by the immigration of laborers into the affected locality in support of the operation. Discuss the capacity of these services and whether the existing capacity is sufficient to handle the projected population increase. If the existing capacity is projected to be insufficient to meet anticipated needs, the applicant should explain what measures will be necessary to address increased service needs.

C. Describe the actions and measures that will be taken to avoid, minimize, and mitigate impacts on fiscal characteristics identified in the assessment associated with the expansion or development of infrastructure to support the proposed operation.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 2.8, eff. November 3, 1993.

Part III Information Requirements for Evaluating Secondary Environmental Impacts

9VAC15-20-140 Examination of secondary environmental impacts due to induced economic development

Based on the analysis of potential economic impacts identified in 9VAC15-20-120, and fiscal impacts identified in 9VAC15-20-130, examine and discuss the potential secondary environmental affects of induced economic development due to the proposed operation. Such analysis should include impacts associated with any new infrastructure development provided to support the gas or oil operation including but not limited to the construction of new roads, pipeline systems, sewers, schools, water supplies, public services, waste handling facilities, housing units, etc., on natural, scenic, open space, recreational, and historic resources.

History

• Statutory Authority: §§ 10.1-1188 et seq. and 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 3.1, eff. November 3, 1993.

Part IV Department of Environmental Quality and General Public Review and Comment Procedures

9VAC15-20-150 Department of Environmental Quality notification by the Department of Energy

Upon receiving a permit application to drill an oil or gas well in Tidewater Virginia, the Director of the Department of Energy shall notify the Director of the Department of Environmental Quality that a coordinated review of an environmental impact assessment must be initiated. The applicant shall provide the Department of Energy with 17 copies of the environmental impact assessment and the Department of Energy will deliver the copies to the Director of the Department of Environmental Quality. The 90-day review process will begin upon receipt of the appropriate number of copies of the environmental impact assessment by the Director of the Department of Environmental Quality.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 4.1, eff. November 3, 1993; amended, Virginia Register Volume 38, Issue 8, eff. January 5, 2022.

9VAC15-20-160 Initiation of assessment review by state and local agencies and by the general public

A. The Department of Environmental Quality shall prepare and submit a general notice for publication in the Virginia Register within three days of the receipt of an environmental impact assessment. The availability of an assessment shall be given public notice, paid for by the applicant, by publication in a newspaper having a general circulation in the locality where drilling is proposed. The Department of Environmental Quality shall also develop a mailing list containing the names of persons who indicate they want to be notified about the availability of oil or gas environmental impact assessment documents and will forward a copy of the general notice submitted for publication in the Virginia Register to those persons on the mailing list.

B. The general notice will contain the following information:

1. The proposed location of the operation including the name of the locality and other general descriptive information regarding the location of the proposed operation;

2. A general description of the proposed operation;

3. The deadline for the general public to submit written comments, which shall not be less than 30 calendar days after publication of the notice;

4. A designated location where the environmental impact assessment can be reviewed;

5. A contact person from whom additional information can be obtained on the environmental impact assessment; and

6. An address for mailing comments on an assessment to the Department of Environmental Quality.

C. The Department of Environmental Quality shall submit copies of the environmental impact assessment to the chief executive officer of the affected local government, to the executive director of the affected Planning District Commission, and to other state or local agencies requesting a copy of the assessment. State agency comments shall be returned to the Department of Environmental Quality as soon as possible but no later than 50 calendar days after receiving a copy of an assessment from the Department of Environmental Quality.

D. The Department of Environmental Quality may hold a public information hearing on an impact assessment. Such a public hearing, if any, shall be held during the public comment period in the locality in which the operation is proposed. Notice of such a hearing, including the date, time, and location of the meeting, will be announced in a general notice published in the Virginia Register and in a notice mailed, by electronic or postal delivery, to persons on the mailing list.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 4.2, eff. November 3, 1993; amended, Virginia Register Volume 29, Issue 23, eff. August 14, 2013.

9VAC15-20-170 Review of comments

The Director of the Department of Environmental Quality shall review all written state agency, local government, planning district commission, and public comments and any written or oral comments received during any public hearing. Based on the review by the Director of the Department of Environmental Quality of written comments, oral and written comments received at public hearings, and the environmental impact assessment, the Director of the Department of Environmental Quality will prepare and submit a written report of its findings and recommendations to the Director of the Department of Energy. The findings and recommendations of the Director of the Department of Environmental Quality on an assessment will be available for public inspection at the offices of the Department of Environmental Quality.

History

• Statutory Authority: § 45.2-1646 of the Code of Virginia.
• Historical Notes: Derived from VR304-02-01 § 4.3, eff. November 3, 1993; amended, Virginia Register Volume 38, Issue 8, eff. January 5, 2022.

Chapter 40 Small Renewable Energy Projects (Wind) Permit by Rule

Part I Definitions and Applicability

9VAC15-40-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Applicant" means the owner or operator who submits an application to the department for a permit by rule pursuant to this chapter.

"Coastal Avian Protection Zones" or "CAPZ" means the areas designated on the map of "Coastal Avian Protection Zones" generated on the department's Coastal GEMS geospatial data system (9VAC15-40-120 C 1).

"Department" means the Department of Environmental Quality, its director, or the director's designee.

"DCR" means the Department of Conservation and Recreation.

"DGIF" means the Department of Game and Inland Fisheries.

"Disturbance zone" means the area within the site directly impacted by construction and operation of the wind energy project, and within 100 feet of the boundary of the directly impacted area.

"Ecological core" means an area of nonfragmented forest, marsh, dune, or beach of ecological importance that is at least 100 acres in size and identified in DCR's Natural Landscape Assessment web-based application (9VAC15-40-120 C 2).

"Historic resource" means any prehistoric or historic district, site, building, structure, object, or cultural landscape that is included or meets the criteria necessary for inclusion in the Virginia Landmarks Register pursuant to the authorities of § 10.1-2205 of the Code of Virginia and in accordance with 17VAC5-30-40 through 17VAC5-30-70.

"Important Bird Areas" means the designation of discrete sites by the National Audubon Society as having local, regional, continental, or global importance for birds because they support significant numbers of one or more high priority avian species (e.g., T&E, SGCN) during the breeding, wintering, or migration seasons.

"Interconnection facilities" means generation tie lines, collector lines, substations, switching stations, and any other component required to connect an electrical generation facility with the electrical grid.

"Interconnection point" means the point or points where the wind energy project connects to a project substation for transmission to the electrical grid.

"Invasive plant species" means non-native plant species that cause, or are likely to cause, economic or ecological harm or harm to human health as established by Presidential Executive Order 13112 (64 FR 6183, February 3, 1999) and contained on DCR's Invasive Alien Plant Species of Virginia (9VAC15-40-120 B 3).

"Migratory corridors" means major travel routes used by significant numbers of birds during biannual migrations between breeding and wintering grounds.

"Migratory staging areas" means those sites along migratory corridors where significant numbers of birds stop to feed and rest during biannual migrations between breeding and wintering grounds that are essential to successful migration.

"Natural heritage resource" means the habitat of rare, threatened, or endangered plant and animal species, rare or state significant natural communities or geologic sites, and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth.

"Nearshore waters" means all tidal waters within the Commonwealth of Virginia and seaward of the mean low-water shoreline to three nautical miles offshore in the Atlantic Ocean.

"Operator" means the person responsible for the overall operation and management of a wind energy project.

"Other avian mitigation factors" means Important Bird Areas, migratory corridors, migratory staging areas, and wintering areas within the Coastal Avian Protection Zones.

"Owner" means the person who owns all or a portion of a wind energy project.

"Permit by rule" means provisions of the regulations stating that a project or activity is deemed to have a permit if it meets the requirements of the provision.

"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity.

"Phase of a project" means one continuous period of construction, startup, and testing activity of the wind energy project. A phase is deemed complete when 90 calendar days have elapsed since the last previous wind turbine has been placed in service, except when a delay has been caused by a significant force majeure event, in which case a phase is deemed complete when 180 calendar days have elapsed since the last previous wind turbine has been placed in service.

"Post-construction" means any time after the last turbine on the wind energy project or phase of that project has been placed in service.

"Pre-construction" means any time prior to commencing land-clearing operations necessary for the installation of energy-generating structures at the small wind energy project.

"Rated capacity" means the maximum capacity of a wind energy project based on the sum total of each turbine's nameplate capacity.

"SGCN" or "species of greatest conservation need" means any vertebrate species so designated by DGIF as Tier 1 or Tier 2 in the Virginia Wildlife Action Plan (9VAC15-40-120 B 6).

"Site" means the area containing a wind energy project that is under common ownership or operating control. Electrical infrastructure and other appurtenant structures up to the interconnection point shall be considered to be within the site.

"Small renewable energy project" means (i) an electrical generation facility with a rated capacity not exceeding 150 megawatts that generates electricity only from sunlight or wind and its dedicated associated interconnection facilities; (ii) an electrical generation facility with a rated capacity not exceeding 100 megawatts that generates electricity only from falling water, wave motion, tides, or geothermal power and its dedicated associated interconnection facilities; (iii) an electrical generation facility with a rated capacity not exceeding 20 megawatts that generates electricity only from biomass, energy from waste, or municipal solid waste and its dedicated associated interconnection facilities; (iv) an energy storage facility that uses electrochemical cells to convert chemical energy with a rated capacity not exceeding 150 megawatts and its dedicated associated interconnection facilities; or (v) a hybrid project composed of an electrical generation facility that meets the parameters established in clause (i), (ii), or (iii) of this definition and an energy storage facility that meets the parameters established in clause (iv) of this definition.

"Small wind energy project," "wind energy project," or "project" means a small renewable energy project that (i) generates electricity from wind, consisting of one or more wind turbines and other accessory structures and buildings, including substations, post-construction meteorological towers, electrical infrastructure, and other appurtenant structures and facilities within the boundaries of the site and its dedicated associated interconnection facilities; and (ii) is designed for, or capable of, operation at a rated capacity equal to or less than 150 megawatts. Two or more wind energy projects otherwise spatially separated but under common ownership or operational control, which are connected to the electrical grid under a single interconnection agreement, shall be considered a single wind energy project. Nothing in this definition shall imply that a permit by rule is required for the construction of meteorological towers to determine the appropriateness of a site for the development of a wind energy project.

"State-owned submerged lands" means lands that lie seaward of the mean low-water mark in tidal waters or that have an elevation below the ordinary mean high-water elevation in nontidal areas that are considered property of the Commonwealth pursuant to § 28.2-1200 of the Code of Virginia.

"T&E," "state threatened or endangered species," or "state-listed species" means any wildlife species designated as a Virginia endangered or threatened species by DGIF pursuant to §§ 29.1-563 through 29.1-570 of the Code of Virginia and 4VAC15-20-130.

"VLR" means the Virginia Landmarks Register (9VAC15-40-120 B 1).

"VLR-eligible" means those historic resources that meet the criteria necessary for inclusion on the VLR pursuant to 17VAC5-30-40 through 17VAC5-30-70 but are not listed in VLR.

"VLR-listed" means those historic resources that have been listed in the VLR in accordance with the criteria of 17VAC5-30-40 through 17VAC5-30-70.

"VMRC" means the Virginia Marine Resources Commission.

"Wildlife" means wild animals; except, however, that T&E insect species shall only be addressed as part of natural heritage resources and shall not be considered T&E wildlife.

"Wintering areas" means those sites where a significant portion of the rangewide population of one or more avian species overwinter annually.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 33, Issue 20, eff. July 1, 2017; Volume 42, Issue 26, eff. September 9, 2026..

9VAC15-40-20 Authority and applicability

This regulation is issued under authority of Article 5 (§ 10.1-1197.5 et seq.) of Chapter 11.1 of Title 10.1 of the Code of Virginia. The regulation contains requirements for wind-powered electric generation projects consisting of wind turbines and associated facilities with a single interconnection to the electrical grid that are designed for, or capable of, operation at a rated capacity equal to or less than 150 megawatts. The department has determined that a permit by rule is required for small wind energy projects with a rated capacity greater than five megawatts and this regulation contains the permit by rule provisions for these projects in Part II (9VAC15-40-30 et seq.) of this chapter. The department has also determined that a permit by rule is not required for small wind energy projects with a rated capacity of five megawatts or less and this regulation contains notification and other provisions for these projects in Part III (9VAC15-40-130) of this chapter. Projects that meet the criteria in Part III of this chapter are deemed to be covered by the permit by rule.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 33, Issue 20, eff. July 1, 2017.

Part II Permit by Rule Provisions

9VAC15-40-30 Application for permit by rule for wind energy projects

A. The owner or operator of a small wind energy project with a rated capacity greater than five megawatts shall submit to the department a complete application, in which he satisfactorily accomplishes all of the following:

1. In accordance with § 10.1-1197.6 B 1 of the Code of Virginia, and as early in the project development process as practicable, furnishes to the department a notice of intent, to be published in the Virginia Register, that he intends to submit the necessary documentation for a permit by rule for a small renewable energy project;

2. In accordance with § 10.1-1197.6 B 2 of the Code of Virginia, furnishes to the department a certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances;

3. In accordance with § 10.1-1197.6 B 3 of the Code of Virginia, furnishes to the department copies of all interconnection studies undertaken by the regional transmission organization or transmission owner, or both, on behalf of the small renewable energy project;

4. In accordance with § 10.1-1197.6 B 4 of the Code of Virginia, furnishes to the department a copy of the final interconnection agreement between the small renewable energy project and the regional transmission organization or transmission owner indicating that the connection of the small renewable energy project will not cause a reliability problem for the system. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section. When a final interconnection agreement is complete, it shall be provided to the department. The department shall forward a copy of the agreement or study to the State Corporation Commission;

5. In accordance with § 10.1-1197.6 B 5 of the Code of Virginia, furnishes to the department a certification signed by a professional engineer licensed in Virginia that the maximum generation capacity of the small wind energy project, as designed, does not exceed 150 megawatts;

6. In accordance with § 10.1-1197.6 B 6 of the Code of Virginia, furnishes to the department an analysis of potential environmental impacts of the small renewable energy project's operations on attainment of national ambient air quality standards;

7. In accordance with § 10.1-1197.6 B 7 of the Code of Virginia, furnishes to the department, where relevant, an analysis of the beneficial and adverse impacts of the proposed project on natural resources. The owner or operator shall perform the analyses prescribed in 9VAC15-40-40. For wildlife, that analysis shall be based on information on the presence, activity, and migratory behavior of wildlife to be collected at the site for a period of time dictated by the site conditions and biology of the wildlife being studied, not exceeding 12 months;

8. In accordance with § 10.1-1197.6 B 8 of the Code of Virginia, furnishes to the department a mitigation plan pursuant to 9VAC15-40-60 that details reasonable actions to be taken by the owner or operator to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions; provided, however, that the provisions of this subdivision shall only be required if the department determines, pursuant to 9VAC15-40-50, that the information collected pursuant to § 10.1-1197.6 B 7 of the Code of Virginia and 9VAC15-40-40 indicates that significant adverse impacts to wildlife or historic resources are likely. The mitigation plan shall be an addendum to the operating plan of the wind energy project, and the owner or operator shall implement the mitigation plan as deemed complete and adequate by the department. The mitigation plan shall be an enforceable part of the permit by rule;

9. In accordance with § 10.1-1197.6 B 9 of the Code of Virginia, furnishes to the department a certification signed by a professional engineer licensed in Virginia that the project is designed in accordance with 9VAC15-40-80;

10. In accordance with § 10.1-1197.6 B 10 of the Code of Virginia, furnishes to the department an operating plan that includes a description of how the project will be operated in compliance with its mitigation plan, if such a mitigation plan is required pursuant to 9VAC15-40-50;

11. In accordance with § 10.1-1197.6 B 11 of the Code of Virginia, furnishes to the department a detailed site plan meeting the requirements of 9VAC15-40-70;

12. In accordance with § 10.1-1197.6 B 12 of the Code of Virginia, furnishes to the department a certification signed by the applicant that the small wind energy project has applied for or obtained all necessary environmental permits;

13. In accordance with § 10.1-1197.6 H and I of the Code of Virginia, furnishes to the department a certification signed by the applicant that the small wind energy project is being proposed, developed, constructed, or purchased by a person that is not a utility regulated pursuant to Title 56 of the Code of Virginia or provides certification that (i) the project's costs are not recovered from Virginia jurisdictional customers under base rates, a fuel factor charge, or a rate adjustment clause or (ii) the applicant is a utility aggregation cooperative formed under Article 2 (§ 56-231.38 et seq.) of Chapter 9.1 of Title 56 of the Code of Virginia;

14. Prior to authorization of the project and in accordance with §§ 10.1-1197.6 B 13 and B 14 of the Code of Virginia, conducts a 30-day public review and comment period and holds a public meeting pursuant to 9VAC15-40-90. The public meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project; however, for projects located in nearshore waters or on state-owned submerged lands, the meeting shall be held in the locality that is the closest distance from the approximate center of the project's disturbance zone. Following the public meeting and public comment period, the applicant shall prepare a report summarizing the issues raised by the public and include any written comments received and the applicant's response to those comments. The report shall be provided to the department as part of this application; and

15. In accordance with 9VAC15-40-110, furnishes to the department the appropriate fee.

B. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department shall determine, after consultation with other agencies in the Secretariat of Natural and Historic Resources, whether the application is complete and whether it adequately meets the requirements of this chapter, pursuant to § 10.1-1197.7 A of the Code of Virginia.

1. If the department determines that the application meets the requirements of this chapter, then the department shall notify the applicant in writing that he is authorized to construct and operate a small wind energy project pursuant to this chapter.

2. If the department determines that the application does not meet the requirements of this chapter, then the department shall notify the applicant in writing and specify the deficiencies.

3. If the applicant chooses to correct deficiencies in a previously submitted application, the department shall follow the procedures of this subsection and notify the applicant whether the revised application meets the requirements of this chapter within 60 days of receiving the revised application.

4. Any case decision by the department pursuant to this subsection shall be subject to the process and appeal provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010; amended, Virginia Register Volume 33, Issue 20, eff. July 1, 2017; Volume 38, Issue 4, eff. November 10, 2021.

9VAC15-40-40 Analysis of the beneficial and adverse impacts on natural resources

A. Analyses of wildlife. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall conduct pre-construction wildlife analyses. The analyses of wildlife shall include the following:

1. Desktop surveys and maps. The applicant shall obtain a wildlife report and map generated from DGIF's Virginia Fish and Wildlife Information Service web-based application (9VAC15-40-120 C 3) or from a data and mapping system including the most recent data available from DGIF's subscriber-based Wildlife Environmental Review Map Service of the following: (i) known wildlife species and habitat features on the site or within two miles of the boundary of the site; (ii) known bat hibernacula on the site or within five miles of the boundary of the site; (iii) known maternity and bachelor bat colonies on the site or within 12 miles of the boundary of the site; and (iv) known or potential sea turtle nesting beaches located within one mile of the disturbance zone.

2. Breeding bird surveys. If the desktop analyses prescribed in subdivision 1 of this subsection indicate the presence of or habitat for a state-listed T&E bird species or a Tier 1 or Tier 2 bird SGCN within the disturbance zone, then the applicant shall conduct a breeding bird survey to identify state T&E bird species and Tier 1 and Tier 2 bird SGCN occurring within the disturbance zone during the species' annual breeding season.

3. Field survey of nonavian resources. If the desktop analyses prescribed in subdivision 1 of this subsection indicate the presence of or habitat for a Tier 1 or Tier 2 vertebrate SGCN, other than a bird, within the disturbance zone, then the applicant shall conduct field surveys of suitable habitats for that species within the disturbance zone to determine the species' occurrence and relative distribution within the disturbance zone.

4. Raptor migration surveys. The applicant shall conduct one year of raptor migration surveys, in both the spring and fall seasons, to determine the relative abundance of migrant raptors moving through the general vicinity of the disturbance zone.

5. Map and field studies for avian resources in Coastal Avian Protection Zones (CAPZ).

a. The applicant shall consult the "Coastal Avian Protection Zones" map generated on the department's Coastal GEMS geospatial data system (9VAC15-40-120 C 1) and determine whether the proposed wind energy project site will be located in part or in whole within one or more CAPZ.

b. When a proposed wind energy project site will be located in part or in whole within one or more Coastal Avian Protection Zones, then the applicant shall perform avian field studies, or shall rely on existing scientific analysis as reflected on the CAPZ map, for each zone where the project is located, as follows:

(1) Zone 1: Nearshore waters extending 1 - 4.83 km (0.62 - 3 mi) from Virginia's ocean-facing shoreline, excluding the mouth of the Chesapeake Bay. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (migratory Piping Plovers, Wilson's Plovers, Peregrine Falcons, Gull-billed Terns, and Roseate Terns); hemispherically important migratory corridor for shorebirds, seabirds and waterfowl; and hemispherically important migratory staging area and wintering area for seabirds and waterfowl. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources, or rely on existing scientific analysis as reflected on the CAPZ map.

(2) Zone 2: Nearshore waters that extend from Virginia's ocean-facing shoreline out to 1 km (0.62 mi), excluding the mouth of the Chesapeake Bay. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (migratory and breeding Piping Plovers, Wilson's Plovers, Peregrine Falcons and Gull-billed Terns, and migratory Roseate Terns) and hemispherically important migratory corridor, migratory staging area, and wintering area for shorebirds, seabirds and waterfowl. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources or rely on existing scientific analysis as reflected on the CAPZ map.

(3) Zone 3: Barrier island/seaside lagoon system, including a 100 m (328 ft) offshore buffer. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (breeding and migratory Piping Plovers, Wilson's Plovers, Gull-billed Terns, Peregrine Falcons and Bald Eagles) and hemispherically important staging area and wintering area for shorebirds, seabirds, and waterfowl. The applicant shall either perform avian field studies regarding the actual or likely occurrences of these resources or rely on existing scientific analysis as reflected on the CAPZ map.

(4) Zone 4: Southern end of the Delmarva Peninsula (mainland only), including a 10 km long (6.21 mi) strip along the western (bayside) fringe of the peninsula that extends from Wise Point to (and including) Savage Neck. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (migratory Peregrine Falcons and breeding and migratory Bald Eagles), the designation as an Important Bird Area, and hemispherically important migratory staging area for passerines and other landbirds. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources or rely on existing scientific analysis as reflected on the CAPZ map.

(5) Zone 5: Delmarva Peninsula, excluding zones 3 and 4. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (breeding Bald Eagles) and regionally to hemispherically important fall migratory staging area for landbirds. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources or rely on existing scientific analysis as reflected on the CAPZ map.

(6) Zone 6: Southern end and mouth of the Chesapeake Bay, including the waters off of the western shore of the Delmarva Peninsula that extend from Wise Point north to the mouth of Craddock Creek. In this zone, the relevant avian species and other avian mitigation factors are: migratory staging area and wintering area for seabirds and waterfowl that may be of hemispheric importance. The applicant shall conduct aerial transect surveys for waterfowl and seabirds during the fall migration, spring migration, and wintering seasons to determine the distribution, density, and relative abundance of these species within this zone throughout the nonbreeding season.

(7) Zone 7: Lower portions of the James, York, and Rappahannock Rivers and small tributaries along the south side of the lower Potomac River. In this zone, relevant avian species and other avian mitigation factors are: T&E species (breeding Bald Eagles), regionally important fall migratory staging areas and wintering areas for waterfowl, and spring migratory staging areas of unknown significance. The applicant shall conduct aerial transect surveys for waterfowl during the spring migration season to determine the distribution, density, and relative abundance of these species within this zone during the spring season. The applicant shall either perform avian field studies regarding the actual or likely occurrences of breeding Bald Eagles and waterfowl during the fall and winter seasons or rely on existing scientific analysis as reflected on the CAPZ map.

(8) Zone 8: Western portions of the Chesapeake Bay. In this zone, the relevant avian species and other avian mitigation factors are: migratory staging area and wintering area for seabirds and waterfowl of unknown significance. The applicant shall conduct aerial transect surveys for waterfowl and seabirds in the fall migration, spring migration, and wintering seasons to determine the distribution, density, and relative abundance of these species within this zone throughout the nonbreeding season.

(9) Zone 9: Virginia's northeast sector of the Chesapeake Bay, including all nearshore waters, marshes, and islands within Tangier and Pocomoke Sounds and all islands and marshes located along the western fringe of the Delmarva Peninsula from Craddock Creek north to the Virginia/Maryland border. This zone is recognized as a migratory staging area and wintering area for seabirds and waterfowl of unknown significance. The applicant shall conduct aerial transect surveys for waterfowl and seabirds during the fall migration, spring migration, and wintering seasons to determine the distribution, density, and relative abundance of these species within this zone throughout the nonbreeding season. In this zone, additional relevant avian species and other avian mitigation factors are: T&E species (breeding Bald Eagles and Peregrine Falcons) and the designation as an Important Bird Area. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these additional resources or rely on existing scientific analysis as reflected on the CAPZ map.

(10) Zone 10: Upper reaches of the James, Rappahannock, and Potomac Rivers. In this zone the relevant avian species and other avian mitigation factors are T&E species (breeding Bald Eagles and continentally important Bald Eagle concentration areas), the designation as Important Bird Areas, and locally to continentally important waterfowl wintering areas. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources or rely on existing scientific analysis as reflected on the CAPZ map.

(11) Zone 11: Lower reaches of the Mattaponi and Pamunkey tributaries. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (breeding Bald Eagles) and the designation as an Important Bird Area. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources or rely on existing scientific analysis as reflected on the CAPZ map.

(12) Zone 12: Outer fringes of the lower, middle, and northern peninsulas. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (breeding Bald Eagles). The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources or rely on existing scientific analysis as reflected on the CAPZ map.

(13) Zone 13: Interior portions of the lower, middle, and northern peninsulas. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (breeding Bald Eagles, for which little information currently exists in this zone). The applicant shall perform ground surveys for breeding Bald Eagles to determine distribution and abundance of Bald Eagle nests within the disturbance zone and within.25 mile of the perimeter of the disturbance zone.

(14) Zone 14: Back Bay and surrounding private lands. In this zone, the relevant avian species and other avian mitigation factors are: T&E species (breeding Bald Eagles), the designation as Important Bird Area, and locally to continentally important migratory staging area and wintering area for waterfowl. The applicant shall either perform avian field studies regarding the actual or likely occurrence of these resources, or rely on existing scientific analysis as reflected on the CAPZ map.

6. Bat acoustic surveys. The applicant shall conduct bat acoustic surveys to determine the presence of and level of bat activity and use within the disturbance zone.

7. Mist-netting or harp-trapping surveys. If the applicant identifies potential for T&E bat species to occur within the disturbance zone, the applicant shall conduct a season-appropriate mist-netting survey or harp-trapping survey or both.

8. Wildlife report. The applicant shall provide to the department a report summarizing the relevant findings of the desktop and field surveys conducted pursuant to subdivisions 1 through 7 of this subsection, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife resources identified in subdivisions 1 through 7 of this subsection.

B. Analyses of historic resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall also conduct a pre-construction historic resources analysis. The analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archeology and Historic Preservation (9VAC15-40-120 B 2) in the appropriate discipline. The analysis shall include each of the following:

1. Compilation of known historic resources. The applicant shall gather information on known historic resources within the disturbance zone and within five miles of the disturbance zone boundary and present this information on the context map referenced in 9VAC15-40-70 B, or as an overlay to this context map, as well as in tabular format.

2. Architectural survey. The applicant shall conduct a field survey of all architectural resources, including cultural landscapes, 50 years of age or older within the disturbance zone and within 1.5 miles of the disturbance zone boundary and evaluate the eligibility of any identified resource for listing in the VLR; however, for wind energy projects located in nearshore waters, this field study shall include all architectural resources 50 years of age or older within five miles of the disturbance zone boundary, but shall not extend more than 1.5 miles inland from the mean low water mark.

3. Archaeological survey. The applicant shall conduct an archaeological field survey of the disturbance zone and evaluate the eligibility of any identified archaeological site for listing in the VLR; however, the requirements of this subdivision shall not apply to any portion of the disturbance zone located on state-owned submerged lands that are subject to VMRC permitting pursuant to Title 28.2 of the Code of Virginia.

4. Historic resources report. The applicant shall provide to the department a report presenting the findings of the studies and analyses conducted pursuant to subdivisions 1 through 3 of this subsection along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on historic resources identified in subdivisions 1, 2, and 3 of this subsection.

C. Analyses of other natural resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall also conduct pre-construction analyses of the impact of the proposed project on other natural resources, which have not been addressed pursuant to subsection A or B of this section, and as are specified in subdivisions 1 and 2 of this subsection. The analyses shall include:

1. Natural heritage resources. An analysis of the impact of the project on natural heritage resources, which shall include the following:

a. A desktop survey of natural heritage resources within the site and within two miles of the boundary of the site.

b. Field surveys within the disturbance zone mapping: (i) the ecological community groups as classified in accordance with DCR's The Natural Communities of Virginia, Classification of Ecological Community Groups (9VAC15-40-120 B 4); (ii) natural heritage resources to include species and community identification, location, age, size, spatial distribution, and evidence of reproduction; (iii) caves; (iv) mines; (v) rock outcrops; (vi) cliffs; (vii) wetlands; and (viii) invasive plant species.

2. Scenic resources. An analysis of the impact of the project on scenic resources, as follows:

a. Pursuant to 9VAC15-40-70, for the area within the site and within five miles of the boundary of the site, a viewshed analysis of the impact of the proposed project on existing federally designated or state-designated scenic resources, including national parks, national forest-designated scenic areas, state parks, state natural area preserves, national scenic trails, national or state-designated scenic roads, national or state-designated scenic rivers, and those resources identified as potential candidates for such designation in DCR's Virginia Outdoors Plan (9VAC15-40-120 B 5).

b. The applicant shall conduct these analyses and shall show the potential impact of the proposed project on the viewshed from such identified resources, where applicable.

3. Other natural resources report. The applicant shall provide to the department a report, including maps, documenting the results of the analyses conducted pursuant to subdivisions 1 and 2 of this subsection. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on natural resources identified in subdivisions 1 and 2 of this subsection.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

9VAC15-40-50 Determination of likely significant adverse impacts

A. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-40-40 A document that either of the following conditions exists:

1. Bats have been detected, or a hibernaculum exists, within the disturbance zone.

2. State-listed T&E wildlife are found to occur within the disturbance zone; or the disturbance zone is located on or within one mile of a known or potential sea turtle nesting beach.

3. Within the Coastal Avian Protection Zones, the applicant's field studies indicate that significant adverse impacts to avian resources are likely, or the applicant stipulates that existing scientific analysis, as reflected on the CAPZ map, supports a conclusion that significant adverse impacts to avian resources are likely.

B. The department shall find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-40-40 B indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

9VAC15-40-60 Mitigation plan

A. If the department determines that significant adverse impacts to wildlife or historic resources or both are likely, then the applicant shall prepare a mitigation plan. The mitigation plan shall include a description of the affected wildlife or historic resources, or both, and the impact to be mitigated; a description of actions that will be taken to avoid the stated impact; and a plan for implementation. If the impact cannot reasonably be avoided, the plan shall include a description of actions that will be taken to minimize the stated impact and a plan for implementation. If neither avoidance nor minimization is reasonably practicable, the plan shall include a description of other measures that may be taken to offset the stated impact; and a plan for implementation.

B. Mitigation measures for significant adverse impacts to wildlife shall include:

1. For state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts, or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts to resources analyzed pursuant to 9VAC15-40-40 A or 9VAC15-40-40 C 1.

2. For proposed projects where the disturbance zone is located on or within one mile of a known or potential sea turtle nesting beach, the applicant shall take all reasonable measures to avoid significant adverse impacts, or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed mitigation actions are reasonable. Mitigation measures shall include the following:

a. Avoiding construction within likely sea turtle crawl or nesting habitats during the turtle nesting and hatching season (May 20 - October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 - August 31) and one mile beyond the northern and southern reaches of the disturbance zone (hereinafter "sea turtle nest survey zone") between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and non-nesting emergences.

b. If construction is scheduled during the nesting season, then including measures to protect nests and hatchlings found within the sea turtle nest survey zone.

c. Minimizing nighttime construction during the nesting season and designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings.

3. For avian resources within any of the Coastal Avian Protection Zones that are referenced in 9VAC15-40-40 A 5, the applicant shall take all reasonable measures to avoid significant adverse impacts, or shall demonstrate in the mitigation plan what significant adverse impacts cannot be practicably be avoided and why additional proposed mitigation actions are reasonable.

4. For bats, the mitigation plan shall include measures to curtail operation of wind turbines on low wind speed nights when bats are likely to be active within the disturbance zone and to monitor the efficacy of these measures; however, the combined cost of mitigation and post-construction monitoring, in each year after year one, shall not exceed 120 hours of curtailment per year per turbine, averaged. The combined cost of mitigation shall consist of lost revenue from curtailment of wind turbines, including lost production tax credits.

5. Post-construction monitoring shall be designed to achieve the following:

a. Estimate the level of avian and bat fatalities associated with the wind energy project, accounting for scavenger removal and searcher efficiency; however, estimates of avian and bat fatalities shall not be required for areas seaward of the mean low-water shoreline.

b. Investigate the correlation of bat fatalities with project operational protocols, weather-related variables, and the effectiveness of operational adjustments to reduce impacts.

6. Post-construction wildlife mitigation and management shall include the following:

a. Post-construction mitigation. After completing the initial one year of post-construction monitoring, the owner or operator shall submit the first year's monitoring data and a revised mitigation plan detailing the monitoring and mitigation actions expected to be implemented for the remainder of the project's operating life. Such mitigation actions shall be designed to address the impacts revealed by the initial year of post-construction monitoring. One year after the revised mitigation plan is submitted, and annually thereafter, the owner or operator shall submit a report consisting of the results of ongoing monitoring, including data and supporting documents, an explanation of how the mitigation measures reflect results indicated by the monitoring data, and documentation showing expenditures and lost revenues attributable to curtailment, other mitigation actions, and monitoring.

b. Amendment of mitigation plan. After three years of post-construction mitigation efforts, the owner or operator of the project may initiate a consultation with the department to propose amendments to the mitigation plan. The owner or operator shall submit any proposed amendments of the mitigation plan to the department. The department may approve the proposed amendments if the department determines that the proposed amendments will avoid or minimize adverse impacts to a demonstrably equal or greater extent as the mitigation measures being implemented at that time. Alternatively, the department may approve the proposed amendments to the mitigation plan if the owner or operator demonstrates that the mitigation measures being implemented at that time are not effectively avoiding or minimizing adverse impacts, in which case the owner or operator may propose and the department may approve ways of offsetting ongoing adverse impacts, such as funding research or preserving habitats.

C. Mitigation measures for significant adverse impacts to historic resources shall include:

1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized, to the extent practicable, through design of the wind energy project or the installation of vegetative or other screening.

2. If significant adverse impacts to VLR-eligible or VLR-listed architectural resources cannot be avoided or minimized such that impacts are no longer significantly adverse, then the applicant shall develop a reasonable and proportionate mitigation plan that offsets the significantly adverse impacts and has a demonstrable public benefit and benefit for the affected or similar resource.

3. If any identified VLR-eligible or VLR-listed archaeological site can not be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project will be mitigated through archaeological data recovery.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

9VAC15-40-70 Site plan and context map requirements

A. The applicant shall submit a site plan that includes maps showing the physical features, topography, and land cover of the area within the site, both before and after construction of the proposed project. The site plan shall be submitted at a scale sufficient to show, and shall include, the following: (i) the boundaries of the site; (ii) the location, height, and dimensions of all existing and proposed wind turbines, other structures, fencing, and other infrastructure; (iii) the location, grades, and dimensions of all temporary and permanent on-site and access roads from the nearest county or state maintained road; and (iv) water bodies, waterways, wetlands, and drainage channels. For any part of a site that is located in nearshore waters, the site plan shall also include bathymetry; the location and depth of underground cables, transmission lines, and pipelines; navigational channels; and beaches, marshes, and other emergent terrestrial features.

B. The applicant shall submit a context map including the area encompassed by the site and within five miles of the site boundary. The context map shall show state and federal resource lands and other protected areas, Coastal Avian Protection Zones, historic resources, state roads, waterways, locality boundaries, forests, open spaces, and transmission and substation infrastructure. If any part of a site is located in nearshore waters, the context map shall also include bathymetry; navigational channels; commercially licensed fixed fishing devices; permitted aquaculture operations; shellfish leases; public shellfish grounds; artificial reefs; and submerged aquatic vegetation.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

9VAC15-40-80 Small wind energy project design standards

The design and installation of the small wind energy project shall incorporate any requirements of the mitigation plan that pertain to design and installation, if a mitigation plan is required pursuant to 9VAC15-40-50.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

9VAC15-40-90 Public participation

A. Before the initiation of any construction at the small wind energy project, the applicant shall comply with this section. The owner or operator shall first publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation informing the public that he intends to construct and operate a project eligible for a permit by rule. No later than the date of newspaper publication of the initial notice, the owner or operator shall submit to the department a copy of the notice along with electronic copies of all documents that the applicant plans to submit in support of the application. The notice shall include:

1. A brief description of the proposed project and its location, including the approximate dimensions of the site, approximate number of turbines, and approximate maximum blade-tip height;

2. A statement that the purpose of the public participation is to acquaint the public with the technical aspects of the proposed project and how the standards and the requirements of this chapter will be met, to identify issues of concern, to facilitate communication, and to establish a dialogue between the owner or operator and persons who may be affected by the project;

3. Announcement of a 30-day comment period in accordance with subsection C of this section, and the name, telephone number, address, and email address of the applicant who can be contacted by the interested persons to answer questions or to whom comments shall be sent;

4. Announcement of the date, time, and place for a public meeting held in accordance with subsection D of this section; and

5. Location where copies of the documentation to be submitted to the department in support of the permit by rule application will be available for inspection.

B. The owner or operator shall place a copy of the documentation in a location accessible to the public during business hours for the duration of the 30-day comment period in the vicinity of the proposed project.

C. The public shall be provided at least 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin no sooner than 15 days after the applicant initially publishes the notice in the local newspaper.

D. The applicant shall hold a public meeting not earlier than 15 days after the beginning of the 30-day public comment period and no later than seven days before the close of the 30-day comment period. The meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project; however, for projects located in nearshore waters or on state-owned submerged lands, the meeting shall be held in the locality that is the closest distance from the approximate center of the project's disturbance zone.

E. For purposes of this chapter, the applicant and any interested party who submits written comments on the proposal to the applicant during the public comment period or who signs in and provides oral comments at the public meeting shall be deemed to have participated in the proceeding for a permit by rule under this chapter and pursuant to § 10.1-1197.7 B of the Code of Virginia.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

9VAC15-40-100 Change of ownership, project modifications, termination

A. Change of ownership. A permit by rule may be transferred to a new owner or operator if:

1. The current owner or operator notifies the department at least 30 days in advance of the transfer date by submittal of a notice per subdivision 2 of this subsection;

2. The notice shall include a written agreement between the existing and new owner or operator containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

3. The transfer of the permit by rule to the new owner or operator shall be effective on the date specified in the agreement described in subdivision 2 of this subsection.

B. Project modifications. Provided project modifications are in accordance with the requirements of this permit by rule and do not increase the rated capacity of the small wind energy project, the owner or operator of a project authorized under a permit by rule may modify its design or operation or both by furnishing to the department new certificates prepared by a professional engineer, new documentation required under 9VAC15-40-30, and the appropriate fee in accordance with 9VAC15-40-110. The department shall review the received modification submittal in accordance with the provisions of subsection B of 9VAC15-40-30.

C. Permit by rule termination. The department may terminate the permit by rule whenever the department finds that:

1. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter; or

2. After the department has taken enforcement actions pursuant to 9VAC15-40-140, the owner or operator persistently operates the project in significant violation of the project's mitigation plan.

Prior to terminating a permit by rule pursuant to subdivision 1 or 2 of this subsection, the department shall hold an informal fact-finding proceeding pursuant to § 2.2-4019 of the Virginia Administrative Process Act in order to assess whether to continue with termination of the permit by rule or to issue any other appropriate order. If the department determines that it should continue with the termination of the permit by rule, the department shall hold a formal hearing pursuant to § 2.2-4020 of the Virginia Administrative Process Act. Notice of the formal hearing shall be delivered to the owner or operator. Any owner or operator whose permit by rule is terminated by the department shall cease operating his small wind energy project.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

9VAC15-40-110 Fees

A. Purpose. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of fees from any applicant seeking a new permit by rule or a modification to an existing permit by rule for a small wind energy project.

B. Permit fee payment and deposit. Fees for permit by rule applications or modifications shall be paid by the applicant as follows:

1. Due date. All permit application fees or modification fees are due on submittal day of the application or modification package.

2. Method of payment. Fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218. When the department is able to accept electronic payments, payments may be submitted electronically.

3. Incomplete payments. All incomplete payments shall be deemed nonpayments.

4. Late payment. No application or modification submittal will be deemed complete until the department receives proper payment.

C. Fee schedules. Each application for a permit by rule and each application for a modification of a permit by rule is a separate action and shall be assessed a separate fee. The amount of the permit application fee is based on the costs associated with the permitting program required by this chapter. The fee schedules are shown in the following table:

| Type of Action | Fee | | --- | --- | | Permit by rule application (including first three years of operation) | $16,000 | | Permit by rule modification (after first three years of operation) | $5,000 |

D. Use of fees. Fees are assessed for the purpose of defraying the department's costs of administering and enforcing the provisions of this chapter including, but not limited to, permit by rule processing, permit by rule modification processing, and inspection and monitoring of small wind energy projects to ensure compliance with this chapter. Fees collected pursuant to this section shall be used for the administrative and enforcement purposes specified in this section and in § 10.1-1197.6 E of the Code of Virginia.

E. Fund. The fees, received by the department in accordance with this chapter, shall be deposited in the Small Renewable Energy Project Fee Fund.

F. Periodic review of fees. Beginning July 1, 2012, and periodically thereafter, the department shall review the schedule of fees established pursuant to this section to ensure that the total fees collected are sufficient to cover 100% of the department's direct costs associated with use of the fees.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010; amended, Virginia Register Volume 29, Issue 23, eff. August 14, 2013; Volume 31, Issue 21, eff. July 30, 2015.

9VAC15-40-120 Internet accessible resources

A. This chapter refers to resources to be used by applicants in gathering information to be submitted to the department. These resources are available through the Internet; therefore, in order to assist the applicants, the uniform resource locator or Internet address is provided for each of the references listed in this section.

B. Internet available resources.

1. The Virginia Landmarks Register, Virginia Department of Historic Resources, 2801 Kensington Avenue, Richmond, Virginia. Available at the following Internet address: http://www.dhr.virginia.gov.

2. Professional Qualifications Standards, the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, as amended and annotated (48 FR 44716-740, September 29, 1983), National Parks Service, Washington, DC. Available at the following Internet address: http://www.nps.gov/history/local-law/arch_stnds_9.htm.

3. Invasive alien plant species of Virginia, Virginia Department of Conservation and Recreation, Division of Natural Heritage, Richmond, Virginia. Available at the following Internet address: http://www.dcr.virginia.gov.

4. The Natural Communities of Virginia, Classification of Ecological Community Groups, Virginia Department of Conservation and Recreation, Division of Natural Heritage, Richmond, VA. Available at the following Internet address: http://www.dcr.virginia.gov.

5. Virginia Outdoors Plan, Virginia Department of Conservation and Recreation, Richmond, Virginia. Available at the following Internet address: http://www.dcr.virginia.gov.

6. Virginia's Comprehensive Wildlife Conservation Strategy, 2005 (referred to as the Virginia Wildlife Action Plan), Virginia Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, Virginia. Available at the following Internet address: http://www.bewildvirginia.org.

C. Internet applications.

1. Coastal GEMS application, 2010, Virginia Department of Environmental Quality. Available at the following Internet address: http://www.deq.virginia.gov.

NOTE: This website is maintained by the department. Assistance and information may be obtained by contacting Virginia Coastal Zone Management Program, Virginia Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219, (804) 698‑4000.

2. Virginia Natural Landscape Assessment (VaNLA), Virginia Department of Conservation and Recreation. Available at the following Internet address: for detailed information on ecological cores go to http://www.dcr.virginia.gov/natural_heritage. Land maps may be viewed at DCR's Natural Heritage Data Explorer (NHDE) website at https://www.vanhde.org.

NOTE: The NHDE website is maintained by DCR. Actual shapefiles and metadata for publicly-available data on NHDE are available free of charge by contacting a DCR staff person DCR, Division of Natural Heritage, 600 East Main Street, 24th Floor, Richmond, Virginia 23219, (804) 786‑7951.

3. Virginia Fish and Wildlife Information Service, 2010, Virginia Department of Game and Inland Fisheries. Available at the following Internet address: http://www.vafwis.org/fwis/.

NOTE: This website is maintained by DGIF and is accessible to the public as "visitors" or to registered subscribers. Registration, however, is required for access to resource-specific or species-specific locational data and records. Assistance and information may be obtained by contacting DGIF, Fish and Wildlife Information Service, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, (804) 367‑6913.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 34, Issue 13, eff. February 19, 2018.

Part III Notification and Other Provisions for Projects of Five Megawatts or Less

9VAC15-40-130 Small wind energy projects of five megawatts or less

A. The owner or operator of a small wind energy project with a rated capacity equal to or less than 500 kilowatts is not required to submit any notification or certification to the department.

B. The owner or operator of a small wind energy project with a rated capacity greater than 500 kilowatts and equal to or less than five megawatts shall:

1. Notify the department and submit a certification by the governing body of the locality or localities wherein the project will be located that the project complies with all applicable land use ordinances and applicable local government requirements; and

2. For projects located in part or in whole within zones 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map, contribute $1,000 per megawatt of rated capacity, or partial megawatt thereof, to a fund designated by the department in support of scientific research investigating the impacts of projects in CAPZ on avian resources.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Part IV Enforcement

9VAC15-40-140 Enforcement

The department may enforce the provisions of this chapter and any permits by rule authorized under this chapter in accordance with §§ 10.1-1197.9, 10.1-1197.10, and 10.1-1197.11 of the Code of Virginia. In so doing, the department may:

1. Issue directives in accordance with the law;

2. Issue special orders in accordance with the law;

3. Issue emergency special orders in accordance with the law;

4. Seek injunction, mandamus or other appropriate remedy as authorized by the law;

5. Seek civil penalties under the law; or

6. Seek remedies under the law, or under other laws including the common law.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 6, eff. December 22, 2010.

Chapter 60 Small Renewable Energy Projects (Solar) Permit by Rule

Part I Definitions and Applicability

9VAC15-60-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Active cropping including hayland" means annual management of disturbed areas for row crops or cut hay, including at least one row crop harvest or two hay cuttings per year for the lifetime of project. Row crops shall use approved conservation tillage practices.

"Administratively complete application" means an application the department has determined meets the requirements of this chapter.

"Applicant" means the developer, owner, or operator that submits an application to the department for a permit by rule pursuant to this chapter.

"Archive search" means a search of DHR's cultural resource inventory for the presence of previously recorded archaeological sites and for architectural structures and districts.

"Brownfield" means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant as defined in § 10.1-1230 of the Code of Virginia.

"Coastal Avian Protection Zones" or "CAPZ" means the areas designated on the map of "Coastal Avian Protection Zones" generated on the department's Coastal GEMS geospatial data system.

"Commencement of commercial operation" means the date when the project has commenced to generate electricity for sale, excluding the sale of test generation.

"Concentrating photovoltaics" or "CPV" means PV systems with equipment to focus or direct sunlight on the PV cells. For purposes of this chapter, CPV is included in the definition of PV.

"Conservation easement" means a perpetual easement complying with the requirements of 9VAC15-60-60 F.

"Conserved land" means land subject to a conservation easement in accordance with 9VAC15-60-60 F.

"Contiguous forest land" means forest land that is adjoining, including areas separated by (i) any waterbody less than 200 feet in width; (ii) roads, driveways, or impervious surfaces, including compacted gravel, 40 feet or less in width; and (iii) clearings for utilities 200 feet or less in width.

"Department" or "DEQ" means the Department of Environmental Quality, its director, or the director's designee.

"DCR" means the Department of Conservation and Recreation.

"DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard" means the assessment tool used to establish target conditions for pollinator-friendly habitat.

"DHR" means the Department of Historic Resources.

"Disturb" means to act in such a way as to create land disturbance.

"Disturbance zone" means the area within the site directly impacted by land-disturbing activity, including construction and operation of the small solar energy project. For purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, the disturbance zone shall include the panel zones, open areas, and screening zones of the project.

"Document certification" means the statement as prescribed in 9VAC15-60-30 B 2 a, signed by the responsible person and submitted with the application documents or any supplemental information submitted to the department for a PBR.

"DOF" means the Department of Forestry.

"DWR" means the Department of Wildlife Resources.

"Establishment and maintenance of pollinator smart habitat/vegetation" means establishment and maintenance of pollinator smart vegetation in accordance with the DCR/DEQ POLLINATOR–SMART Comprehensive Manual. This shall meet short-term and long-term erosion and sediment control (ESC) standards and may require change of cover type or species mix following initial ESC stabilization. Pollinator habitat shall cover at least 30% of the disturbed area claimed for this credit.

"Forest land" has the same meaning as provided in § 10.1-1178 of the Code of Virginia, except that any parcel shall be considered forest land if it was forested at least two years prior to the department's receipt of a permit application. For the purposes of defining forest land in this context, forest trees shall not be limited to commercial timber trees.

"Forest lands enrolled in a program for forestry preservation" means any forest land enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia, including forest land that has been withdrawn from a forestal district with approval of the local governing body pursuant to § 15.2-4314 of the Code of Virginia as part of the local governing body's approval of the solar project.

"Historic resource" means any prehistoric or historic district, site, building, structure, object, or cultural landscape that is included or meets the criteria necessary for inclusion in the Virginia Landmarks Register pursuant to the authorities of § 10.1-2205 of the Code of Virginia and in accordance with 17VAC5-30-40 through 17VAC5-30-70.

"Integrated PV" means photovoltaics incorporated into building materials, such as shingles.

"Interconnection point" means each point where the solar energy project connects to a project substation for transmission to the electrical grid.

"Land disturbance" or "land-disturbing activity" means a man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, or filling of land.

"Managed grazing" means active grazing by sheep or other livestock for the project lifetime, using appropriate management (e.g., rotational grazing), and maintaining greater than 75% living vegetative cover.

"Megawatt" or "MW" means a measurement of power; 1,000 kilowatts equals one MW.

"Mitigation district" means the following groups of planning districts as defined in § 15.2-4202 of the Code of Virginia: Chesapeake, including the George Washington Regional Commission, Middle Peninsula Planning District Commission, and Northern Neck Planning District Commission; Eastern Shore, including the Accomack-Northampton Planning District Commission; Northern Piedmont, including the Northern Virginia Regional Commission, Rappahannock-Rapidan Regional Commission, and Thomas Jefferson Planning District Commission; Richmond-Hampton Roads, including the Crater Planning District Commission, Hampton Roads Planning District Commission, and Richmond Regional Planning District Commission; Shenandoah Valley, including the Central Shenandoah Planning District Commission and Northern Shenandoah Valley Regional Commission; Southside, including the Commonwealth Regional Council, Region 2000 Local Government Council, Southside Planning District Commission, and West Piedmont Planning District Commission; and Southwest, including the Cumberland Plateau Planning District Commission, Lenowisco Planning District Commission, Mount Rogers Planning District Commission, New River Valley Regional Commission, and Roanoke Valley-Alleghany Regional Commission.

"Mitigation ratio" means the ratio of the area conserved to the area disturbed. For example, a ratio of one to two would require one-half acre conserved for each acre of disturbance.

"Natural heritage resource" means the habitat of rare, threatened, or endangered plant and animal species; rare or state-significant natural communities or geologic sites; and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth as defined in § 10.1-209 of the Code of Virginia.

"Notice of intent" or "NOI" means notification, in a manner acceptable to the department, by an applicant stating intent to submit documentation for a permit under this chapter.

"Open area" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, any area beyond the panel zone within the site boundary of a project.

"Operator" means the person responsible for the overall operation and management of a solar energy project.

"Other solar technologies" means materials or devices or methodologies of producing electricity from sunlight other than PV or CPV.

"Owner" means the person that owns all or has all of a controlling interest in a solar energy project.

"Panel zone" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, the area underneath the solar arrays, including inter-row spacing within a disturbance zone.

"Parking lot" means an improved area, usually divided into individual spaces and covered with pavement or gravel, intended for the parking of motor vehicles.

"Permit by rule," "PBR," or "permit" means provisions of this chapter stating that a project or activity is deemed to have a permit if it meets the requirements of the provision.

"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity.

"Phase I archaeological survey" means systematic identification-level archaeological investigations as described in DHR's Guidelines for Conducting Historic Resources Survey in Virginia (2017) within the project area and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Phase I architectural survey" means comprehensive, reconnaissance-level documentation as described in DHR's Guidelines for Conducting Historic Resources Survey in Virginia (2017) of all standing buildings or structures 50 years of age or older within the project area and surrounding areas with a view to the project and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Photovoltaic" or "PV" means materials and devices that absorb sunlight and convert it directly into electricity by semiconductors.

"Photovoltaic cell" or "PV cell" means a solid state device that converts sunlight directly into electricity. PV cells may be connected together to form PV modules, which in turn may be combined and connected to form PV arrays (often called PV panels).

"Photovoltaic system" or "PV system" means PV cells, which may be connected into one or more PV modules or arrays, including any appurtenant wiring, electric connections, mounting hardware, power-conditioning equipment (inverter), and storage batteries.

"Preconstruction" means any time during related approval processes occurring prior to beginning land-disturbing activities necessary for the installation of energy-generating structures at the small solar energy project.

"Previously disturbed or repurposed areas" means the land area within the property boundary of industrial or commercial properties, including brownfields or previously mined areas. It does not include active or fallow agricultural land or silvicultural land use.

"Prime agricultural soils" means soils recognized as prime farmland by the U.S. Department of Agriculture. Prime agricultural soils are further defined in 7 CFR 657.5(a)(2) (January 1, 2024).

"Project" refers to all aspects of small solar energy facility development, including planning, permitting, construction, commissioning, and decommissioning.

"Rated capacity" means the maximum capacity of a solar energy project based on Photovoltaic USA Test Conditions (PVUSA Test Conditions) rating, measured in MW.

"Responsible person" means (i) for a corporation or limited liability company, a president, secretary, treasurer, or vice-president in charge of a principal business function or any other person that performs similar policy or decision-making functions for the corporation or limited liability company; (ii) for a partnership or sole proprietorship, a general partner or the proprietor, respectively; and (iii) for a local government entity or state, federal, or other public agency, either a principal executive officer or ranking elected official.

"Screening zone" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, a vegetated visual barrier.

"Site" means the area containing a solar energy project that is under common ownership or operating control. Electrical infrastructure and other appurtenant structures up to the interconnection point shall be considered to be within the site.

"Small renewable energy project" means (i) an electrical generation facility with a rated capacity not exceeding 150 MW that generates electricity only from sunlight or wind; (ii) an electrical generation facility with a rated capacity not exceeding 100 MW that generates electricity only from falling water, wave motion, tides, or geothermal power; (iii) an electrical generation facility with a rated capacity not exceeding 20 MW that generates electricity only from biomass, energy from waste, or municipal solid waste; (iv) an energy storage facility that uses electrochemical cells to convert chemical energy with a rated capacity not exceeding 150 MW; or (v) a hybrid project composed of an electrical generation facility that meets the parameters established in clause (i), (ii), or (iii) of this definition and an energy storage facility that meets the parameters established in clause (iv) of this definition.

"Small solar energy project" or "project" means a small renewable energy project that (i) generates electricity from sunlight, consisting of one or more PV systems and other appurtenant structures and facilities within the boundaries of the site and (ii) is designed for, or capable of, operation at a rated capacity equal to or less than 150 MW. Two or more solar energy projects otherwise spatially separated but under common ownership or operational control, which are connected to the electrical grid under a single interconnection agreement, shall be considered a single solar energy project. Nothing in this definition shall imply that a permit by rule is required for the construction of test structures to determine the appropriateness of a site for the development of a solar energy project.

"Threatened and endangered," "T&E," "state threatened or endangered species," or "state-listed species" means (i) any wildlife species designated as a Virginia endangered or threatened species by DWR pursuant to §§ 29.1-563 through 29.1-570 of the Code of Virginia and 4VAC15-20-130 or (ii) any species designated as a Virginia endangered or threatened species by VDACS pursuant to Chapter 10 (§ 3.2-1000 et seq.) of Title 3.2 of the Code of Virginia and 2VAC5-320-10.

"VDACS" means the Virginia Department of Agriculture and Consumer Services.

"Virginia Natural Landscape Assessment Ecological Cores" means large patches of natural land with at least 100 contiguous acres of interior, which begins 100 meters inward from the nearest edge between natural and unnatural land covers identified by the Virginia Natural Landscape Assessment performed by the Virginia Natural Heritage Program within DCR.

"VLR" means the Virginia Landmarks Register.

"VLR-eligible" means those historic resources that meet the criteria necessary for inclusion on the VLR pursuant to 17VAC5-30-40 through 17VAC5-30-70 but are not listed in VLR.

"VLR-listed" means those historic resources that have been listed in the VLR in accordance with the criteria of 17VAC5-30-40 through 17VAC5-30-70.

"Wildlife" means wild animals; except, however, that T&E insect species shall be considered T&E wildlife.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 33, Issue 20, eff. July 1, 2017; Volume 41, Issue 20, eff. June 18, 2025; Volume 42, Issue 26, eff. September 9, 2026; Volume 43, Issue 1, eff. October 8, 2026.

9VAC15-60-20 Applicability

A. The department has determined that a permit by rule is required for small solar energy projects with a rated capacity greater than five MW and a disturbance zone greater than 10 acres, provided that the projects do not otherwise meet the criteria for Part III (9VAC15-60-130) of this chapter. The permit by rule provisions for these projects are contained in Part II (9VAC15-60-30 et seq.) of this chapter.

B. The department has determined that different provisions should apply to projects that meet the criteria as set forth in Part III of this chapter. The requirements, if any, for these projects are contained in Part III of this chapter. Projects that meet the criteria for Part III of this chapter are deemed to be covered by the permit by rule.

C. The department has determined that small renewable energy projects utilizing other solar technologies shall fulfill all of the requirements in 9VAC15-40 as prescribed for small wind energy projects, unless (i) the owner or operator of the proposed project presents to the department information indicating that the other solar technology presents no greater likelihood of significant adverse impacts to natural resources than does PV technology and (ii) the department determines that it is appropriate for the proposed project utilizing the other solar technology to meet the requirements of this chapter or of some modification to either 9VAC15-40 or this chapter, as prescribed by the department for that particular project.

D. No small renewable energy project for which an initial interconnection request application was received and accepted by the regional transmission organization or electric utility by December 31, 2024, shall be subject to the provisions of this chapter relating to analysis of and mitigation for disturbance of prime agricultural soils or forest land.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 33, Issue 20, eff. July 1, 2017; Volume 41, Issue 20, eff. June 18, 2025.

Part II Permit by Rule Provisions

9VAC15-60-30 Application for permit by rule for small solar energy projects with rated capacity greater than five MW and disturbance zone greater than 10 acres

A. The application for a small solar energy project with a rated capacity greater than five MW and a disturbance zone greater than 10 acres, provided that the project does not otherwise meet the criteria for Part III (9VAC15-60-130 ) of this chapter, shall contain all of the following:

1. An NOI to submit the necessary documentation for a PBR, to be published in the Virginia Register of Regulations.

a. The applicant shall submit the NOI in a format approved by the department.

(1) The initial NOI shall be submitted to the department as early in the project development process as practicable, but for all NOIs submitted after June 18, 2025, at least 90 days prior to the start of the public comment period required under 9VAC15-60-90.

(2) For all NOIs submitted after June 18, 2025, the NOI shall be submitted to the chief administrative officer and chief elected official of the locality in which the project is proposed to be located at the same time the NOI is submitted to the department.

b. Any NOI submitted after June 18, 2025, shall expire if no application has been submitted within 48 months from the NOI submittal date, unless the department receives a written request for extension prior to the NOI expiration date. An NOI extension may be granted for an additional 36 months, at which time the NOI shall expire.

c. An applicant seeking changes for a project that results in an increase of MW or acreage shall submit a new NOI using a format approved by the department.

d. The applicant shall notify the department of any change of operator, ownership, or controlling interest for a project within 30 days of the transfer. No additional fee shall be assessed.

(1) The original applicant shall notify the department of the change by withdrawing the initial NOI in a format acceptable to the department.

(2) The new applicant shall submit an NOI in a format acceptable to the department.

(3) The department will not consider the change of operator, ownership, or controlling interest for a project effective until the department receives notification from both the original applicant and the new applicant.

2. A certification by the governing body of any locality wherein the project will be located that the project complies with all applicable land use ordinances. For any certification after June 18, 2025, the certification shall also include a statement of the area of the project enrolled in a forestry preservation program pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia (i.e., classified by the local assessor as forest for use-value assessment).

3. Copies of all interconnection studies undertaken by the regional transmission organization or transmission owner, or both, on behalf of the project.

4. A copy of the final interconnection agreement between the project and the regional transmission organization or transmission owner indicating that the connection of the project will not cause a reliability problem for the system.

a. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section.

b. The final agreement shall be provided to the department within 30 days of the date of execution.

c. The department shall forward a copy of the agreement or study to the State Corporation Commission.

5. A certification signed and stamped by a professional engineer licensed in Virginia that the maximum generation capacity of the project, as designed, does not exceed 150 MW.

6. An analysis of potential environmental impacts of the project's operations on attainment of national ambient air quality standards (42 USC § 7409 as implemented by 9VAC5-30).

7. An analysis of the beneficial and adverse impacts of the proposed project on natural and historic resources pursuant to 9VAC15-60-40. For wildlife, that analysis shall be based on information on the presence, activity, and migratory behavior of wildlife to be collected at the site for a period of time dictated by the site conditions and biology of the wildlife being studied, not exceeding 12 months.

8. A mitigation plan pursuant to 9VAC15-60-60 if a determination of likely significant adverse impacts has been made according to 9VAC15-60-50. The plan shall detail actions necessary to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions.

9. A certification signed and stamped by a professional engineer licensed in Virginia that the project is designed in accordance with 9VAC15-60-80.

10. An operating plan that includes a description of how the project will be operated in compliance with its mitigation plan if such a mitigation plan is required pursuant to 9VAC15-60-50.

11. A detailed site plan and context map meeting the requirements of 9VAC15-60-70.

12. A certification signed by the applicant that the department has been notified that the applicant intends to apply for or has applied for or obtained all necessary environmental permits for the project.

13. A certification signed by the applicant that the project is being proposed, developed, constructed, or purchased by a person that is not a utility regulated pursuant to Title 56 of the Code of Virginia or provides certification that (i) the project's costs are not recovered from Virginia jurisdictional customers under base rates, a fuel factor charge, or a rate adjustment clause or (ii) the applicant is a utility aggregation cooperative formed under Article 2 (§ 56-231.38 et seq.) of Chapter 9.1 of Title 56 of the Code of Virginia.

14. A summary report of the 30-day public review and comment period conducted pursuant to 9VAC15-60-90, including a summary of the issues raised by the public, any written comments received, and the applicant's response to those comments.

15. The appropriate fees pursuant to 9VAC15-60-110, exclusive of in-lieu fees pursuant to 9VAC15-60-60.

B. An applicant seeking a PBR under this part shall submit the following:

1. All items identified in subsection A of this section submitted in a format acceptable to the department and all applicable fees pursuant to 9VAC15-60-110, exclusive of in-lieu fees pursuant to 9VAC15-60-60.

2. A cover letter submitted with the application that contains the following:

a. Document certification signed by a responsible person that contains the following statement:

"I certify under penalty of law that this application document and all attachments were prepared under my direction or supervision in accordance with a system designed to ensure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there may be significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

b. The name and contact information of the responsible person signing the document certification required under subdivision 2 a of this subsection; and

c. The name and contact information of the responsible person to receive the permit authorization.

C. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department will, after consultation with DCR, DHR, DOF, DWR, and VDACS, form a determination that an application is an administratively complete application or incomplete.

1. If the department determines that the application meets the requirements of this chapter, the department will form a determination that an application is an administratively complete application and notify the responsible person in writing that the person is authorized to construct and operate the facility pursuant to this chapter.

a. Any authorization to construct and operate issued after June 18, 2025, shall become invalid if (i) a program of continuous construction or modification is not begun within 60 months from the date the PBR or modification authorization is issued or (ii) a program of construction or modification is discontinued for a period of 24 months or more, except for a department-approved period between phases of a phased construction project. Routine maintenance is not considered a modification of a project.

b. The department may grant an extension on a case-by-case basis.

c. The applicant for any project for which the PBR or modification authorization has been deemed invalid shall submit a new NOI, application documents, and appropriate fees to reactivate authorization.

2. If the department determines that the application does not meet the requirements of this chapter, the department will form a determination that an application is incomplete, notify the applicant in writing, and specify the deficiencies.

3. If the applicant chooses to correct deficiencies in an incomplete application, (i) the applicant shall notify the department within 30 days of an incomplete notification, (ii) the department will follow the procedures of this subsection, and (iii) the department will notify the applicant within 60 days whether the supplemental information meets the requirements of this chapter.

4. If the application was not approved because a proposed mitigation plan was not provided by the applicant as part of the initial application and the department determines there are significant adverse impacts, the applicant shall provide a 45-day public comment period detailing reasonable actions to be taken by the owner or operator to avoid, minimize, or otherwise mitigate such impacts and to measure the efficacy of those actions. The public comment shall follow the procedures set forth in 9VAC15-60-90, except that the public comment period shall be 45 days.

5. The applicant may correct deficiencies in an application by submitting supplemental information, in which case the department will notify the applicant within 60 days whether the supplemental information meets the requirements of this chapter. If the applicant fails to submit necessary supplemental information within 90 days of the date the department provided notice of the deficiencies or within such additional time as the applicant requests and the department approves, the application shall be deemed withdrawn.

6. Any case decision by the department pursuant to this subsection shall be subject to the process and appeal provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 33, Issue 20, eff. July 1, 2017; Volume 38, Issue 4, eff. November 10, 2021; Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-40 Analysis of the beneficial and adverse impacts on natural and historic resources

A. The applicant shall conduct preconstruction wildlife analyses. The analyses of wildlife shall include the following:

1. The applicant shall obtain a wildlife report and map generated from DWR's Virginia Fish and Wildlife Information Service web-based application or from a data and mapping system including the most recent data available from DWR's subscriber-based Wildlife Environmental Review Map Service of the following: (i) known wildlife species and habitat features on the site or within two miles of the boundary of the site, (ii) known or potential sea turtle nesting beaches located within one-half mile of the disturbance zone, and (iii) desktop information for bald eagle nesting locations from the Center for Conservation Biology at the College of William and Mary.

2. The applicant shall consult the "Coastal Avian Protection Zones" map generated on the department's Coastal GEMS geospatial data system and determine whether the proposed project site will be located in part or in whole within one or more CAPZ.

B. The applicant shall perform a preconstruction historic resources analysis conducted by a professional meeting the Secretary of the Interior's Standards for Archeology and Historic Preservation in the appropriate discipline. The analysis shall include each of the following:

1. Information on known historic resources within the disturbance zone and within one-half mile of the disturbance zone boundary identified on the context map referenced in 9VAC15-60-70 B or as an overlay to this context map, as well as in tabular format.

2. A Phase I architectural survey of all architectural resources, including cultural landscapes, 50 years of age or older within the disturbance zone and within one-half mile of the disturbance zone boundary and an evaluation of the potential eligibility of any identified resource for listing in the VLR. The architectural survey area may be refined by the applicant based on an analysis of the project's existing viewshed to exclude areas that have no direct visual association with the project. The applicant shall provide detailed justification for any changes to the survey area.

3. A Phase I archaeological survey of the disturbance zone and an evaluation of the potential eligibility of any identified archaeological site for listing in the VLR. To streamline archaeological investigations, the survey may execute research design that utilizes probability-based sampling guided by predictive modeling. Such a research design shall be approved by DEQ and DHR for use in the project prior to conducting the fieldwork.

C. The applicant shall conduct a preconstruction desktop survey of natural heritage resources and Virginia Natural Landscape Assessment Ecological Cores within the disturbance zone within six months prior to the date of the application submittal. The analyses shall include a report of natural heritage resources using either the DCR online information service order form or the DCR subscriber-based Natural Heritage Data Explorer web application and include the most recent data available of the following:

1. Documented occurrences of natural heritage resources within the disturbance zone;

2. Intersection of the site with predicted suitable habitat (PSH) models developed by DCR for rare, threatened, and endangered species;

3. Intersection of the site with the Virginia Natural Landscape Assessment Ecological Cores; and

4. Onsite surveys for natural heritage resources recommended by DCR based on the analysis required under this subsection.

D. The applicant shall conduct preconstruction mapping of prime agricultural soils on the site. The mapping of prime agricultural soils shall include the following:

1. The applicant shall use the U.S Department of Agriculture Natural Resources Conservation Service Web Soil Survey (Web Soil Survey) to map prime agricultural soils on the site. If the farmland classification of the soil map unit is "All areas are prime farmland," it shall be considered prime agricultural soils.

2. The applicant may propose to the department an alternative map of the prime agricultural soils on the site based on a report prepared by a professional soil scientist licensed by the Commonwealth of Virginia. This report shall include records of soil samples and other documentation proving the boundaries of prime agricultural soils on the site that are inconsistent with the Web Soil Survey.

3. The applicant shall tabulate the total area in acres of prime agricultural soils to be disturbed by the project.

E. The applicant shall conduct preconstruction mapping of forest land on the site. The mapping of forest land shall include the following:

1. All forest land within the boundaries of the site;

2. Areas of the site enrolled in a forestry preservation program pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia (i.e., classified by the local assessor as forest for use-value assessment); and

3. Tabulation of the total area in acres of (i) contiguous forest land to be disturbed by the project and (ii) forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia to be disturbed by the project.

F. The applicant shall provide to the department a report presenting the findings of the studies and analyses conducted pursuant to subsections A, B, C, D, and E of this section, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife, historic resources, natural heritage resources, prime agricultural soils, and forest lands identified by these studies and analyses.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-50 Determination of likely significant adverse impacts

A. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-60-40 A document that any of the following conditions exists:

1. State-listed T&E wildlife are found to occur within the disturbance zone or the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach.

2. The disturbance zone is located in part or in whole within zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the CAPZ map.

B. The department shall find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-60-40 B indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.

C. The department will find that significant adverse impacts to natural heritage resources are likely whenever the analysis prescribed by 9VAC15-60-40 C indicates that impacts to natural heritage resources will occur within the disturbance zone as verified by a site visit. No mitigation will be required solely as a result of predicted suitable habitat (PSH) models.

D. A project shall be deemed to have a significant adverse impact if it would disturb more than 10 acres of prime agricultural soils.

E. A project shall be deemed to have a significant adverse impact if it would disturb more than 50 acres of contiguous forest lands or if it would disturb forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-60 Mitigation plan

A. The applicant shall prepare a mitigation plan for any resource for which a significant adverse impact determination has been made as a result of the analyses pursuant to 9VAC15-60-40. The plan shall detail actions by the applicant to avoid, minimize, or otherwise mitigate such impacts and shall be an enforceable part of the PBR. Mitigation included in a siting agreement and approved by a local governing body pursuant to subsection B of § 15.2-2316.7 of the Code of Virginia or zoning use conditions approved by the locality pursuant to § 15.2-2288.8 of the Code of Virginia may satisfy the mitigation obligations required for the PBR if (i) the local requirements conform to the regulations established by DEQ and (ii) the local requirement is incorporated as a specific condition of the PBR approval.

B. Mitigation measures for significant adverse impacts to wildlife shall include the following:

1. For state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts to resources analyzed pursuant to 9VAC15-60-40 A or C.

2. For proposed projects where the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed mitigation actions are reasonable. Mitigation measures shall include the following:

a. Avoiding construction within likely sea turtle crawl or nesting habitats during the turtle nesting and hatching season (May 20 through October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 through August 31) and one mile beyond the northern and southern reaches of the disturbance zone (sea turtle nest survey zone) between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and nonnesting emergences.

b. If construction is scheduled during the nesting season, including measures to protect nests and hatchlings found within the sea turtle nest survey zone.

c. Minimizing nighttime construction during the nesting season and designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings. Proposed project lighting shall be submitted to DWR and the U.S. Fish and Wildlife Service for approval prior to construction.

3. For projects located in part or in whole within zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the CAPZ map, contribute $1,000 per MW of rated capacity, or partial MW thereof, to a fund designated by the department in support of scientific research investigating or minimizing the impacts of projects in CAPZ on avian resources. Payment of mitigation fee is due at the time of application submittal.

C. Mitigation measures for significant adverse impacts to historic resources shall include the following:

1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized, to the extent practicable, through design of the project or the installation of vegetative or other screening.

2. If significant adverse impacts to VLR-eligible or VLR-listed architectural resources cannot be avoided or minimized such that impacts are no longer significantly adverse, then the applicant shall develop a reasonable and proportionate mitigation plan that offsets the significantly adverse impacts and has a demonstrable public benefit and benefit for the affected or similar resource.

3. If any identified VLR-eligible or VLR-listed archaeological site cannot be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project shall be mitigated through archaeological data recovery approved by DHR and DEQ.

D. Mitigation measures for significant adverse impacts to prime agricultural soils shall include the following:

1. For prime agricultural soils disturbed by the project, the applicant shall provide mitigation by a conservation easement for prime agricultural soils within the mitigation district at a mitigation ratio of one to one.

2. Actions to preserve prime agricultural soils on the project site shall be counted as partial mitigation per Table 1. The applicant may apply different options to different areas of the site, but options may not be combined on the same portion of the site.

| Table 1 Partial Mitigation Options to Preserve Prime Agricultural Soils | | | | --- | --- | --- | | Mitigation Option | Mitigation Actions Required | Mitigation Ratio | | Option 1: No Change in Grade | Areas with no change in grade or topsoil removal, no trenching, maintenance of > 75% living vegetative cover, and decompaction to > 6" after decommissioning. | 1:10 | | Option 2: Preservation of Topsoil | Areas with changes in grade due to cut and fill with removal and return of topsoil, decompaction of topsoil to 6" following installation, maintenance of > 75% living vegetative cover for project lifetime, and decompaction to > 24" and surface soil amendment after decommissioning. | 1:4 | | Option 3: Decompaction of Surface Soil on Cut/Fill Areas | Areas with changes in grade due to cut and fill without topsoil salvage and return, decompaction of surface soil following installation, maintenance of > 75% living vegetative cover for project lifetime, and surface soil decompaction and soil amendment to > 6" after decommissioning. | 1:2 |

Preserving soil on site shall reduce but not eliminate the requirement for an easement or in-lieu fee.

3. Implementation of a plan to maintain any of the following management alternatives in combination with onsite soil mitigation pursuant to subdivision 2 of this subsection shall decrease the required area of off-site conservation easement by 25% of the remaining obligation: managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation, including certification and monitoring in accordance with the DCR/DEQ POLLINATOR–SMART Comprehensive Manual. The plan shall include adequate guarantees that the management alternatives will be maintained during the term of the permit and shall only count areas of the site subject to the management alternative. The plan shall be submitted with the application and approved by the department.

4. If a project is deemed to have a significant adverse impact, that is, disturb more than 10 acres of prime agricultural soils, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 11 acres of prime agricultural soils shall require mitigation for 11 acres, not one acre.

5. When significant adverse impacts affect prime agricultural soils overlain by forest land, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one. For example, disturbance of 11 acres of prime agricultural soils overlain by forest land shall require 11 acres of conserved forest land.

6. An applicant may propose innovative alternatives to the required mitigation , provided that the notice of intent includes a statement that alternative mitigation is being proposed and directs the public where additional information on the alternative mitigation can be found. An example could include restoration of a degraded site to restore the characteristics of prime agricultural soils. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

E. Mitigation measures for significant adverse impacts to forest land shall include the following:

1. For contiguous forest land or forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia disturbed by the project, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one.

2. If a project shall be deemed to have a significant adverse impact, that is, disturb more than 50 acres of contiguous forest land, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 51 acres of contiguous forest land shall require mitigation for 51 acres, not one acre.

3. An applicant may propose innovative alternatives to the required mitigation , provided that the notice of intent includes a statement that alternative mitigation is being proposed and directs the public where additional information on the alternative mitigation can be found. An example could include afforestation of degraded land. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

F. The requirements for any conservation easements required by this section shall include the following:

1. The applicant shall submit with the PBR application a plan to obtain any easements necessary to provide the required mitigation. The plan shall include:

a. Identification of the proposed conserved land, provided the area of conserved land may be increased or decreased subsequent to submission of the plan as needed to meet the mitigation ratios approved with the application;

b. The current use of the proposed conserved land;

c. The identity of the proposed grantor and holder of any easements;

d. A brief description of the agreements with the proposed grantor and holder; and

e. A title report confirming the ownership of the conserved land and the existence of any liens, encumbrances, or restrictions.

2. Closing on any required easements shall occur within one year of the date of issuance of the PBR, unless extended by the department for good cause. Any superior lien shall be subordinated to the easement at closing.

3. The holder of the easement shall be either (i) a holder in accordance with the Virginia Conservation Easement Act (§ 10.1-1009 et seq. of the Code of Virginia) that is accredited by the Land Trust Accreditation Commission or its designated subsidiary entity or (ii) a public body in accordance with the Open-Space Land Act (§ 10.1-1700 et seq. of the Code of Virginia).

4. A conservation easement shall contain a third-party right of enforcement as defined in § 10.1-1009 of the Code of Virginia granted to the department.

5. A conservation easement shall encumber land in the same mitigation district as the area disturbed.

6. No land shall count for purposes of mitigation that is already subject to an easement or deed restriction restricting development. However, land that is restricted by an easement acquired for the purpose of mitigating solar development as part of a banking arrangement or advance purchase and is not applied to support another benefit, such as a tax credit, may be counted for mitigation. Land that is not counted for mitigation may still be included in a conservation easement.

7. Every conservation easement for prime agricultural soils shall allow agricultural activities on the conserved land. Every conservation easement for forest land shall allow silvicultural activities on the conserved land.

8. Conservation easements shall be consistent with this chapter and Department of Forestry guidelines for forest and agriculture conservation.

9. Within 30 days of closing on any easement, the applicant shall submit to the department copies of the easement and related surveys and baseline reports required by the holder.

10. The department shall base its decision on whether the proposed conservation easement complies with the requirements of this subsection on a recommendation from the Department of Forestry. The Department of Forestry shall charge the applicant a reasonable fee to review the proposed easement.

G. As an alternative to providing a conservation easement, an applicant may pay an in-lieu fee calculated as follows:

1. The in-lieu fee for mitigation will be determined by the department by adding the projected administrative costs, including agency staff time, trustee costs, legal fees, due diligence costs, stewardship fees paid to the holder, and other associated fees, to the predicted cost of a perpetual easement necessary to protect the required acreage of land. The predicted cost of a perpetual easement for prime agricultural soil shall be equal to the difference between the average fair market value of agricultural land and the average cropland use value (without risk) for Land Class I and Land Class II in the agricultural statistics district in which the project is located. The predicted cost of a perpetual easement for forest land shall be equal to the difference between the average fair market value of forest land and the average forest use value for good site productivity in the forest inventory analysis survey unit in which the project is located. The department will publish the values for each district annually based on data from the Virginia State Land Evaluation Advisory Council.

2. The Department of Forestry shall serve as the trustee to administer the in-lieu fees in trust with the purpose of acquiring conservation easements consistent with the acreage and location of the mitigation requirements. Notwithstanding the requirements of this subdivision, the trustee shall have discretion to combine fees from different applicants and make the final determination of the acreage and location of conservation easements within the mitigation district where the disturbance occurs.

3. The in-lieu fee shall be paid to the trustee prior to beginning construction as directed by the department at the time of issuance of the PBR. Payment of the in-lieu fee in full shall satisfy the mitigation obligations without waiting for acquisition of easements by the trustee. The trustee shall pay the administrative costs of the department for the in-lieu fee program from the in-lieu fees received.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-70 Site plan and context map requirements

A. The applicant shall submit a site plan that includes maps showing the physical features, topography, and land cover of the area within the site, both before and after construction of the proposed project. The site plan shall be submitted at a scale sufficient for project review, may include multiple pages, and shall include the following:

1. Boundaries of the site, disturbance zone, areas of solar panels, open areas, and screening areas;

2. Prime agricultural soils;

3. Contiguous forest lands and lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia;

4. A tabulation of all the areas enumerated in subdivisions 1, 2, and 3 of this subsection;

5. Location, height, and dimensions of all existing and proposed PV systems, other structures, fencing, and other infrastructure;

6. Location, grades, and dimensions of all temporary and permanent onsite and access roads from the nearest county or state-maintained road;

7. Waterbodies, waterways, wetlands, and drainage channels;

8. Expected types and approximate areas of permanent stormwater management facilities;

9. Location of any cemetery subject to protection from damage pursuant to § 18.2-127 of the Code of Virginia; and

10. Location of any mitigation measures and resources subject to mitigation required pursuant to 9VAC15-60-60, as applicable.

B. The applicant shall submit a context map including the area encompassed by the site and within five miles of the site boundary. The context map shall show state and federal resource lands and other protected areas, Coastal Avian Protection Zones, Chesapeake Bay Resource Protection Areas pursuant to 9VAC25-830-80, historic resources, state roads, waterways, locality boundaries, forests, open spaces, farmland, brownfield sites, and transmission and substation infrastructure.

C. In the event an approved PBR includes mitigation requirements pursuant to 9VAC15-60-60 D, E, or F and the proposed disturbance zone changes from what is shown on the site plan approved with the PBR, the applicant shall submit a final development site plan including tabulation of areas required pursuant to subsection A of this section. The final development site plan shall be submitted to the department along with conservation easements or the in-lieu fees required pursuant to 9VAC15-60-60. Provided the changes were the result of optimizing technical, environmental, and cost considerations and do not materially alter the environmental effects caused by the facility or do not alter any other environmental permits that the Commonwealth requires the applicant to obtain, the final development site plan shall not be deemed a revision of the PBR.

D. The applicant shall submit as-built post-construction site plans to the department within six months after commencement of commercial operation that show the physical features, topography, and land cover of the area within the site. The plans shall contain the following:

1. The boundaries of the site, disturbance zone, open areas, and screening areas;

2. Panel placement;

3. Mitigation required pursuant to 9VAC15-60-60, as applicable; and

4. Location of any avoided cultural resources as a result of project design.

E. All site plans submitted pursuant to this section shall be accompanied by digital files containing the information in a geographic information system (GIS) file format.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-80 Small solar energy project design standards

The design and installation of the small solar energy project shall incorporate any requirements of the mitigation plan that pertain to design and installation if a mitigation plan is required pursuant to 9VAC15-60-50 or 9VAC15-60-60, as applicable.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-90 Public participation

A. The applicant shall conduct a public comment period for public review of all application documents required by 9VAC15-60-30 and include a summary report of the public comment as part of the PBR application. The report shall include documentation of the public comment period and public meeting and include a summary of the issues raised by the public, any written comments received, and the applicant's response to those comments.

B. The applicant shall publish a notice announcing a 30-day comment period. The notice shall be published once a week for two consecutive weeks in a local newspaper of general circulation. The notice shall include the following:

1. A brief description of the proposed project and its location, including the approximate dimensions of the site, approximate number and configuration of PV systems, and approximate maximum height of PV systems;

2. A statement that the purpose of the public participation is to (i) acquaint the public with the technical aspects of the proposed project and how the standards and the requirements of this chapter shall be met, (ii) identify issues of concern, (iii) facilitate communication, and (iv) establish a dialogue between the owner or operator and persons who may be affected by the project;

3. Announcement of a 30-day comment period in accordance with subsection D of this section and the name, telephone number, address, and email address of the applicant who can be contacted by the interested persons to answer questions or to whom comments shall be sent;

4. Announcement of the date, time, and place for a public meeting held in accordance with subsection E of this section; and

5. Location where copies of the documentation to be submitted to the department in support of the permit by rule application shall be available for inspection.

C. The owner or operator shall place a copy of the documentation in a location accessible to the public during business hours for the duration of the 30-day comment period in the vicinity of the proposed project.

D. The public shall be provided at least 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin no sooner than 15 days after the applicant initially publishes the notice in the local newspaper.

E. The applicant shall hold a public meeting not earlier than 15 days after the beginning of the 30-day public comment period and no later than seven days before the close of the 30-day comment period. The meeting shall be held in the locality, or if the project is located in more than one locality, in a place proximate to the location of the proposed project.

F. For purposes of this chapter, the applicant and any interested party who submits written comments on the proposal to the applicant during the public comment period or who signs in and provides oral comments at the public meeting shall be deemed to have participated in the proceeding for a permit by rule under this chapter and pursuant to § 10.1-1197.7 B of the Code of Virginia.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-100 PBR change of ownership, project modifications, and reporting

A. A PBR may be transferred to a new owner or operator through an administrative amendment to the permit. The department will incorporate the administrative changes to the PBR after receipt of the following:

1. Notification of the change in a format acceptable to the department;

2. The notice shall include a written agreement between the existing and the majority or plurality owner or operator containing a specific date for transfer of permit responsibility, coverage, and liability between them;

3. The transfer of the permit by rule to the new owner or operator shall be effective on the date specified in the agreement described in subdivision 2 of this subsection; and

4. Information required for a change of ownership shall be submitted to the department within 30 days of the transfer date.

The department will not consider the change of operator, ownership, or controlling interest for a project to be effective until the department receives notification from both the original applicant and the new applicant.

B. A PBR name may be changed through an administrative amendment to the permit. Notification information shall be submitted in a format acceptable to the department.

C. Modification to an existing PBR, with the exception of administrative changes, shall be in accordance with the provisions of 9VAC15-60-30 B.

1. The applicant shall submit all information, documents, and studies supporting the modification. Information that is unchanged in the existing PBR shall not be submitted.

2. In addition to the information required in subdivision 1 of this subsection, a modification to an existing PBR shall also require a certification from the local government pursuant to 9VAC15-60-30 A 2, a public comment period pursuant to 9VAC15-60-90, and the appropriate fee pursuant to 9VAC15-60-110.

3. Upon receipt of all required documents, the department will review the received modification submittal in accordance with the provisions of 9VAC15-60-30 C.

4. Routine maintenance, including activity necessary to maintain the permitted capacity of the project, is not considered a modification.

D. Recordkeeping and reporting shall be provided as follows:

1. The owner or operator shall furnish notification of the following milestones:

a. The date the project began construction within 30 days after such date;

b. Commencement of commercial operation within 30 days of such date;

c. A map of the project post construction clearly showing panel configuration relative to any required mitigation and incorporating any onsite changes resulting from any onsite construction or significant onsite maintenance that could impact the project mitigation and avoidance plan within 90 days of completion of such work; and

d. For projects that contain mitigation for view shed protection or historic resources, a post-construction demonstration of completed mitigation requirements according to the approved mitigation or landscape plan within 90 days of completion of such work.

2. A copy of the site map clearly showing any resources to be avoided or mitigated shall be maintained on site during construction.

3. Upon request, the owner shall furnish to the department copies of records required to be kept by this permit by rule.

4. Within 30 days of notification, the owner shall provide any information requested by the department.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-110 Fees for projects subject to Part II of this chapter

A. Fees shall be collected for a PBR or a modification to an existing PBR for a project subject to Part II (9VAC15-60-30 et seq.) of this chapter. No fee shall be required for administrative permit changes pursuant to 9VAC15-60-100 A or B.

B. Fees for PBR applications or modifications shall be paid by the applicant as follows:

1. All permit application, modification, or CAPZ mitigation fees, if applicable, are due at the time of application or modification submittal.

2. Fees shall be collected utilizing, where practicable, an online payment system. Until such system is operational, fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218.

a. Fees shall be in United States currency, except that agencies and institutions of the Commonwealth of Virginia may submit interagency transfers for the amount of the fee.

b. The department may provide a means to pay fees electronically. When fees are collected electronically pursuant to this part through credit cards, business transaction costs to the department associated with processing such payments may be assessed.

3. All incomplete payments shall be deemed nonpayments.

4. No PBR application or modification will be deemed complete until the department receives proper payment.

a. Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and calculated on a monthly basis at the applicable periodic rate. A 10% late payment fee shall be charged to any delinquent (over 90 days past due) account.

b. The department is entitled to all remedies available under the Code of Virginia in collecting any past due amount.

C. Each application for a PBR and each modification of a PBR is a separate action and shall be assessed a separate fee. The fee schedules are shown in Table 2.

| Table 2 Fee Schedules | | | --- | --- | | Type of Action | Fee | | PBR application > 5 MW up to and including 25 MW | $8,000 | | PBR application > 25 MW up to and including 50 MW | $10,000 | | PBR application > 50 MW up to and including 75 MW | $12,000 | | PBR application > 75 MW up to and including 150 MW | $14,000 | | PBR modification > 5 MW up to and including 150 MW | $4,000 |

All applicants, unless otherwise specified by the department, shall submit the following information along with the fee payment:

1. Applicant name, address, and daytime telephone number;

2. Responsible person name, address, and daytime telephone number, if different from the applicant;

3. Name of the project and project location;

4. Whether the fee is for a new PBR issuance or permit modification;

5. The amount of fee submitted; and

6. The existing permit number.

D. Fees are assessed for the purpose of defraying the department's costs of administering and enforcing the provisions of this chapter, including PBR processing, PBR modification processing, and inspection and monitoring of projects to ensure compliance with this chapter. Fees collected pursuant to this section shall be used for the administrative and enforcement purposes specified in this chapter and in § 10.1-1197.6 E of the Code of Virginia.

E. The fees received by the department in accordance with this chapter shall be deposited in the Small Renewable Energy Project Fee Fund as specified in § 10.1-1197.6 F of the Code of Virginia.

F. The department shall periodically review the schedule of fees established pursuant to this section to ensure that the total fees collected are sufficient to cover 100% of the department's direct costs associated with use of the fees.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 29, Issue 23, eff. August 14, 2013; Volume 33, Issue 20, eff. July 1, 2017; Volume 41, Issue 20, eff. June 18, 2025.

9VAC15-60-120 Internet accessible resources

A. This chapter refers to resources to be used by applicants in gathering information to be submitted to the department. These resources are available through the Internet; therefore, in order to assist applicants, the uniform resource locator or Internet address is provided for each of the references listed in this section.

B. Internet available resources.

1. The Virginia Landmarks Register, Virginia Department of Historic Resources, 2801 Kensington Avenue, Richmond, Virginia. Available at the following Internet address: https://www.dhr.virginia.gov/programs/historic-registers/.

2. Professional Qualifications Standards, the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, as amended and annotated (48 FR 44716-740, September 29, 1983), National Parks Service, Washington, DC. Available at the following Internet address: https://www.doi.gov/pam/asset-management/historic-preservation/pqs.

3. The Natural Communities of Virginia, Classification of Ecological Community Groups, Virginia Department of Conservation and Recreation, Division of Natural Heritage, 600 East Main Street, 24th Floor, Richmond, Virginia. Available at the following Internet address: https://www.dcr.virginia.gov/natural-heritage/natural-communities/.

4. Virginia's Comprehensive Wildlife Conservation Strategy, 2015 (referred to as the Virginia Wildlife Action Plan), Virginia Department of Wildlife Resources, 7870 Villa Park Drive, Suite 400, Henrico, Virginia. Available at the following Internet address: https://dwr.virginia.gov/wildlife/wildlife-action-plan/wildlife-action-plan-2015/.

C. Internet applications.

1. Coastal GEMS application, Virginia Department of Environmental Quality. Available at the following Internet address: https://www.deq.virginia.gov/water/coastal-zone-management/coastal-mapping/coastal-gems. This website is maintained by the department. Assistance and information may be obtained by contacting Virginia Coastal Zone Management Program, Virginia Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219, (804) 698-4000.

2. Virginia Fish and Wildlife Information Service, Virginia Department of Wildlife Resources. Available at the following Internet address: https://services.dwr.virginia.gov/fwis/. This website is maintained by DWR and is accessible to the public as "visitors," or to registered subscribers. Registration, however, is required for access to resource-specific or species-specific locational data and records. Assistance and information may be obtained by contacting DWR, Fish and Wildlife Information Service, email: vafwis_support@dwr.virginia.gov.

3. DWR Wildlife Environmental Review Map Service (WERMS). Available at the following Internet address: https://dwr.virginia.gov/gis/werms/.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 34, Issue 13, eff. February 19, 2018; Volume 41, Issue 20, eff. June 18, 2025; Errata, 41:24 VA.R. 2530 July 14, 2025; amended, Virginia Register Volume 42, Issue 6, eff. November 3, 2025.

Part III Provisions for Projects Less Than or Equal to Five MW or Less Than or Equal to 10 Acres or Meeting Certain Categorical Criteria

9VAC15-60-130 Small solar energy projects less than or equal to five MW or less than or equal to 10 acres or meeting certain categorical criteria

A. The following projects shall be subject to this section.

1. Projects with a rated capacity greater than one MW and less than or equal to five MW;

2. Projects with a disturbance zone greater than two acres and less than or equal to 10 acres; and

3. Projects located on previously disturbed or repurposed areas with a rated capacity up to and including 150 MW and no impacts to more than two acres of undisturbed land beyond the designated disturbed area. Projects located on a brownfield site shall work with the DEQ Office of Remediation Programs (ORP) to verify the brownfield designation.

B. An applicant seeking a PBR under this part shall submit the following:

1. An NOI in a format approved by the department.

2. A certification by the governing body of any locality wherein the project will be located that the project complies with all applicable land use ordinances.

C. The applicant of a project is not required to submit any notification or certification to the department if the applicant meets at least one of the following criteria:

1. The project has either a rated capacity equal to or less than one MW or a disturbance zone equal to or less than two acres; or

2. The project falls within at least one of the following categories, without regard to the rated capacity or the disturbance zone of the project:

a. The project is mounted on a single-family or duplex private residence.

b. The project is mounted on one or more buildings less than 50 years old, or if 50 years of age or older, have been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

c. The project is mounted over one or more existing parking lots or existing roads and any impacts to undisturbed areas do not exceed an additional two acres.

d. The project utilizes integrated PV only, provided that the building or structure on which the integrated PV materials are used is less than 50 years old, or if 50 years of age or older, has been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

Part IV Enforcement

9VAC15-60-140 Enforcement

A. The department may enforce the provisions of this chapter and any permits by rule authorized under this chapter in accordance with §§ 10.1-1197.9, 10.1-1197.10, and 10.1-1197.11 of the Code of Virginia. In so doing, the department may:

1. Issue directives in accordance with the law;

2. Issue special orders in accordance with the law;

3. Issue emergency special orders in accordance with the law;

4. Seek injunction, mandamus, or other appropriate remedy as authorized by the law;

5. Seek civil penalties under the law; or

6. Seek remedies under the law, or under other laws including the common law.

B. Pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), the department may terminate the permit by rule whenever the department finds that the applicant has:

1. Knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter;

2. Failed to comply with the conditions or commitments stated within the permit by rule application; or

3. Violated the project's mitigation plan.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 21, eff. July 18, 2012; amended, Virginia Register Volume 41, Issue 20, eff. June 18, 2025.

Chapter 70 Small Renewable Energy Projects (Combustion) Permit by Rule

Part II Permit by Rule Provisions for Combustion Energy Projects with Rated Capacity Greater Than Five Megawatts and Not Otherwise Meeting Criteria for Part III

9VAC15-70-30 Application

A. The owner or operator of a combustion energy project with a rated capacity greater than five megawatts, provided that the project does not otherwise meet the criteria for Part III (9VAC15-70-130) of this chapter, shall submit to the department a complete application in which he satisfactorily accomplishes all of the following:

1. In accordance with § 10.1-1197.6 B 1 of the Code of Virginia, and as early in the project development process as practicable, furnishes to the department a notice of intent, to be published in the Virginia Register of Regulations, that he intends to submit the necessary documentation for a permit by rule for a small renewable energy project;

2. In accordance with § 10.1-1197.6 B 2 of the Code of Virginia, furnishes to the department a certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances;

3. In accordance with § 10.1-1197.6 B 3 of the Code of Virginia, furnishes to the department copies of all interconnection studies undertaken by the regional transmission organization or transmission owner, or both, on behalf of the small renewable energy project;

4. In accordance with § 10.1-1197.6 B 4 of the Code of Virginia, furnishes to the department a copy of the final interconnection agreement between the small renewable energy project and the regional transmission organization or transmission owner indicating that the connection of the small renewable energy project will not cause a reliability problem for the system. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section. When a final interconnection agreement is complete, it shall be provided to the department. The department shall forward a copy of the agreement or study to the State Corporation Commission;

5. In accordance with § 10.1-1197.6 B 5 of the Code of Virginia, furnishes to the department a certification signed by a professional engineer licensed in Virginia that the maximum generation capacity of the combustion energy project, as designed, does not exceed 20 megawatts;

6. In accordance with § 10.1-1197.6 B 6 of the Code of Virginia, furnishes to the department an analysis of potential environmental impacts of the small renewable energy project's operations on attainment of national ambient air quality standards;

7. In accordance with § 10.1-1197.6 B 7 of the Code of Virginia, furnishes to the department, where relevant, an analysis of the beneficial and adverse impacts of the proposed project on natural resources. The owner or operator shall perform the analyses prescribed in 9VAC15-70-40. For wildlife, that analysis shall be based on information on the presence, activity, and migratory behavior of wildlife to be collected at the site for a period of time dictated by the site conditions and biology of the wildlife being studied, not exceeding 12 months;

8. In accordance with § 10.1-1197.6 B 8 of the Code of Virginia, furnishes to the department a mitigation plan pursuant to 9VAC15-70-70 that details reasonable actions to be taken by the owner or operator to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions; provided, however, that the provisions of this subdivision shall only be required if the department determines pursuant to 9VAC15-70-50 that the information collected pursuant to § 10.1-1197.6 B 7 of the Code of Virginia and 9VAC15-70-40 indicates that significant adverse impacts to wildlife or historic resources are likely;

9. In accordance with § 10.1-1197.6 B 9 of the Code of Virginia, furnishes to the department a certification signed by a professional engineer licensed in Virginia that the project is designed in accordance with 9VAC15-70-80;

10. In accordance with § 10.1-1197.6 B 10 of the Code of Virginia, furnishes to the department an operating plan describing how any standards established in this chapter applicable to the permit by rule will be achieved;

11. In accordance with § 10.1-1197.6 B 11 of the Code of Virginia, furnishes to the department a detailed site plan meeting the requirements of 9VAC15-70-70;

12. In accordance with § 10.1-1197.6 B 12 of the Code of Virginia, furnishes to the department a certification signed by the applicant that the combustion energy project has applied for or obtained all necessary environmental permits;

13. In accordance with § 10.1-1197.6 H and I of the Code of Virginia, furnishes to the department a certification signed by the applicant that the small combustion energy project is being proposed, developed, constructed, or purchased by a person that is not a utility regulated pursuant to Title 56 of the Code of Virginia or provides certification that (i) the project's costs are not recovered from Virginia jurisdictional customers under base rates, a fuel factor charge, or a rate adjustment clause, or (ii) the applicant is a utility aggregation cooperative formed under Article 2 (§ 56-231.38 et seq.) of Chapter 9.1 of Title 56 of the Code of Virginia;

14. Prior to authorization of the project and in accordance with §§ 10.1-1197.6 B 13 and B 14 of the Code of Virginia, conducts a 30-day public review and comment period and holds a public meeting pursuant to 9VAC15-70-90. The public meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project. Following the public meeting and public comment period, the applicant shall prepare a report summarizing the issues raised by the public and include any written comments received and the applicant's response to those comments. The report shall be provided to the department as part of this application; and

15. In accordance with 9VAC15-70-110, furnishes to the department the appropriate fee.

B. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department shall determine, after consultation with other agencies in the Secretariat of Natural and Historic Resources, whether the application is complete and whether it adequately meets the requirements of this chapter, pursuant to § 10.1-1197.7 A of the Code of Virginia.

1. If the department determines that the application meets the requirements of this chapter, then the department shall notify the applicant in writing that he is authorized to construct and operate a combustion energy project pursuant to this chapter.

2. If the department determines that the application does not meet the requirements of this chapter, then the department shall notify the applicant in writing and specify the deficiencies.

3. If the applicant chooses to correct deficiencies in a previously submitted application, the department shall follow the procedures of this subsection and notify the applicant whether the revised application meets the requirements of this chapter within 60 days of receiving the revised application.

4. Any case decision by the department pursuant to this subsection shall be subject to the process and appeal provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013; amended, Virginia Register Volume 33, Issue 20, eff. July 1, 2017; Volume 38, Issue 4, eff. November 10, 2021.

9VAC15-70-40 Analysis of the beneficial and adverse impacts on natural resources

A. Analyses of wildlife. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall conduct preconstruction wildlife analyses. The analyses of wildlife shall include the following if the disturbance zone exceeds 10 acres and the project does not meet the criteria of 9VAC15-70-130 B 2 a (2):

1. The applicant shall obtain a wildlife report and map generated from DGIF's Virginia Fish and Wildlife Information Service web-based application (9VAC15-70-120 C 3) or from a data and mapping system including the most recent data available from DGIF's subscriber-based Wildlife Environmental Review Map Service of the following: (i) T&E species within the project's disturbance zone; (ii) known wildlife species and habitat features within the project's disturbance zone and within two miles of the boundary of the project's disturbance zone; and (iii) known or potential sea turtle nesting beaches located within one-half mile of the disturbance zone.

2. If the height of the tallest point of the built structures exceeds 200 feet, the applicant shall consult the "Coastal Avian Protection Zones (CAPZ)" map generated on the department's Coastal GEMS geospatial data system (9VAC15-70-120 C 1) and determine whether the proposed combustion energy project disturbance zone will be located in part or in whole within one or more CAPZ.

B. Analyses of historic resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall also conduct a preconstruction historic resources analysis.

1. Desktop survey for projects with rated capacity exceeding five megawatts.The applicant shall perform a desktop survey of known VLR-listed and VLR-eligible historic resources within the project's disturbance zone and within one-half mile of the disturbance zone boundary by means of an archives search of DHR's cultural resource inventory and report in writing the results of the archives search to the department.

2. Architectural (direct impacts) and archaeological surveys if disturbance zone exceeds 10 acres. If the project's disturbance zone exceeds 10 acres and the project does not meet the criteria for 9VAC15-70-130 B 2 a (2), the applicant shall also meet the requirements of this subsection and the prescribed analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archaeology and Historic Preservation (9VAC15-70-120 B 2) in the appropriate discipline. The analysis for this subsection shall include each of the following:

a. Architectural survey (direct impacts). The applicant shall conduct a field survey of all architectural resources, including cultural landscapes, 50 years of age or older, within the disturbance zone and evaluate the eligibility of any identified resource for listing in the VLR.

b. Archaeological survey. The applicant shallconduct an archaeological field survey of the disturbance zone and evaluate the eligibility of any identified archaeological site for listing in the VLR. As an alternative to performing this archaeological survey, the applicant may make a demonstration to the department that the project will not penetrate the subsurface in a manner that would threaten archaeological resources and that any necessary grading of the site prior to construction does not have the potential to adversely impact any archaeological resource.

3. Architectural survey (indirect impacts) if the tallest point of the built structures exceeds 200 feet. If the tallest point of the built structures exceeds 200 feet, the applicant shall also conduct a field survey of all architectural resources, including cultural landscapes, 50 years of age or older, within the one-half mile of the disturbance zone boundary and evaluate the eligibility of any identified resource for listing in the VLR. The prescribed analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archeology and Historic Preservation (9VAC15-70-120 B 2) in the appropriate discipline.

4. Architectural survey (direct impacts) of structures 50 years of age or older. If the project will utilize or demolish existing buildings 50 years of age or older and the project does not meet the criteria for 9VAC15-70-130 B 2 c (2), the applicant shall evaluate the eligibility of any such buildings for listing in the VLR. The prescribed analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archaeology and Historic Preservation (9VAC15-70-120 B 2) in the appropriate discipline.

C. Analyses of other natural resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, and if the project's disturbance zone exceeds 10 acres, the applicant shall also conduct a pre-constructiondesktop survey of natural heritage resources within the disturbance zone.

D. Summary report. The applicant shall provide to the department a report presenting the findings of the applicablestudies and analyses conducted pursuant to subsections A, B, and C of this section, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife and historic resources identified by these studies and analyses.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-50 Determination of likely significant adverse impacts for combustion energy projects with rated capacity greater than five megawatts

A. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-70-40 A document that any of the following conditions exists:

1. State-listed T&E wildlife are found to occur within the disturbance zone;

2. The disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach; or

3. The disturbance zone is located in part or in whole within zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map and the height of the tallest point of the built structures exceeds 200 feet.

B. The department shall find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-70-40 B indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-60 Mitigation plan

A. If the department determines that significant adverse impacts to wildlife or historic resources or both are likely, then the applicant shall prepare a mitigation plan. The mitigation plan shall include a description of the affected wildlife or historic resources, or both, and the impact to be mitigated; a description of actions that will be taken to avoid the stated impact; and a plan for implementation. If the impact cannot reasonably be avoided, the plan shall include a description of actions that will be taken to minimize the stated impact and a plan for implementation. If neither avoidance nor minimization is reasonably practicable, the plan shall include a description of other measures that may be taken to offset the stated impact and a plan for implementation.

B. Mitigation measures for significant adverse impacts to wildlife shall include:

1. For state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts to resources analyzed pursuant to 9VAC15-70-40 A or C.

2. For proposed projects where the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed mitigation actions are reasonable. Mitigation measures shall include the following:

a. Avoiding construction within likely sea turtle crawl or nesting habitats during the turtle nesting and hatching season (May 20 - October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 - August 31) and one mile beyond the northern and southern reaches of the disturbance zone (hereinafter "sea turtle nest survey zone") between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and non-nesting emergences.

b. If construction is scheduled during the nesting season, then including measures to protect nests and hatchlings found within the sea turtle nest survey zone.

c. Minimizing nighttime construction during the nesting season and designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings.

3. For projects located in part or in whole within zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map for which the tallest point of the built structures exceeds 200 feet, contribute $1,000.00 per megawatt of rated capacity, or partial megawatt thereof, to a fund designated by the department in support of scientific research investigating the impacts of projects in CAPZ on avian resources.

C. Mitigation measures for significant adverse impacts to historic resources shall include:

1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized, to the extent practicable, through design of the combustion energy project or the installation of vegetative or other screening.

2. If significant adverse impacts to VLR-eligible or VLR-listed architectural resources cannot be avoided or minimized such that impacts are no longer significantly adverse, then the applicant shall develop a reasonable and proportionate mitigation plan that offsets the significantly adverse impacts and has a demonstrable public benefit and benefit for the affected or similar resource.

3. If any identified VLR-eligible or VLR-listed archaeological site cannot be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project will be mitigated through archaeological data recovery.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-70 Site plan and context map requirements

A. The applicant shall submit a site plan that includes maps showing the physical features, topography, and land cover of the area within the site, both before and after construction of the proposed project. The site plan shall be submitted at a scale sufficient to show and shall include the following: (i) the boundaries of the site; (ii) the location, height, and approximate dimensions of all existing and proposed infrastructure; (iii) the location, grades, and dimensions of all temporary and permanent on-site and access roads from the nearest county or state maintained road; and (iv) water bodies, waterways, wetlands, and drainage channels.

B. If the project's disturbance zone exceeds 10 acres, the applicant shall submit a context map including the area encompassed by the site and within two miles of the site boundary. The context map shall show known state and federal resource lands and other protected areas, Coastal Avian Protection Zones, state roads, waterways, locality boundaries, forests, and open spaces.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-80 Combustion energy project design standards

The design and installation of the combustion energy project shall incorporate any requirements of the mitigation plan that pertain to design and installation, if a mitigation plan is required pursuant to 9VAC15-70-50.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-90 Public participation

A. Before the initiation of any construction at the combustion energy project, the applicant shall comply with this section. The owner or operator shall first publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation informing the public that he intends to construct and operate a project eligible for a permit by rule. No later than the date of newspaper publication of the initial notice, the owner or operator shall submit to the department a copy of the notice along with electronic copies of all documents that the applicant plans to submit in support of the application. The notice shall include:

1. A brief description of the proposed project and its location, including the approximate dimensions of the site, approximate number and configuration of systems, and approximate maximum height of systems;

2. A statement that the purpose of the public participation is to acquaint the public with the technical aspects of the proposed project and how the standards and the requirements of this chapter will be met, to identify issues of concern, to facilitate communication, and to establish a dialogue between the owner or operator and persons who may be affected by the project;

3. Announcement of a 30-day comment period in accordance with subsection C of this section and the name, telephone number, address, and email address of the applicant who can be contacted by the interested persons to answer questions or to whom comments shall be sent;

4. Announcement of the date, time, and place for a public meeting held in accordance with subsection D of this section; and

5. Location where copies of the documentation to be submitted to the department in support of the permit by rule application will be available for inspection.

B. The owner or operator shall place a copy of the documentation in a location accessible to the public during business hours for the duration of the 30-day comment period in the vicinity of the proposed project.

C. The public shall be provided at least 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin no sooner than 15 days after the applicant initially publishes the notice in the local newspaper.

D. The applicant shall hold a public meeting not earlier than 15 days after the beginning of the 30-day public comment period and no later than seven days before the close of the 30-day comment period. The meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project.

E. For purposes of this chapter, the applicant and any interested party who submits written comments on the proposal to the applicant during the public comment period or who signs in and provides oral comments at the public meeting shall be deemed to have participated in the proceeding for a permit by rule under this chapter and pursuant to § 10.1-1197.7 B of the Code of Virginia.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-100 Change of ownership, project modifications, termination

A. Change of ownership. A permit by rule may be transferred to a new owner or operator if:

1. The department receives notification of the change of ownership within 30 days of the transfer; and

2. The notice includes written agreement by the new owner or operator to comply with all requirements of the existing permit by rule and the date on which permit responsibility is transferred to the new owner or operator.

B. Project modifications. Projects subject to Part II of this chapter may be modified as follows:

1. Project modifications that do not increase the project's disturbance zone by more than an additional 10 acres, cause the tallest point of the built structures to exceed 200 feet, or newly involve utilizing or demolishing a building over 50 years of age may occur without notice to the department. No fee will be levied for these modifications.

2. If, however, the project modification involves increasing the disturbance zone by more than 10 additional acres, increasing the height of the tallest point of the built structures so that it now exceeds 200 feet, or newly utilizing or demolishing a building over 50 years of age, the owner or operator shall furnish to the department new certificates prepared by a professional engineer, new documentation required under 9VAC15-70-30, and the appropriate fee in accordance with 9VAC15-70-110. The department shall review the received modification submittal pursuant to this subsection in accordance with the provisions of subsection B of 9VAC15-70-30.

C. Permit by rule termination. The department may terminate the permit by rule whenever the department finds that:

1. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter; or

2. After the department has taken enforcement actions pursuant to 9VAC15-70-140, the owner or operator persistently operates the project in significant violation of the project's mitigation plan.

Prior to terminating a permit by rule pursuant to subdivision 1 or 2 of this subsection, the department shall hold an informal fact-finding proceeding pursuant to § 2.2-4019 of the Virginia Administrative Process Act in order to assess whether to continue with termination of the permit by rule or to issue any other appropriate order. If the department determines that it should continue with the termination of the permit by rule, the department shall hold a formal hearing pursuant to § 2.2-4020 of the Virginia Administrative Process Act. Notice of the formal hearing shall be delivered to the owner or operator. Any owner or operator whose permit by rule is terminated by the department shall cease operating his combustion energy project.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-110 Fees for projects subject to Part II of this chapter

A. Purpose. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of fees from any applicant seeking a new permit by rule or a modification to an existing permit by rule for a combustion energy project subject to Part II (9VAC15-70-30 et seq.) of this chapter.

B. Permit fee payment and deposit. Fees for permit by rule applications or modifications shall be paid by the applicant as follows:

1. Due date. All permit application fees or modification fees are due on submittal day of the application or modification package.

2. Method of payment. Fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218.

3. Incomplete payments. All incomplete payments shall be deemed nonpayments.

4. Late payment. No application or modification submittal will be deemed complete until the department receives proper payment.

C. Fee schedules. Each application for a permit by rule and each application for a modification of a permit by rule is a separate action and shall be assessed a separate fee, except as noted in 9VAC15-70-100 B 1. The amount of the permit application fee is based on the costs associated with the permitting program required by this chapter. The fee schedules are shown in the following table:

| Type of Action | Fee | | --- | --- | | Permit by rule application | $8,000 | | Permit by rule modification | $4,000 |

D. Use of fees. Fees are assessed for the purpose of defraying the department's costs of administering and enforcing the provisions of this chapter including, but not limited to, permit by rule processing, permit by rule modification processing, and inspection and monitoring of combustion energy projects to ensure compliance with this chapter. Fees collected pursuant to this section shall be used for the administrative and enforcement purposes specified in this section and in § 10.1-1197.6 E of the Code of Virginia.

E. Fund. The fees received by the department in accordance with this chapter shall be deposited in the Small Renewable Energy Project Fee Fund.

F. Periodic review of fees. Beginning July 1, 2014, and periodically thereafter, the department shall review the schedule of fees established pursuant to this section to ensure that the total fees collected are sufficient to cover 100% of the department's direct costs associated with use of the fees.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

9VAC15-70-120 Internet accessible resources

A. This chapter refers to resources to be used by applicants in gathering information to be submitted to the department. These resources are available through the Internet; therefore, in order to assist applicants, the uniform resource locator or Internet address is provided for each of the references listed in this section.

B. Internet available resources.

1. The Virginia Landmarks Register, Virginia Department of Historic Resources, 2801 Kensington Avenue, Richmond, Virginia. Available at the following Internet address: http://www.dhr.virginia.gov/registers/register.htm.

2. Professional Qualifications Standards, the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, as amended and annotated (48 FR 44716-740, September 29, 1983), National Parks Service, Washington, DC. Available at the following Internet address: http://www.nps.gov/history/local-law/arch_stnds_9.htm.

3. The Natural Communities of Virginia, Classification of Ecological Community Groups, Virginia Department of Conservation and Recreation, Division of Natural Heritage, Richmond, VA. Available at the following Internet address: http://www.dcr.virginia.gov/natural_heritage/ncintro.shtml.

4. Virginia's Comprehensive Wildlife Conservation Strategy, 2005 (referred to as the Virginia Wildlife Action Plan), Virginia Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, Virginia. Available at the following Internet address: http://www.bewildvirginia.org/wildlifeplan/.

C. Internet applications.

1. Coastal GEMS application, 2010, Virginia Department of Environmental Quality. Available at the following Internet address: https://www.deq.virginia.gov/water/coastal-zone-management/coastal-mapping/coastal-gems.

NOTE: This website is maintained by the department. Assistance and information may be obtained by contacting Virginia Coastal Zone Management Program, Virginia Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219, (804) 698-4000.

2. Natural Landscape Assessment, Virginia Department of Conservation and Recreation. Available at the following Internet address: for detailed information on ecological cores go to http://www.dcr.virginia.gov/natural_heritage/vclnavnla.shtm. Land maps may be viewed at DCR's Land Conservation Data Explorer Geographic Information System website at http://www.vaconservedlands.org/gis.aspx.

NOTE: The website is maintained by DCR. Actual shapefiles and metadata are available for free by contacting a DCR staff person at vaconslands@dcr.virginia.gov or DCR, Division of Natural Heritage, 217 Governor Street, Richmond, Virginia 23219, (804) 786-7951.

3. Virginia Fish and Wildlife Information Service 2010, Virginia Department of Game and Inland Fisheries. Available at the following Internet address: http://www.vafwis.org/fwis/.

NOTE: This website is maintained by DGIF and is accessible to the public as "visitors," or to registered subscribers. Registration, however, is required for access to resource-specific or species-specific locational data and records. Assistance and information may be obtained by contacting DGIF, Fish and Wildlife Information Service, 4010 West Broad Street, Richmond, Virginia 23230, (804) 367-6913.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013; amended, Virginia Register Volume 34, Issue 13, eff. February 19, 2018; Volume 42, Issue 6, eff. November 3, 2025.

Part III Provisions for Projects with Rated Capacity Less Than or Equal to Five Megawatts or Meeting Other Specified Criteria

9VAC15-70-130 Combustion energy projects with rated capacity less than or equal to five megawatts or meeting other specified criteria

A. The owner or operator of a combustion energy project is not required to submit any notification or certification to the department if the combustion energy project has a rated capacity equal to or less than 500 kilowatts.

B. The owner or operator of a combustion energy project shall notify the department and shall submit a certification by the governing body of the locality or localities wherein the project will be located that the project complies with all applicable land use ordinances, if the project meets either of the following criteria:

1. The combustion energy project has a rated capacity greater than 500 kilowatts and less than or equal to five megawatts; or

2. The combustion energy project has a rated capacity greater than five megawatts and meets all of the criteria specified in this subdivision.

a. The combustion energy project has a disturbance zone:

(1) Less than or equal to 10 acres; or

(2) Greater than 10 acres but utilizes existing parking lots, existing roads, or other previously disturbed areas and any impacts to undisturbed areas do not exceed an additional 10 acres;

b. The tallest point of the built structures does not exceed 200 feet; and

c. If utilizing or demolishing existing buildings, utilizes or demolishes existing buildings:

(1) Less than 50 years of age; or

(2) 50 years of age or older that have been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

Part IV Enforcement

9VAC15-70-140 Enforcement

The department may enforce the provisions of this chapter and any permits by rule authorized under this chapter in accordance with §§ 10.1-1197.9, 10.1-1197.10, and 10.1-1197.11 of the Code of Virginia. In so doing, the department may:

1. Issue directives in accordance with the law;

2. Issue special orders in accordance with the law;

3. Issue emergency special orders in accordance with the law;

4. Seek injunction, mandamus or other appropriate remedy as authorized by the law;

5. Seek civil penalties under the law; or

6. Seek remedies under the law, or under other laws including the common law.

History

• Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. August 28, 2013.

Agency 20 Virginia Waste Management Board

Chapter 11 Public Participation Guidelines

Part I Purpose and Definitions

9VAC20-11-10 Purpose

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Virginia Waste Management Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

9VAC20-11-20 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Virginia Waste Management Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

Part II Notification of Interested Personsv

9VAC20-11-30 Notification list

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

9VAC20-11-40 Information to be sent to persons on the notification list

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC20-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

Part III Public Participation Procedures

9VAC20-11-50 Public comment

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009; amended, Virginia Register Volume 35, Issue 7, eff. January 10, 2019.

9VAC20-11-60 Petition for rulemaking

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

9VAC20-11-70 Appointment of regulatory advisory panel

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

9VAC20-11-80 Appointment of negotiated rulemaking panel

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

9VAC20-11-90 Meetings

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

9VAC20-11-100 Public hearings on regulations

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working daysprior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

9VAC20-11-110 Periodic review of regulations

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

History

• Statutory Authority: §§ 2.2-4007.02 and 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 9, eff. February 4, 2009.

Chapter 15 Regulation for Dispute Resolution

Part I Definitions

9VAC20-15-10 Use of terms

A. For the purpose of this chapter and subsequent amendments to it, of regulations of the board, or of orders issued by the board, the words or terms shall have the meanings given them in 9VAC20-15-20.

B. Unless specifically defined in the Virginia Waste Management Act or in the regulations of the board, terms used shall have the meanings commonly ascribed to them.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001.

9VAC20-15-20 Terms defined

"Board" means the Virginia Waste Management Board.

"Conciliation" means a process in which a neutral facilitates settlement by clarifying issues and serving as an intermediary for negotiations in a manner that is generally more informal and less structured than mediation.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or his designee.

"Dispute resolution," "dispute resolution procedure," or "dispute resolution proceeding" means any structured process in which a neutral assists disputants in reaching a voluntary settlement by means of dispute resolution techniques such as mediation, conciliation, early neutral evaluation, nonjudicial settlement conferences, or any other proceeding leading to a voluntary settlement conducted consistent with the requirements of this chapter. The term includes the orientation session.

"Dispute resolution program" means a program that offers dispute resolution services to the public that is run by the Commonwealth or any private for-profit or not-for-profit (including nonprofit) organization, political subdivision, or public corporation, or a combination of these.

"Dispute resolution services" includes screening and intake of disputants, conducting dispute resolution proceedings, drafting agreements, and providing information or referral services.

"Mediation" means a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.

"Mediator" means a neutral who is an impartial third party selected by agreement of the parties to a controversy to assist them in mediation. As used in this chapter, this word may refer to a single person or to two or more people.

"Neutral" means a person who is trained or experienced in conducting dispute resolution proceedings and in providing dispute resolution services. As used in this chapter, this word may refer to a single person or to two or more people.

"Orientation session" means a preliminary meeting during which the dispute resolution proceeding is explained to the parties and the parties and the neutral assess the case and decide whether to continue with a dispute resolution proceeding or adjudication.

"Party" means an interested person who has chosen to be and who is eligible to be a disputant in a dispute resolution proceeding. An interested person is eligible if he (i) has attended a public meeting or public hearing on the permit or regulation in dispute and is therefore named in the public record, (ii) is the applicant for the permit in dispute, or (iii) is the department.

"Person" means an individual, a corporation, a partnership, an association, a government body, a municipal corporation, or any other legal entity.

"Virginia Waste Management Act" means Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Part II General Provisions

9VAC20-15-30 Applicability

A. The provisions of this chapter, unless specified otherwise, shall apply throughout the Commonwealth of Virginia.

B. The provisions of this chapter, unless specified otherwise, shall apply in the administration of all regulations of the board to the extent not covered by a specific regulation of the board. In cases where the provisions of this chapter conflict with another regulation of the board, the provisions of the other regulation shall apply.

C. No provision of this chapter shall limit the power of the board to take appropriate action as necessary to carry out its duties under the Virginia Waste Management Act.

D. By the adoption of this chapter, the board confers upon the director the administrative, enforcement, and decision-making authority articulated in this chapter.

E. Nothing in this chapter shall create or alter any right, action, or cause of action, or be interpreted or applied in a manner inconsistent with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), with applicable federal law, or with any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.

F. For a permit in dispute, dispute resolution may not be initiated after the final permit is issued. For a regulation in dispute, dispute resolution may not be initiated after the final regulation is adopted.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-40 Purpose and scope

A. This chapter shall be construed to encourage the fair, expeditious, voluntary, consensual resolution of disputes. It shall not be construed to preclude collaborative community problem solving.

B. Dispute resolution shall be used to resolve only those disputes that reveal significant issues of disagreement among parties and may be used unless the board decides that it is not in the public interest to do so.

C. The decision to employ dispute resolution is in the board's sole discretion and is not subject to judicial review.

D. The outcome of any dispute resolution procedure shall not be binding upon the board but may be considered by the board in issuing a permit or promulgating a regulation.

E. Dispute resolution may be used to resolve a dispute relating to the promulgation, amendment, or repeal of a regulation that is subject to the public participation process prescribed in Article 2 (§ 2.2-4006 et seq. of the Code of Virginia) of the Administrative Process Act.

F. Dispute resolution may be used to resolve a dispute involving any process relating to the issuance of a permit. Dispute resolution may be used in this case only with the consent and participation of the permit applicant and may be terminated at any time at the request of the permit applicant.

G. The board shall consider not using dispute resolution in the circumstances listed in § 10.1-1186.3 A of the Code of Virginia.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-50 Costs

A. Compensation of the neutral and any other associated common costs, such as rental fees, shall be the responsibility of the parties. Compensation of each party's counsel and other individual costs shall be the responsibility of that party alone, unless the parties agree otherwise.

B. An agreement regarding compensation and other associated costs shall be reached between the neutral and the parties before the dispute resolution procedure commences and shall be memorialized in writing.

C. In the absence of an agreement to the contrary, all costs shall be paid by the parties in equal shares.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-60 Date, time, and place

The dispute resolution procedure shall be conducted in any place within the Commonwealth of Virginia, on any date, and at any time agreeable to the parties and the neutral.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-70 Attendance at the dispute resolution procedure

A. All parties shall attend all sessions of the dispute resolution procedure. Any party who fails to attend any session shall be conclusively deemed to have dropped out of the dispute resolution procedure. A party may satisfy the attendance requirement by sending a representative familiar with the facts of the case. This representative shall have the authority to negotiate and to recommend settlement to the party that he represents.

B. Any party may have the assistance of an attorney or other representative during any session of the dispute resolution procedure.

C. Persons who are not parties or representatives of parties may attend dispute resolution sessions only with the permission of all parties and with the consent of the neutral.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-80 Confidentiality

A. The provisions of § 8.01-576.10 of the Code of Virginia concerning the confidentiality of dispute resolution shall govern all dispute resolution proceedings held pursuant to this chapter except when the board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation. The board shall inform the parties in the order of referral issued under 9VAC20-15-150 what this information is expected to be. If the board later decides that it will need additional information before it can issue the permit or promulgate the regulation, it shall so notify the parties as expeditiously as possible. If any of the information requested by the board would normally be protected by the confidentiality provisions of this section, the parties shall waive that protection when delivering the requested information to the board. Notwithstanding the above, any information qualifying as confidential under the Virginia Waste Management Act shall remain confidential.

B. With the exception noted in subsection A of this section, all memoranda, work products, and other materials contained in the case files of a neutral or dispute resolution program are confidential. Any communication made during dispute resolution that relates to the controversy, including screening, intake, and scheduling a dispute resolution proceeding, whether made to the neutral or dispute resolution program staff, to a party, or to any other person, is confidential. Any party's lack of consent to participate in the dispute resolution process, at any point in the process, is confidential.

C. A written settlement agreement shall not be confidential, unless the parties otherwise agree in writing.

D. Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except:

1. When all parties to the dispute resolution process agree, in writing, to waive the confidentiality;

2. To the extent necessary, in a subsequent action between the neutral or dispute resolution program and a party to the dispute resolution proceeding for damages arising out of the dispute resolution process;

3. Statements, memoranda, materials, and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in the dispute resolution procedure;

4. Where a threat to inflict bodily injury is made;

5. Where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime;

6. Where an ethics complaint is made against the neutral by a party to the dispute resolution proceeding to the extent necessary for the complainant to prove misconduct and the neutral to defend against such complaint;

7. Where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party's legal representative based on conduct occurring during a mediation;

8. Where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-576.12 of the Code of Virginia in a proceeding to vacate a mediated agreement; or

9. As provided by law or rule other than the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

E. The use of attorney work product in dispute resolution shall not result in a waiver of the attorney work product privilege.

F. Unless otherwise specified by the parties, no dispute resolution procedure shall be electronically or stenographically recorded.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-90 Public participation

A. In general, when a dispute has been referred to dispute resolution, the public shall be so notified by a notice placed in the Virginia Register of Regulations. The public also may be notified by any other means deemed appropriate by the board. The notice shall state the nature of the dispute and the name, telephone number, postal address, and email address of the department staff person to whom a member of the public should apply in order to become a party. The notice shall allow for a response time of at least 10 business days following publication.

B. Anyone who is interested in becoming a party in the pending dispute resolution and who meets the eligibility criteria specified in the definition of "party" in 9VAC20-15-20 shall, within the time allotted in the notice, apply to the department staff person listed in the notice. The application shall include the name, telephone number, postal address, and, if applicable, the fax number and email address of the interested person. The application shall also include a brief statement setting forth the factual nature and the extent of the interest of the requester in the dispute.

C. The director shall respond to the application of the interested person in writing, explaining the obligations of a party to dispute resolution concerning attendance and costs. The director shall also request that the interested person submit a dated and signed statement as follows: "I understand that by becoming a party to dispute resolution, I am obligated to abide by Virginia law and regulations concerning dispute resolution and that I incur partial financial responsibility for the dispute resolution procedure."

D. After receiving the signed and dated statement from the interested person as required by subsection C of this section, the director may consider this person a party and proceed accordingly.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 40, Issue 4, eff. October 9, 2023.

9VAC20-15-100 Standards for and authority of neutral

A. A neutral participating in a dispute resolution procedure pursuant to this chapter shall comply with all provisions of this section. A neutral shall indicate compliance by filing with the director a signed, written statement as follows: "I agree to comply with Virginia's statutes and regulations governing dispute resolution, including § 10.1-1186.3 of the Code of Virginia and 9VAC20-15-10 et seq."

B. A neutral acting as a mediator shall adhere to the Judicial Council of Virginia's Standards of Ethics and Professional Responsibility for Certified Mediators, effective July 1, 2011, and the standards and duty provisions of § 8.01-581.24 of the Code of Virginia. A neutral conducting a nonmediation dispute resolution proceeding shall adhere to the requirements of § 8.01-576.9 of the Code of Virginia.

C. If a complaint is made to the director that a neutral has failed to comply with all the provisions of the applicable regulations, laws, and Judicial Council Standards during a dispute resolution proceeding, the director shall notify the neutral of the complaint and shall give the neutral 10 business days to respond in writing. If the director deems the response unsatisfactory, or if no response is made by the deadline, the director shall remove the neutral from the ongoing dispute resolution process. The parties to the terminated dispute resolution procedure shall decide whether to continue in the same dispute resolution procedure with a new neutral, to begin a new dispute resolution procedure, or to forego further dispute resolution.

D. The recommendation of a neutral is not a case decision as defined in § 2.2-4001 of the Administrative Process Act and therefore may not be appealed.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-110 Resumes of neutrals and descriptions of dispute resolution programs

The department may maintain a file containing the resumes of neutrals and descriptions of dispute resolution programs. The file shall contain a disclaimer stating, "Inclusion of a resume or dispute resolution program description in this file does not constitute an endorsement of a neutral or a dispute resolution program, nor should negative implications be drawn from the fact that a neutral's resume or a dispute resolution program description is not included in this file. Parties are not obligated to choose a neutral or dispute resolution program from those whose resumes and descriptions are maintained in this file."

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-120 Enforcement of written settlement agreement

The board may incorporate the terms of the written settlement agreement into decisions pertinent to the case.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001.

9VAC20-15-130 Referral of disputes to dispute resolution

A. The board, consistent with the provisions of 9VAC20-15-40 G, may refer a dispute to dispute resolution.

B. A party other than the board may request dispute resolution by applying to the director.

1. The application shall contain the following:

a. A request for dispute resolution, specifying mediation or another dispute resolution procedure;

b. The names, postal addresses, telephone numbers, fax numbers, email addresses, or other appropriate communication addresses or numbers of all known parties to the dispute and of their attorneys, if known; and

c. A statement of issues and a summary of the basis for the dispute.

2. Filing an application constitutes consent to referral of the dispute to dispute resolution.

3. Filing an application shall not stay any proceeding and shall have no effect on any procedural or substantive right of any party to the dispute.

4. Under normal circumstances, within 14 business days of the receipt of an application from a party requesting dispute resolution, the director shall review the application to determine if the dispute is suitable for dispute resolution, shall decide which form of dispute resolution is appropriate, and shall notify the parties in writing accordingly.

5. If the director has decided that mediation is appropriate, the provisions of Part III (9VAC20-15-140 et seq.) of this chapter shall apply.

6. If the director has decided that a dispute resolution proceeding other than mediation is appropriate, the director shall specify what that proceeding is.

The appointment of the neutral for this proceeding shall follow the procedure for the appointment of a mediator as specified in 9VAC20-15-140. The parties and the neutral shall determine the appropriate procedures for conducting this dispute resolution proceeding.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Part III Mediation Procedures

9VAC20-15-140 Appointment of mediator

A. If the director has decided that mediation is appropriate, any party may nominate a mediator.

B. If all parties agree with the nomination, the director shall appoint that person the mediator for the case and shall notify the parties accordingly.

C. If all parties do not agree with the nomination, the following procedure shall apply:

1. By a date specified by the director, each party shall name up to three mediators who would be acceptable to that party. These mediators may or may not have resumes on file with the department.

2. The director shall compile a list of the names submitted and send it to the parties.

3. Upon receipt of the list, each party may strike two names and return the list to the director within 14 business days following the date on which the list was mailed.

4. On the next business day after the 14-day period expires or as soon as practicable thereafter, the director shall appoint a mediator from the remaining list of names and shall notify the parties accordingly.

D. Once the mediator is appointed, the director shall send the mediator an acceptance form to sign and return. The acceptance form shall require the mediator to append his signature to the following statements:

1. That the mediator agrees to abide by the applicable dispute resolution and mediation statutes, regulations, and ethical standards;

2. That the mediator agrees to attempt to complete the mediation within 60 business days from the date of his appointment; and

3. That the mediator foresees no potential conflict of interest in agreeing to mediate the case. A determination of conflict of interest shall be made by the director or board on a case-by-case basis.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-150 Orientation session

A. Once the mediator has been appointed, the board shall issue a referral to the mediator and the parties. This referral shall include a list of the information that the board, in its preliminary judgment, expects to use in making its final decision regarding the case. This list shall contain the caveat that the board may require other information as yet unspecified at some point in the future. All parties shall attend one orientation session with the mediator unless excused pursuant to subsection B of this section.

B. The board shall excuse a party from participation in the orientation session if, within 14 business days after issuance of the order of referral, a statement signed by the party is filed with the board. This statement shall declare that the mediation process has been explained to the party and that the party does not wish to participate in the orientation session.

C. The orientation session shall be conducted at any place within the Commonwealth of Virginia, at any time, and on any date convenient to the mediator and the parties.

D. At least seven business days before the orientation session, each party shall provide the mediator with a statement outlining his perspective on the facts and issues of the case. At the discretion of the mediator, these statements may be mutually exchanged by the parties.

E. During the orientation session, the parties, assisted by the mediator, shall determine the manner in which the issues in dispute shall be framed and addressed. In the absence of agreement by the parties, the mediator shall make this determination.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Statutory AuthorityDerived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC20-15-160 Continuation, termination, and resolution of mediation

A. Following the orientation session, mediation shall proceed in any manner agreed on by the parties and the mediator in conformance with the provisions of 9VAC20-15-50 through 9VAC20-15-80.

B. Mediation may be terminated through written notice by the permit applicant or the director at any time before settlement is reached.

C. Mediation shall continue if a party other than the permit applicant or the director chooses to opt out of mediation following the orientation session. A party who chooses to opt out of mediation at any time following the orientation session or who, through nonattendance, is conclusively deemed to have dropped out of the dispute resolution procedure shall not be bound by any written settlement agreement resulting from the mediation but shall be bound by the cost provisions of 9VAC20-15-50 and the confidentiality provisions of 9VAC20-15-80.

D. If the mediation is terminated before settlement is reached, the parties shall resume the same status as before mediation and may proceed with the formal adjudication as if mediation had not taken place. The board shall not refer the case to mediation a second time.

E. If the mediation results in settlement, a written settlement agreement shall be signed and dated by each party or by that party's authorized representative.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Chapter 20 Schedule of Fees for Hazardous Waste Facility Site Certification

Article 1 Purpose and Authority

9VAC20-20-10 [Reserved]. (Reserved)

9VAC20-20-20 Purpose of chapter

Section 10.1-1434 B 6 of the Code of Virginia authorizes the board to "adopt a schedule of fees to charge applicants and to collect such fees for the cost of processing applications and site certifications." This chapter establishes an application fee and guidelines for its collection.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 1.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-20-30 [Reserved]. (Reserved)

Article 2 Definitions

9VAC20-20-40 Definitions

Article 2 Definitions

Section 10.1-1433 of the Code of Virginia defines several words and terms used in this chapter.

Unless the context clearly indicates otherwise, those words and terms will have the same meaning when used in this chapter. In addition, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise:

"Act" means §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

"Application fee" means the average estimated cost of processing an application for certification of site approval. Such costs include photocopying, mailing, print and broadcast media notices, travel expenses (transportation, meals, and lodging) for members of the board and additional personnel, production of transcripts, meeting room rental, compensation for members of the board and all other administrative costs associated with the processing of an application for site certification. Staff time is not included.

"Board" means the Virginia Waste Management Board.

"Category I facilities" means containerized or enclosed storage of hazardous waste.

"Category II facilities" means a closed treatment process with spill containment.

"Category III facilities" means an open treatment process with spill containment.

"Category IV facilities" means above-ground treatment process with no spill containment.

"Category V facilities" means disposal without complete treatment and all other treatment/disposal methods.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 1.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-20-50 Applicability of fees

Any person applying for a certification of site approval is subject to the regulations regarding payment of fees.

History

• Statutory Authority: §§ 10.1-1402.1 and 10.1-1433 et seq. of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 2.1, eff. April 30, 1986.

9VAC20-20-60 Waiver of fees

A. The board may, in its discretion, waive all or part of the fees if it determines that the public interest is served thereby due to special circumstances.

B. In the event an applicant believes he should be entitled to a waiver of fees, the applicant should request the waiver in writing to the board. The request may be made anytime after the applicant submits the final impact analysis, but no later than the date the application for certification of site approval is due.

C. The request for waiver of fees shall be sent to the board by registered mail or by other means requiring a receipt of delivery and shall contain at a minimum the following information:

1. The name and address of the applicant;

2. The location of the facility and a brief description of its operation;

3. A brief description of the nature and extent of the construction to be done;

4. A discussion of the reasons a waiver of all or part of the fees as appropriate, with particular focus on how the public interest will be served by a waiver; and

5. Any additional information or documentation the applicant believes will be helpful.

D. The board will consider the request for a waiver of fees at its next regularly scheduled meeting. The applicant requesting waiver may attend the meeting and make a presentation.

E. Within 30 days of the meeting at which the request for waiver is considered, the board will determine whether it will waive the fee requirement, and will notify the applicant in writing of its decision.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 2.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-20-70 Application fee

A. The application fee shall accompany the application for certification for site approval. The application fee for Category I facilities will be $10,000 or equal to 1.0% of the estimated construction cost, whichever is greater, but not to exceed $20,000.

B. The amount of the application fee shall be $20,000 for Category II-V facilities.

History

• Statutory Authority: §§ 10.1-1402.1 and 10.1-1433 et seq. of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 3.1, eff. April 30, 1986.

9VAC20-20-80 Review of costs

The director will review annually the costs upon which the application fee is based. The director may recommend adjustment of the fees to the board to reflect the changes in costs.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 3.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-20-90 Payment of fee

The application fee is due when the applicant submits the application for certification of site approval. At the time the application fee is due, the applicant must have paid all expenses for which he is responsible according to §§ 10.1-1433 et seq. of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1402.1 and 10.1-1433 et seq. of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 4.1, eff. April 30, 1986.

9VAC20-20-100 Acknowledgement of receipt of fee

The director shall promptly acknowledge by certified mail, or by other means requiring a receipt of delivery, the receipt of an application for certification of site approval with payment of application fee. Notice to the applicant of receipt of the fee payment should not be construed as any comment on the completeness of the application.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 4.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-20-110 Manner of payment

Fees shall be paid by check, draft or postal money order made payable to "Treasurer of Virginia" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218. When the department is able to accept electronic payments, payments may be submitted electronically.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 4.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-20-120 Effect of failure to pay fee

No application will be deemed complete until proper payment is received by the board.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 4.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Part V Refunds

9VAC20-20-130 Refunds

The board may refund all or part of the fee in the event of a termination of the application process prior to the board's final decision on certification of site approval if the board determines that, as a result of cause by federal or state government action, the applicant is unable to complete the site certification—application process—despite his good faith.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 5.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-20-140 Request for refund

An applicant desiring such a refund must make the request in writing to the board within 30 days of the federal or state government action making the applicant unable to complete the site certification process. The request shall be sent by certified mail and shall, at a minimum, contain the following information:

1. Name and address of the applicant;

2. Location of the proposed facility and a brief description of its operation;

3. A copy of the document containing the federal or state government action making completion of the site certification process impossible or impracticable for the applicant despite the applicant's good faith, or if a copy of such document cannot be obtained, a complete description of the government action; and

4. A comprehensive discussion of the way in which the government's action has resulted in the applicant's good faith inability to complete the site certification process, with supporting documentation, if any.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 5.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-20-150 Decision on refund

At its next regularly scheduled meeting, the board will consider the request for refund. The applicant may attend and make a presentation to the board as well as answer any questions members of the board may have.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-02 § 5.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Part VI Delegations

9VAC20-20-160 Delegations

The director may perform any act of the board provided under this chapter, except as limited by §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1434 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Chapter 30 Technical Assistance Fund Administrative Procedures

Article 1 Purpose and Authority

9VAC20-30-10 [Reserved]

Article 1 Purpose and Authority

9VAC20-30-20 Purpose of chapter

Section 10.1-1433 et seq. of the Code of Virginia, makes available to the governing body of a host community a reasonable sum from the technical assistance fund. This chapter establishes procedures for obtaining funds and guidelines for their use.

History

• Statutory Authority: §§ 10.1-1401 et seq. and 10.1-1433 et seq. of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 1.2, eff. April 30, 1986.

Article 2 Definitions

9VAC20-30-30 Definitions

Article 2 Definitions

Article 6 (§ 10.1-1433 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia defines several words and terms which are used in this chapter. Unless the context clearly indicates otherwise, those words and terms will have the same meaning when used in this chapter. In addition, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Act" means §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

"Board" means the Virginia Waste Management Board.

"Department" means the Virginia Department of Environmental Quality.

"Technical assistance" means aid which enable the governing body of the host community to better understand and assist the environmental, economic, and social impact of a hazardous waste facility at a particular site. "Technical assistance" does not include legal services or services of a negotiator as such.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 1.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-30-40 Technical assistance fund

Money from the technical assistance fund, established by § 10.1-1448 of the Code of Virginia, shall be available to each host community. This money may be used only to provide the governing body of the host community with technical assistance, as defined elsewhere in this chapter. Funds will not be made available when the local government is the applicant or when an applicant represents the host community.

History

• Statutory Authority: §§ 10.1-1401 et seq. and 10.1-1433 et seq. of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 2.1, eff. April 30, 1986.

9VAC20-30-50 Amount of allocation

The board shall make available to the host community up to $50,000 per proposed facility.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 2.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Part III Application for Funds

9VAC20-30-60 Time frame

At any time between receipt of the notice of intent and the due date of the report of the governing body on the siting agreement negotiations, the host community may request an allocation from the technical assistance fund.

History

• Statutory Authority: §§ 10.1-1401 et seq. and 10.1-1433 et seq. of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 3.1, eff. April 30, 1986.

9VAC20-30-70 Form and manner of request for allocation

The host community's request for an allocation from the technical assistance fund shall be adopted by the governing body. The request shall be sent to the board by registered mail or by other means requiring receipt for delivery.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 3.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-30-80 Content of request

A. The board shall evaluate the request for funding within 30 days of receipt of the request. The board shall notify the host community of the date, time, and location of the meeting to consider the request. A representative of the host community may make an oral presentation at the meeting.

B. The request must contain the following information:

1. A cover letter providing background information and a brief summary of the request;

2. A detailed breakdown of the manner in which the funds are to be spent;

3. A description of the technical assistance desired and the reasons it is necessary, including complexity or uniqueness of local government needs with respect to the proposed facility and staff requirements;

4. A detailed breakdown of each aspect of the technical assistance desired and the cost for each aspect; and

5. Any other relevant information or supporting documents the host community wishes to include.

C. Within 30 days of the meeting described in this section, the board shall determine what funds, if any, shall be distributed to the host community for technical assistance.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 3.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-30-90 Contract

Upon approval of the request, the director shall promptly send to the host community a contract based on the model provided in Appendix I for the distribution of funds to localities. The contract must be approved and executed by the governing body of the host community and returned to the board.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 3.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Part IV Accountability

9VAC20-30-100 Unused moneys

Any money awarded to a host community from the technical assistance fund which is not spent shall be returned to the board within 60 days of the date of completed contract work.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 4.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-30-110 Accounting of moneys spent

Within 60 days of the date of the completed contract work, the governing body of the host community shall provide the board with a certified accounting statement of all moneys expended from the technical assistance fund.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 4.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-30-120 Misused moneys

In the event the board learns that moneys awarded to a host community from the technical assistance fund have not been spent on technical assistance, the board shall take any action it deems necessary to recover the misused moneys.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-3 § 4.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Part V Delegations

9VAC20-30-130 Delegations

The director may perform any act of the board provided under this chapter, except as limited by §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1438 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Chapter 40 Administrative Procedures for Hazardous Waste Facility Site Certification

Article 1 Purpose and Authority

9VAC20-40-10 [Reserved]

Article 1 Purpose and Authority

9VAC20-40-20 Purpose of chapter

Article 6 (§ 10.1-1433 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia contains a detailed description of the process and procedures for a certification of site suitability. This chapter is designed to amplify and supplement the statutes where appropriate. This chapter together with the statute establish administrative procedures for the submission and evaluation of applications for certification of hazardous waste facility sites

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 1.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

9VAC20-40-30 [Reserved]. (Reserved)

Article 2 Definitions

9VAC20-40-40 Definitions

Article 2 Definitions

Section 10.1-1433 of the Code of Virginia defines several words and terms which are used in this chapter. Unless the context clearly indicates otherwise, those words and terms will have the same meaning when used in this chapter. In addition, the following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Act" means §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

"Affected communities" means those counties, cities or towns contiguous to the host community which may be affected by the siting of a hazardous waste facility in the host community.

"Applicant" means the person applying for a certification of site suitability or submitting a notice of intent to apply for that. The applicant must be the person that intends to own or operate the proposed facility.

"Application" means an application to the board for a certification of site suitability.

"Board" means the Virginia Waste Management Board.

"Certification of site suitability" or "certification" means the certification issued by the board pursuant to Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

"Construct" or "construction" means (i) with respect to new facilities, the significant alteration of a site to install permanent equipment or structures or the installation of permanent equipment or structures; or (ii) with respect to existing facilities, the alteration or expansion of existing structures or facilities to initially accommodate hazardous waste, any expansion of more than 50% of the area or capacity of an existing hazardous waste facility, or any change in design or process of a hazardous waste facility that will, in the opinion of the board, result in a substantially different type of facility. It does not include preliminary engineering or site surveys, environmental studies, site acquisition, acquisition of an option to purchase or activities normally incident to that.

"Criteria" means the criteria adopted by the board, pursuant to § 10.1-1436 of the Code of Virginia.

"Department" means the Virginia Department of Environmental Quality.

"Disposal" means the discharge, deposit, injunction, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

"Emergency situation" means where an imminent and substantial endangerment to human health or the environment is determined.

"Fund" means the technical assistance fund created pursuant to § 10.1-1448 of the Code of Virginia.

"Hazardous waste" means a solid waste classified as a hazardous waste by the Virginia Hazardous Waste Management Regulations, 9VAC20-60.

"Hazardous waste facility" or "facility" means any facility, including land and structures, appurtenances, improvements and equipment for the treatment, storage or disposal of hazardous wastes, which accepts hazardous waste for storage, treatment or disposal. For the purposes of this chapter, it does not include: (i) facilities which are owned and operated by and exclusively for the on-site treatment, storage or disposal of wastes generated by the owner or operator; (ii) facilities for the treatment, storage or disposal of hazardous wastes used principally as fuels in an on-site production process; and (iii) facilities used exclusively for the pretreatment of wastes discharged directly to a publicly-owned sewage treatment works.

"Hazardous waste management facility permit" means the permit for a hazardous waste management facility issued by the director or the U.S. Environmental Protection Agency.

"Host community" means any county, city or town within whose jurisdictional boundaries construction of a hazardous waste facility is proposed.

"On-site" means facilities that are located on the same or geographically contiguous property which may be divided by public or private right-of-way, and the entrance and exit between the contiguous properties are at a crossroads intersection so that the access is by crossing, as opposed to going along, the right-of-way. On-site also means noncontiguous properties owned by the same person but connected by a right-of-way which the owner controls and to which the public does not have access.

"Operating characteristics": These include, but are not limited to:

1. Brief description of the nature of the business of the facility, including an estimate of the size of the business (number of employees, etc.);

2. Specification of each hazardous waste involved in the operation of the facility and an estimate of the annual quantity of each;

3. Description of the physical facility (number and size of buildings, tanks and other structures);

4. General description of the process to be used in the treatment, storage, or disposal or both of each hazardous waste;

5. Description of the anticipated traffic to and from the facility (number, type, and capacity of those vehicles transporting hazardous waste as well as other types of vehicles);

6. Short and long term projections for the facility, including its projected life expectancy; and

7. Any other relevant information which will assist the board and other persons to gain a clear understanding of the nature and operation of the facility.

"Operator" means a person who is responsible for the overall operation of a facility.

"Owner" means a person who owns a facility or a part of a facility.

"Person" means an individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, state, municipality, commission, political subdivision of a state, interstate body or federal government agency.

"Site plan" means a design of the proposed facility and site. The site plan must accurately represent all structures of the proposed facility. If the site has existing structures, the site plan must designate these and specify the alterations to be made to each. The site plan shall also include a topographic map showing a distance of 1,000 feet around the facility at a scale of 2.5 centimeters (one inch) equal to not more than 61.0 meters (200 feet). Contours shall be shown on the map. The contour interval shall be sufficient to clearly show the pattern of surface water flow in the vicinity of and from each operational unit of the facility, for example, contours with an interval of 1.5 meters (five feet), if relief is greater than 6.1 meters (20 feet) or an interval of 0.6 meters (two feet), if relief is less than 6.1 meters (20 feet). Owners and operators of facilities proposed in mountainous areas should use a larger contour interval to adequately show topographic profiles of facilities. The map shall clearly show the following:

1. Map scale and date;

2. 100 year floodplain area;

3. Surface waters including intermittent streams;

4. Surrounding land uses (residential, commercial, agricultural, recreational);

5. A wind rose (i.e., prevailing wind speed and direction);

6. Orientation of the map (north arrow);

7. Legal boundaries of the facility site;

8. Access control (fences and gates);

9. Injection and withdrawal wells, both on-site and off-site;

10. Buildings; treatment, storage, or disposal operations; or other structures (recreation areas, run-off control systems, access and internal roads; storm, sanitary, and process sewerage systems; loading and unloading areas; fire control facilities, etc.);

11. Barriers for drainage or flood control;

12. Location of operational units within the facility site where hazardous waste is proposed to be treated, stored or disposed, including equipment cleanup areas; and

13. Such additional information as the board deems necessary to carry out its duties as required by the Act.

"Solid waste" means any garbage, refuse, sludge and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities but does not include (i) solid or dissolved material in domestic sewage; (ii) solid or dissolved material in irrigation return flows or in industrial discharges which are sources subject to a permit from the State Water Control Board, or (iii) source, special nuclear, or byproduct material as defined by the Federal Atomic Energy Act of 1954 (42 USCS § 2011 et seq.), as amended.

"Storage" means the containment or holding of hazardous wastes pending treatment, recycling, reuse, recovery or disposal.

"Treatment" means any method, technique or process, including incineration or neutralization, designed to change the physical, chemical or biological character or composition of any hazardous waste to neutralize it or to render it less hazardous or nonhazardous, safer for transport, amenable to recovery or storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of a hazardous waste so as to render it less hazardous or nonhazardous.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 1.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

9VAC20-40-50 Requirement of certification and waiver

A. No person shall construct or commence construction of a hazardous waste facility without first obtaining a certification of site approval by the board in the manner prescribed here.

An owner or operator of a facility may submit a notice of intent as prescribed in 9VAC20-40-60 or submit a request for a waiver from the procedures established in the Act and this chapter.

B. Upon receiving a written request from the owner or operator of a facility, the board may grant a waiver upon such conditions as it may determine, provided that the proposed changes to the facility are designed to:

1. Prevent a threat to human health or the environment because of an emergency situation;

2. Comply with federal or state laws and regulations promulgated after July 1, 1984; or

3. Demonstrably result in safer or environmentally more acceptable processes.

C. The waiver provisions of this chapter shall apply to existing facilities when construction is defined to be:

1. The alteration or expansion of existing structures or facilities to initially accommodate hazardous waste;

2. Any expansion of more than 50% of the area or capacity of an existing hazardous waste facility; or

3. Any change in the design or process of a hazardous waste facility that will result in a substantially different type of facility or will cause the facility to be reclassified as a higher numbered category.

D. Emergency situation.

1. Scope of waiver. The owner or operator of a facility may be permitted to make changes which are designed to prevent a threat to human health or the environment because of an emergency situation.

2. Applying for waiver. The owner or operator of the facility may obtain verbal approval from the director effective for a period up to 30 days, unless revised by the board at its next regular meeting, and, in addition, must submit the request for waiver in writing to the director. The request at a minimum must contain the following information:

a. The name and address of the owner or operator or both of the facility;

b. Location of the facility and a description of its operation;

c. Description of the circumstances creating the emergency situation;

d. Description of the resulting threat to human health or the environment or both;

e. Description of the changes to be made in the facility; and

f. Efforts to restore the facility to original conditions of certification after emergency conditions are abated.

3. The waiver. Upon receipt of the request, the director will grant or deny the request for waiver. In the event the director grants the request for waiver, such waiver is subject to the approval of the board at its next regularly scheduled meeting. If the director denies the request, the applicant may renew the request at the next regularly scheduled meeting of the board.

E. State or federal laws; more acceptable process.

1. Scope of waiver. The owner or operator of a facility may be permitted to make changes which are designed to comply with state or federal laws enacted or regulations promulgated after July 1, 1984, or changes which demonstrably result in safer or environmentally more acceptable processes.

2. Applying for waiver. The owner or operator of the facility must make the request in writing to the director. At a minimum the request must contain the following information:

a. Name and address of the owner or operator of the facility;

b. Location of the facility and a description of its operation; and

c. Either:

(1) A copy of the state or federal law or regulation necessitating the change, if applicable, and a description of the changes to be made in the facility to effect compliance with the law or regulation; or

(2) A description of the changes the owner or operator wishes to make and an analysis demonstrating the improved safety or environmental soundness resulting from the changes.

3. The waiver. At its next regularly scheduled meeting, the board will consider the request for waiver. The owner or operator or his representative should attend the meeting. At the meeting the board may:

a. Grant the request for waiver;

b. Deny the request for waiver;

c. Determine that additional information is needed from the owner or operator;

d. Decide that a public hearing is needed; or

e. Take any other action the board deems appropriate.

4. Should the board decide to hold a public hearing, it will also determine from among the following who will conduct the hearing: a member or members of the board, the director, or both, or a hearing officer appointed from outside the board. The director will give notice of the hearing to the same parties and in the same manner as described in 9VAC20-40-60 C, regarding distribution of the notice of intent. The owner or operator shall provide the director with a list of the names and addresses of all owners of property adjoining the facility. The notice of the hearing shall specify the date, time, and location of the hearing and include a copy of the request for waiver.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 2.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

9VAC20-40-60 Contents of the notice of intent

A. After December 31, 1984, any person may submit to the board a notice of intent to file an application for a certification of site approval. The notice shall contain:

1. Name and address of the applicant;

2. A copy of the property deed, option, or other document giving right, title, or interest to the proposed site;

3. A description of the proposed facility including a description based on its operating characteristics;

4. A USGS map showing the location of the property at a scale of one inch = 2,000 feet;

5. Names and addresses of all owners of property adjacent to the proposed site; and

6. Any state agency filing a notice of intent shall include a statement explaining why the Commonwealth desires to build a hazardous waste facility and how the public interest will be served by that.

B. Determination of completion of notice of intent. The director will review the notice of intent and determine within 45 days of its receipt whether the notice of intent is complete. If the director determines that the notice of intent is incomplete, the director shall so advise the applicant, specifying the information needed to complete the notice and designating a deadline for the correction of any deficiencies.

C. Distribution of notice of intent. Upon the determination that a notice of intent is complete, the board, at the applicant's expense, shall promptly:

1. Deliver by certified, return receipt mail a copy of the notice of intent with a copy of the Act, a copy of this chapter, and notice of the date, time, location and purpose of the briefing meeting to:

a. The governing body of each host community;

b. The governing body of each affected community;

c. State legislators elected from the areas in which the host community and affected communities are located;

d. The regional planning district commissions of the host community and the affected communities; and

e. Each person owning property immediately adjoining the site of the proposed facility.

2. Have an informative description of the notice published in a newspaper of general circulation in each host community once each week for four successive weeks. The description shall include the name and address of the applicant, a description of the proposed facility and its location, the places and times where the notice of intent may be examined, the address and telephone number of the board or other state agency from which information may be obtained, and the date, time and location of the initial public briefing meeting on the notice.

3. Copies of the notice of intent will be mailed, by electronic or postal delivery, to any person who has specifically requested such notice.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 2.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 29, Issue 21, eff. July 17, 2013.

9VAC20-40-70 Waiver of participation by host community

Section 10.1-1438 of the Act permits the governing body of the host community to waive further participation in the certification process. Should the governing body elect to waive participation it must notify the board in writing with a copy of its adopted resolution within 45 days of receiving the notice of intent. Although this waiver permits the board to issue a certification of site approval without further participation by the governing body of the host community, such waiver in no way restricts the rights of any other person or organization to participate in the certification process.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 2.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-40-80 Briefing meeting

A. Not more than 75 nor less than 60 days after the delivery of the notice of intent to the host community, the board shall conduct a briefing meeting in or in reasonable proximity to the host community. Notice of the date, time, place and purpose of the briefing session shall be prepared by the board and shall accompany the notice of intent delivered pursuant to § 10.1-1437 of the Code of Virginia, and be included in the notice published pursuant to § 10.1-1437 of the Code of Virginia. At least one representative of the applicant shall be present at the briefing meeting. The primary purpose of the briefing meeting will be to provide information on the proposed site and facility and to receive comments, suggestions and questions on them from the public.

B. The board shall select from among its membership a briefing officer who will be responsible for conducting the meeting as follows:

1. The briefing officer will call the meeting to order and explain the purpose of the briefing;

2. The applicant shall be allowed to give a presentation describing the proposal and to respond to questions;

3. Persons asking questions shall be requested to state their names, addresses, and interests in the project;

4. The briefing officer shall conduct the meeting in an orderly manner while ensuring that all interested parties present are as fully briefed as possible on the proposal; and

5. A stenographic or electronic record shall be made of all briefing meetings. A transcript of the meeting, together with copies of any documents submitted at the briefing, shall be made available for inspection at the office of the board and host community during normal working hours.

C. If the board conducts additional briefing meetings, notice of such meetings shall be provided as follows:

1. Notice of the date, time, place and purpose of the meeting is delivered in writing to the applicant, each member of the governing body of the host community, and to all owners of property adjoining the proposed site at least 15 days in advance of the meeting;

2. Such notice is published once each week for at least two successive weeks in a newspaper of general circulation in the host community;

3. Such notice is broadcast over one or more radio stations within the area to be affected by the subject of the notice;

4. Such notice is mailed, by electronic or postal delivery, to each person who has asked to receive notice; and

5. Such notice is disseminated by any additional means the board deems appropriate.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 2.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 29, Issue 21, eff. July 17, 2013; Volume 32, Issue 24, eff. August 24, 2016.

9VAC20-40-90 Impact analysis

A. The applicant shall submit a draft impact analysis in accordance with § 10.1-1440 of the Code of Virginia and, in addition, shall furnish a copy of the draft impact analysis to each person designated in that section.

B. The draft impact analysis shall include:

1. A detailed assessment of the project's suitability with respect to the criteria.

2. A cover letter signed by the applicant.

3. An executive summary providing a brief description of the applicant's proposal, the impacts, and mitigating actions.

4. A site plan.

5. A full report addressing each of the following:

a. Effects on botanical resources;

b. Energy and water consumption;

c. Discharge of any substance, or of heat, in surface or ground waters;

d. A description of any necessary clearing, excavating, dredging, filling;

e. The types and amounts of wastes which will be accepted;

f. The process or processes to be employed including its basic characteristics and principal limitations;

g. Planned operational safeguards and monitoring of the facility following cessation of operations;

h. Emission of radiation; and

i. Solid waste disposal.

6. An ownership report containing:

a. A legal description of the applicant, including identification of all principal participants;

b. A current audited financial statement or statements prepared by a certified public accountant including the accountant's opinions;

c. A description of all liability insurance the applicant has or plans to obtain for the proposed site and facility and a description of the financial and managerial arrangements for closure and post-closure care of the site;

d. A description of the applicant's experience in the field, including any other hazardous waste facilities operated or owned currently or in the past by the applicant and details of their compliance record; and

e. A description of how the applicant intends to finance the project.

7. An appendix providing any supporting documentation.

C. The board, at the applicant's expense, shall cause notice of the filing of the draft impact analysis to be made in the manner provided in § 10.1-1447 of the Code of Virginia, within 10 days of receipt. The notice shall include (i) a general description of the analysis, (ii) a list of recipients, (iii) a description of the places and times that the analysis will be available for inspection, (iv) a description of the board's procedures for receiving comments on the analysis, and (v) the addresses and telephone numbers for obtaining information from the board.

D. The board shall allow 45 days after publication of notice for comment on the draft impact analysis. No sooner than 30 and no more than 40 days after publication of notice of the draft impact analysis, the board shall conduct a public meeting on the draft impact analysis in or near the host community. The meeting shall be for the purpose of explaining, answering questions and receiving comments on the draft impact analysis. A representative of the governing body and a representative of the applicant shall be present at the meeting.

E. The board will receive comments on the draft impact analysis pursuant to the following procedures:

1. Comments on the draft analysis may be in writing and mailed to the board within 45 days of publication of the notice for comment; and

2. Comments may be submitted in writing or by presentation before the board at the public meeting conducted pursuant to § 10.1-1444 of the Act. The meeting will be conducted in the same manner as the briefing meeting in 9VAC20-40-80 B.

F. Within 10 days after the close of the comment period, the board shall forward to the applicant a copy of all comments received on the draft impact analysis, together with its own comments.

G. The applicant shall prepare and submit a final impact analysis to the board after receiving the comments. The final impact analysis shall reflect the comments as they pertain to each of the items listed in subsection B of this section. A copy of the final impact analysis shall be provided by the applicant upon request to each of the persons who received the draft impact analysis.

H. Preparation and submission of the final impact analysis will be in accordance with § 10.1-1440 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 2.5, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

9VAC20-40-100 Application

A. At any time within six months after submission of the final impact analysis, the applicant may submit to the board an application for certification of site approval. The application shall contain:

1. A summary of the proposal including a general description of the facility and the nature of the business;

2. Conceptual engineering designs for the proposed facility;

3. A copy of the final impact analysis which evaluates the siting criteria;

4. A detailed description of the facility's suitability to meet the criteria promulgated by the board, including any design and operation means that will be necessary or otherwise undertaken to meet the criteria;

5. A siting agreement, if one has been executed pursuant to subsections F and H of this section, 9VAC20-40-110 and § 10.1-1442 of the Code of Virginia, or, if none has been executed, a statement to that effect.

B. Fees. The application shall be accompanied by the fee established by the Schedule of Fees for Hazardous Waste Facility Site Certification (9VAC20-20).

C. Form of the application.

1. The application should be contained in one or more three-ring loose-leaf binders preferably on 8-1/2 X 11 inch paper.

2. All maps required by this chapter shall be detachable, but may be fold outs.

3. The summary shall be capable of separate reproduction and distribution.

D. The director shall review the application for completeness and notify the applicant within 15 days of receipt that the application is incomplete or complete.

If the application is incomplete, the director shall so advise the applicant and shall identify the information necessary to make the application complete. The director shall take no further action until the application is complete.

If the application is complete, the director shall so advise the applicant and shall direct the applicant to furnish copies of the application to the following: five to the host community and one to each person owning property adjoining the proposed site. At least one copy of the application shall be made available by the applicant for inspection and copying at a convenient place in a host community during normal business hours.

E. The board shall cause notice of the application to be made in the manner provided in § 10.1-1447 of the Code of Virginia and shall notify each governing body that upon publication of the notice the governing body must conclude all negotiations with the applicant within 30 days. The applicant and the governing body may, by agreement, extend the time for negotiation to a fixed date but shall forthwith notify the board of this date. The board may also extend the time to a fixed date for good cause shown.

F. At the end of the period specified in subsection E of this section, a governing body shall submit to the board and to the applicant a report containing:

1. A complete siting agreement, if any, or in case of failure to reach full agreement, a description of points of agreement and unresolved points; and

2. Any conditions or restrictions on the construction, operation or design of the facility that are required by local ordinance.

G. If the report is not submitted within the time required, the board may proceed as specified in § 10.1-1443 A of the Code of Virginia.

H. The applicant may submit comments on the report of the governing body at any time prior to the issuance of the draft certification of site approval.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 3.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

9VAC20-40-110 Negotiations; role of board; good faith required

A. The governing body or its designated representatives and the applicant, after submission of notice of intent to file an application for certification of site approval, may meet to discuss any matters pertaining to the site and the facility, including negotiations of a siting agreement. The time and place of any meeting shall be set by agreement, but at least a 48-hour notice shall be given to members of the governing body and the applicant.

B. The board shall assist in facilitating negotiations between the local governing body and the applicant to the extent of recommending a mediator or other conflict resolution mechanism, but shall not become integrally involved in the siting agreement negotiations.

C. The siting agreement may include any terms and conditions, including mitigation of adverse impacts and financial compensation to the host community, concerning the facility. In the event that a provision of a siting agreement conflicts with state or federal law, the state or federal law shall prevail.

D. The siting agreement shall be executed by the signatures of (i) the chief executive officer of the host community, who has been so directed by a majority vote of the local governing body, and (ii) the applicant or authorized agent.

E. Determination of agreement.

1. If the report submitted by the governing body pursuant to § 10.1-1441 of the Code of Virginia indicates that no siting agreement has been reached and contains a written allegation that the applicant has failed or refused to negotiate in good faith, the director shall issue notice to the applicant and host community of the board's intention to hold an informal conference pursuant to § 2.2-4019 of the Virginia Administrative Process Act. The notice shall state the time, place and date of such conference. The purpose shall be to determine the sole issue of whether or not the applicant has failed or refused to negotiate in good faith with the governing body in developing a siting agreement.

2. If the board finds that the governing body has shown by a preponderance of the evidence that the applicant has failed or refused to negotiate in good faith with the governing body for the purpose of attempting to develop a siting agreement, the board may deny the application for certification of site approval. Such a finding shall constitute final action by the board.

3. If the board finds that the governing body has not shown by a preponderance of the evidence that the applicant has failed or refused to negotiate in good faith with the governing body for the purpose of attempting to develop a siting agreement, the board may issue the draft certification of site approval pursuant to § 10.1-1443 of the Code of Virginia. Such finding shall not be considered final action by the board.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 3.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

9VAC20-40-120 Draft certification of site approval

A. Within 30 days after receipt of the governing body's report or as otherwise provided in § 10.1-1443 of the Code of Virginia, the board shall issue or deny a draft certification of site approval.

B. The board may deny the application for certification of site approval if it finds that the applicant has failed or refused to negotiate in good faith with the governing body for the purpose of attempting to develop a siting agreement.

C. The draft certification of site approval shall specify the terms, conditions and requirements that the board, on a case-by-case basis, deems necessary to protect health, safety, welfare, the environment and natural resources.

D. Copies of the draft certification of site approval, together with notice of the date, time and place of public hearing required under § 10.1-1444 of the Code of Virginia, shall be delivered by the board to the governing body of each host community, and to persons owning property adjoining the site for the proposed facility. At least one copy of the draft certification shall be available for inspection and copying at a convenient place in the host community during normal business hours.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 3.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-40-130 Public hearing on draft certification of site approval

A. The board shall conduct a public hearing on the draft certification not less than 15 nor more than 30 days after the first publication of notice. The hearing shall be conducted in the host community.

B. Notice of the hearing shall be made at the applicant's expense and shall:

1. Provide for public participation by sending a copy of the notice by certified, return receipt mail to the following:

a. The governing body of the host community;

b. The governing body of the affected communities;

c. Legislators elected from the areas in which the host community is located and the affected communities are located;

d. The regional planning district commissions of the host community and affected communities;

e. Persons owning property adjoining the site of the proposed facility.

f. The applicant.

g. Any person who has been designated a party pursuant to 9VAC20-40-130 D.

2. In addition to the requirements imposed by paragraph 1, in accordance with § 10.1-1447 of the Code of Virginia, the notice shall be disseminated:

a. By publication once each week for two successive weeks in a newspaper of general circulation within the area to be affected by the subject of the notice;

b. By broadcast over one or more radio stations within the area to be affected by the subject of the notice;

c. By mail, electronic or postal delivery, to each person who has asked to receive notice; and

d. By such additional means as the board deems appropriate.

Every notice shall provide a description of the subject for which notice is made and shall include the name and telephone number of a person from whom additional information may be obtained.

3. Provide that the contents of such notice include:

a. A brief description of the terms and conditions of the draft certification;

b. Information describing the date, time, place and purpose of the hearing;

c. The location where the draft certification may be reviewed;

d. The name, address and telephone number of an official designated by the board to receive written comments of the draft certification;

e. A brief description of the rules and procedures to be followed at the hearing and the time for receiving comments; and

f. Any such information as the board deems appropriate.

C. Designation and powers of hearing officer.

1. The public hearing held pursuant to these procedures will be conducted by a hearing officer designated by the board.

2. The hearing officer shall conduct the hearing in an orderly and expeditious manner, and shall hold all powers necessary to those ends, including, but not limited to, the power to do the following:

a. Prescribe the methods and procedures to be used in the development of evidentiary facts and the presentation of evidence by the parties, including the issuance of prehearing orders setting forth the issues for hearing and establishing deadlines for the filing of written testimony and exhibits;

b. Impose reasonable limitations on the time permitted for oral testimony;

c. Consolidate the presentation of factual data, arguments and proof to avoid repetitive presentation of them;

d. Administer oaths and affirmations;

e. Receive probative evidence, rule upon offers of proof and, upon his own motion or the objection of any party, exclude irrelevant, immaterial, insubstantial or repetitive proofs, rebuttal or cross-examination;

f. Examine witnesses;

g. Hold prehearing conferences for the settlement determination, simplification or stipulation of issues and facts by consent;

h. Rule on procedural matters; and

i. Issue subpoenas and subpoenas duces tecum in accordance with § 2.2-4022 of the Code of Virginia.

3. Rulings of the hearing officer on the admissibility of evidence or testimony, on the propriety or conduct of cross-examination, and on any and all procedural matters shall appear in the hearing record and shall control further proceedings in the hearing. Parties shall be presumed to have taken objection to any adverse ruling, and no objection shall be considered waived by further participation on the hearing.

D. Parties; rights of parties; petition to become a party.

1. The following persons are entitled to become parties to the public hearing conducted pursuant to this section:

a. The applicant;

b. The host community, acting through its governing body; and

c. Any person owning land adjoining the site of the proposed facility.

2. In addition to the above named parties, any person whose significant interest will be adversely affected by the decision of the board may file a petition to become a party to the hearing. The following procedures apply to such petitions:

a. The petition to become a party must be received by the board at least 10 days prior to the scheduled hearing date.

b. The petition shall contain the following:

(1) The names and addresses of the petitioner, the petitioner's counsel (if any) and all persons for whom the petitioner is acting as a representative;

(2) A statement setting forth the interest of the petitioner in the matter;

(3) A statement by the petitioner that, should his petition be granted, the petitioner will be available, without cost to any other party, to appear at the hearing; and

(4) A statement by the petitioner explaining how his interests would not be adequately represented by existing parties to the hearing.

c. The director shall acknowledge the receipt of all petitions to become a party.

d. The director shall consider all petitions filed in accordance herewith, and shall grant those petitions that both:

(1) Raise one or more genuine substantial issues in the petition which, if resolved adversely to the petitioner, would result in an injury to a significant interest of the petitioner; and

(2) Adequately describe how the petitioner's interest is not represented by an existing party to the hearing.

e. The director shall notify the petitioner, and all other parties, of his decision to grant or deny petition to become a party by mail, electronic or postal delivery, at least five days prior to the scheduled hearing date. The decision of the director in no way limits the rights of judicial review granted under § 10.1-1433 et seq. of the Code of Virginia.

3. The rights of the parties to the hearing shall be limited to those enumerated in this chapter and the Act.

E. Evidence at the hearing.

1. Parties to the hearing may present direct and rebuttal evidence in written and oral form, as the hearing officer may direct.

2. The hearing officer shall admit all relevant, competent and material evidence offered by the parties but shall exclude evidence which he determines to be repetitive, irrelevant, immaterial or otherwise inadmissible.

3. Whenever any evidence or testimony is excluded by the hearing officer as inadmissible, so much of the excluded material as is in written form shall remain in the record as an offer of proof, and shall be marked "excluded" by the hearing officer. Where oral testimony is excluded, the party seeking to introduce it may make an offer of proof in the form of a brief descriptive statement for the record.

4. Any other interested person may be given an opportunity to testify during the hearing. The hearing officer shall allow such testimony to be heard as is not irrelevant, immaterial, insubstantial or repetitive. Any interested person who so testifies shall be sworn and subject to cross-examination as prescribed in this section.

F. Hearing record.

1. The hearing officer shall assemble a hearing record after the close of the hearing.

The hearing record shall consist of:

a. A transcript of the hearing, and any exhibits admitted in evidence;

b. A copy of the final impact statement;

c. A copy of the application for certification of site approval;

d. Reports of any consultants hired by the board that have been made available to the parties prior to the hearing;

e. A copy of the draft certification of site approval; and

f. A summary of the record, if the hearing officer so desires.

2. Within 15 days after the close of the hearing, the hearing officer shall deliver a copy of the hearing record to each member of the board.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 3.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 29, Issue 21, eff. July 17, 2013.

9VAC20-40-140 Final decision on certification of site approval

A. Within 45 days after the close of the public hearing, the board shall meet within or in close proximity to the host community and shall vote to issue or deny the certification of site approval. The board may include in the certification any terms and conditions which it deems necessary and appropriate to protect and prevent injury or adverse risk to health, safety, welfare, the environment and natural resources. At least seven days notice of the date, time, place and purpose of the meeting shall be made in the manner provided in § 10.1-1447 of the Code of Virginia. No testimony or evidence will be received at the meeting.

B. The board shall grant the certification of site approval if it finds:

1. That the terms and conditions of it will protect and prevent injury or unacceptable adverse risk to health, safety, welfare, the environment and natural resources;

2. That the facility will comply and be consistent with the criteria promulgated by the board; and

3. That the applicant has made reasonable and appropriate efforts to reach a siting agreement with the host community including, though not limited to, efforts to mitigate or compensate the host community and its residents for adverse economic effects, if any, of the facility.

C. The board's decision to grant or deny certification will be based on the hearing record and shall be accompanied by the written findings of fact and conclusions upon which the decision was based. The board shall provide the applicant and the governing body of the host community with copies of the decision, together with the findings and conclusions, by certified mail in accordance with § 10.1-1183 of the Code of Virginia.

D. The grant or denial of certification constitutes final action by the board.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 4.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 29, Issue 21, eff. July 17, 2013.

9VAC20-40-150 Amendment of certification of site approval

A. Certification may be amended at the request of any interested party as defined in 9VAC20-40-130 D or upon the board's initiative, but only for the causes listed in this section. All requests shall be in writing and shall contain facts or reasons supporting the request. The board shall make its determination following a review of the cause based on appropriate information or testimony by the initiator or the applicant (current owner or operator) or both within 45 days of receiving notice. If, in the opinion of the board, the amendment is of major public interest, the board may schedule a public hearing according to the requirements outlined in 9VAC20-40-130.

B. If the board decides the request is not justified, it shall send the requestor a brief response giving a reason for the decision.

C. The following are causes for amendment of certification of site approval:

1. There are material or substantial alterations or additions to the approved site which occurred after certification which justify the application of conditions that are different or absent in the existing certification;

2. The board has received information pertaining to circumstances or conditions existing at the time the certification of the site was approved that was not included in the administrative record and would have justified the application of different conditions, if, in the judgment of the board, such modification is necessary to prevent significant adverse effects on public health or the environment; and

3. The standards or regulations on which the certification was based have been changed by promulgation of amended standards or regulations or by judicial decision after the certification was approved, if, in the judgment of the board, such modification is necessary to prevent significant adverse effects on public health or the environment. Certification may be amended by reason of judicial decision only if a court of competent jurisdiction has remanded and stayed board regulations, and if the remand and stay concern that portion of the regulations on which the certification condition was based and a request is filed within 90 days of judicial remand.

D. Certification of site approval shall be terminated in accordance with § 10.1-1446 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-4 § 4.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-40-160 Delegations

The director may perform any act of the board provided under this chapter except as limited by §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Chapter 50 Hazardous Waste Facility Siting Criteria

Article 1 Purpose

9VAC20-50-10 [Reserved]

Article 1 Purpose

9VAC20-50-20 Purpose of chapter

This chapter establishes the criteria which will be used by the board to evaluate and approve or disapprove applications for hazardous waste facility site certification.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 1.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-50-30 [Reserved]. (Reserved)

Article 2 Definitions

9VAC20-50-40 Words and terms

Article 2 Definitions

Section 10.1-1433 of the Code of Virginia defines several words and terms also used in this chapter. Unless the context clearly indicates otherwise, these words and terms will have the same meaning when used in this chapter. In addition, the following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

"Active fault" means a fault which has had displacement in Holocene time.

"Active portion" means that portion of a facility where treatment, storage or disposal operations are being conducted. It includes the treated area of a land farm and the active face of a landfill, but does not include those portions of a facility which have been closed in accordance with all applicable closure requirements of the Virginia Department of Environmental Quality.

"Anion exchange capacity" means the exchange capacity for negatively charged ions. (See Cation exchange capacity.)

"Anti-degradation goal for groundwater" means if the concentration of any constituent in groundwater is less than the limit set forth by groundwater standards, the natural quality for the constituent shall be maintained; natural quality shall also be maintained for all constituents, including temperature, not set forth in groundwater standards. If the concentration of any constituent in groundwater exceeds the standards for that constituent, no addition of that constituent to the naturally occurring concentration shall be made.

"Applicant" means the person applying for certification of site suitability or submitting a notice of intent to apply for that.

"Aquifer" means water-bearing geologic formation, group of formations, or part of a formation that is capable of yielding a significant amount of groundwater to wells or springs. An aquifer is unconfined (water table) or confined (artesian) according to whether the upper surface of the water is at atmospheric pressure or at greater than atmospheric pressure.

"Attenuation" means any decrease in the maximum concentration or total quantity of a chemical or biological constituent during a fixed time or distance traveled.

"Board" means the Virginia Waste Management Board.

"Buffering capacity" means the capacity of a soil to take up contaminants through a variety of attenuation processes such as biological activity, dilution, volatilization, mechanical filtration, precipitation, buffering, neutralization and ion exchange. Some attenuation processes result in permanent removal and degradation of pollutants, which others act to store pollutants and by that delay pollution problems but do not eliminate them.

"Cation exchange capacity" means the excess of counter ions in the zone adjacent to the charged surface or layer which can be exchanged for other cations. The cation exchange capacity of geological materials is normally expressed as the number of milliequivalents of cations that can be exchanged in a sample with a dry mass of 100 grams.

"Closure" means the act of securing a hazardous waste management facility pursuant to the requirements of Virginia Hazardous Waste Management Regulations (9VAC20-60) promulgated by the board.

"Community water system" means a waterworks which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.

"Construction" means (i) with respect to new facilities, the significant alteration of a site to install permanent equipment or structures or the installation of permanent equipment and structures; (ii) with respect to existing facilities, the alteration or expansion of existing structures or facilities to initially accommodate hazardous waste, any expansion of more than 50% of the area or capacity of an existing hazardous waste facility, or any change in design or process of a hazardous waste facility that will, in the opinion of the board, result in a substantially different type of facility. It does not include preliminary engineering or site surveys, environmental studies, site acquisition, acquisition of an option to purchase or activities normally incident hereto.

"Container" means any portable enclosure in which a material is stored, transported, treated, disposed of, or otherwise handled.

"Dam-related flood hazard areas" means areas identified as being dam-related flood hazard areas which fall into one of two categories: areas of dynamic flooding below the dam, or the inundation zone, and areas of static flooding above the dam, or the flood pool. The inundation zone is the area that would be inundated by the water released by the impoundment in the event of a dam flood. The flood pool is defined as the land area above the dam which is prone to flooding during abnormally high runoff or precipitation.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

"Disposal facility" means a facility or part of a facility at which hazardous waste is intentionally placed into or on any land or water, and at which the waste will remain after closure.

"Endangered or threatened species habitat" means areas known to be inhabited on a seasonal or permanent basis by or to be critical at any stage in the life cycle of any wildlife (fauna) or vegetation (flora) identified as "endangered" or "threatened" species on official federal or state lists of endangered or threatened species, including the Endangered Species Act, 16 USC § 1531 et seq., the Virginia Endangered Species Act, § 29.1-563 et seq. of the Code of Virginia, and the Virginia Endangered Plant and Insect Species Act, § 3.2-1000 et seq. of the Code of Virginia, or under active consideration for state or federal listing. The definition also includes a sufficient buffer area to ensure continued survival of the species.

"Floodplain" means an area adjoining a river, stream or water course which has been or hereafter is likely to be covered by floodwaters.

Included in this category are coastal flood hazards which are defined as land areas adjacent to open coast, coastal sounds and their upstream estuaries which are prone to flooding from hurricanes and storm surges with an annual probability of 1.0%.

Also included in this definition are riverine flood hazard areas defined as the valley areas adjacent to any size waterway which can be covered by flood waters resulting from excessive rainfall or other factors. The riverine flood hazard areas also fall under the Federal Emergency Management Administration definition of a "Regulatory Floodway" under the National Flood Program. A regulatory floodway includes the channel of the river and the adjacent floodplain that must be reserved in order to discharge the base flood (the flood level anticipated in the 100-year flood plain). The regulatory floodway cannot cause a cumulative increase in the water surge elevation of the base flood of greater than one foot at any point.

"Groundwater" means any water, except capillary moisture beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir or other body of surface water within the boundaries of this state, whatever may be the subsurface geologic structure in which such water stands, flows, percolates or otherwise occurs.

"Groundwater quality" means the quality of groundwater as measured against drinking water criteria and standards established by the U.S. EPA and the State Department of Health and adopted by the Virginia State Water Control Board.

"Hazardous waste" means a solid waste classified as a hazardous waste by the Virginia Hazardous Waste Management Regulations, 9VAC20-60.

"Hazardous waste facility" means any facility, including land and structures, appurtenances, improvements and equipment for treatment, storage, or disposal of hazardous wastes, which accepts hazardous waste for storage, treatment or disposal. This definition does not include: (i) facilities which are owned and operated by and exclusively for the on-site treatment, storage or disposal of wastes generated by the owner or operator; (ii) facilities for the treatment, storage or disposal of hazardous wastes used principally as fuels in an on-site production process; and (iii) facilities used exclusively for the pretreatment of wastes discharged directly to a publicly owned sewage treatment works.

"Hundred-year flood" means a flood of that level which on the average will have a 1.0% chance of being equaled or exceeded in any given year at designated locations.

"Hydraulic conductivity" means the rate of flow of water in gallons per day through a cross section of one square foot under a unit hydraulic gradient, at the prevailing temperature (Permeability coefficient).

"Hydraulic gradient" means the change in hydraulic pressure per unit of distance in a given direction.

"Incinerator" means an enclosed device using controlled flame combustion, the primary purpose of which is to thermally break down hazardous waste.

"Injection well" means a well or bore hole into which fluids are injected into selected geologic horizons. (See also underground injection.)

"Inundation zone (below a dam)" means the area that would be inundated in the event of a dam failure.

"Karst topography" means a type of topography that may form over limestone, dolomite, or gypsum formations by dissolving or solution, and that is characterized by closed depressions or sinkholes, caves, and underground drainage.

"Land treatment facility" means a facility or part of a facility at which hazardous waste is applied onto or incorporated into the soil surface; such facilities are disposal facilities if the waste will remain after closure.

"Landfill" means a disposal facility or part of a facility where waste is placed in or on land and which is not a treatment facility, a surface impoundment or an injection well.

"Leachate" means a liquid, including any suspended components in the liquid, that has percolated through or drained from hazardous waste.

"Monitoring" means all procedures used to systematically inspect and collect data on operational parameters of the facility or on the quality of the air, groundwater, surface water or soils.

"Monitoring well" means a well used to obtain water samples for water quality analysis or to measure depth to groundwater table.

"Noncommunity water system" means a waterworks that is not a community waterworks, but operates at least 60 days of the year and is for transient use such as restaurants, campgrounds, or rest areas.

"Pile" means any noncontainerized accumulation of solid, nonflowing hazardous waste that is used for treatment or storage.

"Point source" means any discernible, confined and discrete conveyance, including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

"Private water system" means all systems not defined under community/noncommunity water systems.

"Proximity to an active fault" means located such that potential vibration of a known active fault as defined under "seismic risk zones" or "seismogenic volume" in this chapter may adversely affect the physical integrity of the facility, or such that ground and surface waters associated with such fault may be degraded.

"Proximity to a community/noncommunity water system and supply of groundwater" means a site which is located such that the geologic features or characteristics of the site may lead to degradation of the aquifer as a result of operations or in the event of an accident or spill.

"Proximity to a community/noncommunity water system and supply of surface water" means within 1/2 mile of either side of a stream or impoundment for a distance of five stream miles upstream including tributaries, and 1/10 of a mile downstream of any nontidal surface water intake for a public water supply. On tidal affected streams, the site shall be such greater distance than 1/10 of a mile downstream that the tidal action would not cause intake of waters that may be affected by run-off, etc., from the site location. More restrictive requirements of other state regulatory agencies shall apply.

"Proximity to a private water system and supply of surface or groundwater" means a site which is located such that the geologic features or characteristics of the site may lead to degradation of the aquifer as a result of operations or in the event of an accident or spill.

"Proximity to publicly designated areas" means a site which is located such that the construction and operation of the proposed facility may impair the environmental and aesthetic qualities of the area.

"Publicly designated areas" means publicly owned lands designated as seashore areas, wilderness or scenic areas, scenic rivers, wildlife or bird sanctuaries, game lands, state parks and recreation areas and other natural areas. Also included are lands on or proposed for inclusion on the National Register of Historic Places, National Natural Landmarks, Virginia Landmarks Register and scenic easements held by the Virginia Outdoors Foundation. These lands must have been designated or be pursuant to an ongoing program as of the date of the notice of intent.

"Recharge" means natural or artificial replenishment or storage of nondegrading (quality) water in an aquifer.

"Run-off" means any rainwater, leachate, or other liquid that drains over land from any part of a facility.

"Run-on" means any rainwater, leachate, or other liquid that drains over land onto any part of a facility.

"Saprolite" means a soft, earthy, clay-rich, thoroughly decomposed rock formed in place by chemical weathering of igneous and metamorphic rocks.

"Saturated zone (zone of saturation)" means that part of the earth's crust in which all voids are filled with water under pressure greater than that of the atmosphere.

"Scenic rivers" means rivers designated by the Virginia General Assembly under the Scenic Rivers Act (§ 10.1-400 et seq. of the Code of Virginia) as worthy of preservation based on their unique environmental and aesthetic characteristics.

"Seismic risk zones" means an area where an active fault which has had displacement in Holocene time is present or which has had historical earthquake activity in Modified Mercalli VII or Richter Scale 4, or greater.

"Seismogenic volume" means a seismic risk zone of upper crustal rocks where earthquakes are occurring now or in the historic past, or both and that extends from the surface of the earth down to depths of 15-20 kilometers. Such volumes are susceptible to strong seismic shaking (Modified Mercalli Intensity VII or Richter Magnitude 5 or greater) as well as faulting and movement of subsurface rock layers.

"Site" means the land or water area upon which a facility or activity is physically located or conducted including but not limited to adjacent land used for utility systems such as repair, storage, whipping or processing areas, or other areas incident to the hazardous waste facility or activity.

"Soil pH" means the negative log of the hydrogen ion concentration, which commonly ranges from a high (acid) of 0 to a low (alkaline) of 14, neutral being seven.

"Soil/saprolite layer" means the unconsolidated materials derived primarily from the in-place weathering of underlying geologic deposits. Saprolite is specifically the unconsolidated weathering product of crystalline bedrock which retains relic bedrock structure. Thickness of the soil/saprolite layer is the depth from the surface to bedrock.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the state or within its jurisdiction. For the purpose of this chapter, adjacent wetlands are included in this definition.

"Static water level" means the level at which water stands in a well when no water is being taken from the aquifer either by pumping or by free flow.

"Storage" means the containment or holding of hazardous waste pending treatment, recycling, reuse, recovery or disposal.

"Storage facility" means any hazardous waste facility which stores hazardous waste.

"Subsidence" means the lowering of the natural land surface in response to: earth movements; lowering of fluid pressure; removal of underlying supporting material by mining or solution of solids, either artificially or from material causes; compaction due to wetting (hydrocompaction) or from material causes; oxidation of organic matter in soils; or added load on the land surface.

"Subsurface mining areas" means areas where deep mining or removal by drilling of minerals or mineral fuels or pumping of groundwater has resulted in a potential for land subsidence.

"Surface impoundment" means a facility or part of a facility which is a natural topographic depression, manmade excavation, or diked area formed primarily of earthen materials (although it may be lined with manmade materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an interjection well or a seepage facility.

"Thermal treatment" means treatment of hazardous waste in a device which uses elevated temperatures as the primary means to change the chemical, physical or biological character or composition of the hazardous waste.

"Transfer facility" means any transportation related to facility including loading docks, parking areas, storage areas and other similar areas where shipments of hazardous waste are held during the normal course of transportation.

"Treatment" means any method, technique, or process, including incineration or neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste to neutralize it or to render it less hazardous or nonhazardous, safer for transport, amenable for recovery or storage, or reduced in volume.

"Underground injection" means the subsurface emplacement of fluids through a bored, drilled, jetted, driven, or dug well, where the depth of the well is greater than the largest surface dimension (See also injection well).

"Unsaturated zone (zone of aeration)" means the zone between the topographic surface and water table.

"Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer.

"Water table" means the upper surface of the zone of saturation in groundwaters in which the hydrostatic pressure is equal to atmospheric pressure. (See uppermost aquifer.)

"Water well" means an excavation with associated casing, which is drilled, cored, bored, washed, driven, dug, jetted, or otherwise constructed when the intended use of such excavation is for the location, testing, acquisition, artificial recharge, or storage of groundwater, the depth of which is greater than the diameter or width.

"Waterworks" means a system that serves piped water for drinking or domestic use of (i) the public, (ii) at least 15 connections, or (iii) an average of 25 individuals for at least 60 days of the year. The term waterworks shall include all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure water except the piping and fixtures inside the building where such water is delivered.

"Well" means any shaft or pit dug, drilled, jetted, driven, or bored into the earth, generally of a cylindrical form, and often cased with bricks or tubing to prevent the earth from caving in, whose depth is greater than the largest surface dimension.

"Well yield" means average water yield in gallons per minute obtained from wells trapping the uppermost aquifer below a specific site or site vicinity.

"Wetlands" means areas inundated by surface or groundwater with a frequency sufficient to support, under normal circumstances, a prevalence of vegetated or aquatic life requiring saturated or seasonally saturated soil conditions for growth or reproduction.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 1.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 32, Issue 24, eff. August 24, 2016.

Article 1 Scope of Review

9VAC20-50-50 Considerations

Article 1 Scope of Review

The board shall consider the degree of hazard involved in any proposed operation in making a siting decision.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 2.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Article 2 Categories of Facilities

9VAC20-50-60 Categories

Article 2 Categories of Facilities

For the purposes of this chapter, hazardous waste facilities are broken down into five basic categories: (i) containerized or enclosed storage; (ii) closed treatment process with spill containment; (iii) open treatment process with spill containment; (iv) any above ground treatment with no spill containment; and (v) disposal without complete treatment and all other treatment/disposal methods.

A. Category I—Containerized or enclosed storage.

1. Description. A facility which is designed to store waste in above ground tanks, or portable containers as defined in 40 CFR Part 264 Subparts I and J, and § 10.1-1433 of the Code of Virginia provided that the area where the waste is stored meets at least the "containment" requirements specified in 40 CFR Part 264 Subpart I. In general, this section requires that the base under the storage area be free of cracks or gaps and is sufficiently impervious to contain leaks, spills or accumulated precipitation. It also must have sufficient containment capability to hold 10% of the volume of the containers stored, or the whole volume of the largest container, whichever is greater, and must be able to contain any run-off which might be involved. Containment requirements will be considered on a case-by-case basis. For the purpose of siting criteria, a facility which uses tanks must also conform to these requirements in order to be classified in Category I.

Examples include but are not limited to such facilities as:

a. A warehouse for storing 55 gallon drums.

b. A tank to store materials for loading into an ocean-going incineration vessel.

c. A storage tank associated with a land based treatment facility.

2. Consequences of loss of control. Because of the fairly simple operations involved and the extensive spill containment requirements, the consequences of loss control, for the purposes of siting, would be:

—Fire or explosion, or both.

B. Category II—Closed treatment process—with spill containment.

1. Description. A facility which is designed to treat hazardous waste by any method which did not involve venting, evaporating or exhausting potentially toxic concentrations of materials to the atmosphere, as measured at the active portion of the facility, under any normal or abnormal operating conditions. This could include chemical processes, such as acid neutralization, where the hazardous constituents in the waste are converted to nonhazardous materials or are precipitated out for disposal as a solid. It might also involve a process which separates the liquid portion of the waste from the solids, such as a centrifuging, mechanical or carbon filtration, settling or flotation, encapsulation, absorption, etc. If improper mixing or misoperation of the unit could cause a pressure build-up which could vent potentially toxic concentration of material to the atmosphere through a relief valve or similar device, this unit would not qualify as Category II. Systems which vent internally into a flash tank or similar device, however, would not necessitate a Category III classification since in that situation they would not be venting into the atmosphere. Furthermore, in order to qualify for this category, all processes must be in an area that meets the "containment" requirements specified for Category I such that a leak or rupture anywhere in the system would be contained for controlled disposition in accordance with all appropriate regulations.

An example is, but not limited to:

—Treatment in tanks.

2. Consequences of loss of control. These types of facilities are similar to those in Category I with respect to the health or environmental impact of loss of control except that there are likely to be more operations involving handling, movement, mixing, pumping or otherwise processing the waste. This, combined with the probability that more complex systems, different kinds of equipment, piping and controls are involved in Category II, makes the probability of loss of control somewhat greater than in Category I. However, because of the extensive spill containment requirements necessary to be classified as Category II, the consequences of loss of control are minimized. For the purpose of siting they would be:

—Fire or explosion, or both.

C. Category III—Open treatment process—with spill containment.

1. Description. A facility which is designed to treat waste by heating or burning, distillation, or any other reaction of process which involves a need to vent or exhaust any material to the atmosphere under normal operating conditions and which could, with a reasonable degree of probability, if misoperated or through malfunction or any loss of control, discharge a potentially toxic concentration of material, as measured at the active portion of the facility.

Facilities which have the potential for discharging only steam, air, nitrogen, or other nontoxic materials could be classified as Category I or II, providing they meet all other requirements for those categories. Heated storage tanks or rail cars which use steam in an outer shell or coils, for example, could be classified as Category I, even if it was periodically necessary to vent steam to the atmosphere.

In order to qualify for Category III, all tanks, containers or ancillary storage devices associated with processes must be in an area which meets the "containment" requirements specified for Categories I and II above.

An example is, but not limited to:

—Incineration.

2. Consequences of loss of control. The major difference between processes in this category and those in Category II is the possibility of (i) air quality degradation of sufficient magnitude to have the potential for causing health hazards, or (ii) environmental problems outside the facility from uncontrolled process discharges. Because it is so unlikely that any such discharge could be concentrated enough or last long enough to cause significant surface or groundwater degradation, this is not considered a consequence which would occur from loss of control. If, for some reason, there was a reasonable possibility that an airborne discharge from a facility could cause off-site surface or groundwater degradation, the facility would have to be classified in Category IV or V.

For the purposes of siting, the consequences of loss of control in Category III are:

a. Fire or explosion, or both.

b. Air quality degradation from process exhaust or venting as a result of loss of control.

D. Category IV—Above ground treatment—no spill containment.

1. Description. A facility which is designed to treat or store hazardous waste by any process or method which, with a reasonable degree of probability, through misoperation or any loss of control, could cause off-site surface or groundwater degradation.

These facilities need not meet the "containment" requirements specified for facilities in the three categories above in order to be classified in this category.

"Above ground" in this category means that the hazardous waste is all contained at or above the level of the ground where it is located. This qualification is based on providing a reasonable opportunity to see or become aware of a leak without depending on groundwater analysis. For example, this category could include a metal tank which rested directly on a cement pad (i.e., without support legs) even though part or all of the cement pad was actually below the ground, so long as the bottom of the tank was above ground level. If the bottom of the tank were below ground level resting directly on a manmade or earthen support such that the bottom of the tank could not be routinely inspected externally for leaks, the unit would qualify for Category V. In this latter example, if the tank were in a pit but was elevated from the base of the pit in such a manner as to allow routine inspection of the bottom to detect leaks it could be classified in Category IV. The use of underground piping by itself would not cause necessarily a facility to be classified in Category IV or V.

An example is, but not limited to:

—Land treatment.

2. Consequences of loss of control. In this category, there is no requirement for containment under treatment or storage units in the facility which might contain hazardous waste, and therefore, a spill or rupture could cause ground or surface water degradation. The restrictions included in this category would, however, minimize the possibility for leaks to go undetected for a significant length of time.

For the purpose of siting criteria, the consequences of loss of control are:

a. Fire or explosion, or both.

b. Airborne contamination, in the case of facilities which have the potential as described under Category III above.

c. Ground or surface water contamination.

d. Soil contamination.

E. Category V—Disposal without complete treatment and all other treatment/disposal methods.

1. Description. This category includes any disposal of hazardous waste by placing it in a facility where it will receive no further treatment or any treatment or storage method which does not meet the intent of one of the four categories above.

Facilities in this category would include all land disposal methods which did not involve destroying the waste or otherwise eliminating its hazardous characteristics before disposal.

This category would also include the use of such facilities as impoundments, lagoons, evaporating ponds, underground tanks, or other underground units as part of a treatment, storage or disposal process, providing that they are intended to contain hazardous waste. For this purpose, the term "underground" means that all or part of a unit is buried such that it cannot be routinely inspected for leaks or defects.

An example is, but not limited to:

—Land disposal.

2. Consequences of loss of control. These facilities have the highest degree of risk of surface or groundwater degradation because of the possibility for a leak to go undetected for a significant period of time. For disposal of units in this category there is also the added consideration of the risks associated with perpetual care of material which might be hazardous for many years. Facilities in this category could also be most prone to loss of control caused by floods.

For the purposes of siting criteria, the consequences of loss of control are:

a. Fire or explosion, or both.

b. Airborne contamination from evaporation or from sources described in Category III above.

c. Ground or surface water contamination.

d. Soil contamination.

F. General. Most facilities include several types of operation. For the purposes of classifying a proposed facility, the operation within the facility which is characterized by the highest category number shall determine which category shall characterize the facility. For example, if a facility had an operation which included both drum storage of waste under conditions that would meet Category I requirements and subsequently had on-site waste incineration step, the facility would fall in Category III because incineration is in a higher category than container storage. Another example might be a waste treatment facility with a completely enclosed neutralization process in which sulfuric acid contaminated water was mixed with lime. In this process, venting is not a significant part of the process. The result would be gypsum and water, neither of which would necessarily be hazardous material. If this process were fed from enclosed storage tanks the facility would be classified in Category II, assuming it met all the other requirements, because the enclosed neutralization process is in a higher category than enclosed storage. This would be true even if the gypsum were dried and piled on the ground and the water, after the acid was neutralized, was put in a pond prior to discharge into a river through a permitted waste water treatment facility, assuming that neither the gypsum nor the water would be classified as hazardous because of some other contaminant. If, however, in this latter example, the process generated a gas which needed to be vented to the atmosphere or which could be vented by a relief valve in an overpressure situation, the facility would have to be classified as Category III. Additionally, if the acid contaminated water was fed into this neutralization process from a pond (surface impoundment), the facility would be classified in Category V.

In making its determination of which category is appropriate for a proposed hazardous waste facility, the board shall consider the intent of each category as well as the specific descriptions above.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 2.2, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Article 3 Prohibition on Siting

9VAC20-50-70 Goal of board

Article 3 Prohibition on Siting

The goal of the board and this chapter is to protect the public health, quality of life and environment of the Commonwealth in Virginia from the improper siting of hazardous waste treatment, storage or disposal facilities. In achieving this goal, the board has determined that hazardous waste treatment, storage and disposal facilities should not be placed in certain specific locations of the state because of the environmentally sensitive nature of such locations and increased risk to health and environment by the placement of a hazardous waste facility in such locations. The criteria listed below and others as required by the board must be evaluated in the applicant's impact analysis.

A. No hazardous waste facility shall be sited in wetlands.

B. No hazardous waste facility shall be sited in a 100-year flood plain, or such larger area which the flood of record may have inundated, except as provided at commercial port facilities as provided in 9VAC20-50-80 A 6.

C. Underground injection of hazardous waste is not allowed in accordance with Virginia Hazardous Waste Management Regulations, 9VAC20-60.

D. No hazardous waste facility shall be sited in an area vulnerable to flooding resulting from dam failure. See definition of "Dam-related flood hazard areas."

E. No hazardous waste facility shall be sited over a sinkhole or less than 100 feet above a solution cavern beneath the facility associated with karst topography.

F. Facilities shall not be sited within areas designated by the National Park Service in the Registry of Natural Landmarks or sites listed on the National Register of Historic Places, and the Virginia Landmarks Register, unless the statute under which the designation of listing has been made authorizes the operation of such facilities in such areas.

G. Facilities shall not be sited in state, county and municipal parks, units of the National Park System, national recreation areas, state forests, the George Washington and Jefferson National Forests, state game lands, national wildlife refuges or national fish hatcheries unless the agency administering such lands has been given authority by statute or ordinance to allow the operation of such facilities on such lands.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 2.3, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Article 4 Siting Limitations

9VAC20-50-80 Site criteria

Article 4 Siting Limitations

The board, in making its determination to site a facility, conditionally or otherwise, or to deny an application to site a hazardous waste facility, will consider the criteria listed below in relation to the type of hazardous waste facility to be sited.

A. Limitations.

1. Water quality surface and groundwater.

a. The water resources of the state should be afforded the maximum protection reasonably possible. A major accident or leakage at a hazardous waste facility could lead to degradation of surface and groundwater in the vicinity of the facility. The degradation of the surface and groundwater could create a significant hazard to public health. Siting of a facility must take into account water quality problems which may result from the operation of the facility. The board will consider the following water quality characteristics and other factors determined appropriate for the type of facility:

(1) The proximity of the facility to surface and groundwaters, including aquifer recharge areas.

(2) The existing quality and current and future use of the surface and groundwaters.

(3) The risk to public health and the environment.

b. Category limits.

(1) Surface waters of the state are protected from point source and non-point sources of contamination by existing federal and state laws as administered by the State Water Control Board, the Virginia Department of Environmental Quality, and other agencies.

(2) Existing groundwater quality is to be protected from degradation based on the board's Anti-Degradation Goal for Groundwater and the provisions set forth in this section.

The board may require information on the following groundwater quality characteristics and other factors determined appropriate for Category I facilities. This information shall be provided for all other categories.

(a) Site geology/geohydrology;

(b) Depth to aquifers and thickness of overburden;

(c) Presence of fractures and faults, joints, solution cavities;

(d) Thickness of soil/saprolite layer;

(e) Present and potential aquifer use;

(f) Aquifer recharge/productivity;

(g) Proximity to sensitive receptors;

(h) Aquifers hydraulic characteristics:

(i) Hydraulic conductivity,

(ii) Transmissivity,

(iii) Storage coefficient,

(iv) Head distribution;

(i) Cation/anion exchange capacity.

And all other site characteristics requested.

For all systems and supplies, more restrictive limitations of other state agencies shall apply.

2. Community/noncommunity water system and supply surface water.

a. A hazardous waste facility should not be sited so that a community/noncommunity water system and supply of surface water would be jeopardized by the construction, operation, and close-out of the facility.

b. Category limits.

(1) Category I, II, or III facilities may be sited in proximity to a community/noncommunity drinking water system and supply of surface water if the construction, operation, and close-out of the proposed facility do not pose an unreasonable risk to the community/noncommunity water system and supply of surface water and the applicant demonstrates that the facility is designed and will be constructed, operated, and closed-out in a manner which will protect the public water system and supply of surface water from contamination by spills at the facility and demonstrates that spill containment at the facility is adequate to contain all spills. (See definition of "Proximity to a community/noncommunity water system and supply of surface water.")

(2) A category IV or V facility shall not be sited in proximity to a community/noncommunity water system and supply of surface water.

3. Community/noncommunity water system and supply groundwater.

a. The degradation of a community/noncommunity water system and supply of groundwater may create a significant hazard to public health. All community/noncommunity public water systems and supplies of groundwater should be adequately protected from the threat of degradation from a hazardous waste facility.

b. Category limits.

(1) Category I, II, and III facilities may be sited in proximity to a community/noncommunity water system and supply of groundwater if the construction, operation, and close-out of the proposed facility do not pose an unreasonable risk to the community/noncommunity water system and supply of groundwater and the applicant demonstrates that the facility is designed and will be constructed, operated, and closed-out in a manner which will protect the community/noncommunity water system and supply of groundwater from degradation by spills at the facility and demonstrates that spill containment at the facility is adequate to contain all spills. (See definition of "Proximity to a community/noncommunity water system and supply of groundwater.")

(2) Category IV and V hazardous waste facilities shall not be sited in proximity to any community/noncommunity water system and supply of groundwater.

4. Private water system and supply surface and groundwater.

a. A private water system and supply of surface and groundwater should be protected from the threat of degradation from a hazardous waste facility.

b. Category limits.

(1) Category I, II or III facilities may be sited in proximity to a private water system and supply of surface or groundwater if the construction, operation, and close-out of the proposed facility do not pose an unreasonable risk to the private water system and supply of surface and groundwater and the applicant demonstrates that the facility is designed, and will be constructed, operated, and closed-out in a manner which will protect the private water system and supply of surface and groundwater from degradation by spills at the facility and demonstrates that spill containment at the facility is adequate to contain all spills.

(2) Category IV and V facilities may be sited in proximity to a private water system and supply of surface or groundwater if the applicant demonstrates that a reasonable alternative drinking water supply to the existing drinking water supply is available and provides financial resources to develop the alternative supply should it become necessary due to degradation of the existing water supply resulting from a spill or leaks from the facility.

Water quality and geohydrologic studies as provided in 9VAC20-50-80 A 1 shall be conducted to reveal the potential for siting impacts and to indicate the level of risk associated with the proposed facility.

5. Air quality.

a. Siting of a facility must take into account air quality problems which may result from the operation of the facility or accidental fires and explosions which may occur. The board shall consider potential air quality problems which may occur as the result of historical or estimated meteorological conditions and to what extent such respective problems and conditions will affect neighboring communities. In considering air quality the board will consider the following characteristics and other factors determined appropriate for the type of facility:

(1) The characteristics (stability) of the atmosphere which affect the site;

(2) The population, present and projected, in relation to the facility and prevailing wind;

(3) Characteristics of the wind.

b. Category I-V facilities may be sited if the construction and operation of the proposed facility do not pose an unacceptable risk to public health and the applicant demonstrates that the facility is designed and will be constructed, operated and maintained in a manner which will protect the public health during normal operation or in the event of accidental releases.

6. Commercial port facilities.

a. An accident at a hazardous waste storage facility at a commercial port facility could result in immediate contamination of surface water and create a significant risk to public health and safety. Additional consideration should be given to storage facilities for hazardous waste at commercial port facilities based on the special risks posed.

b. Category I facilities for the temporary storage of hazardous wastes destined for import, export or ocean incineration, which are sited at port facilities specifically designed for commercial shipping, may be allowed if those facilities are designed for the storage of hazardous wastes and have been designed and will be constructed to withstand the 100-year flood and the flood of record at the port facility.

7. Endangered and threatened species habitat.

a. The board shall focus on adverse impacts of the facility on endangered and threatened species or critical habitat for wildlife generally and the extent to which mitigation measures can be effectively implemented.

b. A hazardous waste facility shall not be sited in locations where the siting, construction and operation of the proposed facility would occupy or threaten the known habitat or an endangered or threatened plant, insect, fish or wildlife species to the extent that the continued existence of the species is threatened.

8. Proximity to publicly designated areas.

a. Areas which are designated by federal, state and local governments for their exceptional characteristics are of special importance. These areas should be protected from unwarranted intrusion by the siting of hazardous waste facilities which could destroy the character, or use and enjoyment, and thus their objective, or their designation. The following categories are listed for their natural, scenic, historic, cultural and aesthetic values:

(1) Historic, cultural and natural sites and landmarks;

(2) The corridors of outstanding resource waters (wild, scenic and recreational);

(3) Publicly owned forest areas;

(4) Dedicated or designated open space;

(5) Public recreational areas;

(6) The Appalachian Trail or other federal and state designated trails;

(7) Wildlife refuges, fish hatcheries and game lands; and

(8) Scenic views.

b. Potential impacts of the proposed facility on the natural, scenic, historic, cultural and aesthetic values of the environment will be evaluated. The applicant must demonstrate that the construction and operation of the proposed facility will not impair the environmental and aesthetic qualities of the area. Distance from the publicly designated area to the facility will be taken into consideration.

9. Subsurface mining areas.

a. Areas where mineral resources of a solid, gaseous or liquid form have been removed by underground mining or drilling procedures or at the time of submission of the notice of intent are planned for removal are vulnerable to subsidence. Strong consideration should be given to the potential threat to the integrity of a proposed facility as a consequence of mining-related subsidence.

b. Category limits.

(1) Category I, II, and III facilities may be allowed in subsurface mining areas as defined in this chapter provided the applicant demonstrates that the facility is designed and will be constructed and operated such that the integrity of the facility will not be jeopardized by mine-related subsidence.

(2) Category IV and V facilities are not allowed in subsurface mining areas as defined in this chapter.

10. Slope.

a. Consideration should be given to the effect of the slope of the proposed site and adjacent lands with respect to waste management facilities including the speed at which uncontrolled releases may run off a site, site preparation techniques and costs, site design, operating procedures, site stability, potential for erosion, and visibility.

b. Category limits.

(1) Category I, II and III facilities may be allowed on slopes in excess of 15% if the applicant demonstrates that the facility is designed and will be constructed and operated such that the integrity of the facility will not be jeopardized.

(2) Category IV and V facilities are prohibited on slopes 15% or greater.

11. Active faults and seismic risk zones/seismogenic volume.

a. Major active fault zone and seismic risk zone/seismogenic volume features which are mapped by the U.S. Geological Survey, Virginia Department of Mines, Minerals and Energy, or other agency with the responsibility for such matters, or as discovered by site investigation by a professional geologist, may pose a potential for (i) seismic-related accidents, and/or (ii) associated degradation of ground and surface waters should a facility's containment measures be breached and leakage occur.

b. Category limits.

(1) Category I, II, and III facilities may be sited in proximity to an active fault or seismic risk zone/seismogenic volume if the construction and operation of the proposed facilities do not pose a risk to public health or the environment and the applicant demonstrates that the facility is designed and will be constructed, operated and maintained in a manner which will protect the public health and the environment from contamination by spills at the facility and demonstrates that spill containment at the facility is adequate to contain all spills.

(2) No Category IV or V facility will be sited within 305 meters (1,000 feet) of an active fault as mapped by the U.S. Geological Survey, the Division of Mineral Resources, Virginia Department of Mines, Minerals and Energy, or other agency with the responsibility for such matters or as discovered by site investigation by a professional geologist. No Category IV or V facility will be sited in proximity to an active fault or seismic risk zone/seismogenic volume unless the applicant demonstrates that the facility is designed and will be constructed, operated and maintained in a manner which will protect the physical integrity of the facility and protect the quality of ground and surface waters.

12. Risk of accident in transportation.

a. The board shall evaluate the risk associated with the transportation of hazardous waste to the proposed site. Accident risk is a function of the probability of an accident and the consequences of an accident, should one occur. The transport routes over which the wastes will be delivered to the site shall be considered by the board.

b. In considering risk of accident in transportation the board will assess:

(1) Mode of transport;

(2) Proposed highway/roadway system to be used;

(3) Accident rate of mode and route;

(4) Characteristics of structures within 0.5 mile of the route, i.e., schools, hospitals;

(5) Nature of transportation restrictions, i.e., traffic intersections, highway geometrics, traffic/railroad intersections, tunnels, bridges, toll booths, level of congestion;

(6) Schedule and frequency of deliveries, vehicle disposition plan in the event of facility shutdown;

(7) Potential adverse environmental or health effects in the event of an accident;

(8) Characteristics of the residential and nonresidential population within 0.5 mile of the transport route;

(9) Projected population and the rate of growth for areas within 0.5 mile of the transport routes during the 20-year period following initial site operation; and

(10) Host and affected community emergency response capability along the routes.

13. Proximity to major structures.

a. The linear distance from the site boundary to major structures must be considered (e.g., residence, airport, school, hospital, church, commercial centers, nursing home). Acceptable buffer zones separating residences and certain other types of sensitive populated structures from the types of operations conducted at hazardous waste sites are needed.

b. In reviewing the proposal, the board will assess:

(1) Proximity of airports, utilities and other major structures; and

(2) Characteristics of buffer zones.

14. Local government.

a. The site shall be considered for consistency with the local master land use plan or the pattern of already existing land uses or zoning ordinance of the host community where no comprehensive plan has been adopted. Consistency with local laws, ordinances, rules and regulations which have been adopted pursuant to a master land use plan will also be considered, including important farm land protection activities.

Further, the short and long term financial effects of the addition of the proposed facility to the locality shall be considered. Both the increased tax revenues and the added burden of providing services to the facility are important factors.

b. The board will assess both short and long term (20 years) effects:

(1) Consistency of site with the master land use plan, compatibility with existing land uses;

(2) Consistency with local laws, ordinances, rules and regulations;

(3) Local tax revenue generated;

(4) Public services required;

(5) Impact on property values; and

(6) Economic development impacts.

15. Fire and explosions.

a. Due to the nature of the wastes, special consideration must be given by the board to the potential for fires and explosions at the site. Because of the inherent quality of the wastes, the chief focus shall be on proposed safety measures and emergency response techniques.

b. In assessing the risk of fire and explosion, the board will evaluate:

(1) Distances from site to residential, commercial and industrial buildings, public highways, railroads.

(2) Minimum distances established by the board.

(3) Level of service for fire, police protection and emergency medical services and the applicant's emergency implementation plan.

(4) Proximity to fire department and fire fighting water supply.

(5) Measures to contain fire fighting water or other substance used in the event of accidents.

(6) Characteristics of the residential and nonresidential population within 0.5 mile of the site boundary.

(7) Projected population and the rate of growth for the area within 0.5 mile of the site boundary.

16. Soil characteristics.

a. Consideration should be given to the characteristics of the soils which affect the suitability of the site for the development proposed.

b. In reviewing the proposal, the board will assess the proposal based on, but not limited to, the following soil characteristics:

(1) Bearing qualities;

(2) Stability;

(3) Drainage; and

(4) Permeability.

B. Other factors. The board shall consider any other factors identified during the course of the certification process which are determined by the board to be relevant and impact the environment, quality of life, and public health, welfare or safety.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 2.4, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-50-90 Protection and prevention

In addition to an applicant meeting the requirements of Part II of this chapter, the board shall, in writing, find that:

A. The terms and conditions of the application will protect and prevent injury or unacceptable adverse risk to health, safety, welfare, the environment and natural resources, and the reasons to support such finding;

B. The facility is consistent with its criteria;

C. The applicant has made reasonable and appropriate efforts to reach a siting agreement with the host community, including, though not limited to, efforts to mitigate or compensate the host community and its residents for adverse economic effects, if any, of the facility.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 3.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

9VAC20-50-100 Additional agency approval

A. To avoid duplication to the maximum extent feasible with existing agencies and their areas of responsibility, related agency approvals are listed in subsection B of this section as notification to the applicant that these permits and reviews may apply in accordance with the type of facility proposed.

B. Permits.

1. Hazardous waste facility management.

a. Regulatory agency:

Virginia Waste Management Board.

b. State permit required:

Facility management.

c. Statutory authority:

(1) Chapter 11.1 (§ 10.1-1182 et seq.) of Title 10.1 of the Code of Virginia and the Virginia Waste Management Act, Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

(2) Virginia Hazardous Waste Management Regulations, 9VAC20-60.

d. Contact:

Department of Environmental Quality P.O. Box 1105 Richmond, VA 23218 (804) 698-4000

2. Air emissions.

a. Regulatory agency:

State Air Pollution Control Board.

b. State permit required:

Stationary sources

Hazardous pollutants

Open burning

c. Statutory authority, rules and regulations:

(1) Virginia Air Pollution Control Law.

(2) Federal Clean Air Act (42 USC § 7401 et seq.) and amendments.

(3) Hazardous Air Pollutant Sources, 9VAC5-60 and Permits for Stationary Sources, 9VAC5-80.

d. Contact:

Department of Environmental Quality P.O. Box 1105 Richmond, VA 23218 (804) 698-4000

3. Discharges into state waters.

a. Regulatory agency:

State Water Control Board.

b. State discharge permit required:

(1) Virginia Pollutant Discharge Elimination System (NPDES).

(2) No discharge certificate.

c. Statutory authority, rules and regulations:

(1) Federal Water Pollution Control Act Amendments of 1972 (33 USC § 1251 et seq.).

(2) State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia).

d. Contact:

Department of Environmental Quality P.O. Box 1105 Richmond, VA 23218 (804) 698-4000

4. Land disturbance.

a. Regulatory agency:

State Water Control Board or local government, or both.

b. State requirement:

Erosion and sediment control plan.

c. Statutory authority, rules and regulations:

(1) Erosion and sediment control law (§§ 62.1-44.15:51 et seq. of the Code of Virginia).

(2) Virginia Erosion and Sediment Control Handbook.

d. Contact:

Department of Environmental Quality P.O. Box 1105 Richmond, VA 23218 (804) 698-4000

5. Wetlands, subaqueous lands, and dunes.

a. Regulatory agencies:

Virginia Marine Resources Commission (VMRC) (Clearinghouse for permits)

Local wetlands boards

Virginia Department of Environmental Quality (VDEQ)

U.S. Army Corps of Engineers (USACE)

b. Permit required:

VMRC and local wetland boards: Use or development of any wetland within Tidewater, Virginia

VMRC: Coastal Dunes

VMRC, VDEQ and USACE: Tidal Wetlands and Subaqueous Land

VDEQ and USACE: Nontidal Wetlands

VDEQ: Isolated Wetlands

USACE: Activities in the navigable waters of the United States, degradation of the quality of water, and transportation and dumping of dredged material.

c. Statutory authority, rules and regulations:

(1) Wetlands (§ 28.2-1300 et seq. of the Code of Virginia).

(2) Waters of the State, Ports and Harbors (Title 62.1 of the Code of Virginia).

(3) Local wetland zoning ordinances.

(4) Federal Water Pollution Control Act (Clean Water Act, 33 USC § 1251 et seq.) §§ 401 and 404.

(5) Rivers and Harbors Act of 1894 (33 USC § 1371).

(6) Marine Protection Research and Sanctuary Act (16 USC §§ 1431-1434; 33 USC §§ 1401, 1402, 1411-1421, 1441-1444).

d. Contact:

(1) Assistant Commissioner for Habitat Management Marine Resources Commission 2600 Washington Avenue, 3rd Floor Newport News, VA 23607 (757) 247-2200

(2) Department of Environmental Quality P.O. Box 1105 Richmond, VA 23218 (804) 698-4000

(3) District Engineers U.S. Army Corps of Engineers Norfolk District 803 Front Street Norfolk, VA 23508

C. Reviews. Applications for permits may result in a review and comment process by state agencies. Such reviews may include comments concerning historic landmarks, archaeological sites, caves, best management practices, fisheries, and parks and recreation. Further information on review procedures can be obtained by contacting Department of Environmental Quality, P.O. Box 1105, Richmond, VA, 23218 or (804) 698-4000.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from VR672-01-5 § 4.1, eff. April 30, 1986; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 28, Issue 23, eff. August 15, 2012; Volume 32, Issue 24, eff. August 24, 2016.

Part V Delegations

9VAC20-50-110 Delegations

The director may perform any act of the board provided under this chapter except as limited by §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 20, eff. July 13, 2005.

Chapter 60 Virginia Hazardous Waste Management Regulations

Part I Definitions

9VAC20-60-10 (Repealed.)

Historical Notes

Derived from VR672-10-1, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-12 Definitions derived from the Code of Virginia

A. Chapter 11.1 (§ 10.1-1182 et seq.) and Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia define the meaning of terms as used in the text of the statutes. Terms not otherwise defined in these regulations or an incorporated reference text shall have the meaning as established in the statutes.

B. Where a term is defined in these regulations or an incorporated reference text, the term shall have no other meaning, even if it is defined differently in the Code of Virginia or another regulation of the Virginia Administrative Code. The board has authority to adopt regulations only as granted to it by the Code of Virginia, and nothing herein shall be interpreted as extending the effect or scope of a regulation beyond that authority.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-14 Definitions derived from incorporations of reference texts

A. These regulations contain the text herein and several incorporated texts from Title 40 of the Code of Federal Regulations (cited as 40 CFR followed by a part number, section number and subsection reference numbers). These incorporated texts are fully a part of these regulations; however, definitions, additions, modifications and exemptions stated in the text written herein direct how the incorporated text shall be interpreted, and they take precedence over the verbatim interpretation of the incorporated text. These incorporated texts include definitions that are fully a part of these regulations and generally applicable throughout all incorporated text and all text written herein; however, stated in the text written herein are directions as to how the incorporated text shall be interpreted, and these directions take precedence over the verbatim interpretation of the incorporated text.

B. Unless a specific direction regarding the substitution of terms is given elsewhere, the following terms, where they appear in the Code of Federal Regulations shall, for the purpose of these regulations, have the following meanings or interpretations:

1. "Director" shall supplant the "Administrator," "Assistant Administrator," "Assistant Administrator for Solid Waste and Emergency Response" and the "Regional Administrator," wherever they appear.

2. "Department of Environmental Quality" shall supplant the "United States Environmental Protection Agency," "Environmental Protection Agency," "Agency," "EPA," "EPA Headquarters," "EPA Region(s)" or "Regional Office," wherever they appear. The use of "EPA" as an adjective in "EPA Acknowledgment of Consent," "EPA document," "EPA form," "EPA identification number," "EPA number," "EPA Publication," or similar phrase shall not be supplanted with "Department of Environmental Quality" and shall remain as in the original text cited.

3. "EPA Environmental Appeals Board" or "Environmental Appeals Board" shall be supplanted with the appointed hearing officer at a formal hearing, the court of appropriate jurisdiction, or others as required by the Administrative Process Act, Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

4. "Qualified engineer" or "engineer" means a professional engineer certified to practice in the Commonwealth of Virginia.

5. "State," "authorized state," and "approved state" means the Commonwealth of Virginia.

6. "Approved program" means the Virginia regulatory program for the Virginia Hazardous Waste Management Regulations.

C. If a part of 40 CFR (as in 40 CFR Part 260) is cited, it shall mean the entire part (in this case, all of Part 260) including all subdivisions. If a section or subsection of a part of 40 CFR (as in 40 CFR 260.10) is cited, it shall mean the entire section (Section 10 of Part 260) and its subdivisions, but it does not include other sections or subsections of the same part.

D. The text of federal regulations incorporated by reference in these regulations includes dates that occurred before the effective date of the incorporation of those requirements into these regulations. Such dates shall not be construed as creating a retroactive right or obligation under the Virginia Hazardous Waste Management Regulations when that right or obligation did not exist in these regulations prior to the incorporation of the federal regulations by reference. In such cases, the effective date under Virginia Hazardous Waste Management Regulations is the earliest date the requirement was incorporated into these regulations or is as otherwise specified in these regulations. If a right or obligation existed under federal regulations based on a date in federal regulations and there is a period from the date cited in the incorporated text until the date they took effect in these regulations, nothing in these regulations shall contravene or countermand the legal application of the federal regulation for that period.

E. The text of federal regulations incorporated by reference in these regulations includes references to "RCRA," the "Resource Conservation and Recovery Act," sections of "RCRA," "Subtitle C of RCRA," the "Act," and other citations of enabling federal statutes. These statutes provide authority for actions by the United States Environmental Protection Agency, the administrator, and authorized states to regulate solid and hazardous waste management. The Virginia Waste Management Act (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia provides authority to the Virginia Waste Management Board, the director and the department analogous to many of those found in the federal statutes. See Part II (9VAC20-60-20 et seq.) of this chapter. Wherever in the incorporation by reference in these regulations of text from the Code of Federal Regulations there is a citation of authority from federal statutes, the authority and power of the analogous or related portions of the Virginia Waste Management Act shall be considered to apply in addition to the federal statutory citation and to support enforcement of the requirement.

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-17 Definitions created by these regulations

A. The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrator" means the Administrator of the United States Environmental Protection Agency or his designee. See 9VAC20-60-14 B 1.

"Another regulation of the Virginia Administrative Code" means any regulation that is not in 9VAC20-60, the Virginia Hazardous Waste Management Regulations.

"Application, Part A" means that part of the application that a permit applicant shall complete to qualify for interim status under § 3005(e) of RCRA or this chapter and for consideration for a permit.

"Application, Part B" means that part of the application that a permit applicant shall complete to be considered for a permit as required by 9VAC20-60-270.

"Approved program" means a state program that has been approved by the U.S. EPA. An "approved state" is one administering an "approved program" under the hazardous waste management provisions of RCRA.

"Authorization (authorized program)" means a state hazardous waste program that has been approved under the authorities of RCRA.

"Authorized representative" means the manager, superintendent, or person of equivalent responsibility responsible for the overall operation of a facility or an operational unit (i.e., part of a facility).

"Board" means the Virginia Waste Management Board.

"Commonwealth" means the Commonwealth of Virginia.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality.

"Emergency permit" means a permit issued where an imminent and substantial endangerment to human health or the environment is determined to exist by the director.

"EPA" means the U.S. Environmental Protection Agency. See 9VAC20-60-14 B 2.

"EPA identification number" means the number assigned by EPA or the department to each hazardous waste generator, hazardous waste transporter, or hazardous waste facility.

"EPA hazardous waste number" means the number assigned by EPA to each waste listed in Subpart D of 40 CFR Part 261 and to each waste exhibiting a characteristic identified in Subpart C of 40 CFR Part 261.

"Hazardous material" means a substance or material which has been determined by the Secretary of Transportation to be capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and which has been so designated under 49 CFR Parts 171 and 173.

"HSWA" means the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616).

"HSWA drip pad" means a drip pad where F032 wastes are handled.

"HSWA tank" means a tank owned or operated by a small quantity generator or an underground tank for which construction commenced after July 14, 1986, or an underground tank that cannot be entered for inspection.

"HWM" means hazardous waste management.

"Non-HSWA tank" means any tank that is not a HSWA tank.

"Non-HSWA drip pad" means a drip pad where F034 or F035 wastes are handled.

"Permit" means a control document issued by the Commonwealth pursuant to this chapter, or by the EPA administrator pursuant to applicable federal regulations. The term "permit" includes any functional equivalent such as an authorization, license, emergency permit, or permit by rule. It does not include interim status under RCRA or this chapter, nor does it include draft permits.

"Permitted hazardous waste management facility" or "permitted facility" means a hazardous waste treatment, storage, or disposal facility that has received an EPA or Commonwealth permit in accordance with the requirements of this chapter or a permit from an authorized state program.

"Qualified engineer" or "engineer" means a professional engineer certified to practice in the Commonwealth of Virginia.

"RCRA" means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 USC § 6901 et seq.).

"Regulation" means the control, direction and governance of solid and hazardous waste activities by means of the adoption and enforcement of laws, ordinances, rules and regulations.

"Responsible individual" means an individual authorized to sign official documents for and act on behalf of a company or organization. See also "authorized representative."

"Signature" means the name of a person written with his own hand.

"State director" means the Director of the Department of Environmental Quality.

"These regulations" means 9VAC20-60, the Virginia Hazardous Waste Management Regulations.

"VHWMR" means 9VAC20-60, the Virginia Hazardous Waste Management Regulations.

B. Terms used in liability insurance requirements. In the liability insurance requirements, the terms "bodily injury" and "property damage" shall have the meanings given these terms by the case law of the Virginia court system. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The department intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 34, Issue 14, eff. April 8, 2018.

9VAC20-60-18 Applicability of incorporated references based on the dates on which they became effective

Except as noted, when a regulation of the U.S. Environmental Protection Agency (EPA) set forth in Title 40 of the Code of Federal Regulations is referenced and incorporated into this chapter, that regulation shall be as it exists and has been published in the July 1, 2025, annual edition; however, the incorporation by reference of Title 40 of the Code of Federal Regulations shall not include the requirements of EPA's Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule (83 FR 24664, May 30, 2018).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 17, Issue 2, eff. November 8, 2000; Volume 18, Issue 3, eff. November 21, 2001; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 12, eff. March 26, 2003; Volume 20, Issue 2, eff. November 5, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 20, Issue 24, eff. September 8, 2004; Volume 22, Issue 23, eff. August 23, 2006; Volume 24, Issue 9, eff. February 6, 2008; Volume 26, Issue 11, eff. March 3, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 11, eff. February 28, 2013; Volume 30, Issue 12, eff. March 12, 2014; Volume 31, Issue 14, eff. April 8, 2015; Volume 32, Issue 9, eff. January 27, 2016; Volume 34, Issue 14, eff. April 8, 2018; Volume 35, Issue 24, eff. August 23, 2019; Volume 38, Issue 7, eff. December 22, 2021; Volume 39, Issue 9, eff. January 18, 2023; Volume 41, Issue 25, eff. August 27, 2025; Volume 42, Issue 22, eff. July 15, 2026; Volume 43, Issue 1, eff. September 23, 2026.

Part II General Information and Legislative Authority

9VAC20-60-20 Authority for chapter

General Information and Legislative Authority

A. This chapter is issued under Chapter 11.1 (§ 10.1-1182 et seq.) of Title 10.1 of the Code of Virginia and the Virginia Waste Management Act, Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

B. Section 10.1-1402 of the Code of Virginia assigns the Virginia Waste Management Board the responsibility for carrying out the purposes and provisions of the chapter and compatible provisions of federal acts.

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 2.1, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-30 Purpose of chapter

A. The purpose of this chapter is to provide for the control of all hazardous wastes that are generated within, or transported to, the Commonwealth for the purposes of storage, treatment, or disposal or for the purposes of resource conservation or recovery.

B. This chapter establishes a management control system that assures the safe and acceptable management of a hazardous waste from the moment of its generation through each step of management until the ultimate destruction or disposal.

C. This chapter is promulgated to meet the requirements of the Commonwealth legislative authority referenced in 9VAC20-60-20 A and will provide for a state hazardous waste program that will meet the requirements of RCRA.

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 2.2, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-40 Administration of chapter

A. The director is designated by the Act with the responsibility to carry out programs, consistent with board approval, that will comply with the requirements of the Act.

B. The board, acting on the advice of the director, will promulgate regulations to meet the requirements of the Act.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 2.3, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-60-50 Application of chapter

A. This chapter applies to any person that generates, transports, stores, treats, or disposes of a hazardous waste.

B. All persons who notify the U.S. Environmental Protection Agency under the authorities of § 3010 of RCRA are subject to the provisions of this chapter.

C. All persons who did not notify the U.S. Environmental Protection Agency under the authorities of § 3010 of RCRA, but that generate, transport, store, treat, or dispose of a hazardous waste shall also comply with the provisions of this chapter.

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 2.4, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-60 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; repealed, Virginia Register Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-70 Public participation

A. All regulations developed under the provisions of Title 10.1 of the Code of Virginia for hazardous waste management shall be developed in accordance with the provisions of the Commonwealth of Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and the Virginia Waste Management Board Public Participation Guidelines, 9VAC20-11.

B. Modifications and revisions to all hazardous waste management facility permits, except changes to interim status, shall be subject to public participation in accordance with 9VAC20-60-270.

C. Modifications and revisions to this chapter shall be the subject of public participation as specified by the Virginia Administrative Process Act and the public participation guidelines of the board.

D. Dockets of all permitting actions, enforcement actions, and administrative actions relative to this chapter shall be available to the public for review, consistent with the Commonwealth of Virginia Administrative Process Act, the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia), and the provisions of this chapter.

E. All reports and related materials received from hazardous waste generators, transporters, and facilities, as required by this chapter, shall be open to the public for review.

F. Public participation in the compliance evaluation and enforcement programs is encouraged. The department will:

1. Investigate and provide written responses to all citizen complaints addressed to the department;

2. Not oppose intervention by any citizen in a suit brought before a court by the department as a result of the enforcement action; and

3. Publish a notice in major daily or weekly newspaper of general circulation in the area and provide at least 30 days of public comment on proposed settlements of civil enforcement actions except where the settlement requires some immediate action.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 2.6, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-80 Enforcement and appeal procedures; offenses and penalties

A. All administrative enforcement and appeals taken from actions of the director relative to the provisions of this chapter shall be governed by the Virginia Administrative Process Act.

B. Sections 10.1-1455 through 10.1-1457 of the Code of Virginia provide for penalties, enforcement and judicial review. These sections describe the right of entry for inspections, the issuance of orders, penalties, injunctions, and other provisions and procedures for enforcement of these regulations.

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 2.7, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-90 [Reserved]. (Reserved)

9VAC20-60-100 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 3 to 3.2, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part III Incorporation of Federal Regulations by Reference

9VAC20-60-124 Adoption of 40 CFR Part 124 by reference

A. Except as otherwise provided, those regulations of the United States Environmental Protection Agency set forth in Subparts A and B of 40 CFR Part 124, wherein they relate to RCRA programs, are hereby incorporated as part of the VHWMR. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of incorporated sections of 40 CFR Part 124 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where text from 40 CFR Part 124 is incorporated by reference, the following additions, modifications and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. Other sections of these regulations, particularly in 9VAC20-60-270 and Part XIV (9VAC20-60-1370 et seq.) of this chapter, describe processes or procedures wherein items from 40 CFR Part 124 are applied as a part of more complete and detailed requirements. The incorporations of portions of 40 CFR Part 124 in this part shall not be construed so as to contradict or interfere with the operations of other parts of these regulations.

2. In addition to the citations in 40 CFR 124.5(a), permits may be modified, revoked and reissued, or terminated for reasons stated in 9VAC20-60-270 B and Part XIV (9VAC20-60-1370 et seq.) of this chapter.

3. Text of 40 CFR 124.5(b) is not incorporated into these regulations. Administrative appeal shall be conducted in accordance the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4. In 40 CFR 124.5(d), 40 CFR 124.6(e), and 40 CFR 124.10(b), the term "Regional Administrator" shall mean the regional administrator of Region III of the United States Environmental Protection Agency or his designee.

5. In 40 CFR 124.5(d), 40 CFR 124.6(e), and 40 CFR 124.10(b), the term "EPA" shall mean the United States Environmental Protection Agency.

6. In 40 CFR 124.10(c)(1)(ii), the term "EPA" shall mean the United States Environmental Protection Agency.

7. In 40 CFR 124.10 procedures are described for giving public notice in newspapers and radio broadcast when a draft permit has been prepared (40 CFR 124.10(a)(1)(ii)) or when a public hearing will be held on the draft permit (40 CFR 124.10(b)(2)). The applicant for a permit shall arrange for the newspaper publication and radio broadcast and bear the cost of the publication and broadcast. The department shall send notification to the applicant that the publication and broadcast are required and the notification shall include the text of the notice, dates of publication and broadcast, and acceptable newspapers and radio stations wherein the notice may be published. The department may arrange for the newspaper publication and radio broadcast and require the applicant to remit the cost of such publication and broadcast.

8. In 40 CFR 124.19 an appeal process is established that includes certain appeals procedures that apply to the federal hazardous waste program, including the establishment of an EPA Environmental Appeals Board. These Virginia regulations do not incorporate this federal process. Appeals under these regulations will be in accordance with the Administrative Process Act, Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia. All federal regulatory references to the appeal process or the EPA Environmental Appeals Board, such as in 40 CFR 124.5, shall be construed to mean the administrative processes and appeals processes as specified by Virginia's Administrative Process Act.

9. The petitioner for a variance from any regulation shall arrange for any newspaper publication and radio broadcast required under this chapter and to bear the cost of such publication and broadcast. The department shall send notification to the applicant that the publication and broadcast are required and the notification shall include the text of the notice, dates of publication and broadcast, and acceptable newspapers and radio stations wherein the notice may be published. The department may arrange for the newspaper publication and radio broadcast and require the applicant to remit the cost of such publication and broadcast.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-60-130 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 3.3 to 3.12, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-230 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 4 to 4.2, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-260 Adoption of 40 CFR Part 260 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 260 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are a part of 40 CFR Part 260 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 260 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. In 40 CFR 260.10, the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency or his designee.

2. In 40 CFR 260.10, the term "contained" shall be appended by adding the following: (5) Hazardous secondary materials managed under the exclusion provided in 40 CFR 261.4(a)(23) or (a)(24) shall not be managed in a land-based unit unless the land-based unit meets the applicable standards of 40 CFR Parts 260 through 270, as incorporated by reference, for management of hazardous waste.

3. In 40 CFR 260.10, the term "EPA" shall mean the United States Environmental Protection Agency.

4. In 40 CFR 260.10 the term "new tank system" and "existing tank system," the reference to July 14, 1986, applies only to tank regulations promulgated pursuant to federal Hazardous and Solid Waste Amendment (HSWA) requirements. HSWA requirement categories include:

a. Interim status and permitting requirements applicable to tank systems owned and operated by small quantity generators;

b. Leak detection requirements for all underground tank systems for which construction commenced after July 14, 1986; and

c. Permitting standards for underground tanks that cannot be entered for inspection.

For non-HSWA regulations, the reference date shall be January 1, 1998.

5. In 40 CFR 260.10, the term "Regional Administrator" shall mean the Regional Administrator of Region III of the United States Environmental Protection Agency or his designee.

6. In 40 CFR 260.10 definitions of the terms "Person," "State," and "United States," the term "state" shall have the meaning originally intended by the Code of Federal Regulations and not be supplanted by "Commonwealth of Virginia."

7. In 40 CFR 260.10 and wherever elsewhere in Title 40 of the Code of Federal Regulations the term "universal waste" appears, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed herein, the term "universal waste" shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, under such terms and requirements as shall therein be ascribed."

8. Throughout 40 CFR 260.11(a), the terms "EPA" and "U.S. Environmental Protection Agency" shall not be supplanted with the term "Commonwealth of Virginia."

9. In Part XIV (9VAC20-60-1370 et seq.), the Virginia Hazardous Waste Management Regulations contain provisions analogous to 40 CFR 260.30, 40 CFR 260.31, 40 CFR 260.32, 40 CFR 260.33, 40 CFR 260.34, 40 CFR 260.40, and 40 CFR 260.41. These sections of 40 CFR Part 260 are not incorporated by reference and are not a part of the Virginia Hazardous Waste Management Regulations.

10. Sections 40 CFR 260.2, 40 CFR 260.20, 40 CFR 260.21, 40 CFR 260.22, and 40 CFR 260.23 are not included in the incorporation of 40 CFR Part 260 by reference and are not a part of the Virginia Hazardous Waste Management Regulations.

11. Appendix I to 40 CFR Part 260 is not incorporated by reference and is not a part of the Virginia Hazardous Waste Management Regulations.

12. In the 40 CFR 260.10 definitions of the terms "AES filing compliance date," and "Electronic import-export reporting compliance date," the term "EPA" shall have the meaning originally intended by the Code of Federal Regulations and not be supplanted by "Department of Environmental Quality."

13. In 40 CFR 260.4(a)(4) and 40 CFR 260.5(b)(2), the term "EPA" shall be retained and shall mean the United States Environmental Protection Agency. The term "EPA" shall not be supplanted with "Department of Environmental Quality" as instructed in 9VAC20-60-14 B 2.

14. The United States Environmental Protection Agency's amendments to 40 CFR 260 by the Response to Vacatur of Certain Provisions of the Definition of Solid Waste rule (83 FR 24664, May 30, 2018) shall not be included in the incorporation by reference of 40 CFR 260 and are not part of this chapter, 9VAC20-60; therefore, the incorporation of 40 CFR 260 is modified as follows:

a. Retain 40 CFR 260.42 as it appears in EPA's Definition of Solid Waste rule (80 FR 1694, January 13, 2015).

b. Retain 40 CFR 260.43 as it appears in EPA's Definition of Solid Waste rule (80 FR 1694, January 13, 2015).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 5, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 26, Issue 11, eff. March 3, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 32, Issue 9, eff. January 27, 2016; Volume 34, Issue 14, eff. April 8, 2018; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-261 Adoption of 40 CFR Part 261 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 261 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are a part of 40 CFR Part 261 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 261 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into this chapter:

1. Any agreements required by 40 CFR 261.4(b)(11)(ii) shall be sent to the United States Environmental Protection Agency at Waste Identification Branch (5304), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460 and to the Department of Environmental Quality, P.O. Box 1105, Richmond, Virginia 23218.

2. In 40 CFR 261.4(e)(3)(iii), the text "in the Region where the sample is collected" shall be deleted.

3. In 40 CFR 261.4(f)(1), the term "Regional Administrator" shall mean the Regional Administrator of Region III of the United States Environmental Protection Agency or his designee.

4. In 40 CFR 261.6(a)(2), recyclable materials shall be subject to the requirements of 9VAC20-60-270 and Part XII (9VAC20-60-1260 et seq.) of this chapter.

5. Reserved.

6. In 40 CFR 261.9 and wherever elsewhere in Title 40 of the Code of Federal Regulations there is a listing of universal wastes or a listing of hazardous wastes that are the subject of provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed here, the term "universal waste" and all lists of universal waste or waste subject to provisions of 40 CFR Part 273 shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, in accordance with the terms and requirements described."

7. In Subparts B and D of 40 CFR Part 261, the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency, and the term "Director" shall not supplant "Administrator" throughout Subparts B and D.

8. For the purpose of this chapter, any solid waste is a hazardous waste if it is defined to be hazardous waste under the laws or regulations of the state in which it first became a solid waste.

9. In 40 CFR 261.6(c)(1) and 40 CFR 261.6(c)(2) mercury-containing lamp recycling facilities must also comply with all applicable requirements of 9VAC20-60-264 B 34 and 9VAC20-60-265 B 21.

10. In Subpart E of 40 CFR Part 261, the term "EPA" shall have the meaning originally intended by the Code of Federal Regulations and not be supplanted by "Department of Environmental Quality."

11. In 40 CFR 261.2(a), reference to 40 CFR 260.30, 40 CFR 260.31, and 40 CFR 260.34 are replaced by analogous provisions of Part XIV (9VAC20-60-1370 et seq.) of this chapter.

12. In 40 CFR 261.3(a)(2), reference to exclusion under 40 CFR 260.20 and 40 CFR 260.22 are not incorporated by reference.

13. In 40 CFR 261.21(f)(6)(i), the term "EPA" shall be retained and shall mean the United States Environmental Protection Agency. The term "EPA" shall not be supplanted with "Department of Environmental Quality" as instructed in 9VAC20-60-14 B 2.

14. The United States Environmental Protection Agency's (EPA's) amendments to 40 CFR 261 by the Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule (83 FR 24664, May 30, 2018) shall not be included in the incorporation by reference of 40 CFR 261 and are not part of this chapter, 9VAC20-60; therefore, the incorporation of 40 CFR 261 is modified as follows:

a. Retain 40 CFR 261.4(a)(23) as it appears in EPA's Definition of Solid Waste rule (80 FR 1694, January 13, 2015).

b. Retain 40 CFR 261.4(a)(24) as it appears in EPA's Definition of Solid Waste rule (80 FR 1694, January 13, 2015).

c. Reserve 40 CFR 261.4(a)(25) as it appears in EPA's Definition of Solid Waste rule (80 FR 1694, January 13, 2015).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 26, Issue 11, eff. March 3, 2010; Volume 27, Issue 11, March 2, 2011; Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016; Volume 33, Issue 5, eff. January 1, 2017; Volume 34, Issue 14, eff. April 8, 2018; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-262 Adoption of 40 CFR Part 262 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 262 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are parts of 40 CFR Part 262 are also hereby incorporated as parts of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 262 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. In 40 CFR 262.42(a)(2), the words "for the Region in which the generator is located" is deleted from the incorporated text and is not a part of these regulations.

2. In 40 CFR 262.18 and 40 CFR 262 Subpart H, the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency or his designee.

3. In 40 CFR 262.18 and 40 CFR 262 Subpart H, the term "Regional Administrator" shall mean the Regional Administrator of Region III of the United States Environmental Protection Agency or his designee.

4. For accumulation areas established after March 1, 1988, a large quantity generator shall notify the department and document in the operating record that he intends to accumulate hazardous waste in accordance with 40 CFR 262.17 prior to or immediately upon the establishment of each 90-day accumulation area. In the case of a new large quantity generator who creates such accumulation areas after March 1, 1988, he shall notify the department at the time the generator files the Notification of Hazardous Waste Activity EPA Form 8700‑12 that he intends to accumulate hazardous waste in accordance with 40 CFR 262.18. This notification shall specify the exact location of the 90-day accumulation area at the site.

5. In addition to the requirements in 40 CFR Part 262, management of hazardous wastes is required to comply with the Regulations Governing the Transportation of Hazardous Materials (9VAC20-110), including packaging and labeling for transport.

6. A generator shall not offer his hazardous waste to a transporter that has not received an EPA identification number or to a facility that has not received a permit and an EPA identification number.

7. In 40 CFR 262.24, 40 CFR 262.25, and 40 CFR Part 262, Subpart H, the terms "EPA" and "Environmental Protection Agency" shall mean the United States Environmental Protection Agency.

8. In addition to the requirements of this section, large quantity generators are required to pay an annual fee. The fee schedule and fee regulations are contained in Part XII (9VAC20-60-1260 through 9VAC20-60-1286) of this chapter.

9. Within 40 CFR 262.24, the reference to "system" means the United States Environmental Protection Agency's national electronic manifest system.

10. Regardless of the provisions of 9VAC20-60-18, the requirements of 40 CFR 262.24(g) are not incorporated into this chapter.

11. In 40 CFR 262.11(c) and 40 CFR 262.11(d), the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency.

12. No hazardous waste from a very small quantity generator shall be managed as described in 40 CFR 262.14(a)(5)(iv) or 40 CFR 262.14(a)(5)(v) unless such waste management is in full compliance with all requirements of the Solid Waste Management Regulations (9VAC20-81).

13. In 40 CFR 262 Subpart H, the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1426 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 30, Issue 24, eff. August 27, 2014; Volume 31, Issue 14, eff. April 8, 2015; Volume 31, Issue 21, eff. July 30, 2015; Volume 34, Issue 14, eff. April 8, 2018.

9VAC20-60-263 Adoption of 40 CFR Part 263 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 263 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are parts of 40 CFR Part 263 are also hereby incorporated as parts of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 263 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. Additional requirements for transportation of hazardous materials are included in Part VII (9VAC20-60-420 et seq.) of this chapter and in the Regulations Governing the Transportation of Hazardous Materials (9VAC20-110).

2. Sections of 40 CFR 263.10(d), 40 CFR 263.20(a)(2), 40 CFR 263.21(a)(2), 40 CFR 263.30, and 40 CFR 263.31 are not incorporated by reference and are not a part of the Virginia Hazardous Waste Management Regulations. See 9VAC20-60-490 for requirements related to transportation discharge management.

3. In 40 CFR 263.20, the terms "EPA" and "Environmental Protection Agency" shall mean the United States Environmental Protection Agency, and the reference to "system" means the United States Environmental Protection Agency's national electronic manifest system.

4. Regardless of the provisions of 9VAC20-60-18, the requirements of 40 CFR 263.20(a)(8) are not incorporated into this chapter.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1426 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 31, Issue 14, eff. April 8, 2015; Volume 34, Issue 14, eff. April 8, 2018.

9VAC20-60-264 Adoption of 40 CFR Part 264 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 264 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 264 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 264 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. Sections 40 CFR 264.1(d), 40 CFR 264.1(f), 40 CFR 264.149, 40 CFR 264.150, 40 CFR 264.301(l), and Appendix VI are not included in the incorporation of 40 CFR Part 264 by reference and are not a part of the Virginia Hazardous Waste Management Regulations.

2. In 40 CFR 264.1(g)(11) and wherever elsewhere in Title 40 of the Code of Federal Regulations there is a listing of universal wastes or a listing of hazardous wastes that are the subject of provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed here, the term "universal waste" and all lists of universal waste or waste subject to provisions of 40 CFR Part 273 shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, in accordance with the terms and requirements described."

3. In 40 CFR 264.12(a), the term "Regional Administrator" shall mean the Regional Administrator of Region III of the United States Environmental Protection Agency or his designee.

4. In 40 CFR 264.33, the following sentence shall be added to the end of the paragraph: "A record of tests or inspections will be maintained on a log at that facility or other reasonably accessible and convenient location."

5. In addition to the notifications required by 40 CFR 264.56(d)(2), notification shall be made to the on-scene coordinator, the National Response Center, and the Virginia Department of Emergency Management, Emergency Operations Center. In the associated report filed under 40 CFR 264.56(i), the owner or operator shall include such other information specifically requested by the director, which is reasonably necessary and relevant to the purpose of an operating record.

6. In 40 CFR 264.93, "hazardous constituents" shall include constituents identified in 40 CFR Part 264 Appendix IX in addition to those in 40 CFR Part 261 Appendix VIII.

7. The federal text at 40 CFR 264.94(a)(2) is not incorporated by reference. The following text shall be substituted for 40 CFR 264.94(a)(2): "For any of the constituents for which the USEPA has established a Maximum Contaminant Level (MCL) under the National Primary Drinking Water Regulation, 40 CFR Part 141 (regulations under the Safe Drinking Water Act), the concentration must not exceed the value of the MCL; or."

8. The owner or operator must submit the detailed, written closure cost estimate described in 40 CFR 264.142 upon the written request of the director.

9. In 40 CFR 264.143(b)(1), 40 CFR 264.143(c)(1), 40 CFR 264.145(b)(1), and 40 CFR 264.145(c)(1), any surety company issuing surety bonds to guarantee payment or performance must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia.

10. In 40 CFR 264.143(b), 40 CFR 264.143(c), 40 CFR 264.145(b), and 40 CFR 264.145(c), any owner or operator demonstrating financial assurance for closure or post-closure care using a surety bond shall submit with the surety bond a copy of the deed book page documenting that the power of attorney of the attorney-in-fact executing the bond has been recorded pursuant to § 38.2-2416 of the Code of Virginia.

11. Where in 40 CFR 264.143(c)(5) the phrase "final administrative determination pursuant to section 3008 of RCRA" appears, it shall be replaced with "final determination pursuant to Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia."

12. The following text shall be substituted for 40 CFR 264.143(d)(8): "Following a final administrative determination pursuant to Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia that the owner or operator has failed to perform final closure in accordance with the approved closure plan, the applicable regulations or other permit requirements when required to do so, the director may draw on the letter of credit."

13. The following text shall be substituted for 40 CFR 264.143(e)(1): "An owner or operator may satisfy the requirements of this section by obtaining closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance, along with a complete copy of the insurance policy, to the department. An owner or operator of a new facility must submit the certificate of insurance along with a complete copy of the insurance policy to the department at least 60 days before the date on which the hazardous waste is first received for treatment, storage or disposal. The insurance must be effective before this initial receipt of hazardous waste. At a minimum, the insurer must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia."

14. The following text shall be substituted for 40 CFR 264.143(f)(3)(ii), 40 CFR 264.145(f)(3)(ii), and 40 CFR 264.147(f)(3)(ii): "A copy of the owner's or operator's audited financial statements for the latest completed fiscal year; including a copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and"

15. In addition to the other requirements in 40 CFR 264.143(f)(3), 40 CFR 264.145(f)(3) and 40 CFR 264.147(f)(3), an owner or operator must submit confirmation from the rating service that the owner or operator has a current rating for its most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's if the owner or operator passes the financial test with a bond rating as provided in 40 CFR 264.143(f)(1)(ii)(A).

16. The following text shall be substituted for 40 CFR 264.143(h) and 40 CFR 264.145(h): "An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility in Virginia. Evidence of financial assurance submitted to the department must include a list showing, for each facility, the EPA Identification Number, name, address, and the amount of funds for closure or post-closure assured by the mechanism. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for closure or post-closure care of any of the facilities covered by the mechanism, the director may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism."

17. In addition to the requirements of 40 CFR 264.144, "the owner or operator must submit a detailed, written post-closure cost estimate upon the written request of the director."

18. The following text shall be substituted for 40 CFR 264.144(b): "During the active life of the facility and the post-closure period, the owner or operator must adjust the post-closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instruments used to comply with 40 CFR 264.145. For owners or operators using the financial test or corporate guarantee, the post-closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before the submission of updated information to the department as specified in 40 CFR 264.145(f)(5). The adjustment may be made by recalculating the post-closure cost estimate in current dollars or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business as specified in 40 CFR 264.142(b)(1) and (2). The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year.

a. The first adjustment is made by multiplying the post-closure cost estimate by the inflation factor. The result is the adjusted post-closure cost estimate.

b. Subsequent adjustments are made by multiplying the latest adjusted post-closure cost estimate by the latest inflation factor."

19. The following text shall be substituted for 40 CFR 264.144(c): "During the active life of the facility and the post-closure period, the owner or operator must revise the post-closure cost estimate within 30 days after the director has approved the request to modify the post-closure plan, if the change in the post-closure plan increases the cost of post-closure care. The revised post-closure cost estimate must be adjusted for inflation as specified in 264.144(b)."

20. Where in 40 CFR 264.145(c)(5) the phrase "final administrative determination pursuant to section 3008 of RCRA" appears, it shall be replaced with "final determination pursuant to Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia."

21. The following text shall be substituted for 40 CFR 264.145(d)(9): "Following a final administrative determination pursuant to Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia that the owner or operator has failed to perform post-closure in accordance with the approved post-closure plan, the applicable regulations, or other permit requirements when required to do so, the director may draw on the letter of credit."

22. The following text shall be substituted for 40 CFR 264.145(e)(1): "An owner or operator may satisfy the requirements of this section by obtaining post-closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the department. An owner or operator of a new facility must submit the certificate of insurance along with a complete copy of the insurance policy to the department at least 60 days before the date on which the hazardous waste is first received for treatment, storage or disposal. The insurance must be effective before this initial receipt of hazardous waste. At a minimum, the insurer must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia."

23. In 40 CFR 264.147(a)(1)(ii), 40 CFR 264.147(b)(1)(ii), 40 CFR 264.147(g)(2), and 40 CFR 264.147(i)(4), the term "Virginia" shall not be substituted for the term "State" or "States."

24. In 40 CFR 264.191(a), the compliance date of January 12, 1988, applies only for HSWA tanks. For non-HSWA tanks, the compliance date is November 2, 1997, instead of January 12, 1997.

25. In 40 CFR 264.191(c), the reference to July 14, 1986, applies only to HSWA tanks. For non-HSWA tanks, the applicable date is November 2, 1987, instead of July 14, 1986.

26. In 40 CFR 264.193, the federal effective dates apply only to HSWA tanks. For non-HSWA tanks, the applicable date is November 2, 1997, instead of January 12, 1997.

27. A copy of all reports made in accordance with 40 CFR 264.196(d) shall be sent to the director and to the chief administrative officer of the local government of the jurisdiction in which the event occurs. The sentence in 40 CFR 264.196(d)(1), "If the release has been reported pursuant to 40 CFR Part 302, that report will satisfy this requirement." is not incorporated by reference into these regulations and is not a part of the Virginia Hazardous Waste Management Regulations.

28. The following text shall be substituted for 40 CFR 264.570(a): "The requirements of this subpart apply to owners and operators of facilities that use new or existing drip pads to convey wood drippage, precipitation and/or surface water run-off to an associated collection system. Existing HSWA drip pads are those constructed before December 6, 1990, and those for which the owner or operator has a design and has entered into a binding financial or other agreement for construction prior to December 6, 1990. Existing non-HSWA drip pads are those constructed before January 14, 1993, and those for which the owner or operator has a design and has entered into a binding financial or other agreements for construction prior to January 14, 1993. All other drip pads are new drip pads. The requirement at 40 CFR 264.573(b)(3) to install a leak collection system applies only to those HSWA drip pads that are constructed after December 24, 1992, except for those constructed after December 24, 1992, for which the owner or operator has a design and has entered into a binding financial or other agreement for construction prior to December 24, 1992. For non-HSWA drip pads, the requirement at 40 CFR 264.573(b)(3) to install a leak collection system applies only to those non-HSWA drip pads that are constructed after September 8, 1993, except for those constructed after September 8, 1993, for which the owner or operator has a design and has entered into a binding financial or other agreement for construction prior to September 8, 1993."

29. In 40 CFR 264.1030(c), the reference to 40 CFR 124.15 shall be replaced by a reference to 40 CFR 124.5.

30. The underground injection of hazardous waste for treatment, storage or disposal shall be prohibited throughout the Commonwealth of Virginia.

31. In addition to the notices required in Subpart B and others parts of 40 CFR Part 264, the following notices are also required:

a. The owner or operator of a facility that has arranged to receive hazardous waste from a foreign source (a source located outside of the United States of America) shall notify the department and administrator in writing at least four weeks in advance of the date the waste is expected to arrive at the facility. Notice of subsequent shipments of the same waste from the same foreign source is not required.

b. The owner or operator of a facility that receives hazardous waste from an off-site source (except where the owner or operator of the facility is also the generator of this waste) shall inform the generator in writing that he has appropriate permits for, and will accept, the waste that the generator is shipping. The owner or operator shall keep a copy of this written notice as part of the operating record.

c. Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure care period, the owner or operator shall notify the new owner or operator in writing of the requirements contained in this section and 9VAC20-60-270. An owner or operator's failure to notify the new owner or operator of the requirements in this section and 9VAC20-60-270 in no way relieves the new owner or operator of his obligation to comply with all applicable requirements.

d. Any person responsible for the release of a hazardous substance from the facility that poses an immediate or imminent threat to public health and who is required by law to notify the National Response Center shall notify the department and the chief administrative officer of the local government of the jurisdiction in which the release occurs or their designees. In cases when the released hazardous substances are hazardous wastes or hazardous waste constituents additional requirements are prescribed by Subpart D of 40 CFR Part 264.

32. In 40 CFR 264.71, the terms "EPA" and "Environmental Protection Agency" shall mean the United States Environmental Protection Agency, and the reference to "system" means the United States Environmental Protection Agency's national electronic manifest system.

33. Subpart FF of 40 CFR Part 264 shall not be incorporated into this chapter.

34. Requirements for mercury-containing lamp recycling facilities. The following requirements apply to all facilities that recover or reclaim mercury from lamps.

a. All owners and operators of mercury-containing lamp recycling facilities shall:

(1) Have established markets for the utilization of reclaimed materials and be able to identify these markets to the department;

(2) Only introduce into the processing equipment lamps or devices for which the equipment was specifically designed to process and operate and maintain processing equipment consistent with the equipment manufacturer's specifications; and

(3) Not speculatively accumulate the materials.

b. If a mercury-containing lamp recycling facility's processed materials are to be delivered to a facility other than a mercury reclamation facility, the owner or operator shall:

(1) Demonstrate proper equipment operation and efficiency by sampling and analytical testing of the processed materials. The testing shall ensure that such processed materials (i) have less than three parts per million of "average mercury" during each consecutive 12-week time period of operations ("average mercury" shall be calculated pursuant to subdivision 34 b (3) of this subsection); (ii) have less than five parts per million of total mercury as reported in the "weekly composite sample of process operations" ("weekly composite sample of process operations" shall be calculated pursuant to subdivision 34 b (3) of this subsection); (iii) are not a hazardous waste; and (iv) comply with 40 CFR Part 268, if applicable.

(2) Retest, reprocess, or deliver to a mercury reclamation facility processed materials that are in excess of the allowable levels of mercury specified in subdivision 34 b (1) of this subsection.

(3) Sample and perform analytical testing of the processed material for total mercury as follows:

(a) Facility operators shall take daily physical samples of the mercury-containing materials at the point at which they exit the processing equipment. These samples shall be representative of the materials processed during that day.

(b) At the beginning of each week, the prior week's daily samples shall be consolidated into one weekly sample, which shall be submitted for chemical analysis of total mercury content using an approved EPA methodology. At least three separate daily samples shall be taken in order to obtain a weekly sample. When a facility is not operating at least three days during a week, that week will be dropped out of the 12-week rolling average as calculated under subdivision 34 b (3) (c) of this subsection. However, all daily samples that are in a week that has been dropped out shall be counted towards the very next weekly sample that is included in a 12-week rolling average. The result of this analysis shall be considered the "weekly composite sample of process operations."

(c) The "average mercury" value calculation shall be the rolling average of weekly composite sample results from samples taken during the most recent 12-week time period with each new weekly composite sample result replacing the oldest sample result that was used in the previous 12-week period.

c. Mercury-containing lamp recycling facilities shall ensure that the separated materials that are generated from their operations are suitable and safe for their intended end use and shall bear the burden of responsibility for the safety of these materials sold or delivered from the operations. Facilities shall notify in writing receiving sources, other than mercury reclamation facilities, of the amount and type of hazardous substances present in the processed materials as demonstrated by laboratory analysis.

d. Operating requirements. Mercury-containing lamp recycling facilities shall be operated in accordance with the following requirements:

(1) Mercury-containing lamp recycling facilities shall control mercury emissions through the use of a single air handling system with redundant mercury controls and comply with the following:

(a) The owner or operator shall operate, monitor, and maintain an air handling system with redundant air pollution control equipment in order to reduce the mercury content of the air collected during the volume reduction and mercury recovery and reclamation processes.

(b) Redundant air pollution control equipment shall incorporate at least two carbon filters or equivalent technology arranged in a series so that the air passes through both filters before being released. In the event of a single filter failure, each filter shall be designed to ensure compliance with the risk-based protectiveness standards for mercury vapor provided in subdivision 34 e of this subsection.

(c) A sample of air shall be collected after the first carbon filter (or equivalent technology) and upstream of the second once each operating day while mercury-containing lamps or devices are being processed. The mercury content of the sample shall be determined for comparison with the risk-based protectiveness standards provided in subdivision 34 e of this subsection.

(d) The owner or operator shall operate, monitor, and maintain the air pollution control equipment in such a manner as not to exceed the risk-based protectiveness standards under subdivision 34 e of this subsection for mercury vapor downstream of the first carbon filter (or equivalent technology) and upstream of the second carbon filter.

(2) The area in which the processing equipment is located shall be fully enclosed and kept under negative pressure while processing mercury-containing lamps or devices.

e. Testing for mercury releases from lamp crushing units shall be performed using a mercury vapor analyzer that has been approved for the application by the U.S. Occupational Safety and Health Administration or the Virginia Department of Labor and Industry or a comparable device that has been calibrated by the manufacturer or laboratory providing the equipment. Mercury vapor monitors used for testing must be capable of detecting mercury at the applicable concentrations provided below or lower in air and must be equipped with a data recording device to provide a record of measurements taken. Mercury monitoring data shall be documented and available for inspection in accordance with subdivision 34 g of this subsection. The acute exposure protectiveness standard is 300 µg/m³ for a 10-minute exposure with the understanding that the acute exposure protectiveness standard is considered a ceiling value and at no time during bulb crushing operation will the air concentrations of mercury exceed 300 µg/m³. The following are risk-based protectiveness standards at a distance of five feet from the bulb crushing unit:

| | Monthly Bulb Crushing Duration (X Hours/Month)* | Chronic Exposure Air Emission Limit (µg/m³) | Acute Exposure Air Emission Limit (µg/m³) | | --- | --- | --- | --- | | | X ≥ 32 | 1.314^skin µg/m³ | 300 µg/m³ | | | 8 < X < 32 | 6.317^skin µg/m³ | 300 µg/m³ | | | X ≤ 8 | 27.375^skin µg/m³ | 300 µg/m³ | | | *Monthly crushing duration is determined based on the maximum number of hours that bulb crushing occurred in any one month over the last 12-month period. | | |

f. Closure. Mercury-containing lamp recycling facilities must prepare and maintain a closure plan conforming to the requirements of 40 CFR Part 264, Subpart G as adopted by reference in this section. Financial assurance shall be provided to the department in accordance with 40 CFR Part 264, Subpart H as adopted by reference in this section.

g. Recordkeeping requirements. The owner or operator of a mercury-containing lamp recycling facility shall maintain records of monitoring information that (i) specify the date, place, and time of measurement; (ii) provide the methodology used; and (iii) list the analytical results. The records maintained shall include all calibration and maintenance records of monitoring equipment. The owner or operator shall retain records of all monitoring data and supporting information available for department inspection for a period of at least three years from the date of collection.

35. The following additional information is required from owners or operators of facilities that store or treat hazardous waste in waste piles if an exemption is sought to Subpart F of 40 CFR Part 264 and 40 CFR 264.251 as provided in 40 CFR 264.250(c) and 40 CFR 264.90(b)(2):

a. An explanation of how the standards of 40 CFR 264.250(c) will be complied with; and

b. Detailed plans and an engineering report describing how the requirements of 40 CFR 264.90(b)(2) will be met.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 33, Issue 5, eff. January 1, 2017; Volume 34, Issue 14, eff. April 8, 2018; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-265 Adoption of 40 CFR Part 265 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 265 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are parts of 40 CFR Part 265 are also hereby incorporated as parts of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 265 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. Sections 40 CFR 265.1(c)(4), 40 CFR 265.149 and 40 CFR 265.150 and Subpart R of 40 CFR Part 265 are not included in the incorporation of 40 CFR Part 265 by reference and are not a part of the Virginia Hazardous Waste Management Regulations.

2. In 40 CFR 265.1(c)(14) and wherever elsewhere in Title 40 of the Code of Federal Regulations there is a listing of universal wastes or a listing of hazardous wastes that are the subject of provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed here, the term "universal waste" and all lists of universal waste or waste subject to provision of 40 CFR Part 273 shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, in accordance with the terms and requirements described."

3. A copy of all reports and notices made in accordance with 40 CFR 265.12 shall be sent to the department, the administrator and the chief administrative officer of the local government of the jurisdiction in which the event occurs.

4. In 40 CFR 265.12(a), the term "Regional Administrator" shall mean the Regional Administrator of Region III of the United States Environmental Protection Agency or his designee.

5. In 40 CFR 265.33, the following sentence shall be added to the end of the paragraph: "A record of tests or inspections will be maintained on a log at that facility or other reasonably accessible and convenient location."

6. In addition to the notifications required by 40 CFR 265.56(d)(2), notification shall be made to the on-scene coordinator, the National Response Center, and the Virginia Department of Emergency Management, Emergency Operations Center. In the associated report filed under 40 CFR 265.56(i), the owner or operator shall include such other information specifically requested by the director, which is reasonably necessary and relevant to the purpose of an operating record.

7. In addition to the requirements of 40 CFR 265.91, a log shall be made of each groundwater monitoring well describing the soils or rock encountered, the permeability of formations, and the cation exchange capacity of soils encountered. A copy of the logs with appropriate maps shall be sent to the department.

8. The following text shall be substituted for 40 CFR 265.143(g) and 40 CFR 265.145(g): "An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility in Virginia. Evidence of financial assurance submitted to the department must include a list showing, for each facility, the EPA Identification Number, name, address, and the amount of funds for closure or post-closure assured by the mechanism. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for closure or post-closure care of any of the facilities covered by the mechanism, the director may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.

9. In 40 CFR 265.147(a)(1)(ii), 40 CFR 265.147(g)(2), and 40 CFR 265.147(i)(4), the term "Virginia" shall not be substituted for the term "State" or "States."

10. In 40 CFR 265.191(a), the compliance date of January 12, 1988, applies only for HSWA tanks. For non-HSWA tanks, the compliance date is November 2, 1986.

11. In 40 CFR 265.191(c), the reference to July 14, 1986, applies only to HSWA tanks. For non-HSWA tanks, the applicable date is November 2, 1987.

12. In 40 CFR 265.193, the federal effective dates apply only to HSWA tanks. For non-HSWA tanks, the applicable date of January 12, 1987, is replaced with November 2, 1997.

13. The following text shall be substituted for 40 CFR 265.440(a): "The requirements of this subpart apply to owners and operators of facilities that use new or existing drip pads to convey wood drippage, precipitation and/or surface water run-off to an associated collection system. Existing HSWA drip pads are those constructed before December 6, 1990, and those for which the owner or operator has a design and has entered into a binding financial or other agreement for construction prior to December 6, 1990. Existing non-HSWA drip pads are those constructed before January 14, 1993, and those for which the owner or operator has a design and has entered into a binding financial or other agreement for construction prior to January 14, 1993. All other drip pads are new drip pads. The requirement at 40 CFR 265.443(b)(3) to install a leak collection system applies only to those HSWA drip pads that are constructed after December 24, 1992, except for those constructed after December 24, 1992, for which the owner or operator has a design and has entered into a binding financial or other agreement for construction prior to December 24, 1992. For non-HSWA drip pads, the requirement at 40 CFR 264.573(b)(3) to install a leak collection system applies only to those non-HSWA drip pads that are constructed after September 8, 1993, except for those constructed after September 8, 1993, for which the owner or operator has a design and has entered into a binding financial or other agreement for construction prior to September 8, 1993."

14. In 40 CFR 265.1083(c)(4)(ii), the second occurrence of the term "EPA" shall mean the United States Environmental Protection Agency.

15. In addition to the requirements of 40 CFR 265.310, the owner or operator shall consider at least the following factors in addressing the closure and post-closure care objectives of this part:

a. Type and amount of hazardous waste and hazardous waste constituents in the landfill;

b. The mobility and the expected rate of migration of the hazardous waste and hazardous waste constituents;

c. Site location, topography, and surrounding land use, with respect to the potential effects of pollutant migration;

d. Climate, including amount, frequency and pH of precipitation;

e. Characteristics of the cover, including material, final surface contours, thickness, porosity and permeability, slope, length of run of slope, and type of vegetation on the cover; and

f. Geological and soil profiles and surface and subsurface hydrology of the site.

16. Additionally, during the post-closure care period, the owner or operator of a hazardous waste landfill shall comply with the requirements of 40 CFR 265.116 and the following items:

a. Maintain the function and integrity of the final cover as specified in the approved closure plan;

b. Maintain and monitor the leachate collection, removal, and treatment system, if present, to prevent excess accumulation of the leachate in the system;

c. Maintain and monitor the landfill gas collection and control system, if present, to control the vertical and horizontal escape of gases;

d. Protect and maintain, if present, surveyed benchmarks; and

e. Restrict access to the landfill as appropriate for its post-closure use.

17. The underground injection of hazardous waste for treatment, storage or disposal shall be prohibited throughout the Commonwealth of Virginia.

18. Regulated units of the facility are those units used for storage treatment or disposal of hazardous waste in surface impoundments, waste piles, land treatment units, or landfills that received hazardous waste after July 26, 1982. In addition to the requirements of Subpart G of 40 CFR Part 265, owners or operators of regulated units who manage hazardous wastes in regulated units shall comply with the closure and post-closure requirements contained in Subpart G of 40 CFR Part 264, Subpart H of 40 CFR Part 264, and Subpart K of 40 CFR Part 264 through Subpart N of 40 CFR Part 264, as applicable, and shall comply with the requirements in Subpart F of 40 CFR Part 264 during any post-closure care period and for the extended ground water monitoring period, rather than the equivalent requirements contained in 40 CFR Part 265. The following provisions shall also apply:

a. For owners or operators of surface impoundments or waste piles included above who intend to remove all hazardous wastes at closure in accordance with 40 CFR 264.228(a)(1) or 40 CFR 264.258(a), as applicable, submittal of contingent closure and contingent post-closure plans is not required. However, if the facility is subsequently required to close as a landfill in accordance with Subpart N of 40 CFR Part 264, a modified closure plan shall be submitted no more than 30 days after such determination. These plans will be processed as closure plan amendments. For such facilities, the corresponding post-closure plan shall be submitted within 90 days of the determination that the unit shall be closed as a landfill.

b. A permit application as required under 9VAC20-60-270 to address the post-closure care requirements of 40 CFR 264.117 and for groundwater monitoring requirements of 40 CFR 264.98, 40 CFR 264.99, or 40 CFR 264.100, as applicable, shall be submitted for all regulated units that fail to satisfy the requirements of closure by removal or decontamination in 40 CFR 264.228(a)(1), 40 CFR 264.258(a), or 40 CFR 264.280(d) and 40 CFR 264.280(e), as applicable. The permit application shall be submitted at the same time as the closure plan for those units closing with wastes in place and six months following the determination that closure by removal or decontamination is unachievable for those units attempting such closure. The permit application shall address the post-closure care maintenance of both the final cover and the groundwater monitoring wells as well as the implementation of the applicable groundwater monitoring program whenever contaminated soils, subsoils, liners, etc., are left in place. When all contaminated soils, subsoils, liners, etc., have been removed yet groundwater contamination remains, the permit application shall address the post-closure care maintenance of the ground water monitoring wells as well as the implementation of the applicable ground water monitoring program.

c. In addition to the requirements of 40 CFR 264.112(d)(2)(i) for requesting an extension to the one-year limit, the owner or operator shall demonstrate that he will continue to take all steps to prevent threats to human health and the environment.

d. In addition to the requirements of 40 CFR 264.119(c), the owner or operator shall also request a modification to the post-closure permit if he wishes to remove contaminated structures and equipment.

19. In 40 CFR 265.71, the terms "EPA" and "Environmental Protection Agency" shall mean the United States Environmental Protection Agency, and the reference to "system" means the United States Environmental Protection Agency's national electronic manifest system.

20. Subpart FF of 40 CFR Part 265 shall not be incorporated into this chapter.

21. Requirements for mercury-containing lamp recycling facilities. The following requirements apply to all facilities that recover or reclaim mercury from lamps:

a. All owners and operators of mercury-containing lamp recycling facilities shall:

(1) Have established markets for the utilization of reclaimed materials and be able to identify these markets to the department;

(2) Only introduce into the processing equipment lamps or devices for which the equipment was specifically designed to process and operate and maintain processing equipment consistent with the equipment manufacturer's specifications; and

(3) Not speculatively accumulate the materials.

b. If a mercury-containing lamp recycling facility's processed materials are to be delivered to a facility other than a mercury reclamation facility, the owner or operator shall:

(1) Demonstrate proper equipment operation and efficiency by sampling and analytical testing of the processed materials. The testing shall ensure that such processed materials (i) have less than three parts per million of "average mercury" during each consecutive 12-week time period of operations ("average mercury" shall be calculated pursuant to subdivision 21 b (3) of this subsection); (ii) have less than five parts per million of total mercury as reported in the "weekly composite sample of process operations" ("weekly composite sample of process operations" shall be calculated pursuant to subdivision 21 b (3) of this subsection); (iii) are not a hazardous waste; and (iv) comply with 40 CFR Part 268, if applicable.

(2) Retest, reprocess, or deliver to a mercury reclamation facility processed materials that are in excess of the allowable levels of mercury specified in subdivision 21 b (1) of this subsection.

(3) Sample and perform analytical testing of the processed material for total mercury as follows:

(a) Facility operators shall take daily physical samples of the mercury-containing materials at the point at which they exit the processing equipment. These samples shall be representative of the materials processed during that day.

(b) At the beginning of each week, the prior week's daily samples shall be consolidated into one weekly sample that shall be submitted for chemical analysis of total mercury content using an approved EPA methodology. At least three separate daily samples shall be taken in order to obtain a weekly sample. When a facility is not operating at least three days during a week, that week will be dropped out of the 12-week rolling average as calculated under subdivision 21 b (3) (c) of this subsection. However, all daily samples that are in a week that has been dropped out shall be counted towards the very next weekly sample that is included in a 12-week rolling average. The result of this analysis shall be considered the "weekly composite sample of process operations."

(c) The "average mercury" value calculation shall be the rolling average of weekly composite sample results from samples taken during the most recent 12-week time period with each new weekly composite sample result replacing the oldest sample result that was used in the previous 12-week period.

c. Mercury-containing lamp recycling facilities shall ensure that the separated materials that are generated from their operations are suitable and safe for their intended end use and shall bear the burden of responsibility for the safety of these materials sold or delivered from the operations. Facilities shall notify in writing receiving sources, other than mercury reclamation facilities, of the amount and type of any hazardous substances present in the processed materials as demonstrated by laboratory analysis.

d. Operating requirements. Mercury-containing lamp recycling facilities shall be operated in accordance with the following requirements:

(1) Mercury-containing lamp recycling facilities shall control mercury emissions through the use of a single air handling system with redundant mercury controls and comply with the following:

(a) The owner or operator shall operate, monitor, and maintain an air handling system with redundant air pollution control equipment in order to reduce the mercury content of the air collected during the volume reduction and mercury recovery and reclamation processes.

(b) Redundant air pollution control equipment shall incorporate at least two carbon filters or equivalent technology arranged in a series so that the air passes through both filters before being released. In the event of a single filter failure, each filter shall be designed to ensure compliance with the risk-based protectiveness standards for mercury vapor provided in subdivision 21 e of this subsection.

(c) A sample of air shall be collected after the first carbon filter (or equivalent technology) and upstream of the second once each operating day while mercury-containing lamps or devices are being processed. The mercury content of the sample shall be determined for comparison with the risk-based protectiveness standards provided in subdivision 21 e of this subsection.

(d) The owner or operator shall operate, monitor, and maintain the air pollution control equipment in such a manner as not to exceed the risk-based protectiveness standards under subdivision 21 e of this subsection for mercury vapor downstream of the first carbon filter (or equivalent technology) and upstream of the second carbon filter.

(2) The area in which the processing equipment is located shall be fully enclosed and kept under negative pressure while processing mercury-containing lamps or devices.

e. Testing for mercury releases from lamp crushing units shall be performed using a mercury vapor analyzer that has been approved for the application by the U.S. Occupational Safety and Health Administration or the Virginia Department of Labor and Industry or a comparable device that has been calibrated by the manufacturer or laboratory providing the equipment. Mercury vapor monitors used for testing must be capable of detecting mercury at the applicable concentrations provided in this subdivision or lower in air and must be equipped with a data recording device to provide a record of measurements taken. Mercury monitoring data shall be documented and available for inspection in accordance with subdivision 21 g of this subsection. The acute exposure protectiveness standard is 300 µg/m³ for a 10-minute exposure with the understanding that the acute exposure protectiveness standard is considered a ceiling value and at no time during bulb crushing operation will the air concentrations of mercury exceed 300 µg/m³. The following are risk-based protectiveness standards at a distance of five feet from the bulb crushing unit:

| | Monthly Bulb Crushing Duration (X Hours/Month)* | Chronic Exposure Air Emission Limit (µg/m³) | Acute Exposure Air Emission Limit (µg/m³) | | --- | --- | --- | --- | | | X ≥ 32 | 1.314^skin µg/m³ | 300 µg/m³ | | | 8 < X < 32 | 6.317^skin µg/m³ | 300 µg/m³ | | | X ≤ 8 | 27.375^skin µg/m³ | 300 µg/m³ | | | *Monthly crushing duration is determined based on the maximum number of hours that bulb crushing occurred in any one month over the last 12-month period. | | |

f. Closure. Mercury-containing lamp recycling facilities must prepare and maintain a closure plan conforming to the requirements of 40 CFR Part 265, Subpart G as adopted by reference in this section. Financial assurance shall be provided to the department in accordance with 40 CFR Part 265, Subpart H as adopted by reference in this section.

g. Recordkeeping requirements. The owner or operator of a mercury-containing lamp recycling facility shall maintain records of monitoring information that (i) specify the date, place, and time of measurement; (ii) provide the methodology used; and (iii) list the analytical results. The records maintained shall include all calibration and maintenance records of monitoring equipment. The owner or operator shall retain records of all monitoring data and supporting information available for department inspection for a period of at least three years from the date of collection.

22. In 40 CFR 265.12, the term "EPA" shall mean the United States Environmental Protection Agency.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 33, Issue 5, eff. January 1, 2017; Volume 34, Issue 14, eff. April 8, 2018; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-266 Adoption of 40 CFR Part 266 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 266 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 266 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 266 is incorporated by reference, the following additions, modifications and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. In addition to the requirements of Subpart C of 40 CFR Part 266, those who generate or transport recyclable materials or those who own or operate facilities that use or store recyclable materials are also subject to applicable requirements of Parts IV (9VAC20-60-305 et seq.), VII (9VAC20-60-420 et seq.), and XII (9VAC20-60-1260 et seq.) of these regulations if the materials are used in a manner constituting disposal.

2. In addition to the requirements of Subpart C of 40 CFR Part 266, those who generate or transport recyclable materials or those who own or operate facilities that use or store recyclable materials are also subject to applicable requirements of Parts IV, VII and XII of these regulations if the recyclable materials are for precious metals recovery.

3. In addition to the requirements of Subpart G of 40 CFR Part 266, those who store lead-acid batteries subject to 40 CFR 266.80(b) are also subject to the requirements of Parts IV, VII and XII of these regulations.

4. In 40 CFR Part 266, references to 49 CFR Parts 171 through 180 shall be as 49 CFR Parts 171 through 180 are incorporated by reference in 9VAC20-110-110.

5. In 40 CFR 266.506(b)(3)(i), reference to (i) 40 CFR Part 62, Subpart FFF shall be replaced by 40 CFR Part 62, Subpart VV, which incorporates Article 54 (9VAC5-40-7950 et seq.) of 9VAC5-40; and (ii) 40 CFR Part 60, Subpart Eb shall be as it is incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of 9VAC5-50.

6. In 40 CFR 266.506(b)(3)(ii), reference to (i) 40 CFR Part 62, Subpart JJJ shall be replaced by 40 CFR Part 62, Subpart VV, which incorporates Article 46 (9VAC5-40-6550 et seq.) of 9VAC5-40; and (ii) 40 CFR Part 60, Subpart AAAA shall be as it is incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of 9VAC5-50.

7. In 40 CFR 266.506(b)(3)(iii), reference to (i) 40 CFR Part 62, Subpart HHH is not applicable in the Commonwealth of Virginia as there are no affected facilities and a negative declaration was made in 40 CFR Part 62, Subpart VV; and (ii) 40 CFR Part 60, Subpart Ec shall be as Subpart Ec is incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of 9VAC5-50.

8. In 40 CFR 266.506(b)(3)(iv), reference to 40 CFR Part 62, Subpart III shall be replaced by 40 CFR Part 62, Subpart VV, which incorporates Article 45 (9VAC5-40-6250 et seq.) of 9VAC5-40; and (ii) 40 CFR Part 60, Subpart CCCC shall be as Subpart CCCC is incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of 9VAC5-50.

9. In 40 CFR 266.506(b)(3)(v), reference to 40 CFR Part 63, Subpart EEE shall be as Subpart EEE is incorporated by reference in Article 2 (9VAC5-60-90 et seq.) of 9VAC5-60.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-268 Adoption of 40 CFR Part 268 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 268 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 268 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 268 is incorporated by reference, the following additions, modifications and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. In 40 CFR 268.1(e)(3), the term "EPA" means the United States Environmental Protection Agency.

2. In 40 CFR 268.1(f) and wherever elsewhere in Title 40 of the Code of Federal Regulations there is a listing of universal wastes or a listing of hazardous wastes that are the subject of provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed herein, the term "universal waste" and all lists of universal waste or waste subject to provisions of 40 CFR Part 273 shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, under such terms and requirements as shall therein be ascribed."

3. In 40 CFR 268.5, 40 CFR 268.6, 40 CFR 268.40(b), 40 CFR 268.42(b), and 40 CFR 268.44(a) through (m), the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency or his designee, the term "Regional Administrator" shall mean the Regional Administrator of the United States Environmental Protection Agency for Region III or his designee, and the term "EPA" shall mean the United States Environmental Protection Agency.

4. In 40 CFR 268.7(d), the term "EPA Region or authorized State" shall mean the Commonwealth of Virginia.

5. 40 CFR 268.13 is not included in the incorporation of 40 CFR Part 268 by reference and is not a part of the Virginia Hazardous Waste Management Regulations.

6. Any applications or petitions made to the director or the department in compliance with 40 CFR 268.44 shall comply with procedures of Part XIV (9VAC20-60-1370 et seq.) of these regulations.

7. In Subpart C of 40 CFR Part 268 there are dates on which a provision is or was to begin and dates on which national capacity variances expires or expired. None of these dates prior to the effective date of these regulations shall be incorporated by reference or be a part of the Virginia Hazardous Waste Management Regulations. Requirements associated with these expired dates shall be considered to be currently in effect. This exclusion from these regulations shall not be considered to remove or diminish any responsibility a person has or had regarding these dates under federal requirements related to the dates or during the interim following these dates.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 34, Issue 14, eff. April 8, 2018.

9VAC20-60-270 Adoption of 40 CFR Part 270 by reference

A. Except as otherwise provided, those regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 270 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of incorporated sections of 40 CFR Part 270 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 270 is incorporated by reference, the following additions, modifications and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. In 40 CFR Part 270 and wherever elsewhere in Title 40 of the Code of Federal Regulations there is a listing of universal wastes or a listing of hazardous wastes that are the subject of provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed herein, the term "universal waste" and all lists of universal waste or waste subject to provisions of 40 CFR Part 273 shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, under such terms and requirements as shall therein be ascribed."

2. In 40 CFR 270.5, the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency or his designee.

3. In 40 CFR 270.5, the term "Regional Administrator" shall mean the Regional Administrator of Region III of the United States Environmental Protection Agency or his designee.

4. The underground injection of hazardous waste for treatment, storage or disposal shall be prohibited throughout the Commonwealth of Virginia, and no permits shall be issued for underground injection facilities.

5. Validity of the federal HWM permits. This section replaces 40 CFR 270.51, which is not included in the incorporation of 40 CFR Part 270 by reference and is not a part of the Virginia Hazardous Waste Management Regulations.

a. Hazardous waste management facilities located in Virginia which possess an effective final RCRA permit issued by the United States Environmental Protection Agency will be considered to possess a valid Virginia hazardous waste management permit for the duration of the unexpired term of the federal permit, provided that:

(1) The facility remains in compliance with all of the conditions specified in the federal permit;

(2) The operator submits a complete copy of the federal permit to the department no later than the effective date of the federal permit; and

(3) The owner and operator of the facility submit a request to continue the federal permit addressed to the department.

b. Federal permits issued to hazardous waste management facilities located in Virginia by the United States Environmental Protection Agency pursuant to HSWA requirements which constitute the federal portion of the combined Virginia--United States Environmental Protection Agency RCRA permits are considered, for the purposes of this chapter, as addenda to the Virginia permits and will remain in effect during the unexpired term of the Virginia permit.

6. All permit applications and reapplications required by these regulations shall be accompanied by an appropriate permit application fee as specified in Part XII (9VAC20-60-1260 et seq.) of this chapter. Applications or reapplications not accompanied by such fees will not be considered complete. The director shall not issue a permit before receiving a complete application except permits by rule, emergency permits, or continued federal permits. In addition, an application for a permit is not complete until the department receives an application form and any supplemental information, which are completed to the department's satisfaction. The completeness of any application for a permit shall be judged independently of the status of any other permit application or permit for the same facility or activity. In cases where Part A of the application was first submitted to the United States Environmental Protection Agency Administrator, a copy of such submission shall also be sent to the department.

7. Interim status.

a. The director may deny interim status to any owner or operator if, at the time the Part A application is submitted, the facility is in violation of any regulation of the board so as to pose a substantial present or potential hazard to human health or environment.

b. Unless subject of an exception specified in 40 CFR 270.73, interim status terminates when final disposition of a permit application is made or when interim status is terminated by the director. Interim status may be terminated for any of the following reasons:

(1) Failure to submit a completed Part B application on time;

(2) Failure to furnish any information required by this chapter;

(3) Falsification, misrepresentation or failure to fully disclose any information submitted or required to be kept under this chapter;

(4) Violation of this chapter; and

(5) A determination that the facility poses a significant threat to public health or the environment.

c. The director may terminate the interim status upon receiving a voluntary request for such an action from the owner and the operator of the facility.

(1) To be considered for voluntary termination such request shall:

(a) Be received by the department prior to the issuance of the request to submit Part B of the permit application in accordance with this section; and

(b) Be accompanied by a waiver of procedures contained in this section.

(2) Termination under this part will not be granted to the owner and operator of the facility:

(a) Which is not in compliance with the standards contained in 9VAC20-60-265; or

(b) When termination proceedings have been instituted under this section.

d. The effective date of the termination of the interim status will be determined by the director to allow for proper closure of the facility in accordance with Subpart G of 40 CFR Part 264 and Subpart G of 40 CFR Part 265, as applicable.

8. Each permit shall include permit conditions necessary to achieve compliance with the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia) and regulations, including each of the applicable requirements specified in this part (Part III) of these regulations. In satisfying this provision, the director may incorporate applicable requirements of Part III directly into the permit or establish other permit conditions that are based on these requirements.

9. In addition to the other general information requirements to be part of the contents of any Part B in 40 CFR 270.14(b), the following information is required for all hazardous waste management facilities, except as provided otherwise:

a. A copy of the general inspection schedule required by 40 CFR 264.15(b). Include, where applicable, as part of the inspection schedule, specific requirements in 40 CFR 264.174, 40 CFR 264.193(i), 40 CFR 264.195, 40 CFR 264.226, 40 CFR 264.254, 40 CFR 264.273, 40 CFR 264.303, 40 CFR 264.573, 40 CFR 264.574, 40 CFR 264.602, 40 CFR 264.1033, 40 CFR 264.1052, 40 CFR 264.1053, and 40 CFR 264.1058.

b. Traffic pattern, estimated volume (number, types of vehicles) and control; describe access road surfacing and load bearing capacity; show traffic control signals.

10. A period of 30 days shall elapse between the date of public notice and the date of a public hearing under 40 CFR 270.42(b)(4) and 40 CFR 270.42(c)(4).

11. Notices given under 40 CFR 270.30(l)(1) shall be written.

12. Reserved.

13. The agencies of the Commonwealth publish notices of regulatory activity, permit hearings and other official notices in the Virginia Register. Any references in incorporated federal text that indicate a publication is to be made in the Federal Register shall be construed to mean the Virginia Register when such publication is to be made by an agency of the Commonwealth.

14. Appeal rights and procedures related to a remedial action plan (RAP) included in 40 CFR 270.155, especially appeals to the EPA Environmental Appeals Board, are not incorporated into these regulations. Appeals of actions related to the content or process of developing a RAP will be governed by the Administrative Process Act, Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

15. The conditions of an expired permit continue in force until the effective date of the new permit if the permittee has submitted a timely reapplication that is a complete application for a new permit and the director, through no fault of the permittee, does not issue a new permit with an effective date on or before the expiration date of the previous permit. Permits that are continued remain fully effective and enforceable.

When the permittee is not in compliance with the conditions of the expiring or expired permit, the director may choose to do any or all of the following:

a. Initiate enforcement action based on the permit that has been continued;

b. Issue a notice of intent to deny the new permit. If the permit is denied, the owner or operator would then be required to cease activities authorized by the continued permit or be subject to enforcement action for operating without a permit;

c. Issue a new permit with appropriate conditions; or

d. Take other actions authorized by this chapter.

16. Part XII (9VAC20-60-1260 through 9VAC20-60-1286) of this chapter applies to all permitted facilities, to facilities operating under interim status, to facilities subject to an order or agreement, and to all large quantity generators. In addition to permit application fees, a permitted treatment, storage, and disposal facility is assessed an annual fee. A facility that operates under interim status, a facility that is subject to an order or agreement, and a large quantity generator are also assessed annual fees.

17. Regardless of the provisions of 9VAC20-60-18, the revisions to 40 CFR Part 270 as promulgated by U.S. EPA on October 30, 2008, (73 FR 64757‑64788) (definition of solid waste rule) are not adopted herein.

18. In 40 CFR 270.5, the term "Director" and "State Director" shall mean the Director of the Department of Environmental Quality or his designee.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921; CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 5.1, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 26, Issue 11, eff. March 3, 2010; Volume 27, Issue 11, eff. March 2, 2011; Volume 34, Issue 14, eff. April 8, 2018.

9VAC20-60-273 Adoption of 40 CFR Part 273 by reference

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 273 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 273 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 273 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. In 40 CFR 273.32(a)(3), the term "EPA" shall mean the United States Environmental Protection Agency.

2. In addition to universal wastes included in 40 CFR Part 273, other wastes are defined to be universal wastes in Part XVI (9VAC20-60-1495 et seq.) of these regulations. Part XVI also contains waste specific requirements associated with the waste defined to be universal waste therein. In 40 CFR 273.1, the definitions in 40 CFR 273.9, and wherever elsewhere in Title 40 of the Code of Federal Regulations there is a listing of universal wastes or a listing of hazardous waste that are the subject of provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed here, the term "universal waste" and all lists of universal waste or waste subject to provisions of 40 CFR Part 273 shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, in accordance with the terms and requirements described." Any listing of universal wastes in 40 CFR Part 273 shall incorporate the universal wastes set out in Part XVI in a manner identical to those included in the federal text; whether, for example, as in 40 CFR 273.32(b)(4), 40 CFR 273.32(b)(5), 40 CFR 273.39(b)(2), and 40 CFR 273.62(a)(20) or as items to be included in a calculation or requirement as in the definitions of "Large Quantity Handler of Universal Waste" and "Small Quantity Handler of Universal Waste."

3. In addition to the requirements contained in 40 CFR 273, the following requirements shall apply:

a. A used lamp shall be considered to be discarded and a waste on the date the generator permanently removes it from its fixture. An unused lamp becomes a waste on the date the generator discards it since that is the date on which he is deemed to have decided to discard it in accordance with 40 CFR 273.5(c)(2).

b. A handler having a waste subject to the requirements of 40 CFR 273.13(a)(3)(i) or 40 CFR 273.33(a)(3)(l) is also subject to 9VAC20-60-270 and Parts IV (9VAC20-60-305 et seq.), VII (9VAC20-60-420 et seq.), and XII (9VAC20-60-1260 et seq.) of this chapter.

c. Small and large quantity handlers of universal waste (i) may only crush mercury-containing lamps for size reduction at the site of generation or under the control of the generator as defined in 9VAC20-60-1505 B 4 and (ii) shall comply with the applicable mercury-containing lamps crushed for size reduction requirements of 9VAC20-60-1505.

d. All large quantity handlers of universal waste lamps (i.e., generators who accumulate 5000 kilograms or more of universal waste lamps) must prepare and maintain a closure plan conforming to the requirements of 40 CFR Part 264, Subpart G as adopted by reference in 9VAC20-60-264. Financial assurance shall be provided to the department in accordance with 40 CFR Part 264, Subpart H as adopted by reference in 9VAC20-60-264.

e. The owner or operator of a destination facility that recycles mercury-containing lamps with or without storing the mercury-containing lamps before they are recycled must comply with all applicable requirements of 9VAC20-60-264 B 34 and 9VAC20-60-265 B 21 for mercury-containing lamp recycling facilities.

4. In 40 CFR 273 Subpart F the term "EPA" shall mean the United States Environmental Protection Agency, and the term "Administrator" shall mean the Administrator of the United States Environmental Protection Agency or his designee.

5. In 40 CFR 273 Subpart G, the term "Administrator" shall mean the Administrator of United States Environmental Protection Agency or his designee.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 33, Issue 5, eff. January 1, 2017; Volume 34, Issue 14, eff. April 8, 2018.

9VAC20-60-279 Adoption of 40 CFR Part 279 by reference. (Reserved)

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 279 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 279 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 279 is incorporated by reference, the following additions, modifications and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. Only one sentence of 40 CFR 279.82 is included in the incorporation of 40 CFR Part 279 by reference. The sentence, "The use of used oil as a dust suppressant is prohibited." is incorporated by reference. All other words in 40 CFR 279.82 are not incorporated by reference and are not a part of the Virginia Hazardous Waste Management Regulations.

2. [Reserved.]

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-280 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 5.2 to 5.4, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part IV Notification of Hazardous Waste Management Activity Regulations

9VAC20-60-305 General

A. Any person that manages a hazardous waste in the Commonwealth of Virginia shall notify the department of these activities.

B. Any person as described in 9VAC20-60-305 A that has notified the EPA or is subject to the requirements to notify the EPA as specified in Vol. 45, No. 39 of the Federal Register, dated February 26, 1980, pages 12746 through 12754, is subject to the provisions of this chapter.

C. The purpose of this chapter is to provide a means for the Commonwealth of Virginia to utilize the information provided by all who complied with the notification requirements of the EPA as described in 9VAC20-60-305 B and to assure that all persons who did not notify the EPA as described in 9VAC20-60-305 B or all who initiated hazardous waste management activities subsequent to the requirements of the EPA as referenced in 9VAC20-60-305 B shall notify the department of their hazardous waste management activities.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-60-310 (Repealed.)

Historical Notes

Derived from VR672-10-1 § 5.5, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-315 Notification

A. Any person that notified the EPA of hazardous waste management activities as referenced in 9VAC20-60-305 B shall provide a copy of that notification to the department.

B. Any person involved in hazardous waste management activities that did not comply with the notification requirements of the EPA as referenced in 9VAC20-60-305 B but is subject to those requirements shall notify the department in writing of their hazardous waste management activities by the effective date of this chapter. Notification shall be accomplished by the use of EPA Form 8700-12.

C. Any person who initiated a hazardous waste management activity subsequent to the preliminary notification period of 42 USC § 6930 but prior to the effective date of this chapter shall notify the department of the initiation of such activities by the effective date of this chapter. Notification shall be accomplished by the use of EPA Form 8700-12.

D. Anyone who becomes a large quantity generator shall notify the department in writing immediately of this change in status and document the change in the operating record. Any large quantity generator who ceases to be a large quantity generator shall notify the department in writing immediately of this change in status and document the change in the operating record.

E. Transporters shall provide only one notification form for all transportation activities.

F. One notification form is required for each generator site.

G. A notification form is required for each storage, treatment, disposal, or other facility. However, if one geographic site includes more than one storage, treatment or disposal activity, only one notification form for the entire facility site is required.

H. New generators, transporters, treaters, storers, and disposers (those initiating activities subsequent to the assumption of the hazardous waste management program by the Commonwealth) shall comply with the requirements of 9VAC20-60-262, 9VAC20-60-263, and 9VAC20-60-264, as applicable, to obtain an EPA identification number from the administrator or the department.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-320 (Repealed.)

Historical Notes

Derived from VR672-10-1 § 5.6, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-325 Prohibition

No hazardous wastes subject to this chapter may be transported, treated, stored, or disposed of unless notification has been given as required under this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part V Manifest Regulations for Hazardous Waste Management [Repealed]

9VAC20-60-328 EPA identification number

A. A generator shall not treat, store, dispose of, transport, or offer for transportation hazardous waste without having received an EPA identification number from the administrator or the department.

B. A generator who has not received an EPA identification number may obtain one by applying to the department using EPA Form 8700-12. Upon receiving a request, the department will assign an EPA identification number to the generator.

C. A generator shall not offer his hazardous waste to transporters or to facilities that have not received an EPA identification number.

D. Provisional identification number. If an emergency or other unusual incident occurs which causes a necessity for the rapid transport of a hazardous waste to an authorized hazardous waste management facility, the generator involved in such a circumstance can telephone the Department of Environmental Quality (804-698-4000) and obtain a provisional identification number. Applicants receiving such a number will be mailed a blank EPA Form 8700-12 that shall be completed and returned to the Department of Environmental Quality regional office within 10 calendar days. (Note: The department's website, http://www.deq.virginia.gov, or the receptionist at 804-698-4000, will provide information on how to contact the appropriate regional office.)

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 11, eff. March 13, 2002; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 35, Issue 24, eff. August 23, 2019.

Part VI Regulations Applicable to Generators of Hazardous Waste [Repealed]

9VAC20-60-330 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 6 to 6.8, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part VII Regulations Applicable to Transporters of Hazardous Waste

9VAC20-60-420 General

A. This chapter applies to all persons who transport a hazardous waste as defined in this chapter and applies to all shipments of hazardous waste that originate within the Commonwealth or that terminate in the Commonwealth but originate in another state or foreign country. However, this chapter does not apply to the shipment of a hazardous waste on the site of a hazardous waste generator, nor on the site of a permitted hazardous waste management facility. Nothing in this part (9VAC20-60-420 et seq.) shall be construed as imposing any requirement on transporters of or the transportation of universal waste not otherwise imposed in 9VAC20-60-273.

B. Transporters of hazardous waste shipments originating outside the Commonwealth and terminating in another state shall comply with 9VAC20-60-490 and applicable requirements of 9VAC20-60-263 while in transit through the Commonwealth.

C. All transporters of hazardous waste shall comply with the applicable portions of the Regulations Governing the Transportation of Hazardous Materials (9VAC20-110) and Parts III (9VAC20-60-124 et seq.), IV (9VAC20-60-305 et seq.), and VII (9VAC20-60-420 et seq.) of this chapter.

D. A transporter is a generator if he:

1. Transports hazardous waste into the Commonwealth from a foreign country; or

2. Mixes hazardous wastes of different shipping descriptions specified in Regulations Governing the Transportation of Hazardous Materials by placing them into a single container.

E. Transporters of materials that are used in a manner that constitutes disposal are subject to the requirements of Parts III, IV, and VII.

F. Transporters of hazardous waste fuel are subject to the applicable requirements of 9VAC20-60-266.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 7, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 19, Issue 18, eff. July 1, 2003; Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-430 Recordkeeping and reporting requirements

A. Except as provided in 9VAC20-60-430 B and 9VAC20-60-430 C, all transporters shall retain one signed copy of all manifests in their records for not less than three years from the date of acceptance for shipment by the initial transporter. The retained copy shall show his signature as well as those of the generator and the designated facility owner or operator, or next designated transporter.

B. For shipments delivered to the designated facility by water (bulk shipment), each water (bulk shipment) transporter shall retain a copy of the shipping paper containing all the information required in 40 CFR 263.20(e)(2) for a period of three years from the date of acceptance by the initial transporter.

C. For shipments of hazardous waste by rail within the United States:

1. The initial rail transporter shall keep a copy of the manifest and shipping paper with all the information required in 40 CFR 263.20(f)(2) for a period of three years from the date the hazardous waste was accepted by the initial transporter.

2. The final rail transporter shall keep a copy of the signed and dated manifest (or the shipping paper if signed by the designated facility in lieu of the manifest) for a period of three years from the date the hazardous waste was accepted by the initial transporter.

3. Intermediate rail transporters are not required to keep records pursuant to this chapter.

D. A transporter who transports hazardous waste out of the United States shall keep a copy of the manifest, indicating that the hazardous waste left the United States, for a period of three years from the date the waste was accepted by the initial transporter.

E. The periods of retention referred to in this part are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the director.

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 7.1, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 29, Issue 19, eff. July 4, 2013.

9VAC20-60-440 Identification number

A. All persons who transport hazardous waste within, out of or into the Commonwealth shall apply for and receive an EPA identification number prior to such transport.

B. An EPA identification number shall be obtained from the EPA or authorized state by submitting an application on EPA Form 8700-12.

C. The EPA identification number issued to the transporter shall be included at all times on:

1. All correspondence related to the transport of hazardous waste;

2. The manifest provided by the generator of a hazardous waste and utilized in the transport of hazardous waste; and

3. All documents related to the reporting of a discharge or accident.

D. The EPA identification number shall remain unique to the applicant as long as the applicant continues to do business as a transporter of hazardous waste. The EPA identification number may not be transferred without the approval of EPA or an authorized state.

E. Provisional EPA identification number. If an emergency or other unusual incident occurs that causes a necessity for the rapid transport of a hazardous waste to an authorized HWM facility, the transporter involved in such a circumstance can telephone the Department of Environmental Quality (804-698-4000) and obtain a provisional EPA identification number. Applicants receiving such a number will be mailed a blank EPA Form 8700-12, which shall be completed and returned to the department within 10 calendar days.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 7.2, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-450 (Repealed.)

History

• Historical Notes: Derived from VR672-10-1 § 7.3, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; repealed, Virginia Register Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-460 Labeling, placarding, and marking

See 9VAC20-60-262 and 9VAC20-60-263.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 7.4, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-470 Use of the manifest system

See 9VAC20-60-262 and 9VAC20-60-263.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 7.5, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-480 Acceptance, shipment and delivery of hazardous waste

A. A transporter shall not accept for shipment any hazardous waste for transport without determining that requirements of 9VAC20-60-263 have been complied with.

B. If a manifest is required by 9VAC20-60-263, the generator shall sign and date the manifest and release the hazardous waste shipment to the transporter.

C. The transporter who is subject to 9VAC20-60-480 B shall sign and date the manifest and accept the hazardous waste for shipment.

D. The transporter shall not accept any hazardous waste for shipment unless the generator has met all applicable labeling, container and packaging requirements of this chapter.

E. If the transporter ships the hazardous waste to a treatment, storage or disposal facility or transfers the hazardous waste to another transporter, such acts shall be in accordance with the following:

1. The receiving treatment, storage or disposal facility or transporter shall have an EPA identification number issued by the EPA or authorized state;

2. The manifest shall be signed over to the receiving treatment, storage or disposal facility or transporter with the prior transporter retaining a copy of the manifest.

F. The transporter shall maintain the labeling required by the Regulations Governing the Transportation of Hazardous Materials (9VAC20-110) during the shipment of the hazardous waste.

G. 1. The transporter shall deliver the entire quantity of hazardous waste that he accepted for shipment from a generator or a previous transporter to:

a. The designated facility listed on the manifest;

b. The next designated transporter; or

c. The place outside the United States designated by the generator.

2. If the hazardous waste shipment cannot be delivered in accordance with 9VAC20-60-480 G 1, the transporter must contact the generator for further directions concerning an alternate facility for delivery and must revise the manifest according to the generator's instructions.

H. If the hazardous waste shipment will terminate within the Commonwealth of Virginia, the transporter shall deliver the shipment to a storage, treatment, disposal, or other facility permitted by the Commonwealth of Virginia under the provisions of this chapter or a facility permitted by the EPA or which qualifies for interim status.

I. If the shipment of hazardous waste is transported out of the Commonwealth, the transporter shall deliver the shipment to a designated facility permitted by that state under an approved program or by EPA or which qualifies for interim status in the opinion of the applicable aforementioned authority.

J. If the shipment of hazardous waste is shipped out of the United States, the transporter shall handle the manifest in accordance with 9VAC20-60-263.

K. If the transporter mixes hazardous wastes of different shipping descriptions specified in Regulations Governing the Transportation of Hazardous Materials by placing them into a single container, such transporter shall also comply with 9VAC20-60-262.

L. All transporters shipping a hazardous waste to a destination within the Commonwealth from another state shall comply with all provisions of this chapter including obtaining an EPA identification number from the EPA or authorized state.

M. A transporter that imports a hazardous waste from a foreign country into the Commonwealth shall comply with the provisions of 9VAC20-60-262 and obtain an EPA identification number from the EPA or authorized state.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 7.6, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-490 Discharges

A. The transporter shall comply with all federal and Commonwealth requirements relative to discharges.

B. 1. In the event of a discharge or spill of hazardous wastes, the transporter shall take appropriate emergency actions to protect human life, health, and the environment and shall notify appropriate local authorities. Upon arrival on the scene of state or local emergency or law-enforcement personnel, the transporter shall carry out such actions as required of him.

2. The transporter shall clean up any hazardous waste discharge that occurs during transportation and shall take such action as is required by the federal government, the Virginia Department of Emergency Management, the director, or local officials, so that the hazardous waste discharge no longer presents a hazard to human health or the environment.

3. The disposal of the discharged materials shall be done in a manner consistent with this chapter and other applicable Virginia and federal regulations.

C. Discharges by air, rail, highway, or water (nonbulk) transporters.

1. In addition to requirements contained in preceding parts, an air, rail, highway or water (nonbulk) transporter who has discharged hazardous waste shall give notice at the earliest practicable moment to agencies indicated in 9VAC20-60-490 C 2 after each incident that occurs during the course of transportation (including loading, unloading, and temporary storage) in which as a direct result of the discharge of the hazardous wastes:

a. A person is killed;

b. A person receives injuries requiring his hospitalization;

c. Estimated carrier or other property damage exceeds $50,000;

d. Fire, breakage, spillage, or suspected radioactive contamination occurs involving shipment of radioactive material;

e. Fire, breakage, spillage, or suspected contamination occurs involving shipment of etiologic agents; or

f. A situation exists of such a nature that, in the judgment of the transporter, it should be reported in accordance with 9VAC20-60-490 C 2 even though it does not meet the above criteria (e.g., continuing danger of life exists at the scene of the incident), or as required by 49 CFR 171.15.

2. The notice required by 9VAC20-60-490 C 1 shall be given to:

a. The National Response Center, U.S. Coast Guard, at 800-424-8802 (toll free) or at 202-267-2675 (toll call); and

b. The Virginia Department of Emergency Management at 804-750-8845. In a case of discharges affecting state waters, the notice shall also be given to the Pollution Response Program (PreP) Coordinator in the appropriate regional office of the department.

3. When notifying as required in 9VAC20-60-490 C 1, the notifier shall provide the following information:

a. Name of person reporting the discharge and his role in the discharge;

b. Name, telephone number and address of the transporter;

c. Name, telephone number and address of the generator;

d. Telephone number where the notifier can be contacted;

e. Date, time and location of the discharge;

f. Type of incident, nature of hazardous waste involvement, and whether a continuing danger to life exists at the scene;

g. Classification, name and quantity of hazardous waste involved; and

h. The extent of injuries, if any.

4. Within 15 calendar days of the discharge of any quantity of hazardous waste, the transporter shall send a written report on DOT Form F5800.1 in duplicate to the Chief, Information System Division, Transportation Programs Bureau, Department of Transportation, Washington, D.C. 20590. Two copies of this report will also be filed with the Department of Environmental Quality, Post Office Box 1105, 1111 East Main Street, Suite 1400, Richmond, Virginia 23218.

5. In reporting discharges of hazardous waste as required in 9VAC20-60-490 C 4, the following information shall be furnished in Part H of the DOT Form F5800.1 in addition to information normally required:

a. An estimate of the quantity of the waste removed from the scene;

b. The name and address of the facility to which it was taken; and

c. The manner of disposition of any unremoved waste.

A copy of the hazardous waste manifest shall be attached to the report.

D. Discharges by water (bulk) transporters.

1. A water (bulk) transporter shall, as soon as he has knowledge of any discharge of hazardous waste from the vessel, notify, by telephone, radio telecommunication or a similar means of rapid communication, the office designated in 9VAC20-60-490 C 2.

2. If notice as required in 9VAC20-60-490 D 1 is impractical, the following offices may be notified in the order of priority:

a. The government official predesignated in the regional contingency plan as the on-scene coordinator. Such regional contingency plan for Virginia is available at the office of the 5th U.S. Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23705;

b. Commanding officer or officer-in-charge of any U.S. Coast Guard unit in the vicinity of the discharge; or

c. Commander of the 5th U.S. Coast Guard District.

3. When notifying, the notifier shall provide the following information:

a. Name of person reporting the discharge and his role in the discharge;

b. Name, telephone number and address of the transporter;

c. Name, telephone number and address of the generator;

d. Telephone number so the notifier can be contacted;

e. Date, time, location of the discharge;

f. Type of incident and nature of hazardous waste involvement and whether a continuing danger to life exists at the scene;

g. Classification, name and quantity of hazardous waste involved; and

h. The extent of injuries, if any.

E. Discharges at fixed facilities. Any transporter (i) responsible for the release of a hazardous material (as defined in Part I (9VAC20-60-12 et seq.) of this chapter) from a fixed facility (e.g., transfer facility) that poses an immediate or imminent threat to public health and (ii) who is required by law to notify the National Response Center shall notify the chief administrative officers (or their designees) of the local governments of the jurisdictions in which the release occurs as well as the department.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 7.7, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 28, Issue 23, eff. August 15, 2012; Volume 30, Issue 24, eff. August 27, 2014; Volume 34, Issue 13, eff. February 19, 2018; Volume 42, Issue 11, eff. January 12, 2026.

9VAC20-60-500 Transfer facilities

A transporter who stores manifested shipments of hazardous waste in containers meeting the requirements of 40 CFR 262.30 at a transfer facility for a period of 10 days or less is not subject to regulations established for facility management and permitting under these regulations with respect to the storage of those wastes.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 7.8, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999.

Part VIII Hazardous Waste Management Facility Regulations (Repealed)

9VAC20-60-510 (Repealed.)

Hazardous Waste Management Facility Regulations (Repealed)

Historical Notes

Derived from VR672-10-1 § 8, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part IX Hazardous Waste Management Facility Interim Status Standards (Repealed)

9VAC20-60-520 (Repealed.)

Hazardous Waste Management Facility Interim Status Standards (Repealed)

Historical Notes

Derived from VR672-10-1 §§ 9 to 9.16, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-690 [Reserved]. (Reserved)

9VAC20-60-710 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 9.19 to 9.21, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part X Standard for Permitted Hazardous Waste Management Facilities (Repealed)

9VAC20-60-740 (Repealed.)

Standard for Permitted Hazardous Waste Management Facilities (Repealed)

Historical Notes

Derived from VR672-10-1 §§ 10 to 10.15, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-900 [Reserved]. (Reserved)

9VAC20-60-930 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 10.19 to 10.21, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part XI Hazardous Waste Management Facility Permit Regulations (Repealed)

9VAC20-60-960 (Repealed.)

Hazardous Waste Management Facility Permit Regulations (Repealed)

Historical Notes

Derived from VR672-10-1 §§ 11.1 to 11.29, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; repealed, Virginia Register Volume 18, Issue, 11, eff. March 13, 2002.

Part XII Permit Application and Annual Fees

9VAC20-60-1260 Purpose, scope, and applicability

A. The purpose of this part is to establish a schedule of fees collected by the department in the support of its programs required by Parts III (9VAC20-60-270 et seq.), IV (9VAC20-60-305 et seq.) and VII (9VAC20-60-420 et seq.) of this chapter.

B. Part XII (9VAC20-60-1260 et seq.) of this chapter applies to all persons required to submit a permit application ("applicants") under 9VAC20-60-270 unless specifically exempt under subsection G of this section, to facilities operating under interim status, to facilities subject to an order or agreement, and to all large quantity generators. The fees shall be assessed in accordance with 9VAC20-60-1270 through 9VAC20-60-1286.

C. When the director finds it necessary to modify any permit under 9VAC20-60-270, the holder of that permit shall be considered an applicant and shall be assessed a fee in accordance with 9VAC20-60-1270 C even if the director shall have initiated the modification action.

D. When the director finds it necessary to revoke and reissue any permit in accordance with 9VAC20-60-270, the holder of that permit shall be considered an applicant for a new permit and shall be assessed a fee in accordance with 9VAC20-60-1270 B.

E. If the director finds it necessary either to revoke and reissue a permit or to perform a minor modification of a permit in accordance with 9VAC20-60-270, the holder of that permit shall be considered an applicant and shall be assessed a fee in accordance with 9VAC20-60-1270 D. The holder of a permit shall not be assessed a permit modification fee for minor modifications.

F. When the director finds it necessary to issue an emergency treatment, storage, or disposal permit in accordance with 9VAC20-60-270, the holder of that permit shall be considered an applicant and shall be assessed a fee in accordance with 9VAC20-60-1270 E.

G. Exemptions.

1. The owners and operators of HWM treatment, storage, and disposal facilities who have submitted Part A of their application and who have qualified for interim status in accordance with 9VAC20-60-270 are exempt from the requirements of 9VAC20-60-1270 until a Part B application for the entire facility or a portion of the facility has been requested or voluntarily submitted. The owner and operator of a HWM facility submitting a Part B application will be considered an applicant for a new permit.

2. The owners and operators of HWM facilities that are deemed to possess a permit by rule in accordance with 9VAC20-60-270 are exempt from the requirements of 9VAC20-60-1270.

3. Hazardous waste generators that accumulate wastes on site in accordance with 40 CFR 262.34 are not subject to regulations contained in 9VAC20-60-1270 since HWM permits are not required for such accumulations.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 12, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-1270 Determination of application fee amount

A. General.

1. Each application for a new or renewed permit and each application for a modification to a permit is a separate action and shall be assessed a separate fee. The amount of such fees is determined on the basis of this section.

2. The amount of the permit application fee is based on the costs directly associated with the permitting program required by Parts III (9VAC20-60-270 et seq.) and VII (9VAC20-60-420 et seq.) of this chapter and includes costs for personnel and contractual effort and the prorated costs of supplies, equipment, communications and office space. The fee schedules are shown in 9VAC20-60-1285.

B. New HWM facility permits.

1. All applicants for new or renewed hazardous waste treatment, storage, and disposal facility permits are assessed a base fee shown in 9VAC20-60-1285 A.

2. Applicants for a facility permit that includes one or more of the hazardous waste treatment, storage or disposal units or processes that require groundwater protection or corrective action for solid waste management units in accordance with Subpart F of 40 CFR Part 264, Subpart K of 40 CFR Part 264, Subpart L of 40 CFR Part 264, Subpart M of 40 CFR Part 264, and Subpart N of 40 CFR Part 264, as applicable, ("land-based TSD units") are assessed a supplementary fee shown in 9VAC20-60-1285 A, in addition to the base fee specified in subdivision 1 of this subsection and any other supplementary fee that may be appropriate.

3. Applicants for a facility permit that includes one or more hazardous waste incineration, boiler, or industrial furnace units or processes regulated in accordance with Subpart O of 40 CFR Part 264 are assessed a supplementary fee shown in 9VAC20-60-1285 A, in addition to the base fee specified in subdivision 1 of this subsection and any other supplementary fee that may be appropriate.

4. Applicants for a facility permit for storage of hazardous wastes in containers, tanks or drip pads, or both, subject to Subpart I of 40 CFR Part 264, Subpart J of 40 CFR Part 264, and Subpart W of 40 CFR Part 264 will not be assessed any supplementary fees unless required to close and perform post-closure care as landfills as provided for in 40 CFR 264.197(b) and 40 CFR 264.571(b).

C. Modifications to existing HWM facility permits.

1. Except as provided for in subsection E of this section, all applicants for a modification of an existing HWM facility permit are assessed a modification base fee shown in 9VAC20-60-1285 B.

2. Applicants for a modification that includes or involves the addition of hazardous wastes not currently in the permit are assessed a supplementary modification fee shown in 9VAC20-60-1285 B, in addition to the base fee specified in subdivision 1 of this subsection and any other supplementary fee that may be appropriate.

3. Applicants for a major (Class 3) modification that includes or involves corrective action for solid waste management units under 40 CFR 264.101 and Title 40, Subpart S shall be assessed a supplementary modification fee shown in 9VAC20-60-1285 B in addition to supplementary fees specified in subdivision 1 of this subsection and any other supplementary fee that may be appropriate.

4. Applicants for a major (Class 3) modification that includes or involves the addition of one or more new hazardous waste land-based TSD units or processes, or requires a substantive change in the design of the existing land-based TSD units or processes, are assessed a supplementary modification fee shown in 9VAC20-60-1285 B in addition to the base fee specified in subdivision 1 of this subsection and any other supplementary fee that may be appropriate. For the purpose of this subsection, it will be deemed that a major change is required whenever a change in the design of the groundwater protection system or whenever a new land treatment demonstration permit specified in 9VAC20-60-270 is necessary.

5. Applicants for a major (Class 3) modification that includes or involves the addition of one or more hazardous waste incineration units or processes, or requires a substantive change in the design of an existing incineration unit or process, are assessed a supplementary modification fee shown in 9VAC20-60-1285 B, in addition to the base fee specified in subdivision 1 of this subsection and any other supplementary fee that may be appropriate. For the purposes of this subsection, it will be deemed that a major change is required whenever a change occurs that necessitates the performance of a trial burn in accordance with 9VAC20-60-270.

6. Applicants for a major (Class 3) modification that includes or involves new treatment, storage or disposal units, processes or areas, or requires a substantive change in the design of any existing hazardous waste treatment, storage or disposal units, processes or areas, neither of which is a hazardous waste land-based TSD or incineration unit, are assessed a supplementary modification fee shown in 9VAC20-60-1285 B, in addition to the base fee specified in subdivision 1 of this subsection and any other supplementary fee that may be appropriate. For the purposes of this subsection, expansion of an existing container storage facility is not considered to be a major change.

7. Applicants for a modification that is not a minor modification and is a substantive (Class 2) as specified in 9VAC20-60-270 and that is not subject to the requirements of subdivisions 2 through 6 of this subsection are assessed a supplementary modification fee shown in 9VAC20-60-1285 B, in addition to the base fee specified in subdivision 1 of this subsection.

8. Applicants for numerous modifications subject to several supplementary fees will not be assessed a permit application fee in excess to the one required for a new permit for a comparable HWM facility.

D. Minor modifications of existing HWM facility permits. All applicants for minor (Class 1) modification of an existing HWM facility permit provided for in 9VAC20-60-270 are not assessed a fee.

E. Emergency permits. Applicants for an emergency hazardous waste treatment, storage or disposal permit as provided for in 9VAC20-60-270 are assessed a fee shown in 9VAC20-60-1285 D, unless the director shall determine that a lesser fee is appropriate at the time the permit is issued. No permit fee will be assessed for emergency treatment, storage, or disposal necessary for the remediation of abandoned or orphaned hazardous waste by the U.S. Environmental Protection Agency, the Virginia Department of Environmental Quality, the Virginia Department of Emergency Management, the Virginia State Police, the Virginia Department of Transportation, a U.S. Department of Defense Explosive Ordnance Disposal Team, a U.S. Army Technical Escort Unit or other federal government entities trained in explosive or munitions emergency response. No permit fee will be assessed for emergency treatment, storage, or disposal when a determination has been made by the Commonwealth that circumstances dictate expedient action to protect human health and environmental quality.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 12.1, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 20, Issue 23, eff. July 1, 2004; Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-1280 Payment of application fees

A. Due date.

1. Except as specified in subdivision 2 of this subsection, all permit application fees are due on the day of application and must accompany the application.

2. All holders of a Virginia HWM facility permit issued prior to January 1, 1988, shall submit the application fees as required by the conditions specified in that permit.

B. Method of payment. Fees shall be paid by check, draft or postal money order made payable to "Treasurer of Virginia" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218. When the department is able to accept electronic payments, payments may be submitted electronically.

C. Incomplete payments. All incomplete payments will be deemed nonpayments.

D. Late payment. No applications will be deemed to be complete (see 9VAC20-60-270) until the department receives proper payment.

History

• Statutory Authority: § 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia; 42 USC § 6921 et seq.; and 40 CFR Parts 260-272.
• Historical Notes: Derived from VR672-10-1 § 12.2, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-60-1283 Determination of annual fee amount

A. Each operator of a hazardous waste treatment, storage, or disposal facility shall be assessed an annual fee as shown in 9VAC20-60-1285 E to be paid in accordance with 9VAC20-60-1284.

B. Each large quantity generator of hazardous waste shall be assessed an annual fee as shown in 9VAC20-60-1285 F to be paid in accordance with 9VAC20-60-1284.

C. A hazardous waste treatment, storage, or disposal facility operating under interim status and a facility subject to an order or agreement operate by accession and shall be assessed an annual fee as described in 9VAC20-60-1285 E to be paid in accordance with 9VAC20-60-1284.

An order or agreement may be issued to the operator of a facility, a generator, or a person who is both a facility operator and a generator. If a person is issued an order or agreement whose terms allow that person to conduct an activity that is by these regulations reserved for persons operating a facility under a permit or interim status, that person shall be considered to be operating a facility subject to an order or agreement. If the order or agreement is issued to a generator and the terms of the order do not allow that person to conduct any activity that is by these regulations reserved for persons operating a facility under a permit or interim status and the person is not otherwise operating a facility at the site of generation, that person shall not be considered to be operating a facility subject to an order or agreement.

D. Annual fees are separate and accumulative. However, a facility that is assessed an annual fee as a facility shall not also be assessed a second annual fee as a large quantity generator for hazardous waste generated at that facility.

E. Anyone who operates a facility (including those described in subsections A and C of this section) or who is a large quantity generator at any time during the year shall be assessed the full annual fee amount no matter how short the period the facility is operated or how briefly the generator is a large quantity generator. A generator who is a large quantity generator episodically or provisionally (having received a provisional EPA Identification Number) shall be assessed the full annual fee for any year in which the generator was a large quantity generator. For the evaluation of facility status or of generator status, the annual year shall be considered to be from January 1 to December 31.

F. No annual fee as a facility or large quantity generator will be assessed for emergency treatment, storage, or disposal necessary for the remediation of abandoned or orphaned hazardous waste by the U.S. Environmental Protection Agency, the Virginia Department of Environmental Quality, the Virginia Department of Emergency Management, the Virginia State Police, the Virginia Department of Transportation, a U.S. Department of Defense Explosive Ordnance Disposal Team, a U.S. Army Technical Escort Unit or other federal government entities trained in explosive or munitions emergency response. No annual fee will be assessed for emergency treatment, storage, or disposal when a determination has been made by the Commonwealth that circumstances dictate expedient action to protect human health and environmental quality.

Persons who are remediating a brownfield as defined in the Brownfield Restoration and Land Renewal Act (§ 10.1-1230 et seq. of the Code of Virginia) shall not be assessed an annual fee as a large quantity generator with regard to hazardous waste management activities at a waste management unit and that result from the remediation of the brownfield.

G. Discounted annual fees may be offered based on the criteria listed in 9VAC20-60-1286. An operator of a facility or a large quantity generator will be notified by the department if discounted annual fees are applicable.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 30, Issue 24, eff. August 27, 2014.

9VAC20-60-1284 Payment of annual fees

A. Due date. The operator of the treatment, storage, or disposal facility and each large quantity generator shall pay the correct fees to the Department of Environmental Quality. The department may bill the facility or generator for amounts due or becoming due in the immediate future. All payments are due and shall be received by the department no later than the first day of October 2004 (for the 2003 annual year), and no later than the first day of October of each succeeding year thereafter (for the preceding annual year) unless a later payment date is specified by the department in writing.

B. Method of payment.

1. The operator of the facility or the large quantity generator shall send a payment transmittal letter to the Department of Environmental Quality. The letter shall contain the name and address of the facility or generator, the Federal Identification Number (FIN) for the facility or generator, the amount of the payment enclosed, and the period that the payment covers. With the transmittal letter shall be payment in full for the correct fees due for the annual period. A copy of the transmittal letter only shall be maintained at the facility or the site where the hazardous waste was generated.

2. Fees shall be paid by check, draft or postal money order made payable to "Treasurer of Virginia" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218. When the department is able to accept electronic payments, payments may be submitted electronically.

C. Late payment and incomplete payments. In addition to any other provision provided by statute for the enforcement of these regulations, interest may be charged for late payments at the underpayment rate set out by the U.S. Internal Revenue Service established pursuant to § 6621(a)(2) of the Internal Revenue Code. This rate is prescribed in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate. A 10% late payment fee may also be charged to any delinquent (over 90 days past due) account. The Department of Environmental Quality is entitled to all remedies available under the Code of Virginia in collecting any past due amount and may recover any attorney's fees and other administrative costs incurred in pursuing and collecting any past due amount.

History

• Statutory Authority: § 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia; 42 USC § 6921 et seq.; and 40 CFR Parts 260-272.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-60-1285 Permit application fee and annual fee schedules

(The effective date of this fee schedule is August 27, 2014.)

| Table 1. Permit Application Fees. | | | --- | --- | | A. New or renewed TSD facility fees. | | | Elements of applications | | | Base fee for all facilities, including corrective action for solid waste management units. | $16,900 | | Supplementary fee for one or more land-based TSD units, including corrective action for solid waste management units. | $39,280 | | Supplementary fee for one or more incineration, boiler, or industrial furnace units (BIF). | $25,200 | | B. Major (Class 3) permit modification fees. | | | Elements of applications for major permit modifications | | | Base fee for all major (Class 3) modifications, including major changes related to corrective action for solid waste management unit. | $90 | | Addition of new wastes. | $2,310 | | Addition of or major (Class 3) change to one or more land-based TSD units, including major change related to corrective action for land-based solid waste management units. | $45,070 | | Addition of or major (Class 3) change to one or more incineration, boiler, or industrial furnace units. | $33,790 | | Addition of or major (Class 3) change to other treatment, storage or disposal units, processes or areas and major change related to corrective action for solid waste management units that are not land based. | $14,050 | | Substantive changes (Class 2). | $2,310 | | C. Minor (Class 1) permit modification fees. | | | Type of application | | | Minor (Class 1) permit modification fee. | $0 | | D. Emergency permit fee. | | | Type of application | | | Emergency permit fee. | $2,310 | | Table 2. Annual Fees. | | | E. Facilities fees. | | | Permitted treatment, storage, and disposal facility. | $2,800 | | Interim status treatment, storage, and disposal facility. | $2,800 | | Facility subject to an order or agreement. | $2,800 | | F. Large quantity generator fees. | | | Large quantity generators. | $1,000 |

Illustrative Examples

Example 1.

The applicant is submitting a Part B application for a HWM permit for a facility consisting of several surface impoundments, a land treatment process and an ancillary tank and container storage facility. The required fee is calculated as follows:

| | Base fee | + | | --- | --- | --- | | | Supplementary fee for land-based TSD units | + | | | Tank storage facility (see 9VAC20-60-1270 B 4) | = | | | Total fee | |

Example 2.

After a HWM facility permit has been issued to the facility described in Example 1, the owner and the operator of the facility propose to change the manufacturing process and apply for a modification to allow for an addition of several new hazardous streams to be treated in two new incinerators. The required modification fee is calculated from subsection B of this section as follows:

| | Base fee | + | | --- | --- | --- | | | Addition of new wastes | + | | | Addition of new incineration units | = | | | Total modification fee | |

The fee for a comparable new permit calculated on the basis of subsection A of this section is as follows:

| | Base fee | + | | --- | --- | --- | | | Supplementary fee for land-based units | + | | | Supplementary fee for incineration units | + | | | Storage facility | = | | | Total fee | |

Example 3.

After a HWM facility permit has been issued to the facility described in Example 1, the owner and the operator of the facility propose to expand their container storage facility for a storage of additional new waste streams, and apply for a permit modification. The required modification fee is calculated from subsection Bof this section as follows:

| | Base fee | + | | --- | --- | --- | | | Addition of a new waste | + | | | Fee for nonsubstantive change | = | | | Total modification fee | |

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 11, eff. March 13, 2002; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 30, Issue 24, eff. August 27, 2014; Errata 31:13 VA.R. 1344 February 23, 2015.

9VAC20-60-1286 Discounted annual fees for Environmental Excellence program participants

A. The term "Virginia Environmental Excellence Program" or "VEEP" means a voluntary program established by the department to provide public recognition and regulatory incentives to encourage higher levels of environmental performance for program participants that develop and implement environmental management systems (EMS). The program is based on the use of environmental management systems that improve compliance, prevent pollution, and utilize other measures to improve environmental performance.

B. Participants in the VEEP shall be eligible for reduced annual fees. The VEEP includes the Environmental Enterprise (E2) level of participation and the Exemplary Environmental Enterprise (E3) level of participation.

C. Annual fee discounts will not become effective until 2005. The availability of discounts to the annual fees will be dependent upon acceptance and continued participation in the VEEP.

D. Eligibility for reduced annual fees shall be based upon the department's review of the annual report that is required to be submitted by the VEEP. The department shall review annual reports to verify that facilities continue to meet VEEP criteria prior to offering discounted annual fees.

1. The participant's annual report must reflect activities occurring through December 31 and must satisfy all reporting requirements established in the VEEP.

2. Annual reports must be received at the department's central office by April 1 of the following year to be eligible for a reduction of the annual fees.

3. The annual report must list all regulated and permitted activities included within the scope of the facility's environmental management system.

4. A participant's level of participation will be evaluated as of December 31 of each calendar year.

E. If a facility participated in the VEEP but participation in the program was terminated, discounted fees will not be available to participants until they have been reaccepted into the VEEP.

F. Participants at the E2 level of participation will be eligible to receive a discount to annual fees for up to a maximum of three years.

G. Prior to distributing bills for annual fees, the department shall calculate the discounted hazardous waste management annual fees. The total amount of facilities' discounts to hazardous waste management annual fees shall not exceed $26,000 annually.

1. The total of a 10% discount for each participant at the E3 level of participation and a 5.0% discount for each participant at the E2 level of participation shall be calculated.

2. If the calculated total of the discounts to annual fees would exceed $26,000, annual fees for participants at the E3 level of participation shall be discounted 5.0%, additional discounts of annual fees for participants at the E3 level of participation shall not be available, and annual fees for participants at the E2 level of participation shall not be discounted,

3. If the calculated total of the discounts to annual fees would not exceed $26,000, annual fees for participants at the E3 level of participation shall be discounted 10%, annual fees for participants at the E2 level of participation shall be discounted 5.0%, and a larger discount may be provided for participants at the E3 level of participation, based upon direct program costs and program revenues, not to exceed a total discount of 20%. The total of all discounts shall not exceed $26,000. Any additional discounted fees will be calculated as follows:

(Total program revenues in the previous fiscal year minus direct program costs for the previous fiscal year) multiplied by 0.75 equals the additional discounts to be distributed to program participants. Additional discounts will be distributed to participants at the E3 level of participation in equal whole percentages.

4. If the calculated total of all facilities' discounts exceeds $26,000, the department shall reevaluate the discounts offered to VEEP participants and shall begin the regulatory process to revise the discounts offered to VEEP participants.

History

• Statutory Authority: § 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia; 42 USC § 6921 et seq.; and 40 CFR Parts 260-272.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004.

Part XIII Standards for the Management of Specific Hazardous Wastes and Specific Types of Management Facilities [Repealed]

9VAC20-60-1290 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 13.2, 13.4 to 13.7, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part XIV Rulemaking Petitions and Procedures

9VAC20-60-1370 General

Rulemaking Petitions and Procedures

A. Any person affected by this chapter may petition the director to exclude a waste at a facility or to change the identification and listing of a solid or hazardous waste, subject to the provisions of this part. Any petition submitted to the director is also subject to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The director will not accept any petition relating to delisting of hazardous wastes, equivalent testing or analytical methods. Such petitions shall be submitted to the administrator in accordance with 40 CFR 260.21.

C. Each petition shall be submitted to the department by certified mail and shall include, in addition to any other provisions required by this part, at least the following:

1. The petitioner's name and address;

2. A statement of the petitioner's interest in the proposed action;

3. A description of the proposed action;

4. A statement of the need and justification for the proposed action, including any supporting tests, studies or other information.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 14, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-60-1380 Changes to identification and listing of hazardous wastes

A. General changes.

1. The administrator may from time to time add or delete wastes listed in Subpart D of 40 CFR Part 261.

2. The petitions to exclude wastes listed in Subpart D of 40 CFR Part 261 which are subject to federal jurisdiction shall be addressed directly to the administrator in accordance with the requirements contained in Subpart C of 40 CFR Part 260.

B. A person whose wastes were delisted as a result of a successful petition to the administrator shall provide to the department:

1. The petitioner's name and address;

2. A copy of the petition to the director; and

3. A copy of the administrator's decision.

A person whose wastes were delisted as a result of a successful petition to the administrator may petition the director for a variance from these regulations to allow the application of the delisting to hazardous waste management within the Commonwealth. The director or his designee will process the petition in accordance with 9VAC20-60-1420 B. (Note: It is usual that delistings by the administrator are incorporated into the Commonwealth's regulation during the next rulemaking by the board; the variance would allow application of the delisting during the interim period before the regulations are amended.)

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 14.1, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-60-1390 Changes in classifications as a solid waste

A. Variances.

1. Applicability.

a. A person who recycles waste that is managed entirely within the Commonwealth may petition the director to exclude the waste at a particular site from the classification as the solid waste (Parts I (9VAC20-60-12 et seq.) and III (9VAC20-60-124 et seq.) of this chapter). The conditions under which a petition for a variance will be accepted are shown in subdivision 2 of this subsection. The wastes excluded under such petitions may still, however, remain classified as a solid waste for the purposes of other regulations issued by the Virginia Waste Management Board or other agencies of the Commonwealth.

b. A person who generates wastes at a generating site in Virginia and whose waste is subject to federal jurisdiction (e.g., the waste is transported across state boundaries) shall first obtain a favorable decision from the administrator in accordance with Subpart C, 40 CFR Part 260, before his waste may be considered for a variance by the director.

c. A person who recycles materials from a generating site outside the Commonwealth and who causes them to be brought into the Commonwealth for recycling shall first obtain a favorable decision from the administrator in accordance with Subpart C, 40 CFR Part 260, before the waste may be considered for a variance by the director.

d. A person who received a favorable decision from the administrator in the response to a petition for variance or nonwaste determination or a person whose wastes were delisted as a result of a successful petition to the administrator shall provide a notification to the department containing the following information: (i) the petitioner's name and address and (ii) a copy of the administrator's decision.

2. Conditions for a variance. In accordance with the standards and criteria in subsection B of this section and the procedures in 9VAC20-60-1420 B, the director may determine on a case-by-case basis that the following recycled materials are not solid wastes:

a. Materials that are accumulated speculatively without sufficient amounts being recycled (as defined in Part I).

b. Materials that are reclaimed and then reused within the original primary production process in which they were generated.

c. Materials that have been reclaimed but must be reclaimed further before the materials are completely recovered.

d. Hazardous secondary materials that are reclaimed in a continuous industrial process.

e. Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate.

f. Hazardous secondary materials that are transferred for reclamation under 40 CFR 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards.

B. Standards and criteria for variances.

1. The director may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed on an annual basis by filing a new application. The director's decision will be based on the following criteria:

a. The manner in which the material is expected to be recycled, and when the material is expected to be recycled, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangement for recycling);

b. The reason that the applicant has accumulated the material for one or more years without recycling 75% of the volume accumulated at the beginning of the year;

c. The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;

d. The extent to which the material is handled to minimize loss; and

e. Other relevant factors.

2. The director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

a. How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

b. The prevalence of the practice on an industry-wide basis;

c. The extent to which the material is handled before reclamation to minimize loss;

d. The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

e. The location of the reclamation operation in relation to the production process;

f. Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

g. Whether the person who generates the material also reclaims it; and

h. Other relevant factors.

3. The director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed but must be reclaimed further before recovery is completed if the partial reclamation has produced a commodity-like material. A determination that a partially reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on whether all of the following decision criteria are satisfied:

a. Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste;

b. Whether the partially reclaimed material has sufficient economic value that it will be purchased for further reclamation;

c. Whether the partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials that is used in subsequent production steps;

d. Whether there is a market for the partially reclaimed material as demonstrated by known customer or customers who are further reclaiming the material (e.g., records of sales or contracts and evidence of subsequent use, such as bills of lading); and

e. Whether the partially reclaimed material is handled to minimize loss.

4. The director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that are transferred for reclamation under 40 CFR 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards. The director's decision will be based on the following criteria:

a. The reclamation facility or intermediate facility must demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to 40 CFR 260.43;

b. The reclamation facility or intermediate facility must satisfy the financial assurance condition in 40 CFR 261.4(a)(24)(vi)(F);

c. The reclamation facility or intermediate facility must not be subject to a formal enforcement action in the previous three years and not be classified as a significant noncomplier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;

d. The intermediate or reclamation facility must have the equipment and trained personnel needed to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements under 40 CFR Part 261 Subpart M;

e. If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals, or present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment; and

f. The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (i.e., releases that are not covered by a permit, such as a permit to discharge to water or air), which may include potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures, and must include consideration of potential cumulative risks from other nearby potential stressors.

5. An applicant may apply to the administrator for a formal determination that a hazardous secondary material is not discarded and therefore not a solid waste (i.e., nonwaste determination). The determinations will be based on the criteria contained in subdivision B 6 or B 7 of this section, as applicable. If an application is denied, the hazardous secondary material might still be eligible for a solid waste variance or exclusion (e.g., one of the solid waste variances under this section). Determinations may also be granted by the director if the state is either authorized for this provision or if the following conditions are met:

a. The director determines the hazardous secondary material meets the criteria in subdivision B 6 or B 7 of this section, as applicable;

b. The state requests that EPA review its determination; and

c. EPA approves the state determination.

6. The director may grant a nonwaste determination for hazardous secondary material that is reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on the following criteria:

a. The extent that the management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment;

b. Whether the capacity of the production process would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (e.g., based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

c. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

d. Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under 40 CFR 261.2 or 40 CFR 261.4.

7. The director may grant a nonwaste determination for hazardous secondary material that is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on the following criteria:

a. Whether market participants treat the hazardous secondary material as a product or intermediate rather than a waste (e.g., based on the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements);

b. Whether the chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates;

c. Whether the capacity of the market would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (e.g., based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

d. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

e. Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under 40 CFR 261.2 or 40 CFR 261.4.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 14.2, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 32, Issue 9, eff. January 27, 2016; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-1400 Changes in process classification. (Reserved)

A. Variance to be classified as a boiler. In accordance with the standards and criteria in the definition of "boiler" and the procedures in 9VAC20-60-1420 B or 9VAC20-60-1420 C the director may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler after considering the following criteria:

1. The extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases;

2. The extent to which the combustion chamber and energy recovery equipment are of integral design;

3. The efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel;

4. The extent to which exported energy is utilized;

5. The extent to which the device is in common and customary use as a "boiler" functioning primarily to produce steam, heated fluids, or heated gases; and

6. Other factors, as appropriate.

B. [Reserved.]

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 14.3, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-1410 Changes in the required management procedures. (Reserved)

A. Reclamation of precious metals. The director may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in 40 CFR 261.6(a)(2)(iii) should be regulated under 40 CFR 261.6(b) and 40 CFR 261.6(c) rather than under provisions of 20VAC20-60-266. The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. In making this decision, the director will consider the following factors:

1. The types of materials accumulated or stored and the amounts accumulated or stored;

2. The method of accumulation or storage;

3. The length of time the materials have been accumulated or stored before being reclaimed;

4. Whether any contaminants are being released into the environment, or are likely to be so released; and

5. Other relevant factors. The procedures for this decision are set forth in 9VAC20-60-1420 C.

B. Variance from containment requirements for tanks.

1. The owner or operator may obtain a variance from the requirements of 40 CFR 265.193 or 40 CFR 264.193 if the director finds, as a result of a demonstration by the owner or operator, either:

a. That alternative design and operating practices, together with location characteristics, will prevent the migration of hazardous waste or hazardous constituents into the ground water or surface water at least as effectively as secondary containment during the active life of the tank system; or

b. That in the event of a release that does migrate to ground water or surface water, no substantial present or potential hazard will be posed to human health or the environment.

2. New underground tank systems may not, per a demonstration in accordance with subdivision 5 of this subsection, be exempted from the secondary containment requirements of this section.

3. Application for a variance as allowed in subdivision 1 of this subsection does not waive compliance with the requirements of 40 CFR 265.193 or 40 CFR 264.193 for new tank systems.

4. In deciding whether to grant a variance based on a demonstration of equivalent protection of ground water and surface water, the director will consider:

a. The nature and quantity of the wastes;

b. The proposed alternate design and operation;

c. The hydrogeologic setting of the facility, including the thickness of soils between the tank system and groundwater; and

d. All other factors that would influence the quality and mobility of the hazardous waste constituents and the potential for them to migrate to ground water or surface water.

5. In deciding whether to grant a variance, based on a demonstration of no substantial present or potential hazard, the director will consider:

a. The potential adverse effects on groundwater, surface water, and land quality taking into account:

(1) The physical and chemical characteristics of the waste in the tank system, including its potential for migration;

(2) The hydrogeological characteristics of the facility and surrounding land;

(3) The potential for health risks caused by human exposure to waste constituents;

(4) The potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

(5) The persistence and permanence of the potential adverse effects;

b. The potential adverse effects of a release on ground water quality, taking into account:

(1) The quantity and quality of ground water and the direction of ground water flow;

(2) The proximity and withdrawal rates of water in the area;

(3) The current and future uses of ground water in the area; and

(4) The existing quality of groundwater, including other sources of contamination and their cumulative impact on the ground water quality;

c. The potential adverse effects of a release on surface water quality, taking into account:

(1) The quantity and quality of ground water and the direction of ground water flow;

(2) The patterns of rainfall in the region;

(3) The proximity of the tank system to surface waters;

(4) The current and future uses of surface waters in the area any water quality standards established for those surface waters; and

(5) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and

d. The potential adverse effects of a release on the land surrounding the tank system, taking into account:

(1) The patterns of rainfall in the region; and

(2) The current and future uses of the surrounding land.

6. The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subdivision 4 of this subsection at which a release of hazardous waste has occurred from the primary tank system but has not migrated beyond the zone of engineering control (as established in the variance), shall:

a. Comply with the requirements of 40 CFR 265.196 or 40 CFR 264.196, except 40 CFR 265.196(d) or 40 CFR 264.196(d);

b. Decontaminate or remove contaminated soil to the extent necessary to:

(1) Enable the tank system, for which the variance was granted, to resume operation with the capability for the detection of and response to releases at least equivalent to the capability it had prior to the release; and

(2) Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water; and

c. If contaminated soil cannot be removed or decontaminated in accordance with subdivision 6 b of this subsection, comply with the requirements of 40 CFR 265.197(b) or 40 CFR 264.197(b), as applicable;

7. The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subdivision 4 of this subsection, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), shall:

a. Comply with the requirements of 40 CFR 265.196(a) through 40 CFR 265.196(d) or 40 CFR 264.196(a) through 40 CFR 264.196(d);

b. Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed, or if ground water has been contaminated, the owner or operator shall comply with the requirements of 40 CFR 265.197(b) or 40 CFR 264.197(b); and

c. If repairing, replacing, or reinstalling the tank system, provide secondary containment in accordance with the requirements of 40 CFR 265.193(a) through 40 CFR 265.193(f) or 40 CFR 264.193(a) through 40 CFR 264.193(f) or reapply for a variance from secondary containment and meet the requirements for new tank systems in 40 CFR 265.192 or 40 CFR 264.192 if the tank system is replaced.

The owner or operator shall comply with these requirements even if contaminated soil can be decontaminated or removed, and ground water or surface water has not been contaminated.

C. Petitions to allow land disposal of a waste prohibited under 9VAC20-60-268.

1. Any person seeking an exemption from a prohibition under 9VAC20-60-268 for the disposal of a restricted hazardous waste in a particular unit or units shall submit a petition to the EPA administrator in accordance with 40 CFR 268.6.

2. (Reserved.)

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from VR672-10-1 § 14.4, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-1420 Administrative procedures

A. Procedures for variances to be classified as a boiler. The director will use the following procedures in evaluating applications for variances to classify particular enclosed controlled flame combustion devices as boilers:

1. The applicant must apply to the department for the variance. The application must address the relevant criteria contained in 9VAC20-60-1400.

2. The director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The director will issue a final decision after receipt of comments and after the hearing (if any).

B. Variances. The director will use the following procedures in evaluating applications for variances submitted under 9VAC20-60-1380 B, 9VAC20-60-1390, and 9VAC20-60-1400.

1. The applicant shall apply to the department. The application shall address the relevant criteria contained in 9VAC20-60-1380 B, 9VAC20-60-1390, and 9VAC20-60-1400.

2. The director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement and radio broadcast in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The director will issue a final decision after receipt of comments and after the hearing (if any), and will publish it in the newspaper in the locality where the applicant is located.

3. In the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in 9VAC20-60-1390 upon which a variance or nonwaste determination has been based, the applicant must send a description of the change in circumstances to the director. The director may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or nonwaste determination or may require the facility to reapply for the variance or nonwaste determination.

4. Variances and nonwaste determinations shall be effective for a fixed term not to exceed 10 years. No later than six months prior to the end of this term, facilities must reapply for a variance or nonwaste determination. If a facility reapplies for a variance or nonwaste determination within six months, the facility may continue to operate under an expired variance or nonwaste determination until receiving a decision on their reapplication from the director.

5. Facilities receiving a variance or nonwaste determination must provide notification as required by 40 CFR 260.42 as incorporated by reference.

C. Changes in management procedures.

1. Recycling activities. In determining whether to regulate recycling activities in a manner differing from procedures described in 40 CFR 261.6(a)(2)(iii), the director will fulfill all the requirements of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. In addition to the process required by the APA, the director will:

a. If a generator is accumulating the waste, issue a notice setting forth the factual basis for the decision and stating that the person shall comply with applicable requirements of 9VAC20-60-262. The notice will become final within 30 days, unless the person served requests a public hearing to challenge the decision. Upon receiving such a request, the director will hold a public hearing. The director will provide notice of the hearing to the public and allow public participation at the hearing. The director will issue a final order after the hearing stating whether or not compliance with 9VAC20-60-262 is required. The order becomes effective in 30 days, unless the director specifies a later date or unless review under Article 5 (§ 2.2-4025 et seq.) of the Administrative Process Act is requested.

b. If the person is accumulating the recyclable material at a storage facility, issue a notice stating that the person shall obtain a permit in accordance with all applicable provisions of Part III (9VAC20-60-124 et seq.), 9VAC20-60-270, and Part XII (9VAC20-60-1260 et seq.) of this chapter. The owner or operator of the facility shall apply for a permit within no less than 60 days and no more than six months of notice, as specified in the notice. If the owner or operator of the facility wishes to challenge the director's decision, he may do so in his permit application, in a public hearing held on the draft permit, or in comments filed on the draft permit or on the notice of intent to deny the permit. The fact sheet accompanying the permit will specify the reasons for the director's determination. The questions of whether the director's decision was proper will remain open for consideration during the public comment period discussed under 40 CFR 124.11 and in any subsequent hearing.

2. Variance from secondary containment. The following procedures shall be followed in order to request a variance from secondary containment:

a. The department shall be notified in writing by the owner or operator that he intends to conduct and submit a demonstration for a variance from secondary containment as allowed in 40 CFR 265.193(g), (or 40 CFR 264.195(g)), and 9VAC20-60-1410 B according to the following schedule:

(1) For existing tank systems, at least 24 months prior to the date that secondary containment shall be provided in accordance with 40 CFR 265.193(a) or 40 CFR 264.193(a); and

(2) For new tank systems, at least 30 days prior to entering into a contract for installation of the tank system.

b. As part of the notification, the owner or operator shall also submit to the department a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps. The demonstration shall address each of the factors listed in 9VAC20-60-1410 B 4 or 9VAC20-60-1410 B 5.

c. The demonstration for a variance shall be completed and submitted to the department within 180 days after notifying the department of intent to conduct the demonstration.

d. In case of facilities regulated under 9VAC20-60-265:

(1) The director will inform the public, through a newspaper notice, of the availability of the demonstration for a variance. The notice shall be placed in a daily or weekly major local newspaper of general circulation and shall provide at least 30 days from the date of the notice for the public to review and comment on the demonstration for a variance. The director also will hold a public hearing, in response to a request or at his own discretion, whenever such a hearing might clarify one or more issues concerning the demonstration for a variance. Public notice of the hearing will be given at least 30 days prior to the date of the hearing and may be given at the same time as notice of the opportunity for the public to review and comment on the demonstration. These two notices may be combined.

(2) The director will approve or disapprove the request for a variance within 90 days of receipt of the demonstration from the owner or operator and will notify in writing the owner or operator and each person who submitted written comments or requested notice of the variance decision. If the demonstration for a variance is incomplete or does not include sufficient information, the 90-day time period will begin when the department receives a complete demonstration, including all information necessary to make a final determination. If the public comment period in subdivision 2 d (1) of this subsection is extended, the 90-day time period will be similarly extended.

e. In case of facilities regulated under 9VAC20-60-264, if a variance is granted to the permittee, the director will require the permittee to construct and operate the tank system in the manner that was demonstrated to meet the requirements for the variance.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from VR672-10-1 § 14.5, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-60-1430 Petitions to include additional hazardous wastes

A. General.

1. Any person seeking to add a hazardous waste or a category of hazardous waste to the universal waste regulations of 9VAC20-60-273 and Part XVI (9VAC20-60-1495 et seq.) of this chapter may petition for a regulatory amendment under this part.

2. To be successful, the petitioner shall demonstrate to the satisfaction of the director that regulation under the universal waste regulations of 9VAC20-60-273 and Part XVI of this chapter:

a. Is appropriate for the waste or category of waste;

b. Will improve management practices for the waste or category of waste; and

c. Will improve implementation of the hazardous waste program.

The petition shall include the information required by 9VAC20-60-1370 C. The petition should also address as many of the factors listed in subsection B of this section as are appropriate for the waste or category of waste addressed in the petition.

3. The director will grant or deny a petition using the factors listed in subsection B of this section. The decision will be based on the weight of evidence showing that regulation under 9VAC20-60-273 and Part XVI of this chapter is appropriate for the waste or category of waste, will improve management practices for the waste or category of waste, and will improve implementation of the hazardous waste program.

4. The director may request additional information needed to evaluate the merits of the petition.

5. If the director adds new hazardous wastes to the list contained in 9VAC20-60-273 and in Part XVI of these regulations, management of these wastes under the universal waste regulations would only be allowed within the Commonwealth or other states that have added those particular wastes to their regulations. Shipments of such wastes to a state where universal waste standards do not apply to that waste would have to comply with the full hazardous waste requirements of Parts I through XV of this chapter.

B. Factors to consider.

1. The waste or category of waste, as generated by a wide variety of generators, is listed in Subpart D of 40 CFR Part 261, or (if not listed) a proportion of the waste stream exhibits one or more characteristics of hazardous waste identified in Subpart C of 40 CFR Part 261. (When a characteristic waste is added to the universal waste regulations of 9VAC20-60-273 and Part XVI of this chapter by using a generic name to identify the waste category (e.g., batteries), the definition of universal waste will be amended to include only the hazardous waste portion of the waste category (e.g., hazardous waste batteries). Thus, only the portion of the waste stream that does exhibit one or more characteristics (i.e., is hazardous waste) is subject to the universal waste regulations of 9VAC20-60-273 and Part XVI of this chapter;

2. The waste or category of waste is not exclusive to a specific industry or group of industries, is commonly generated by a wide variety of types of establishments (including, for example, households, retail and commercial businesses, office complexes, very small quantity generators, small businesses, government organizations, as well as large industrial facilities);

3. The waste or category of waste is generated by a large number of generators (e.g., more than 1,000 nationally) and is frequently generated in relatively small quantities by each generator;

4. Systems to be used for collecting the waste or category of waste (including packaging, marking, and labeling practices) would ensure close stewardship of the waste;

5. The risk posed by the waste or category of waste during accumulation and transport is relatively low compared to other hazardous wastes, and specific management standards proposed or referenced by the petitioner (e.g., waste management requirements appropriate to be added to 9VAC20-60-273 or Part XVI of this chapter; and applicable requirements of the Regulations Governing the Transportation of Hazardous Materials, 9VAC20-110) would be protective of human health and the environment during accumulation and transport;

6. Regulation of the waste or category of waste under 9VAC20-60-273 will increase the likelihood that the waste will be diverted from nonhazardous waste management systems (e.g., the municipal waste stream, nonhazardous industrial or commercial waste stream, municipal sewer or stormwater systems) to recycling, treatment, or disposal in compliance with the Virginia Hazardous Waste Management Regulations;

7. Regulation of the waste or category of waste under 9VAC20-60-273 will improve implementation of and compliance with the hazardous waste regulatory program; and

8. Such other factors as may be appropriate.

History

• Statutory Authority: §§ 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-1435 Petitions for site-specific variance from the applicable treatment standard under the land disposal restrictions

The director may approve an application for site-specific variance from the applicable treatment standards under the land disposal restriction using the criteria and procedures established in 9VAC20-60-1370 and 40 CFR 268.44.

History

• Statutory Authority: §§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 11, eff. March 13, 2002.

Part XV Land Disposal Restrictions [Repealed]

9VAC20-60-1440 (Repealed.)

Historical Notes

Derived from VR672-10-1 §§ 15.1 to 15.5, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

Part XVI Additional Universal Waste Management Provisions

9VAC20-60-1495 General provisions

A. Hazardous wastes defined to be universal wastes in the texts incorporated by reference at 9VAC20-60-260 and 9VAC20-60-273 and hazardous wastes as defined in 9VAC20-60-1505 shall be universal wastes for the purposes of these regulations, the Virginia Hazardous Waste Management Regulations.

B. A universal waste may be managed under the general provisions as hazardous waste or under the special provisions as universal waste. The generator shall determine under which provisions the waste shall be managed and subsequent management shall be consistent with that determination by the generator.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-1505 Additional universal wastes

A. The Commonwealth of Virginia incorporates at 9VAC20-60-273 A all universal wastes adopted by the federal government at 40 CFR Part 273. In addition to the universal wastes listed in 40 CFR Part 273, the universal wastes listed in this section are also universal wastes in Virginia if the requirements as provided in this section for each particular universal waste are met.

B. Mercury-containing lamps may be crushed for size reduction provided the requirements of this subsection are met.

1. Mercury-containing lamps are crushed under the control of the generator as defined in subdivision 4 of this subsection, and the crushed lamps are sent off site for recycling.

2. The use of mobile crushing units is prohibited. Mobile crushing units include any device or equipment or combination of devices and equipment that is designed to be transported and operated at more than one site.

3. Mercury-containing lamps that are crushed for size reduction by a generator or under the control of the generator as defined in subdivision 4 of this subsection may be managed under the provisions for universal wastes, 9VAC20-60-273, if the owner or operator complies with all the requirements and qualifications of this section.

4. "Under the control of the generator" means:

a. That the mercury-containing lamps are generated and crushed at the generating facility (for purposes of this definition, generating facility means all contiguous property owned, leased, or otherwise controlled by the universal waste (UW) lamp generator); or

b. That the mercury-containing lamps are generated and crushed at different facilities if the crushing facility is controlled by the generator or if both the generating facility and the crushing facility are controlled by a person as defined in 40 CFR Part 260.10, and if the generator provides one of the following certifications: (i) "on behalf of [insert generator facility name], I certify that this facility will send the indicated UW lamps to [insert crushing facility name], which is controlled by [insert generator facility name] and that [insert the name of either facility] has acknowledged full responsibility for the safe management of the UW lamps" or (ii) "on behalf of [insert generator facility name] I certify that this facility will send the indicated UW lamps to [insert crushing facility name], that both facilities are under common control, and that [insert name of either facility] has acknowledged full responsibility for the safe management of the UW lamps." For purposes of this certification, "control" means the power to direct the policies of the facility, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate facilities on behalf of a different person as defined in 40 CFR Part 260.10 shall not be deemed to "control" such facilities. The certification shall be submitted to the department in accordance with subdivision 7 (h) of this subsection.

5. Mercury-containing lamp crushing operations that do not meet the definition of "under the control of the generator" in subdivision 4 of this subsection are subject to all applicable requirements for destination facilities in 40 CFR Part 273, Subpart E.

6. Safety hazards to operating personnel shall be controlled through an active safety program consistent with the requirements of 29 CFR Part 1910.

7. Crushing, handling, and storing mercury-containing lamps shall occur in a safe and controlled manner that minimizes the release of mercury to the environment. Requirements for a safe and controlled manner shall include the following:

a. Mercury-containing lamps shall be crushed in a mechanical unit specifically designed to crush mercury-containing lamps. This unit shall be hermetically sealed, except for air intakes, and under negative pressure. Air intake points must be closed when the unit is not operating.

b. Crushing operations shall occur in a space with its ambient air isolated from other work areas where persons who are not involved in the crushing operation may work. The ambient air from rooms containing crushing operations shall be discharged after filtration directly to an area outside the building where persons are unlikely to be directly exposed. If a situation exists at a particular facility in which the facility determines that discharge of ambient air from a room containing a crushing operation to the outside is technically or financially impracticable, the department may approve an alternated design that allows the discharge of ambient air from a room containing a crushing operation to another internal building space or centralized air circulation system if:

(1) The ambient air is discharged to the internal building space or centralized air circulation system through filtration system capable of capturing both particulate and vapor phase mercury.

(2) The filtration system is maintained as recommended by the manufacturer to ensure that it operates at its design mercury removal efficiency.

(3) Maintenance of the filtration system shall be documented and records of maintenance shall be kept on site.

c. Mercury-containing lamps shall be crushed with a device that is equipped with air pollution controls that capture both particulate and vapor phase mercury. At a minimum, these controls shall include a HEPA filter, a sorption column of sulfur impregnated activated carbon media, and a negative air flow (vacuum) throughout the unit. The crushing unit shall have documentation from the manufacturer that demonstrates that the unit is equipped as required and:

(1) Achieves a particle retention rate of 99.97% in the HEPA filter (at a particle diameter less than 0.3 microns); and

(2) Achieves the air emission limits specified in the risk-based protectiveness standards table of subdivision 7 n (2) of this subsection.

d. Mercury-containing lamps shall be crushed indoors.

e. The transfer of crushed mercury-containing lamps in drums or containers to other drums or containers is not permitted.

f. Crushed mercury-containing lamps shall be stored in closed and hermetically sealed, nonleaking drums or containers that are in good condition (e.g., no severe rusting, no apparent structural defects, and no leaking).

g. Drums or containers used for storage of crushed mercury-containing lamps shall be properly sealed and labeled. The label shall bear the words "universal waste-lamps," "waste lamps," or "used lamps."

h. The generator or facility under the control of the generator shall make written notification to the department of the physical location of the crushing operation no later than January 31, 2017, for all existing operations or 30 calendar days prior to beginning operation of a new crushing operation. The notification shall include the name of the individual or company that owns the operation; the EPA ID number if one has been issued for the facility; the location of the crushing operation; and the names, addresses, and telephone numbers of the operator and principal contact person or persons. A written notice of changes in the notification data shall be sent to the department within 15 calendar days of the change. The notification shall include the certification required under subdivision 4 (b) of this subsection if applicable.

i. A written procedure specifying how to safely crush, handle, and store mercury-containing lamps and how to minimize the release of mercury, including during drum changes and malfunctions, shall be developed, implemented, and documented. This procedure shall include (i) the type of equipment to be used to crush mercury-containing lamps safely, (ii) instructions for proper equipment operation and a schedule for maintenance of the unit in accordance with written procedures developed by the manufacturer of the equipment, (iii) proper waste management practices, and (iv) the use of personal protective equipment to include at a minimum safety glasses or full face shield and cut-proof gloves. The maintenance schedule shall identify all maintenance operations and the frequency with which they must be performed, including replacement of particle filters and the activated carbon media as recommended by the manufacturer of the crushing unit.

j. Maintenance activities shall be documented and records of maintenance shall be maintained and available for inspection per subdivision 8 of this subsection.

k. Each unit operator shall receive initial and annual training in crushing procedures, waste handling, safety, use of personal protective equipment, and emergency procedures, including proper procedures for cleaning up broken mercury-containing lamps. All training shall be documented and records of training shall be maintained and available for inspection per subdivision 8 of this subsection.

l. Residues, filter media, used equipment, other mercury-containing equipment, and other solid waste shall not be placed in the container with the crushed mercury-containing lamps. Any waste materials generated as part of the crushing operation that are determined to be hazardous waste shall be managed under this chapter, as hazardous waste or if not hazardous waste, as a solid waste under the Solid Waste Management Regulations, 9VAC20-81.

m. Any spills of the contents of the mercury-containing lamps that may occur shall be cleaned up in accordance with 40 CFR Part 273.13(d)(2) or 40 CFR Part 273.33(d)(2).

n. All generators or facilities under the control of the generator that crush mercury-containing lamps, except those generators or facilities that crush two hours or less and no more than 220 pounds/100 kilograms (VSQG equivalent) of bulbs per month, shall provide monitoring as follows:

(1) Ambient air within the lamp crushing room and exhaust air from the lamp crushing unit shall be tested for mercury during the first month of using the lamp crushing unit and whenever the unit is modified or replaced, and annually thereafter. In addition, all connection points for hoses circulating air from within the unit, the seal between the unit and the drum, and openings in the crushing unit (e.g., the lamp feed tube) shall also be tested for mercury release during the first month of lamp crushing operation and annually thereafter. Routine maintenance of the machine does not constitute modified or replaced for purposes of requiring ambient air testing. Ambient air shall be tested within five feet of the lamp crushing device. Exhaust air and other tests shall be performed within two inches of the designated testing points on the lamp crushing device. All mercury testing required by this section shall be performed at a time when the lamp crushing device is being used to crush mercury-containing lamps.

(2) Testing for mercury releases from lamp crushing units shall be performed using a mercury vapor analyzer that has been approved for the application by the U.S. Occupational Safety and Health Administration or the Virginia Department of Labor and Industry, or a comparable device that has been calibrated by the manufacturer or laboratory providing the equipment. Mercury vapor monitors used for testing must be capable of detecting mercury at the applicable concentrations provided below or lower in air and must be equipped with a data recording device to provide a record of measurements taken. Mercury monitoring data shall be documented and available for inspection per subdivision 8 of this subsection. The acute exposure protectiveness standard is 300 µg/m³ for a 10-minute exposure with the understanding that the acute exposure protectiveness standard is considered a ceiling value and at no time during bulb crushing operation will the air concentrations of mercury exceed 300 µg/m³. Alternately, compliance with the acute exposure protectiveness standard may be demonstrated by comparing the 95% upper confidence level of the mean of the individual data points to the standard. The following are risk-based protectiveness standards at a distance of five feet from the bulb crushing unit:

| | Monthly Bulb Crushing Duration (X Hours/Month)* | Chronic Exposure Air Emission Limit (µg/m³) | Acute Exposure Air Emission Limit (µg/m³) | | --- | --- | --- | --- | | | X ≥ 32 | 1.314^skin µg/m³ | 300 µg/m³ | | | 8 < X < 32 | 6.317^skin µg/m³ | 300 µg/m³ | | | X ≤ 8 | 27.375^skin µg/m³ | 300µg/m³ | | | X ≤ 2 and no more than 220 lbs/month or 100 kg/month of bulbs crushed | Monitoring not required | Monitoring not required | | | *Monthly crushing duration is determined based on the maximum number of hours that bulb crushing occurred in any one month over the last 12-month period. | | |

(3) Any lamp crushing device that, when tested as described in subdivisions 7 n (1) and 7 n (2) of this subsection, fails to meet the criteria specified in subdivision 7 n (2) of this subsection, must immediately be removed from service. Lamp crushing devices removed from service under this subdivision may not be returned to service until the device has been inspected and repaired, and in subsequent testing has been shown to meet the specified criteria. Test data and documentation of repairs shall be kept in the facility record and available for inspection per subdivision 8 of this subsection.

(4) The facility shall document the amount of time spent crushing lamps and this information shall be maintained in the facility record and available for inspection per subdivision 8 of this subsection.

8. A copy of all records, notifications, certifications, and reports required by this section shall be kept on site and be available for examination by the department for a period of at least three years.

9. All requirements of this section shall be immediately effective for all new facilities beginning operations on or after January 1, 2017. All requirements of this section shall be effective for all existing facilities no later than April 1, 2017.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 33, Issue 5, eff. January 1, 2017; Volume 35, Issue 24, eff. August 23, 2019.

Chapter 70 Financial Assurance Regulations for Solid Waste Disposal, Transfer and Treatment Facilities

Part I Definitions

9VAC20-70-10 Definitions

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Abandoned facility" means any inactive solid waste management facility that has not met closure and post-closure care requirements.

"Active life" means the period of operation beginning with the initial receipt of solid waste and ending at the completion of closure activities required by the Solid Waste Management Regulations (9VAC20-81). Active life does not include the post-closure care monitoring period.

"Anniversary date" means the date of issuance of a financial mechanism.

"Assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity.

"Authority" means an authority created under the provisions of the Virginia Water and Waste Authorities Act, Chapter 51 (§ 15.2-5100 et seq.) of Title 15.2 of the Code of Virginia, or, if any such authority shall be abolished, the board, body, or commission succeeding to the principal functions thereof or to whom the powers given by the Virginia Water and Waste Authorities Act to such authority shall be given by law.

"Board" means the Virginia Waste Management Board.

"Cash plus marketable securities" means all the cash plus marketable securities held on the last day of a fiscal year, excluding cash and marketable securities designed to satisfy past obligations such as pensions.

"Closed facility" means a solid waste management facility that has been properly secured in accordance with the requirements of the Solid Waste Management Regulations (9VAC20-81), the Regulated Medical Waste Management Regulations (9VAC20-121), or the Transportation of Solid and Medical Wastes on State Waters Regulations (9VAC20-170). A closed facility may be undergoing post-closure care.

"Closure" means the act of securing a solid waste management facility pursuant to the requirements of this chapter and any other applicable solid waste management standards.

"Commercial transporter" means any person who transports for the purpose of commercial carriage of solid wastes or regulated medical wastes as cargo.

"Corrective action" means all actions necessary to mitigate the public health or environmental threat from a release to the environment of solid waste or constituents of solid waste from an operating, abandoned, or closed solid waste management facility and to restore the environmental conditions as required.

"Current annual inflation factor" means the annual inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business.

"Current assets" means cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.

"Current closure cost estimate" means the most recent of the estimates prepared in accordance with the requirements of 9VAC20-70-111.

"Current dollars" means the figure represented by the total of the cost estimate multiplied by the current annual inflation factor.

"Current liabilities" means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.

"Current post-closure cost estimate" means the most recent of the estimates prepared in accordance with the requirements of 9VAC20-70-112.

"Current year expenses for closure" means expenditures documented by the facility during the previous fiscal year for construction-related activities associated with closing the facility. Expenses for closure must be detailed and identified in an approved closure plan.

"Debt service" means the amount of principal and interest due on a loan in a given time period, typically the current year.

"Deficit" means total annual revenues less total annual expenditures.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste into or on any land or water so that such solid waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters.

"Facility" means any solid waste management facility unless the context clearly indicates otherwise. The term "facility" includes transfer stations.

"Federal agency" means any department, agency, or other instrumentality of the federal government, any independent agency, or establishment of the federal government including any government corporation and the Government Printing Office.

"Governmental unit" means any department, institution or commission of the Commonwealth and any public corporate instrumentality thereof, and any district, and shall include local governments.

"Groundwater" means any water, except capillary moisture or unsaturated zone moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir or other body of surface water within the boundaries of this Commonwealth, whatever may be the subsurface geologic structure in which such water stands, flows, percolates or otherwise occurs.

"Hazardous waste" means a "hazardous waste" as defined by the Virginia Hazardous Waste Management Regulations (9VAC20-60).

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill as defined by the Solid Waste Management Regulations (9VAC20-81).

"Leachate" means a liquid that has passed through or emerged from solid waste and that contains soluble, suspended, or miscible materials from such waste. Leachate and any material with which it is mixed is solid waste; except that leachate that is pumped from a collection tank for transportation for disposal in an off-site facility is regulated as septage, and leachate discharged into a wastewater collection system is regulated as industrial wastewater.

"Liabilities" means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.

"Local government" means a county, city or town or any authority, commission, or district created by one or more counties, cities or towns.

"Net working capital" means current assets minus current liabilities.

"Net worth" means total assets minus total liabilities and is equivalent to owner's equity.

"Operator" means the person responsible for the overall operation and site management of a solid waste management facility.

"Owner" means a person who owns a solid waste management facility or part of a solid waste management facility. For the purposes of this chapter, all individuals, corporations, companies, partnerships, societies or associations, and any federal agency or governmental unit of the Commonwealth having any title or interest in any solid waste management facility or the services or facilities to be rendered thereby shall be considered an owner.

"Parent corporation" means a corporation that directly owns at least 50% of the voting stock of the corporation that is the facility owner or operator; the latter corporation is deemed a "subsidiary" of the parent corporation.

"Permit" means the written permission of the director to own, operate, modify, or construct a solid waste management facility.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation or any other legal entity.

"Post-closure care" means the requirements placed upon an owner or operator of a solid waste disposal facility after closure to ensure environmental and public health and safety are protected for a specified number of years after closure.

"Receiving facility" means a facility, vessel or operation that receives solid wastes or regulated medical wastes transported, loaded or unloaded upon the navigable waters of the Commonwealth, to the extent allowable under state law, by a commercial transporter. A receiving facility is considered as a solid waste management facility. A facility that receives solid waste from a ship, barge or other vessel and is regulated under § 10.1-1454.1 of the Code of Virginia shall be considered a transfer facility for purposes of this chapter.

"Regulated medical waste" means solid waste so defined by the Regulated Medical Waste Management Regulations (9VAC20-121) as promulgated by the Virginia Waste Management Board.

"Sanitary landfill" means an engineered land burial facility for the disposal of solid waste which is so located, designed, constructed and operated to contain and isolate the solid waste so that it does not pose a substantial present or potential hazard to human health or the environment.

"Signature" means the name of a person written with his own hand.

"Site" means all land and structures, other appurtenances, and improvements thereon used for treating, storing, and disposing of solid waste. This term includes adjacent land within the property boundary used for utility systems such as repair, storage, shipping or processing areas, or other areas incident to the management of solid waste.

"Solid waste" means any of those materials defined as "solid waste" in the Virginia Waste Management Act and the Solid Waste Management Regulations (9VAC20-81).

"Solid waste disposal facility" means a solid waste management facility at which solid waste will remain after closure.

"Solid waste management facility (SWMF)" means a site used for planned treating, storing, or disposing of solid waste. A facility may consist of several treatment, storage, or disposal units.

"Storage" means the holding of waste, at the end of which the waste is treated, disposed, or stored elsewhere.

"Substantial business relationship" means the extent of a business relationship necessary under applicable Virginia law to make a guarantee contract incident to that relationship valid and enforceable. A "substantial business relationship" shall arise from a pattern of recent and on-going business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the director.

"Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.

"Total expenditures" means all expenditures excluding capital outlays and debt repayment.

"Total revenue" means revenue from all taxes and fees but does not include the proceeds from borrowing or asset sales, excluding revenue from funds managed on behalf of a specific third party.

"Transfer station" means any solid waste storage or collection facility at which solid waste is transferred from collection vehicles to haulage vehicles for transportation to a central solid waste management facility for disposal, incineration or resource recovery.

"Treatment" means any method, technique, or process, including incineration or neutralization, designed to change the physical, chemical, or biological character or composition of any waste to neutralize it or render it less hazardous or nonhazardous, safer for transport, or more amenable to use, reuse, reclamation or recovery.

"Unit" means a discrete area of land used for the management of solid waste.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-1 § 1.1, eff. July 22, 1987; amended, Virginia Register Volume 14, Issue 6, eff. January 7, 1998; Volume 18, Issue 3, eff. November 21, 2001; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

Part II General Information and Legislative Authority

9VAC20-70-20 (Repealed.)

Historical Notes

Derived from VR672-20-1 § 2.1, eff. July 22, 1987; repealed, Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

9VAC20-70-30 Purpose of chapter

A. The purpose of this chapter is to assure that owners and operators of permitted or unpermitted waste management facilities identified in 9VAC20-70-50 A are financially responsible for the closure, post-closure care and corrective action at their facilities, as applicable.

B. This chapter establishes standards and procedures for financial assurance to be used in the issuance and continuation of permits to construct, operate, modify, close, or provide post-closure care and to be used in the performance of corrective actions or in formulation of enforcement documents issued by the department.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-1 § 2.2, eff. July 22, 1987; amended, Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

9VAC20-70-40 (Repealed.)

Historical Notes

Derived from VR672-20-1 § 2.3, eff. July 22, 1987; repealed, Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

9VAC20-70-41 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; repealed, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-50 Applicability of chapter

A. This chapter applies to all persons who own, operate, or allow the following permitted or unpermitted facilities to be operated on their property:

1. Solid waste treatment, transfer and disposal facilities regulated under the Virginia Solid Waste Management Regulations (9VAC20-81);

2. Vegetative waste management facilities regulated under the Solid Waste Management Regulations (9VAC20-81);

3. Medical waste treatment, transfer or disposal facilities regulated under the Regulated Medical Waste Management Regulations (9VAC20-121); or

4. Receiving facilities as defined herein.

B. Exemptions.

1. Owners or operators of facilities who are federal or state government entities whose debts and liabilities are the debts or liabilities of the United States or the Commonwealth, are exempt from this chapter;

2. Owners and operators of facilities conditionally exempt under 9VAC20-81-95 of the Solid Waste Management Regulations are exempt from this chapter so long as they meet the conditions of the exemption;

3. Owners and operators of facilities that manage solely wastes excluded or conditionally exempt under 9VAC20-81-95 of the Solid Waste Management Regulations are exempt from this chapter;

4. Owners or operators of facilities conditionally exempt under 9VAC20-121-90 D or 9VAC20-121-300 E or excluded under 9VAC20-121-90 C of the Regulated Medical Waste Management Regulations (9VAC20-121) are exempt from this chapter;

5. Owners and operators of yard waste composting facilities exempt under 9VAC20-81-95 of the Solid Waste Management Regulations are exempt from this chapter; and

6. Owners and operators of hazardous waste management units regulated under the Virginia Hazardous Waste Management Regulations (9VAC20-60) are exempt from this chapter as far as such units are concerned.

C. Owners and operators of facilities or units that treat or dispose of wastes which are exempted from the Virginia Hazardous Waste Management Regulations (9VAC20-60) are subject to these regulations unless also exempted herein.

D. Facilities with separate ownership and operation. If separate, nonexempt persons own and operate a facility subject to this chapter, the owner and operator shall be jointly and severally liable for meeting the requirements of this chapter. If either the owner or operator is exempt, as provided in 9VAC20-70-50 B, then the other person shall be liable for meeting the requirements of this chapter. If both the owner and the operator are exempt, as provided in 9VAC20-70-50 B, then the requirements of this chapter are not applicable to that facility.

E. Exemptions for facilities owned and operated by local governments.

1. Closed facilities. Owners and operators of facilities who are local governmental entities or regional authorities that have completed closure by October 9, 1994, are exempt from all the requirements of this chapter, provided they:

a. Have (i) disposed of less than 100 tons per day of solid waste during a representative period prior to October 9, 1993; (ii) disposed of less than 100 tons per day of solid waste each month between October 9, 1993, and April 9, 1994; (iii) ceased to accept solid waste prior to April 9, 1994; and (iv) whose units are not on the National Priority List as found in Appendix B to 40 CFR Part 300; or

b. Have (i) disposed of more than 100 tons per day of solid waste prior to October 9, 1993, and (ii) ceased to accept solid waste prior to that date.

2. All other facilities. Owners and operators of facilities who are local governmental entities or regional authorities that are not exempt under subdivision 1 of this subsection are subject to the requirements of this chapter.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-1 § 2.4, eff. July 22, 1987; amended, Virginia Register Volume 14, Issue 6, eff. January 7, 1998; Volume 18, Issue 3, eff. November 21, 2001; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-70-60 Enforcement and appeal procedures; offenses and penalties

A. An enforcement action commences with a notice from the department or its representative that there is information indicating that a named party (i) is or may be in violation of a law or regulation; or (ii) is not or may not be in compliance with any existing requirement for obtaining or retaining a permit or other benefit or right. The commencement of an enforcement action is not a case decision. An enforcement action ends when a case decision becomes final, either administratively or on court review.

B. All administrative enforcement actions taken under this chapter are subject to the provisions of the Waste Management Act and § 10.1-1186 of the Code of Virginia. All appeals taken from actions of the director relative to the provisions of § 10.1-1457 of the Virginia Waste Management Act and this chapter shall be governed by the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. Orders. The director is authorized to issue orders to require any person to comply with this chapter as stated or to require such steps he deems necessary to bring about compliance.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-1 § 2.5, eff. July 22, 1987; amended, Virginia Register Volume 14, Issue 6, eff. January 7, 1998; Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-70 Suspensions and revocations

The director may revoke, suspend, or amend any permit for cause as set in § 10.1-1409 of the Code of Virginia and as provided for in 9VAC20-81-570 and 9VAC20-81-600 of the Solid Waste Management Regulations, 9VAC20-121-310 and 9VAC20-121-320 of the Regulated Medical Waste Management Regulations, and any other applicable regulations. Failure to provide or maintain adequate financial assurance in accordance with these regulations shall be a basis for revocation of such facility permit. Failure to provide or maintain adequate financial assurance in accordance with this chapter, taken with other relevant facts and circumstances, may be a basis for summary suspension of such facility permit pending a hearing to amend or revoke the permit, or to issue any other appropriate order.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-1 § 2.6, eff. July 22, 1987; amended, Virginia Register Volume 14, Issue 6, eff. January 7, 1998; Volume 18, Issue 3, eff. November 21, 2001; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-70-75 Forfeitures

Forfeiture of any financial obligation imposed pursuant to this chapter shall not relieve any owner or operator of a solid waste management facility from any obligations to comply with provisions of the Solid Waste Management Regulations (9VAC20-81) or the Regulated Medical Waste Management Regulations (9VAC20-121), and any other applicable regulations or any other legal obligations for the consequences of abandonment of any facility.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

Article 1 General Provisions

9VAC20-70-80 (Repealed.)

Article 1 General Provisions

Historical Notes

Derived from VR672-20-1 § 3.1, eff. July 22, 1987; repealed, Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

9VAC20-70-81 General purpose and scope

A. In order to assure that the costs associated with protecting the public health and safety from the consequences of an abandonment or a failure to properly execute closure, post-closure care or corrective action at a facility are to be recovered from the owner or operator, the owner or operator of such facility shall obtain one, or a combination of the financial responsibility mechanisms described in this part. Financial responsibility mechanisms shall be in the amount equal to the cost estimate approved by the department using the procedures set forth in Article 3 (9VAC20-70-111 et seq.) of this part.

B. In the case of new facilities, the selected financial responsibility mechanism or mechanisms shall be filed with the Department of Environmental Quality as part of the permit application procedures and prior to the issuance of an operating permit.

C. In the case of existing facilities that become regulated as the result of a regulatory amendment, the selected financial responsibility mechanism shall be filed with the Department of Environmental Quality within 120 days of the effective date of the amendment.

D. The director may reject the proposed evidence of financial responsibility if the mechanism or mechanisms submitted do not adequately assure that funds will be available for closure, post-closure care, or corrective action. The owner or operator shall be notified in writing within 60 days of receipt of a complete financial assurance submission of the tentative decision to accept or reject the proposed evidence.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

Article 2 Closure, Post-Closure Care and Corrective Action Requirements

9VAC20-70-90 Closure, post-closure care and corrective action requirements

A. The owner or operator shall close his facility in a manner that minimizes the need for further maintenance; and controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, the post-closure escape of uncontrolled leachate, surface runoff, or waste decomposition products to the groundwater, surface water, or to the atmosphere. The owner or operator shall close his facility in accordance with all applicable regulations.

The closure standards applicable to the solid waste management facilities are described in 9VAC20-81-160, 9VAC20-81-360, and 9VAC20-81-370 of the Solid Waste Management Regulations. The closure requirements applicable to the regulated medical waste facilities are specified in 9VAC20-121-290 of the Regulated Medical Waste Management Regulations.

B. Following closure of each solid waste disposal unit, the owner or operator shall conduct post-closure care in accordance with the requirements of 9VAC20-81-170 of the Solid Waste Management Regulations, as applicable.

C. The owner or operator shall institute a corrective action program when required to do so by 9VAC20-81-45 or 9VAC20-81-260 of the Solid Waste Management Regulations, as applicable.

D. During any re-examination of a determination of the amount of financial assurance required, the owner or operator of a landfill facility not closed in accordance with 9VAC20-81 shall demonstrate financial assurance by using one or more of the approved mechanisms listed in Article 4 (9VAC20-70-140 et seq.) of this part for the lesser of the following:

1. The amount requested by the director; or

2. The following default amounts:

a. $200,000 per acre of fill for sanitary landfills; or

b. $150,000 per acre of fill for construction demolition debris landfills and industrial landfills.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-1 § 3.2, eff. July 22, 1987; amended, Virginia Register Volume 14, Issue 6, eff. January 7, 1998; Volume 18, Issue 3, eff. November 21, 2001; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-70-100 (Repealed.)

Historical Notes

Derived from VR672-20-1 § 3.3, eff. July 22, 1987; repealed, Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

Article 3 Cost Estimates

9VAC20-70-110 (Repealed.)

Article 3 Cost Estimates

Historical Notes

Derived from VR672-20-1 § 3.4, eff. July 22, 1987; repealed, Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

9VAC20-70-111 Cost estimate for facility closure

A. The owner or operator shall submit to the department a detailed written cost estimate, in current dollars, of the cost of closing the facility in accordance with the requirements of 9VAC20-70-90 A as part of any permit application, or at the request of the director. The owner or operator shall also submit to the department a revised cost estimate in current dollars when requesting a permit modification that changes the closure cost estimate. The closure cost estimate shall be approved by the director.

1. The estimate shall equal the cost of final closure at the point in the facility's active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan.

2. The closure cost estimate shall be based on the costs to the owner or operator of hiring a third party to close the facility. A third party may not be either a parent or a subsidiary of the owner or operator.

3. The closure cost estimate may not incorporate any salvage value that may be realized by the sale of wastes, facility structures or equipment, land or other facility assets at the time of partial or final closures.

B. During the active life of the facility, the owner or operator shall adjust the closure cost estimate annually for inflation within 60 days prior to the anniversary date of the establishment of the financial mechanisms used to comply with this chapter. For owners and operators using the financial test or guarantee, the closure cost estimate shall be updated for inflation within 30 days after the close of the owner's or operator's fiscal year. The adjustment shall be made by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified below. The inflation factor is the result of dividing the latest published annual deflator by the deflator for the previous year.

1. The first adjustment is made by multiplying the closure cost estimate by the latest inflation factor. The result is the adjusted closure cost estimate.

2. Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.

C. During the active life of the facility, the owner or operator shall revise the closure cost estimate no later than 30 days after a revision has been made to the closure plan which increases the cost of closure. If the owner or operator has an approved closure plan, the closure cost estimate shall be revised no later than 30 days after the closure plan has been modified, if the change in the closure plan increases the cost of closure. The revised closure cost estimate shall also be adjusted for inflation as specified in subdivisions B 1 and B 2 of this section.

D. The owner or operator shall maintain in the facility's operating record the latest closure cost estimate prepared in accordance with subsections A through C of this section during the operating life of the facility.

E. The owner or operator of each solid waste management unit shall establish financial assurance in current dollars for the cost of closure of the unit in compliance with 9VAC20-70-140. The owner or operator shall provide continuous coverage for closure until released from financial assurance requirements by the director.

F. The owner or operator may request a reduction in the closure cost estimate and the amount of financial assurance provided under subsection E of this section, if the cost estimate exceeds the maximum cost of closure at any time during the active life of the unit. The owner or operator shall submit a revised cost estimate with the justification for the reduction to the director when requesting a reduction in the amount of the closure cost estimate and the amount of financial assurance provided. The justification shall include an itemization of all closure costs. No reduction request shall be reviewed until a complete cost estimate acceptable to the department has been submitted. A request for a reduction in the closure cost estimate shall be reviewed in a timely manner.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-112 Cost estimate for facility post-closure

A. The owner or operator shall submit to the department a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care for the solid waste disposal unit in compliance with the post-closure plan required by 9VAC20-70-90 B. The post-closure cost estimate used to demonstrate financial assurance shall account for the total costs of conducting post-closure care, including annual and periodic costs as described in the post-closure plan over the entire post-closure care period. The owner or operator shall submit the estimate to the director and place the estimate in the operating record. The post-closure cost estimate shall be approved by the director.

1. The cost estimate for post-closure care shall be based on the total costs of post-closure care during the post-closure care period.

2. During the active life of the solid waste disposal unit and during the post-closure care period, the owner or operator shall adjust the post-closure cost estimate annually for inflation within 60 days prior to the anniversary date of the establishment of the financial mechanism used to comply with this part. For owners or operators using the financial test or guarantee, the post-closure care cost estimate shall be updated for inflation within 30 days after the close of the owner's or operator's fiscal year. The adjustment process to be used is described in 9VAC20-70-111 B.

3. The owner or operator shall increase the post-closure care cost estimate and the amount of financial assurance provided under subsection B of this section no later than 30 days after a revision to the post-closure plan has been approved by the director or where a change in the solid waste disposal unit conditions increase the maximum costs of post-closure care.

4. The owner or operator may request a reduction in the post-closure cost estimate and the amount of financial assurance provided under subsection B of this section if the cost estimate exceeds the maximum costs of post-closure care remaining over the post-closure care period. The owner or operator shall submit a revised post closure cost estimate with the justification for the reduction to the director when requesting a reduction in the amount of the post-closure cost estimate and the amount of financial assurance provided. The justification shall include an itemization of all post-closure costs. No reduction request shall be reviewed until a complete cost estimate acceptable to the department has been submitted. A request for a reduction in the post-closure cost estimate shall be reviewed in a timely manner.

B. The owner or operator of each solid waste disposal unit shall establish, in a manner under 9VAC20-70-140, financial assurance in current dollars for the costs of post-closure care as required under 9VAC20-70-90 B. The owner or operator shall provide continuous coverage for post-closure care until released from financial assurance requirements for post-closure care by the director.

C. The owner or operator shall maintain in the facility's operating record the latest post-closure cost estimate prepared in accordance with subsection B of this section during the active life of the facility and during the entire post-closure care period.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-113 Financial assurance for corrective action

A. Within 120 days of a facility's finding or the director's determining (whichever first occurs) that Groundwater Protection Standards established as required by 9VAC20-81-250 have been statistically exceeded, an owner or operator of a landfill or other unit subject to groundwater monitoring shall provide additional financial assurance in the amount of $1 million to the department using the mechanisms listed under Article 4 (9VAC20-70-140 et seq.) of this part. The director shall release the owner or operator from this requirement after the director has determined:

1. The owner or operator is providing financial assurance for a corrective action program using one or more mechanisms listed under Article 4 (9VAC20-70-140 et seq.) of this part, as required under 9VAC20-70-90 C and subsections B and C of this section; or

2. The owner of operator has achieved compliance with Groundwater Protection Standards by demonstrating that concentrations of Table 3.1, Column B of 9VAC20-81-250 have not exceeded the Groundwater Protection Standards for a period of three consecutive years using the appropriate statistical procedures and performance standards.

B. An owner or operator of a solid waste management unit required to undertake a corrective action program under 9VAC20-70-90 C shall prepare and submit to the director a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action. The corrective action cost estimate shall account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period. The owner or operator shall notify the director that the estimate has been placed in the operating record unless corrective action is proceeding under 9VAC20-81-45. In the latter case, the new corrective action cost estimate shall be submitted to the director within 30 days of its preparation. The corrective action cost estimate shall be approved by the director.

1. The owner or operator shall adjust the estimate annually for inflation within 60 days prior to the anniversary date of the establishment of the financial mechanism used to comply with this part until the corrective action program is completed. For owners or operators using the financial test or guarantee, the corrective action cost estimate shall be updated for inflation within 30 days after the close of the owner's or operator's fiscal year. The adjustment process to be used is described in 9VAC20-70-111 B.

2. The owner or operator shall increase the corrective action cost estimate and the amount of financial assurance provided under this subsection no later than 30 days after revisions to the corrective action program or where a change in the solid waste management unit conditions increase the maximum costs of corrective action.

3. The owner or operator may request a reduction in the amount of the corrective action cost estimate and the amount of financial assurance provided under this subsection if the cost estimate exceeds the maximum remaining costs of corrective action. The owner or operator shall submit a revised cost estimate with the justification for the reduction to the director when requesting a reduction in the amount of the corrective action cost estimate and the amount of financial assurance provided. The justification shall include an itemization of all corrective action costs. No reduction request shall be reviewed until a complete cost estimate acceptable to the department has been submitted. A request for a reduction in the corrective action cost estimate shall be reviewed in a timely manner.

C. The owner or operator of each solid waste management unit required to undertake a corrective action program under 9VAC20-70-90 C shall establish financial assurance in the amount specified by the most recently approved cost estimate for the selected remedy in accordance with 9VAC20-70-140. The owner or operator shall provide continuous coverage for corrective action until released from financial assurance requirements for corrective action by the director.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001; Volume 27, Issue 22, eff. August 3, 2011.

Article 4 Allowable Financial Mechanisms

9VAC20-70-120 (Repealed.)

Article 4 Allowable Financial Mechanisms

Historical Notes

Derived from VR672-20-1 §§ 3.5, 3.6, eff. July 22, 1987; repealed, Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

9VAC20-70-140 Allowable financial mechanisms

The mechanisms used to demonstrate financial assurance shall ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed. Owners and operators shall choose from the options specified in this article.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

9VAC20-70-150 Trust fund

A. An owner or operator may satisfy the requirements of this article by establishing a trust fund that conforms to the requirements of this section and by submitting an originally signed triplicate of the trust agreement to the director. The owner or operator shall also place a copy of the trust agreement into the facility's operating record. The trustee for the trust fund shall be a bank or financial institution that has the authority to act as a trustee and whose trust operations are regulated and examined by the Commonwealth of Virginia.

B. Payments into the trust fund shall be made annually by the owner or operator over the active or the remaining life of the solid waste management unit, whichever is shorter. In the case of a trust fund for closure or post-closure care, this is known as the "pay-in period." In the case of a trust fund for corrective action for known releases, the "corrective action pay-in period" is one-half of the estimated length of the corrective action program.

C. If a trust fund is used to demonstrate financial assurance for closure and post-closure care:

1. For a new facility, the first payment shall be made at least 60 days before the initial receipt of waste for treatment or disposal. A receipt from the trustee for this payment shall be submitted by the owner or operator to the director before this initial receipt of waste. For an existing facility, permitted or unpermitted, the first payment is due on the effective date of the trust agreement.

2. The first payment shall be at least equal to the current closure cost and, if applicable, post-closure care estimate divided by the number of years in the pay-in period. The amount of the first payment shall be determined by the formula:

| First payment is the | Cost Estimate | or | CE | | --- | --- | --- | --- | | Total Years | TY | | |

where CE is the current closure and post-closure cost estimate and TY is the number of years in the pay-in period. Subsequent payments shall be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment shall be determined by this formula:

| Next payment is the | Cost Estimate – Current Value of the trust fund | or | CE - CV | | --- | --- | --- | --- | | Remaining Years | RY | | |

where CE is the current closure and post-closure care cost estimate (updated for inflation), CV is the current value of the trust fund, and RY is the number of years remaining in the pay-in period.

D. For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund shall be at least equal to one-half of the current cost estimate for corrective action divided by the number of years in the corrective action pay-in period as defined in subsection B of this section. The amount of subsequent payments shall be determined by the following formula:

| Next payment is | The most recent estimate of the trust fund balance – the Current Value of the trust fund | or | RB - CV | | --- | --- | --- | --- | | Corrective Action Remaining Years | CARY | | |

where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and CARY is the number of years remaining on the pay-in period. The initial payment into the trust fund shall be made no later than 120 days after the corrective action remedy has been selected.

E. The owner or operator must submit to the director prior to the anniversary date:

1. The calculation for determining the appropriate payment amount into the trust;

2. A statement from the trustee documenting the current fund value used to calculate the appropriate trust payment (this is the CV value); and

3. A statement from the trustee indicating the amount of the deposit into the trust fund.

F. If the owner or operator establishes a trust fund after having used one or more alternate mechanisms specified in this section, the initial payment into the trust fund shall be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the specifications of this section, as applicable.

G. The owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the cost estimate at the time the fund is established. However, the value of the fund shall be maintained at no less than the value would have been if annual payments were made as specified in subsections B through F of this section, as applicable. Owners and operators of solid waste management units other than landfills shall deposit the full amount of the cost estimate at the time the fund is established.

H. Whenever the cost estimate changes after the pay-in period is completed, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new cost estimate, the owner or operator shall, within 60 days of the change in the cost estimate, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the new estimate, or obtain other financial assurance as specified in this article to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner or operator may submit a written request to the director for release of the amount that is in excess of the cost estimate.

I. If the owner or operator substitutes other financial assurance as specified in this article for all or part of the trust fund, he may submit a written request to the director for release of the amount in excess of the current cost estimate covered by the trust fund.

J. Within 60 days after receiving a request from the owner or operator for release of funds specified in subsections H and I of this section, the director will instruct the trustee to release to the owner or operator such funds as the director deems appropriate, if any, in writing.

K. After beginning closure or during the period of post-closure care or corrective action, an owner or operator or any other person authorized to conduct closure, post-closure care, or corrective action may request reimbursement for closure, post-closure, or corrective action expenditures by submitting itemized bills to the director. Requests for reimbursement will be granted by the director only if sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post-closure care, or corrective action. Reimbursements will not be made from the trust fund until the pay-in period is complete. Within 60 days after receiving bills for closure, post-closure care, or corrective action activities, the director shall instruct the trustee to make reimbursements in those amounts as the director determines are in accordance with the closure or post-closure plan or are otherwise justified.

L. The director shall agree to terminate the trust when:

1. The owner or operator substitutes alternate financial assurance as specified in this article; or

2. The director notifies the owner or operator that he is no longer required by this article to maintain financial assurance for the closure, post-closure care or corrective action.

M. The wording of the trust agreement shall be identical to the wording specified in 9VAC20-70-290 A and the trust agreement shall be accompanied by a formal certification of acknowledgment. Schedule A of the trust agreement, as described in 9VAC20-70-290 A, shall be updated within 60 days after a change in the amount of the current cost estimate covered by the agreement.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-160 Surety bond guaranteeing payment or performance

A. An owner or operator may demonstrate financial assurance for closure or post-closure care by obtaining a payment or performance surety bond that satisfies the requirements of this section. An owner or operator may demonstrate financial assurance for corrective action by obtaining a performance bond which conforms to the requirements of this section. A copy of the bond shall be placed in the facility's operating record.

1. An owner or operator of a new facility shall submit the original bond to the director at least 60 days before the date on which waste is first received for treatment or disposal. In case of existing facilities, the owner or operator who substitutes a surety bond for another financial assurance mechanism already in place shall submit the bond to the director at least 30 days before the expiration date of the previous mechanism.

2. The bond shall be effective before the initial receipt of waste; January 7, 1998; or the expiration date of the previous assurance mechanism, whichever is later, or no later than 120 days after the corrective action remedy has been selected.

3. The surety company issuing the bond shall, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the U.S. Department of Treasury and must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia.

4. The owner or operator shall submit with the bond evidence that the power of attorney of the attorney-in-fact executing the bond is recorded pursuant to § 38.2-2416 of the Code of Virginia.

B. The surety bond shall name the facility operator or owner as the principal and name the Department of Environmental Quality, Commonwealth of Virginia as the obligee.

C. The penal sum of the bond shall be in an amount at least equal to the current closure, post-closure care or corrective action cost estimate, whichever is applicable.

D. The term of a closure bond shall be for the active life of the facility for which a permit is applied by the owner or operator through the closure period. A bond used for post-closure care assurance shall extend through the post-closure period. A bond used for corrective action shall extend through the corrective action period.

E. The bond shall guarantee that the owner or operator will:

1. Perform final closure, post-closure care, or corrective action in accordance with the closure or post-closure plan and other requirements in any permit for the facility;

2. Perform final closure, post-closure care, or corrective action following an order to begin closure, post-closure, or corrective action issued by the director or by a court, or following issuance of a notice of termination of the permit; or

3. Provide alternate financial assurance as specified in this article within 60 days after receipt by the director of a notice of cancellation of the bond from the surety.

F. The surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.

G. Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming an owner or operator as debtor, the owner or operator shall notify the director by certified mail of such commencement.

H. The owner or operator shall establish a standby trust fund. The standby trust fund shall meet the requirements of 9VAC20-70-150 except the requirements for initial payment and subsequent annual payments.

I. Payments made under the terms of the bond will be deposited by the surety directly into the standby trust fund. Payments from the trust fund shall be approved by the trustee.

J. If upon amendment of the permit, the cost estimate increases to an amount greater than the amount of the penal sum of the bond, the owner or operator shall, within 60 days after the increase, cause the penal sum of the bond to be increased to an amount at least equal to the new estimate or obtain other financial assurance, as specified in this article to cover the increase. Whenever the cost estimate decreases, the penal sum may be reduced to the amount of the cost estimate following written approval by the director. Notice of an increase or decrease in the penal sum shall be sent to the director by certified mail within 60 days after the change.

K. The bond shall remain in force for its term unless the surety sends written notice of cancellation by certified mail to the owner or operator and to the director. Cancellation cannot occur, however:

1. During the 120 days beginning on the date of receipt of the notice of cancellation by the director as shown on the signed return receipt; or

2. While an enforcement action is pending.

L. In the event of failure of the owner or operator to comply with the final closure, post-closure care or corrective action requirements, the director shall request the surety to perform or cause to have performed closure, post-closure, or corrective action. As an alternative to performing final closure, post-closure, or corrective action, the surety may forfeit the full amount of the penal sum to the Department of Environmental Quality, Commonwealth of Virginia.

M. The owner or operator may cancel the bond if the director has given prior written consent based on receipt of evidence of alternative financial assurance as specified in this article or if the owner or operator is no longer required to demonstrate financial responsibility.

N. The director will notify the surety if the owner or operator provides alternate financial assurance as specified in this article.

O. The surety will not be liable for deficiencies in the performance of closure by the owner or operator after the owner or operator has been notified by the director that the owner or operator is no longer required by this article to maintain financial assurance for closure or post-closure care of the facility.

P. In regard to closure or post-closure performed either by the owner or operator or by the surety, proper final closure of a solid waste management facility shall be deemed to have occurred when the director determines that final closure or post-closure has been completed.

Q. In regard to corrective action performed by either the owner or operator or by the surety, completion of a corrective action plan of a solid waste management facility shall be deemed to have occurred when the director determines that corrective action has been completed.

R. The director may cash the surety bond if it is not replaced 30 days prior to expiration with alternate financial assurance acceptable to the director or if the owner or operator fails to fulfill the conditions of the bond.

S. The wording of the surety bond shall be identical to the wording specified in 9VAC20-70-290 B.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-170 Letter of credit

A. An owner or operator may satisfy the requirements of this article by obtaining an irrevocable standby letter of credit that satisfies the requirements of this section and by submitting the original letter of credit to the director. A copy of the letter of credit shall be placed in the facility's operating record. The letter of credit shall be effective before the initial receipt of waste or before January 7, 1998, whichever is later, in case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected. The issuing institution shall be a bank or other financial institution that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Commonwealth of Virginia, by a federal agency, or by an agency of another state.

B. The letter of credit shall be irrevocable and issued for a period of at least one year in an amount at least equal to the current cost estimate for closure, post-closure care, or corrective action, whichever is applicable. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the issuing institution decides not to extend the letter of credit beyond the current expiration date it shall, at least 120 days before the date, notify both the owner or operator and the director by certified mail of that decision. The 120-day period will begin on the date of receipt by the director as shown on the signed return receipt. Expiration cannot occur, however, while an enforcement action is pending. Within 60 days of receipt of notice from the issuing institution that it does not intend to extend the letter of credit, the owner or operator shall obtain alternate financial assurance and submit it to the director.

C. Whenever the cost estimate increases to an amount greater than the amount of credit, the owner or operator shall, within 60 days of the increase, cause the amount of credit to be increased to an amount at least equal to the new estimate or obtain other financial assurance as specified in this article to cover the increase. Whenever the cost estimate decreases, the letter of credit may be reduced to the amount of the new estimate following written approval by the director. The issuing institution shall send the notice of an increase or decrease in the amount of the credit to the director by certified mail within 60 days of the change.

D. In the event of failure of the owner or operator to comply with the final closure, post-closure care or corrective action requirements, the director may cash the letter of credit.

E. The owner or operator may cancel the letter of credit only if alternate financial assurance acceptable to the director is substituted as specified in this article or if the owner or operator is released by the director from the requirements of this chapter.

F. The director shall return the original letter of credit to the issuing institution for termination when:

1. The owner or operator substitutes acceptable alternate financial assurance for closure, post-closure care, or corrective action as specified in this article; or

2. The director notifies the owner or operator that he is no longer required by this article to maintain financial assurance for closure, post-closure, or corrective action of the facility.

G. The owner or operator shall establish a standby trust fund. The standby trust fund shall meet the requirements of 9VAC20-70-150 except the requirements for initial payment and subsequent annual payments.

H. Payments made under the terms of the letter of credit will be deposited by the issuing institution directly into the standby trust fund. Payments from the trust fund shall be approved by the director.

I. The director may cash the letter of credit if it is not replaced 30 days prior to expiration with alternate financial assurance acceptable to the director.

J. The wording of the letter of credit shall be identical to the wording specified in 9VAC20-70-290 C.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-180 Certificate of deposit

A. An owner or operator of a facility (with the exception of sanitary landfills) may satisfy the requirements of this article, wholly or in part, by assigning all rights, title and interest of a certificate of deposit to the Department of Environmental Quality, Commonwealth of Virginia, conditioned so that the owner or operator shall comply with the closure, post-closure care or corrective action plan filed for the site. The amount of the certificate of deposit shall be at least equal to the estimated closure, post-closure care or corrective action cost for the site for which the permit application has been filed or any part thereof not covered by other financial responsibility mechanisms. The owner or operator shall maintain the certificate of deposit until proper final closure, post-closure care or corrective action is completed. The original assignment and the certificate of deposit, if applicable, must be submitted to the department to prove that the certificate of deposit has been obtained and meets the requirements of this section. A copy of the certificate of deposit shall be maintained in the facility's operating record.

B. The owner or operator shall be entitled to demand, receive and recover the interest and income from the certificate of deposit as it becomes due and payable as long as the market value of the certificate of deposit plus any other mechanisms used continue to at least equal the amount of the estimated current closure, post-closure care, or corrective action cost.

C. In the event of failure of the owner or operator to comply with the final closure, post-closure care or corrective action requirements, the director shall cash the certificate of deposit.

D. The owner or operator shall establish a standby trust fund. The standby trust fund shall meet the requirements of 9VAC20-70-150 except the requirements for initial payment and subsequent annual payments.

E. Payments made under the terms of the certificate of deposit will be deposited by the issuing institution directly into the standby trust fund. Payments from the trust fund shall be approved by the director.

F. The wording of the assignment shall be identical to the wording specified in 9VAC20-70-290 D.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-190 Insurance

A. An owner or operator may demonstrate financial assurance for closure, post-closure care or corrective action by obtaining insurance which conforms to the requirements of this section. The insurance shall be effective before the initial receipt of waste or before January 7, 1998, whichever is later, in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected. The insurer must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia. The owner or operator shall provide the director with an original signed copy of the insurance policy and place a copy in the operating record. The department shall be listed as an additional insured on the policy, but the department will not be obligated for payment of the premium in any manner.

B. The insurance policy shall guarantee that funds will be available to close the solid waste management unit whenever final closure occurs, to provide post-closure care for the solid waste disposal unit whenever the post-closure care period begins, or to perform corrective action whenever the corrective action period begins, whichever is applicable. The policy shall also guarantee that once closure, post-closure care, or corrective action begins, the insurer will be responsible for paying funds to the owner or operator or other person authorized to conduct closure, post-closure care, or corrective action up to an amount equal to the face amount of the policy.

C. The insurance policy shall be issued and maintained for a face amount at least equal to the current cost estimate for closure, post-closure care, or corrective action, whichever is applicable. The term face amount means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount although the insurer's future liability will be lowered by the amount of the payments.

D. The insurance policy shall provide that the insurer will pay closure, post-closure, or corrective action expenditures, whichever is applicable, on behalf of the owner or operator or any other person authorized to conduct closure, post-closure care, or corrective action. Justification and documentation of the expenditures must be submitted to and approved by the director. Requests for payment will be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of closure, post-closure care, or corrective action, or if the director approves the payment. The insurer shall notify the director when a payment has been made.

E. Each policy shall contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided that such consent is not unreasonably refused.

F. The insurance policy shall provide that the insurer may not cancel, terminate or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may cancel the policy by sending notice of cancellation by certified mail to the owner and operator and to the director 120 days in advance of cancellation. Within 60 days of receipt of notice from the insurer that it does not intend to renew the policy, the owner or operator shall obtain alternate financial assurance and submit it to the director.

G. For insurance policies providing coverage for post-closure care, commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase shall be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85% of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.

H. The owner or operator may cancel the insurance policy only if alternate financial assurance is substituted as specified in this article, or if the owner or operator, is no longer required to demonstrate financial responsibility.

I. Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy) of the U.S. Code, naming an owner or operator as debtor, the owner or operator shall notify the director by certified mail of such commencement.

J. The wording of the insurance certificate shall be identical to the wording specified in 9VAC20-70-290 E.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-200 Corporate financial test

An owner or operator may satisfy the requirements for financial assurance by demonstrating that he passes a financial test as specified in this section. To pass this test the owner or operator shall meet the following criteria:

1. Financial component.

a. The owner or operator shall satisfy one of the following three conditions:

(1) Supply documentation demonstrating that the owner or operator has a current rating for its senior unsubordinated debt of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's;

(2) A ratio of less than 1.5 comparing total liabilities to net worth; or

(3) A ratio of greater than 0.10 comparing the sum of net income plus depreciation, depletion and amortization, minus $10 million, to total liabilities.

b. The tangible net worth of the owner or operator shall be greater than the sum of the current closure, post-closure care, corrective action cost estimates and any other environmental obligations covered by a financial test plus $10 million.

c. The owner or operator shall have assets located in the United States amounting to at least the sum of current closure, post-closure care, corrective action cost estimates and any other environmental obligations covered by a financial test as described in subdivision 3 of this section.

2. Reporting requirements.

a. To demonstrate that he meets the financial component, the owner or operator shall submit the following items to the director and place copies of the items in the facility's operating record:

(1) An original letter signed by the owner's or operator's chief financial officer and worded as specified in 9VAC20-70-290 F.

(2) A copy of the independent certified public accountant's unqualified opinion of the owner's or operator's financial statements for the latest completed fiscal year except as provided in subdivision 2 a (2) (a) of this section:

(a) To be eligible to use the financial test, the owner's or operator's financial statements referenced in subdivision 2 of this section shall receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for disallowance. The director may evaluate qualified opinions on a case by case basis and allow use of the financial test in cases where the director deems that the matters which form the basis for the qualification are insufficient to warrant disallowance of the test. If the director does not allow use of the test, the owner or operator shall provide alternate financial assurance as specified in this article.

(b) (Reserved.)

(3) A copy of the owner's or operator's audited financial statements for the latest completed fiscal year.

(4) If the chief financial officer's letter providing evidence of financial assurance includes financial data that are different from data in the audited financial statements referred to in subdivision 2 a (2) of this section or any other audited financial statement or data filed with the Securities Exchange Commission (SEC), a special report from the owner's or operator's independent certified public accountant to the owner or operator is required stating that:

(a) He has compared the data in the chief financial officer's letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

(b) In connection with that examination, no matters came to his attention which caused him to believe that the data in the chief financial officer's letter should be adjusted.

(5) A certification from the corporation's chief financial officer stating the method for funding closure and post-closure costs, and the amount currently designated for closure and post-closure costs in the corporation's financial statements worded as specified in 9VAC20-70-290 H.

b. An owner or operator shall submit the items specified in subdivision 2 of this section before the initial receipt of waste or before January 7, 1998, whichever is later in the case of closure; post-closure care, or no later than 120 days after the corrective action remedy has been selected. If the owner or operator changes the financial assurance mechanism to corporate financial test from any other mechanism, the owner or operator shall submit the items specified in subdivision 2 of this section at least 60 days before the date that the former assurance expires.

c. After the initial submission of items specified in subdivision 2 of this section, the owner or operator shall update the information and submit updated information to the director within 90 days following the close of the owner or operator's fiscal year. This information must consist of all five items specified in subdivision 2 of this section.

d. The owner or operator is no longer required to submit the items specified in subdivision 2 of this section when:

(1) He substitutes alternate financial assurance as specified in this article; or

(2) He is released from the requirements of this article by the director.

e. If the owner or operator no longer meets the requirements of subdivision 1 of this section, the owner or operator shall, within 120 days following the close of the owner or operator's fiscal year, obtain alternative financial assurance that meets the requirements of this article, notify the director that the owner or operator no longer meets the criteria of the financial test and submit the alternate assurance documentation.

f. The director may, based on a reasonable belief that the owner or operator may no longer meet the requirement of this article, require reports of financial condition at any time from the owner or operator in addition to those specified in subdivision 2 of this section. If the director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subdivision 1 of this section, the owner or operator shall provide alternate financial assurance as specified in this article within 30 days after notification of such a finding.

g. The director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see subdivision 2 a (2) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The director will evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this article within 30 days after notification of the disallowance.

3. Calculation of costs to be assured. When calculating the current cost estimates for closure, post-closure care, corrective action, or the sum of the combination of such costs to be covered, and any other environmental obligations assured by a financial test referred to in subdivision 1 of this section, the owner or operator must include cost estimates required for municipal solid waste management facilities under this part, as well as cost estimates required for the following environmental obligations, if it assures them through a financial test obligations associated with underground injection control (UIC) facilities under 40 CFR 144.62, petroleum underground storage tank facilities under 9VAC25-590-10 et seq., above ground storage tank facilities under 9VAC25-640-10 et seq.), polychlorinated biphenyls (PCB) storage facilities under 40 CFR Part 761, and hazardous waste treatment, storage, and disposal facilities under 40 CFR Parts 264 and 265.

4. During the period of post-closure care, the director may approve a decrease in the current post-closure cost estimate for which this test demonstrates financial assurance if the owner or operator demonstrates to the director that the amount of the cost estimate exceeds the remaining cost of the post-closure care.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-210 Local government financial test

An owner or operator who satisfies the requirements of subdivisions 1 through 3 of this section may demonstrate financial assurance using the local government financial test up to the amount specified in subdivision 4 of this section.

1. Financial component.

a. The owner or operator shall satisfy the provisions of subdivision 1 a of this section, as applicable:

(1) If the owner or operator has outstanding, rated, general obligation bonds that are not secured by insurance, a letter of credit, or other collateral or guarantee, he shall supply the director with documentation demonstrating that the owner or operator has a current rating of Aaa, Aa, A, or Baa, as issued by Moody's, or AAA, AA, A, or BBB, as issued by Standard and Poor's on all such general obligation bonds; or

(2) If the owner or operator does not have outstanding, rated general obligation bonds, he shall satisfy each of the following financial ratios based on the owner's or operator's most recent audited annual financial statement:

(a) A ratio of cash plus marketable securities to total expenditures greater than or equal to 0.05; and

(b) A ratio of annual debt service to total expenditures less than or equal to 0.20.

b. The owner or operator shall prepare his financial statements in conformity with Generally Accepted Accounting Principles for governments and have his financial statements audited by an independent certified public accountant or by the Auditor of Public Accounts.

c. An owner or operator is not eligible to assure his obligations under this section if he:

(1) Is currently in default on any outstanding general obligation bonds;

(2) Has any outstanding general obligation bonds rated lower than Baa as issued by Moody's or BBB as issued by Standard and Poor's;

(3) Operated at a deficit equal to 5.0% or more of total annual revenue in each of the past two fiscal years; or

(4) Receives an adverse opinion, disclaimer of opinion, or other qualified opinion from the independent certified public accountant or Auditor of Public Accounts auditing his financial statement as required under subdivision 1 b of this section. However, the director may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the director deems the qualification insufficient to warrant disallowance of the test.

2. Public notice component. The local government owner or operator shall place a reference to the closure, post-closure care, or corrective action costs assured through the financial test into the next comprehensive annual financial report (CAFR) after January 7, 1998, or prior to the initial receipt of waste at the facility, whichever is later. Disclosure shall include the nature and source of closure and post-closure requirements, the reported liability at the balance sheet date, the estimated total closure and post-closure care cost remaining to be recognized, the percentage of landfill capacity used to date, and the estimated landfill life in years. A reference to corrective action cost shall be placed in CAFR no later than 120 days after the corrective action remedy has been selected in accordance with 9VAC20-81-260. For the first year the financial test is used to assure costs at a particular facility, the reference may instead be placed in the operating record until issuance of the next available CAFR if timing does not permit the reference to be incorporated into the most recently issued CAFR or budget. For closure and post-closure care costs, conformance with Government Accounting Standards Board Statement 18 assures compliance with this public notice component.

3. Recordkeeping and reporting requirements.

a. The local government owner or operator must submit to the department the following items and place copies of the items in the facility's operating record:

(1) An original letter signed by the local government's chief financial officer worded as specified in 9VAC20-70-290 G;

(2) The local government's independently audited year-end financial statements for the latest fiscal year, including the unqualified opinion of the auditor who must be an independent, certified public accountant or an appropriate state agency that conducts equivalent comprehensive audits;

(3) A report to the local government from the local government's independent certified public accountant (CPA) or the Auditor of Public Accounts based on performing an agreed upon procedures engagement relative to the financial ratios required by subdivision 1 a (2) of this section, if applicable, and the requirements of subdivisions 1 b, 1 c (3), and 1 c (4) of this section. The CPA or state agency's report shall state the procedures performed and the CPA or state agency's findings;

(4) A copy of the comprehensive annual financial report (CAFR) used to comply with subdivision 2 of this section or certification that the requirements of General Accounting Standards Board Statement 18 have been met; and

(5) A certification from the local government's chief executive officer stating in detail the method selected by the local government for funding closure and post-closure costs. If the method selected by the local government is a trust fund or similar mechanism, there shall be included a certification from the local government's chief financial officer indicating the current reserve obligated to closure and post-closure care cost. If the method selected by local governments is the use of annual operating budget and Capital Investment Funds, there shall be a certification from the local government's chief financial officer so indicating. Nothing herein shall be construed to prohibit the local government from revising its plan for funding closure and post-closure care costs if such revision provides economic benefit to the local government and if such revision provides adequate means for funding closure and post-closure care cost. This certification shall be worded as specified in 9VAC20-70-290 H.

b. The items required in subdivision 3 a of this section shall be submitted to the department and placed in the facility operating record as follows:

(1) In the case of closure and post-closure care, either before January 7, 1998, or prior to the initial receipt of waste at the facility, whichever is later; or

(2) In the case of corrective action, not later than 120 days after the corrective action remedy is selected in accordance with the requirements of 9VAC20-81-260.

c. After the initial submission of the items, the local government owner or operator must update the information, place a copy of the updated information in the operating record, and submit the updated documentation described in subdivisions 3 a (1) through (6) of this section to the department within 180 days following the close of the owner or operator's fiscal year.

d. The local government owner or operator is no longer required to meet the requirements of subdivision 3 of this section when:

(1) The owner or operator substitutes alternate financial assurance as specified in this section; or

(2) The owner or operator is released from the requirements of this section in accordance with 9VAC20-70-111 E, 9VAC20-70-112 B, or 9VAC20-70-113 C.

e. A local government shall satisfy the requirements of the financial test at the close of each fiscal year. If the local government owner or operator no longer meets the requirements of the local government financial test it must, within 210 days following the close of the owner or operator's fiscal year, obtain alternative financial assurance that meets the requirements of this section, place a copy of the financial assurance mechanism in the operating record, and submit the original financial assurance mechanism to the director.

f. The director, based on a reasonable belief that the local government owner or operator may no longer meet the requirements of the local government financial test, may require additional reports of financial condition from the local government at any time. If the director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of the local government financial test, the local government shall provide alternate financial assurance in accordance with this article.

4. Calculation of costs to be assured. The portion of the closure, post-closure, and corrective action costs for which an owner or operator can assure under subdivision 1 of this section is determined as follows:

a. If the local government owner or operator does not assure other environmental obligations through a financial test, it may assure closure, post-closure, and corrective action costs that equal up to 43% of the local government's total annual revenue or the sum of total revenues of constituent governments in the case of regional authorities.

b. If the local government assures other environmental obligations through a financial test, including those associated with UIC facilities under 40 CFR 144.62, petroleum underground storage tank facilities under 9VAC25-590, polychlorinated biphenyls storage facilities under 40 CFR Part 761, and hazardous waste treatment, storage, and disposal facilities under Part IX or X of the Virginia Hazardous Waste Management Regulations (9VAC20-60), it shall add those costs to the closure, post-closure, and corrective action costs it seeks to assure under subdivision 1 of this section. The total shall not exceed 43% of the local government's total annual revenue.

c. The owner or operator shall obtain an alternate financial assurance mechanism for those costs that exceed the limits set in subdivisions 4 a and 4 b of this section.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia; §§ 1008(a)(3), 2002, and 4004(a) of the Resource Conservation and Recovery Act; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001; Volume 27, Issue 22, eff. August 3, 2011; Volume 29, Issue 21, eff. August 1, 2013; Volume 35, Issue 24, eff. September 5, 2019.

9VAC20-70-220 Corporate guarantee

A. An owner or operator may meet the requirements of this article by obtaining a written guarantee, hereafter referred to as "corporate guarantee." The guarantor shall be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator.

B. Financial component. The guarantor shall meet the requirements for owners or operators in 9VAC20-70-200 and shall comply with the terms of the corporate guarantee.

C. Reporting requirements.

1. The wording of the corporate guarantee shall be identical to the wording specified in 9VAC20-70-290 J. The corporate guarantee shall accompany the items sent to the director as specified in subdivision 2 of 9VAC20-70-200. A copy of the guarantee and other items listed in subdivision 2 of 9VAC20-70-200 shall be placed in the facility's operating record.

2. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter shall describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter shall describe this "substantial business relationship" and the value received in consideration of the guarantee.

3. The guarantee shall be effective and the guarantor shall submit the items specified in subdivision 2 of 9VAC20-70-200 before the initial receipt of the waste or before the effective date of this amendment, whichever is later in the case of closure or post-closure care, or no later than 120 days after the corrective action remedy has been selected. If the owner or operator changes the financial assurance mechanism to corporate guarantee from any other mechanism, the guarantor shall submit the required items 60 days before the former mechanism expires.

D. The terms of the corporate guarantee shall provide that:

1. If the owner or operator fails to perform final closure or post-closure care, or corrective action of a facility covered by the corporate guarantee in accordance with the closure, post-closure care or corrective action plan and other permit or order requirements whenever required to do so, the guarantor shall:

a. Perform, or pay a third party to perform, closure, post-closure care, and/or corrective action as required (performance guarantee); or

b. Establish a fully funded trust fund as specified in 9VAC20-70-150 in the name of the owner or operator (payment guarantee).

2. The corporate guarantee will remain in force unless the guarantor sends a prior notice of cancellation by certified mail to the owner or operator and to the director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the director, as evidenced by the return receipts.

3. If a guarantee is canceled, the owner or operator must, within 90 days following receipt of the cancellation notice by the owner or operator, obtain alternate financial assurance, and submit the required documentation to the director.

4. If the owner or operator fails to provide alternate financial assurance as specified in this article and to obtain the written approval of such alternate assurance from the director within 90 days after the receipt by both the owner or operator and the director of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.

E. If a corporate guarantor no longer meets the requirements of subdivision 1 of 9VAC20-70-200, the owner or operator must, within 90 days following the close of the guarantor's fiscal year, obtain alternative assurance and submit the required documentation to the director. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within 120 days following the close of the guarantor's fiscal year, obtain alternative assurance, and submit the necessary documentation to the director.

F. The owner or operator is no longer required to submit the items specified in this section when:

1. The owner or operator substitutes alternate financial assurance; or

2. The owner or operator is released from the requirements by the director.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-230 Local government guarantee

A. An owner or operator may demonstrate financial assurance for closure, post-closure, and corrective action, as required by this article, by obtaining a written guarantee provided by a local government. The guarantor shall meet the requirements of the local government financial test in 9VAC20-70-210 and shall comply with the terms of a written guarantee.

B. Terms of the written guarantee. The guarantee shall be effective before the initial receipt of waste or before January 7, 1998, whichever is later, in the case of closure, post-closure care, or no later than 120 days after the corrective action remedy has been selected. The guarantee shall provide that:

1. If the owner or operator fails to perform closure, post-closure care, and/or corrective action of a facility covered by the guarantee, the guarantor will:

a. Perform, or pay a third party to perform, closure, post-closure care, and/or corrective action as required; or

b. Establish a fully funded trust fund as specified in 9VAC20-70-150 in the name of the owner or operator.

2. The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the director, as evidenced by the return receipts.

3. If a guarantee is canceled, the owner or operator shall, within 90 days following receipt of the cancellation notice by the owner or operator and the director, obtain alternate financial assurance, place evidence of that alternate financial assurance in the facility operating record, and notify the director. If the owner or operator fails to provide alternate financial assurance-within the 90-day period, the guarantor shall provide that alternate assurance within 120 days following the close of the guarantor's fiscal year, obtain alternative assurance acceptable to the director, place evidence of the alternate assurance in the facility operating record, and submit the alternate assurance to the director.

C. Recordkeeping and reporting.

1. The owner or operator shall submit a signed original guarantee on the form in 9VAC20-70-290 K to the department along with items required under subdivision 3 of 9VAC20-70-210 and place a copy of the document into the facility's operating record before the initial receipt of waste or before January 7, 1998, whichever is later in the case of closure, post-closure care, or no later than 120 days after the corrective action remedy has been selected.

2. The owner or operator is no longer required to maintain the items specified in 9VAC20-170-190 when:

a. The owner or operator substitutes alternate financial assurance as specified in this section; or

b. The owner or operator is released from the requirements of this chapter.

3. If a local government guarantor no longer meets the requirements of 9VAC20-70-210, the owner or operator shall, within 90 days following the close of the guarantor's fiscal year, obtain alternative assurance acceptable to the director, place evidence of the alternate assurance in the facility operating record, and submit alternate assurance to the director. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate assurance within 120 days.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-240 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; repealed, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-250 Multiple financial mechanisms

An owner or operator may satisfy the requirements of this article by establishing more than one financial mechanism per facility, except that mechanisms guaranteeing performance, rather than payment, may not be combined with other mechanisms. The mechanisms shall be specified in 9VAC20-70-150 through 9VAC20-70-230, except that financial assurance for the amount at least equal to the current cost estimate for closure, post-closure care, or corrective action may be provided by a combination of mechanisms, rather than a single mechanism.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

Article 5 Release from Financial Assurance Requirements

9VAC20-70-260 Release of the owner or operator from the financial assurance requirements

Article 5 Release from Financial Assurance Requirements

Within 60 days after receiving certification from the owner or operator that closure, post-closure care or corrective action has been accomplished in accordance with the requirements of the permit or the order, the director shall verify whether proper closure, post-closure care, or corrective action has occurred. Unless the director has reason to believe that closure, post-closure care or corrective action has not been in accordance with the appropriate plan or other requirements, he shall notify the owner or operator in writing that he is no longer required to maintain financial assurance for the particular unit or facility. Such notice shall release the owner or operator only from the requirements for financial assurance for the unit or facility; it does not release him from legal responsibility for meeting the closure, post-closure care or corrective action standards. If no written notice of termination of financial assurance requirements or failure to properly perform closure, post-closure care or corrective action is received by the owner or operator within 60 days after certifying proper closure, post-closure care or corrective action, the owner or operator may submit a written request to the director for an immediate decision in which case the director shall respond within 10 days after receipt of such request.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

Article 6 Incapacity of Owners, Operators or Financial Institution

9VAC20-70-270 Incapacity of owners, operators or financial institution

Article 6 Incapacity of Owners, Operators or Financial Institution

A. An owner or operator shall notify the director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding. A guarantor of a corporate guarantee as specified in 9VAC20-70-220 shall make such a notification if he is named as debtor, as required under the terms of the corporate guarantee.

B. An owner or operator who fulfills the requirements of Article 4 (9VAC20-70-140 et seq.) of this part by obtaining a trust fund, a letter of credit, a surety bond, or an insurance policy, will be deemed to be without the required financial assurance in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing a surety bond, letter of credit, or insurance policy to issue such mechanisms. The owner or operator shall establish other financial assurance within 60 days of such event.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998.

Article 7 Wording of Financial Mechanisms

9VAC20-70-280 (Repealed.)

Article 7 Wording of Financial Mechanisms

Historical Notes

Derived from Virginia Register Volume 14, Issue 6, eff. January 7, 1998; repealed, Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

9VAC20-70-290 Wording of financial mechanisms

A. Wording of trust agreements.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

TRUST AGREEMENT

Trust agreement, the "Agreement," entered into as of (date) by and between (name of the owner or operator), a (State) (corporation, partnership, association, proprietorship), the "Grantor," and (name of corporate trustee), a (State corporation) (national bank), the "Trustee."

Whereas, the Virginia Waste Management Board has established certain regulations applicable to the Grantor, requiring that the owner or operator of a (solid) (regulated medical) (yard) waste (transfer station) (receiving) (management) facility must provide assurance that funds will be available when needed for (closure, post-closure care, or corrective action) of the facility,

Whereas, the Grantor has elected to establish a trust to provide (all or part of) such financial assurance for the facility identified herein,

Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee,

Now, therefore, the Grantor and the Trustee agree as follows:

Section 1. Definitions. As used in this Agreement:

A. The term "fiduciary" means any person who exercises any power of control, management, or disposition or renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of this trust fund, or has any authority or responsibility to do so, or who has any authority or responsibility in the administration of this trust fund.

B. The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.

C. The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.

Section 2. Identification of Facility and Cost Estimates. This Agreement pertains to facility(ies) and cost estimates identified on attached Schedule A.

(NOTE: On Schedule A, for each facility list, as applicable, the permit number, name, address, and the current closure, post-closure, corrective action cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement.)

Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of the Department of Environmental Quality, Commonwealth of Virginia. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as property consisting of cash or securities, which are acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund will be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee undertakes no responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments to discharge any liabilities of the Grantor established by the Commonwealth of Virginia's Department of Environmental Quality.

Section 4. Payment for (Closure, Post-Closure Care, or Corrective Action). The Trustee will make such payments from the Fund as the Department of Environmental Quality, Commonwealth of Virginia will direct, in writing, to provide for the payment of the costs of (closure, post-closure care, corrective action) of the facility covered by this Agreement. The Trustee will reimburse the Grantor or other persons as specified by the Department of Environmental Quality, Commonwealth of Virginia, from the Fund for (closure, post-closure care, corrective action) expenditures in such amounts as the Department of Environmental Quality will direct, in writing. In addition, the Trustee will refund to the Grantor such amounts as the Department of Environmental Quality specifies in writing. Upon refund, such funds will no longer constitute part of the Fund as defined herein.

Section 5. Payments Comprising the Fund. Payments made to the Trustee for the fund will consist of cash or securities acceptable to the Trustee.

Section 6. Trustee Management. The Trustee will invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with investment guidelines and objectives communicated in writing to the Trustee from time to time by the Grantor, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling and managing the Fund, the Trustee or any other fiduciary will discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of any enterprise of a like character and with like aims; except that:

A. Securities or other obligations of the Grantor, or any other owner or operator of the facility, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 USC § 80a-2(a), will not be acquired or held, unless they are securities or other obligations of the federal or a state government;

B. The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or state government; and

C. The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:

A. To transfer from time to time any or all of the assets of the Fund to any common, commingled or collective trust fund created by the Trustee in which the Fund is eligible to participate subject to all of the provisions thereof, to be commingled with the assets of other trusts participating herein. To the extent of the equitable share of the Fund in any such commingled trust, such commingled trust will be part of the Fund; and

B. To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 USC § 80a-1 et seq., of one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustees may vote such shares in its discretion.

Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:

A. To sell, exchange, convey, transfer or otherwise dispose of any property held by it, by private contract or at public auction. No person dealing with the Trustee will be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other dispositions;

B. To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

C. To register any securities held in the fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United State government, or any agency or instrumentality thereof with a Federal Reserve Bank, but the books and records of the Trustee will at all times show that all such securities are part of the Fund;

D. To deposit any cash in the fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or State government; and

E. To compromise or otherwise adjust all claims in favor of or against the Fund.

Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund will be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee will be paid from the Fund.

Section 10. Annual Valuation. The Trustee will annually, at the end of the month coincident with or preceding the anniversary date of establishment of the Fund, furnish the Grantor and to the director of the Department of Environmental Quality, Commonwealth of Virginia, a statement confirming the value of the Trust. Any securities in the Fund will be valued at market value as of no more than 30 days prior to the date of the statement. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the director of the Department of Environmental Quality, Commonwealth of Virginia will constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.

Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee will be fully protected, to the extent permitted by law, in acting upon the advice of counsel.

Section 12. Trustee Compensation. The Trustee will be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.

Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon acceptance of the appointment by the successor trustee, the Trustee will assign, transfer and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee and the date on which he assumes administration of the trust will be specified in writing and sent to the Grantor, the director of the Department of Environmental Quality, Commonwealth of Virginia, and the present trustees by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section will be paid as provided in Part IX.

Section 14. Instructions to the Trustee. All orders, requests and instructions by the Grantor to the Trustee will be in writing, signed by such persons as are designated in the attached Exhibit A or such other designees as the grantor may designate by amendment to Exhibit A. The Trustee will be fully protected in acting without inquiry in accordance with the Grantor's orders, requests and instructions. All orders, requests, and instructions by the Director of the Department of Environmental Quality, Commonwealth of Virginia, to the Trustee will be in writing, signed by the Director and the Trustee will act and will be fully protected in acting in accordance with such orders, requests and instructions. The Trustee will have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or the Commonwealth of Virginia's Department of Environmental Quality hereunder has occurred. The Trustee will have no duty to act in the absence of such orders, requests and instructions from the Grantor and/or the Commonwealth of Virginia's Department of Environmental Quality, except as provided for herein.

Section 15. Notice of Nonpayment. The Trustee will notify the Grantor and the Director of the Department of Environmental Quality, Commonwealth of Virginia, by certified mail within 10 days following the expiration of the 30-day period after the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period. After the pay-in period is completed, the Trustee is not required to send a notice of nonpayment.

Section 16. Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director of the Department of Environmental Quality, Commonwealth of Virginia, if the Grantor ceases to exist.

Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust will be irrevocable and will continue until terminated at the written agreement of the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, will be delivered to the Grantor.

Section 18. Immunity and Indemnification. The Trustee will not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the Director of the Department of Environmental Quality, Commonwealth of Virginia, issued in accordance with this Agreement. The Trustee will be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.

Section 19. Choice of Law. This Agreement will be administered, construed and enforced according to the laws of the Commonwealth of Virginia.

Section 20. Interpretation. As used in the Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement will not affect the interpretation of the legal efficacy of this Agreement.

In witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is identical to the wording specified in 9VAC20-70-290 A of the Financial Assurance Regulations for Solid Waste Disposal, Transfer and Treatment Facilities, as such regulations were constituted on the date shown immediately below.

| (Signature of Grantor) | | | --- | --- | | By: (Title) | (Date) | | Attest: | | | (Title) | (Date) | | (Seal) | | | (Signature of Trustee) | | | By | | | Attest: | | | (Title) | | | (Seal) | (Date) |

Certification of Acknowledgment:

COMMONWEALTH OF VIRGINIA

STATE OF __________

CITY/COUNTY OF __________

On this date, before me personally came (owner or operator) to me known, who being by me duly sworn, did depose and say that she/he resides at (address), that she/he is (title) of (corporation), the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she/he signed her/his name thereto by like order.

(Signature of Notary Public)

B. Wording of surety bond guaranteeing performance or payment.

(NOTE: instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

PERFORMANCE OR PAYMENT BOND

Date bond executed: __________

Effective date: __________

Principal: (legal name and business address) _____________

Type of organization: (insert "individual," "joint venture," "partnership," or "corporation") _____________

State of incorporation: __________

Surety: (name and business address) _____________

Name, address, permit number, if any, and (closure, post-closure care, or corrective action) cost estimate for the facility: _____________

Penal sum of bond: $________

Surety's bond number: __________

Know all men by these present, That we, the Principal and Surety hereto are firmly bound to the Department of Environmental Quality, Commonwealth of Virginia, (hereinafter called the Department) in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of each sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas, said Principal is required to have a permit from the Department of Environmental Quality, Commonwealth of Virginia, in order to own or operate the (solid, regulated medical, yard) waste management facility identified above, and

Whereas, said Principal is required to provide financial assurance for (closure, post-closure care, corrective action) of the facility as a condition of the permit or an order issued by the department,

Now, therefore the conditions of this obligation are such that if the Principal shall faithfully perform (closure, post-closure care, corrective action), whenever required to do so, of the facility identified above in accordance with the order or the (closure, post-closure care, corrective action) plan submitted to receive said permit and other requirements of said permit as such plan and permit may be amended or renewed pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended,

Or, if the Principal shall faithfully perform (closure, post-closure care, corrective action) following an order to begin (closure, post-closure care, corrective action) issued by the Commonwealth of Virginia's Department of Environmental Quality or by a court, or following a notice of termination of the permit,

Or, if the Principal shall provide alternate financial assurance as specified in the Department's regulations and obtain the director's written approval of such assurance, within 90 days of the date notice of cancellation is received by the Director of the Department of Environmental Quality from the Surety, then this obligation will be null and void, otherwise it is to remain in full force and effect for the life of the management facility identified above.

The Surety shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the Director of the Department of Environmental Quality, Commonwealth of Virginia, that the Principal has been found in violation of the requirements of the Department's regulations, the Surety must either perform (closure, post-closure care, corrective action) in accordance with the approved plan and other permit requirements or forfeit the (closure, post-closure care, corrective action) amount guaranteed for the facility to the Commonwealth of Virginia.

Upon notification by the Director of the Department of Environmental Quality, Commonwealth of Virginia, that the Principal has been found in violation of an order to begin (closure, post-closure care, corrective action), the Surety must either perform (closure, post-closure care, corrective action) in accordance with the order or forfeit the amount of the (closure, post-closure care, corrective action) guaranteed for the facility to the Commonwealth of Virginia.

The Surety hereby waives notification of amendments to the (closure, post-closure care, corrective action) plans, orders, permit, applicable laws, statutes, rules, and regulations and agrees that such amendments shall in no way alleviate its obligation on this bond.

For purposes of this bond, (closure, post-closure care, corrective action) shall be deemed to have been completed when the Director of the Department of Environmental Quality, Commonwealth of Virginia, determines that the conditions of the approved plan have been met.

The liability of the Surety shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but the obligation of the Surety hereunder shall not exceed the amount of said penal sum unless the Director of the Department of Environmental Quality, Commonwealth of Virginia, should prevail in an action to enforce the terms of this bond. In this event, the Surety shall pay, in addition to the penal sum due under the terms of the bond, all interest accrued from the date the Director of the Department of Environmental Quality, Commonwealth of Virginia, first ordered the Surety to perform. The accrued interest shall be calculated at the judgment rate of interest pursuant to § 6.2-302 of the Code of Virginia.

The Surety may cancel the bond by sending written notice of cancellation to the owner or operator and to the Director of the Department of Environmental Quality, Commonwealth of Virginia, provided, however, that cancellation cannot occur (1) during the 120 days beginning on the date of receipt of the notice of cancellation by the director as shown on the signed return receipt; or (2) while an enforcement action is pending.

The Principal may terminate this bond by sending written notice to the Surety, provided, however, that no such notice shall become effective until the Surety receives written authorization for termination of the bond by the Director of the Department of Environmental Quality, Commonwealth of Virginia.

In witness whereof, the Principal and Surety have executed this Performance Bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety and I hereby certify that the wording of this surety bond is identical to the wording specified in 9VAC20-70-290 B of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations were constituted on the date shown immediately below.

Principal

Signature(s): __________

Name(s) and Title(s): (typed)__________

Corporate Surety

Name and Address: __________

State of Incorporation: __________

Liability Limit: $___

Signature(s): __________

Name(s) and Title(s): (typed)__________

Corporate Seal:

C. Wording of irrevocable standby letter of credit.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

IRREVOCABLE STANDBY LETTER OF CREDIT

Director

Department of Environmental Quality

P.O. Box 1105

Richmond, Virginia 23218

Dear (Sir or Madam):

We hereby establish our Irrevocable Letter of Credit No...... in your favor at the request and for the account of (owner's or operator's name and address) up to the aggregate amount of (in words) U.S. dollars $____, available upon presentation of

1. Your sight draft, bearing reference to this letter of credit No ____ together with

2. Your signed statement declaring that the amount of the draft is payable pursuant to regulations issued under the authority of the Department of Environmental Quality, Commonwealth of Virginia.

The following amounts are included in the amount of this letter of credit: (Insert the facility permit number, if any, name and address, and the closure, post-closure care, corrective action cost estimate, or portions thereof, for which financial assurance is demonstrated by this letter of credit.)

This letter of credit is effective as of (date) and will expire on (date at least one year later), but such expiration date will be automatically extended for a period of (at least one year) on (date) and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify you and (owner or operator's name) by certified mail that we decide not to extend the Letter of Credit beyond the current expiration date. In the event you are so notified, unused portion of the credit will be available upon presentation of your sight draft for 120 days after the date of receipt by you as shown on the signed return receipt or while a compliance procedure is pending, whichever is later.

Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we will duly honor such draft upon presentation to us, and we will pay to you the amount of the draft promptly and directly.

I hereby certify that I am authorized to execute this letter of credit on behalf of (issuing institution) and I hereby certify that the wording of this letter of credit is identical to the wording specified in 9VAC20-70-290 C of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations were constituted on the date shown immediately below.

Attest:

(Print name and title of official of issuing institution) (Date)

| | | | --- | --- | | (Signature) | (Date) |

This credit is subject to (insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce," of "the Uniform Commercial Code.")

D. Assignment of certificate of deposit account.

City _______________________ _________, 20

FOR VALUE RECEIVED, the undersigned assigns all right, title and interest to the Virginia Department of Environmental Quality, Commonwealth of Virginia, and its successors and assigns the Virginia Department of Environmental Quality the principal amount of the instrument, including all monies deposited now or in the future to that instrument, indicated below:

() If checked here, this assignment includes all interest now and hereafter accrued.

Certificate of Deposit Account No. _____________________

This assignment is given as security to the Virginia Department of Environmental Quality in the amount of _______________________ Dollars ($_____________).

Continuing Assignment. This assignment shall continue to remain in effect for all subsequent terms of the automatically renewable certificate of deposit.

Assignment of Document. The undersigned also assigns any certificate or other document evidencing ownership to the Virginia Department of Environmental Quality.

Additional Security. This assignment shall secure the payment of any financial obligation of the (name of owner/operator) to the Virginia Department of Environmental Quality for ("closure" "post closure care" "corrective action") at the (facility name and permit number) located (physical address)

Application of Funds. The undersigned agrees that all or any part of the funds of the indicated account or instrument may be applied to the payment of any and all financial assurance obligations of (name of owner/operator) to the Virginia Department of Environmental Quality for ("closure" "post closure care" "corrective action") at the (facility name and address). The undersigned authorizes the Virginia Department of Environmental Quality to withdraw any principal amount on deposit in the indicated account or instrument including any interest, if indicated, and to apply it in the Virginia Department of Environmental Quality's discretion to fund ("closure" "post closure care" "corrective action") at the (facility name) or in the event of (owner or operator's) failure to comply with the Virginia Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities, 9VAC20-70. The undersigned agrees that the Virginia Department of Environmental Quality may withdraw any principal and/or interest from the indicated account or instrument without demand or notice. (The undersigned) agrees to assume any and all loss of penalty due to federal regulations concerning the early withdrawal of funds. Any partial withdrawal of principal or interest shall not release this assignment.

The party or parties to this Assignment set their hand or seals, or if corporate, has caused this assignment to be signed in its corporate name by its duly authorized officers and its seal to be affixed by authority of its Board of Directors the day and year above written.

| | SEAL | | --- | --- | | (Owner) | | | | | | (print owner's name) | | | | SEAL | | (Owner) | | | | | | (print owner's name) | |

THE FOLLOWING SECTION IS TO BE COMPLETED BY THE BRANCH OR LENDING OFFICE:

The signature(s) as shown above compare correctly with the name(s) as shown on record as owner(s) of the Certificate of Deposit indicated above. The above assignment has been properly recorded by placing a hold in the amount of $ _______________________ for the benefit of the Department of Environmental Quality.

() If checked here, the accrued interest on the Certificate of Deposit indicated above has been maintained to capitalize versus being mailed by check or transferred to a deposit account.

| | | | | --- | --- | --- | | (Signature) | | (Date) | | | | | | (print name) | | | | | | | | (Title) | | |

E. Wording of certificate of insurance.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

CERTIFICATE OF INSURANCE

Name and Address of Insurer (herein called the "Insurer"): __________

---

Name and Address of Insured (herein called the "Insured"): __________

---

---

Facilities Covered: (List for each facility: Permit number (if applicable), name, address and the amount of insurance for closure, post-closure care, or corrective action. (These amounts for all facilities covered shall total the face amount shown below.))

Face Amount: $___

Policy Number: __________

Effective Date: __________

The Insurer hereby certifies that it has issued to the Insured the policy of insurance identified above to provide financial assurance for (insert "closure," "post-closure care," "corrective action") for the facilities identified above. The Insurer further warrants that such policy conforms in all respects with the requirements of 9VAC20-70-190 of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities ("Regulations") (9VAC20-70), as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the policy inconsistent with such regulations is hereby amended to eliminate such inconsistency.

Whenever requested by the Director, the Insurer agrees to furnish to the Director a duplicate original of the policy listed above, including all endorsements thereon.

I hereby certify that the wording of this certificate is identical to the wording specified in 9VAC20-70-290 E of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations were constituted on the date shown immediately below.

(Authorized signature for Insurer)

(Name of person signing)

(Title of person signing)

Signature of witness or notary:

(Date)

F. Wording of letter from chief financial officer.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses removed.)

Director

Department of Environmental Quality

P.O. Box 1105

Richmond, Virginia 23218

Dear (Sir, Madam):

I am the chief financial officer of (name and address of firm). This letter is in support of this firm's use of the financial test to demonstrate financial assurance, as specified in 9VAC20-70-200 of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70) ("Regulations").

(Fill out the following four paragraphs regarding solid waste, regulated medical waste, yard waste composting, hazardous waste, underground injection (regulated under the federal program in 40 CFR Part 144, or its equivalent in other states), petroleum underground storage (9VAC25-590), above ground storage facilities (9VAC25-640) and PCB storage (regulated under 40 CFR Part 761) facilities and associated cost estimates. If your firm has no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its name, address, permit number, if any, and current closure, post-closure care, corrective action or any other environmental obligation cost estimates. Identify each cost estimate as to whether it is for closure, post-closure care, corrective action or other environmental obligation.)

1. This firm is the owner or operator of the following facilities for which financial assurance is demonstrated through the corporate test specified in 9VAC20-70-200 or its equivalent in other applicable regulations. The current cost estimates covered by the test are shown for each facility:

2. This firm guarantees, through the corporate guarantee specified in 9VAC20-70-220, the financial assurance for the following facilities owned or operated by subsidiaries of this firm. The current cost estimates so guaranteed are shown for each facility:

3. This firm, as owner or operator or guarantor, is demonstrating financial assurance for the following facilities through the use of a financial test. The current cost estimates covered by such a test are shown for each facility:

4. This firm is the owner or operator of the following waste management facilities for which financial assurance is not demonstrated through the financial test or any other financial assurance mechanism. The current cost estimates for the facilities which are not covered by such financial assurance are shown for each facility:

This firm (insert "is required" or "is not required") to file a Form 10K with the Securities and Exchange Commission (SEC) for the latest fiscal year.

The fiscal year of this firm ends on (month, day). The figures for the following items marked with an asterisk are derived from this firm's independently audited, year-end financial statements for the latest completed fiscal year, ended (date).

| 1) Sum of current closure, post-closure care, corrective action or other environmental obligations cost estimates (total of all cost estimates shown in the four paragraphs above.) | | $_______________ | | | --- | --- | --- | --- | | 2) Tangible net worth* | | $_______________ | | | 3) Total assets located in the United States* | | $_______________ | | | | YES | NO | | | Line 2 exceeds line 1 by at least $10 million? | ____ | ____ | | | Line 3 exceeds line 1 by at least $10 million? | ____ | ____ | |

(Fill in Alternative I if the criteria of 9VAC20-70-200 1 a (1) are used. Fill in Alternative II if the criteria of 9VAC20-70-200 1 a (2) are used. Fill in Alternative III if the criteria of 9VAC20-70-200 1 a (3) are used.)

ALTERNATIVE I

Current bond rating of this firm's senior unsubordinated debt and name of rating service

Date of issuance of bond

Date of maturity of bond

| ALTERNATIVE II | | | | | --- | --- | --- | --- | | 4) Total liabilities* (if any portion of the closure, post-closure care, corrective action or other environmental obligations cost estimates is included in total liabilities, you may deduct the amount of that portion from this line and add that amount to line 5.) | $_______________ | | | | 5) Net worth* | $_______________ | | | | Is line 4 divided by line 5 less than 1.5? | YES | NO | | | | | | |

| ALTERNATIVE III | | | | | --- | --- | --- | --- | | 6) Total liabilities* | | $_______________ | | | 7) The sum of net income plus depreciation, depletion, and amortization minus $10 million* | | $_______________ | | | Is line 7 divided by line 6 less than 0.1? | YES | NO | | | | | | |

I hereby certify that the wording of this letter is identical to the wording in 9VAC20-70-290 F of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations were constituted on the date shown immediately below.

(Signature)

(Name)

(Title)

(Date)

G. Wording of the local government letter from chief financial officer.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.)

LETTER FROM CHIEF FINANCIAL OFFICER

I am the chief financial officer of (insert: name and address of local government owner or operator, or guarantor). This letter is in support of the use of the financial test to demonstrate financial responsibility for ("closure care" "post-closure care" "corrective action costs") arising from operating a solid waste management facility.

The following facilities are assured by this financial test: (List for each facility: the name and address of the facility, the permit number, the closure, post-closure and/or corrective action costs, whichever applicable, for each facility covered by this instrument).

This owner's or operator's financial statements were prepared in conformity with Generally Accepted Accounting Principles for governments and have been audited by ("an independent certified public accountant" "Auditor of Public Accounts"). The owner or operator has not received an adverse opinion or a disclaimer of opinion from ("an independent certified public accountant" "Auditor of Public Accounts") on its financial statements for the latest completed fiscal year.

This owner or operator is not currently in default on any outstanding general obligation bond. Any outstanding issues of general obligation, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a Standard and Poor's rating of AAA, AA, A or BBB; if rated by both firms, the bonds have a Moody's rating of Aaa, Aa, A or Baa and a Standard and Poor's rating of AAA, AA, A, or BBB.

The fiscal year of this owner or operator ends on (month, day). The figures for the following items marked with the asterisk are derived from this owner's or operator's independently audited, year-end financial statements for the latest completed fiscal year ended (date).

(Please complete Alternative I or Alternative II.)

(Fill in Alternative I if the criteria in 9VAC20-70-210 1 a (1) are used. Fill in Alternative II if the criteria of 9VAC20-70-210 1 a (2) are used.)

ALTERNATIVE I - BOND RATING TEST

The details of the issue date, maturity, outstanding amount, bond rating, and bond rating agency of all outstanding general obligation bond issues that are being used by (name of local government owner or operator, or guarantor) to demonstrate financial responsibility are as follows: (complete table):

| Issue Date | Maturity Date | Outstanding Amount | Bond Rating | Rating Agency | | --- | --- | --- | --- | --- | | ________ | ________ | ___________ | ______ | ____________ | | ________ | ________ | ___________ | ______ | ____________ | | ________ | ________ | ___________ | ______ | ____________ | | ________ | ________ | ___________ | ______ | ____________ | | ________ | ________ | ___________ | ______ | ____________ | | ________ | ________ | ___________ | ______ | ____________ |

Any outstanding issues of general obligation bonds, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a Standard and Poor's rating of AAA, AA, A or BBB; if rated by both firms, the bonds have a Moody's rating of Aaa, Aa, A or Baa and a Standard and Poor's rating of AAA, AA, A or BBB.

| 1) Sum of current closure, post-closure and corrective action cost estimates (total of all cost estimates listed above) | $_______________ | | | | | | --- | --- | --- | --- | --- | --- | | *2) Operating Deficit | | | | | | | | (a) latest completed fiscal year (insert year) | $_______________ | | | | | | (b) previous fiscal year (insert year) | $_______________ | | | | | *3) Total Revenue | | | | | | | | (a) latest completed fiscal year (insert year) | $_______________ | | | | | | (b) previous fiscal year (insert year) | $_______________ | | | | | 4) Other self-insured environmental costs | | | | | | | | (a) Amount of aggregate underground injection control systems financial assurance insured by a financial test under 40 CFR 144.62 | $_______________ | | | | | | (b) Amount of annual underground storage tank aggregate coverage insured by a financial test under 40 CFR Part 280 and 9VAC25-590 | $_______________ | | | | | | (c) Amount of aggregate costs associated with PCB storage facilities insured by a financial test under 40 CFR Part 761 | $_______________ | | | | | | (d) Amount of annual aggregate hazardous waste financial assurance insured by a financial test under 40 CFR Parts 264 and 265 and 9VAC20-60 | $_______________ | | | | | | (e) Total of lines 4(a) through 4(d) | $_______________ | | | | | | YES | NO | | | | | 5) Is (line 2a / line 3a) < 0.05? | ____ | ____ | | | | | 6) Is (line 2b / line 3b) < 0.05? | ____ | ____ | | | | | 7) Is (line 1 + line 4e) <= (line 3a x 0.43)? | ____ | ____ | | | | | | | | | | | | | | | | | |

ALTERNATIVE II - FINANCIAL RATIO TEST

| 1) Sum of current closure, post-closure and corrective action cost estimates | $_______________ | | | | | | --- | --- | --- | --- | --- | --- | | *2) Operating Deficit | | | | | | | | (a) latest completed fiscal year (insert year) | $_______________ | | | | | | (b) previous fiscal year (insert year) | $_______________ | | | | | *3) Total Revenue | | | | | | | | (a) latest completed fiscal year (insert year) | $_______________ | | | | | | (b) previous fiscal year (insert year) | $_______________ | | | | | 4) Other self-insured environmental costs | | | | | | | | (a) Amount of aggregate underground injection control systems financial assurance insured by a financial test under 40 CFR 144.62 | $_______________ | | | | | | (b) Amount of annual underground storage tank aggregate coverage insured by a financial test under 40 CFR Part 280 and 9VAC25-590 | $_______________ | | | | | | (c) Amount of aggregate costs associated with PCB storage facilities insured by a financial test under 40 CFR Part 761 | $_______________ | | | | | | (d) Amount of annual aggregate hazardous waste financial assurance insured by a financial test under 40 CFR Parts 264 and 265 and 9VAC20-60 | $_______________ | | | | | | (e) Total of lines 4(a) through 4(d) | $_______________ | | | | | *5) Cash plus marketable securities | $_______________ | | | | | | *6) Total Expenditures | $_______________ | | | | | | *7) Annual Debt Service | $_______________ | | | | | | | YES | NO | | | | | 8) Is (line 2a / line 3a) < 0.05? | ____ | ____ | | | | | 9) Is (line 2b / line 3b) < 0.05? | ____ | ____ | | | | | 10) Is (line 1 + line 4e) <= (line 3a x 0.43)? | ____ | ____ | | | | | 11) Is (line 5 / line 6) >= 0.05? | ____ | ____ | | | | | | | | | | | | | | | | | | | | | | | | |

I hereby certify that the wording of this letter is identical to the wording in 9VAC20-70-290 G of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations were constituted on the date shown immediately below.

(Signature)

(Name of person signing)

(Title of person signing)

(Date)

H. Certification of funding.

CERTIFICATION OF FUNDING

I certify the following information details the current plan for funding closure and post closure at the solid waste management facilities listed below.

| Facility Permit # | | Source for funding closure and post closure | | | | | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Name of Locality or Corporation: _______________________________________ | | | | | | | | | | | | | | | | | | | | | Signature | | Printed Name | | Date | | | | | | | | | | Title | | | | | | | | | | | | |

I. Wording of corporate guarantee.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses removed.)

CORPORATE GUARANTEE

Guarantee made this (date) by (name of guaranteeing entity), a business corporation organized under the laws of the state of (insert name of state), herein referred to as guarantor. This guarantee is made on behalf of the (owner or operator) of (business address), which is (one of the following: "our subsidiary"; "a subsidiary of (name and address of common parent corporation) of which guarantor is a subsidiary"; or "an entity with which the guarantor has a substantial business relationship, as defined in Part I of the Virginia Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70)") to the Virginia Department of Environmental Quality ("Department"), obligee, on behalf of our subsidiary (owner or operator) of (business address).

Recitals

1. Guarantor meets or exceeds the financial test criteria in 9VAC20-70-200 and agrees to comply with the reporting requirements for guarantors as specified in 9VAC20-70-220 of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities ("Regulations").

2. (Owner or operator) owns or operates the following (solid, regulated medical, yard) waste management facility(ies) covered by this guarantee: (List for each facility: name, address, and permit number, if any. Indicate for each whether guarantee is for closure, post-closure care, corrective action or other environmental obligations.)

3. "Closure plans", "post-closure care plans" and "corrective action plans" as used below refer to the plans maintained as required by the Solid Waste Management Regulations (9VAC20-81), or the Regulated Medical Waste Management Regulations (9VAC20-121).

4. For value received from (owner or operator), guarantor guarantees to the Department that in the event that (owner or operator) fails to perform (insert "closure," "post-closure care," or "corrective action") of the above facility(ies) in accordance with the closure or post-closure care plans and other (requirements of the) permit or (the order) whenever required to do so, the guarantor shall do so or establish a trust fund as specified in 9VAC20-70-140 in the name of (owner or operator) in the amount of the current cost estimates.

5. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send within 90 days, by certified mail, notice to the director and to (owner or operator) that he intends to provide alternate financial assurance as specified in Article 4 of Part III of the Regulations, in the name of (owner or operator). Within 120 days after the end of such fiscal year, the guarantor shall establish such financial assurance unless (owner or operator) has done so.

6. The guarantor agrees to notify the director by certified mail, of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming guarantor as debtor, within 10 days after commencement of the proceeding.

7. Guarantor agrees that within 30 days after being notified by the director of a determination that guarantor no longer meets the financial test criteria or that he is disallowed from continuing as a guarantor of closure, post-closure care, or corrective action, he shall establish alternate financial assurance as specified in Article 4 of Part III of the Regulations, in the name of (owner or operator) unless (owner or operator) has done so.

8. Guarantor agrees to remain bound under this guarantee notwithstanding any or all of the following: amendment or modification of the closure, post-closure or corrective action plan, amendment or modification of the permit, amendment or modification of the order, the extension or reduction of the time of performance of closure, post-closure, or corrective action or any other modification or alteration of an obligation of the owner or operator pursuant to the (Solid Waste Management Regulations or Regulated Medical Waste Management Regulations or § 10.1-1454.1 of the Code of Virginia).

9. Guarantor agrees to remain bound under this guarantee for so long as (owner or operator) shall comply with the applicable financial assurance requirements of Article 4 of Part III of the Regulations for the above-listed facilities, except as provided in paragraph 10 of this agreement.

10. (Insert the following language if the guarantor is (a) a direct or higher-tier corporate parent, or (b) a firm whose parent corporation is also the parent corporation of the owner or operator:) Guarantor may terminate this guarantee by sending notice by certified mail to the Director of the Department of Environmental Quality and to the (owner or operator), provided that this guarantee may not be terminated unless and until (the owner or operator) obtains and the director approves, alternate (closure, post-closure, corrective action) coverage complying with the requirements of 9VAC20-70. (Insert the following language if the guarantor is a firm qualifying as a guarantor due to its "substantial business relationship" with the owner or operator:) Guarantor may terminate this guarantee 120 days following the receipt of notification, through certified mail, by the director and by (the owner or operator).

11. Guarantor agrees that if (owner or operator) fails to provide alternate financial assurance as specified in Article 4 of Part III of the Regulations, and obtain written approval of such assurance from the director within 90 days after a notice of cancellation by the guarantor is received by the director from guarantor, guarantor shall provide such alternate financial assurance in the name of (owner or operator).

12. Guarantor expressly waives notice of acceptance of this guarantee by the Department or by (owner or operator). Guarantor also expressly waives notice of amendments or modifications of the closure and/or post-closure plan and of amendments or modifications of the facility permit(s).

I hereby certify that the wording of this guarantee is identical to the wording in 9VAC20-70-290 I of the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations were constituted on the date shown immediately below.

(Name of guarantor)

Effective date: __________

(Authorized signature for guarantor) __________

(Name of person signing) __________

(Title of person signing) __________

Signature of witness or notary: __________

J. Wording of local government guarantee.

(NOTE: Instructions in parentheses are to be replaced with the relevant information and the parentheses removed.)

LOCAL GOVERNMENT GUARANTEE

Guarantee made this (date) by (name of guaranteeing entity), a local government created under the laws of the state of Virginia, herein referred to as guarantor. This guarantee is made on behalf of the (owner or operator) of (address), to the Virginia Department of Environmental Quality ("Department"), obligee.

Recitals

1. Guarantor meets or exceeds the financial test criteria in 9VAC20-70-210 and agrees to comply with the reporting requirements for guarantors as specified in 9VAC20-70-230 of the Financial Assurance Regulations for Solid Waste Disposal, Treatment and Transfer Facilities ("Regulations").

2. (Owner or operator) owns or operates the following (solid, regulated medical, yard) waste management facility(ies) covered by this guarantee: (List for each facility: name, address, and permit number, if any. Indicate for each whether guarantee is for closure, post-closure care, corrective action or other environmental obligations.)

3. "Closure plans" and "post-closure care plans" as used below refer to the plans maintained as required by the Solid Waste Management Regulations (9VAC20-81).

4. For value received from (owner or operator), guarantor guarantees to the Department that in the event that (owner or operator) fails to perform (insert "closure," "post-closure care," or "corrective action") of the above facility(ies) in accordance with the closure or post-closure care plans and other (requirements of the) permit or (the order) whenever required to do so, the guarantor shall do so or establish a trust fund as specified in 9VAC20-70-150 in the name of (owner or operator) in the amount of the current cost estimates.

5. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send within 90 days, by certified mail, notice to the director and to (owner or operator) that he intends to provide alternate financial assurance as specified in Article 4 of Part III of the Regulations, in the name of (owner or operator). Within 120 days after the end of such fiscal year, the guarantor shall establish such financial assurance unless (owner or operator) has done so.

6. The guarantor agrees to notify the director by certified mail, of a voluntary or involuntary proceeding under Title 11 (bankruptcy), U.S. Code, naming guarantor as debtor, within 10 days after commencement of the proceeding.

7. Guarantor agrees that within 30 days after being notified by the director of a determination that guarantor no longer meets the financial test criteria or that he is disallowed from continuing as a guarantor of closure, post-closure care, or corrective action, he shall establish alternate financial assurance as specified in Article 4 of Part III of the Regulations in the name of (owner or operator) unless (owner or operator) has done so.

8. Guarantor agrees to remain bound under this guarantee notwithstanding any or all of the following: amendment or modification of the closure or post-closure plan, amendment or modification of the closure or post-closure plan, amendment or modification of the permit, amendment or modification of the order, the extension or reduction of the time of performance of the closure or post-closure, or any other modification or alteration of an obligation of the owner or operator pursuant to the Virginia (Solid Waste Management or Regulated Medical Waste Management) Regulations.

9. Guarantor agrees to remain bound under this guarantee for so long as (owner or operator) shall comply with the applicable financial assurance requirements of Article 4 of Part III of the Regulations for the above-listed facilities, except as provided in paragraph 10 of this agreement.

10. Guarantor may terminate this guarantee by sending notice by certified mail to the Director of the Department of Environmental Quality and to the (owner or operator), provided that this guarantee may not be terminated unless and until (the owner or operator) obtains and the director approves, alternate (closure, post-closure, corrective action,) coverage complying with the requirements of 9VAC20-70.

11. Guarantor agrees that if (owner or operator) fails to provide alternate financial assurance as specified in Article 4 of Part III of the Regulations, and obtain written approval of such assurance from the director with 90 days after a notice of cancellation by the guarantor is received by the director from guarantor, guarantor shall provide such alternate financial assurance in the name of (owner or operator).

12. Guarantor expressly waives notice of acceptance of this guarantee by the Department or by (owner or operator). Guarantor also expressly waives notice of amendments or modifications of the closure and/or post-closure plan and of amendments or modifications of the facility permit(s).

I hereby certify that the wording of this guarantee is identical to the wording specified in 9VAC20-70-290 J of the Financial Assurance Regulations for Solid Waste Disposal, Transfer and Treatment Facilities as such regulations were constituted on the date shown immediately below.

(Name of guarantor) __________

Effective date: __________

(Authorized signature for guarantor) __________

(Name of person signing) __________

(Title of person signing) __________

Signature of witness or notary: __________

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1410 of the Code of Virginia; §§ 1008(a)(3), 2002, and 4004(a) of the Resource Conservation and Recovery Act; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 21, Issue 20, eff. July 13, 2005; Volume 27, Issue 22, eff. August 3, 2011; Volume 28, Issue 23, eff. August 15, 2012; Volume 35, Issue 24, eff. September 5, 2019; Volume 40, Issue 5, eff. November 22, 2023.

Chapter 81 Solid Waste Management Regulations

Part I Definitions

9VAC20-81-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Active life" means the period of operation beginning with the initial receipt of solid waste and ending at completion of closure activities required by this chapter.

"Active portion" means that part of a facility or unit that has received or is receiving wastes and that has not been closed in accordance with this chapter.

"Agricultural waste" means all solid waste produced from farming operations.

"Airport" means, for the purpose of this chapter, a military airfield or a public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

"Aquifer" means a geologic formation, group of formations, or a portion of a formation capable of yielding significant quantities of groundwater to wells or springs.

"Ash" means the fly ash or bottom ash residual waste material produced from incineration or burning of solid waste or from any fuel combustion.

"Base flood" see "Hundred-year flood."

"Bedrock" means the rock that underlies soil or other unconsolidated, superficial material at a site.

"Benchmark" means a permanent monument constructed of concrete and set in the ground surface below the frostline with identifying information clearly affixed to it. Identifying information will include the designation of the benchmark as well as the elevation and coordinates on the local or Virginia state grid system.

"Beneficial use" means a use that is of benefit as a substitute for natural or commercial products and does not contribute to adverse effects on health or environment.

"Beneficial use of CCR" means the CCR meet all of the following conditions:

1. The CCR must provide a functional benefit;

2. The CCR must substitute for the use of a virgin material, conserving natural resources that would otherwise need to be obtained through practices such as extraction;

3. The use of the CCR must meet relevant product specifications, regulatory standards, or design standards when available, and when such standards are not available, the CCR is not used in excess quantities; and

4. When unencapsulated use of CCR involving placement on the land of 12,400 tons or more in nonroadway applications, the user must demonstrate and keep records, and provide such documentation upon request, that environmental releases to groundwater, surface water, soil, and air are comparable to or lower than those from analogous products made without CCR, or that environmental releases to groundwater, surface water, soil, and air will be at or below relevant regulatory and health-based benchmarks for human and ecological receptors during use.

"Bioremediation" means remediation of contaminated media by the manipulation of biological organisms to enhance the degradation of contaminants.

"Bird hazard" means an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.

"Board" means the Virginia Waste Management Board.

"Bottom ash" means ash or slag that has been discharged from the bottom of the combustion unit after combustion.

"Capacity" means the maximum permitted volume of solid waste, inclusive of daily and intermediate cover, that can be disposed in a landfill. This volume is measured in cubic yards.

"Captive industrial landfill" means an industrial landfill that is located on property owned or controlled by the generator of the waste disposed of in that landfill.

"CCR landfill" means an area of land or an excavation that receives CCR and that is not a surface impoundment, an underground injection well, a salt dome formation, a salt bed formation, an underground or surface coal mine, or a cave. For purposes of this chapter, a CCR landfill also includes sand and gravel pits and quarries that receive CCR, CCR piles, and any practice that does not meet the definition of a beneficial use of CCR.

"CCR surface impoundment" means a natural topographic depression, man-made excavation, or diked area that is designed to hold an accumulation of CCR and liquids, and the unit treats, stores, or disposes of CCR.

"Clean wood" means solid waste consisting of untreated wood pieces and particles that do not contain paint, laminate, bonding agents, or chemical preservatives or are otherwise unadulterated.

"Closed facility" means a solid waste management facility that has been properly secured in accordance with the requirements of this chapter.

"Closure" means that point in time when a permitted landfill has been capped, certified as properly closed by a professional engineer, inspected by the department, and closure notification is performed by the department in accordance with 9VAC20-81-160 D.

"Coal combustion byproducts" or "CCB" means residuals, including fly ash, bottom ash, boiler slag, and flue gas emission control waste produced by burning coal. CCB includes both CCR and other non-CCR wastes identified in this definition.

"Coal combustion residuals" or "CCR" means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers. CCR is a specific type of CCB.

"Combustion unit" means an incinerator, waste heat recovery unit, or boiler.

"Commercial waste" means all solid waste generated by establishments engaged in business operations other than manufacturing or construction. This category includes solid waste resulting from the operation of stores, markets, office buildings, restaurants, and shopping centers.

"Compliance schedule" means a time schedule for measures to be employed on a solid waste management facility that will ultimately upgrade it to conform to this chapter.

"Compost" means a stabilized organic product produced by a controlled aerobic decomposition process in such a manner that the product can be handled, stored, or applied to the land without adversely affecting public health or the environment.

"Composting" means the manipulation of the natural process of decomposition of organic materials to increase the rate of decomposition.

"Construction" means the initiation of permanent physical change at a property with the intent of establishing a solid waste management unit. This does not include land-clearing activities, excavation for borrow purposes, activities intended for infrastructure purposes, or activities necessary to obtain Part A siting approval (i.e., advancing of exploratory borings, digging of test pits, groundwater monitoring well installation, etc.).

"Construction/demolition/debris landfill" or "CDD landfill" means a land burial facility engineered, constructed, and operated to contain and isolate construction waste, demolition waste, debris waste, split tires, and white goods or combinations of the above solid wastes.

"Construction waste" means solid waste that is produced or generated during construction, remodeling, or repair of pavements, houses, commercial buildings, and other structures. Construction wastes include lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, paving materials, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids and garbage are not construction wastes.

"Contaminated soil" means, for the purposes of this chapter, a soil that, as a result of a release or human usage, has absorbed or adsorbed physical, chemical, or radiological substances at concentrations above those consistent with nearby undisturbed soil or natural earth materials.

"Container" means any portable device in which a material is stored, transported, treated, or otherwise handled and includes transport vehicles that are containers themselves (e.g., tank trucks) and containers placed on or in a transport vehicle.

"Containment structure" means a closed vessel such as a tank or cylinder.

"Convenience center" means a collection point for the temporary storage of solid waste provided for individual solid waste generators who choose to transport solid waste generated on their own premises to an established centralized point, rather than directly to a disposal facility. To be classified as a convenience center, the collection point may not receive waste from collection vehicles that have collected waste from more than one real property owner. A convenience center shall be on a system of regularly scheduled collections.

"Cover material" means compactable soil or other approved material that is used to blanket solid waste in a landfill.

"Daily disposal limit" means the amount of solid waste that is permitted to be disposed at the facility and shall be computed on the amount of waste disposed during any operating day.

"Debris waste" means wastes resulting from land-clearing operations. Debris wastes include stumps, wood, brush, leaves, soil, and road spoils.

"Decomposed vegetative waste" means a stabilized organic product produced from vegetative waste by a controlled natural decay process in such a manner that the product can be handled, stored, or applied to the land without adversely affecting public health or the environment.

"Demolition waste" means that solid waste that is produced by the destruction of structures and their foundations and includes the same materials as construction wastes.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality. For purposes of submissions to the director as specified in the Waste Management Act, submissions may be made to the department.

"Discard" means to abandon, dispose of, burn, incinerate, accumulate, store, or treat before or instead of being abandoned, disposed of, burned, or incinerated.

"Discarded material" means a material that is:

1. Abandoned by being:

a. Disposed of;

b. Burned or incinerated; or

c. Accumulated, stored, or treated (but not used, reused, or reclaimed) before or in lieu of being abandoned by being disposed of, burned, or incinerated; or

2. Recycled used, reused, or reclaimed material as defined in this part.

"Disclosure statement" means a sworn statement or affirmation as required by § 10.1-1400 of the Code of Virginia (see DEQ Form DISC-01 and 02 (Disclosure Statement)).

"Displacement" means the relative movement of any two sides of a fault measured in any direction.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or on any land or water so that such solid waste or any constituent of it may enter the environment or be emitted into the air or discharged into any waters.

"Disposal unit boundary" or "DUB" means the vertical plane located at the edge of the waste disposal unit. This vertical plane extends down into the uppermost aquifer. The DUB must be positioned within or coincident to the waste management boundary.

"EPA" means the U.S. Environmental Protection Agency.

"Exempt management facility" means a site used for activities that are conditionally exempt from management as a solid waste under this chapter. The facility remains exempt from solid waste management requirements provided it complies with the applicable conditions set forth in Parts II (9VAC20-81-20 et seq.) and IV (9VAC20-81-300 et seq.) of this chapter.

"Existing CCR landfill" means a CCR landfill that receives CCR both before and after October 19, 2015, or for which construction commenced prior to October 19, 2015, and receives CCR on or after October 19, 2015. A CCR landfill has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun prior to October 19, 2015.

"Existing CCR surface impoundment" means a CCR surface impoundment that receives CCR both before and after October 19, 2015, or for which construction commenced prior to October 19, 2015, and receives CCR on or after October 19, 2015. A CCR surface impoundment has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun prior to October 19, 2015.

"Expansion" means a horizontal expansion of the waste management boundary as identified in the Part A application. If a facility's permit was issued prior to the establishment of the Part A process, an expansion is a horizontal expansion of the disposal unit boundary.

"Facility" means solid waste management facility unless the context clearly indicates otherwise.

"Facility boundary" means the boundary of the solid waste management facility. For landfills, this boundary encompasses the waste management boundary and all ancillary activities including scales, groundwater monitoring wells, gas monitoring probes, and maintenance facilities as identified in the facility's permit application. For facilities with a permit-by-rule (PBR) the facility boundary is the boundary of the property where the permit-by-rule activity occurs. For unpermitted solid waste management facilities, the facility boundary is the boundary of the property line where the solid waste is located.

"Facility structure" means any building, shed, or utility or drainage line on the facility.

"Fault" means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side.

"Floodplain" means the lowland and relatively flat areas adjoining inland and coastal waters, including low-lying areas of offshore islands where flooding occurs.

"Fly ash" means ash particulate collected from air pollution attenuation devices on combustion units.

"Food-chain crops" means crops grown for human consumption, tobacco, and crops grown for pasture and forage or feed for animals whose products are consumed by humans.

"Fossil fuel combustion products" means coal combustion byproducts as defined in this regulation, coal combustion byproducts generated at facilities with fluidized bed combustion technology, petroleum coke combustion byproducts, byproducts from the combustion of oil, byproducts from the combustion of natural gas, and byproducts from the combustion of mixtures of coal and "other fuels" (i.e., co-burning of coal with "other fuels" where coal is at least 50% of the total fuel). For purposes of this definition, "other fuels" means waste-derived fuel product, auto shredder fluff, wood wastes, coal mill rejects, peat, tall oil, tire-derived fuel, deionizer resins, and used oil.

"Free liquids" means liquids that readily separate from the solid portion of a waste under ambient temperature and pressure as determined by the Paint Filter Liquids Test, Method 9095, U.S. Environmental Protection Agency, Publication SW-846.

"Garbage" means readily putrescible discarded materials composed of animal, vegetable, or other organic matter.

"Gas condensate" means the liquid generated as a result of gas control or recovery processes at the solid waste management facility.

"Governmental unit" means any department, institution, or commission of the Commonwealth and any public corporate instrumentality thereof, and any district, and shall include local governments.

"Ground rubber" means material processed from waste tires that is no larger than 1/4 inch in any dimension. This includes crumb rubber that is measured in mesh sizes.

"Groundwater" means water below the land surface in a zone of saturation.

"Hazardous constituent" means a constituent of solid waste found listed in Appendix VIII of 9VAC20-60-261.

"Hazardous waste" means a "hazardous waste" as described by the Virginia Hazardous Waste Management Regulations (9VAC20-60).

"Holocene" means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene Epoch to the present.

"Home use" means the use of compost for growing plants that is produced and used on a privately owned residential site.

"Host agreement" means any lease, contract, agreement, or land use permit entered into or issued by the locality in which the landfill is situated that includes terms or conditions governing the operation of the landfill.

"Household hazardous waste" means any waste material derived from households (including single and multiple residences, hotels, motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas) that, except for the fact that it is derived from a household, would otherwise be classified as a hazardous waste in accordance with 9VAC20-60.

"Household waste" means any waste material, including garbage, trash, and refuse, derived from households. Households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas. Household wastes do not include sanitary waste in septic tanks (septage) that is regulated by other state agencies.

"Hundred-year flood" means a flood that has a 1.0% or greater chance of recurring in any given year or a flood of magnitude equaled or exceeded on the average only once in a hundred years on the average over a significantly long period.

"Inactive CCR surface impoundment" means a CCR surface impoundment that no longer receives CCR on or after October 19, 2015, and still contains both CCR and liquids on or after October 19, 2015.

"Incineration" means the controlled combustion of solid waste for disposal.

"Incinerator" means a facility or device designed for the treatment of solid waste by combustion.

"Industrial waste" means any solid waste generated by manufacturing or industrial process that is not a regulated hazardous waste. Such waste may include waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Industrial waste landfill" means a solid waste landfill used primarily for the disposal of a specific industrial waste or a waste that is a byproduct of a production process.

"Injection well" means, for the purposes of this chapter, a well or bore hole into which fluids are injected into selected geological horizons.

"Institutional waste" means all solid waste emanating from institutions such as, but not limited to, hospitals, nursing homes, orphanages, and public or private schools. It can include regulated medical waste from health care facilities and research facilities that must be managed as a regulated medical waste.

"Interim cover systems" means temporary cover systems applied to a landfill area when landfilling operations will be temporarily suspended for an extended period (typically, longer than one year). At the conclusion of the interim period, the interim cover system may be removed and landfilling operations resume or final cover is installed.

"Karst topography" means areas where karst terrane, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include sinkholes, sinking streams, caves, large springs, and blind valleys.

"Key personnel" means the applicant itself and any person employed by the applicant in a managerial capacity, or empowered to make discretionary decisions, with respect to the solid waste or hazardous waste operations of the applicant in Virginia, but shall not include employees exclusively engaged in the physical or mechanical collection, transportation, treatment, storage, or disposal of solid or hazardous waste and such other employees as the director may designate by regulation. If the applicant has not previously conducted solid waste or hazardous waste operations in Virginia, the term also includes any officer, director, partner of the applicant, or any holder of 5.0% or more of the equity or debt of the applicant. If any holder of 5.0% or more of the equity or debt of the applicant or of any key personnel is not a natural person, the term includes all key personnel of that entity, provided that where such entity is a chartered lending institution or a reporting company under the Federal Security and Exchange Act of 1934, the term does not include key personnel of such entity. Provided further that the term means the chief executive officer of any agency of the United States or of any agency or political subdivision of the Commonwealth, and all key personnel of any person, other than a natural person, that operates a landfill or other facility for the disposal, treatment, or storage of nonhazardous solid waste under contract with or for one of those governmental entities.

"Lagoon" means a body of water or surface impoundment designed to manage or treat waste water.

"Land-clearing activities" means the removal of flora from a parcel of land.

"Land-clearing debris" means vegetative waste resulting from land-clearing activities.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill.

"Landfill gas" means gas generated as a byproduct of the decomposition of organic materials in a landfill. Landfill gas consists primarily of methane and carbon dioxide.

"Landfill mining" means the process of excavating solid waste from an existing landfill.

"Leachate" means a liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials from such waste. Leachate and any material with which it is mixed is solid waste; except that leachate that is pumped from a collection tank for transportation to disposal in an offsite facility is regulated as septage, leachate discharged into a waste water collection system is regulated as industrial waste water and leachate that has contaminated groundwater is regulated as contaminated groundwater.

"Lead acid battery" means, for the purposes of this chapter, any wet cell battery.

"Lift" means the daily landfill layer of compacted solid waste plus the cover material.

"Liquid waste" means any waste material that is determined to contain "free liquids" as defined by this chapter.

"Lithified earth material" means all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock, that formed by crystallization of magma or by induration of loose sediments. This term does not include man-made materials, such as fill, concrete, and asphalt, or unconsolidated earth materials, soil, or regolith lying at or near the earth's surface.

"Litter" means, for purposes of this chapter, any solid waste that is discarded or scattered about a solid waste management facility outside the immediate working area.

"Lower explosive limit" means the lowest concentration by volume of a mixture of explosive gases in air that will propagate a flame at 25°C and at atmospheric pressure.

"Materials recovery facility" means a solid waste management facility for the collection, processing, and recovery of material such as metals from solid waste or for the production of a fuel from solid waste. This does not include the production of a waste-derived fuel product.

"Maximum horizontal acceleration in lithified earth material" means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a 90% or greater probability that the acceleration will not be exceeded in 250 years, or the maximum expected horizontal acceleration based on a site-specific seismic risk assessment.

"Monitoring" means all methods, procedures, and techniques used to systematically analyze, inspect, and collect data on operational parameters of the facility or on the quality of air, groundwater, surface water, and soils.

"Monitoring well" means a well point below the ground surface for the purpose of obtaining periodic water samples from groundwater for quantitative and qualitative analysis.

"Mulch" means woody waste consisting of stumps, trees, limbs, branches, bark, leaves, and other clean wood waste that has undergone size reduction by grinding, shredding, or chipping, and is distributed to the general public for landscaping purposes or other horticultural uses except composting as defined and regulated under this chapter.

"Municipal solid waste" means that waste that is normally composed of residential, commercial, and institutional solid waste and residues derived from combustion of these wastes.

"New CCR landfill" means a CCR landfill or lateral expansion of a CCR landfill that first receives CCR or commences construction after October 19, 2015. A new CCR landfill has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun after October 19, 2015. Overfills are also considered new CCR landfills.

"New CCR surface impoundment" means a CCR surface impoundment or lateral expansion of an existing or new CCR surface impoundment that first receives CCR or commences construction after October 19, 2015. A new CCR surface impoundment has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun after October 19, 2015.

"New solid waste management facility" means a facility or a portion of a facility that was not included in a previous determination of site suitability (Part A approval).

"Nuisance" means an activity that unreasonably interferes with an individual's or the public's comfort, convenience, or enjoyment such that it interferes with the rights of others by causing damage, annoyance, or inconvenience.

"Offsite" means any site that does not meet the definition of onsite as defined in this part.

"Onsite" means the same or geographically contiguous property, which may be divided by public or private right-of-way, provided the entrance and exit to the facility are controlled by the owner or the operator of the facility. Noncontiguous properties owned by the same person, but connected by a right-of-way that he controls and to which the public does not have access, are also considered onsite property.

"Open burning" means the combustion of solid waste without:

1. Control of combustion air to maintain adequate temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

3. Control of the combustion products' emission.

"Open dump" means a site on which any solid waste is placed, discharged, deposited, injected, dumped, or spilled so as to present a threat of a release of harmful substances into the environment or present a hazard to human health. Such a site is subject to the Open Dump Criteria in 9VAC20-81-45.

"Operating record" means records required to be maintained in accordance with the facility permit or this part (see 9VAC20-81-530).

"Operation" means all waste management activities at a solid waste management facility beginning with the initial receipt of solid waste for treatment, storage, disposal, or transfer and ceasing with the initiation of final closure activities at the solid waste management facility subsequent to the final receipt of waste.

"Operator" means the person responsible for the overall operation and site management of a solid waste management facility.

"Owner" means the person who owns a solid waste management facility or part of a solid waste management facility.

"PCB" means any chemical substance that is limited to the biphenyl molecule that has been chlorinated to varying degrees or any combination of substances that contain such substance (see 40 CFR 761.3, as amended).

"Perennial stream" means a well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the streambed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permit" means the written permission of the director to own, operate, or construct a solid waste management facility.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Planning District 8" means the contiguous area within the boundaries of Region 8 established by the Department of Housing and Community Development pursuant to the Regional Cooperation Act (§ 15.2-4200 et seq. of the Code of Virginia).

"Point source" means any discernible, confined, and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, vessel, or other floating craft, from which pollutants are or may be discharged. Return flows from irrigated agriculture are not included.

"Pollutant" means any substance that causes or contributes to, or may cause or contribute to, environmental degradation when discharged into the environment.

"Poor foundation conditions" means those areas where features exist that indicate that a natural or man-induced event may result in inadequate foundation support for the structural components of a solid waste management facility.

"Postclosure" means the requirements placed upon solid waste disposal facilities after closure to ensure environmental and public health safety for a specified number of years after closure.

"Process rate" means the maximum rate of waste acceptance that a solid waste management facility can process for treatment and storage. This rate is limited by the capabilities of equipment, personnel, and infrastructure.

"Processing" means preparation, treatment, or conversion of waste by a series of actions, changes, or functions that bring about a desired end result.

"Professional engineer" means an engineer licensed to practice engineering in the Commonwealth as defined by the rules and regulations set forth by the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects (18VAC10-20).

"Professional geologist" means a geologist licensed to practice geology in the Commonwealth as defined by the rules and regulations set forth by the Board for Professional Soil Scientists, Wetland Professionals, and Geologists (18VAC145-40).

"Progressive cover" means cover material placed over the working face of a solid waste disposal facility advancing over the deposited waste as new wastes are added keeping the exposed area to a minimum.

"Putrescible waste" means solid waste that contains organic material capable of being decomposed by micro-organisms and cause odors.

"Qualified groundwater scientist" means a scientist or engineer who has received a baccalaureate or postgraduate degree in the natural sciences or engineering and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by professional certifications or completion of accredited university programs that enable that individual to make sound professional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective action.

"RCRA" means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 USC § 6901 et seq.), the Hazardous and Solid Waste Amendments of 1984, and any other applicable amendments to these laws.

"Reclaimed material" means a material that is processed or reprocessed to recover a usable product or is regenerated to a usable form.

"Refuse" means all solid waste products having the character of solids rather than liquids and that are composed wholly or partially of materials such as garbage, trash, rubbish, litter, residues from clean up of spills or contamination, or other discarded materials.

"Refuse-derived fuel (RDF)" means a type of municipal solid waste produced by processing municipal solid waste through shredding and size classification. This includes all classes of refuse-derived fuel including low-density fluff refuse-derived fuel through densified refuse-derived fuel and pelletized refuse-derived fuel.

"Regulated hazardous waste" means a solid waste that is a hazardous waste, as defined in the Virginia Hazardous Waste Management Regulations (9VAC20-60), that is not excluded from those regulations as a hazardous waste.

"Regulated medical waste" means solid wastes so defined by the Regulated Medical Waste Management Regulations (9VAC20-121) as promulgated by the Virginia Waste Management Board.

"Release" means, for the purpose of this chapter, any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, dumping, or disposing into the environment solid wastes or hazardous constituents of solid wastes (including the abandonment or discarding of barrels, containers, and other closed receptacles containing solid waste). This definition does not include any release that results in exposure to persons solely within a workplace; release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 (68 Stat. 923); and the normal application of fertilizer. For the purpose of this chapter, release also means substantial threat of release.

"Remediation waste" means all solid waste, including all media (groundwater, surface water, soils, and sediments) and debris, that are managed for the purpose of remediating a site in accordance with 9VAC20-81-45 or Part III (9VAC20-81-100 et seq.) of this chapter or under the Voluntary Remediation Regulations (9VAC20-160) or other regulated remediation program under DEQ oversight. For a given facility, remediation wastes may originate only from within the boundary of that facility, and may include wastes managed as a result of remediation beyond the boundary of the facility. Hazardous wastes as defined in 9VAC20-60, as well as "new" or "as generated" wastes, are excluded from this definition.

"Remediation waste management unit" or "RWMU" means an area within a facility that is designated by the director for the purpose of implementing remedial activities required under this chapter or otherwise approved by the director. An RWMU shall only be used for the management of remediation wastes pursuant to implementing such remedial activities at the facility.

"Responsible official" means one of the following:

1. For a business entity, such as a corporation, association, limited liability company, or cooperative: a duly authorized representative of such business entity if the representative is responsible for the overall operation of one or more operating facilities applying for or subject to a permit. The authority to sign documents must be assigned or delegated to such representative in accordance with procedures of the business entity;

2. For a partnership or sole proprietorship: a general partner or the proprietor, respectively; or

3. For a municipality, state, federal, or other public agency: a duly authorized representative of the locality if the representative is responsible for the overall operation of one or more operating facilities applying for or subject to a permit. The authority to sign documents must be assigned or delegated to such representative in accordance with procedures of the locality.

"Rubbish" means combustible or slowly putrescible discarded materials that include trees, wood, leaves, trimmings from shrubs or trees, printed matter, plastic and paper products, grass, rags, and other combustible or slowly putrescible materials not included under the term "garbage."

"Runoff" means any rainwater, leachate, or other liquid that drains over land from any part of a solid waste management facility.

"Run-on" means any rainwater, wastewater, leachate, or other liquid that drains over land onto any part of the solid waste management facility.

"Salvage" means the authorized, controlled removal of waste materials from a solid waste management facility.

"Sanitary landfill" means an engineered land burial facility for the disposal of household waste that is so located, designed, constructed, and operated to contain and isolate the waste so that it does not pose a substantial present or potential hazard to human health or the environment. A sanitary landfill also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste from very small quantity generators, construction demolition debris, and nonhazardous industrial solid waste.

"Saturated zone" means that part of the earth's crust in which all voids are filled with water.

"Scavenging" means the unauthorized or uncontrolled removal of waste materials from a solid waste management facility.

"Scrap metal" means metal parts such as bars, rods, wire, empty containers, or metal pieces that are discarded material and can be used, reused, or reclaimed.

"Secondary containment" means an enclosure into which a container or tank is placed for the purpose of preventing discharge of wastes to the environment.

"Seismic impact zone" means an area with a 10% or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a percentage of the earth's gravitational pull (g), will exceed 0.10g in 250 years.

"Semiannual" means an interval corresponding to approximately 180 days. For the purposes of scheduling monitoring activities, sampling within 30 days of the 180-day interval will be considered semiannual.

"Site" means all land and structures, other appurtenances, and improvements on them used for treating, storing, and disposing of solid waste. This term includes adjacent land within the facility boundary used for the utility systems such as repair, storage, shipping or processing areas, or other areas incident to the management of solid waste.

"Sludge" means any solid, semi-solid or liquid waste generated from a municipal, commercial or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of treated effluent from a wastewater treatment plant.

"Small landfill" means a landfill that disposed of 100 tons/day or less of solid waste during a representative period prior to October 9, 1993, and did not dispose of more than an average of 100 tons/day of solid waste each month between October 9, 1993, and April 9, 1994.

"Solid waste" means any of those materials defined as "solid waste" in 9VAC20-81-95.

"Solid waste disposal facility" means a solid waste management facility at which solid waste will remain after closure.

"Solid waste management facility" or "SWMF" means a site used for planned treating, storing, or disposing of solid waste. A facility may consist of several treatment, storage, or disposal units.

"Special wastes" means solid wastes that are difficult to handle, require special precautions because of hazardous properties, or the nature of the waste creates waste management problems in normal operations. (See Part VI (9VAC20-81-610 et seq.) of this chapter.)

"Speculatively accumulated material" means any material that is accumulated before being used, reused, or reclaimed or in anticipation of potential use, reuse, or reclamation. Materials are not being accumulated speculatively when they can be used, reused, or reclaimed, have a feasible means of use, reuse, or reclamation available and 75% of the materials accumulated are being removed from the facility annually.

"State waters" means all water, on the surface and under the ground, wholly or partially within, or bordering the Commonwealth, or within its jurisdiction.

"Storage" means the holding of waste, at the end of which the waste is treated, disposed, or stored elsewhere.

"Structural fill" means an engineered fill with a projected beneficial end use, constructed using soil or fossil fuel combustion products, when done in accordance with this chapter, spread and compacted with proper equipment, and covered with a vegetated soil cap.

"Sudden event" means a one-time, single event such as a sudden collapse or a sudden, quick release of contaminants to the environment. An example would be the sudden loss of leachate from an impoundment into a surface stream caused by failure of a containment structure.

"Surface impoundment" or "impoundment" means a facility or part of a facility that is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), that is designed to hold an accumulation of liquid wastes or wastes containing free liquids and that is not an injection well.

"Surface waters" means all state waters that are not groundwater as defined in § 62.1-255 of the Code of Virginia.

"SW-846" means Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, EPA Publication SW-846, Second Edition, 1982 as amended by Update I (April, 1984), and Update II (April, 1985) and the third edition, November, 1986, as amended.

"Tank" means a stationary device, designed to contain an accumulation of liquid or semi-liquid components of solid waste that is constructed primarily of nonearthen materials that provide structural support.

"TEF" or "Toxicity Equivalency Factor" means a factor developed to account for different toxicities of structural isomers of polychlorinated dibenzodioxins and dibenzofurans and to relate them to the toxicity of 2,3,7,8-tetrachloro dibenzo-p-dioxin.

"Terminal" means the location of transportation facilities such as classification yards, docks, airports, management offices, storage sheds, and freight or passenger stations, where solid waste that is being transported may be loaded, unloaded, transferred, or temporarily stored.

"Thermal treatment" means the treatment of solid waste in a device that uses elevated temperature as the primary means to change the chemical, physical, or biological character, or composition of the solid waste.

"Tire chip" means a material processed from waste tires that is a nominal two square inches in size, and ranges from 1/4 inch to four inches in any dimension. Tire chips contain no wire protruding more than 1/4 inch.

"Tire shred" means a material processed from waste tires that is a nominal 40 square inches in size, and ranges from four inches to 10 inches in any dimension.

"Transfer station" means any solid waste storage or collection facility at which solid waste is transferred from collection vehicles to haulage vehicles for transportation to a central solid waste management facility for disposal, incineration, or resource recovery.

"Trash" means combustible and noncombustible discarded materials and is used interchangeably with the term rubbish.

"Treatment" means, for the purpose of this chapter, any method, technique, or process, including incineration, designed to change the physical, chemical, or biological character or composition of any waste to render it more stable, safer for transport, or more amenable to use, reuse, reclamation, recovery, or disposal.

"Underground source of drinking water" means an aquifer or its portion:

1. Which contains water suitable for human consumption; or

2. In which the groundwater contains less than 10,000 mg/liter total dissolved solids.

"Unit" means a discrete area of land used for the disposal of solid waste.

"Unstable area" means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and karst terranes.

"Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within the facility boundary.

"Used or reused material" means a material that is either:

1. Employed as an ingredient (including use as an intermediate) in a process to make a product, excepting those materials possessing distinct components that are recovered as separate end products; or

2. Employed in a particular function or application as an effective substitute for a commercial product or natural resources.

"Vector" means a living animal, insect, or other arthropod that transmits an infectious disease from one organism to another.

"Vegetative waste" means decomposable materials generated by yard and lawn care or land-clearing activities and includes leaves, grass trimmings, woody wastes such as shrub and tree prunings, bark, limbs, roots, and stumps.

"Vermicomposting" means the controlled and managed process by which live worms convert organic residues into fertile excrement.

"Vertical design capacity" means the maximum design elevation specified in the facility's permit or if none is specified in the permit, the maximum elevation based on a 3:1 slope from the waste disposal unit boundary.

"Very small quantity generator" means a generator of hazardous waste as defined in 40 CFR 260.10 as incorporated by reference in 9VAC20-60-260 that generates less than or equal to the following amounts in a calendar month: (i) 100 kilograms of nonacute hazardous waste; (ii) one kilogram of acute hazardous waste; and (iii) 100 kilograms of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill into or on any land or water of acute hazardous waste.

"VPDES" (Virginia Pollutant Discharge Elimination System) means the Virginia system for the issuance of permits pursuant to the Permit Regulation (9VAC25-31), the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), and § 402 of the Clean Water Act (33 USC § 1251 et seq.).

"Washout" means carrying away of solid waste by waters of the base flood.

"Waste-derived fuel product" means a solid waste or combination of solid wastes that have been treated (altered physically, chemically, or biologically) to produce a fuel product with a minimum heating value of 5,000 BTU/lb. Solid wastes used to produce a waste-derived fuel product must have a heating value, or act as binders, and may not be added to the fuel for the purpose of disposal. Waste ingredients may not be listed or characteristic hazardous wastes. The fuel product must be stable at ambient temperature, and not degraded by exposure to the elements. This material may not be "refuse derived fuel (RDF)" as defined in 9VAC5-40-890.

"Waste management boundary" means the vertical plane located at the boundary line of the area approved in the Part A application for the disposal of solid waste and storage of leachate. This vertical plane extends down into the uppermost aquifer and is within the facility boundary.

"Waste pile" means any noncontainerized accumulation of nonflowing, solid waste that is used for treatment or storage.

"Waste tire" means a tire that has been discarded because it is no longer suitable for its original intended purpose because of wear, damage, or defect. (See 9VAC20-150 for other definitions dealing with the waste tire program.)

"Wastewaters" means, for the purpose of this chapter, wastes that contain less than 1.0% by weight total organic carbon (TOC) and less than 1.0% by weight total suspended solids (TSS).

"Water pollution" means such alteration of the physical, chemical, or biological properties of any state water as will or is likely to create a nuisance or render such waters:

1. Harmful or detrimental or injurious to the public health, safety, or welfare, or to the health of animals, fish, or aquatic life or plants;

2. Unsuitable, with reasonable treatment, for use as present or possible future sources of public water supply; or

3. Unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that:

a. An alteration of the physical, chemical, or biological properties of state waters or a discharge or deposit of sewage, industrial wastes, or other wastes to state waters by any owner that by itself is not sufficient to cause pollution but which in combination with such alteration or discharge or deposit to state waters by other persons is sufficient to cause pollution;

b. The discharge of untreated sewage by any person into state waters; and

c. The contribution to the degradation of water quality standards duly established by the State Water Control Board, are "pollution" for the terms and purposes of this chapter.

"Water table" means the upper surface of the zone of saturation in groundwaters in which the hydrostatic pressure is equal to the atmospheric pressure.

"Waters of the United States" or "waters of the U.S." means:

1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate "wetlands";

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mud flats, sand flats, "wetlands," sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including:

a. Any such waters that are or could be used by interstate or foreign travelers for recreational or other purposes;

b. Any such waters from which fish or shellfish are or could be taken and sold in interstate or foreign commerce;

c. Any such waters that are used or could be used for industrial purposes by industries in interstate commerce;

d. All impoundments of waters otherwise defined as waters of the United States under this definition;

e. Tributaries of waters identified in subdivisions 3 a through d of this definition;

f. The territorial sea; and

g. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subdivisions 3 a through f of this definition.

"Wetlands" means those areas that are defined by the federal regulations under 33 CFR Part 328, as amended.

"White goods" means any stoves, washers, hot water heaters, and other large appliances.

"Working face" means that area within a landfill that is actively receiving solid waste for compaction and cover.

"Yard waste" means a subset of vegetative waste and means decomposable waste materials generated by yard and lawn care and includes leaves, grass trimmings, brush, wood chips, and shrub and tree trimmings. Yard waste shall not include roots or stumps that exceed 12 inches in diameter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016; Volume 35, Issue 12, eff. March 6, 2019; Volume 40, Issue 4, eff. November 8, 2023.

Part II General Information

9VAC20-81-20 Policy

It is the policy of the Virginia Waste Management Board to promote the development of comprehensive waste management programs that include the following components of a waste management hierarchy:

1. Source reduction.

2. Reuse.

3. Recycling.

4. Resource recovery (waste to energy).

5. Incineration.

6. Landfilling.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-25 Purpose of chapter

A. The purpose of this chapter is to establish standards and procedures pertaining to the management of solid wastes by providing the requirements for siting, design, construction, operation, maintenance, closure, and postclosure care of solid waste management facilities in the Commonwealth in order to protect the public health, public safety the environment, and our natural resources.

B. This chapter provides for the prohibition of open dumping of solid waste to protect public health and safety and the environment.

C. This chapter sets forth the requirements for undertaking corrective actions at solid waste management facilities.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-30 Administration of chapter

A. The Virginia Waste Management Board promulgates and enforces regulations that it deems necessary to protect the public health, public safety, the environment, and natural resources.

B. The director is authorized and directed to administer this chapter in accordance with the Virginia Waste Management Act (§§ 10.1-1400 through 10.1-1457 of the Code of Virginia).

C. At any time this chapter requires the director to review, approve, disapprove, or modify, any application for a permit or any other submission by an applicant or permittee, such action by the director shall be taken in a timely manner.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-35 Applicability of chapter

A. This chapter applies to all persons who treat, store, dispose, or otherwise manage solid wastes as defined in 9VAC20-81-95.

B. All facilities that were permitted prior to March 15, 1993, and upon which solid waste has been disposed of prior to October 9, 1993, may continue to receive solid waste until they have reached vertical design capacity or until the closure date established pursuant to § 10.1-1413.2 of the Code of Virginia in Table 2.1, provided:

1. The facility is in compliance with the requirements for liners and leachate control in effect at the time of permit issuance.

2. On or before October 9, 1993, the owner or operator of the solid waste management facility submitted to the director:

a. An acknowledgment that the owner or operator is familiar with state and federal law and regulations pertaining to solid waste management facilities operating after October 9, 1993, including postclosure care, corrective action, and financial responsibility requirements;

b. A statement signed by a professional engineer that the engineer has reviewed the regulations established by the department for solid waste management facilities, including the open dump criteria contained therein, that the engineer has inspected the facility and examined the monitoring data compiled for the facility in accordance with applicable regulations and that, on the basis of the inspection and review, the engineer has concluded:

(1) That the facility is not an open dump;

(2) That the facility does not pose a substantial present or potential hazard to human health and the environment; and

(3) That the leachate or residues from the facility do not pose a threat of contamination or pollution of the air, surface water, or groundwater in a manner constituting an open dump or resulting in a substantial present or potential hazard to human health or the environment; and

c. A statement signed by the owner or operator:

(1) That the facility complies with applicable financial assurance regulations; and

(2) Estimating when the facility will reach its vertical design capacity.

3. Enlargement or closure of these facilities shall conform with the following subconditions:

a. The facility may not be enlarged prematurely to avoid compliance with this chapter when such enlargement is not consistent with past operating practices, the permit, or modified operating practices to ensure good management.

b. The facility shall not dispose of solid waste in any portion of a landfill disposal area that has received final cover or has not received waste for a period of one year, in accordance with 9VAC20-81-160 C. The facility shall notify the department, in writing, within 30 days, when an area has received final cover or has not received waste for a one-year period, in accordance with 9VAC20-81-160 C. However, a facility may apply for a permit, and if approved, can construct and operate a new cell that overlays ("piggybacks") over a closed area in accordance with the permit requirements of this chapter.

c. The facilities subject to the restrictions in this subsection are listed in Table 2.1. The closure dates were established in Final Prioritization and Closure Schedule for HB 1205 Disposal Areas (DEQ, September 2001). The publication of these tables is for the convenience of the regulated community and does not change established dates. Any facility, including those listed in Table 2.1, must cease operation if that facility meets any of the open dump criteria listed in 9VAC20-81-45 A 1.

d. Those facilities assigned a closure date in accordance with § 10.1-1413.2 of the Code of Virginia shall designate on a map, plat, diagram, or other engineered drawing, areas in which waste will be disposed of in accordance with Table 2.1 until the latest cessation of waste acceptance date as listed in Table 2.1 is achieved. This map or plat shall be placed in the operating record and a copy shall be submitted upon request to the department in order to track the progress of closure of these facilities. If the facility already has provided this information under 9VAC20-81-160, then the facility may refer to that information.

| TABLE 2.1 Final Prioritization and Closure Schedule For House Bill (HB) 1205 Disposal Areas | | | | | --- | --- | --- | --- | | Solid Waste Permit Number and Site Name | Location | Department Regional Office¹ | Latest Cessation of Waste Acceptance Date² | | 429 - Fluvanna County Sanitary Landfill | Fluvanna County | VRO | 12/31/2007 | | 92 - Halifax County Sanitary Landfill³ | Halifax County | BRRO | 12/31/2007 | | 49 - Martinsville Landfill | City of Martinsville | BRRO | 12/31/2007 | | 14 - Mecklenburg County Landfill | Mecklenburg County | BRRO | 12/31/2007 | | 228 - Petersburg City Landfill³ | City of Petersburg | PRO | 12/31/2007 | | 31 - South Boston Sanitary Landfill | Town of South Boston | BRRO | 12/31/2007 | | 204 - Waynesboro City Landfill | City of Waynesboro | VRO | 12/31/2007 | | 91 - Accomack County Landfill – Bobtown South | Accomack County | TRO | 12/31/2012 | | 580 – Bethel Landfill³ | City of Hampton | TRO | 12/31/2012 | | 182 - Caroline County Landfill | Caroline County | NVRO | 12/31/2012 | | 149 - Fauquier County Landfill | Fauquier County | NVRO | 12/31/2012 | | 405 - Greensville County Landfill | Greensville County | PRO | 12/31/2012 | | 29 - Independent Hill Landfill³ | Prince William County | NVRO | 12/31/2012 | | 1 - Loudoun County Sanitary Landfill | Loudoun County | NVRO | 12/31/2012 | | 194 - Louisa County Sanitary Landfill | Louisa County | NVRO | 12/31/2012 | | 227 - Lunenburg County Sanitary Landfill | Lunenburg County | BRRO | 12/31/2012 | | 507 - Northampton County Landfill | Northampton County | TRO | 12/31/2012 | | 90 - Orange County Landfill | Orange County | NVRO | 12/31/2012 | | 75 - Rockbridge County Sanitary Landfill | Rockbridge County | VRO | 12/31/2012 | | 23 - Scott County Landfill | Scott County | SWRO | 12/31/2012 | | 587 - Shoosmith Sanitary Landfill³ | Chesterfield County | PRO | 12/31/2012 | | 417 - Southeastern Public Service Authority Landfill³ | City of Suffolk | TRO | 12/31/2012 | | 461 - Accomack County Landfill #2 | Accomack County | TRO | 12/31/2020 | | 86 - Appomattox County Sanitary Landfill | Appomattox County | BRRO | 12/31/2020 | | 582 - Botetourt County Landfill³ | Botetourt County | BRRO | 12/31/2020 | | 498 - Bristol City Landfill | City of Bristol | SWRO | 12/31/2020 | | 72 - Franklin County Landfill | Franklin County | BRRO | 12/31/2020 | | 398 - Virginia Beach Landfill #2 – Mount Trashmore II³ | City of Virginia Beach | TRO | 12/31/2020 | | Notes: ¹Department of Environmental Quality Regional Offices: BRRO - Blue Ridge Regional Office NVRO - Northern Virginia Regional Office PRO - Piedmont Regional Office SWRO - Southwest Regional Office TRO - Tidewater Regional Office VRO - Valley Regional Office ²This date means the latest date that the disposal area must cease accepting waste. ³A portion of these facilities operated under HB 1205 and another portion currently is compliant with Subtitle D requirements. | | | |

C. Facilities are authorized to expand beyond the waste boundaries existing on October 9, 1993, as follows:

1. Existing captive industrial landfills.

a. Existing nonhazardous industrial waste facilities that are located on property owned or controlled by the generator of the waste disposed of in the facility shall comply with all the provisions of this chapter except as shown in this subdivision 1.

b. Facility owners or operators shall not be required to modify the facility permit in order to expand a captive industrial landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements in effect at the time of permit issuance.

c. Owners or operators of facilities that are authorized under this subdivision 1 to accept waste for disposal beyond the waste boundaries existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120.

d. Facilities authorized for expansion in accordance with this subdivision 1 are limited to expansion to the limits of the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

2. Other existing industrial waste landfills.

a. Existing nonhazardous industrial waste facilities that are not located on property owned or controlled by the generator of the waste disposed of in the facility shall comply with all the provisions of this chapter except as shown in this subdivision 2.

b. Facility owners or operators shall not be required to modify the facility permit in order to expand an industrial landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements of 9VAC20-81-130.

c. Prior to the expansion of any such facility, the owner or operator shall submit to the department a written notice of the proposed expansion at least 60 days prior to commencement of construction. The notice shall include recent groundwater monitoring data sufficient to determine that the facility does not pose a threat of contamination of groundwater in a manner constituting an open dump or creating a substantial present or potential hazard to human health or the environment (see 9VAC20-81-45). The director shall evaluate the data included with the notification and may advise the owner or operator of any additional requirements that may be necessary to ensure compliance with applicable laws and prevent a substantial present or potential hazard to health or the environment.

d. Owners or operators of facilities that are authorized under this subdivision 2 to accept waste for disposal beyond the waste boundaries existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120 and 9VAC20-81-130.

e. Facilities authorized for expansion in accordance with this subdivision 2 are limited to expansion to the limits of the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

3. Existing construction/demolition/debris landfills.

a. Existing facilities that accept only construction/demolition/debris waste shall comply with all the provisions of this chapter except as shown in this subdivision 3.

b. Facility owners or operators shall not be required to modify their facility permit in order to expand a construction/demolition/debris landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements of 9VAC20-81-130.

c. Prior to the expansion of any such facility, the owner or operator shall submit to the department a written notice of the proposed expansion at least 60 days prior to commencement of construction. The notice shall include recent groundwater monitoring data sufficient to determine that the facility does not pose a threat of contamination of groundwater in a manner constituting an open dump or creating a substantial present or potential hazard to human health or the environment (see 9VAC20-81-45). The director shall evaluate the data included with the notification and may advise the owner or operator of any additional requirements that may be necessary to ensure compliance with applicable laws and prevent a substantial present or potential hazard to health or the environment.

d. Owners or operators of facilities that are authorized under this subdivision 3 to accept waste for disposal beyond the active portion of the landfill existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120 and 9VAC20-81-130.

e. Facilities, or portions thereof, that have reached vertical design capacity shall be closed in compliance with 9VAC20-81-160.

f. Facilities authorized for expansion in accordance with this subdivision 3 are limited to expansion to the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

4. Facilities or units undergoing expansion in accordance with the partial exemptions created by subdivision 1 b, 2 b, or 3 b of this subsection may not receive hazardous wastes generated by the exempt small quantity generators, as defined by the Virginia Hazardous Waste Management Regulations (9VAC20-60), for disposal on the expanded portions of the facility. Other wastes that require special handling in accordance with the requirements of Part VI (9VAC20-81-610 et seq.) of this chapter or that contain hazardous constituents that would pose a risk to health or environment, may only be accepted with specific approval by the director.

5. Nothing in subdivisions 1 b, 2 b, and 3 b of this subsection shall alter any requirement for groundwater monitoring, financial responsibility, operator certification, closure, postclosure care, operation, maintenance, or corrective action imposed under this chapter, or impair the powers of the director to revoke or modify a permit pursuant to § 10.1-1409 of the Virginia Waste Management Act or Part V (9VAC20-81-400 et seq.) of this chapter.

D. An owner or operator of a previously unpermitted facility or unpermitted activity that managed materials previously exempt or excluded from this chapter shall submit a complete application for a solid waste management facility permit, permit by rule, or permit modification, as applicable, in accordance with Part V (9VAC20-81-400 et seq.) of this chapter within six months after these materials have been defined or identified as solid wastes. If the director finds that the application is complete, the owner or operator may continue to manage the newly defined or identified waste until a permit or permit modification decision has been rendered or until a date two years after the change in definition, whichever occurs sooner; provided, however, that the owner or operator shall not operate or maintain an open dump, a hazard, or a nuisance.

Owners or operators of solid waste management facilities in existence prior to September 24, 2003, shall now be in compliance with this chapter. Where conflicts exist between the existing facility permit and the new requirements of the regulations, the regulations shall supersede the permit except where the standards in the permit are more stringent than the regulation. Language in an existing permit shall not act as a shield to compliance with the regulation, unless a variance to the regulations has been approved by the director in accordance with the provisions of Part VII (9VAC20-81-700 et seq.) of this chapter. Existing facility permits will not be required to be updated to eliminate requirements conflicting with the regulation, except at the request of the director or if a permit is modified for another reason. However, all sanitary landfills and incinerators that accept waste from jurisdictions outside of Virginia must have submitted the materials required under 9VAC20-81-100 E 4 by March 22, 2004.

E. This chapter is not applicable to landfill units closed in accordance with regulations or permits in effect prior to December 21, 1988, unless releases from these closed landfills meet the open dump criteria found in 9VAC20-81-45, or the closed landfills are found to be a hazard or a nuisance under subdivision 21 of § 10.1-1402 of the Code of Virginia or a site where improper waste management has occurred under subdivision 19 of § 10.1-1402 of the Code of Virginia.

F. Part VIII (9VAC20-81-800 et seq.) of this chapter applies to the following:

1. Owners and operators of new and existing CCR landfills and CCR surface impoundments, including any lateral expansions of such units that dispose or otherwise engage in solid waste management of CCR generated from the combustion of coal at electric utilities and independent power producers;

2. Disposal units located off site of the electric utility or independent power producer. Part VIII of this chapter also applies to any practice that does not meet the definition of a beneficial use of CCR; and

3. Inactive CCR surface impoundments at active electric utilities or independent power producers, regardless of the fuel currently used at the facility to produce electricity.

G. Part VIII of this chapter is not applicable to the following:

1. CCR landfills that have ceased receiving CCR prior to October 19, 2015;

2. Wastes, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated at facilities that are not part of an electric utility or independent power producer, such as manufacturing facilities, universities, and hospitals;

3. Fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated primarily from the combustion of fuels (including other fossil fuels) other than coal, for the purpose of generating electricity, unless the fuel burned consists of more than 50% coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of coal;

4. Practices that meet the definition of a beneficial use of CCR;

5. CCR placement at active or abandoned underground or surface coal mines; or

6. Municipal solid waste landfills that receive CCR.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016; Volume 41, Issue 9, eff. January 15, 2025.

9VAC20-81-40 Prohibitions

A. No person shall operate any sanitary landfill or other facility for the disposal, treatment, or storage of solid waste without a permit from the director.

B. No person shall allow waste to be disposed of or otherwise managed on his property except in accordance with this chapter.

C. It shall be the duty of all persons to dispose of or otherwise manage their solid waste in a legal manner.

D. Any person who violates subsection A, B, or C of this section shall immediately cease the activity of improper management and the treatment, storage, or disposal of any additional wastes and shall initiate such removal, cleanup, or closure in place.

E. Management of lead acid batteries.

1. No person shall place a used lead acid battery in mixed municipal solid waste or discard or otherwise dispose of a lead acid battery except by delivery to a battery retailer or wholesaler, or to a secondary lead smelter, or to a collection or reclamation facility authorized under the laws of the Commonwealth or by the United States Environmental Protection Agency.

2. No battery retailer shall dispose of a used lead acid battery except by delivery to:

a. The agent of a battery wholesaler or a secondary lead smelter;

b. A battery manufacturer for delivery to a secondary smelter; or

c. A collection or reclamation facility authorized under the laws of the Commonwealth or by the United States Environmental Protection Agency.

3. No person selling new lead acid batteries at wholesale shall refuse to accept from customers at the point of transfer, used lead acid batteries of the type and in a quantity at least equal to the number of new batteries purchased, if offered by customers.

4. The provisions of subdivisions 1 through 3 of this subsection shall not be construed to prohibit any person who does not sell new lead acid batteries from collecting and reclaiming such batteries.

F. Any locality may, by ordinance, prohibit the disposal of cathode ray tubes (CRTs) in any waste to energy or solid waste disposal facility within its jurisdiction if it has implemented a CRT recycling program that meets the requirements of § 10.1-1425.26 of the Code of Virginia.

G. No person shall dispose of or manage solid waste in an unpermitted facility, including by disposing, causing to be disposed, or arranging for the disposal of solid waste upon a property for which the director has not issued a permit and that is not otherwise exempt from permitting requirements.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 37, Issue 4, eff. November 11, 2020.

9VAC20-81-45 Open dumps

A. Prohibition.

1. No person shall dispose of solid waste in open dumps, nor own, operate or allow to be operated on his property an open dump as defined in subsection B of this section or § 10.1-1400 of the Code of Virginia. Both permitted and unpermitted sites or facilities may be classified as open dumps.

2. Any person found to be in violation of this section shall be ordered to immediately cease treatment, storage, and disposal of any additional solid waste and shall take measures to abate improper management of the solid waste and come into compliance with the requirements of this chapter.

B. Criteria – Incorporation of 40 CFR 257.1 through 257.3-8 by reference.

1. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR 257.1 through 257.3-8 are adopted herein and incorporated by reference as part of the Virginia Solid Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are part of 40 CFR 257.1 through 257.3-8 are also hereby incorporated as part of the Virginia Solid Waste Management Regulations.

2. In all locations in these regulations where 40 CFR 257.1 through 257.3-8 are incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

a. 40 CFR 257.1(b) and 40 CFR 257.3-5 are not included in the incorporation of 40 CFR 257.1 through 257.3-8 by reference and are not part of the Virginia Solid Waste Management Regulations.

b. The following text shall be substituted for 40 CFR 257.1(a): "Unless otherwise provided, the criteria in §§ 257.1 through 257.3-8 are adopted for determining which solid waste disposal facilities and practices are a nuisance and pose a reasonable probability of adverse effects on health or the environment under §§ 1008(a)(3) and 4004(a) of the Resource Conservation and Recovery Act, 42 USC § 6901 et seq. (1976) (RCRA) and the Virginia Waste Management Act, § 10.1-1400 of the Code of Virginia (Act). Unless otherwise provided, the criteria in §§ 257.50 through 257.107 are adopted for determining which CCR landfills and CCR surface impoundments pose a reasonable probability of adverse effects on human health or the environment under sections 1008(a)(3) and 4004(a) of the Resource Conservation and Recovery Act."

c. The following text shall be substituted for 40 CFR 257.1(a)(1): "Facilities failing to satisfy the criteria in §§ 257.1 through 257.3-8 or §§ 257.5 through 257.30 or §§ 257.50 through 257.107 are considered open dumps, which are prohibited under section 4005 of RCRA and § 10.1-1408.1 of the Act."

d. The following text shall be substituted for 40 CFR 257.1(a)(2): "Practices failing to satisfy the criteria in §§ 257.1 through 257.3-8 or §§ 257.5 through 257.30 or §§ 257.50 through 257.107 constitute open dumping, which is prohibited under section 4005 of RCRA and § 10.1-1408.1 of the Act."

e. In addition to those exceptions found in 40 CFR 257.1(c), the open dump criteria does not apply to sites actively enrolled in the Voluntary Remediation Program (9VAC20-160) or sites that have successfully completed the Voluntary Remediation Program in accordance with all conditions and requirements of their Certificates of Satisfactory Completion.

f. In addition to those exceptions found in 40 CFR 257.1(c), the open dump criteria shall not apply to sites that are undergoing remediation per the requirements of CERCLA or the RCRA Corrective Action Program and are doing so with the department's or the U.S. Environmental Protection Agency's oversight.

C. Site evaluation and remedial action.

1. If a site is a potential or probable open dump, a site evaluation may be conducted. This site evaluation will be conducted by the department in order to determine if further action is required under this section. The site evaluation will include but is not limited to any records that can be obtained from the owner, operator, or other responsible party as well as all documented observations by department personnel regarding the following:

a. The location of the site;

b. The amount, type, and source of the waste at the site;

c. The permit status for the activities taking place at the site; and

d. A preliminary evaluation of the site with respect to the criteria outlined in subsection B of this section.

2. Based on the criteria of subsection B of this section and the information gathered under the provisions of subdivision 1 of this subsection, the department will make a determination that the site is or is not an open dump.

3. If the department determines that the site is an open dump then the department will make a recommendation for remedial action as follows:

a. Remedial action is required; or

b. Removal of the wastes from the site and disposal at a facility permitted to accept the wastes is required. The department may require submission of evidence of proper management of the removed waste and may require evidence, including confirmatory sampling, of the removal of solid waste and any hazardous constituents. A site inspection will be performed by the department to confirm the removal of the waste materials.

4. The site evaluation conducted under this subsection may be performed pursuant to an administrative or judicial order or other appropriate mechanism as chosen by the department.

5. Pursuant to the recommendations made under subdivision 3 of this subsection, any required remedial action as deemed necessary by the department shall be performed by the responsible party pursuant to an administrative or judicial order or other appropriate mechanism as chosen by the department.

D. Process and appeal.

1. Any case decision by the department based on the requirements of this section shall be subject to the process and appeal provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

2. A final determination and an administrative order requiring remedial action may be obtained in the same hearing or proceeding subject to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-50 Enforcement and appeal

A. All administrative enforcement and appeals taken from actions of the director relative to the provisions of this chapter shall be governed by the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The Virginia Waste Management Board or the director may enforce the provisions of this chapter utilizing all applicable procedures under the law. The powers of the board and the director include, but are not limited to, those established under Chapter 11.1 (§ 10.1-1182 et seq. (especially in § 10.1-1186)) and in Article 8 (§ 10.1-1455 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia. These sections describe the right of entry for inspections, the issuance of orders, penalties, injunctions, and other provisions and procedures for enforcement of these regulations.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-60 Ten year permit review

The director shall review and issue written findings on the environmental compliance history of each permittee, material changes, if any, in key personnel, and technical limitations, standards, or regulations on which the original permit was based. The time period for review of each permit shall be at least once every 10 years. If, upon such review, the director finds that repeated material or substantial violations of the permittee or material changes in the permittee's key personnel would make continued operation of the facility not in the best interests of human health or the environment, the director shall modify or revoke the permit, in accordance with provisions of Part V (9VAC20-81-400 et seq.) of this chapter. Whenever such review is undertaken, the director may modify the permit to include additional limitations, standards, or conditions when the technical limitations, standards, or regulations on which the original permit was based have been changed by statute or amended by regulation or when any of the conditions in § 10.1-1409 B of the Virginia Waste Management Act exist. The director may deny, revoke, or suspend any permit for any of the grounds listed under § 10.1-1409 A of the Code of Virginia.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-70 Public participation and information

A. All permits for solid waste management facilities will be subject to public participation, as specified in Part V (9VAC20-81-400 et seq.) of this chapter.

B. Modifications to solid waste management facility permits shall be subject to public participation in accordance with Part V (9VAC20-81-400 et seq.) of this chapter.

C. Dockets of all permitting actions, enforcement actions, and administrative actions relative to this chapter shall be available to the public for review, consistent with the Commonwealth of Virginia Administrative Process Act, Virginia Freedom of Information Act, and the provisions of this chapter.

D. Public participation in the compliance evaluation and enforcement programs is encouraged. The department will:

1. Investigate all citizen complaints and provide written responses to all signed, written complaints from citizens, concerning matters within the board's purview;

2. Not oppose intervention by any citizen in a suit brought before a court by the department as a result of the enforcement action; and

3. Provide notice on the department's Internet website; and provide at least 30 days of public comment on proposed settlements of civil enforcement actions except where the settlement requires some immediate action. Where a public comment period is not held prior to the settlement of an enforcement action, public notice will still be provided following the settlement.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-80 Solid waste information and assessment program

A. The owners or operators of all permitted solid waste management facilities that treat, store, or dispose of solid waste shall report by March 31 of each year the amount of solid waste, by weight or volume, received and managed by the facility during the preceding calendar year. The report shall identify solid waste by the following categories: (i) municipal solid waste, (ii) construction and demolition debris, (iii) industrial waste, (iv) regulated medical waste, (v) vegetative and yard waste, (vi) incinerator ash, (vii) sludge other than sludge that is land applied in accordance with § 62.1-44.19:3.3 of the Code of Virginia, (viii) tires, (ix) white goods, (x) friable asbestos, (xi) petroleum-contaminated soil, and (xii) other special waste. For each such category the report shall include an estimate of the amount that was generated outside of the Commonwealth and the state or local jurisdictions where such waste originated. The report shall also estimate the amount of solid waste managed or disposed of by each of the following methods: (i) recycling, (ii) composting, (iii) landfilling, (iv) incineration, (v) sending offsite for further management, and (vi) stored on site on December 31 of the reporting year. Information on the available capacity and expected life of the facilities, at the disposal rates submitted in this subsection, shall be included in the annual report required by this section.

B. At the option of the facility owner, the data collected may include an accounting of the facility's economic benefits to the locality where the facility is located including the value of disposal and recycling facilities provided to the locality at no cost or reduced cost, direct employment associated with the facility, and other economic benefits resulting from the facility during the preceding calendar year.

C. No facility shall be required pursuant to this section to provide information that is a trade secret as defined in § 59.1-336 of the Code of Virginia.

D. The reporting form to be used to fulfill the reporting requirement of this part is DEQ Form DEQ 50-25 (Solid Waste Information and Assessment Program - Reporting Table).

E. This section shall not apply to captive waste management facilities including captive industrial landfills.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-90 Relationship with other regulations promulgated by the Virginia Waste Management Board

A. Virginia Hazardous Waste Management Regulations (9VAC20-60).

1. Solid wastes that have been declared hazardous or a universal waste by the generator in accordance with 40 CFR 262.11, as amended, or that are regulated as hazardous wastes by the Commonwealth or another state, and will be treated, stored, or disposed of in Virginia shall be managed in accordance with the requirements of 9VAC20-60 and not 9VAC20-81.

2. Any material from a state other than Virginia that is classified as a hazardous waste in that state shall be managed in accordance with 9VAC20-60.

3. Wastes generated by generators who are conditionally exempt pursuant to 40 CFR 261.5 may be managed in solid waste management facilities provided that:

a. (i) A specific approval is obtained from the director for acceptance of the material at a facility with an approved liner and leachate collection system; or (ii) it is included in the facility permit; and

b. Records are kept of the actual amount, type, and source of these wastes.

B. Regulated Medical Waste Management Regulations (9VAC20-121). Solid wastes that are defined as regulated medical wastes by the Regulated Medical Waste Management Regulations shall be managed in accordance with those regulations. Regulated medical wastes that are excluded or exempt by 9VAC20-121 shall be regulated by this chapter.

C. Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70). 9VAC20-70 specifies the requirements for financial assurance and allowable financial assurance mechanisms. Solid waste management facilities shall provide financial assurance in accordance with 9VAC20-70.

D. Solid Waste Management Facility Permit Action Fees and Annual Fees (9VAC20-90). All applicants for solid waste management facility permits are required to pay a fee in accordance with the schedule shown in 9VAC20-90. All solid waste management facilities shall pay annual fees in accordance with 9VAC20-90, as applicable.

E. Solid Waste Planning and Recycling Regulations (9VAC20-130). 9VAC20-130 establishes a framework for local governments to plan for solid waste management needs and a mechanism for tracking recycling rates and solid waste management plan contents.

F. Transportation of Solid and Medical Wastes on State Waters (9VAC20-170). 9VAC20-170 establishes the standards and procedures pertaining to the commercial transport, loading and offloading of solid wastes or regulated medical wastes upon the navigable waters of the Commonwealth.

G. Voluntary Remediation Regulations (9VAC20-160). 9VAC20-160 establishes standards and procedures for the Virginia Voluntary Remediation Program.

H. Coal Combustion Byproduct Regulations (9VAC20-85). 9VAC20-85 establishes standards for the use of fossil fuel combustion products, which are not subject to requirements of this chapter, and establishes standards for siting, design, construction, operation, and administrative procedures pertaining to their use, reuse, or reclamation other than in a manner addressed by this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016; Volume 40, Issue 4, eff. November 8, 2023.

9VAC20-81-95 Identification of solid waste

A.Wastes identified in this section are solid wastes that are subject to this chapterunless regulated pursuant to other applicable regulations issued by the department.

B. Except as otherwise provided, the definition of solid waste per 40 CFR 261.2 as incorporated by 9VAC20-60-261, as amended, is also hereby incorporated as part of this chapter. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are a part of 9VAC20-60-261, as amended, are also hereby incorporated as part of this chapter as well.

C. Except as otherwise modified or excepted by 9VAC20-60, the materials listed in the regulations of the U.S. Environmental Protection Agency set forth in 40 CFR 261.4(a) are considered a solid waste for the purposes of this chapter. However, these materials are not regulated under the provisions of this chapter if all conditions specified by this chapter are met. This list and all material definitions, reference materials, and other ancillaries that are part of 40 CFR Part 261.4(a), as incorporated, modified, or accepted by 9VAC20-60 are incorporated as part of this chapter. In addition, the following materials are not solid wastes for the purpose of this chapter:

1. Materials generated by any of the following, which are returned to the soil as fertilizers:

a. The growing and harvesting of agricultural crops.

b. The raising and husbanding of animals, including animal manures and used animal bedding.

2. Mining overburden returned to the mine site.

3. Recyclable materials used in manner constituting disposal per 9VAC20-60-266.

4. Wood wastes burned for energy recovery.

5. Materials that are:

a. Used or reused or prepared for use or reuse as an ingredient in an industrial process to make a product or as effective substitutes for commercial products or natural resources, provided the materials are not being reclaimed or accumulated speculatively; or

b. Returned to the original process from which they are generated.

6. Materials that are beneficially used as determined by the department under this subsection. The department may consider other waste materials and uses to be beneficial in accordance with the provisions of 9VAC20-81-97.

7. The following materials and uses listed in this part are exempt from this chapter as long as they are managed so that they do not create an open dump, hazard, or public nuisance. These materials and the designated use are considered a beneficial use of waste materials:

a. Clean wood, wood chips, or bark from land clearing, logging operations, utility line clearing and maintenance operations, pulp and paper production, and wood products manufacturing, when these materials are placed in commerce for service as mulch, landscaping, animal bedding, erosion control, habitat mitigation, wetlands restoration, or bulking agent at a compost facility operated in compliance with Part IV (9VAC20-81-300 et seq.) of this chapter;

b. Clean wood combustion residues when used for pH adjustment in compost, liquid absorbent in compost, or as a soil amendment or fertilizer, provided the application rate of the wood ash is limited to the nutrient need of the crop grown on the land on which the wood combustion residues will be applied and provided that such application meets the requirements of the Virginia Department of Agriculture and Consumer Services (2VAC5-400 and 2VAC5-410);

c. Compost that satisfies the applicable requirements of the Virginia Department of Agriculture and Consumer Services (2VAC5-400 and 2VAC5-410);

d. Nonhazardous, contaminated soil that has been excavated as part of a construction project and that is used as backfill for the same excavation containing similar contaminants at the same site, at concentrations at the same level or higher. Excess contaminated soil from these projects is subject to the requirements of this chapter;

e. Nonhazardous petroleum contaminated soil that has been treated to the satisfaction of the department in accordance with 9VAC20-81-660;

f. Nonhazardous petroleum contaminated soil when incorporated into asphalt pavement products;

g. Solid wastes that are approved in advance of the placement, in writing, by the department or that are specifically mentioned in the facility permit for use as alternate daily cover material or other protective materials for landfill liner or final cover system components;

h. Fossil fuel combustion products that are not CCR when used as a material in the manufacturing of another product (e.g., concrete, concrete products, lightweight aggregate, roofing materials, plastics, paint, flowable fill) or as a substitute for a product or material resource (e.g., blasting grit, roofing granules, filter cloth pre-coat for sludge dewatering, pipe bedding);

i. Tire chips and tire shred when used as a sub-base fill for road base materials or asphalt pavements when approved by the Virginia Department of Transportation or by a local governing body;

j. Tire chips, tire shred, and ground rubber used in the production of commercial products such as mats, pavement sealers, playground surfaces, brake pads, blasting mats, and other rubberized commercial products;

k. Tire chips and tire shred when used as backfill in landfill gas or leachate collection pipes, recirculation lines, and drainage material in landfill liner and cover systems, and gas interception or remediation applications;

l. Waste tires, tire chips, or tire shred when burned for energy recovery or when used in pyrolysis, gasification, or similar treatment process to produce fuel;

m. Waste-derived fuel product, as defined in 9VAC20-81-10, derived from nonhazardous solid waste;

n. Uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil, and rock placed in commerce for service as a substitute for conventional aggregate; and

o. Clean, ground gypsum wallboard when used as a soil amendment or fertilizer, provided the following conditions are met:

(1) No components of the gypsum wallboard have been glued, painted, or otherwise contaminated from manufacture or use (e.g., waterproof or fireproof drywall) unless otherwise processed to remove contaminants.

(2) The gypsum wallboard shall be processed so that 95% of the gypsum wallboard is less than 1/4 inch by 1/4 inch in size, unless an alternate size is approved by the department.

(3) The gypsum wallboard shall be applied only to agricultural, silvicultural, landscaped, or mined lands or roadway construction sites that need fertilization.

(4) The application rate for the ground gypsum wallboard shall not exceed the following rates.

| Region | Rate | | --- | --- | | Piedmont, Mountains, and Ridge and Valley | 250 lbs/1,000 ft² | | Coastal Plain | 50 lbs/1,000 ft² | | Note: These weights are for dry ground gypsum wallboard. | |

D. The following activities are conditionally exempt from this chapter provided no open dump, hazard, or public nuisance is created:

1. Composting of sewage sludge at the sewage treatment plant of generation without addition of other types of solid wastes.

2. Composting of household waste generated at a residence and composted at the site of generation.

3. Composting activities performed for educational purposes as long as no more than 100 cubic yards of materials are on site at any time. Greater quantities will be allowed with suitable justification presented to the department. For quantities greater than 100 cubic yards, approval from the department will be required prior to composting.

4. Composting of animal carcasses on site at the farm of generation.

5. Composting of vegetative waste or yard waste generated on site by owners or operators of agricultural operations or owners of the real property or those authorized by the owners of the real property, provided:

a. All decomposed vegetative waste and compost produced is utilized on that property;

b. No vegetative waste or other waste material generated from other sources other than that property is received;

c. All applicable standards of local ordinances that govern or concern vegetative waste handling, composting, storage, or disposal are satisfied; and

d. The waste poses no nuisance or presents no potential threat to human health or the environment.

6. Composting of yard waste by owners or operators who accept yard waste generated off site shall be exempt from all other provisions of this chapter as applied to the composting activities, provided the requirements of 9VAC20-81-397 B are met.

7. Composting of preconsumer food waste and kitchen culls generated on site and composted in containers designed to prohibit vector attraction and prevent nuisance odor generation.

8. Vermicomposting, when used to process Category I, Category II, or Category III feedstocks in containers designed to prohibit vector attraction and prevent nuisance odor generation. If offsite feedstocks are received, no more than 100 cubic yards of materials may be on site at any one time. For quantities greater than 100 cubic yards, approval from the department will be required prior to composting.

9. Composting of sewage sludge or combinations of sewage sludge with nonhazardous solid waste, provided the composting facility is permitted under the requirements of a Virginia Pollution Abatement (VPA) or VPDES permit.

10. Management of solid waste in appropriate containers at the site of its generation, provided that:

a. Putrescible waste is not stored more than seven days between time of collection and time of removal for disposal;

b. Nonputrescible wastes are not stored more than 90 days between time of collection and time of removal for proper management; and

c. Treatment of waste is conducted in accordance with the following:

(1) In accordance with a waste analysis plan that:

(a) Contains a detailed chemical and physical analysis of a representative sample of the waste being treated and contains all records necessary to treat the waste in accordance with the requirements of this part, including the selected testing frequency; and

(b) Is kept in the facility's onsite file and made available to the department upon request.

(2) Notification is made to the receiving waste management facility that the waste has been treated.

11. Using rocks, brick, block, dirt, broken concrete, crushed glass, porcelain, and road pavement as clean fill.

12. Storage of less than 100 waste tires at the site of generation, provided that no waste tires are accepted from off site and that the storage will not present a hazard or a nuisance.

13. Storage in piles of land-clearing debris, including stumps and brush, clean wood wastes, log yard scrapings consisting of a mixture of soil and wood, cotton gin trash, peanut hulls, and similar organic wastes that do not readily decompose, are exempt from this chapter if they meet the following conditions at a minimum:

a. The wastes are managed in the following manner:

(1) The wastes do not cause discharges of leachate or attract vectors.

(2) The wastes cannot be dispersed by wind and rain.

(3) Fire is prevented.

(4) The wastes do not become putrescent.

b. Any facility storing waste materials under the provisions of this subsection shall obtain a stormwater discharge permit if the waste materials are considered a significant source under the provisions of 9VAC25-31-120 A 1 c.

c. No more than a total of 1/3 acre of waste material is stored on site and the waste pile does not exceed 15 feet in height above base grade.

d. Siting provisions.

(1) All log yard scrapings consisting of a mixture of soil and wood, cotton gin trash, peanut hulls, and similar organic wastes that do not readily decompose are stored at the site of the industrial activity that produces them;

(2) A 50-foot fire break is maintained between the waste pile and any structure or tree line;

(3) The slope of the ground within the area of the pile and within 50 feet of the pile does not exceed four to one;

(4) No waste material may be stored closer than 50 feet to any regularly flowing surface water body or river, floodplain, or wetland; and

(5) No stored waste materials shall extend closer than 50 feet to any property line.

e. If activities at the site cease, any waste stored at the site must be properly managed in accordance with these regulations within 90 days. The director can approve longer timeframes with appropriate justification. Justification must be provided in writing no more than 30 days after ceasing activity at the site.

f. Waste piles that do not meet these provisions are required to obtain a permit in accordance with the permitting provisions in Part V (9VAC20-81-400 et seq.) of this chapter and meet all of the applicable waste pile requirements in Part IV (9VAC20-81-300 et seq.) of this chapter. Facilities that do not comply with the provisions of this subsection and fail to obtain a permit are subject to the provisions of 9VAC20-81-40.

14. Storage of nonhazardous solid wastes and hazardous wastes, or hazardous wastes from very small quantity generators as defined in Virginia Hazardous Waste Management Regulations (9VAC20-60), at a transportation terminal or transfer station in closed containers meeting the U.S. Department of Transportation specifications is exempt from this section and the permitting provisions of Part V (9VAC20-81-400 et seq.) of this chapter, provided such wastes are removed to a permitted storage or disposal facility within 10 days from the initial receipt from the waste generator. To be eligible for this exemption, each shipment must be properly documented to show the name of the generator, the date of receipt by the transporter, and the date and location of the final destination of the shipment. The documentation shall be kept at the terminal or transfer station for at least three years after the shipment has been completed and shall be made available to the department upon request. All such activities shall comply with any local ordinances.

15. Open burning of solid wastes as provided in the following:

a. For forest management, agriculture practices, and highway construction and maintenance programs approved by the State Air Pollution Control Board.

b. For training and instruction of government and public firefighters under the supervision of the designated official and industrial in-house firefighting personnel with clearance from the local firefighting authority. Buildings that have not been demolished may be burned under the provisions of this subdivision only. Additionally, burning rubber tires, asphaltic materials, crankcase oil, impregnated wood, or other rubber-based or petroleum-based wastes is permitted when conducting bona fide firefighting instruction.

c. For the destruction of classified military documents under the supervision of the designated official.

d. For campfires or other fires using clean wood or vegetative waste that are used solely for recreational purposes, for ceremonial occasions, for outdoor preparation of food, and for warming of outdoor workers.

e. For the onsite destruction of vegetative waste located on the premises of private property, provided that no regularly scheduled collection service for such vegetative waste is available at the adjacent street or public road.

f. For the onsite destruction of household waste by homeowners or tenants, provided that no regularly scheduled collection service for such household waste is available at the adjacent street or public road.

g. For the onsite destruction of clean wood waste and debris waste resulting from property maintenance; from the development or modification of roads and highways, parking areas, railroad tracks, pipelines, power and communication lines, buildings or building areas, sanitary landfills; or from any other clearing operations.

h. For the offsite destruction of vegetative waste by the generator, if it is impractical or unsafe to destroy such waste on the premises of the originating private property, provided the offsite open burning meets the following criteria:

(1) Vegetative waste shall be stored in compliance with subdivision 13 of this section;

(2) No more than one burn event shall occur per 60-day period, per location or generator, during which the event shall not exceed 72 hours (no smoldering);

(3) No more than 100 cubic yards of vegetative waste shall be burned per event;

(4) Burning shall be conducted in a location that meets the following conditions, at a minimum:

(a) 1,000 feet from any occupied building, unless the occupants have given prior written permission, other than a building located on the property where the burning is conducted;

(b) 300 feet from any roadway or structure;

(c) 200 feet from potable water wells or other drinking water sources;

(d) 100 feet from any regularly flowing surface water body, river, floodplain, or wetland;

(e) 50 feet from any property line;

(f) 50 feet from any utility lines or tree lines;

(g) 50 feet from any potentially combustible material; and

(h) Not within a volatile organic compound emissions control area as designated under 9VAC5-20-206;

(5) The burning activities shall comply with all state and local ordinances;

(6) Notification shall be provided to the state or local fire marshal at least 48 hours prior to the start of the burn event;

(7) The burn event shall be attended at all times;

(8) No liquid accelerants (e.g., diesel, motor oil) or other prohibited materials (e.g., building debris, treated wood, painted wood, asphaltic materials, tires, metal, garbage) shall be utilized to start or maintain the burning;

(9) A method of extinguishing the burning must be on site and available for the duration of the burn event; and

(10) The burning shall be extinguished if any of the following conditions are present:

(a) Wind speeds greater than 20 mph;

(b) An official pollution alert, code red air quality action day, or air quality health advisory is declared for the area; or

(c) Impairment to visibility on traveled roads or surrounding airports.

16. Open burning of vegetative waste is allowed at a closed landfill that has not been released from postclosure care. The activity shall be included in the text of the postclosure plan and conducted in accordance with § 10.1-1410.3 of the Code of Virginia.

17. Placement of trees, brush, or other vegetation from land used for agricultural or silvicultural purposes on the same property or other property of the same landowner.

18. Using fossil fuel combustion products that are not CCR in one or more of the following applications or when handled, processed, transported, or stockpiled for the following uses:

a. As a base, sub-base, or fill material under a paved road, the footprint of a structure, a paved parking lot, sidewalk, walkway, or similar structure, or in the embankment of a road. In the case of roadway embankments, materials will be placed in accordance with Virginia Department of Transportation specifications, and exposed slopes not directly under the surface of the pavement must have a minimum of 18 inches of soil cover over the fossil fuel combustion products, the top six inches of which must be capable of sustaining the growth of indigenous plant species or plant species adapted to the area. The use, reuse, or reclamation of unamended coal combustion byproduct shall not be placed in an area designated as a 100-year flood plain;

b. Processed with a cementitious binder to produce a stabilized structural fill product that is spread and compacted with proper equipment for the construction of a project with a specified end use; or

c. For the extraction or recovery of materials and compounds contained within the fossil fuel combustion products.

E. The following solid wastes are exempt from this chapter, provided that they are managed in accordance with the requirements promulgated by other applicable state or federal agencies:

1. Management of wastes regulated by the State Board of Health, the State Water Control Board, the State Air Pollution Control Board, the Department of Energy, Department of Agriculture and Consumer Services, or any other state or federal agency with such authority.

2. Drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy.

3. Solid waste from the extraction, beneficiation, and processing of ores and minerals, including coal.

4. Fossil fuel combustion products used for mine reclamation, mine subsidence, or mine refuse disposal on a mine site permitted by the Virginia Department of Energy when used in accordance with the standards.

5. Solid waste management practices that involve only the onsite placing of solid waste from mineral mining activities at the site of those activities and in compliance with a permit issued by the Department of Energy, that do not include any municipal solid waste, are accomplished in an environmentally sound manner, and do not create an open dump, hazard, or public nuisance are exempt from all requirements of this chapter.

6. Waste or byproduct derived from an industrial process that meets the definition of fertilizer, soil amendment, soil conditioner, or horticultural growing medium as defined in § 3.2-3600 of the Code of Virginia, or whose intended purpose is to neutralize soil acidity (see § 3.2-3700 of the Code of Virginia), and that is regulated under the authority of the Virginia Department of Agriculture and Consumer Services.

7. Fossil fuel combustion products bottom ash or boiler slag used as a traction control material or road surface material if the use is consistent with Virginia Department of Transportation practices. This exemption does not apply to CCR used in this manner.

8. Waste tires generated by and stored at salvage yards licensed by the Department of Motor Vehicles, provided that such storage complies with requirements set forth in § 10.1-1418.2 of the Code of Virginia and such storage does not pose a hazard or nuisance.

9. Tire chips used as the drainage material in construction of septage drain fields regulated under the authority of the Virginia Department of Health.

F. The following solid wastes are exempt from this chapter, provided that the solid wastes are reclaimed or temporarily stored incidentally to reclamation, are not accumulated speculatively, and are managed without creating an open dump, hazard, or a public nuisance:

1. Paper and paper products;

2. Clean wood waste that is to undergo size reduction in order to produce a saleable product, such as mulch;

3. Cloth;

4. Glass;

5. Plastics;

6. Tire chips, tire shred, ground rubber; and

7. Mixtures of above materials only. Such mixtures may include scrap metals excluded from regulation in accordance with the provisions of subsection C of this section.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 30, Issue 4, eff. December 5, 2013; Volume 32, Issue 9, eff. January 27, 2016; Volume 35, Issue 12, eff. March 6, 2019; Volume 42, Issue 13, eff. March 11, 2026.

9VAC20-81-97 Beneficial use demonstrations

A. The department may consider other waste materials and uses to be beneficial. The generator or proposed user of such materials may request that the department make a case-specific determination that the solid waste may be beneficially used in a manufacturing process to make a product or as an effective substitute for a commercial product. In all such cases, the materials will be managed so they do not create an open dump, hazard, or public nuisance.

1. The requestor shall provide the following information:

a. A description of the solid waste under review and its proposed use;

b. Chemical and physical characteristics of the solid waste under review and of each type of proposed product;

c. A demonstration that there is a known or reasonably probable market for the intended use of the solid waste under review and of all proposed products by providing one or more of the following:

(1) A description of how the proposed product will be used;

(2) A demonstration that the proposed product complies with industry standards and specifications for that product if any; or

(3) Other documentation that a market for the proposed product or use exists; and

d. A demonstration that the management of the solid waste under review will not adversely affect human health and safety, the environment, and natural resources by providing:

(1) A solid waste control plan that describes the following:

(a) The source of the solid waste under review;

(b) Procedures for periodic testing of the solid waste under review and the proposed product to ensure that the proposed product's composition has not changed significantly;

(c) The disposition of any solid waste that may result from the manufacture of the product into which the solid waste under review is intended to be incorporated;

(d) A description of the type of storage (e.g., container, tank, or pile) and the maximum anticipated inventory of the solid waste under review (not to exceed 90 days) before being used;

(e) Procedures for run-on and run-off control of the storage areas for the solid waste under review; and

(f) A program and implementation schedule of best management practices designed to minimize uncontrolled dispersion of the solid waste under review before and during all aspects of its storage as inventory and during beneficial use.

2. Upon receipt of complete information required under subdivision 1 of this subsection, the department will determine in writing within 90 days, on a case-by-case basis, whether the proposal constitutes a beneficial use based on a showing that all of the following criteria have been met:

a. The proposed use of the material constitutes a reuse rather than disposal;

b. For a material that is proposed for incorporation into a manufacturing process, the material is not required to be decontaminated or otherwise specially handled or processed before such incorporation, in order to minimize loss of material or to provide adequate protection, as needed, of public health, safety, or welfare; the environment; or natural resources; and

c. Other criteria as the department shall determine in its discretion to be appropriate. Conversely, the department may determine that owing to the nature of the use, reuse, or reclamation process, some of the informational materials required under subdivision 1 of this subsection may not be required to make the determination.

3. The department will either approve the request, disapprove it, or allow the proposed use of the solid waste under review subject to such conditions as the department may impose. When granting a beneficial use determination, the department shall determine, on a case-by-case basis, the precise point at which the solid waste under review ceases to be solid waste. Unless otherwise determined for the particular solid waste under review, that point occurs when it is used in a manufacturing process to make a product or used as an effective substitute for a commercial product or a fuel. As part of its request, the generator or the proposed user may request that such point occur elsewhere. In such a request, the proponent shall include a demonstration that there is little potential for improper disposal of the material or little potential for the handling, transportation, or storage of the solid waste under review to have an adverse impact upon the public health, safety, or welfare; the environment; or natural resources.

4. The department may revoke any determination made if it finds that one or more of the items of information submitted serving as the basis for the department's determination was incorrect or is no longer valid, the department finds that there has been a violation of any condition that the department attached to such determination, or that the use, reuse, or reclamation process has become a public nuisance.

B. Beneficial use determinations granted by the department before March 16, 2011, shall remain in effect, subject to all conditions contained therein, unless specifically addressed by subsequent department action.

C. Beneficial use determinations involving coal combustion residuals must meet the requirements of beneficial use of CCR as defined in 40 CFR 257.53. Beneficial use determinations for CCR projects involving over 12,400 tons of CCR must provide the required demonstrations identified in the definition of "beneficial use of CCR" to the department for review and approval.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

Part III Solid Waste Disposal Facility Standards for Sanitary Landfills, Construction/Demolition/Debris (CDD) Landfills, and Industrial Waste Landfills

9VAC20-81-100 General

A. Any person who constructs, or operates any solid waste disposal facility, not otherwise exempt under 9VAC20-81-35 D, shall comply with the requirements of this part. Further, all applications for permits pursuant to these standards shall demonstrate specific means proposed for compliance with requirements set forth in this part.

B. All solid waste disposal facilities shall be maintained and operated in accordance with the permit issued pursuant to this regulation, and in accordance with the approved design and intended use of the facility.

C. Hazardous wastes shall not be disposed of or managed in solid waste disposal facilities subject to this regulation unless specifically authorized by the facility permit or the director.

D. A solid waste management facility regulated under Part IV (9VAC20-81-300 et seq.) of this chapter will become subject to the closure and postclosure care standards contained in this part if solid waste will remain after the closure of such a facility.

E. Control program for unauthorized waste.

1. All landfills are required to implement a control program for unauthorized waste in accordance with the provisions of this section. A written description of the program will be placed in the operating record. Additional provisions for sanitary landfills required in subdivision 5 of this subsection are required to be placed in the landfill's operating record. The owner or operator shall institute a control program (including measures such as signs at all maintained access points indicating hours of operation and the types of solid waste accepted and not accepted, monitoring, alternate collection programs, passage of local laws, etc.) to assure that only solid waste authorized by the department to be treated, disposed of, or transferred at the landfill is being treated, disposed of, or transferred at that landfill. The owner or operator must develop and implement a program to teach the landfill's staff to recognize, remove, and report receipt of solid waste not authorized by the department to be treated, disposed of, or transferred at the landfill.

2. If unauthorized waste is observed in the waste delivered to the facility prior to unloading, the owner or operator may refuse to accept the waste. If the owner or operator has accepted the waste, the owner or operator shall remove it, segregate it, and provide to the department a record identifying that waste and its final disposition. Records of each incident shall be available for department review. Any unauthorized waste accepted by the owner or operator shall be managed in accordance with applicable federal or state laws and regulations.

3. Solid waste not authorized by the department to be treated, disposed of, or transferred at the landfill that is segregated shall be adequately secured and contained to prevent leakage or contamination of the environment. The solid waste management facility owner or operator shall have the unauthorized waste removed or properly managed as soon as practicable, but not more than 90 days after discovery. Removal shall be by a person authorized to transport such waste to a waste management facility approved to receive it for treatment, disposal, or transfer.

4. Each noncaptive landfill receiving waste generated outside Virginia shall include provisions in the landfill's unauthorized waste control program for notifying customers outside of Virginia of Virginia's requirements and for preventing the acceptance of prohibited wastes. Each noncaptive landfill shall comply with the same increased random inspection provisions presented for all such landfills in subdivision 5 of this subsection, as applicable.

5. The owner or operator of all landfills (other than captive industrial landfills) shall implement an inspection program to be conducted by landfill personnel to detect and prevent disposal of those wastes prohibited in 9VAC20-81-40 and 9VAC20-81-140. In addition to implementing the requirements of the control program for unauthorized waste in this subsection, the program shall include, at a minimum:

a. The procedures for the routine monitoring and observation of incoming waste at the working face of the landfill;

b. The procedures for random inspections of incoming loads to detect whether incoming loads contain regulated hazardous wastes, PCB wastes, regulated medical waste, or other unauthorized solid waste and ensure that such wastes are not accepted at the landfill. The owner or operator shall inspect a minimum of 1.0% of the incoming loads of waste. In addition, if the facility receives waste generated outside of Virginia and the regulatory structure in that jurisdiction allows for the disposal or incineration of wastes as municipal solid waste that Virginia's laws and regulations prohibit or restrict, the facility shall inspect a minimum of 10% of the incoming loads;

c. Records of all inspections, to include at a minimum time and date of the inspection, the personnel involved, the hauler, the type of waste observed, the identity of the generator of the waste if it can be determined, the location of the facility where the waste was handled prior to being sent to the landfill, and the results of the inspection. All records associated with unauthorized waste monitoring and incidents shall be retained onsite for a minimum of three years and shall be available for inspection by the department;

d. Training of landfill personnel to recognize and manage regulated hazardous waste, PCB wastes, regulated medical waste, and other unauthorized solid wastes;

e. Notification to the department if a regulated hazardous waste, PCB waste, regulated medical waste, or other unauthorized waste is discovered at the landfill. This notification will be made orally as soon as possible, but no later than 24 hours after the occurrence and shall be followed within five working days by a written report that includes a description of the event, the cause of the event, the time and date of the event, and the actions taken to respond to the event; and

f. All regulated medical waste, PCB waste, or other unauthorized solid waste that are detected at a landfill shall be isolated from the incoming waste and properly contained until arrangements can be made for proper transportation for treatment or disposal at an approved facility.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-110 Applicability

A. Sanitary landfills. Sanitary landfills may receive only nonhazardous solid waste unless there are other wastes specifically authorized by the landfill permit.

B. Construction/demolition/debris (CDD) landfills. CDD landfills may only receive demolition waste, construction waste, debris waste, land-clearing debris, split tires, and white goods. No other wastes are authorized for the CDD landfill except industrial waste specifically authorized by the landfill permit.

C. Industrial waste disposal facilities. Industrial waste disposal facilities may only receive nonhazardous industrial waste and are subject to design and operational requirements dependent on the volume and the physical, chemical, and biological nature of the waste. No other wastes are authorized for the industrial waste landfill except construction, demolition, and debris waste specifically authorized by the landfill permit. Coal combustion residual landfills are a specific type of industrial landfill and must meet the requirements in Part VIII (9VAC20-81-800 et seq.) of this chapter in addition to industrial landfill requirements found in Part III (9VAC20-81-100 et seq.) and Part V (9VAC20-81-400 et seq.) of this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-120 Siting requirements

The siting of all new sanitary, CDD and industrial landfills shall be governed by the standards set forth in this section.

A. Floodplains. No new landfill shall be sited in a 100-year floodplain.

B. Stable areas. New landfills shall be sited in geologically stable areas where adequate foundation support for the structural components of the landfill exists. At a minimum, factors to be considered when determining stable areas shall include:

1. Onsite or local soil conditions that may result in differential settling and subsequent failure of structural components or containment structures; and

2. Onsite or local geological or manmade features or events that may result in sudden or nonsudden events and subsequent failure of structural components or containment structures.

C. Restrictions (distances are to be measured in the horizontal plane).

1. No disposal unit or leachate storage unit shall be closer than:

a. 200 feet from any residence, school, daycare center, hospital, nursing home, or recreational park area in existence at the time of application;

b. 100 feet from any perennial stream or river;

c. 50 feet from the facility boundary;

d. 500 feet from any well, spring, or other groundwater source of drinking water in existence at the time of application; and

e. 1,000 feet from the nearest edge of the right-of-way of any interstate or primary highway or 500 feet from the nearest edge of the right-of-way of any other highway or city street, except the following:

(1) Units that are screened by natural objects, plantings, fences, or other means so as to minimize the visibility from the main-traveled way of the highway or city street, or otherwise removed from sight;

(2) Units that are located in areas that are zoned for industrial use under authority of state law or in unzoned industrial areas as determined by the Commonwealth Transportation Board; or

(3) Units that are not visible from the main-traveled way of the highway or city street.

2. No new landfill shall be constructed in any park or recreational area, wildlife management area, or area designated by the federal or state agency as the critical habitat of any endangered species.

3. Sanitary landfills.

a. No new sanitary landfill area shall be constructed:

(1) Within a one mile upgradient of any existing surface or groundwater public water supply intake or reservoir;

(2) Within three miles upgradient of any existing surface or groundwater public water supply intake or reservoir except as allowed under the provisions of § 10.1-1408.4 B 3 of the Code of Virginia;

(3) In any area vulnerable to flooding resulting from dam failures;

(4) Over a sinkhole or less than 100 feet over a solution cavern associated with karst topography; or

(5) Over a fault that has had displacement in Holocene time.

b. No new sanitary landfill or expansion of an existing sanitary landfill shall be constructed:

(1) Within 200 feet of a fault that has had displacement in Holocene time unless the owner or operator demonstrates to the director that an alternative setback distance of less than 200 feet will prevent damage to the structural integrity of the facility and will be protective of human health and the environment; or

(2) Within seismic impact zones, unless the owner or operator demonstrates to the director that all containment structures, including liners, leachate collection systems, and surface water control systems, are designed to resist the maximum horizontal acceleration in lithified earth material for the site.

D. Groundwater.

1. No new facility shall be located in areas where groundwater monitoring cannot be conducted in accordance with 9VAC20-81-250 unless this requirement is suspended by the director pursuant to subdivision A 1 c of that section. Factors to be considered in determining whether or not a site can be monitored shall include:

a. Ability to characterize the direction of groundwater flow within the uppermost aquifer;

b. Ability to characterize and define any releases from the landfill so as to determine what corrective actions are necessary; and

c. Ability to perform corrective action as necessary;

E. Wetlands.

1. Sanitary landfills.

a. New sanitary landfills and expansions of existing landfills, other than those impacting less than 2.0 acres of nontidal wetlands, shall not be constructed in any tidal wetland or nontidal wetland contiguous to any surface water body.

b. After July 1, 1999, construction at existing permitted facilities (allowed under the provisions of § 10.1-1408.5) only will be allowed with approvals under the provisions of 9VAC25-210. In addition, the demonstration noted in subdivision 3 of this subsection must be made by the owner or operator to the director.

2. New CDD or industrial landfills and expansions of existing CDD or industrial landfills shall not be located in wetlands, unless the owner or operator can make the demonstration noted in subdivision 3 of this subsection.

3. Demonstration.

a. Where applicable under § 404 of the Clean Water Act or § 62.1-44.15:5 of the Code of Virginia, the presumption is clearly rebutted that a practicable alternative to the proposed landfill exists that does not involve wetlands;

b. The construction and operation of the landfill will not:

(1) Cause or contribute to violations of any applicable water quality standard;

(2) Violate any applicable toxic effluent standard or prohibition under § 307 of the Clean Water Act;

(3) Jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of a critical habitat, protected under the Endangered Species Act of 1973; and

(4) Violate any requirement under the Marine Protection, Research, and Sanctuaries Act of 1972 for the protection of a marine sanctuary;

c. The landfill will not cause or contribute to significant degradation of wetlands. The owner or operator shall demonstrate the integrity of the landfill and its ability to protect ecological resources by addressing the following factors:

(1) Erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the landfill;

(2) Erosion, stability, and migration potential of dredged and fill materials used to support the landfill;

(3) The volume and chemical nature of the waste managed in the landfill;

(4) Impacts on fish, wildlife, and other aquatic resources and their habitat from release of the solid waste;

(5) The potential effects of catastrophic release of waste to the wetland and the resulting impacts on the environment; and

(6) Any additional factors, as necessary, to demonstrate that ecological resources in the wetland are protected;

d. To the extent required under § 404 of the Clean Water Act or applicable Virginia wetlands laws, steps have been taken to attempt to achieve no net loss of wetlands (as defined by acreage and function) by first avoiding impacts to wetlands to the maximum extent practicable as required by subdivision 3 of this subsection, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of manmade wetlands); and

e. Information is available to enable the department to make a reasonable determination with respect to these demonstrations.

F. Limiting site characteristics.

1. Certain site characteristics may prevent approval or require substantial limitations on the site use or require incorporation of sound engineering controls. Such site characteristics shall be identified and an explanation of precautions necessary to assure compliance with the provisions of this chapter shall be provided. Examples include, but are not limited to:

a. Excessive slopes (greater than 33%);

b. Lack of readily available cover materials on site, or lack of a firm commitment for adequate cover material from a borrow site;

c. Springs, seeps, or other groundwater intrusion into the site;

d. The presence of gas, water, sewage, or electrical or other transmission lines under the site; or

e. The prior existence on the site of an open dump, unpermitted landfill, lagoon, or similar unit, even if such a unit is closed, will be considered a defect in the site unless the proposed unit can be isolated from the defect by the nature of the unit design and the groundwater for the proposed unit can be effectively monitored.

G. Specific site conditions may be considered in approving an exemption of a site from the following:

1. The limiting site characteristics in subsection F of this section for all landfills; and

2. The groundwater monitoring in subsection D of this section for CDD and industrial landfills.

H. Acceptable landfill sites shall allow for adequate area and terrain for management of leachate.

I. Airport safety.

1. Owners or operators of all sanitary landfills that are located within 10,000 feet of any airport runway end used by turbojet aircraft or within 5,000 feet of any airport runway end used by only piston-type aircraft shall demonstrate that the units are designed and operated so that the landfill does not pose a bird hazard to aircraft.

2. Owners or operators proposing to site new sanitary landfill and expansions of an existing landfill within a five-mile radius of any airport runway end used by turbojet or piston-type aircraft shall notify the affected airport and the Federal Aviation Administration (FAA). Owners and operators should also be aware that 49 USC § 44718(d), restricts the establishment of landfills within six miles of public airports under certain conditions. Provisions for exemptions from this law also exist.

J. For CDD landfills located in strip mine pits, all coal seams and coal outcrops shall be isolated from solid waste materials by a minimum of five feet of natural or compacted soils with a hydraulic conductivity equal to or less than 1x10^-7 cm/sec.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-130 Design and construction requirements

The design and construction of all sanitary, CDD and industrial landfills shall be governed by the standards set forth in this section.

A. Both the landfill capacity (in cubic yards) and the daily disposal limit shall be specified.

B. All facilities shall be surrounded on all sides by natural barriers, fencing, or an equivalent means of controlling vehicular and public access and preventing illegal disposal. All access will be limited by gates, and such gates shall be securable and equipped with locks, except, in the case of industrial disposal sites where the solid waste disposal landfill is on site of the industrial facility where access is limited.

C. All landfill access roads shall be provided with a base capable of withstanding anticipated heavy vehicle loads and shall be all-weather roads extending from the entrance of the landfill to the working face.

D. All facilities, except captive industrial, shall have an adequately lighted and heated shelter where operating personnel can exercise site control and have access to essential sanitation facilities. Lighting, heat, and sanitation facilities may be provided by portable equipment as necessary.

E. Aesthetics shall be considered in the design of a landfill or site. Use of artificial or natural screens shall be incorporated into the design for site screening and noise attenuation. The design shall reflect those requirements, if any, that are determined from the long-range plan for the future use of the site. Noise attenuation shall be less than 80 dBA at the facility boundary.

F. All landfills shall be equipped with permanent or mobile telephone or radio communications except at industrial landfills where other onsite resources are available.

G. Two survey benchmarks shall be established and maintained on the landfill site, and their location identified or recorded on drawings and maps of the landfill.

H. Surface water runoff. Facilities shall be designed to provide and maintain:

1. A run-on control system to prevent flow onto the active portion of the landfill during the peak discharge from a 24-hour, 25-year storm;

2. A run-off control system from the active portion of the landfill to collect and control at least the water volume resulting from a 24-hour, 25-year storm. Run-off from the active portion of the landfill unit shall be handled in a manner that will not cause the discharge of:

a. Pollutants into waters of the United States, including wetlands, that violates any requirements of the Clean Water Act, including, but not limited to, the Virginia Pollutant Discharge Elimination System (VPDES) requirements; and

b. A nonpoint source of pollution to waters of the United States, including wetlands, that violates any requirement of an areawide or statewide water quality management plan that has been approved under § 208 or 319 of the Clean Water Act, as amended; and

3. Drainage structures shall be installed and continuously maintained to prevent ponding and erosion, and to minimize infiltration of water into solid waste cells.

I. A fire break of 50 feet shall be designed between the limits of waste and all tree lines.

J. Bottom liner.

1. Sanitary landfills.

All sanitary landfills shall be underlain by a composite liner system as follows:

a. Subtitle D Liner System.

(1) Base preparation to protect the liner by preventing liner failure through subsidence or structural failure of the liner system.

(2) A lower liner consisting of at least a two-foot layer of compacted soil or augmented soil with a hydraulic conductivity of no more than 1x10^-7 cm/sec.

(3) An upper component consisting of a minimum 30 mil flexible membrane liner (FML). If high density polyethylene (HDPE) is used as an FML, it shall be at least 60 mil thick. The FML component shall be:

(a) Installed in direct and uniform contact with the compacted soil liner;

(b) Placed in accordance with an approved construction quality control/quality assurance program submitted with the design plans; and

(c) Placed with a minimum of 2.0% slope for leachate drainage.

b. Alternate Liner System. FML/Geosynthetic Clay Liner (GCL).

(1) The alternate liner system presented below is the minimum that is required under these regulations requiring no demonstration. If additional components to this alternate system are incorporated into the liner design, no demonstration will be required.

(2) A controlled subgrade with a minimum thickness of 12 inches shall be provided immediately beneath the alternate liner. The controlled subgrade shall consist of soils having a Unified Soil Classification of SC, ML, CL, MH, or CH and shall be compacted to a minimum of 95% of the maximum dry density, as determined by ASTM D698 (Standard Proctor). The surface shall be rolled smooth and be free of rocks or stones in excess of 0.75 inches prior to placement of the overlying GCL.

The surface shall be prepared to meet the liner manufacturer's and the installer's specifications. The liner manufacturer's/installer's specifications shall consider compaction, soft areas, proof rolling, maximum grain size, rocks, and other subgrade imperfections that may affect the liner. The liner installer shall provide written acceptance of the subgrade before installing liner on it.

(3) A lower liner consisting of geosynthetic clay liner (GCL) with a hydraulic conductivity of no more than 1x10^-9 cm/sec. The GCL shall have appropriate overlap between adjacent panels so as to minimize the risk of panel shrinkage and/or transverse shortening creating panel separation, and be installed with a minimum 12-inch overlap on the panel ends and 6-inch overlap between adjacent panels. If the liner system will be exposed prior to the placement of a protective cover layer for periods in excess of two months, a discussion of the adequacy of the GCL overlap shall be included in the certification report. Granular bentonite shall be spread on all seams prior to placement of overlapping panels, or other means per manufacturer's specifications.

(4) An upper component consisting of a minimum 30 mil flexible membrane liner (FML). If high density polyethylene (HDPE) is used as an FML, it shall be at least 60 mil thick. The FML component shall be:

(a) Installed in direct and uniform contact with the GCL;

(b) Placed in accordance with an approved construction quality control/quality assurance program submitted with the design plans;

(c) Placed with a minimum of 2.0% slope for leachate drainage; and

(d) Leachate collection aggregate/protective cover materials shall be placed as soon as practical following the completion of the FML installation. At a minimum, this material should be placed within three months of final acceptance of the FML surface by the CQA engineer.

c. Additional alternate liner systems.

(1) Additional alternate liner systems may be approved if the owner or operator of the landfill demonstrates to the satisfaction of the director that the proposed alternate liner system design will ensure that the maximum contaminant levels (MCL) promulgated under § 1412 of the Safe Drinking Water Act (40 CFR Part 141) will not be exceeded in the uppermost aquifer at the disposal unit boundary.

(a) The demonstration shall be based on the consideration of the following factors:

(1) The hydrogeologic characteristics of the landfill and surrounding land;

(2) The climatic factors of the area;

(3) The volume and physical and chemical characteristics of the leachate;

(4) The quantity, quality, and direction of flow of groundwater;

(5) The proximity and withdrawal rate of the groundwater users;

(6) The availability of alternative drinking water supplies;

(7) The existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the groundwater, and whether the groundwater is currently used or reasonably expected to be used for drinking water;

(8) Public health, safety, and welfare effects; and

(9) Practicable capability of the owner or operator.

(b) The demonstration shall be supported by the results of a mathematical modeling study based on the EPA MULTIMED model.¹ Other models may be used if accompanied by justification describing the reasons for inapplicability of the MULTIMED model.²

¹Sharp-Hansen, S., C. Travers, P. Hummel, T. Allison, R. Johns, and W. B. Mills. A Subtitle D Landfill Application Manual for the Multimedia Exposure Assessment Model (MULTIMED 2.0), United States Environmental Protection Agency, Athens, Georgia, 1995.

²For a listing and review of models see Travers, C.L., and S. Sharp-Hansen, Leachate Generation and Migration at Subtitle D Facilities: A Summary and Review of Processes and Mathematical Models, United States Environmental Protection Agency, Environmental Research Laboratory, Athens, Georgia (1991).

2. CDD and industrial landfills.

All landfills shall be underlain by a liner system as follows:

a. Compacted clay:

(1) A liner consisting of at least one-foot layer of compacted soil with a hydraulic conductivity of no more than 1x10^-7 cm/sec.

(2) The liner shall be placed with a minimum of 2.0% slope for leachate drainage.

(3) The liner shall be covered with a minimum one-foot thick drainage layer.

b. Synthetic liners:

(1) Synthetic liner consisting of a minimum 30 mil thick flexible membrane. If high density polyethylene is used, it shall be at least 60 mil thick. Synthetic liners shall be proven to be compatible with the solid waste and its leachate.

(2) The liner shall be placed in accordance with an approved construction quality control/quality assurance program submitted with the design plans.

(3) The surface under the liner shall be a smooth rock-free base or otherwise prepared to prevent liner failure.

(4) The liner shall be placed with a minimum of 2.0% slope for leachate drainage.

(5) The liner shall be covered with a 12-inch thick drainage layer for leachate removal and a six-inch thick protective layer placed above the drainage layer, both composed of materials with a hydraulic conductivity of 1x10^-3 cm/sec or greater (lab tested).

c. Other liners:

(1) Other augmented compacted clays or soils may be used as a liner provided the thickness is equivalent and the hydraulic conductivity will be equal to or less than that for compacted clay alone.

(2) The effectiveness of the proposed augmented soil liner shall be documented by using laboratory tests.

(3) The liner shall be placed with a minimum of 2.0% slope for leachate drainage.

d. In-place soil:

(1) Where the landfill will be separated from the groundwater by low hydraulic conductivity soil as indicated by laboratory tests, which is natural and undisturbed, and provides equal or better performance in protecting groundwater from leachate contamination, a liner can be developed by manipulation of the soil to form a liner with equivalent thickness and hydraulic conductivity equal to or less than that of the clay liner.

(2) The liner shall be prepared with a minimum of 2.0% slope for leachate drainage. Interior liner slopes of 33% will be allowed provided that adequate runoff and erosion controls are established. All interior slopes shall be supported by necessary calculations and included in the design manual.

e. Double liners required or used in lieu of groundwater monitoring shall include:

(1) Base preparation to protect the liner.

(2) A bottom or secondary liner that is soil, synthetic, or augmented soil as indicated in subdivision 2 a, b, c, or d of this subsection.

(3) A witness or monitoring zone placed above the bottom or secondary liner consisting of a 12-inch thick drainage layer composed of material with a hydraulic conductivity of 1x10^-3 cm/sec or greater (lab tested) with a network of perforated pipe, or an equivalent design.

(4) The primary liner as indicated in subdivision 2 a, b, or c of this subsection.

(5) The primary liner will be covered with a minimum 12-inch thick drainage layer and a six-inch thick protective layer, placed above the drainage layer, both composed of materials having a hydraulic conductivity of 1x10^-3 cm/sec or greater (lab tested).

(6) A program for monitoring the witness zone shall be established. The program will monitor the quantity and quality of liquids collected from this zone and shall be designed to detect waste constituents most likely associated with the waste accepted at the landfill. The program will also establish a leakage action rate beyond which groundwater contamination will be assessed through a groundwater monitoring program in accordance with 9VAC20-81-250.

f. If five-foot separation from seasonal high ground water can be demonstrated, a separate area may be established to receive only stumps, brush, leaves, and land-clearing debris. Such an area may be constructed without a liner or a leachate collection system, but may not receive any other solid waste.

K. Each site design shall include a decomposition gas venting system or gas management system (see 9VAC20-81-200), except at CDD and industrial landfills if the owner or operator can demonstrate to the department that gas formation is not a concern.

L. Leachate control and monitoring systems are subject to the requirements in 9VAC20-81-210.

M. A groundwater monitoring system shall be installed at all landfills in accordance with 9VAC20-81-250, except for the exemption of double-lined CDD or industrial landfills referenced in this section.

N. Final contours of the finished landfill shall be specified. Design of final contours shall consider subsequent site uses, existing natural contours, surface water management requirements, and the nature of the surrounding area. The final elevation of the landfill shall be limited by the structural capacity of the liner and leachate collection and removal system and by stability of foundation and slopes. The final contour shall not cause structural damage or collapse of the leachate collection system.

O. Finished side slopes shall be designed as set forth in 9VAC20-81-160 D 3 of this part.

P. All landfills shall be constructed in accordance with approved plans, which shall not be subsequently modified without approval by the department.

Q. Construction quality assurance program.

1. General.

a. A construction quality assurance (CQA) program is required for all landfill units. The program shall ensure that the constructed unit meets or exceeds all design criteria and specifications in the permit. The program shall be developed and implemented under the direction of a CQA officer who is a professional engineer.

b. The CQA program shall address the following physical components, where applicable:

(1) Foundations;

(2) Low-hydraulic conductivity soil liners;

(3) Synthetic membrane liners;

(4) Leachate collection and removal systems including an 18-inch protective layer;

(5) Gas management components; and

(6) Final cover systems.

2. Written CQA plan. The owner or operator shall develop and implement a written CQA plan that shall include observations, inspections, tests, and measurements. The plan shall identify steps that will be used to monitor and document the quality of materials and the condition and manner of their installation. The CQA plan shall include:

a. Identification of applicable units, and a description of how they will be constructed;

b. Identification of key personnel in the development and implementation of the CQA plan, and CQA officer qualifications;

c. A description of inspection and sampling activities for all unit components identified in subdivision 1 b of this section including observations and tests that will be used before, during, and after construction to ensure that the construction materials and the installed unit components meet the design specifications. The description shall cover sampling size and locations; frequency of testing; data evaluation procedures; acceptance and rejection criteria for construction materials and constructed components; plans for implementing corrective measures; and data or other information to be recorded;

d. Structural stability and integrity of all components of the unit identified in subdivision 1 b of this subsection;

e. Proper construction of all components of the liners, leachate collection and removal system, gas management system if required under subsection K of this section, and final cover system, according to permit specifications and good engineering practices, and proper installation of all components (e.g., pipes) according to design specifications;

f. Conformity of all materials used with design and other material specifications;

g. The permeability of the soil liner.

(1) The ability of the soil to be used as a liner material must be demonstrated using a test pad. At least one test pad shall be required for every source of low permeability liner soil. If soil sources are consistent (i.e. similar USCS soil type, liquid and plastic limits, grain size distribution, moisture density relationship, and permeability characteristics) one test pad will be adequate provided that the third-party quality control firm agrees. In the event that soils are not uniform within a borrow source an additional test pad shall be constructed for each soil type.

The test pad shall establish the range of criteria (compaction, moisture content, USCS classification, and grain size) that can be expected to achieve a low permeability soil liner meeting the requirements of the permit. To achieve these results the test pad's permeability shall be correlated with grain size analysis, liquid and plastic limits, moisture content, relative compaction, remolded permeability, undisturbed Shelby tube sample permeability, and the in-situ permeability determined by field tests performed on the test pad.

(2) Following the completion of the test pad the remaining low permeability liner system shall be certified by testing the constructed liner to determine its conformance to the acceptable criteria established during the test pad construction. Such tests shall include compaction, moisture content, grain size, and the liquid and plastic limits of the soil. Any area that does not conform to the established criteria shall be further tested by obtaining an undisturbed Shelby tube sample of the constructed liner and performing a laboratory permeability on it. In addition to testing any liner areas that do not conform to the established test pad acceptance criteria, a minimum of one additional laboratory permeability test shall be performed on each acre of constructed liner.

3. Certification. Once construction is complete, the owner or operator shall submit to the department by certified mail or other equivalent method with a return receipt or hand delivery a certification signed by the CQA officer that the approved CQA plan has been successfully carried out and that the unit meets the requirements of this section. Documentation supporting the CQA officer's certification shall be submitted to the department upon request. An additional professional engineer's certification is required under the provisions of 9VAC20-81-490 A. Wastes shall not be accepted until the facility receives a Certificate to Operate (CTO) per 9VAC20-81-490 A.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-140 Operation requirements

A. The operation of all sanitary, CDD, and industrial landfills shall be governed by the standards set forth in this section. Landfill operations will be detailed in an operations manual that shall be maintained in the operating record in accordance with 9VAC20-81-485. This operations manual will include an operations plan, an inspection plan, a health and safety plan, an unauthorized waste control plan, an emergency contingency plan, and a landscaping plan meeting the requirements of this section and 9VAC20-81-485. This manual shall be made available to the department when requested. If the applicable standards of this chapter and the landfill's Operations Manual conflict, this chapter shall take precedence.

B. Landfill operational performance standards.

1. Safety hazards to operating personnel shall be controlled through an active safety program consistent with the requirements of 29 CFR Part 1910, as amended.

2. A groundwater monitoring program meeting the requirements of 9VAC20-81-250 shall be implemented, as applicable.

3. A corrective action program meeting the requirements of 9VAC20-81-260 is required whenever the groundwater protection standard is exceeded at statistically significant levels.

4. Open burning at active landfills.

a. Owners or operators shall ensure that the units do not violate any applicable requirements developed by the State Air Pollution Control Board or promulgated by the EPA administrator pursuant to § 110 of the Clean Air Act, as amended (42 USC §§ 7401 to 7671q).

b. Open burning of solid waste, except for infrequent burning of agricultural wastes, silvicultural wastes, land-clearing debris, diseased trees, or debris from emergency cleanup operations is prohibited. There shall be no open burning permitted on areas where solid waste has been disposed of or is being used for active disposal.

c. The owner or operator shall be responsible for extinguishing any fires that may occur at the facility. A fire control plan will be developed that outlines the response of facility personnel to fires. The fire control plan will be provided as an attachment to the emergency contingency plan required under the provisions of 9VAC20-81-485. The fire control plan will be available for review upon request by the public. There shall be no open burning permitted on areas where solid waste has been disposed or is being used for active disposal.

5. Except as provided in 9VAC20-81-130 K, owners or operators shall implement a gas management plan in accordance with 9VAC20-81-200 to control landfill gas such that:

a. The concentration of methane gas generated by the landfill does not exceed 25% of the lower explosive limit for methane in landfill structures (excluding gas control or recovery system components); and

b. The concentration of methane gas does not exceed the lower explosive limit for methane at the facility boundary.

6. Landfills shall not:

a. Allow leachate from the landfill to drain or discharge into surface waters except when treated onsite and discharged into surface water as authorized under a VPDES Permit (9VAC25-31).

b. Cause a discharge of pollutants into waters of the United States, including wetlands, that violates any requirements of the Clean Water Act (33 USC § 1251 et seq.), including, but not limited to, the VPDES requirements and Virginia Water Quality Standards (9VAC25-260).

c. Cause the discharge of a nonpoint source of pollution to waters of the United States, including wetlands, that violates any requirement of an areawide or statewide water quality management plan that has been approved under § 208 or 319 of the Clean Water Act (33 USC § 1251 et seq.), as amended or violates any requirement of the Virginia Water Quality Standards (9VAC25-260).

d. Allow solid waste to be deposited in or to enter any surface waters or groundwaters.

7. Owners or operators shall maintain the run-on/runoff control systems designed and constructed in accordance with 9VAC20-81-130 H.

8. Access to sanitary, CDD, or noncaptive industrial landfills shall be permitted only when an attendant is on duty and only during daylight hours, unless otherwise specified in the landfill permit.

9. Fencing or other suitable control means shall be used to control litter migration. All litter blown from the landfill operations shall be collected on a weekly basis.

10. Odors and vectors shall be effectively controlled so they do not constitute nuisances or hazards. Odor hazard or nuisances shall be controlled in accordance with 9VAC20-81-200 D. Disease vectors shall be controlled using techniques for the protection of human health and the environment.

11. If salvaging is allowed by a landfill, it shall not interfere with operation of the landfill and shall not create hazards or nuisances.

12. Fugitive dust and mud deposits on main offsite roads and access roads shall be minimized at all times to limit nuisances. Dust shall be controlled to meet the requirements of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40.

13. Internal roads in the landfill shall be maintained to be passable in all weather by ordinary vehicles. All operation areas and units shall be accessible.

14. All landfill appurtenances listed in 9VAC20-81-130 shall be properly maintained and operated as designed and approved in the facility's permit.

15. Adequate numbers and types of properly maintained equipment shall be available to a landfill for operation. Provision shall be made for substitute equipment to be available or alternate means implemented to achieve compliance with subdivision C 1, D 1, or E 1 of this section, as applicable, within 24 hours should the former become inoperable or unavailable. Operators with training appropriate to the tasks they are expected to perform and in sufficient numbers for the complexity of the site shall be on the site whenever it is in operation.

16. Self-Inspection. Each landfill shall implement an inspection routine including a schedule for inspecting all applicable major aspects of facility operations necessary to ensure compliance with the requirements of this chapter. Records of these inspections must be maintained in the operating record and available for review. At a minimum, the following aspects of the facility shall be inspected on a monthly basis: erosion and sediment controls, storm water conveyance system, leachate collection system, safety and emergency equipment, internal roads, and operating equipment. The groundwater monitoring system and gas management system shall be inspected at a rate consistent with the system's monitoring frequency.

17. Records to include, at a minimum, date of receipt, quantity by weight or volume, and origin shall be maintained on solid waste received and processed to fulfill the applicable requirements of the Solid Waste Information and Assessment Program under 9VAC20-81-80 and the Control Program for Unauthorized Waste under 9VAC20-81-100 E. Such records shall be made available to the department for examination or use when requested.

C. In addition to the standards in subsection B of this section, sanitary landfills shall also comply with the following:

1. Compaction and cover requirements.

a. Unless provided otherwise in the permit, solid waste shall be spread into two-foot layers or less and compacted at the working face, which shall be confined to the smallest area practicable.

b. Lift heights shall be sized in accordance with daily waste volumes. Lift height is not recommended to exceed 10 feet.

c. Daily cover consisting of at least six inches of compacted soil or other approved material shall be placed upon and maintained on all exposed solid waste prior to the end of each operating day, or at more frequent intervals if necessary, to control disease vectors, fires, odors, blowing litter, and scavenging. Alternate materials of an alternate thickness may be approved by the department if it has been demonstrated that the alternate material and thickness control disease vectors, fires, odors, blowing litter, and scavenging without presenting a threat to human health and the environment. At least three days of acceptable cover soil or approved material at the average usage rate shall be maintained at the landfill or readily available at all times.

d. Intermediate cover of at least six inches of additional compacted soil shall be applied and maintained whenever an additional lift of refuse is not to be applied within 30 days. Further, all areas with intermediate cover exposed shall be inspected as needed, but not less than weekly. Additional cover material shall be placed on all cracked, eroded, and uneven areas as required to maintain the integrity of the intermediate cover system.

e. Final cover construction will be initiated and maintained in accordance with the requirements of 9VAC20-81-160 D 2 when the following pertain:

(1) An additional lift of solid waste is not to be applied within one year, or a longer period as required by the facility's phased development.

(2) Any area of a landfill attains final elevation and within 90 days after such elevation is reached or longer if specified in the landfill's approved closure plan.

(3) An entire landfill's permit is terminated for any reason, and within 90 days of such denial or termination.

f. Vegetation shall be established and maintained on all exposed final cover material within four months after placement, or as specified by the department when seasonal conditions do not permit. Mowing will be conducted a minimum of once a year or at a frequency suitable for the vegetation and climate.

g. Areas where waste has been disposed that have not received waste within 30 days will not have slopes exceeding the final cover slopes specified in the permit or 33% unless steeper slopes are approved in the permit.

2. The active working face of a sanitary landfill shall be kept as small as practicable, determined by the tipping demand for unloading.

3. A sanitary landfill that is located within 10,000 feet of any airport runway used for turbojet aircraft or 5,000 feet of any airport runway used by only piston type aircraft, shall operate in such a manner that the landfill does not increase or pose additional bird hazards to aircraft.

4. Sanitary landfills shall not dispose of the following wastes, except as specifically authorized by the landfill permit or by the department:

a. Free liquids.

(1) Bulk or noncontainerized liquid waste, unless:

(a) The waste is household waste; or

(b) The waste is gas condensate derived from that landfill;

(c) The waste is leachate derived from that landfill and the landfill is designed with a composite liner and leachate collection system as described in 9VAC20-81-130 J 1 a and 9VAC20-81-130 L; or

(2) Containers holding liquid waste, unless:

(a) The container is a small container similar in size to that normally found in household waste;

(b) The container is designed to hold liquids for use other than storage; or

(c) The waste is household waste.

b. Regulated hazardous wastes as defined by the Virginia Hazardous Waste Management Regulations (9VAC20-60).

c. Solid wastes, residues, or soils containing more than 1.0 ppb (parts per billion) TEF (dioxins).

d. Solid wastes, residues, or soils containing 50.0 ppm (parts per million) or more of PCB's except as allowed under the provisions of 9VAC20-81-630.

e. Sludges that have not been dewatered.

f. Contaminated soil unless approved by the department in accordance with the requirements of 9VAC20-81-610 or 9VAC20-81-660.

g. Regulated medical waste as specified in the Regulated Medical Waste Management Regulations (9VAC20-121).

5. Chloroflourocarbons, hydrochlorofluorocarbons, and PCBs must be removed from white goods prior to placement on the working face.

D. In addition to the standards in subsection B of this section, Construction/demolition/debris landfills shall also comply with the following:

1. Compaction and cover requirements.

a. Waste materials shall be compacted in shallow layers during the placement of disposal lifts to minimize differential settlement.

b. Compacted soil cover shall be applied as needed for safety and aesthetic purposes. A minimum one-foot thick progressive cover shall be maintained weekly such that the top of the lift is fully covered at the end of the work week. If the landfill accepts Category I or II nonfriable asbestos-containing material for disposal, daily soil cover shall be placed upon all exposed Category I or II nonfriable asbestos-containing material prior to the end of each operating day. The open working face of a landfill shall be kept as small as practicable, determined by the tipping demand for unloading.

c. When waste deposits have reached final elevations, or disposal activities are interrupted for 15 days or more, waste deposits shall receive a one-foot thick intermediate cover unless soil has already been applied in accordance with subdivision 1 b of this subsection and be graded to prevent ponding and to accelerate surface run-off.

d. Final cover construction will be initiated and maintained in accordance with the requirements of 9VAC20-81-160 D 2 when the following pertain:

(1) An additional lift of solid waste is not to be applied within one year, or a longer period as required by the facility's phased development.

(2) Any area of a landfill attains final elevation and within 90 days after such elevation is reached or longer if specified in the landfill's approved closure plan.

(3) An entire landfill's permit is terminated for any reason, and within 90 days of such denial or termination.

e. Vegetation shall be established and maintained on all exposed final cover material within four months after placement, or as specified by the department when seasonal conditions do not permit. Mowing will be conducted a minimum of once a year or at a frequency suitable for the vegetation and climate.

f. Areas where waste has been disposed that have not received waste within 30 days will not have slopes exceeding the final cover slopes specified in the permit or 33%.

2. Chloroflourocarbons, hydrochlorofluorocarbons, and PCBs must be removed from white goods prior to placement on the working face.

E. In addition to the standards in subsection B of this section, Industrial Landfills shall also comply with the following:

1. Compaction and cover requirements.

a. Unless provided otherwise in the permit, solid waste shall be spread and compacted at the working face, which shall be confined to the smallest area practicable.

b. Lift heights shall be sized according to the volume of waste received daily and the nature of the industrial waste. A lift height is not required for materials such as fly ash that are not compactable.

c. Where it is necessary for the specific waste, such as Category I or II nonfriable asbestos-containing material, daily soil cover, or other suitable material shall be placed upon all exposed solid waste prior to the end of each operating day. For wastes such as fly ash and bottom ash from burning of fossil fuels, periodic cover to minimize exposure to precipitation and control dust or dust control measures such as surface wetting or crusting agents shall be applied. At least three days of acceptable cover soil or approved material at the average usage rate shall be maintained at the fill at all times at facilities where daily cover is required unless an offsite supply is readily available on a daily basis.

d. Intermediate cover of at least one foot of compacted soil shall be applied whenever an additional lift of refuse is not to be applied within 30 days unless the owner or operator demonstrates to the satisfaction of the director that an alternate cover material or an alternate schedule will be protective of public health and the environment. In the case of facilities where fossil fuel combustion products are removed for beneficial use, intermediate cover must be applied in any area where ash has not been placed or removed for 30 days or more. Further, all areas with intermediate cover exposed shall be inspected as needed but not less than weekly and additional cover material shall be placed on all cracked, eroded, and uneven areas as required to maintain the integrity of the intermediate cover system.

e. Final cover construction will be initiated in accordance with the requirements of 9VAC20-81-160 D 2 when the following pertain:

(1) When an additional lift of solid waste is not to be applied within two years or a longer period as required by the facility's phased development.

(2) When any area of a landfill attains final elevation and within 90 days after such elevation is reached or longer if specified in the landfill's approved closure plan.

(3) When a landfill's permit is terminated within 90 days of such denial or termination.

f. Vegetation shall be established and maintained on all exposed final cover material within four months after placement, or as otherwise specified by the department when seasonal conditions do not otherwise permit. Mowing will be conducted a minimum of once a year or at a frequency suitable for the vegetation and climate.

2. Incinerator and air pollution control residues containing no free liquids shall be incorporated into the working face and covered at such intervals as necessary to minimize them from becoming airborne.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 4, eff. November 8, 2023.

9VAC20-81-160 Closure requirements

The closure of all sanitary, CDD and industrial landfills shall be governed by the standards set forth in this section.

A. Closure purpose. The owner or operator shall close the landfill in a manner that minimizes the need for further maintenance and provides for the protection of human health and the environment. Closure shall eliminate the postclosure escape of uncontrolled leachate or of waste decomposition products to the groundwater or surface water to the extent necessary to protect human health and the environment. Closure shall also control and/or minimize surface runoff and the escape of waste decomposition products to the atmosphere.

B. Closure plan and modification of plan.

1. The owner or operator of a solid waste disposal facility shall have a written closure plan. This plan shall identify the steps necessary to completely close the landfill at the time when the operation will be the most extensive and at the end of its intended life. The closure plan shall include, at least:

a. A schedule for final closure that shall include, as a minimum, the anticipated date when wastes will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates that will allow tracking of the progress of closure.

b. An estimate of waste disposed onsite over the active life of the landfill;

c. An estimate of the largest area ever requiring a final cover as required at any time during the active life;

d. Description of Final Cover System design in accordance with subsection D of this section;

e. Description of storm water management to include design, construction, and maintenance controls;

f. Closure cost estimate for purpose of financial assurance.

2. The owner or operator may amend the closure plan at any time during the active life of the landfill. The owner or operator shall so amend his plan any time changes in operating plans or landfill design affect the closure plan. The amended closure plan shall be placed in the operating record and a copy provided to the department.

3. Closure plans and amended closure plans not previously approved by the director shall be submitted to the department at least 180 days before the date the owner or operator expects to begin construction activities related to closure. The director will approve or disapprove the plan within 90 days of receipt.

4. If the owner or operator intends to use an alternate final cover design, he shall submit a proposed design meeting the requirements of subdivision D 2 f of this section to the department at least 180 days before the date he expects to begin closure. The department will approve or disapprove the plan within 90 days of receipt.

5. At least 180 days prior to beginning closure of each solid waste disposal unit, the owner or operator shall notify the department and the solid waste planning unit of the intent to close.

C. Time allowed for closure.

1. The owner or operator shall begin closure activities of each unit no later than 30 days after the date on which the unit receives the known final receipt of wastes or, if the unit has remaining capacity and there is a reasonable likelihood that the unit will receive additional wastes, no later than one year after the most recent receipt of wastes. Extensions beyond the one-year deadline for beginning closure may be granted by the director if the owner or operator demonstrates that the unit has the capacity to receive additional wastes and the owner or operator has taken and will continue to take all steps necessary to prevent threats to human health and the environment from the unclosed unit.

2. The owner or operator shall complete closure activities of each unit in accordance with the closure plan and within six months after receiving the final volume of wastes. The director may approve a longer closure period if the owner or operator can demonstrate that the required or planned closure activities will, of necessity, take longer than six months to complete; and that he has taken all steps to eliminate any significant threat to human health and the environment from the unclosed but inactive landfill.

D. Closure implementation.

1. The owner or operator shall close each unit with a final cover as specified in subdivision 2 of this subsection, grade the fill area to prevent ponding, and provide a suitable vegetative cover. Vegetation shall be deemed properly established when there are no large areas void of vegetation and it is sufficient to control erosion.

2. Final cover system.

a. The owner or operator shall install a final cover system that is designed to achieve the performance requirements of this section.

b. Owners or operators of CDD landfill units used for the disposal of wastes consisting only of stumps, wood, brush, and leaves from landclearing operations may apply two feet of compacted soil as final cover material in lieu of the final cover system specified in this section. The provisions of this section shall not be applicable to any landfill with respect to which the director has made a finding that continued operation of the landfill constitutes a threat to the public health or the environment.

c. The final cover system shall be designed and constructed to:

(1) Minimize infiltration through the closed disposal unit by the use of an infiltration layer that is constructed of at least 18 inches of earthen material; and which has a hydraulic conductivity less than or equal to the hydraulic conductivity of any bottom liner system or natural subsoils present, or a hydraulic conductivity no greater than 1x10^-5 cm/sec, whichever is less; and

(2) Minimize erosion of the final cover by the use of an erosion layer that contains a minimum of six inches of earthen material that is capable of sustaining native plant growth, and provide for protection of the infiltration layer from the effects of erosion, frost, and wind.

d. The owner or operator of a sanitary landfill may choose to use this alternate final cover system, which shall consist of at least the following components:

(1) An 18-inch soil infiltration layer with a hydraulic conductivity no greater than 1x10^-5 cm/sec or a geosynthetic clay liner installed over the intermediate cover;

(2) A barrier layer consisting of a geosynthetic membrane having a minimum thickness of 40-mils;

(3) A protective cover layer for protection of the infiltration layer from the effects of erosion, frost, and wind, and consisting of a minimum of 18 inches of soil; and

(4) A vegetative support layer that contains a minimum of six inches of earthen material that is capable of sustaining native plant growth.

e. The owner or operator of a CDD or industrial landfill may choose to use this alternate final cover system, which shall consist of at least the following components:

(1) A barrier layer consisting of a geosynthetic clay liner or a geosynthetic membrane having a minimum thickness of 40 mils;

(2) A protective cover layer for protection of the infiltration layer from the effects of erosion, frost, and wind, and consisting of a minimum of 18 inches of soil; and

(3) A vegetative support layer that contains a minimum of six inches of earthen material that is capable of sustaining native plant growth.

f. The director may approve an alternate final cover design that includes:

(1) An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in subdivision 2 c (1) of this subsection; and

(2) A minimum 24-inch erosion layer that is capable of sustaining native plant growth and provide for protection of the infiltration layer from the effects of erosion, frost, and wind.

3. Finished side slopes shall be stable and be configured to adequately control erosion and runoff. Slopes of 33% will be allowed provided that adequate runoff controls are established. Steeper slopes may be considered if supported by necessary stability calculations and appropriate erosion and runoff control features. All finished slopes and runoff management facilities shall be supported by necessary calculations and included in the design manual. To prevent ponding of water, the top slope shall be at least 2.0% after allowance for settlement.

4. Following construction of the final cover system for each unit, the owner or operator shall submit to the department a certification, signed by a professional engineer verifying that closure has been completed in accordance with the closure plan requirements of this part. This certification shall include the results of the CQA/QC requirements under 9VAC20-81-130 Q 1 b (6).

5. Following the closure of all units the owner or operator shall:

a. Post one sign at the entrance of the landfill notifying all persons of the closing, and the prohibition against further receipt of waste materials. Further, suitable barriers shall be installed at former accesses to prevent new waste from being deposited.

b. Within 90 days after closure is completed, submit to the local land recording authority a survey plat prepared by a professional land surveyor registered by the Commonwealth or a person qualified in accordance with Title 54.1 of the Code of Virginia indicating the location and dimensions of landfills. Groundwater monitoring well and landfill gas monitoring probe locations shall be included and identified by the number on the survey plat. The plat filed with the local land recording authority shall contain a note, prominently displayed, which states the owner's or operator's future obligation to restrict disturbance of the site as specified.

c. Record a notation on the deed to the landfill property, or on some other instrument which is normally examined during title searches, notifying any potential purchaser of the property that the land has been used to manage solid waste and its use is restricted under 9VAC20-81-170 A 2 c. A copy of the deed notation as recorded shall be submitted to the department.

d. Submit to the department a certification, signed by a professional engineer, verifying that closure has been completed in accordance with the requirements of subdivisions 5 a, b, and c of this subsection and the landfill closure plan.

6. The department shall inspect all solid waste management facilities at the time of closure to confirm that the closing is complete and adequate. It shall notify the owner or operator of a closed landfill, in writing, if the closure is satisfactory, and shall require any construction or such other steps necessary to bring unsatisfactory sites into compliance with these regulations. Notification by the department that the closure is satisfactory does not relieve the owner or operator of responsibility for corrective action to prevent or abate problems caused by the landfill.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-81-170 Post-closure care requirements

The postclosure of all sanitary, CDD, and industrial landfills shall be governed by the standards as set forth in this section.

A. Postclosure care requirements.

1. Following closure of the landfill, the owner or operator shall conduct postclosure care of the landfill. Postclosure care shall consist of at least the following:

a. Maintaining the integrity and effectiveness of any final cover, including making repairs to the cover as necessary to correct the effects of settlement, subsidence, erosion, or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cover;

b. Maintaining and operating the leachate collection system, as applicable, in accordance with the requirements in 9VAC20-81-210. The director may allow the owner or operator to stop managing leachate if the owner or operator demonstrates that leachate no longer poses a threat to human health and the environment;

c. Maintaining the groundwater monitoring system and monitoring the groundwater, as applicable, in accordance with the requirements in 9VAC20-81-250; and

d. Maintaining and operating the gas monitoring system, as applicable, in accordance with the requirements in 9VAC20-81-200.

2. The owner or operator shall prepare a written postclosure plan or review and revise the approved postclosure plan to insure that it includes, at a minimum, the following information:

a. A description of the monitoring and maintenance activities required in subdivision 1 of this subsection for the landfill, and the frequency at which these activities will be performed;

b. Name, address, and telephone number of the person or office to contact about the landfill during the postclosure period; and

c. A description of the planned uses of the property during the postclosure period. Postclosure use of the property shall not disturb the integrity of the final cover, liners, or any other components of the containment system, or the function of the monitoring systems unless necessary to comply with the requirements of this chapter. The director may approve any other disturbance if the owner or operator demonstrates that disturbance of the final cover, liner, or other component of the containment system, including any removal of waste, will not increase the potential threat to human health or the environment.

3. The owner or operator shall submit a postclosure care plan for review and approval by the department whenever a postclosure care plan has been prepared or amended. Those postclosure care plans that have been placed in a landfill's operating record must be reviewed and approved by the director prior to implementation.

B. Postclosure period.

1. Unless a landfill completes all provisions of 9VAC20-81-160 D, the department will not consider the landfill closed, and the beginning of the postclosure care period will be postponed until all provisions have been completed. The postclosure care period begins on the date of the certification signed by a professional engineer as required in 9VAC20-81-160 D 5 d.

2. The postclosure care shall be conducted:

a. For a minimum of 10 years for sanitary landfill facilities that ceased to accept wastes before October 9, 1993;

b. For a minimum of 30 years for sanitary landfill facilities that received wastes on or after October 9, 1993;

c. For a minimum of 10 years for CDD and industrial landfill facilities; or

d. As provided in subdivision 3 of this subsection.

3. The length of the postclosure care period may be decreased if the owner or operator demonstrates that the reduced period is equally protective of human health and the environment, the owner or operator submits a justifying demonstration, and the department approves this demonstration. The owner or operator shall submit this demonstration to the department for review and approval, and shall also include the following information:

a. A certification, signed by the owner or operator and a professional engineer, verifying that decreasing the postclosure care period will be equally protective of human health and the environment.

b. The certificate shall be accompanied by an evaluation, prepared by a professional engineer, assessing and evaluating the landfill's potential for increased risk to human health and the environment in the event that postclosure period is decreased.

4. The owner or operator will continue postclosure care and monitoring until such time that the department approves termination of the postclosure care and/or monitoring activity.

C. Postclosure care termination.

1. The owner or operator may submit a request for termination of any or all portions of postclosure care and monitoring following completion of the postclosure care period (as defined in subdivision B 2 of this section) for the landfill. The owner or operator shall demonstrate that termination of postclosure care and/or monitoring activity/activities shall be protective of human health and the environment. The owner or operator shall submit this demonstration for termination to the department for review and approval, and shall also include the following information:

a. A certification, signed by the owner or operator and a professional engineer, verifying that postclosure care has been completed in accordance with the postclosure plan.

b. The certificate shall be accompanied by an evaluation, prepared by a professional engineer or professional geologist, assessing and evaluating the landfill's potential for increased risk to human health and the environment in the event that postclosure monitoring and maintenance are discontinued.

2. If the department does not approve termination of the postclosure care and/or monitoring, the owner or operator shall continue postclosure monitoring and maintenance in accordance with the approved plan. Additionally, the owner or operator shall review and revise, as necessary, the postclosure plan for modifications necessary to meet the current regulatory requirements, and submit this revised plan to the department for review and approval.

D. Owner or operator postclosure plan review.

1. The owner or operator shall review and revise, as necessary, the postclosure care plan for modifications to meet the current regulatory requirements and reflect the current landfill conditions when:

a. The department does not approve the termination of all postclosure care monitoring and maintenance activities; or

b. The minimum postclosure period has been met, and there are ongoing corrective action measures per 9VAC20-81-260 for the landfill.

2. The owner or operator shall submit this revised plan to the department for review and approval, and shall continue postclosure monitoring and maintenance in accordance with the approved plan.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-200 Control of decomposition gases

Owners or operators of solid waste disposal facilities shall develop a gas management plan in accordance with this section. Venting and control of decomposition gases shall be implemented for sanitary and other landfillsin order to protect the landfill cap and prevent migration into structures or beyond the facility boundary, subject to exceptions at 9VAC20-81-130 K. The contents of the plan shall also reflect the requirements contained in 40 CFR 60.33c and 40 CFR 60.750, (Standards of performance for new and guidelines for control of existing municipal solid waste landfills) and 9VAC5-40-5800, as applicable.

A. General requirements.

1. To provide for the protection of public health and safety, and the environment, the operator shall ensure that decomposition gases generated at a landfill are controlled during the periods of operation, closure and postclosure care, in accordance with the following requirements:

a. The concentration of methane gas generated by the landfill shall not exceed 25% of the lower explosive limit (LEL) for methane in landfill structures (excluding gas control or recovery system components); and

b. The concentration of methane gas migrating from the landfill shall not exceed the lower explosive limit for methane at the facility boundary.

2. The program implemented pursuant to subsections B through E of this section shall continue throughout the active life of the landfill and the closure and postclosure care periods or until the operator receives written authorization by the department to discontinue. Authorization to cease gas monitoring and control shall be based on a demonstration by the operator that there is no potential for gas migration beyond the facility boundary or into landfill structures.

3. Gas monitoring and control systems shall be modified, during the closure and postclosure maintenance period, to reflect changing on-site and adjacent land uses. Postclosure land use at the site shall not interfere with the function of gas monitoring and control systems.

4. The operator may request a reduction of monitoring or control activities based upon the results of collected monitoring data. The request for reduction of monitoring or control activities shall be submitted in writing to the department.

B. The operator shall implement a gas monitoring program at the landfill in accordance with the following requirements:

1. The gas monitoring network shall be designed to ensure detection of the presence of decomposition gas migrating beyond the landfill facility boundary and into landfill structures.

2. The monitoring network shall be designed to account for the following specific site characteristics, and potential migration pathways or barriers, including, but not limited to:

a. Local soil and rock conditions;

b. Hydrogeological and hydraulic conditions surrounding the landfill;

c. Locations of buildings and structures relative to the waste deposit area;

d. Adjacent land use, and inhabitable structures within 1,000 feet of the landfill facility boundary;

e. Manmade pathways, such as underground construction; and

f. The nature and age of waste and its potential to generate decomposition gas.

3. Owners or operators of certain large sanitary landfills and landfills located in nonattainment areas may be required to perform additional monitoring as provided in 40 CFR 60.33c, 40 CFR 60.750, and 9VAC5-40-5800.

4. At a minimum, the gas monitoring frequency shall be quarterly. The department may require more frequent monitoring at locations where monitoring results indicate gas migration or gas accumulation in devices or structures designed to detect migrating gas.

C. Gas Remediation.

1. When the gas monitoring results indicate concentrations of methane in excess of the action levels, 25% of the lower explosive limit (LEL) for methane in landfill structures (excluding gas control or recovery system components) or 80% of the LEL for methane at the facility boundary, the operator shall:

a. Take all immediate steps necessary to protect public health and safety including those required by the contingency plan.

b. Notify the department in writing within five working days of learning that action levels have been exceeded, and indicate what has been done or is planned to be done to resolve the problem.

2. When the gas monitoring results indicate concentrations of methane in excess of the compliance levels, 25% of the LEL for methane in landfill structures (excluding gas control or recovery system components) or the LEL for methane at the facility boundary, the operator shall, within 60 days of detection, implement a remediation plan for the methane gas releases and submit it to the department for modification of the landfill permit. The plan shall describe the nature and extent of the problem and the proposed remedy. The plan shall include an implementation schedule specifying timeframes for implementing corrective actions, an evaluation of the effectiveness of such corrective actions, and milestones for proceeding in implementation of additional corrective actions, if necessary to reestablish compliance.

3. A gas remediation system shall:

a. Prevent methane accumulation in onsite structures.

b. Reduce methane concentrations at monitored facility boundaries to below compliance levels in the timeframes specified in the gas remediation plan.

c. Provide for the collection and treatment and/or disposal of decomposition gas condensate produced at the surface. Condensate generated from gas control systems may be recirculated into the landfill provided the landfill complies with the liner and leachate control systems requirements of this part. Condensate collected in condensate traps and drained by gravity into the waste mass will not be considered recirculation.

4. Extensive systems to control emissions of nonmethane organic compounds may be required under the Clean Air Act (40 CFR 60.33c and 40 CFR 60.750) and 9VAC5-40-5800. Facilities that are required to construct and operate systems designed to comply with those regulations will be considered to be in compliance with the requirements of subdivisions C 3 a and b of this subsection, unless monitoring data continues to indicate an exceedance of compliance levels. Gas control systems also may be subject to the Virginia Permits for Stationary Sources Program 9VAC5-80 or other state air pollution control regulations.

5. The landfill shall notify the department of an exceedance of the compliance level or unusual condition that may endanger human health and the environment in accordance with 9VAC20-81-530 C 3, such as when an active gas remediation system is no longer operating in such a manner as to maintain compliance with this section.

D. Odor management.

1. When an odor nuisance or hazard is created under normal operating conditions and upon notification from the department, the permittee shall, within 90 days, develop and implement an odor management plan to address odors that may impact citizens beyond the facility boundaries. The permittee shall place the plan in the operating record and a copy shall be submitted to the department for its records. Odor management plans developed in accordance with Virginia Air Regulations, 9VAC5-40-140, 9VAC5-50-140 or other state air pollution control regulations will suffice for the provisions of this subsection.

2. The plan shall identify a contact at the landfill that citizens can notify about odor concerns.

3. Facilities shall perform and document an annual review and update the odor management plan, as necessary, to address ongoing odor management issues.

E. Recordkeeping. The owner or operator shall keep the records of the results of gas monitoring and any gas remediation issues throughout the active life of the landfill and the postclosure care period. The records shall include:

1. The concentrations of the methane as measured at each probe and within each onsite structure;

2. The documentation of date, time, barometric pressure, atmospheric temperatures, general weather conditions, and probe pressures;

3. The names of sampling personnel, apparatus utilized, and a brief description of the methods used;

4. A numbering system to correlate monitoring results to a corresponding probe location; and

5. Monitoring and design records for any gas remediation or control system.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-210 Leachate control

A. Design plan. The design plan shall provide for leachate management. This design plan shall include the following:

1. An estimate of the quality and quantity of leachate to be produced annually by the facility. The estimate shall include the 30-day leachate volume and average flow rate of each month of the year. A separate estimate shall be submitted for anticipated leachate generation at the end of five year increments of operation for 20 years, or until closure, whichever date is earlier. For existing facilities, current leachate generation shall be included with this separate estimate.

2. The leachate collection system shall be designed and constructed to maintain less than a 30 cm depth of leachate over the liner, excluding manifold trenches and sumps.

3. Plans, designs, and cross sections for the proposed collection and handling system.

4. Plans, designs, and cross sections for onsite leachate storage or treatment systems, including system appurtenances for storage, pretreatment, or treatment of leachate from the facility.

B. Tanks and surface impoundments used for storage of leachate shall have a flow equalization and surge capacity at least equal to the maximum expected production of leachate for any seven-day period for the life of the facility estimated under subdivision A 1 of this section. Leachate storage capacity may not be considered to include leachate that may have collected in or on the liner system. Storage tanks and impoundments shall be aerated, as necessary, to prevent and control odors.

C. Surface impoundments used for storage of leachate shall be equipped with a liner system that shall provide equal or greater protection of human health and the environment than that provided by the liner of the landfill producing the leachate.

D. The collected leachate shall be:

1. Discharged directly or after pretreatment into a line leading to the publicly owned treatment works or other permitted wastewater treatment facility;

2. Transported by a vehicle to an offsite permitted wastewater treatment facility;

3. Recirculated within the landfill, provided that the irrigated area is underlain by a composite liner or other liner system approved by EPA or Research, Development, and Demonstration plan for recirculation, and that the operation causes no runoff, ponding, or nuisance odors;

4. Treated onsite and discharged into surface water when authorized under VPDES permit; or

5. Other methods of treatment or disposal as approved by the department.

E. The collected leachate shall not be discharged to an underground drain field.

F. Leachate seeps. If a leachate seep(s) occurs, the owner or operator shall repair the seep(s) and do the following:

1. Take all immediate steps necessary to protect public health and safety including those required by the contingency plan.

2. Take immediate action to minimize, control, or eliminate the seep, and to contain and properly manage the leachate at the source of the seep.

3. Any leachate released outside the lined area permitted for waste disposal shall be properly collected and disposed.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-250 Groundwater monitoring program

A. General requirements.

1. Applicability.

a. Existing landfills. Owners or operators of all existing landfills shall be in compliance with the groundwater monitoring requirements specified in this section, except as provided for in subdivision 1 c of this subsection. Owners or operators of landfills that were permitted prior to December 21, 1988, but were closed in accordance with the requirements of their permit or existing regulation prior to December 21, 1988, are not required to be in compliance with the groundwater monitoring requirements specified in this section, unless conditions are recognized that classify the landfill as an Open Dump as defined under 9VAC20-81-45.

b. New landfills. Owners or operators of new facilities shall be in compliance with the groundwater monitoring requirements specified in this section before waste can be placed in the landfill except as provided for in subdivision 1 c of this subsection.

c. No migration potential exemption. Groundwater monitoring requirements under this section may be suspended by the director if the owner or operator can demonstrate that there is no potential for migration of any Table 3.1 constituents to the uppermost aquifer during the active life and the postclosure care period of the landfill. This demonstration shall be certified by a qualified groundwater scientist and shall be based upon:

(1) Site-specific field collected measurements including sampling and analysis of physical, chemical, and biological processes affecting contaminant fate and transport; and

(2) Contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and the environment.

2. General requirements.

a. Purpose. Owners or operators shall install, operate, and maintain a groundwater monitoring system that is capable of determining the landfill's impact on the quality of groundwater in the uppermost aquifer at the disposal unit boundary during the active life and postclosure care period of the landfill.

b. Program requirements. The groundwater monitoring program shall meet the requirements of subdivision 3 of this subsection and comply with all other applicable requirements of this section.

c. Director authority. The groundwater monitoring and reporting requirements set forth here are minimum requirements. The director may require, by modifying the permit as allowed under 9VAC20-81-600 E, any owner or operator to install, operate, and maintain a groundwater monitoring system and conduct a monitoring program that contains requirements more stringent than this chapter imposes whenever it is determined that such requirements are necessary to protect human health and the environment.

3. Groundwater monitoring system.

a. System requirements. A groundwater monitoring system shall be installed consisting of a sufficient number of monitoring wells, at appropriate locations and depths, capable of yielding sufficient quantities of groundwater for sampling and analysis purposes from the uppermost aquifer that:

(1) Represent the quality of background groundwater that has not been affected by a release from the landfill; and

(2) Represent the quality of groundwater at the disposal unit boundary. The downgradient monitoring system shall be installed at the disposal unit boundary in a manner that ensures detection of groundwater contamination in the uppermost aquifer unless a variance has been granted by the director under 9VAC20-81-740.

(3) When physical obstacles preclude installation of groundwater monitoring wells at the disposal unit boundary, the downgradient monitoring wells may be installed at the closest practicable distance hydraulically downgradient from the boundary in locations that ensure detection of groundwater contamination in the uppermost aquifer.

b. Multiunit systems. The director may approve a groundwater monitoring system that covers multiple waste disposal units instead of requiring separate groundwater monitoring systems for each unit when the landfill has several units, provided the multiunit groundwater monitoring system meets the requirement of subdivision 3 of this subsection and can be demonstrated to be equally protective of human health and the environment as individual monitoring systems. The system for each waste disposal unit would be based on the following factors:

(1) Number, spacing, and orientation of the waste disposal units;

(2) Hydrogeologic setting;

(3) Site history;

(4) Engineering design of the waste disposal units; and

(5) Type of waste accepted at the waste disposal units.

c. Well construction. All monitoring wells shall be of a size adequate for sampling and shall be cased and grouted in a manner that maintains the integrity of the monitoring well bore hole. This casing shall be screened or perforated, and packed with gravel or sand where necessary, to enable sample collection at depths where appropriate aquifer flow zones exist. The annular space above the sampling depth shall be sealed with a suitable material to prevent contamination of samples and the groundwater.

d. Boring logs. A log shall be made of each newly installed monitoring well describing the soils or rock encountered, and the hydraulic conductivity of the geologic units (formations) encountered. A copy of the final log(s) with appropriate maps, including at a minimum a site plan showing the location of all monitoring wells, the total depth of monitoring well, the location of the screened interval, the top and bottom of sand or gravel pack, and the top and bottom of the seal shall be sent to the department with the certification required under subdivision 3 g of this subsection.

e. Well maintenance. The monitoring wells, piezometers, and other groundwater measurement, sampling, and analytical devices shall be operated and maintained in a manner that allows them to perform to design specifications throughout the duration of the groundwater monitoring program. Nonfunctioning monitoring wells must be replaced or repaired upon recognition of damage or nonperformance. Well repair or replacement shall be coordinated with the department prior to initiating the action.

f. Network specifics. The network shall include at least one upgradient monitoring well and at least three downgradient monitoring wells. The number, spacing, and depths of monitoring wells included in a landfill's network shall be determined based on:

(1) Site-specific technical information that shall include thorough characterization by the owner or operator of:

(a) The thickness of any unsaturated geologic units or fill materials that may overlay the uppermost aquifer;

(b) The thickness and description of materials comprising the uppermost aquifer;

(c) Materials comprising the confining unit defining the lower boundary of the uppermost aquifer, including, but not limited to, thicknesses, stratigraphy, lithology, hydraulic conductivities, porosities, and effective porosities; and

(d) The calculated groundwater flow rate and direction within the uppermost aquifer including any seasonal and temporal fluctuations in groundwater flow.

(2) The lateral spacing between downgradient monitoring wells based on site-specific information supplied under subdivision 3 f (1) of this subsection.

g. Monitoring well certification. The groundwater monitoring well(s) shall, within 30 days of well(s) installation, be certified by a qualified groundwater scientist noting that all wells have been installed in accordance with the documentation submitted under subdivision 3 d of this subsection. Within 14 days of completing this certification, the owner or operator shall transmit the certification to the department.

4. The groundwater sampling and analysis requirements for the groundwater monitoring system are as follows:

a. Quality assurance and control. The groundwater monitoring program shall include consistent field sampling and laboratory analysis procedures that are designed to ensure monitoring results that provide an accurate representation of the groundwater quality at the background and downgradient wells. At a minimum the program shall include procedures and techniques for:

(1) Sample collection;

(2) Sample preservation and shipment;

(3) Analytical procedures;

(4) Chain of custody control; and

(5) Quality assurance and quality control.

b. Analytical methods. The groundwater monitoring program shall include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measure solid waste constituents in groundwater samples. Groundwater samples obtained pursuant to 9VAC20-81-250 B or C shall not be filtered prior to laboratory analysis. The sampling, analysis and quality control/quality assurance methods set forth in EPA document SW-846, as amended, shall be used. The department may require re-sampling if it believes the samples were not properly sampled or analyzed.

c. Groundwater rate and flow. Groundwater elevations at each monitoring well shall be determined immediately prior to purging each time a sample is obtained. The owner or operator shall determine the rate and direction of groundwater flow each time groundwater is sampled pursuant to subsection B or C of this section or 9VAC20-81-260. Groundwater elevations in wells that monitor the same waste disposal unit or units shall be measured within a period of time short enough to avoid temporal variations, which could preclude accurate determination of groundwater flow rate and direction.

d. Background data. The owner or operator shall establish background groundwater quality in a hydraulically upgradient or background well, or wells, for each of the monitoring parameters or constituents required in the particular groundwater monitoring program that applies to the landfill. Background groundwater quality may be established at wells that are not located hydraulically upgradient from the landfill if they meet the requirements of subdivision 4 e of this subsection.

e. Alternate well provision. A determination of background quality may be based on sampling of wells that are not upgradient from the waste disposal unit or units where:

(1) Hydrogeologic conditions do not allow the owner or operator to determine what wells are upgradient; and

(2) Sampling at these wells will provide an indication of background groundwater quality that is as representative or more representative than that provided by the upgradient wells.

f. Sampling and statistics. The number of samples collected to establish groundwater quality data shall be consistent with the appropriate statistical procedures determined pursuant to subdivision 4 g of this subsection.

g. Statistical methods. The owner or operator shall specify in the Groundwater Monitoring Plan the statistical method(s) listed in subsection D of this section that will be used in evaluating groundwater monitoring data for each monitoring constituent. The statistical test(s) chosen shall be applied separately for each groundwater constituent in each well after each individual sampling event required under subdivision B 2 or 3, C 2 or 3, or as required under 9VAC20-81-260 E 1.

h. Evaluation and response. After each sampling event required under subsection B or C of this section, the owner or operator shall determine whether or not there is a statistically significant increase over background values for each groundwater constituent required in the particular groundwater monitoring program by comparing the groundwater quality of each constituent at each monitoring well installed pursuant to subdivision 3 a of this subsection to the background value of that constituent. In determining whether a statistically significant increase has occurred, the owner or operator shall:

(1) Ensure the sampling result comparisons are made according to the statistical procedures and performance standards specified in subsection D of this section;

(2) Ensure that within 30 days of completion of sampling and laboratory analysis actions, the determination of whether there has been a statistically significant increase over background at each monitoring well has been completed; and

(3) If identified, the statistically significant increase shall be reported to the department within the notification timeframes identified in subsection B or C of this section and discussed in the quarterly or semi-annual report submission described under subdivision E 2 c of this section. Notifications qualified as being "preliminary," "suspect," "unverified," or otherwise not a final determination of a statistical exceedance will not be accepted.

i. Verification sampling. The owner or operator may at any time within the 30-day statistically significant increases determination period defined under subdivision A 4 h (2) of this section, obtain verification samples if the initial review of analytical data suggests results that might not be an accurate reflection of groundwater quality at the disposal unit boundary. Undertaking verification sampling is a voluntary action on the part of the owner or operator and shall not alter the timeframes associated with determining or reporting a statistically significant increase as otherwise defined under subdivision A 4 h (2), B 2 or 3, or C 2 or 3 of this section.

j. Data validation. The owner or operator may at any time within the 30-day statistically significant increases determination period defined under subdivision A 4 h (2) of this subsection, undertake third-party data validation of the analytical data received from the laboratory. Undertaking such validation efforts is a voluntary action on the part of the owner or operator and shall not alter the timeframes associated with determining or reporting a statistically significant increase as otherwise defined under subdivision A 4 h (2), B 2 or 3, or C 2 or 3 of this section.

5. Alternate source demonstration allowance.

a. Allowance. As a result of any statistically significant increase identified while monitoring groundwater under subdivision B 2 or 3, or C 2 or 3 of this section, or at anytime within the Corrective Action process under 9VAC20-81-260, the owner or operator has the option of submitting an Alternate Source Demonstration report, certified by a qualified groundwater scientist, demonstrating:

(1) A source other than the landfill caused the statistical exceedance;

(2) The exceedance resulted from error in sampling, analysis, or evaluation; or

(3) The exceedance resulted from a natural variation in groundwater quality.

b. Timeframes. A successful demonstration must be made within 90 days of noting a statistically significant increase. The director may approve a longer timeframe for submittal and approval of the Alternate Source Demonstration with appropriate justification.

c. Evaluation and response. Based on the information submitted in accordance with subdivision 5 a of this subsection, the director will:

(1) In the case of the successful demonstration of an error in sampling, analysis, or evaluation, allow the owner or operator to continue monitoring groundwater in accordance with the monitoring program in place at the time of the statistical exceedance.

(2) In the case of a successful demonstration of an alternate source for the release or natural variability in the aquifer matrix:

(a) Require changes in the groundwater monitoring system as needed to accurately reflect the groundwater conditions and allow the owner or operator to continue monitoring groundwater in accordance with the monitoring program in place at the time of the statistical exceedance;

(b) Require any changes to the monitoring system be completed prior to the next regularly scheduled groundwater monitoring event or within 90 days (whichever is greater); and

(c) Require any changes to the monitoring system be approved via the modification process under 9VAC20-81-600 within 90 days of the approval of the alternate source demonstration.

(3) In the case of an unsuccessful Alternate Source Demonstration, require the owner or operator to initiate the actions that would otherwise be required as a result of the statistically significant increase noted under subdivision B 2 or 3, or C 2 or 3 of this section as appropriate.

6. Establishment of groundwater protection standards.

a. Requirement. Upon recognition of a statistically significant increase over background and while monitoring in the Assessment or Phase II monitoring programs defined under subdivision B 3 or C 3 of this section, the owner or operator shall propose a groundwater protection standard for all detected Table 3.1 Column B constituents. The proposed standards shall be submitted to the department by a qualified groundwater scientist and be accompanied by relevant historical groundwater sampling data to justify the proposed concentration levels.

b. Establishment process. The groundwater protection standards shall be established in the following manner:

(1) For constituents for which a maximum contaminant level (MCL) has been promulgated under § 1412 of the Safe Drinking Water Act (40 CFR Part 141), the MCL for that constituent shall be automatically established as the groundwater protection standard upon submission of the proposed standards.

(2) If the owner or operator determines that a site-specific background concentration is greater than the MCL associated with that constituent under subdivision 6 b (1) of this subsection, the background value may be substituted for use as the groundwater protection standard in lieu of the MCL for that constituent upon receiving written department approval.

(3) For constituents for which no MCL has been promulgated, site-specific background concentration value(s) may be used upon receiving written department approval.

(4) For constituents for which no MCL has been promulgated, a risk-based alternate concentration levels may be used if approved by the director as long as:

(a) The owner or operator submits a request to the department asking for approval to use risk-based alternate concentration levels for a specific list of constituents and identifies that these constituents lack an MCL. In the request the owner or operator shall specify whether site-specific, independently calculated, risk-based alternate concentration levels will be applied, or if the facility will accept the default department-provided limits.

(b) The alternate concentration levels that may be provided as default values by the department and those independently calculated by the owner or operator are demonstrated to meet the following criteria or factors before they can be used as groundwater protection standards:

(i) Groundwater quality - The potential for adverse quality effects considering the physical and chemical characteristics of the waste in the landfill, its potential for migration in the aquifer; the hydrogeological characteristics of the facility and surrounding land; the rate and direction of groundwater flow; the proximity and withdrawal rates of groundwater users; the current and future uses of groundwater in the area; the existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater quality.

(ii) Human exposure - Potential for health risks caused by exposure to waste constituents released from the landfill using federal guidelines for assessing the health risks of environmental pollutants; scientifically valid studies conducted in accordance with the Toxic Substances Control Act Good Laboratory Practice Standards (40 CFR Part 792); or equivalent standards. For carcinogens, the alternate concentration levels must be set based on a lifetime cancer risk level due to continuous lifetime exposure within the 1x10^-4 to 1x10^-6 range. For systemic toxicants, alternate concentration levels must be demonstrated to be levels to which the human population (including sensitive subgroups) could be exposed to on a daily basis without the likelihood of appreciable risk of deleterious effects during a lifetime.

(iii) Surface water - The potential adverse effect on hydraulically connected surface water quality based on the volume, physical and chemical characteristics of the waste in the landfill; the hydrogeological characteristics of the facility and surrounding land; the rate and direction of groundwater flow; the patterns of rainfall in the region; the proximity of the landfill to surface waters; the current and future uses of surface waters in the area and any water quality standards established for those surface waters; the existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality.

(iv) Other adverse effects - Potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; the persistence and permanence of the potential adverse effects; and the potential for health risks caused by human exposure to waste constituents using factors shown in subdivision b (4) (b) (ii) of this subsection.

(5) In making any determination regarding the use of alternate concentration levels under this section, the director will:

(a) Consider any identification of underground sources of drinking water as identified by EPA under 40 CFR 144.7,

(b) Consider additional or modified monitoring requirements or control measures,

(c) Include a schedule for the periodic review of the alternate concentration levels, or

(d) Approve the alternate concentration levels as proposed or issue modified alternate concentration levels.

c. Implementation. Groundwater protection standards shall be considered established for the facility upon completion of the actions described under either subdivision A 6 b (1), (2), (3) or if necessary (4) and shall be placed in the facility Operating Record and shall be used during subsequent comparisons of groundwater sampling data consistent with the requirements of subdivision B 3 f or C 3 e of this section.

d. MCL and background revisions. After establishment of groundwater protection standards under subdivision B 6 b, if the standards are modified as a result of revisions to any MCL or department-approved background, the facility shall update its listing of groundwater protection standards and shall place the new list in the Operating Record and shall use the new values during subsequent comparisons of sampling data consistent with the requirements of subdivision B 3 f or C 3 e of this section.

e. Alternate concentration levels revisions. After establishment of groundwater protection standards under subdivision B 6 b of this section, if the department-approved alternate concentration levels change based on information released by EPA, to the extent practical, the department will issue revisions to the alternate concentration levels for facility use no more often than an annual basis. The facility shall use the alternate concentration levels listing in effect at the time the sampling event takes place when comparing the results against the groundwater protection standards under subdivision B 3 f or C 3 e of this section.

B. Monitoring for sanitary landfills.

1. Applicability.

a. Existing facilities. Except for those sanitary landfills identified in subdivision C 1 of this section, existing sanitary landfill facilities and closed facilities that have accepted waste on or after October 9, 1993, and in the case of 'small' landfills on or after April 9, 1994, shall be in compliance with the detection monitoring requirements specified in subdivision 2 of this subsection unless existing sampling data requires a move to assessment monitoring described under subdivision 3 of this subsection.

b. New facilities. Facilities placed in operation to receive waste after October 9, 1993, shall be in compliance with the detection monitoring requirements specified in subdivision 2 of this section before waste can be placed in the landfill unless existing sampling data requires a move to assessment monitoring described under subdivision 3 of this subsection.

c. Closed facilities. Unless an extension to the deadline above has been granted by the director, closed facilities that have ceased to accept any waste on or before October 9, 1993, and in the case of a "small" landfill, before April 9, 1994, may comply with the "State Monitoring Program" monitoring requirements specified in subdivision C 2 or 3 of this section.

d. Other facilities. Owners or operators of disposal facilities not subject to the federal groundwater monitoring requirements prescribed under 40 CFR Parts 257 and 258 must perform the groundwater monitoring described in subdivision C 2 or 3 of this section.

e. Proximity to wetlands. Owners or operators of sanitary landfills that accepted waste after June 30, 1999, must:

(1) Perform quarterly groundwater monitoring unless the director determines that less frequent monitoring is necessary consistent with the requirements of the special provisions regarding wetlands in § 10.1-1408.5 of the Code of Virginia.

(2) The quarterly monitoring frequency shall remain in effect until the department is notified waste is no longer being accepted at the sanitary landfill.

(3) This requirement will not limit the authority of the Waste Management Board or the director to require more frequent groundwater monitoring if required to protect human health and the environment.

(4) For purposes of this subdivision "proximity to wetlands" shall be defined as landfills that were constructed on a wetland, have a potential hydrologic connection to such a wetland in the event of an escape of liquids from the facility, or are within a mile of such a wetland.

2. Detection monitoring program.

a. Sampling requirements. All sanitary landfills shall implement detection monitoring except as otherwise provided in subdivision 1 of this subsection. The monitoring frequency for all constituents listed in Table 3.1 Column A shall be as follows:

(1) Initial sampling period.

(a) For facilities that monitor groundwater on a semi-annual basis, a minimum of four independent samples from each well (background and downgradient) shall be collected and analyzed for the Table 3.1 Column A constituents during the first semi-annual sampling period. A semi-annual period is defined under 9VAC20-81-10.

(b) For facilities that monitor groundwater on a quarterly basis as a result of subdivision 1 e of this subsection, a minimum of four samples from each well (background and downgradient) shall be collected and analyzed for the Table 3.1 Column A constituents. The samples shall be collected within the first quarterly period, using a schedule that ensures, to the greatest extent possible, an accurate calculation of background concentrations.

(2) Subsequent sampling events. At least one sample from each well (background and downgradient) shall be collected and analyzed during subsequent semi-annual or quarterly events during the active life and postclosure period. Data from subsequent background sampling events may be added to the previously calculated background data so that the facility maintains the most accurate representation of background groundwater quality with which to carry out statistical analysis required under subdivision A 4 h of this section.

(3) Alternate sampling events. The director may specify an appropriate alternate frequency for repeated sampling and analysis during the active life (including closure) and the postclosure care period. The alternate frequency during the active life (including closure) and the postclosure period shall be no less than annual. The alternate frequency shall be based on consideration of the following factors:

(a) Lithology of the aquifer and unsaturated zone;

(b) Hydraulic conductivity of the aquifer and unsaturated zone;

(c) Groundwater flow rates;

(d) Minimum distance between upgradient edge of the disposal unit boundary and downgradient monitoring well screen (minimum distance of travel); and

(e) Resource value of the aquifer.

b. Evaluation and response. If the owner or operator determines under subdivision A 4 h of this section, that there is:

(1) A statistically significant increase over background as determined by a method meeting the requirements of subsection D of this section, for one or more of the constituents listed in Table 3.1 Column A at any of the monitoring wells at the disposal unit boundary during any detection monitoring sampling event, the owner or operator shall:

(a) Within 14 days of this finding, notify the department of this fact, indicating which constituents have shown statistically significant increases over background levels; and

(b) Within 90 days, (i) establish an assessment monitoring program meeting the requirements of subdivision 3 of this subsection, or (ii) submit an Alternate Source Demonstration as specified in subdivision A 5 of this section. If, after 90 days, a successful demonstration has not been made, the owner or operator shall initiate an assessment monitoring program as otherwise required in subdivision 3 of this subsection. The 90-day Alternate Source Demonstration period may be extended by the director for good cause.

(2) No statistically significant increase over background as determined by a method meeting the requirements of subsection D of this section, for any of the constituents listed in Table 3.1 Column A at any of the monitoring wells at the disposal unit boundary during any detection monitoring sampling event; the owner or operator may remain in detection monitoring and include a discussion of the sampling results and statistical analysis in the semi-annual or quarterly report required under subdivision E 2 c of this section.

3. Assessment monitoring program. The owner or operator shall implement the assessment monitoring program whenever a statistically significant increase over background has been detected during monitoring conducted under the detection monitoring program.

a. Sampling requirements. Within 90 days of recognizing a statistically significant increase over background for one or more of the constituents listed in Table 3.1 Column A, the owner or operator shall, unless in receipt of an approval to an Alternate Source Demonstration under subdivision A 5 of this section or a director-approved extension, conduct the initial assessment monitoring sampling event for the constituents found in Table 3.1 Column B. A minimum of one sample from each well installed under subdivision A 3 a of this section shall be collected and analyzed during the initial and all subsequent annual Table 3.1 Column B sampling events.

b. Director provisions:

(1) The owner or operator may request that the director approve an appropriate subset of monitoring wells that may remain in detection monitoring defined under subdivision 2 of this subsection, based on the results of the initial, or subsequent annual Table 3.1 Column B sampling events. Monitoring wells may be considered for the subset if:

(a) They show no detections of Table 3.1 Column B constituents other than those already previously detected in detection monitoring defined under subdivision 2 of this subsection; and

(b) They display no statistically significant increases over background for any constituents on the Table 3.1 Column A list. If an increase is subsequently recognized in a well approved for the subset, the well shall no longer be considered part of the detection monitoring subset.

(2) The owner or operator may request the director delete any of the Table 3.1 Column B monitoring constituents from the assessment monitoring program if the owner or operator demonstrates that the deleted constituents are not reasonably expected to be in or derived from the waste.

(3) The director may specify an appropriate alternate frequency for repeated sampling and analysis for the full set of Table 3.1 Column B constituents required by subdivision 3 a of this subsection during the active life and postclosure care period based on the consideration of the following factors:

(a) Lithology of the aquifer and unsaturated zone;

(b) Hydraulic conductivity of the aquifer and unsaturated zone;

(c) Groundwater flow rates;

(d) Minimum distance between upgradient edge of the disposal unit boundary and downgradient monitoring well screen (minimum distance of travel);

(e) Resource value of the aquifer; and

(f) Nature (fate and transport) of any constituents detected in response to subdivision 3 f of this subsection.

c. Development of background. After obtaining the results from the initial or subsequent annual sampling events required in subdivision 3 a of this subsection, the owner or operator shall:

(1) Within 14 days, notify the department identifying the Table 3.1 Column B constituents that have been detected;

(2) Within 90 days, and on at least a semi-annual basis thereafter, resample all wells installed under subdivision A 3 a of this section, conduct analyses for all constituents in Table 3.1 Column A as well as those constituents in Column B that are detected in response to subdivision 3 a of this subsection and subsequent Table 3.1 Column B sampling events as may be required of this section, and report this data in the semi-annual or quarterly report defined under subdivision E 2 c of this section;

(3) Within 180 days of the initial sampling event, establish background concentrations for any Table 3.1 Column B constituents detected pursuant to subdivision B 3 a of this subsection. A minimum of four independent samples from each well (background and downgradient) shall be collected and analyzed to establish background for the detected constituents.

d. Establishment of groundwater protection standards. Within 30 days of establishing background under subdivision 3 c (3) of this subsection, submit proposed groundwater protection standards for all constituents detected under Assessment monitoring. The groundwater protection standards shall be approved by the director in accordance with the provisions of subdivision A 6 of this section.

e. Groundwater monitoring plan. No later than 60 days after approval of the groundwater protection standards in accordance with subdivision A 6 of this section, the owner or operator shall submit an updated Groundwater Monitoring Plan that details the site monitoring well network and sampling and analysis procedures undertaken during groundwater monitoring events. The owner or operator shall additionally:

(1) No later than 30 days after the submission of the Groundwater Monitoring Plan, request a permit modification to incorporate the plan and related groundwater monitoring modules into the landfill's permit in accordance with 9VAC20-81-600. The department may waive the requirement for a permit modification if the Groundwater Monitoring Plan included in the landfill's permit reflects current site conditions in accordance with the regulations.

(2) If the 30-day timeframe specified in subdivision 3 e (1) of this subsection is exceeded, the director will modify the permit in accordance with 9VAC20-81-600 E.

f. Evaluation and response.

(1) If the concentrations of all Table 3.1 Column B constituents are shown to be at or below background values, using the statistical procedures in subsection D of this section, for two consecutive Table 3.1 Column B sampling events, the owner or operator shall notify the director of this finding in the semi-annual or quarterly monitoring report and may return to detection monitoring defined under subdivision 2 of this subsection.

(2) If the concentrations of any Table 3.1 Column B constituents are found to be above background values, but below the groundwater protection standards established under subdivision A 6 of this section using the statistical procedures in subsection D of this section, the owner or operator shall continue in assessment monitoring in accordance with this section and present the findings to the department in the semi-annual or quarterly report.

(3) If one or more Table 3.1 Column B constituents are detected at statistically significant levels above the groundwater protection standard established under subdivision A 6 of this section using the statistical procedures in subsection D of this section, the owner or operator shall:

(a) Within 14 days of this finding, notify the department identifying the Table 3.1 Column B constituents that have exceeded the groundwater protection standard. The notification will include a statement that within 90 days the owner or operator will either:

(i) Undertake characterization and assessment actions required under 9VAC20-81-260 C 1; or

(ii) Submit an Alternate Source Demonstration as specified in subdivision A 5 of this section. If a successful demonstration is made within 90 days, the owner or operator may continue monitoring in accordance with the assessment monitoring program pursuant to subdivision 3 of this subsection. If the 90-day period passes without demonstration approval, the owner or operator shall comply with the actions under 9VAC20-81-260 C within the timeframes specified unless the director has granted an extension to those timeframes.

(b) Describe the results in the semi-annual or quarterly report.

C. Monitoring for CDD, industrial, and State Monitoring Program sanitary landfills.

1. Applicability.

a. Sanitary landfills. Owners or operators of sanitary disposal facilities that have ceased to accept solid waste prior to the federally imposed deadline of October 9, 1993, or in the case of a "small landfill" before April 9, 1994, are eligible, with the director's approval, to conduct the state groundwater monitoring program described in this section in lieu of the groundwater monitoring program required under subdivision B 2 or 3 of this section.

b. CDD and industrial landfills. Owners or operators of CDD and industrial landfills not subject to the federal groundwater monitoring requirements prescribed under 40 CFR Parts 257 and 258 shall perform the groundwater monitoring described in this section.

c. Other landfills. All other landfills excluding sanitary landfills, including those that accepted hazardous waste from very small quantity generators after July 1, 1998, shall perform the groundwater monitoring described in this section.

2. First determination monitoring program.

a. Sampling requirements. A first determination monitoring program shall consist of a background-establishing period followed by semi-annual sampling and analysis for the constituents shown in Table 3.1 Column A at all wells installed under subdivision A 3 a of this section. Within 14 days of each event during first determination monitoring, notify the department identifying the Table 3.1 Column A constituents that have been detected.

b. Development of background. Within 360 days of the initial first determination sampling event:

(1) Establish background concentrations for any constituents detected pursuant to subdivision 2 a of this subsection.

(a) A minimum of four independent samples from each well (background and downgradient) shall be collected and analyzed to establish background concentrations for the detected constituents using the procedures in subsection D of this section.

(b) In those cases where new wells are installed downgradient of waste disposal units that already have received waste, but these wells have not yet undergone their initial sampling event, collection of four independent samples for background development will not be required.

(2) Within 30 days of completing the background calculations required under subdivision 2 b (1) (a) of this subsection, submit a first determination report, signed by a qualified groundwater scientist, to the department which must include a summary of the background concentration data developed during the background sampling efforts as well as the statistical calculations for each constituent detected in the groundwater during the background sampling events.

c. Semi-annual sampling and analysis. Within 90 days of the last sampling event during the background-establishing period and at least semi-annually thereafter, sample each monitoring well in the compliance network for analysis of the constituents in Table 3.1 Column A.

d. Evaluation and response. Upon determination of site background under subdivision 2 b (1) (a) of this subsection, the results of all subsequent first determination monitoring events shall be assessed as follows:

(1) If no Table 3.1 Column A constituents are found to have entered the groundwater at statistically significant levels over background, the owner or operator shall:

(a) Remain in first determination monitoring; and

(b) May request the director delete any Table 3.1 Column A constituents from the semi-annual sampling list if the owner or operator demonstrates that the proposed deleted constituents are not reasonably expected to be in or derived from the waste.

(2) If the owner or operator recognizes a statistically significant increase over background for any Table 3.1 Column A constituent, within 14 days of this finding, the owner or operator shall notify the department identifying the Table 3.1 Column A constituents that have exceeded background levels. The notification will include a statement that within 90 days the owner or operator shall:

(a) Initiate a Phase II sampling program; or

(b) Submit an Alternate Source Demonstration under subdivision A 5 of this section.

(3) If a successful demonstration is made and approved within the timeframes established under subdivision A 5 of this section, the owner or operator may remain in First Determination monitoring.

(4) If a successful demonstration is not made and approved within the timeframes established under subdivision A 5 of this section, the owner or operator shall initiate Phase II monitoring in accordance with the timeframes in subdivision C 3 of this section. The director may approve a longer timeframe with appropriate justification.

3. Phase II monitoring.

a. Sampling requirements. The owner or operator shall:

(1) Within 90 days of noting the exceedance over background determined under subdivision C 2 d of this section, sample the groundwater in all monitoring wells installed under subdivision A 3 a of this section for all Table 3.1 Column B constituents;

(2) After completing the initial Phase II sampling event, continue to sample and analyze groundwater on a semi-annual basis within the Phase II monitoring program;

b. Background development. If no additional Table 3.1 Column B constituents are detected other than those previously detected under Column A, which already have established their background levels, the owner or operator shall follow the requirements under subdivision 3 c of this subsection regarding groundwater protection standard establishment while continuing to sample for the Table 3.1 Column A list on a semi-annual basis. If one or more additional Table 3.1 Column B constituents are detected during the initial Phase II sampling event:

(1) Within 360 days, establish a background value for each additional detected Table 3.1 Column B constituent.

(2) Submit a Phase II Background report within 30 days of completing the background calculations including a summary of the background concentration data for each constituent detected in the groundwater during the Table 3.1 Column B background sampling events.

(3) If any detected Table 3.1 Column B constituent is subsequently not detected for a period of two years, the owner or operator may petition the director to delete the constituent from the list of detected Table 3.1 Column B constituents that must be sampled semi-annually.

c. Establishment of groundwater protection standards. No later than:

(1) Thirty days after submitting the Phase II Background report required under the provisions of subdivision 3 b (2) of this subsection, or within 30 days of obtaining the results from the initial Table 3.1 Column B sampling event indicating no further sampling for background determination is necessary, the owner or operator shall propose a groundwater protection standard for all detected Table 3.1 constituents.

(2) The groundwater protection standard proposed shall be established in a manner consistent with the provisions in subdivision A 6 of this section.

d. Groundwater monitoring plan. No later than 60 days after establishment of groundwater protection standards in accordance with subdivision A 6 of this section, the owner or operator shall submit an updated Groundwater Monitoring Plan that details the site monitoring well network and sampling and analysis procedures undertaken during groundwater monitoring events. The department may waive the requirement for an updated plan if the Groundwater Monitoring Plan included in the landfill's permit reflects current site conditions in accordance with the regulations.

(1) No later than 30 days after the submission of the Groundwater Monitoring Plan, the owner or operator shall request a permit modification to incorporate the updated plan and related groundwater monitoring modules into the landfill's permit in accordance with 9VAC20-81-600.

(2) If the 30-day timeframe specified in subdivision 3 d (1) of this subsection is exceeded, the director will modify the permit in accordance with 9VAC20-81-600 E.

e. Evaluation and response. After each subsequent Phase II monitoring event following establishment of groundwater protection standards, the concentration of Table 3.1 Column B constituents found in the groundwater at each monitoring well installed pursuant to subdivision A 3 a of this section will be evaluated against the groundwater protection standards. The evaluation will be presented to the department in a semi-annual Phase II report. The evaluation will be as follows:

(1) If all Table 3.1 constituents are shown to be at or below background values, using the statistical procedures in subsection D of this section, for two consecutive Table 3.1 Column B sampling events, the owner or operator shall notify the director of this finding in the semi-annual report and may return to first determination monitoring;

(2) If any Table 3.1 Column B constituents are found to be above background values, but are below the established groundwater protection standard using the statistical procedures in subsection D of this section, the owner or operator shall continue semi-annual Phase II monitoring and present the findings in a semi-annual report;

(3) If one or more Table 3.1 Column B constituents are above the established groundwater protection standard using the statistical procedures in subsection D of this section, the owner or operator shall:

(a) Notify the department within 14 days of this finding. The notification will include a statement that within 90 days the owner or operator will either: (i) undertake the characterization and assessment actions required under 9VAC20-81-260 C 1; or (ii) submit an alternate source demonstration as specified in subdivision A 5 of this section. If a successful demonstration is made within 90 days, the owner or operator may continue monitoring in accordance with Phase II monitoring program. If the 90-day period is exceeded, the owner or operator shall comply with the timeframes of 9VAC20-81-260 C unless the director has granted an extension to those timeframes; and

(b) Present the findings in the semi-annual report.

D. Statistical methods and constituent lists.

1. Acceptable test methods. The following statistical test methods may be used to evaluate groundwater monitoring data:

a. A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.

b. An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent.

c. A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit.

d. A control chart approach that gives control limits for each constituent.

e. Another statistical test method that meets the performance standards specified below. Based on the justification submitted to the department, the director may approve the use of an alternative test. The justification must demonstrate that the alternative method meets the performance standards in subdivision 2 of this subsection.

2. Performance standards. Any statistical method chosen by the owner or operator shall comply with the following performance standards, as appropriate:

a. The statistical method used to evaluate groundwater monitoring data shall be appropriate for the distribution of monitoring parameters or constituents. If the distribution is shown by the owner or operator to be inappropriate for a normal theory test, then the data shall be transformed or a distribution-free theory test shall be used. If the distributions for the constituents differ, more than one statistical method may be needed.

b. If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a groundwater protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experiment-wise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained.

c. If a control chart approach is used to evaluate groundwater monitoring data, the specific type of control chart and its associated parameter values shall be protective of human health and the environment. The parameters shall be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.

d. If a tolerance interval or a predictional interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be protective of human health and the environment. These parameters shall be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.

e. The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any estimated quantitation limit (EQL) that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the landfill.

f. If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.

E. Recordkeeping and reporting.

1. Records pertaining to groundwater monitoring activities shall be retained at a specified location by the owner or operator throughout the active life and postclosure care period of the landfill, and shall include at a minimum:

a. All historical groundwater surface elevation data obtained from wells installed pursuant to subdivision A 3 a of this section;

b. All historical laboratory analytical results for groundwater sampling events required under the groundwater monitoring programs as described in this section;

c. All records of well installation, repair, or abandonment actions;

d. All department correspondence to the landfill; and

e. All approved variances, well subsets, wetlands, or other such director/department approvals.

2. Reporting requirements.

a. Annual report.

(1) An Annual Groundwater Monitoring Report shall be submitted by the owner or operator to the department no later than 120 days from the completion of sampling and analysis conducted under subdivision A 4 h of this section for the second semi-annual event or fourth quarterly event during each calendar year and shall by accompanied by:

(a) A signature page; and

(b) A completed QA/QC DEQ Form ARSC-01.

(2) The technical content of the annual report shall at a minimum, contain the following topical content:

(a) The landfill's name, type, permit number, current owner or operator, and location keyed to a USGS topographic map;

(b) Summary of the design type (i.e., lined versus unlined), operational history (i.e., trench fill versus area fill), and size (acres) of the landfill including key dates such as beginning and termination of waste disposal actions and dates different groundwater monitoring phases were entered;

(c) Description of the surrounding land use noting whether any adjoining land owners utilize private wells as a potable water source;

(d) A discussion of the topographic, geologic, and hydrologic setting of the landfill including a discussion on the nature of the uppermost aquifer (i.e., confined versus unconfined) and proximity to surface waters;

(e) A discussion of the monitoring wells network noting any modifications that were made to the network during the year or any nonperformance issues and a statement noting that the monitoring well network meets (or did not meet) the requirements of subdivision A 3 of this section;

(f) A listing of the groundwater sampling events undertaken during the previous calendar year;

(g) A historical table listing the detected constituents, and their concentrations identified in each well during the sampling period; and

(h) Evaluations of and appropriate responses to the groundwater elevation data; groundwater flow rate as calculated using the prior year's elevation data; groundwater flow direction (as illustrated on a potentiometric surface map); and sampling and analytical data obtained during the past calendar year.

b. Semi-annual or quarterly report.

(1) After each sampling event has been completed for the 1st semi-annual or first, second and third quarterly groundwater sampling events, a semi-annual or quarterly monitoring report shall be submitted under separate cover by the owner or operator to the department no later than 120 days from the completion of sampling and analysis conducted under subdivision A 4 h of this section, unless as allowed under a director-approved extension. The report shall at a minimum contain the following items:

(a) Signature page signed by a professional geologist or qualified groundwater scientist;

(b) Landfill name and permit number;

(c) Statement noting whether or not all monitoring points within the permitted network installed to meet the requirements of subdivision A 3 a of this section were sampled as required under subdivision B 2 or 3 or C 2 or 3 during the event;

(d) Calculated rate of groundwater flow during the sampling period as required under subdivision A 4 c of this section;

(e) The groundwater flow direction as determined during the sampling period as required under subdivision A 4 c of this section presented as either plain text or graphically as a potentiometric surface map;

(f) Statement noting whether or not there were statistically significant increases over background or groundwater protection standards during the sampling period, the supporting statistical calculations, and reference to the date the director was notified of the increase pursuant to timeframes in subdivision B 2 or 3 or C 2 or 3, if applicable;

(g) Copy of the full Laboratory Analytical Report including dated signature page (laboratory manager or representative) to demonstrate compliance with the timeframes of subdivision A 4 h of this section. The department will accept the lab report in CD-ROM format.

(2) In order to reduce the reporting burden on the owner or operator and potential redundancy within the operating record, a discussion of the second semi-annual or fourth quarterly sampling event results may be presented in the Annual Report submission.

c. Other submissions. Statistically significant increase notifications, well certifications, the first determination report, alternate source demonstration, nature and extent study, assessment of corrective measures, presumptive remedy proposal, corrective action plan or monitoring plan, or other such report or notification types as may be required under 9VAC20-81-250 or 9VAC20-81-260, shall be submitted in a manner which achieves the timeframe requirements as listed in 9VAC20-81-250 or 9VAC20-81-260.

| TABLE 3.1 GroundWater Solid Waste Constituent Monitoring List | | | | --- | --- | --- | | Column A – Common Name^{1, 2} | Column B – Common Name^{1, 2} | CAS RN³ | | | Acenaphthene | 83-32-9 | | | Acenaphthylene | 208-96-8 | | Acetone | Acetone | 67-64-1 | | | Acetonitrile; Methyl cyanide | 75-05-8 | | | Acetophenone | 98-86-2 | | | 2-Acetylaminofluorene; 2-AAF | 53-96-3 | | | Acrolein | 107-02-8 | | Acrylonitrile | Acrylonitrile | 107-13-1 | | | Aldrin | 309-00-2 | | | Allyl chloride | 107-05-1 | | | 4-Aminobiphenyl | 92-67-1 | | | Anthracene | 120-12-7 | | Antimony | Antimony | (Total) | | Arsenic | Arsenic | (Total) | | Barium | Barium | (Total) | | Benzene | Benzene | 71-43-2 | | | Benzo[a]anthracene; Benzanthracene | 56-55-3 | | | Benzo[b]fluoranthene | 205-99-2 | | | Benzo[k]fluoranthene | 207-08-9 | | | Benzo[ghi]perylene | 191-24-2 | | | Benzo[a]pyrene | 50-32-8 | | | Benzyl alcohol | 100-51-6 | | Beryllium | Beryllium | (Total) | | | alpha-BHC | 319-84-6 | | | beta-BHC | 319-85-7 | | | delta-BHC | 319-86-8 | | | gamma-BHC; Lindane | 58-89-9 | | | Bis(2-chloroethoxy)methane | 111-91-1 | | | Bis(2-chloroethyl) ether; Dichloroethyl ether | 111-44-4 | | | Bis(2-chloro-1-methylethyl) ether; 2, 2'-Dichlorodiisopropyl ether; DCIP | 108-60-1, See note 4 | | | Bis(2-ethylhexyl)phthalate | 117-81-7 | | Bromochloromethane;.Chlorobromomethane | Bromochloromethane;.Chlorobromomethane | 74-97-5 | | Bromodichloromethane;.Dibromochloromethane | Bromodichloromethane;.Dibromochloromethane | 75-27-4 | | Bromoform; Tribromomethane | Bromoform; Tribromomethane | 75-25-2 | | | 4-Bromophenyl phenyl ether | 101-55-3 | | | Butyl benzyl phthalate; Benzyl butyl phthalate | 85-68-7 | | Cadmium | Cadmium | (Total) | | Carbon disulfide | Carbon disulfide | 75-15-0 | | Carbon tetrachloride | Carbon tetrachloride | 56-23-5 | | | Chlordane | Note 5 | | | p-Chloroaniline | 106-47-8 | | Chlorobenzene | Chlorobenzene | 108-90-7 | | | Chlorobenzilate | 510-15-6 | | | p-Chloro-m-cresol; 4-Chloro-3-methylphenol | 59-50-7 | | Chloroethane; Ethyl chloride | Chloroethane; Ethyl chloride | 75-00-3 | | Chloroform; Trichloromethane | Chloroform; Trichloromethane | 67-66-3 | | | 2-Chloronaphthalene | 91-58-7 | | | 2-Chlorophenol | 95-57-8 | | | 4-Chlorophenyl phenyl ether | 7005-72-3 | | | Chloroprene | 126-99-8 | | Chromium | Chromium | (Total) | | | Chrysene | 218-01-9 | | Cobalt | Cobalt | (Total) | | Copper | Copper | (Total) | | | m-Cresol; 3-methyphenol | 108-39-4 | | | o-Cresol; 2-methyphenol | 95-48-7 | | | p-Cresol; 4-methyphenol | 106-44-5 | | | Cyanide | 57-12-5 | | | 2,4-D; 2,4-Dichlorophenoxyacetic acid | 94-75-7 | | | 4,4'-DDD | 72-54-8 | | | 4,4'-DDE | 72-55-9 | | | 4,4'-DDT | 50-29-3 | | | Diallate | 2303-16-4 | | | Dibenz[a,h]anthracene | 53-70-3 | | | Dibenzofuran | 132-64-9 | | Dibromochloromethane; Chlorodibromomethane | Dibromochloromethane; Chlorodibromomethane | 124-48-1 | | 1,2-Dibromo-3-chloropropane; DBCP | 1,2-Dibromo-3-chloropropane; DBCP | 96-12-8 | | 1,2-Dibrimoethane; Ethylene dibromide; EDB | 1,2-Dibrimoethane; Ethylene dibromide; EDB | 106-93-4 | | | Di-n-butyl phthalate | 84-74-2 | | o-Dichlorobenzene; 1,2-Dichlorobenzene | o-Dichlorobenzene; 1,2-Dichlorobenzene | 95-50-1 | | | m-Dichlorobenzene; 1,3-Dichlorobenzene | 541-73-1 | | p-Dichlorobenzene; 1,4-Dichlorobenzene | p-Dichlorobenzene; 1,4-Dichlorobenzene | 106-46-7 | | | 3,3'-Dichlorobenzidine | 91-94-2 | | trans-1,4-Dichloro-2-butene | trans-1,4-Dichloro-2-butene | 110-57-6 | | | Dichlorodifluoromethane; CFC 12; | 75-71-8 | | 1.1-Dichloroethane; Ethylidene chloride | 1,1-Dichloroethane; Ethylidene chloride | 75-34-3 | | 1,2-Dichloroethane; Ethylene dichloride | 1,2-Dichloroethane; Ethylene dichloride | 107-06-2 | | 1,1-Dichloroethylene; 1,1-Dichloroethene; Vinylidene chloride | 1,1-Dichloroethylene; 1,1-Dichloroethene; Vinylidene chloride | 75-35-4 | | cis-1,2-Dichloroethylene; cis-1,2-Dichloroethene | cis-1,2-Dichloroethylene; cis-1,2-Dichloroethene | 156-59-2 | | trans-1,2-Dichloroethylene | trans-1,2-Dichloroethylene; trans-1,2-Dichroroethene | 156-60-5 | | | 2,4-Dichlorophenol | 120-83-2 | | | 2,6-Dichlorophenol | 87-65-0 | | 1,2-Dichloropropane; Propylene dichloride | 1,2-Dichloropropane; Propylene dichloride | 78-87-5 | | | 1,3-Dichloropropane; Trimethylene dichloride | 142-28-9 | | | 2, 2-Dichloropropane; isopropylidene chloride | 594-20-7 | | | 1,1-Dichloropropene | 563-58-6 | | cis-1,3-Dichloropropene | cis-1,3-Dichloropropene | 10061-01-5 | | trans-1,3-Dichloropropene | trans-1,3-Dichloropropene | 10061-02-6 | | | Dieldrin | 60-57-1 | | | Diethyl phthalate | 84-66-2 | | | O,O-Diethyl O-2-pyrazinyl phosphorothioate; Thionazin | 297-97-2 | | | Dimethoate | 60-51-5 | | | p-(Dimethylamino)azobenzene | 60-11-7 | | | 7,12-Dimethylbenz[a]anthracene | 57-97-6 | | | 3,3'-Dimethylbenzidine | 119-93-7 | | | 2,4-Dimethylphenol; m-Xylenol | 105-67-9 | | | Dimethyl phthalate | 131-11-3 | | | m-Dinitrobenzene | 99-65-0 | | | 4,6-Dinitro-o-cresol; 4,6-Dinitro-2-methylphenol | 534-52-1 | | | 2,4-Dinitrophenol | 51-28-5 | | | 2,4-Dinitrotoluene | 121-14-2 | | | 2,6-Dinitrotoluene | 606-20-2 | | | Dinoseb; DNBP; 2-sec-Butyl-4,6-dinitrophenol | 88-85-7 | | | Di-n-octyl phthalate | 117-84-0 | | | Diphenylamine | 122-39-4 | | | Disulfoton | 298-04-4 | | | Endosulfan I | 959-96-8 | | | Endosulfan II | 33213-65-9 | | | Endosulfan sulfate | 1031-07-8 | | | Endrin | 72-20-8 | | | Endrin aldehyde | 7421-93-4 | | Ethylbenzene | Ethylbenzene | 100-41-4 | | | Ethyl methacrylate | 97-63-2 | | | Ethylmethanesulfonate | 62-50-0 | | | Famphur | 52-85-7 | | | Fluoranthene | 206-44-0 | | | Fluorene | 86-73-7 | | | Heptachlor | 76-44-8 | | | Heptachlor epoxide | 1024-57-3 | | | Hexachlorobenzene | 118-74-1 | | | Hexachlorobutadiene | 87-68-3 | | | Hexachlorocyclopentadiene | 77-47-4 | | | Hexachloroethane | 67-72-1 | | | Hexachloropropene | 1888-71-7 | | 2-Hexanone; Methyl butyl ketone | 2-Hexanone; Methyl butyl ketone | 591-78-6 | | | Indeno[1,2,3-cd]pyrene | 193-39-5 | | | Isobutyl alcohol | 78-83-1 | | | Isodrin | 465-73-6 | | | Isophorone | 78-59-1 | | | Isosafrole | 120-58-1 | | | Kepone | 143-50-0 | | Lead | Lead | (Total) | | | Mercury | (Total) | | | Methacrylonitrile | 126-98-7 | | | Methapyrilene | 91-80-5 | | | Methoxychlor | 72-43-5 | | Methyl bromide; Bromomethane | Methyl bromide; Bromomethane | 74-83-9 | | Methyl chloride; Chloromethane | Methyl chloride; Chloromethane | 74-87-3 | | | 3-Methylcholanthrene | 56-49-5 | | Methyl ethyl ketone; MEK; 2-Butanone | Methyl ethyl ketone; MEK; 2-Butanone | 78-93-3 | | Methyl iodide; Iodomethane | Methyl iodide; Iodomethane | 74-88-4 | | | Methyl methacrylate | 80-62-6 | | | Methyl methanesulfonate | 66-27-3 | | | 2-Methylnaphthalene | 91-57-6 | | | Methyl parathion; Parathion methyl methyl | 298-00-0 | | 4-Methyl-2-pentanone; Methyl isobutyl ketone | 4-Methyl-2-pentanone; Methyl isobutyl ketone | 108-10-1 | | Methylene bromide; Dibromomethane | Methylene bromide; Dibromomethane | 74-95-3 | | Methylene chloride; Dichloromethane | Methylene chloride; Dichloromethane | 75-09-2 | | | Naphthalene | 91-20-3 | | | 1,4-Naphthoquinone | 130-15-4 | | | 1- Naphthylamine | 134-32-7 | | | 2-Napthylamine | 91-59-8 | | Nickel | Nickel | (Total) | | | o-Nitroaniline; 2-Nitroaniline | 88-74-4 | | | m-Nitroaniline; 3-Nitroaniline | 99-09-2 | | | p-Nitroaniline; 4-Nitroaniline | 100-01-6 | | | Nitrobenzene | 98-95-3 | | | o-Nitrophenol; 2-Nitrophenol | 88-75-5 | | | p-Nitrophenol; 4-Nitrophenol | 100-02-7 | | | N-Nitrosodi-n-butylamine | 924-16-3 | | | N-Nitrosodiethylamine | 55-18-5 | | | N-Nitrosodimethylamine | 62-75-9 | | | N-Nitrosodiphenylamine | 86-30-6 | | | N-Nitrosodipropylamine; N-Nitroso-N-dipropylamine; Di-n-propylnitrosamine | 621-64-7 | | | N-Nitrosomethylethalamine | 10595-95-6 | | | N-Nitrosopiperidine | 100-75-4 | | | N-Nitrosopyrrolidine | 930-55-2 | | | 5-Nitro-o-toluidine | 99-55-8 | | | Parathion | 56-38-2 | | | Pentachlorobenzene | 608-93-5 | | | Pentachloronitrobenzene | 82-68-8 | | | Pentachlorophenol | 87-86-5 | | | Phenacetin | 62-44-2 | | | Phenanthrene | 85-01-8 | | | Phenol | 108-95-2 | | | p-Phenylenediamine | 106-50-3 | | | Phorate | 298-02-2 | | | Polychlorinated biphenyls; PCBS; Aroclors | Note 6 | | | Pronamide | 23950-58-5 | | | Propionitrile; Ethyl cyanide | 107-12-0 | | | Pyrene | 129-00-0 | | | Safrole | 94-59-7 | | Selenium | Selenium | (Total) | | Silver | Silver | (Total) | | | Silvex; 2,4,5-TP | 93-72-1 | | Styrene | Styrene | 100-42-5 | | | Sulfide | 18496-25-8 | | | 2,4,5-T; 2,4,5-Trichlorophenoxyacetic acid | 93-76-5 | | | 1,2,4,5-Tetrachlorobenzene | 95-94-3 | | 1,1,1,2-Tetrachloroethane | 1,1,1,2-Tetrachloroethane | 630-20-6 | | 1,1,2,2-Tetrachloroethane | 1,1,2,2-Tetrachloroethane | 79-34-5 | | Tetrachloroethylene; Tetrachloroethene; Perchloroethylene | Tetrachloroethylene; Tetrachloroethene; Perchloroethylene | 127-18-4 | | | 2,3,4,6-Tetrachlorophenol | 58-90-2 | | Thallium | Thallium | (Total) | | | Tin | (Total) | | Toluene | Toluene | 108-88-3 | | | o-Toluidine | 95-53-4 | | | Toxaphene | Note 7 | | | 1,2,4-Trichlorobenzene | 120-82-1 | | 1,1,1-Trichloroethane; Methychloroform | 1,1,1-Trichloroethane; Methychloroform | 71-55-6 | | 1,1,2-Trichloroethane | 1,1,2-Trichloroethane | 79-00-5 | | Trichloroethylene; Trichloroethene ethene | Trichloroethylene; Trichloroethene ethane | 79-01-6 | | Trichlorofluoromethane; CFC-11 | Trichlorofluoromethane; CFC-11 | 75-69-4 | | | 2,4,5-Trichlorophenol | 95-95-4 | | | 2,4,6-Trichlorophenol | 88-06-2 | | 1,2,3-Trichloropropane | 1,2,3-Trichloropropane | 96-18-4 | | | O,O,O-Triethyl phosphorothioate | 126-68-1 | | | sym-Trinitrobenzene | 99-35-4 | | Vanadium | Vanadium | (Total) | | Vinyl acetate | Vinyl acetate | 108-05-4 | | Vinyl chloride; Chloroethene | Vinyl chloride; Chloroethene | 75-01-4 | | Xylene(total) | Xylene(total) | Note 8 | | Zinc | Zinc | (Total) |

NOTES:

¹Common names are those widely used in government regulations, scientific publications, and commerce; synonyms exist for many chemicals.

²The corresponding Chemical Abstracts Service Index name as used in the 9th Collective Index, may be found in Appendix II of 40 CFR 258.

³Chemical Abstracts Service Registry Number. Where "Total" is entered, all species in the groundwater that contains this element are included.

⁴This substance is often called Bis(2-chloroisopropyl) ether, the name Chemical Abstracts Service applies to its noncommercial isomer, Propane, 2.2'-oxybis2-chloro (CAS RN 39638-32-9).

⁵Chlordane: This entry includes alpha-chlordane (CAS RN 5103-71-9), beta-chlordane (CAS RN 5103-74-2), gamma-chlordane (CAS RN 5566-34-7), and constituents of chlordane (CAS RN 57-74-9 and CAS RN 12739-03-6).

⁶Polychlorinated biphenyls (CAS RN 1336-36-3); this category contains congener chemicals, including constituents of Aroclor 1016 (CAS RN 12674-11-2), Aroclor 1221 (CAS RN 11104-28-2), Aroclor 1232 (CAS RN 11141-16-5), Aroclor 1242 (CAS RN 53469-21-9), Aroclor 1248 (CAS RN 12672-29-6), Aroclor 1254 (CAS RN 11097-69-1), and Arclor 1260 (CAS RN 11096-82-5).

⁷Toxaphene: This entry includes congener chemicals contained in technical toxaphene (CAS RN 8001-35-2), i.e., chlorinated camphene.

⁸Xylene (total): This entry includes o-xylene (CAS RN 96-47-6), m-xylene (CAS RN 108-38-3), p-xylene (CAS RN 106-42-3), and unspecified xylenes (dimethylbenzenes) (CAS RN 1330-20-7).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 35, Issue 12, eff. March 6, 2019.

9VAC20-81-260 Corrective action program

A. Corrective action is required whenever one or more groundwater protection standard is exceeded at statistically significant levels. An owner or operator of a landfill may elect to initiate corrective action at any time; however, prior to such initiation, the appropriate groundwater protection standards for all Table 3.1 constituents shall be established consistent with 9VAC20-81-250 A 6. At any time during the corrective action process, the owner or operator may elect to pursue, or the director can determine that, interim measures as defined under subsection F of this section are required in accordance with subdivision E 3 of this section.

B. The director may require periodic progress reports when a corrective action program is required but not yet implemented.

C. Characterization and assessment requirements.

1. Upon notifying the department that one or more of the constituents listed in Table 3.1 Column B has been detected at a statistically significant level exceeding the groundwater protection standards, the owner or operator shall, unless department approval of an Alternate Source Demonstration has been received as noted under 9VAC20-81-250 B 3 f (3) (a) (ii) or 9VAC20-81-250 C 3 e (3) (a) (ii):

a. Characterization. Within 90 days, install additional monitoring wells as necessary sufficient to define the vertical and horizontal extent of the release of constituents at statistically significant levels exceeding the groundwater protection standards including the installation of at least one additional monitoring well at the facility boundary in the direction of contaminant migration.

b. Notification. Notify all persons who own the land or reside on the land that directly overlies any part of the release if contaminants have migrated offsite as indicated by the results of sampling of the characterization wells installed under subdivision 1 a of this subsection within 15 days of completion of the characterization sampling and analysis efforts.

c. Assessment. Within 90 days, initiate an assessment of corrective measures or a proposal for presumptive remedy.

d. Financial assurance. Within 120 days, provide additional financial assurance in the amount of $1 million to the department using the mechanisms required in 9VAC20-70-140 of the Financial Assurance Requirements for Solid Waste Disposal, Transfer, and Treatment Facilities.

e. Public meeting. Prior to submitting the document required under subdivision 1 f of this subsection, schedule and hold a public meeting to discuss the draft results of the corrective measures assessment or the proposal for presumptive remedy, prior to the final selection of remedy. The meeting shall be held to the extent practicable in the vicinity of the landfill. The process to be followed for scheduling and holding the public hearing is described under subdivision 4 of this subsection.

f. Submission requirements. Within 180 days, submit the completed assessment of corrective measures defined under subdivision 3 of this subsection, or the proposal for presumptive remedies defined under subdivision 2 of this subsection, including any responses to public comments received.

g. Director allowance. The submission timeframe noted in subdivision 1 f of this subsection may be extended by the director for good cause upon request of the owner or operator.

2. Presumptive remedy allowance.

a. Applicability. To expedite corrective action, in lieu of an analysis meeting the requirements of subdivision 3 of this subsection, the owner or operator of any facility monitoring groundwater in accordance with 9VAC20-81-250 C may propose a presumptive remedy for the landfill.

b. Options. The presumptive remedy for solid waste landfills shall be limited to one or more of the following:

(1) Containment of the landfill mass, including an impermeable cap;

(2) Control of the landfill leachate;

(3) Control of the migration of contaminated groundwater;

(4) Collection and treatment of landfill gas; and

(5) Reduction of saturation of the landfill mass.

Containment may be selected as a sole or partial remedy until a determination is made under subdivision F 1 of this section that another remedy shall be employed to meet the requirements of subdivision G 1 of this section concerning remediation completion. Upon recognition that presumptive remedies may not be able to achieve the groundwater protection standards, an assessment of corrective measures shall be initiated within 90 days.

c. Restrictions. Presumptive remedies are not applicable to:

(1) Landfills monitoring groundwater under the Federal Subtitle D equivalent program defined under 9VAC20-81-250 B when the use of the presumptive remedy will be the sole remedy applied to the groundwater release; or

(2) Landfills that may monitor groundwater under 9VAC20-81-250 C but that exhibit contamination beyond facility boundaries unless the proposed presumptive remedy option under subdivision 2 b of this subsection can be demonstrated to show it will address the reduction of contamination already present beyond the facility boundary, and the demonstration is approved by the department.

d. Submission requirements. Owner or operators who wish to propose use of the presumptive remedy allowance shall submit with the proposal, signed by a qualified groundwater professional, an:

(1) Assessment of risks resulting from the contamination at the disposal unit boundary and at the facility boundary;

(2) Evaluation of the current trends in groundwater quality data with respect to the established groundwater protection standards; and

(3) Anticipated schedule for initiating and completing presumptive remedy-based remedial activities.

e. Implementation. Upon conducting a public meeting as required under subdivision 4 of this subsection, submitting a corrective action monitoring plan meeting subdivision D 1 of this section, and modifying the landfill permit in accordance with 9VAC20-81-600 F 2, the owner or operator may proceed with the implementation of the remedy in accordance with subdivision E 1 of this section.

f. Evaluation and response. The owner or operator shall provide an evaluation of the performance of the implemented presumptive remedy every three years, unless an alternate schedule is approved by the director, in a Corrective Action Site Evaluation report containing, at a minimum, the following information:

(a) A description of how the presumptive remedy is performing with respect to the conditions in subdivision H 1 of this section;

(b) Current and historical groundwater data and analysis;

(c) An evaluation of the changes seen in groundwater contamination after the implementation of the remedy and a projection of when the conditions in subdivision H 1 of this section will be achieved; and

(d) The progress toward achieving the schedule required in subdivision C 2 d (3) of this section.

3. Assessment of corrective measures.

a. Purpose. The assessment shall include an analysis of the effectiveness of several potential corrective measures in meeting all of the requirements and objectives of the remedy as described under this subsection, addressing at least the following:

(1) The performance, reliability, implementation ease, and potential impacts of appropriate potential remedies, including safety impacts, cross-media impacts, and control of exposure to any residual contamination;

(2) The time required to begin and complete the remedy;

(3) The costs of remedy implementation; and

(4) The institutional requirements such as state or local permit requirements or other environmental or public health requirements that may substantially affect implementation of the remedies.

b. Requirements. As part of the assessment of corrective measures submitted to the department for review, the owner or operator must demonstrate that one or more possible groundwater remedy has been evaluated for potential application on site. These remedies may include a specific technology or combination of technologies that achieve or may achieve the standards for remedies specified in subdivision 3 c (1) of this subsection given appropriate consideration of the factors specified in subdivision D 1 a of this section.

c. Selection of remedy. As part of submission of the assessment of corrective measures document, the owner or operator shall select a remedy that, at a minimum, meets the standards listed in subdivision H 1 of this section.

(1) The selected remedies to be included in the corrective action plan shall:

(a) Be protective of human health and the environment;

(b) Attain the groundwater protection standard as specified pursuant to 9VAC20-81-250 A 6;

(c) Control the sources of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of solid waste constituents into the environment that may pose a threat to human health or the environment; and

(d) Comply with standards for management of wastes.

d. Evaluation and response. The department shall review the assessment of corrective measures to evaluate the proposed remedy and may require revisions to the assessment. If the assessment is approved without revision, the department will notify the owner or operator to prepare a written corrective action plan based on the proposed remedy and such plan will be submitted within 180 days of the department's notification of approval of the assessment of corrective measures.

4. Public meeting process. As part of the public meeting process completed prior to the submission of a proposal for presumptive remedy or assessment of corrective measures:

a. Newspaper notice. The owner or operator must publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation inviting public comment on the results of the corrective measures assessment or proposal for presumptive remedy as applicable. The notice shall include:

(1) The name of the landfill, its location, and the date, time, and place for the public meeting, and the beginning and ending dates for the 30-day comment period. The public meeting shall be held at a time convenient to the public. The comment period will begin on the date the owner or operator publishes the notice in the local newspaper;

(2) The name, telephone, and address of the owner's or operator's representative who can be contacted by the interested persons to answer questions or where comments shall be sent;

(3) Location where copies of the documentation to be submitted to the department in support of the corrective measures assessment or proposal of presumptive remedy can be viewed and copied prior to the meeting;

(4) A statement indicating that the need to perform the corrective measures assessment or presumptive remedy is a result of a statistically significant increase in one or more groundwater protection standards; and

(5) A statement that the purpose of the public meeting is to acquaint the public with the technical aspects of the proposal, describe how the requirements of these regulations will be met, identify issues of concern, facilitate communication, and establish a dialogue between the permittee and persons who may be affected by the landfill.

b. Document review. The owner or operator shall place a copy of the report and supporting documentation in a location accessible to the public during the public comment period in the vicinity of the proposed landfill.

c. Meeting timeframe. The owner or operator shall hold a public meeting within a timeframe that allows for the submission of a completed assessment of corrective measures or presumptive remedy within 180 days of notifying the department of a groundwater protection standard exceedance or as granted under subdivision 1 g of this subsection. The meeting must be scheduled and held:

(1) No earlier than 15 days after the publication of the notice; and

(2) No later than seven days before the close of the 30-day comment period.

D. Corrective action plan and monitoring plan.

1. The owner or operator shall submit to the department a Corrective Action Plan (CAP) and related Corrective Action Monitoring Plan (CAMP) consistent with the findings as presented in the assessment of corrective measures required under subdivision C 3 of this section, or proposal for presumptive remedy described under subdivision C 2 of this section.

a. Requirements. In preparing a proposed corrective action plan, the owner or operator will consider the following evaluation factors:

(1) The long-term and short-term effectiveness and protectiveness of the potential remedies, along with the degree of certainty that the remedy will prove successful based on consideration of the following:

(a) Magnitude of reduction of existing risks;

(b) Magnitude of residual risks in terms of likelihood of further releases due to waste remaining following implementation of a remedy;

(c) The type and degree of long-term management required, including monitoring, operation, and maintenance;

(d) Short-term risks that might be posed to the community, workers, or the environment during implementation of such a remedy, including potential threats to human health and the environment associated with excavation, transportation, and redisposal or containment;

(e) Time until full protection is achieved;

(f) Potential for exposure of humans and environmental receptors to remaining wastes, considering the potential threat to human health and the environment associated with excavation, transportation, re-disposal, or containment;

(g) Long-term reliability of the engineering and institutional controls; and

(h) Potential need for replacement of the remedy.

(2) The effectiveness of the remedy in controlling the source to reduce further releases based on consideration of the following factors:

(a) The extent to which containment practices will reduce further releases;

(b) The extent to which treatment technologies may be used;

(c) Magnitude of reduction of existing risks; and

(d) Time until full protection is achieved.

(3) The ease or difficulty of implementing a potential remedy based on consideration of the following types of factors:

(a) Degree of difficulty associated with constructing the technology;

(b) Expected operational reliability of the technologies;

(c) Need to coordinate with and obtain necessary approvals and permits from other agencies;

(d) Availability of necessary equipment and specialists; and

(e) Available capacity and location of needed treatment, storage, and disposal services.

(4) Practicable capability of the owner or operator, including a consideration of the technical and economic capability. At a minimum the owner or operator must consider capital costs, operation and maintenance costs, net present value of capital and operation and maintenance costs, and potential future remediation costs.

(5) Ensure that all solid wastes that are managed while undergoing corrective action or an interim measure shall be managed in a manner:

(a) That is protective of human health and the environment; and

(b) That complies with all applicable federal and Virginia requirements.

(6) The degree to which community concerns raised as the result of the public meeting required by subdivision C 4 of this section are addressed by the potential remedy.

b. Implementation and completion timeframes. The owner or operator shall specify as part of the selected remedy a schedule for initiating and completing remedial activities. Such a schedule shall require the initiation of remedial activities within a reasonable period of time taking into consideration the factors set forth in this section. The owner or operator shall consider the following factors in determining the schedule of remedial activities:

(1) Nature and extent of contamination;

(2) Practical capabilities of remedial technologies in achieving compliance with groundwater protection standards established under 9VAC20-81-250 A 6 and other objectives of the remedy;

(3) Availability of treatment or disposal capacity for wastes managed during implementation of the remedy;

(4) Desirability of utilizing technologies that are not currently available, but which may offer significant advantages over already available technologies in terms of effectiveness, reliability, safety, or ability to achieve remedial objectives;

(5) Potential risks to human health and the environment from exposure to contamination prior to completion of the remedy;

(6) Resource value of the aquifer including:

(a) Current and future uses;

(b) Proximity and withdrawal rates of users;

(c) Groundwater quantity and quality;

(d) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to the waste constituents;

(e) The hydrological characteristics of the landfill and surrounding land;

(f) Groundwater removal and treatment costs; and

(g) The cost and availability of alternate water supplies;

(7) Practical capability of the owner or operator;

(8) Timeframes for periodic progress reports during design, construction, operation, and maintenance. Items to consider when preparing the reports include but are not limited to:

(a) Progress of remedy implementation;

(b) Results of monitoring and sampling activities;

(c) Progress in meeting cleanup standards;

(d) Descriptions of remediation activities;

(e) Problems encountered during the reporting period and actions taken to resolve problems;

(f) Work for next reporting period;

(g) Copies of laboratory reports including drilling logs, QA/QC documentation, and field data; and

(9) Other relevant factors.

c. Corrective action monitoring program. Any groundwater monitoring program to be employed during the corrective action process:

(1) Shall at a minimum, meet the requirements of the applicable groundwater monitoring program described under 9VAC20-81-250 B 3 or C 3;

(2) Shall determine the horizontal and vertical extent of the plume of contamination for constituents at statistically significant levels exceeding background concentrations;

(3) Can be used to demonstrate the effectiveness of the implemented corrective action remedy; and

(4) Shall demonstrate compliance with the groundwater protection standard established under 9VAC20-81-250 A 6.

2. The proposed corrective action plan shall be submitted to the director for approval. Prior to rendering his approval, the director may:

a. Request an evaluation of one or more alternative remedies;

b Request technical modification of the monitoring program;

c. Request a change in the time schedule; or

d. Determine that the remediation of the release of Table 3.1 constituents is not necessary if the owner or operator demonstrates to the satisfaction of the director that:

(1) The groundwater is additionally contaminated by substances that have originated from a source other than the landfill in a demonstration meeting the requirements of 9VAC20-81-250 A 5 and those substances are present in concentrations such that cleanup of the release from the landfill would provide no significant reduction in risk to actual or potential receptors;

(2) The constituent is present in groundwater that is not currently or reasonably expected to be a source of drinking water and not hydraulically connected with waters to which the constituents are migrating or are likely to migrate in a concentration that would exceed the groundwater protection standards established;

(3) Remediation of the release is technically impracticable; or

(4) Remediation results in unacceptable cross-media impacts.

3. A determination by the director pursuant to subdivision 2 d of this subsection shall not affect the authority of the state to require the owner or operator to undertake source control measures or other measures that may be necessary to eliminate or minimize further releases to the groundwater, to prevent exposure to the groundwater, or to remediate the groundwater to concentrations that are technically practicable and significantly reduce threats to human health or the environment.

4. After an evaluation of the proposed or revised plan, the director will:

a. Approve the proposed corrective action plan as written;

b. Approve the proposed corrective action plan as modified by the owner or operator;

c. Proceed with the permit modification process in accordance with 9VAC20-81-600 F 2; or

d. Disapprove the proposed corrective action plan and undertake appropriate containment or clean up actions in accordance with § 10.1-1402 (18) of the Virginia Waste Management Act.

E. Remedy implementation. Upon completion of the permit modification action described under subdivision D 4 c of this section, the owner or operator shall:

1. Monitoring program. Implement a corrective action groundwater monitoring program meeting the requirements of subdivision D 1 c of this section;

2. Remedy. Implement the remedy described in the Corrective Action Plan and the Permit as amended under subdivision D 4 c of this section; and

3. Interim measures. Take any interim measures necessary to ensure the protection of human health and the environment as described in subsection F of this section.

F. Interim measures.

1. To the greatest extent practicable, interim measures shall be consistent with the objectives of and contribute to the performance of any remedy that may be required pursuant to meeting the groundwater protection standard.

2. Should the director require interim measures pursuant to this section, the director will notify the owner or operator of the necessary actions required. Such actions will be implemented as soon as practicable in accordance with a schedule as specified by the director.

3. The following factors shall be considered in determining whether interim measures are necessary:

a. Timeframes. Time required to develop or implement a final remedy;

b. Exposure. Actual or potential exposure of nearby populations or environmental receptors to hazardous constituents;

c. Drinking water. Actual or potential contamination of drinking water supplies;

d. Resource degradation. Further degradation of the groundwater that may occur if remedial action is not initiated expeditiously;

e. Migration potential. Weather conditions that may cause the constituents to migrate or be released;

f. Accident. Risks of fire or explosion, or potential for exposure to constituents as a result of an accident or failure of a container or handling system; and

g. Other. Situations including the presence of wastes or other contaminants that may pose threats to human health, sensitive ecosystems, and the environment.

G. Remedy performance.

1. The owner or operator shall provide an evaluation of the performance of the remedy consistent with the timeframes established in the permit and present the findings in a Corrective Action Site Evaluation report. The evaluation shall describe the progress toward achieving the groundwater protection standards since implementation of the remedy.

2. An owner or operator or the director may determine, based on information developed after implementation of the remedy or other information contained in the evaluation, that compliance with requirements of subdivision H 1 of this section are not being achieved through the remedy selected. In such cases, the owner or operator shall implement other methods or techniques that could practicably achieve compliance with the requirements, unless the owner or operator makes the determination under subdivision G 3 of this section.

3. If the owner or operator determines that groundwater protection standards cannot be practically achieved with any currently available methods, the owner or operator shall, within 90 days of recognizing that condition:

a. Submit a report, certified by a qualified groundwater scientist, for director approval, that demonstrates that compliance with groundwater protection standards established under 9VAC20-81-250 A 6 cannot be practically achieved with any currently available groundwater remedial methods;

b. Upon receiving director approval under subdivision 3 a of this subsection, implement alternate measures to control exposure of humans or the environment to residual contamination that will remain as a result of termination of remedial actions, as necessary to protect human health and the environment;

c. Implement alternate measures for removal or decontamination of any remediation-related equipment, units, devices, or structures that are:

(1) Technically practicable; and

(2) Consistent with the overall objective of the remedy; and

d. At least 14 days prior to implementing the alternate measures, submit a request for approval to the director describing and justifying the alternate measures to be applied.

H. Remedy completion.

1. The groundwater remedy implemented under corrective action shall be considered complete when:

a. The owner or operator complies with the groundwater protection standards at all points within the plume of contamination that lie at or beyond the disposal unit boundary by demonstrating that no Table 3.1 Column B constituents have exceeded groundwater protection standards for a period of three consecutive years using the appropriate statistical procedures and performance standards as described under 9VAC20-81-250 D; and

b. All other actions required as part of the remedy have been satisfied or completed, and the owner or operator obtains the certification required under subdivision H 2 of this section.

2. Upon completion of the remedy, the owner or operator shall notify the director within 14 days by submitting a certification that the remedy has been completed in compliance with the requirements of the Corrective Action Plan and the permit as modified under subdivision D 4 c of this section.

3. The certification shall be signed by the owner or operator and by a qualified groundwater scientist, and shall include all data relevant to the demonstration of a successful remedy completion.

4. If the director, based on the review of information presented under subdivision H 3 of this section, determines that:

a. The corrective action remedy has been completed in accordance with the requirements of the Corrective Action Plan, the permit as amended, and subdivision H 1 of this section, the director will release the owner or operator from the requirements for financial assurance for corrective action under 9VAC20-70; or

b. The remedy has not yet achieved completion, the owner or operator shall remain in corrective action and meet the financial assurance requirements until such time as a successful demonstration and certification can be made.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Errata, 28:1 VA.R. 45 September 12, 2011.

Part IV Other Solid Waste Management Facility Standards:Compost Facilities; Solid Waste Transfer Stations; Centralized Waste Treatment Facilities; Materials Recovery Facilities; Waste to Energy; Incineration Facilities; Surface Impoundments and Lagoons; Waste Piles; Remediation Waste Management Units; Landfill Mining; Miscellaneous Units; and Exempt Management Facilities

9VAC20-81-300 General

A. Any person who designs, constructs, or operates any solid waste treatment or storage facility not otherwise exempt under 9VAC20-81-95 shall comply with the requirements of this part. In addition, this part sets forth conditions that yard waste composting facilities must meet to maintain their exempt status, where applicable, under 9VAC20-81-95 D 6. Further, all applications pursuant to these standards shall demonstrate specific means proposed for compliance with requirements set forth in this part.

B. All facilities, except exempted facilities, shall be maintained and operated in accordance with the permit issued or permit-by-rule status pursuant to this regulation. All facilities shall be maintained and operated in accordance with the approved design and intended use of the facility.

C. Hazardous wastes shall not be disposed or managed in facilities subject to this regulation unless specified in the permit or by specific approval of the executive director.

D. Solid waste management facilities regulated under this part that place solid wastes or residues on site for disposal, or leave such wastes or residues in place after closure, are subject to the provisions of Part III (9VAC20-81-100 et seq.) and Part VIII (9VAC20-81-800 et seq.) of this chapter, as applicable, including:

1. Groundwater monitoring requirements in 9VAC20-81-250 or 9VAC20-81-800;

2. Closure and postclosure care requirements in 9VAC20-81-160 and 9VAC20-81-170, or 9VAC20-81-800; and

3. Permitting requirements of Part V (9VAC20-81-400 et seq.) of this chapter.

E. All other facilities shall close in accordance with the closure plan prepared per the requirements described in this part and 9VAC20-81-480, as applicable.

F. Control program for unauthorized waste. Facilities managing solid waste per activities exempted under the provisions of 9VAC20-81-95 are not required to implement the control program for unauthorized waste as provided in this section.

1. Solid waste treatment or storage facilities regulated under this part shall implement a control program for unauthorized waste in accordance with the following provisions. The owner or operator of the facility shall:

a. Place a written description of the control program for unauthorized waste in the facility's operating manual;

b. Institute a control program (including measures such as signs at all maintained access points indicating hours of operation and the types of solid waste accepted and not accepted, monitoring, alternate collection programs, passage of local laws, etc.) to assure that only solid waste authorized by the department to be managed at the solid waste management facility is being managed there; and

c. Develop and implement a program to teach the solid waste management facility's staff to recognize, remove, and report receipt of solid waste not authorized by the department to be managed at the solid waste management facilities.

2. If unauthorized waste is observed in the waste delivered to the facility prior to unloading, the owner or operator may refuse to accept the waste. If the unauthorized waste is observed in the waste delivered to the facility, the owner or operator shall segregate it, notify the generator, document the incident in the operating record, make necessary arrangements to have the material managed in accordance with applicable federal and state laws, and notify the department of the incident to include the means of proper handling. If the unauthorized waste is accepted, the owner or operator shall remove it, segregate it, and provide to the department a record identifying that waste and its final disposition. Any unauthorized waste accepted by the owner or operator shall be managed in accordance with applicable federal or state laws and regulations. Unauthorized waste that has been segregated shall be adequately secured and contained to prevent leakage or contamination to the environment. The solid waste management facility owner or operator shall have the unauthorized waste removed or properly managed as soon as practicable, but not to exceed 90 days after discovery. Removal shall be by a person authorized to transport such waste to a waste management facility approved to receive it for treatment, disposal, or transfer.

3. Owners or operators of waste to energy or incinerator facilities receiving waste generated outside of Virginia shall also comply with the increased random inspection provisions in 9VAC20-81-340 E 3.

G. Solid waste management facilities regulated under this part that store waste tires shall also adhere to the requirements of 9VAC20-81-640 for the waste tire storage.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-310 Applicability

A. Solid waste compost facilities.

1. The standards in this part shall apply to owners and operators of facilities producing compost from municipal solid waste/refuse or combinations of municipal solid waste/refuse with animal manures.

a. Composting facilities that employ the enclosed vessel method are referred to as Type A (confined) compost facilities. Facilities that employ the windrow or aerated static pile method are referred to as Type B compost facilities. The only composting processes that may be employed are those with prior operational performance in the United States. Any other proposed composting process shall conform to the standards contained in 9VAC20-81-395 and will require an experimental solid waste management facility permit.

b. Use of solid waste containing hazardous waste, regulated medical waste, or nonbiodegradable waste is prohibited.

2. The standards contained in this part are not applicable to composting exempt under 9VAC20-81-95.

3. The feedstocks for composting are classified on the basis of the type of waste used in the composting process. The categories of feedstocks are as follows:

a. Category I - Plant or plant-derived preconsumer materials such as:

(1) Agriculture crop residues including, but not limited to, harvesting residuals, straw, and cornstalks;

(2) Livestock feed including, but not limited to, hay, grain, silage, cottonseed meal, soybean meal;

(3) Nonfood agricultural processing waste including, but not limited to, cotton gin trash, wool carding residue, field corn cobs;

(4) Source-separated preconsumer food wastes including but not limited to wholesale and retail market residuals (e.g., overripe, damaged, or otherwise rejected fruit or vegetables, food preparation wastes including prepared but unserved foods) and institutional kitchen culls;

(5) Food processing wastes including culls, peelings, hulls, stems, pits, seed, pulp, shucks, nut shells, apple pomace, corn cobs, cranberry filter cake, olive husks, potato tops, cocoa shells, fruit and vegetable processing waste, rejected products, and bakery wastes;

(6) Source-separated clean waste paper;

(7) Vegetative waste; and

(8) Yard waste.

b. Category II - Animal-derived waste material such as:

(1) Dairy processing wastes including but not limited to spoiled milk, cheese, curd, and yogurt.

(2) Fish processing wastes including but not limited to eggs, fish gurry and racks, clam bellies, fish shells, fish processing sludge, fish breading crumbs, mussel, crab, lobster, and shrimp wastes.

c. Category III - Animal and postconsumer food wastes with pathogen potential such as:

(1) Source-separated wastes including but not limited to restaurant waste, institutional kitchen wastes, plate scrapings;

(2) Animal manures including but not limited to spoiled stable straw bedding, livestock feedlot, holding pen and cage scrapings, dairy manure semi-solids, poultry litter and manure; and

(3) Rendered animals.

d. Category IV - Other wastes such as:

(1) Nonrendered animal meat waste including but not limited to animal carcasses, slaughterhouse waste, paunch manure;

(2) Mixed nonsource separated organic wastes including but not limited to municipal solid waste; and

(3) Industrial sludge.

B. Solid waste transfer stations. The standards in this part shall apply to owners and operators of solid waste transfer stations.

C. Centralized waste treatment facilities. The standards in this part shall apply to owners and operators of solid waste management facilities who operate a treatment system to solidify nonhazardous solid waste to meet the disposal criteria of 9VAC20-81-140 where the waste is generated offsite, and such treatment system must have no discharge. The requirements of this section shall not apply to solidification operations at active landfills that are authorized in the landfill's solid waste permit.

D. Materials recovery facilities.

1. The standards in this part shall apply to owners and operators of solid waste management facilities that operate to reclaim solid waste.

2. The regulations of this part do not apply to:

a. The landfill gas recovery systems operated at active and closed solid waste disposal facilities that are regulated under 9VAC20-81-200;

b. The storage and treatment facilities associated with the management of materials conditionally exempt from this chapter on the basis of 9VAC20-81-95 F;

c. The facilities that use materials in a manner that constitutes disposal that are regulated under Part VI (9VAC20-81-610 et seq.) of this chapter; or

d. The disposal of residues from the materials recovery facilities that is regulated under Part III (9VAC20-81-100 et seq.) of this chapter.

E. Waste to energy and incineration facilities.

1. The standards in this part shall apply to owners and operators of solid waste and process residue storage and handling facilities associated with the energy recovery from or incineration of solid wastes.

2. The regulations of this part do not apply to:

a. The design and operation of the combustor units regulated by the Air Pollution Control Board; or

b. The disposal of residues from the waste to energy or incineration facilities that is regulated under Part III (9VAC20-81-100 et seq.) of this chapter.

F. Surface impoundments and lagoons.

1. Lagoons and surface impoundments are regulated under State Water Control Law. During the operating life of these facilities, this chapter does not apply. If the operator intends to close such a facility by burial of sludges and residue in place, this chapter shall not apply where the regulating agency establishes the closure requirements in accordance with water pollution control regulations. The standards in this section shall apply to owners and operators of lagoons and surface impoundments only if new wastes, not contained in the lagoon or impoundment, are proposed to be disposed with the residue. In those cases, the operation and closure of the facility constitutes construction and operation of a landfill and must be accomplished as specified in Part III (9VAC20-81-100 et seq.) of this chapter.

2. Leachate lagoons are regulated under Part III (9VAC20-81-100 et seq.) of this chapter and are subject to the requirements for liners in 9VAC20-81-210 C.

3. Notwithstanding the provisions of subdivision 1 of this subsection, this chapter, in accordance with 9VAC20-81-45, applies to CCR surface impoundments in addition to the requirements under the State Water Control Law.

G. Waste piles.

1. The standards in this part shall apply to owners and operators of facilities that store or treat nonputrescible solid waste in piles.

2. Owners or operators of waste piles that will be closed with wastes left in place are subject to regulations contained in Part III (9VAC20-81-100 et seq.) of this chapter.

3. This part does not apply if materials will be actively composted according to all the requirements for compost facilities in Part IV (9VAC20-81-300 et seq.) of this chapter.

4. The regulations in this part do not apply to the management of industrial co-products in piles. A material shall be considered an industrial co-product if a demonstration can be made consistent with 9VAC20-81-95 or 9VAC20-81-97 that the material is not a solid waste.

5. The regulations in this part do not apply to active logging operations subject to regulation under the provisions of §§ 10.1-1181.1 and 10.1-1181.2 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-320 Siting requirements

The siting of all compost facilities, solid waste transfer stations, centralized waste treatment facilities, materials recovery facilities, waste to energy and incineration facilities, and waste piles shall be governed by the standards as set forth in this section.

A. Facilities shall be adjacent to or have direct access to roads that are paved or surfaced and capable of withstanding anticipated load limits. Solid waste management facilities storing or treating solid waste in piles such as but not limited to compost facilities and waste piles may also have direct access to gravel roads.

B. Facilities shall not be sited or constructed in areas subject to base floods. For materials recovery facilities, this siting prohibition does not apply to facilities recovering materials from industrial wastewater received from offsite.

C. No facility activity shall be closer than:

1. 50 feet to its property boundary;

2. 200 feet to any residence, a health care facility, school, recreational park area, or similar type public institution;

3. 50 feet to any perennial stream or river. For materials recovery facilities, this siting prohibition does not apply to those facilities recovering materials from industrial wastewater received from offsite; and

4. For facilities treating or storing solid waste in piles, no closer than 50 feet to any wetland.

D. Sites shall provide room to minimize traffic congestion and allow for safe operation.

E. In addition to subsections A through D of this section, for waste piles, unless the waste piles are located inside or under a structure that provides protection from precipitation so that neither run-off nor leachate is generated, such waste piles shall be provided with an adequate area to allow for proper management in accordance with 9VAC20-81-330 F and 9VAC20-81-340 F.

F. In addition to subsections A through D of this section, for compost facilities:

1. Acceptable sites must have area and terrain to allow for proper management of run-on, run-off, and leachate, and to allow for a buffer zone with the minimum size of 100 feet between the property boundary and the actual composting activity.

2. Type B facilities shall not be located in areas that are geologically unstable or where the site topography is heavily dissected.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-330 Design and construction requirements

The design and construction of all compost facilities, solid waste transfer stations, centralized waste treatment facilities, materials recovery facilities, waste to energy and incineration facilities, and waste piles shall be governed by the standards as set forth in this section.

A. Compost facilities.

1. For facilities that will compost only Category I feedstocks:

a. A handling area and equipment shall be provided to segregate the Category I waste from noncompostable components and to store such components in appropriate containers prior to proper management and disposal.

b. If the facility is located in any area where the seasonal high water table lies within two feet of the ground surface, the composting and handling areas shall be hard-surfaced and diked or bermed to prevent run-on, collect runoff, and provided with a drainage system to route the collected runoff to a treatment, disposal or holding facility, discharged under a VPDES permit, or recirculated within the composting process.

c. Engineering controls shall be incorporated into design of facilities located on sites with:

(1) Springs, seeps, and other groundwater intrusions;

(2) Gas, water, or sewage lines under the active areas; or

(3) Electrical transmission lines above or below the active areas.

d. Areas used for mixing, composting, curing, screening, and storing shall be graded to prevent run-on, collect runoff, and provided with a drainage system to route the collected runoff to a treatment, disposal or holding facility, discharged under a VPDES permit, or recirculated within the composting process.

e. Roads serving the unloading, handling, composting, and storage areas shall be usable under all weather conditions.

2. Facilities for the composting of Category II, III, and IV feedstocks, including those that will mix these feedstocks with Category I feedstocks, shall be provided with:

a. Covered areas for receiving, segregation, and grading of the waste shall be provided to segregate the waste from noncompostable components and to store such components in properly constructed containers prior to proper management and disposal.

b. Areas used for mixing, composting, curing, screening, and storing shall be graded to prevent run-on, collect runoff, and provided with a drainage system to route the collected runoff to a treatment, disposal or holding facility, discharged under a VPDES permit, or recirculated within the composting process.

c. If the facility is located in any area where the seasonal high water table lies within two feet of the ground surface, the composting and handling areas shall be hard-surfaced and diked or bermed to prevent run-on, collect runoff, and provided with a drainage system to route the collected runoff to a treatment, disposal or holding facility, discharged under a VPDES permit, or recirculated within the composting process.

d. Where any Category IV feedstocks are received, or where more than 1,000 total tons/quarter of Category II and III feedstocks are received, all receiving, mixing, composting, curing, screening, and storing operations shall be provided with one of the following:

(1) An asphalt or concrete area that drains directly to a wastewater storage, treatment, or disposal facility;

(2) An asphalt, or concrete, and diked or bermed area to prevent entry of run-on or escape of run-off, leachate, or other liquids, and a sump with either a gravity discharge or an adequately sized pump located at the low point of the hard-surfaced area to convey liquids to a wastewater treatment, disposal or holding facility, discharged under a VPDES permit, or recirculated within the composting process;

(3) A lime stabilized area may be substituted for the asphalt or concrete specified under subdivision A 2 d (2) of this subsection. The lime stabilized clay/soil area must be a minimum of six inches thick and have a lab-tested permeability of 1x10^-7 cm/sec; or

(4) A 12" compacted gravel pad underlain by a continuous high density polyethylene (HDPE) liner of a minimum 60-mil thickness and equipped with leachate collection above the liner and leak detection below the liner.

e. Area and equipment shall be provided to segregate nonbiodegradable or otherwise undesirable components from the municipal solid waste to be processed.

f. For Type B facilities, engineering controls shall be incorporated into design of facilities located on sites with:

(1) Springs, seeps, and other groundwater intrusions;

(2) Gas, water, or sewage lines under the active areas; or

(3) Electrical transmission lines above or below the active areas.

g. Roads serving the unloading, composting, and storage areas shall be of all-weather construction.

h. Auxiliary power, standby equipment, or contingency arrangements shall be required to ensure continuity of composting operations.

i. For uncovered sites, calculations for sizing of surface water control features will be based on a rainfall intensity of one hour duration and a 10-year return period.

B. Solid waste transfer stations.

1. An all-weather road suitable for loaded collection vehicles shall be provided from the entrance gate to the unloading, receiving, or tipping area.

2. The floors in the unloading, receiving, or tipping areas shall be constructed of easily cleanable materials, provided with a water supply for transfer area cleaning purposes, and equipped with drains or pumps, or equivalent means to facilitate the removal of wastewater to proper storage or disposal.

3. Truck wheel curbs or other safety facilities shall be provided to prevent backing or falling into a pit if one is used for tipping.

4. The transfer unloading, receiving, tipping, and storage structures, buildings, and ramps shall be of a material that can be easily cleaned.

5. Onsite queuing capacity shall be provided for the expected traffic so that the waiting collection vehicles do not back up onto the public road.

6. Portions of the transfer station used solely for storage of household hazardous waste shall have a containment system designed in accordance with 40 CFR 267.173, as amended. The requirements of this section do not apply to household hazardous waste packaged in U.S. Department of Transportation-approved shipping containers and removed from the site within 10 days from the date of collection.

7. If the transfer station is used to store waste materials, storage units shall be designed to reduce the potential for fires and migration of vectors, and to prevent escape of wastes, wash waters, odors, dust, and litter from the facility.

C. Centralized waste treatment facilities.

1. A centralized waste treatment facility shall be so designed to reduce the potential of elements that may degrade health or the environment from crossing the facility boundaries. Such elements include fire, vectors, wash water, odor, and litter.

2. An all-weather road suitable for loaded delivery vehicles shall be provided from the entrance gate to the unloading area.

3. Mixing tanks shall be located inside a building or have covers provided that can be deployed rapidly under the threat of inclement weather.

4. Tanks constructed in the ground shall be placed a minimum of two feet above the seasonal high ground-water table and a minimum of two feet vertical separation shall be maintained between bedrock and the lowest point of the tank.

5. Tanks constructed in the ground shall provide secondary containment and have a witness zone to immediately detect leakage. Leaks shall be repaired immediately and the department shall be notified within 24 hours.

6. Tanks constructed above ground shall allow easy access beneath the tank to allow quick leak detection and cleaning. Leaks shall be repaired immediately and the department shall be notified within 24 hours.

7. Mixing tanks shall be underlain and/or surrounded by an apron consisting of hard impermeable surface that is easily cleanable and prevent runoff of any spills.

8. Internal storage areas for processed waste shall be provided to insure an environmentally sound operation and afford space to allow for proper processing of maximum anticipated daily incoming solid waste.

9. Facility shall be designed in a manner that will prevent the migration of odors and dust offsite. The facility must meet all applicable requirements of the regulations of the Air Pollution Control Board where air releases are contemplated.

10. Onsite queuing capacity shall be provided for the expected traffic so that the waiting delivery vehicles do not back up onto the public road.

11. Facilities shall be designed with perimeter security fencing, or natural barriers, and gate controls to prevent unauthorized access to the site.

D. Materials recovery facilities.

1. A materials recovery facility shall be so designed to reduce the potential of elements that may degrade health or the environment from crossing the facility boundaries. Such elements include fire, vectors, wash water, odor, and litter.

2. An all-weather road suitable for loaded delivery vehicles shall be provided from the entrance gate to the unloading area.

3. The unloading, receiving, or tipping areas shall be constructed of impervious materials, provided with a water supply for storage and transfer area cleaning purposes, and equipped with drains or pumps, or equivalent means to facilitate the removal of wastewater to proper storage or disposal.

4. Truck wheel curbs or other safety facilities shall be provided to prevent backing or falling into a pit if one is used for tipping.

5. The unloading, tipping, receiving, and storage structures, buildings, and ramps shall be of material that can be easily cleaned.

6. Internal storage areas for unprocessed incoming solid waste will be provided to ensure an environmentally sound operation and afford space to allow for proper processing of maximum anticipated daily incoming solid waste.

7. Facility shall be designed in a manner that will prevent the migration of odors and dust offsite. The facility must meet all applicable requirements of the regulations of the Air Pollution Control Board where air releases are contemplated.

8. Onsite queuing capacity shall be provided for the expected traffic so that the waiting delivery vehicles do not back up onto the public road.

9. Fire alarm and protection systems capable of detecting, controlling, and extinguishing any and all fires shall be provided.

10. Facilities shall be designed with perimeter security fencing, or natural barriers, and gate controls to prevent unauthorized access to the site.

11. The owner or operator of a material recovery facility engaged in bioremediation shall design, construct, and maintain systems for application of nutrients, provision of air or oxygen, and regulation of moisture content designed to promote aerobic microbiological degradation. At a minimum the systems shall be:

a. Designed to be chemically resistant to any waste or leachate that may come into contact with the system;

b. Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying waste, waste cover materials, and by any equipment used in the area; and

c. Designed to provide operational temperatures that are favorable to the bioremediation process.

12. A design description manual will be prepared and submitted to the department describing or showing:

a. The process rate of the facility;

b. The designation of normal loading, unloading, and storage areas and their capacities;

c. The designation of emergency loading, unloading, storage, or other disposal capabilities to be used when the facility system downtime exceeds 24 hours;

d. The designation of alternate disposal areas or plans for transfer of solid wastes in the event facility downtime exceeds 72 hours;

e. The expected daily quantity of waste residue generation;

f. The proposed ultimate disposal location for all facility-generated waste residues including, but not limited to, residues and bypass material, byproducts resulting from air pollution control devices, and the proposed alternate disposal locations for any unauthorized waste types, that may have been unknowingly accepted. The schedule for securing contracts for the disposal of these waste types at the designated locations shall be provided;

g. A descriptive statement of any materials use, reuse, or reclamation activities to be operated in conjunction with the facility, either on the incoming solid waste or the ongoing residue;

h. Plan views showing building dimensions, building setbacks, side and rear distances between the proposed structure and other existing or proposed structures, roadways, parking areas, and site boundaries; and

i. Interior floor plans showing the layout, profile view, and dimensions of the processing lines, interior unloading, sorting, storage, and loading areas as well as other functional areas.

E. Waste to energy and incineration facilities.

1. The solid waste and combustion residue storage and handling facilities associated with a waste to energy or incineration system shall be designed to reduce the potential of elements that may degrade health or the environment from crossing the facility boundaries. Such elements include fire, vectors, wash water, odor, and litter.

2. An all-weather road suitable for loaded delivery vehicles shall be provided from the entrance gate to the unloading, receiving, or tipping area.

3. All tipping floors, sorting pads, waste storage areas, bunkers, and pits shall be constructed of concrete or other similar quality material that will withstand heavy vehicle usage. Floor drains shall be provided in all such areas and surfaces shall be graded to facilitate wash down operations. Floor drains shall be designed to discharge wastewater into a collection system for proper disposal. In those cases where waste or residue storage pits are to be utilized, the base and sidewalls shall be designed to prevent groundwater intrusion.

4. Truck wheel curbs or other safety facilities shall be provided to prevent backing or falling into a pit if one is used for tipping.

5. The unloading, receiving, and tipping structures; buildings; and ramps shall be of material that can be easily cleaned.

6. Facilities shall be designed with internal storage area for unprocessed incoming solid waste, facility process waste residues and effluents, and recovered materials, if applicable. The design shall allow for, at a minimum, three days of storage at maximum anticipated loading rates.

7. The facility shall be designed in a manner that will prevent the migration of odors and dust offsite.

8. Onsite queuing capacity shall be provided for the expected traffic so that the waiting delivery vehicles do not back up onto the public road.

9. Fire alarm and protection systems capable of detecting, controlling, and extinguishing any and all fires shall be provided.

10. Facilities shall be designed with perimeter security fencing and gate controls to prevent unauthorized access to the site and to control the offsite escape of litter.

11. A design description manual will be prepared and submitted to the department describing or showing:

a. The process rate of the facility;

b. The designation of normal loading, unloading, and storage areas and their capacities;

c. The designation of emergency loading, unloading, storage or other disposal capabilities to be used when the facility system downtime exceeds 24 hours;

d. The designation of alternate disposal areas or plans for transfer of solid wastes in the event facility downtime exceeds 72 hours;

e. The expected daily quantity of waste residue generation;

f. The proposed ultimate disposal location for all facility-generated waste residues including, but not limited to, ash residues and bypass material, byproducts resulting from air pollution control devices, and the proposed alternate disposal locations for any unauthorized waste types, which may have been unknowingly accepted. The schedule for securing contracts for the disposal of these waste types at the designated locations shall be provided;

g. A descriptive statement of any materials use, reuse, or reclamation activities to be operated in conjunction with the facility, either on the incoming solid waste or the ongoing residue;

h. Plan views showing building dimensions, building setbacks, side and rear distances between the proposed structure and other existing or proposed structures, roadways, parking areas, and site boundaries; and

i. Interior floor plans showing the layout, profile view, and dimensions of the processing lines, interior unloading, sorting, storage, and loading areas as well as other functional areas.

F. Waste piles.

1. The owner or operator of any waste pile that is inside or under a structure that provides protection from precipitation so that neither run-off nor leachate is generated is not subject to regulation under subdivision 2 of this subsection, provided that:

a. Liquids or materials containing free liquids are not placed in the pile;

b. The pile is protected from surface water run-on by the structure or in some other manner;

c. The pile is designed and operated to control dispersal of the waste by wind, where necessary, by means other than wetting;

d. The pile will not generate leachate through decomposition or other reactions; and

e. The structures, buildings, and ramps shall be of concrete, brick, or other material that can be easily cleaned.

2. Exposed waste piles.

a. Liners. A waste pile (except for an existing portion of a waste pile) shall have:

(1) A liner that is designed, constructed, and installed to prevent any migration of wastes out of the pile into the adjacent soil or groundwater or surface water at any time during the active life (including the closure period) of the waste pile. The liner shall be:

(a) Constructed of materials that have necessary chemical properties, strength, and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation;

(b) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and

(c) Installed to cover all surrounding earth likely to be in contact with the waste or leachate; and

(2) A leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate from the pile. The design and operating conditions shall ensure that the leachate depth over the liner does not exceed one foot at its lowest point. The leachate collection and removal system shall be:

(a) Constructed of materials that are (i) chemically resistant to the waste managed in the pile and the leachate expected to be generated; and (ii) of necessary strength and thickness to prevent collapse under the pressures exerted by overlaying wastes, waste cover materials, and by any equipment used at the pile; and

(b) Designed and operated to function without clogging through the scheduled closure of the waste pile.

b. The owner or operator will be exempted from the requirements of subdivision 2 a of this subsection if the director finds, based on a demonstration by the owner or operator, that alternate design and operating practices, together with location characteristics, will prevent the migration of any waste constituents into the groundwater or surface water at any future time. In deciding whether to grant an exemption, the director will consider:

(1) The nature and quantity of the wastes;

(2) The proposed alternate design and operation;

(3) The hydrogeologic setting of the facility, including attenuating capacity and thickness of the liners and soils present between the pile and groundwater or surface water; and

(4) All other factors that would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water;

c. During construction or installation, liners shall be inspected by the owner's or operator's construction quality assurance personnel for uniformity, damage, and imperfections (e.g., holes, cracks, thin spots, or foreign materials).

d. Immediately after construction or installation.

(1) Synthetic liners shall be inspected to ensure tight seams and joints and the absence of tears, punctures, or blisters; and

(2) Soil-based liners shall be inspected for imperfections including lenses, cracks, channels, root holes, or other structural nonuniformities that may cause an increase in the hydraulic conductivity of the liner.

(3) Any imperfections in the alternate liner design approved by the director will be repaired.

e. The owner or operator shall design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the pile during peak discharge from at least a 25-year storm.

f. The owner or operator shall design, construct, operate, and maintain a run-off management system to collect and control at least the water volume resulting from a 24-hour, 25-year storm.

3. Area, facilities, and equipment shall be provided to segregate undesirable components from the incoming solid waste to be processed.

4. The storage or treatment units shall be designed to prevent fires and migration of vectors, and to prevent escape of wastes, wash waters, waste decomposition odors, dust, and litter from the facility. The storage and treatment units will be designed to withstand the physical, chemical, and biological characteristics of the waste managed.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-340 Operation requirements

The operation of all compost facilities, solid waste transfer stations, centralized waste treatment facilities, materials recovery facilities, waste to energy and incineration facilities, and waste piles shall be governed by the standards as set forth in this section. Operations for these facilities will be detailed in an operations manual that shall be maintained in the operating record in accordance with 9VAC20-81-485. This operations manual will include an operations plan, an inspection plan, a health and safety plan, an unauthorized waste control plan, and an emergency contingency plan meeting the requirements of this section and 9VAC20-81-485. This manual shall be made available to the department when requested. If the applicable standards of this chapter and the facility's operations manual conflict, this chapter shall take precedence.

A. Compost facilities.

1. For facilities that will compost only Category I wastes:

a. Noncompostable or other undesirable solid waste shall be segregated from the material to be composted. Solid waste that is not composted, salvaged, reused, or sold must be disposed at a permitted solid waste management facility authorized to accept the waste.

b. The addition of any other solid waste including but not limited to hazardous waste, regulated medical waste, construction waste, debris, demolition waste, industrial waste, or other municipal solid waste to the Category I waste received at the composting facility is prohibited, except that the materials that are excluded under 9VAC20-81-95 may be combined with Category I waste for the purpose of producing compost under the provisions of this chapter.

c. Access to the composting facility shall be permitted only when an attendant is on duty.

d. Dust, odors, and vectors shall be controlled so they do not constitute nuisances or hazards. Fugitive dust and mud deposits on main offsite roads and access roads shall be minimized at all times to limit nuisances. Dust shall be controlled to meet the requirements of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-60.

e. The owner or operator shall prepare, implement, and enforce a safety program and a fire prevention and suppression program designed to minimize hazards.

f. Open burning shall be prohibited on the facility property.

g. Leachate or other runoff from the facility shall not be permitted to drain or discharge directly into surface waters, unless authorized by a VPDES permit.

h. Designed buffer zones shall be maintained.

2. Facilities for the composting of Category II, III, or IV feedstocks, including those that mix these categories with Category I feedstocks, shall be provided with:

a. Noncompostable or other undesirable solid waste shall be segregated from the material to be composted. Solid waste that is not composted, salvaged, reused, or sold must be disposed at a permitted solid waste management facility authorized to accept the waste.

b. Products will continue to be considered as solid wastes until the testing indicates that they attain finished compost standards. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity and shall be conducted in a manner consistent with SW-846, as amended, and other applicable standards. The minimum number of samples that shall be collected and analyzed is shown in the table below. Samples to be analyzed for metals shall be composited prior to the analysis.

| | Minimum Frequency of Analysis | | | --- | --- | --- | | | Amount of finished compost¹(tons per 365 day period) | Frequency² | | | Less than 320 | Once per year. | | | Equal to or greater than 320 but less than 1,653 | Once per quarter (four times per year). | | | Equal to or greater than 1,653 but less than 16,535 | Once per 60 days (six times per year). | | | Equal to or greater than 16,535 | Once per month (12 times per year). | | | ¹Either the amount of finished compost applied to the land or prepared for sale or give-away for application to the land (dry weight basis). | | | | ²After the finished compost has been monitored for two years at the frequency in the above table, the facility may request that the department reduce the frequency of monitoring. | |

c. All finished products will be tested for compost stability using one of the methods listed below:

(1) Temperature decline to near ambient conditions when not the result of improper management of the composting process. Composting records shall indicate schedules for turning, monitoring of moisture within the required range, and mix of composting feedstocks.

(2) Reheat potential using the Dewar Compost Self-Heating Flask. The results must indicate a stable product. Temperature rise above ambient must not exceed 10°C for stable compost. Very stable compost will not exceed 20°C above ambient.

(3) Specific oxygen uptake. To be classified as stable the product must have a specific oxygen uptake rate of less than 0.1 milligrams per gram of dry solids per hour.

(4) SolvitaTM Compost Maturity Test. To be classified as stable the product must exhibit color equal or greater than six.

(5) Carbon dioxide evolution. To be classified as stable the product must not evolve more than 1,000 milligrams of carbon dioxide per liter per day.

d. In addition to testing required of this subsection, finished products produced from any Category III and IV materials will be tested for the presence of the following organisms using the methods indicated below:

(1) Parasites. The density of viable helminth ova in the finished compost shall be less than one per four grams of total solids (dry weight basis) at the time the finished compost is prepared for sale or give away in a container for application to the land. Viable helminth ova reduction shall be demonstrated by testing the finished compost once per quarter for a period of one year. After the viable helminth ova reduction has been demonstrated for the composting process, additional helminth ova testing will not be required provided the composting operating parameters and incoming waste stream are consistent with the values or ranges of values documented during the initial helminth ova reduction demonstration. If the composting parameters or incoming waste stream change a new viable helminth ova reduction demonstration is required, and

(2) Bacteria pathogens. Either the density of fecal coliform in the finished compost shall be less than 1000 Most Probable Number (MPN) per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the finished compost shall be less than three MPN per four grams of total solids (dry weight basis) at the time the finished compost is prepared for sale or give away in a container for application to the land.

(3) Other test methods, or facility operating standards may be used in lieu of the above parasite and pathogen testing requirements as approved by the department.

e. Metals. In addition to the testing requirements contained in this subsection, all finished products produced from Category IV materials shall be analyzed for the metals shown below. The concentration of contaminants shall not exceed the following levels:

| | Metal | Concentration, mg/kg dry solids | | --- | --- | --- | | | Arsenic | 41 | | | Cadmium | 21 | | | Copper | 1500 | | | Lead | 300 | | | Mercury | 17 | | | Molybdenum | 54 | | | Nickel | 420 | | | Selenium | 28 | | | Zinc | 2,800 |

f. Designed buffer zones shall be maintained.

g. The owner or operator shall prepare an operation plan that shall include as a minimum:

(1) The description of types of wastes that will be managed at the facility. This description must properly categorize the compost feedstocks in accordance with 9VAC20-81-310 A 4. If the specific materials are not listed in that section, a discussion will be prepared that compares the materials that the facility will receive with the materials listed in theapplicable feedstock category and justifies the categorization of the proposed feedstock. For each type of material an approximate C:N ratio will be provided. The expected quantity of any bulking agent or amendment will be provided (if applicable); and any expected recycle of bulking agent or compost. The plan shall include the annual solid waste input, the service area population (both present and projected if applicable), and any seasonal variations in the solid waste type and quantity;

(2) A discussion of the composting process including:

(a) For Type A compost facilities the following will be provided:

(i) A copy of the manufacturer's operating manual, and drawings and specifications of the composting unit.

(ii) A discussion of the unit's requirements for power, water supply, and wastewater removal, and the steps taken to accommodate these requirements.

(b) For Type B compost facilities the following will be provided:

(i) A description of the configuration of the composting process including compost pile sizing, and orientation, provisions for water supply, provisions for wastewater disposal, and an equipment list.

(ii) A discussion of procedures and frequency for moisture, and temperature monitoring, and aeration.

(iii) A discussion of pile formation, and feedstock proportioning and feedstock preparation;

(3) A discussion of the method and frequency of final product testing in accordance with this subsection will be provided;

(4) A schedule of operation, including the days and hours that the facility will be open, preparations before opening, and procedures followed after closing for the day;

(5) Anticipated daily traffic flow to and from the facility, including the number of trips by private or public collection vehicles;

(6) The procedure for unloading trucks (including frequency, rate, and method);

(7) A contingency plan detailing corrective or remedial action to be taken in the event of equipment breakdown; air pollution (odors); unacceptable waste delivered to the facility; spills; and undesirable conditions such as fires, dust, noise, vectors, and unusual traffic conditions;

(8) Special precautions or procedures for operation during wind, heavy rain, snow, and freezing conditions;

(9) A description of the ultimate use for the finished compost, method for removal from the site, and a plan for use or disposal of finished compost that cannot be used in the expected manner due to poor quality or change in market conditions;

(10) A discussion of inspections in accordance with subdivision 2 h (3) of this subsection; and

(11) A discussion of records to be maintained in accordance with 9VAC20-81-350.

h. Maintenance.

(1) Facility components shall be maintained and operated in accordance with the permit and intended use of the facility.

(2) Adequate numbers, types, and sizes of properly maintained equipment shall be available at the facility during all hours of operation to prevent curtailment of operations because of equipment failure except under extraordinary conditions beyond the control of the facility's owner or operator.

(3) The facility owner or operator shall monitor and inspect the facility for malfunctions, deteriorations, operator errors, and discharges that may cause a release to the environment or a threat to human health. The facility owner or operator shall promptly remedy any deterioration or malfunction of equipment or structures or any other problems revealed by the inspections to ensure that no environmental or human health hazard develops. Where a hazard is imminent or has already occurred, remedial action shall be taken immediately.

(4) The amount of compost stored at the facility shall not exceed the designed storage capacity.

i. Leachate or other runoff from the facility shall not be permitted to drain or discharge directly into surface waters, unless authorized by a VPDES permit.

B. Solid waste transfer stations.

1. No uncontainerized putrescible solid waste shall remain at the transfer station at the end of the working day.

2. A written operating plan shall be prepared covering at the minimum:

a. Facility housekeeping, procedures for detection of regulated hazardous and medical wastes, onsite traffic control, schedules for waste delivery vehicle flow, wastewater collection, storm water collection, vector control, odor control, noise control, and methods of enforcement of traffic flow plans for the waste delivery vehicles; and/or

b. The process rate of the facility, the capacities of any waste storage areas, and the ultimate disposal location for all facility-generated waste residue.

3. A written contingency plan shall be prepared for a transfer station covering operating procedures to be employed during periods of nonoperation. This plan shall set forth procedures to be employed in the event of equipment breakdown that will require standby equipment, extension of operating hours, or diversion of solid waste to other facilities.

4. Leachate and wash water from a transfer station shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES permit issued pursuant to 9VAC25-31.

5. No regulated hazardous wastes shall be accepted for processing unless they are received under the provisions of a hazardous waste permit or they are specifically exempted by the provisions of the Virginia Hazardous Waste Management Regulations (9VAC20-60). Storage of household hazardous waste at facilities designed in accordance with 9VAC20-81-330 B 6 shall be accomplished in accordance with the requirements of 40 CFR 261.173, as amended. Storage in such facilities may not exceed one year.

C. Centralized waste treatment facilities.

1. All incoming waste shall begin treatment at the solidification facility by the end of the working day.

2. Facilities engaged in the solidification of petroleum contaminated sludge shall perform the analyses required by 9VAC20-81-660 C.

3. A written operating plan shall be prepared covering at the minimum:

a. Facility housekeeping, schedules for waste delivery vehicle flow, wastewater collection, storm water collection, vector control, odor control, and noise control.

b. A description of methods to determine the characteristics of the treated waste, frequency of testing and the action the facility owner or operator will take whenever the material fails to meet applicable standards.

c. The process rate of the facility, the capacities of any storage areas, and the ultimate disposal location(s).

d. For facilities engaged in the reclamation of soil, a description of the methods and frequencies of analysis of the reclaimed product shall be provided as required by 9VAC20-81-660.

4. A written contingency plan shall be prepared to establish operating procedures to be employed during periods of nonprocessing. This plan shall set forth procedures to be employed in the event of equipment breakdown that will require standby equipment, extension of operating hours, or diversion of solid waste to other facilities. The plan will include emergency loading, unloading, storage, transfer, or other disposal capabilities to be used when the facility downtime exceeds 24 hours.

5. Leachate and wash water from a centralized waste treatment facility shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES Permit issued pursuant to 9VAC25-31.

6. Inspection and leak detection monitoring records shall be maintained and made available upon request for the lifetime of the treatment facility.

D. Materials recovery facilities.

1. No uncontainerized putrescible waste shall remain at the materials recovery facility at the end of the working day.

2. Facilities engaged in the reclamation of petroleum contaminated soils shall perform the analyses required by 9VAC20-81-660.

3. A written operating plan shall be prepared covering at the minimum:

a. Facility housekeeping, onsite traffic control, schedules for waste delivery vehicle flow, wastewater collection, storm water collection, vector control, odor control, noise control, and methods of enforcement of traffic flow plans for the waste delivery vehicles.

b. A description of methods to determine the usefulness of the recovered material, frequency of testing, and the action the facility owner or operator will take whenever the material fails the standards applicable to the recovered product and must be disposed of as waste.

c. The process rate of the facility, the capacities of any waste storage areas, the expected daily quantity of waste residue generation, and the ultimate disposal location for all facility generated waste residue.

d. For facilities engaged in the reclamation of soil, a description of the methods and frequencies of analysis of the reclaimed product shall be provided as required by 9VAC20-81-660.

e. For facilities that store waste tires, the provisions of 9VAC20-81-640 B, C, and D, as applicable.

4. A written contingency plan shall be prepared for a materials recovery facility covering operating procedures to be employed during periods of nonprocessing. This plan shall set forth procedures to be employed in the event of equipment breakdown that will require standby equipment, extension of operating hours, or diversion of solid waste to other facilities. The plan will include emergency loading, unloading, storage, transfer, or other disposal capabilities to be used when the facility downtime exceeds 24 hours.

5. Leachate and wash water from a materials recovery facility shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES Permit issued pursuant to 9VAC25-31.

E. Waste to energy and incineration facilities.

1. Unprocessed incoming waste, facility process waste residues and effluents, and recovered materials, if applicable, shall be stored in bunkers, pits, bins, or similar containment vessels and shall be kept at all times at levels that prevent spillage or overflow. Any waste materials temporarily stored on the facility's tipping floor shall be stored as stated above by the end of the working day, or other time frame approved by the director.

2. A written operating plan shall be prepared covering at the minimum facility housekeeping, onsite traffic control, process rate, schedules for waste delivery vehicle flow, wastewater collection, storm water collection, vector control, odor control, noise control, and methods of enforcement of traffic flow plans for the waste delivery vehicles.

3. The owner or operator shall implement waste receiving area control procedures that provide for the inspection of the incoming waste stream for the purpose of removing unprocessible or potentially explosive materials prior to the initiation of processing. In addition, the inspection shall effectively prevent the acceptance of unauthorized waste types by inspecting a minimum of 1.0% of the incoming loads of waste. If the facility receives waste generated outside of Virginia and the regulatory structure in the originating jurisdiction allows for the disposal of wastes at landfills or the incineration of wastes that are prohibited or restricted by Virginia's laws and regulations prohibit, a minimum of 10% of the incoming loads of waste from those jurisdictions shall be inspected. These procedures and necessary contingency plans shall be incorporated into the facility's operating manual.

4. A written contingency plan shall be prepared for a waste to energy facility covering operating procedures to be employed during periods of nonoperation. This plan shall set forth procedures to be employed in the event of equipment breakdown that will require standby equipment, extension of operating hours, or diversion of solid waste to other facilities.

5. Leachate and wash water from an waste to energy facility shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES Permit issued pursuant to the State Water Control Board regulation (9VAC25-31).

6. Arrangements for disposal of facility-generated waste shall be established and maintained throughout the life of the waste to energy or incineration facility.

7. Chemical analyses of residues.

a. The owner or operator shall perform a chemical analyses of all residual ash, in accordance with the conditions of the solid waste management facility permit and current solid waste management regulations.

b. Samples and measurements taken for this purpose shall be representative of the process or operation and shall be performed in accordance with the procedures outlined in "Test Methods for Evaluating Solid Waste - Physical/Chemical Methods," EPA publication SW-846. At a minimum the sampling shall include analyses for toxicity and shall be performed at the frequency specified in the facility's permit.

c. The department may require the operator to perform additional analyses on ash removed from exhaust gases and collected by emission control equipment at a frequency established by the department in the facility's permit.

d. A report containing the following information shall be submitted to the department within 90 days of sample collection:

(1) The date and place of sampling and analysis;

(2) The names of the individuals who performed the sampling and analysis;

(3) The sampling and analytical methods utilized;

(4) The results of such sampling and analyses; and

(5) The signature and certification of the report by an authorized agent for the facility.

F. Waste piles.

1. No putrescible solid waste shall remain at the storage or treatment facility at the end of the working day unless it is stored in lined or covered waste storage areas, or interim transportation vehicles (trailers, roll-off containers) designed specifically for storage.

2. A written operating plan for the waste management facility shall be prepared covering at the minimum:

a. Facility housekeeping, onsite traffic control, schedules for waste delivery vehicle flow, wastewater/leachate collection, storm water collection, vector control, odor control, dust suppression, noise control, and methods of enforcement of traffic flow plans for the waste delivery vehicles.

b. A description of types of wastes that will be managed at the facility, of the storage or treatment activity, of any required testing including test methods and frequencies, and sampling techniques.

c. A description of the management and disposition of waste materials will be provided that addresses waste materials that are undesirable and will not be received at the facility.

d. Descriptions of first-in, first-out waste management procedures to ensure that the oldest waste materials being stored are sent offsite for re-use or disposal prior to newer materials.

e. A fire prevention and suppression program designed to minimize hazards when storing organic waste streams.

3. A written contingency plan shall be prepared covering operating procedures to be employed during periods of nonoperation. This plan shall set forth procedures to be employed in the event of equipment breakdown that will require standby equipment, extension of operating hours, or diversion of solid waste to other facilities.

4. Leachate and run-off that have been in contact with the contents of the waste pile shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES permit issued pursuant to 9VAC25-31.

5. Collection and holding facilities associated with run-on and run-off control systems shall be emptied or otherwise managed expeditiously after storms to maintain design capacity of the system.

6. If the pile contains any particulate matter that may be subject to wind dispersal, the owner or operator shall cover or otherwise manage the pile to control wind dispersal.

7. While a waste pile is in operation, it shall be inspected weekly and after storms to detect evidence of any of the following:

a. Deterioration, malfunctions, or improper operation of run-on and run-off control systems;

b. Proper functioning of wind dispersal control systems, where present; and

c. The presence of leachate in and proper functioning of leachate collection and removal systems, where present.

8. Incompatible wastes, or incompatible wastes and materials shall not be placed in the same pile.

9. Roads serving the unloading, treatment, and storage areas shall be maintained to be passable in all weather by ordinary vehicles when the facility is operating. All operation areas and units shall be accessible.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-350 Recordkeeping requirements

Recordkeeping for compost facilities, solid waste transfer stations, centralized waste treatment facilities, materials recovery facilities, waste to energy and incineration facilities, waste piles, and miscellaneous facilities shall be governed by the standards as set forth in this section. Records to be maintained include:

1. The facility owner or operator shall record self-inspections in an inspection log. These records shall be retained for at least three years from the date of inspection. They must include the date and time of the inspection, the name of the inspector, a description of the inspection including the identity of specific equipment and structures inspected, the observations recorded, and the date and nature of any remedial actions implemented or repairs made as a result of the inspection.

2. The facility owner or operator shall record any monitoring information (including all calibration and maintenance records and copies of all reports required by this part or the permit or permit-by-rule). Records for monitoring information shall include the date, exact place, and time of sampling or measurements; the name of the individual who performed the sampling and measurement; the date analyses were performed; the name of the individual who performed the analyses; the analytical techniques or methods used; and the result of such analyses. Additional information relating to the analysis, including records of internal laboratory quality assurance and control, shall be made available to the department at its request.

3. The facility owner or operator shall retain records of all unauthorized solid waste accepted identifying the waste and its final disposition. Such records shall include the date solid waste was received, the type of solid waste received, the date of disposal, and the disposal method and location.

4. The records shall be retained in the operating record for the facility for a period of at least three years from the date of the sample analysis, measurement, report, or application.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-360 Closure requirements

The closure of all compost facilities, solid waste transfer stations, centralized waste treatment facilities, materials recovery facilities, waste to energy and incineration facilities, and waste piles shall be governed by the standards as set forth in this section:

1. The owner or operator shall close his facility in a manner that minimizes the need for further maintenance, and controls, minimizes, or eliminates, to the extent necessary to protect human health and the environment, the postclosure escape of uncontrolled leachate, surface runoff, or waste decomposition products to the groundwater, surface water, or to the atmosphere.

a. At closure, the owner or operator shall remove or decontaminate all waste residues, contaminated containment system components (liners, etc.), contaminated subsoils, and structures and equipment contaminated with waste and leachate. For miscellaneous units, all waste, materials contaminated with waste constituents, and treatment residue shall be removed and disposed in a permitted facility.

b. If, after removing or decontaminating all residues and making all reasonable efforts to effect removal or decontamination of contaminated components, subsoils, structures, and equipment as required in subdivision 1 a of this section, the owner or operator finds that not all contaminated subsoils can be practicably removed or decontaminated, he shall close the facility and perform postclosure care in accordance with the closure and postclosure care requirements of Part III (9VAC20-81-160 and 9VAC20-81-170, respectively). In addition, for compost facilities, other corrective measures approved by the department may be used to remediate the site.

2. Closure plan and modification of plan.

a. The owner or operator of any facility shall have a written closure plan. This plan shall identify the steps necessary to completely close the facility/unit at its full operation under the permit conditions. The closure plan shall include, at least a schedule for final closure including, as a minimum, the anticipated date when wastes will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates that will allow tracking of the progress of closure.

b. The owner or operator may amend his closure plan at any time during the active life of the facility. The owner or operator shall so amend his plan any time changes in operating plans or facility design affects the closure plan. The amended closure plan shall be placed in the operating record.

c. The owner or operator shall submit to the department the amended closure plan that was placed in the operating record.

d. At least 180 days prior to beginning closure of each unit, the owner or operator shall notify the department of the intent to close.

e. The owner or operator shall provide to the department a certification from a professional engineer that the facility has been closed in accordance with the closure plan.

3. Time allowed for closure.

a. The owner or operator shall complete closure activities in accordance with the closure plan and within six months after receiving the final volume of wastes. The director may approve a longer closure period if the owner or operator can demonstrate that the required or planned closure activities will, of necessity, take longer than six months to complete; and that he has taken all steps to eliminate any significant threat to human health and the environment from the unclosed but inactive facility.

b. The owner or operator shall post one sign notifying all persons of the closing, and providing a notice prohibiting further receipt of waste materials. The sign will remain in place until closure activities are complete. Further, suitable barriers shall be installed at former accesses to prevent new waste from being delivered.

4. Inspection. The department shall inspect all facilities at the time of closure to confirm that the closing is complete and adequate. It shall notify the owner of a closed facility, in writing, if the closure is satisfactory, and shall require any necessary construction or such other steps as may be necessary to bring unsatisfactory sites into compliance with this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-370 Closure requirements for surface impoundments and lagoons

A. Closure. At closure, the owner or operator shall:

1. Remove all waste residue, contaminated containment system components (liners, etc.), contaminated subsoils, and decontaminate structures and equipment contaminated with waste, and manage them as solid waste (or hazardous waste, if applicable) unless exempt under Part III (9VAC20-81-100 et seq.) of this chapter; or

2. Close the impoundment and provide postclosure care for a landfill under Part III (9VAC20-81-100 et seq.) of this chapter, including the following:

a. Eliminate free liquids by removing liquid waste and waste residue;

b. Install a groundwater monitoring system and initiate groundwater monitoring in accordance with the requirements of 9VAC20-81-250;

c. Stabilize remaining waste residues to a bearing capacity necessary to support the final cover; and

d. Cover the surface impoundment with a final cover designed and constructed in accordance with the requirements of 9VAC20-81-160 D 2.

3. Close inactive, new, and existing CCR surface impoundments in accordance with the requirements of Part VIII (9VAC20-81-800 et seq.) of this chapter or this subsection, whichever is more stringent.

B. Inspection. The department shall inspect all solid waste management facilities at the time of closure to confirm that the closing is complete and adequate. It shall notify the owner of a closed facility, in writing, if the closure is satisfactory and shall require any necessary construction or such other steps as may be necessary to bring unsatisfactory sites into compliance with this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-380 Remediation waste management units

A. General.

1. For the purpose of implementing remedies under 9VAC20-81-45 or under the Voluntary Remediation Regulations (9VAC20-160), the director may designate an area of a facility as a remediation waste management unit (RWMU) as defined in Part I (9VAC20-81-10 et seq.) of this chapter. One of more RWMUs may be designated at a facility.

2. The director may designate a unit subject to this chapter as an RWMU or incorporate such a unit into a designated RWMU if:

a. The unit is closed or has begun the closure process under 9VAC20-81-160 C; and

b. Inclusion of the unit will enhance implementation of effective, protective, and reliable remedial actions for the facility.

3. Consolidation or placement of remediation wastes into a designated RWMU does not constitute creation of a unit subject to the siting, design, and operation requirements of Part III (9VAC20-81-120, 9VAC20-81-130, and 9VAC20-81-140) and the permitting requirements of Part V (9VAC20-81-400 et seq.) of this chapter.

4. The applicable requirements for groundwater monitoring and closure under 9VAC20-81-250 and 9VAC20-81-160 will continue to apply to the RWMU.

B. Criteria for designating RWMUs. The director will designate an RWMU if he finds that:

1. The RWMU shall facilitate the implementation of reliable, protective and cost-effective remedies;

2. Waste management activities associated with the RWMU shall not create unacceptable risks to humans or to the environment resulting from exposure to solid wastes and solid waste constituents;

3. If an inclusion of uncontaminated areas of the facility into an RWMU is requested, such an inclusion will be more protective than management of such wastes at contaminated areas of the facility;

4. Areas within the RWMU where wastes remain in place after closure of the RWMU shall be managed and contained so as to minimize future releases, to the extent practicable;

5. The RWMU shall expedite the timing of the remedial activity implementation when appropriate and practicable;

6. The RWMU shall enable the use, when appropriate, of treatment technologies (including innovative treatment technologies) to enhance the long-term effectiveness of remedial actions by reducing the toxicity, mobility, or volume of wastes that will remain in place after closure of the RWMU; and

7. The RWMU shall, to the extent practicable, minimize the land area of the facility upon which wastes will remain in place after closure of the RWMU.

C. Requirements. The director will specify the requirements for RWMUs to include, but not be limited to, the following:

1. The areal configuration of the RWMU;

2. Requirements for remediation waste management to include the specification of applicable design, operation and closure requirements;

3. Requirements for groundwater monitoring that:

a. Continue to detect and to characterize the nature, extent, concentration, direction, and movement of existing releases of solid waste constituents in groundwater from sources located within the RWMU; and

b. Detect and subsequently characterize releases of solid waste constituents to groundwater that may occur from areas of the RWMU in which wastes will remain in place after closure of the RWMU.

4. Closure and postclosure care requirements:

a. Closure of RWMUs shall:

(1) Minimize the need for further maintenance; and

(2) Control, minimize, or eliminate, to the extent necessary to protect human health and the environment, for areas where wastes remain in place, postclosure escape of solid waste, solid waste constituents, leachate, contaminated run-off, or waste decomposition products to the ground, surface waters, or the atmosphere.

b. Requirements for closure of an RWMU shall include the following, as appropriate and deemed necessary by the director for a given RWMU:

(1) Requirements for excavation, removal, treatment, or containment of wastes;

(2) For areas in which wastes will remain in place after closure of the RWMU, requirements for capping of such areas; and

(3) Requirements for decontamination of equipment, devices, and structures in remediation waste management activities within the RWMU.

c. In establishing specific closure requirements for RWMUs, the director will consider the following factors:

(1) RWMU characteristics;

(2) Volume of waste that remains in place after closure;

(3) Potential for releases from the RWMU;

(4) Physical and chemical characteristics of the waste;

(5) Hydrological and other relevant environmental conditions at the facility that may influence the migration of any potential or actual releases; and

(6) Potential for exposure of humans and environmental receptors if releases were to occur from the RWMU.

d. Postclosure requirements as necessary to protect human health and the environment to include, for areas where wastes will remain in place, monitoring and maintenance activities and the frequency with which such activities shall be performed in order to ensure the integrity of any final cap, final cover, or other containment system.

5. The director will document the rationale for designating RWMUs.

6. The designation of an RWMU does not change the department's existing authority to address clean-up levels, media specific points of compliance to be applied to remediation at a facility, or other remedy selection decisions.

D. Temporary units.

1. Temporary tanks and container storage areas may be used for treatment or storage of remediation wastes during remedial activities, if the director determines that design, operating, or closure standards applicable to RWMUs may be replaced by alternative requirements that are protective of human health and the environment.

2. Any temporary unit to which alternative requirements are applied shall be:

a. Located within the facility boundary; and

b. Used only for the treatment or storage of remediation wastes.

3. In establishing standards to be applied to temporary units, the director will consider the following factors:

a. Length of time such unit will be in operation;

b. Type of unit;

c. Volumes of waste to be managed;

d. Physical and chemical characteristics of the waste to be managed in the unit;

e. Potential for releases from the unit;

f. Hydrogeological and other relevant environmental conditions at the facility that may influence migration of any potential releases; and

g. Potential for exposure of humans and environmental receptors if releases were to occur from the unit.

4. The director will specify the length of time a temporary unit will be allowed to operate, to be no longer than a period of one year. The director will also specify the design, operating, and closure requirements for the unit.

5. The director may extend the operational period of a temporary unit once for a period of one year beyond that originally specified, if the director determines that:

a. Continued operation of the unit will not pose a threat to human health and the environment; and

b. Continued operation of the unit is necessary to ensure timely and efficient implementation of the remedial actions at the facility.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-385 Landfill mining

A. Because of the varied and experimental nature of the landfill mining processes currently employed, 9VAC20-81-395 offers management standards. For this reason, portions of that section shall be made applicable to the mining process. As used in this section "landfill mining" does not include excavation of waste to facilitate installation of landfill gas, leachate management, or other utility systems provided waste excavated is managed and cover installed in accordance with 9VAC20-81-140 or 9VAC20-81-160, as applicable.

B. In addition to fulfilling applicable requirements of 9VAC20-81-395, the owner or operator of a landfill mining facility shall prepare an operational plan that will describe in detail the procedures that will be employed in opening the closed landfill areas, the phased description of opened areas, the procedures that will be employed in excavation of opened areas, the management of excavated materials, and disposition of recovered materials and unusable residues. The operational plan shall also contain an estimate of the duration of the mining process and the final use of the recovered air space.

C. In cases where residues will be disposed on site, the disposal units shall be regulated under Part III (9VAC20-81-100 et seq.) of this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-395 Miscellaneous facilities

A. The requirements in this section apply to owners and operators of facilities that treat or store solid waste in facilities or units not otherwise regulated under Part III (9VAC20-81-100 et seq.) of this chapter or 9VAC20-81-310 through 9VAC20-81-385.

B. A miscellaneous unit shall be located, designed, constructed, operated, maintained, and closed in a manner that will ensure protection of human health and the environment. Permits for miscellaneous units are to contain such terms and provisions as necessary to protect human health and the environment, including, but not limited to, siting, design and operating requirements, detection and monitoring requirements, and requirements for responses to releases of solid waste or constituents of solid wastes from the unit. Permit terms and provisions shall include those requirements of Part III (9VAC20-81-100 et seq.), 9VAC20-81-310 through 9VAC20-81-385, and Part V (9VAC20-81-400 et seq.), that are appropriate for the miscellaneous unit being permitted.

C. Protection of human health and the environment includes, but is not limited to:

1. Proper location of the facility and the unit considering:

a. The hydrologic and geologic characteristics of the unit and the surrounding area, including the topography of the land around the facility and the unit;

b. The atmospheric and meteorological characteristics of the unit and the surrounding area;

c. The patterns of precipitation in the region;

d. The patterns of land use in the surrounding area;

e. The potential for health risks caused by human exposure to waste constituents; and

f. The potential for damage to domestic animals, wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents.

2. Prevention of any releases that may have adverse effects on human health or the environment due to migration of waste constituents in the ground water or subsurface environment, considering:

a. The volume and physical and chemical characteristics of the waste in the unit, including its potential for migration through soil, liners, or other containing structures;

b. The existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater;

c. The quantity and direction of groundwater flow;

d. The proximity to and withdrawal rates of current and potential groundwater uses; and

e. The potential for deposition or migration of waste constituents into subsurface physical structures, and into the root zone of food-chain crops and other vegetation.

3. Prevention of any releases that may have adverse effects on human health or the environment due to migration of waste constituents in surface water, or wetlands or on the soil surface considering:

a. The volume and physical and chemical characteristics of the waste in the unit;

b. The effectiveness and reliability of containing, confining, and collecting systems and structures in preventing migration;

c. The quantity, quality, and direction of groundwater flow;

d. The proximity of the unit to surface waters;

e. The current and potential uses of nearby surface waters and any water quality standards established for those surface waters; and

f. The existing quality of surface waters and surface soils, including other sources of contamination and their cumulative impact on surface waters and surface soils.

4. Prevention of any release that may have adverse effects on human health or the environment due to migration of waste constituents in the air, considering:

a. The volume and physical and chemical characteristics of the waste in the unit, including its potential for the emission and dispersal of gases, aerosols and particulates;

b. The effectiveness and reliability of systems and structures to reduce or prevent emissions of waste constituents to the air;

c. The operating characteristics of the unit; and

d. The existing quality of the air, including other sources of contamination and their cumulative impact on the air.

D. Monitoring, testing, analytical data, inspections, response, and reporting procedures and frequencies, when called for by the performance standards in subsection C of this section, shall ensure compliance with any applicable requirements of Parts V (9VAC20-81-400 et seq.), VI (9VAC20-81-610), or VIII (9VAC20-81-700) of this chapter, as well as meet any additional requirements needed to protect human health and the environment as specified in the permit.

E. Closure shall be in accordance with 9VAC20-81-160 D.

F. Postclosure care. If a treatment or storage unit has contaminated soils or groundwater that cannot be completely removed or decontaminated during closure, it shall close as a disposal unit in accordance with the requirements of 9VAC20-81-160 and 9VAC20-81-170.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-397 Exempt yard waste composting facilities

A. Applicability.

1. The standards in subsection B of this section apply to persons who compost vegetative waste in a manner described in the conditional exemption set forth at 9VAC20-81-95 D.

2. The standards in subsection C of this section apply to persons who operate small vegetative waste disposal units on their property.

B. Composting of yard waste. Additional requirements for managing conditionally exempt yard waste compost facilities, described under 9VAC20-81-95 D 6, are as follows:

1. Owners or operators of agricultural operational activities that accept only yard waste generated offsite are exempt from all other provisions of this chapter as applied to the composting activities provided that:

a. The total time for composting process and storage of material that is being composted shall not exceed 18 months prior to its field application or sale as a horticultural or agricultural product;

b. No waste material other than yard waste is received;

c. The total amount of yard waste received from offsite never exceeds 6,000 cubic yards in any consecutive 12-month period;

d. All applicable standards of local ordinances that govern or concern yard waste handling, composting, storage, or disposal are satisfied;

e. They pose no nuisance or present or potential threat to human health or the environment; and

f. Before receiving any waste, the owner submits a complete DEQ Form YW-3:

2. Owners or operators of agricultural operations that accept only Category I yard waste feedstocks and manures from herbivorous animals generated offsite are exempt from all other provisions of this chapter as applied to the composting activities provided that:

a. The composting area is located not less 300 feet from a property boundary of a parcel owned or controlled by another person, is located not less than 1,000 feet from an occupied dwelling not located on the same property as the composting area, and is not located within an area designated as a flood plain;

b. The agricultural operation has at least one acre of ground suitable to receive yard waste for each 150 cubic yards of finished compost;

c. The total time for the composting process and storage of material that is being composted or has been composted shall not exceed 18 months prior to the field application or sale as horticultural or agricultural product;

d. The owner or operator of any agricultural operation that receives in any 12-month period (consecutive) more than 6,000 cubic yards of waste generated from property not within the control of the owner or the operator shall submit by April 1 each year to the director an annual report in accordance with subdivision 4 of this subsection describing the volume and types of yard waste received for composting by the operation between January 1 and December 31 of the preceding consecutive 12 months and shall certify that the yard waste composting facility complies with local ordinances;

e. No waste material other than yard waste and manures from herbivorous animals are received;

f. The quantities of offsite manures from herbivorous animals brought onsite are limited to achieve a carbon to nitrogen ratio of 25:1 to 40:1. All manures must be incorporated into the compost within 24 hours of delivery. No offsite manures may be stored onsite; and

g. Prior to the receipt of solid waste generated offsite, the owner or operator of the agricultural operation intending to operate under this exemption shall submit a complete DEQ Form YW-4.

3. Owners or other persons authorized by the owner of real property who receive only yard waste generated offsite for the purpose of producing compost on said property shall be exempt from all requirements of this chapter as applied to the composting activity provided that:

a. Not more than 500 cubic yards of yard waste generated offsite is received at the owner's said property in any consecutive 12-month period;

b. No compensation will be received, either directly or indirectly, by the owner or other persons authorized by the owner of said property from parties providing yard waste generated off said property;

c. All applicable standards of local ordinances that govern or concern yard waste handling, composting, storage, or disposal are satisfied; and

d. They pose no nuisance or present or potential threat to human health or the environment.

4. Owners or operators of an agricultural composting operation in accordance with subdivision 2 of this subsection, who are exempt from the permitting requirements in accordance with 9VAC20-81-95 D and who may receive more than 6,000 cubic yards of yard waste generated from property not within the control of the owner or operator in any 12-month period shall submit an annual report on DEQ Form YW-2. The report shall describe the volume and types of yard waste received for composting. Completion and filing of the form by April 1 for activities in the preceding 12 months (January 1 through December 31) constitutes compliance with the requirements. The annual report shall be submitted on DEQ Form YW-2.

C. Small disposal units for vegetative wastes from land clearing. Additional requirements for managing small disposal units for vegetative waste from land clearing as exempted under 9VAC20-81-95 D 17 are as follows:

Owners of real property who operate small waste disposal units that qualify under all the conditions of this subsection shall be exempt from other provisions, including permitting, of this chapter as applied to those units provided:

1. No person other than the owner of the real property shall be exempt under this section.

2. All owners of the real property who hold title to property at the time the disposal unit is initially opened or during the time the unit remains open (limited to two calendar years below) shall, in the exercise of this exemption, accept responsibility for maintaining compliance of the unit with all requirements of this chapter as set out in this exemption.

3. The owner agrees that he shall not sell, give, or otherwise transfer the responsibility for the unit's compliance to any other party throughout its active life, the postclosure care period, and the corrective action period, and that he shall remain the principal party responsible for the compliance of the unit with this chapter.

4. Only units that are in compliance with all requirements of this section shall qualify, and units that are not in compliance with all requirements of this section shall not qualify or shall cease to qualify. Units that qualify for this exemption shall comply with the following requirements:

a. Only vegetative waste or yard waste shall be placed in the disposal unit; however, grass trimmings or bulk leaves shall not be placed in the disposal unit.

b. The waste disposal unit shall not be larger than 0.50 acres in size.

c. The waste disposal unit shall not be located within 1,000 feet of any other waste disposal unit of any type, including other disposal units exempted by this chapter.

d. The waste disposal unit shall not be located within 150 feet of any existing building or planned building. The waste disposal unit shall not be located within 50 feet of any existing or planned subdivision lot that may be used for the erection of a building.

e. The waste disposal unit shall not be located within 100 feet of a flowing stream; body of water; any well, spring, sinkhole, or unstable geologic feature. Also, it shall not be located within 200 feet of any groundwater source of drinking water.

f. The waste disposal unit shall be constructed to separate all waste by at least two feet vertically from the seasonal high water table.

g. The waste disposal unit should not obstruct the scenic view from any public road and should be graded to present a good appearance.

h. Mounding of the waste disposal unit shall not reach an elevation more than 20 feet above the original elevation of the terrain before the disposal began. The elevation of the original terrain should be based on the general area and not the bottom of ravines and small depressions in the disposal area.

i. The waste received by the waste disposal unit shall be limited to the following:

(1) Waste generated onsite;

(2) Waste generated by clearing the path of a roadway or appurtenances to the roadway when buried within the right-of-way of the roadway (waste shall not be buried in the structural roadway prism) or adjacent land under a permanent easement and the terms of the easement incorporate the construction of the disposal unit; and

(3) Waste from property that is owned by the owner of the disposal unit, within the same construction project, and generated not more than two miles from the unit.

j. The waste disposal unit shall be closed two calendar years from the date it first receives waste. The closure shall include cover with two feet of compacted soil, grading for good appearance with slopes that prevent erosion, and seeding or revegetation. During the life of the unit, earthen material should be applied periodically to prevent excessive subsidence of the waste disposal unit when closed. Sides of the finished unit shall be sloped to prevent erosion, and slopes shall not be steeper than one vertical foot to three horizontal feet.

k. The location plat and legal description, as set out in subdivision 4 p of this subsection, of all units that are not located wholly within the bed or right-of-way of a public road shall be recorded in the deed book for the property in the court of record prior to the first receipt of waste. Waste disposal shall not be allowed within the structural roadway prism.

l. The owner shall maintain continuous control of access to all disposal units from the time they are opened until they are closed in accordance with this section. The owner shall prevent fires and provide standby equipment and supplies sufficient to easily suppress a fire. Brush and small limbs that might provide tinder for a fire shall be covered at the end of the work day with one foot of soil.

m. The owner shall not be exempt from the CDD landfill groundwater monitoring and corrective action requirements of 9VAC20-81-250 and 9VAC20-81-260, respectively, to include required monitoring during the postclosure period.

n. The owner shall not be exempt from the decomposition gas monitoring and venting requirements of 9VAC20-81-210. The owner of a small waste disposal unit shall comply in all respects with the decomposition gas monitoring and venting requirements as established in this chapter.

o. The owner shall not be exempt from any requirement of the Financial Assurance Regulations For Solid Waste Disposal Facilities, (9VAC20-70), and shall comply with all financial assurance requirements.

p. At least six weeks before beginning construction of a vegetative waste disposal unit, the owner of the real property shall notify in writing the director, the governing board of the city, county, or town wherein the property lies, and all property owners whose parcel will abut the area of the proposed disposal unit. The notice shall give the names and legal addresses of the owners, the type of unit to be developed, and the projected date of initial construction of the unit. The owner shall include a plat and legal description of the disposal unit's metes and bounds prepared and stamped by a Virginia licensed land surveyor. The plat and description shall follow all standard practice such as inclusion of the nearest existing intersection of state roads and existing fixed survey markers in the vicinity.

q. Unless otherwise designated, all monitoring and reporting requirements shall begin at the initiation of the disposal operations and all reports shall be sent to the department and the chief executive of the local government.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011.

Part V Permitting of Solid Waste Management Facilities

9VAC20-81-400 Applicability

A. No person shall construct, operate, or modify a solid waste management facility in the Commonwealth without a permit issued by the director unless otherwise specified in subsection D of this section or 9VAC20-81-410.

B. Each solid waste management facility permit shall be limited to one site and shall be nontransferable between sites.

C. Issuance of a new permit is required when there is:

1. Any new solid waste management facility;

2. Any change in design or process of a solid waste management facility that will, in the opinion of the director, result in a substantially different type of facility;

3. Any expansion beyond the facility boundary, expansion of the waste management boundary or increase in the capacity of the facility (includes expansions) specified in the existing permit; or

4. Any expansion beyond the facility boundary for remedial purposes. However, for these types of expansions, which do not provide for additional capacity, the expansion will be considered a permit modification for the purpose of establishing permit fees under the provisions of 9VAC20-90.

D. The director may grant a variance from any provision contained in this part to a permittee provided the requirements of Part VII (9VAC20-81-700 et seq.) of this chapter are met.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-410 Permits-by-rule and other special permits

A. Permits by rule.

1. As an alternate to obtaining a full permit, an owner or operator of any of the following facilities may elect to operate under this section:

a. Compost facility;

b. Solid waste transfer station;

c. Materials recovery facility;

d. Waste to energy, thermal treatment, or incineration facility;

e. Waste pile; or

f. Centralized waste treatment facility.

2. Submission. The owner or operator of a facility described in subdivision 1 of this section shall be deemed to have a solid waste management facility permit notwithstanding any other provisions of Part V (9VAC20-81-400 et seq.) of this chapter, except 9VAC20-81-450 B 2 and 3, if the owner or operator provides to the department the information described in this subdivision, and the department acknowledges completeness of the submittal per subdivision 4 of this subsection:

a. A notice of intent to operate such a facility with documentation required under 9VAC20-81-450 B;

b. A certification that the facility meets the siting standards, as applicable, of 9VAC20-81-320;

c. A certification that the facility meets the statutory requirements for consistency with solid waste management plans as recorded in § 10.1-1408.1 of the Code of Virginia;

d. A certification that the standards, as applicable, of 9VAC20-81-340 are met in an operations manual to be maintained in the operating record in accordance with 9VAC20-81-485;

e. A certificate signed by a professional engineer that:

(1) The facility has been designed and constructed in accordance with the standards, as applicable, of 9VAC20-81-330; and

(2) The standards, as applicable, of 9VAC20-81-360 are met in a closure plan to be maintained in the operating record;

f. Demonstration of legal control over the site for the permit life;

g. A certification from the State Corporation Commission that the business entity pursuing the permit-by-rule status is a valid entity, authorized to transact its business in Virginia. This requirement does not apply to those facilities owned solely by governmental units;

h. Closure cost estimates and proof of financial responsibility as required by the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70); proof of financial responsibility must be for the entity identified in subdivision 2 g of this subsection;

i. The results of the public participation effort conducted in accordance with the requirements contained in subdivision 3 of this subsection;

j. The following additional information for the specific facilities as noted:

(1) For compost facilities only, a description of the type of facility and the classification of materials that will be composted as classified under 9VAC20-81-310 A 3;

(2) For waste piles only, proof that the facility has a valid VPDES permit, if applicable; and

(3) For waste to energy, thermal treatment, or incineration facilities or materials recovery facilities engaged in reclamation of petroleum-contaminated materials only:

(a) Proof that the facility has a permit issued in accordance with the regulations promulgated by the State Air Pollution Control Board; and

(b) In the case of thermal treatment facilities or materials recovery facilities engaged in reclamation of petroleum-contaminated materials, a description of how the requirements of 9VAC20-81-660 will be met; and

k. The applicable permit fees under the provisions of 9VAC20-90.

3. Public participation.

a. Before the initiation of any construction at the facility under subdivision 1 of this subsection, the owner or operator shall publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation of the intent to construct and operate a facility eligible for a permit-by-rule. The notice shall include:

(1) A brief description of the proposed facility and its location;

(2) A statement that the purpose of the public participation is to acquaint the public with the technical aspects of the facility and how the standards and the requirements of this chapter will be met, to identify issues of concern, to facilitate communication and to establish a dialogue between the permittee and persons who may be affected by the facility;

(3) Announcement of a 30-day comment period, in accordance with subdivision 3 d of this subsection, and the name, telephone number, and address of the owner's or operator's representative who can be contacted by the interested persons to answer questions or where comments shall be sent;

(4) Announcement of the date, time, and place for a public meeting held in accordance with subdivision 3 c of this subsection; and

(5) Location where copies of the documentation to be submitted to the department in support of the permit-by-rule notification can be viewed and copied.

b. The owner or operator shall place a copy of the documentation and support documents in a location accessible to the public in the vicinity of the proposed facility.

c. The owner or operator shall hold a public meeting not earlier than 14 days after the first publication of the notice required in subdivision 3 a of this subsection and no later than seven days before the close of the 30-day comment period. The meeting shall be held to the extent practicable in the vicinity of the proposed facility at a time convenient for the public.

d. The public shall be provided 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period will begin on the date the owner or operator publishes the first notice in the local newspaper.

e. The requirements of this section do not apply to the owners or operators of a material recovery facility, waste to energy facility, incinerator, or a thermal treatment unit that has received a permit from the department based on the regulations promulgated by the State Air Pollution Control Board or State Water Control Board that required facility-specific public participation procedures.

4. Completeness review. Upon receiving the certifications and other required documents, including the results of the public meeting and the applicant's response to the comments received, the department shall conduct a completeness review and respond within 30 calendar days. If the applicant's submission is administratively complete, the applicant shall be deemed to operate under permit-by-rule status. If the applicant's submission is administratively incomplete, the applicant shall be deemed to not have a permit-by-rule. The department may require the operator to submit the full permit application and to obtain a regular solid waste management facility permit if it is determined the requested operation does not qualify for permit-by-rule status.

5. Change of ownership. A permit by rule may not be transferred by the permittee to a new owner or operator. However, when the property transfer takes place without proper closure, the new owner shall notify the department of the sale and fulfill all the requirements contained in subdivision 2 of this subsection. Upon presentation of the financial assurance proof required by 9VAC20-70 by the new owner, the department will release the former owner from his closure and financial responsibilities and acknowledge existence of the new permit by rule in the name of the new owner.

6. Facility modifications. The owner or operator of a facility operating under a permit by rule may modify its design and operation by furnishing the department a new certificate and applicable permit fees under the provisions of 9VAC20-90. For modifications of design, the new certificate shall be prepared by a professional engineer and shall include new documentation required under subdivision 2, as applicable, and subdivision 3 of this subsection. For modifications to the operations, the owner or operator shall submit to the department a new certificate and documentation required under subdivision 2 of this subsection, as applicable. Whenever modifications in the design or operation of the facility affect the provisions of the closure plan, the owner or operator shall revise the closure plan and submit to the department a new certificate and documentation required under subdivision 2 of this subsection, as applicable. Should there be an increase in the closure costs, the owner or operator shall submit a new proof of financial responsibility as required by the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70).

7. Loss of permit by rule status. In the event that a facility operating under a permit by rule violates any applicable siting, design and construction, or closure provisions of 9VAC20-81-320, 9VAC20-81-330 or 9VAC20-81-360, respectively, the owner or operator of the facility will be considered to be operating an unpermitted facility as provided for in 9VAC20-81-45 and shall be required to either obtain a new permit as required by Part V (9VAC20-81-400 et seq.) or close under Part III (9VAC20-81-100 et seq.) or IV (9VAC20-81-300 et seq.) of this chapter, as applicable.

8. Termination. The director shall terminate a permit by rule and shall require closure of the facility whenever he finds that:

a. As a result of changes in key personnel, the requirements necessary for a permit by rule are no longer satisfied;

b. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in his disclosure statement, or any other report or certification required under this chapter, or has knowingly or willfully failed to notify the director of any material change to the information in the disclosure statement;

c. Any key personnel have been convicted of any of the crimes listed in § 10.1-1409 of the Code of Virginia, punishable as felonies under the laws of the Commonwealth, or the equivalent of them under the laws of any other jurisdiction; or has been adjudged by an administrative agency or a court of competent jurisdiction to have violated the environmental protection laws of the United States, the Commonwealth, or any other state and the director determines that such conviction or adjudication is sufficiently probative of the permittee's inability or unwillingness to operate the facility in a lawful manner; or

d. The operation of the facility is inconsistent with the facility's operations manual and/or the operational requirements of the regulations.

B. Emergency permits. Notwithstanding any other provision of this chapter, in the event the director finds an imminent and substantial endangerment to human health or the environment, the director may issue a temporary emergency permit to a facility to allow treatment, storage, or disposal of solid waste for a nonpermitted facility or solid waste not covered by the permit for a facility with an effective permit. Such permits:

1. May be oral or written. If oral, it shall be followed within five days by a written emergency permit;

2. Shall not exceed 90 days in duration;

3. Shall clearly specify the solid wastes to be received, and the manner and location of their treatment, storage, or disposal;

4. Shall be accompanied by a public notice including:

a. Name and address of the office granting the emergency authorization;

b. Name and location of the facility so permitted;

c. A brief description of the wastes involved;

d. A brief description of the action authorized and reasons for authorizing it; and

e. Duration of the emergency permit; and

5. Shall incorporate, to the extent possible and not inconsistent with the emergency situation, all applicable requirements of this chapter, and shall include the applicable permit fees under the provisions of 9VAC20-90.

Any permit issued under this subsection may be renewed not more than two times, if necessary. Each such renewal shall be for a period of not more than 90 days.

In the event that the Governor declares a state of emergency, open burning of debris waste from the clean-up operations is conditionally exempt from this chapter provided that no open dump, hazard, or public nuisance is created.

C. Experimental facility permits.

1. The director may issue an experimental facility permit for any solid waste treatment facility that proposes to utilize an innovative and experimental solid waste treatment technology or process for which permit standards for such experimental activity have not been promulgated under Part IV (9VAC20-81-300 et seq.) of this chapter. Any such permit shall include such terms and conditions as will assure protection of human health and the environment. Such permits shall:

a. Provide for the construction of such facilities based on the standards shown in 9VAC20-81-395, as necessary;

b. Provide for operation of the facility for no longer than one calendar year unless renewed as provided in subdivision 3 of this subsection;

c. Provide for the receipt and treatment by the facility of only those types and quantities of solid waste that the director deems necessary for purposes of determining the efficiency and performance capabilities of the technology or process and the effects of such technology or process on human health and the environment; and

d. Shall include such requirements as the director deems necessary to protect human health and the environment (including, but not limited to, requirements regarding monitoring, operation, closure, and remedial action), and such requirements as the director deems necessary regarding testing and providing of information to the director with respect to the operation of the facility.

2. For the purpose of expediting review and issuance of permits under this subsection, the director may, consistent with the protection of human health and the environment, modify or waive permit application and permit issuance requirements in Part V (9VAC20-81-400 et seq.) of this chapter, except that there may be no modification or waiver of regulations regarding local certification, disclosure statement requirements, financial responsibility (including insurance), or procedures regarding public participation.

3. The applicant for an experimental permit shall include the applicable permit fees under the provisions of 9VAC20-90. Any experimental permit issued under this subsection may be renewed not more than three times. Each such renewal shall be for a period of not more than one calendar year.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-430 Permit conditions

When issuing or modifying a permit, the director may include conditions that he finds necessary to protect public health or the environment or to ensure compliance with this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-450 Permit application procedures

A. Any person who proposes to establish a new solid waste management facility (SWMF) or modify an existing SWMF shall submit a permit application to the department, using the procedures set forth in this section and other pertinent sections of this part.

B. Notice of intent.

1. To initiate the permit application process, any person who proposes to establish a new solid waste management facility (SWMF) or modify an existing SWMF or to modify an existing permit shall file a notice of intent with the director stating the desired permit or permit modification, the precise location of the proposed facility, and the intended use of the facility. The notice shall be in letter form and be accompanied by an area map and a site location map.

2. No application for a new solid waste management facility permit or application for a modification for a noncaptive industrial landfill to expand or increase capacity shall be deemed complete unless it is accompanied by DEQ Form DISC-01 and 02 (Disclosure Statement) for all key personnel.

3. No application for a new solid waste management facility permit or application for a modification for a noncaptive industrial landfill to expand or increase capacity shall be considered complete unless the notice of intent is accompanied by a certification from the governing body of the county, city, or town in which the facility is to be located stating that the location and operation of the facility are consistent with all applicable local ordinances, as well as with the local or regional solid waste management plan (SWMP) approved by the department or has initiated the process of amending the SWMP to include the new or expanded facility or an increase in capacity. No certification shall be required for the application for a modification of an existing permit (not including increase in capacity or expansion) other than for a noncaptive industrial landfill in this subdivision. DEQ Form SW-11-1 (Request for Local Government Certification) is provided for the use of the regulated community. Permit and permit-by-rule applicants shall comply with the statutory requirements for consistency with solid waste management plans as recorded in § 10.1-1408.1 of the Code of Virginia.

4. If the applicant proposes to operate a new sanitary landfill or transfer station, the notice of intent shall include a statement describing the steps taken by the applicant to seek the comments of the residents of the area where the sanitary landfill or transfer station is proposed to be located regarding the siting and operation of the proposed sanitary landfill or transfer station. The public comment steps shall be taken prior to filing with the department the notice of intent.

a. The public comment steps shall include publication of a public notice once a week for two consecutive weeks in a newspaper of general circulation serving the locality where the sanitary landfill or transfer station is proposed to be located and holding at least one public meeting within the locality at a time convenient to the public to identify issues of concern, to facilitate communication, and to establish a dialogue between the applicant and persons who may be affected by the issuance of a permit for the sanitary landfill or transfer station.

b. At a minimum, the public notice shall include:

(1) A statement of the applicant's intent to apply for a permit to operate the proposed sanitary landfill or transfer station;

(2) The proposed sanitary landfill or transfer station site location;

(3) The date, time, and location of the public meeting the applicant will hold; and

(4) The name, address, and telephone number of a person employed by an applicant who can be contacted by interested persons to answer questions or receive comments on siting and operation of the proposed sanitary landfill or transfer station.

c. The first publication of the public notice shall be at least 14 days prior to the public meeting date.

d. In addition, the applicant shall adhere to the applicable requirements of § 10.1-1408.1 B of the Code of Virginia.

5. Disposal capacity guarantee. If the applicant proposes to construct a new sanitary landfill or expand an existing sanitary landfill, a signed statement must be submitted by the applicant guaranteeing that sufficient disposal capacity will be available in the facility to enable localities within the Commonwealth to comply with their solid waste management plans developed pursuant to 9VAC20-130 and certifying that such localities will be allowed to contract for and reserve disposal capacity in the facility. This provision does not apply to permit applications from one or more political subdivisions for new or expanded landfills that will only accept municipal solid waste generated within those jurisdictions or from other jurisdictions under an interjurisdictional agreement.

6. Host agreement. If a host agreement is required, as noted in § 10.1-1408.1 B 7 of the Code of Virginia, it shall contain all the requirements specified in that section of the law.

7. If the application is for a locality owned and operated sanitary landfill, or the expansion of such a landfill, the applicant shall provide information on:

a. The daily travel routes and traffic volumes that correlate with the daily disposal limit;

b. The daily disposal limit; and

c. The service area of the facility.

8. If the application is for a new solid waste management facility or a modification allowing a facility expansion or an increase in capacity, the director shall evaluate whether there is a need for the additional capacity in accordance with § 10.1-1408.1 D 1 of the Code of Virginia. The information in either subdivision 8 a or b of this subsection must be provided with the notice of intent to assist the director with the required investigation and analysis. Based on the information submitted, the owner or operator will demonstrate how the additional capacity will be utilized over the life of the facility.

a. For any solid waste management facility including a sanitary landfill, information demonstrating that there is a need for the additional capacity. Such information shall include the following. If a certain item is not applicable for a facility, it may be indicated so with reasonable justifications.

(1) The anticipated area to be served by the facility;

(2) Similar or related solid waste management facilities that are in the same service area and could impact the proposed facility, and the capacity and service life of those facilities;

(3) The present quantity of waste generated within the proposed service area;

(4) The waste disposal needs specified in the local solid waste plan;

(5) The projected future waste generation rates for the anticipated area to be served during the proposed life of the facility;

(6) The recycling, composting, or other waste management activities within the proposed service area;

(7) The additional solid waste disposal capacity and anticipated site life that the facility would provide to the proposed area of service;

(8) Information demonstrating that the capacity is needed to enable localities to comply with solid waste plans developed pursuant to § 10.1-1411 of the Code of Virginia; and

(9) Any additional factors that provide justification for the additional capacity provided by the facility.

b. As an alternative, for sanitary landfills, based on current or projected disposal rates, information demonstrating there is less than 10 years of capacity remaining in the facility and information demonstrating either of the following:

(1) The available permitted disposal capacity for the state is less than 20 years based on the most current reports submitted pursuant to the Waste Information and Assessment Program in 9VAC20-81-80; or

(2) The available permitted disposal capacity is less than 20 years in either:

(a) The planning region, or regions, immediately contiguous to the planning region of the host community; or

(b) The facilities within a 75-mile radius of the proposed facility.

9. If the location and operation of the facility is stated by the local governing body to be consistent with all its ordinances, without qualifications, conditions, or reservations, and the notice intent is complete, the applicant will be notified that he may submit his application for a SWMF permit. This application shall be submitted in two parts, identified as Part A and Part B.

10. The applicant shall submit certification from the State Corporation Commission that the business entity pursuing the solid waste management permit is a valid entity, authorized to transact its business in Virginia. This requirement does not apply to those facilities owned solely by governmental units.

11. If the application is for an existing CCR landfill or existing CCR surface impoundment, a complete permit application must be submitted no later than October 17, 2017, to continue operation.

C. Part A application. Part A application provides the information essential for assessment of the site suitability for the proposed facility. It contains information on the proposed facility to be able to determine site suitability for intended uses. It provides information on all siting criteria applicable to the proposed facility.

1. The applicant shall complete, sign, and submit three copies of the Part A application containing required information and attachments as specified in 9VAC20-81-460 to the department and shall submit to the department the applicable permit fee under the provisions of 9VAC20-90.

2. The Part A application will be reviewed for completeness. The applicant will be notified within 30 days whether the application is administratively complete or incomplete. If complete information is not provided within 60 days after the applicant is notified, or an alternate timeframe approved by the department, the application will be returned to the applicant without further review. Subsequent resubmittals of the application, submitted after 18 months from the date of the department's response letter, shall be considered as a new application, unless an alternate timeline has been approved by the department.

3. Upon receipt of a complete Part A application, the department shall conduct a technical review of the submittal. Additional information may be required or the site may be visited before the review is completed. The director shall notify the applicant in writing of approval or disapproval of the Part A application or provide conditions to be made a part of the approval.

4. For sanitary landfills, the director's notification must indicate that the site on which the landfill will be located is suitable for the construction and operation of a landfill. In making this determination, the director will consider the information presented in the site hydrogeologic and geotechnical report (9VAC20-81-460 G), the landfill impact statement (9VAC20-81-460 I 1) and the adequacy of transportation facilities (9VAC20-81-460 H). The director may also consider other factors at his discretion.

5. In case of the approval or conditional approval, the applicant may submit the Part B application provided the required conditions are addressed in the submission.

D. Part B application. The Part B application involves the submission of the detailed engineering design and operating plans for the proposed facility.

1. The applicant, after receiving Part A approval, may submit to the department a Part B application to include the required documentation for the specific solid waste management facility as provided for in 9VAC20-81-470 or 9VAC20-81-480. The Part B application and supporting documentation shall be submitted in three copies and must include the applicable permit fee under the provisions of 9VAC20-90 and the financial assurance documentation as required by 9VAC20-70.

2. The Part B application shall be reviewed for administrative completeness before technical evaluation is initiated. The applicant shall be advised in writing within 30 days whether the application is complete or what additional documentation is required. Subsequent resubmittals of the application, submitted after 18 months from the date of the department's response letter, shall be considered a new application, unless an alternate timeline has been approved by the department. The Part B application will not be evaluated until an administratively complete application is received.

3. The administratively complete application will be coordinated with other state agencies according to the nature of the facility. The comments received shall be considered in the permit review by the department. The application will be evaluated for technical adequacy and regulatory compliance. In the course of this evaluation, the department may require the applicant to provide additional information. At the end of the evaluation, the department will notify the applicant that the application is technically adequate and in regulatory compliance, or that the department intends to deny the application.

4. The procedures addressing the denial are contained in 9VAC20-81-550.

E. Permit issuance.

1. If the application is found to be technically adequate and in full compliance with this chapter, a draft permit shall be developed by the department.

2. Copies of the draft permit will be available for viewing at the applicant's place of business or at the regional office of the department, or both, upon request. A notice announcing the beginning of the public comment period and the availability of the draft permit shall be made in a newspaper with general circulation in the area of the facility. A copy of the notice of availability will be provided to the chief administrative officer of all cities and counties that are contiguous to the host community.

3. If the application is for a new landfill or an increase in landfill capacity (includes expansion), then the department shall hold a public hearing and the notice in subdivision 2 of this subsection will include such information.

4. For any application (other than subdivision 3 of this subsection), the notice shall notify the public of the 30-day public comment period and include the opportunity to request a public hearing. The department shall hold a public hearing on the draft permit whenever the department finds, on the basis of requests, that:

a. There is a significant public interest in the issuance, denial, modification, or revocation of the permit in question;

b. There are substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

c. The action requested is not, on its face, inconsistent with, or in violation of, these regulations, the Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), or federal law or regulations.

5. The department also may hold a public hearing when it is believed that such a hearing might clarify one or more issues involved in a permit decision.

6. If a public hearing is to be held, the department shall convene it 30 days or more after the notice is published in the local newspaper. The public hearing shall be conducted within the local government jurisdiction of the facility. A comment period shall extend for a 15-day period after the conclusion of the public hearing.

7. A decision to permit, to deny a permit, or to modify the draft permit shall be rendered by the director within 90 days of the close of the hearing comment period.

8. The permit applicant and the persons who commented during the public participation period shall be notified in writing of the decision on the draft permit. That decision may include denial of the permit (see also 9VAC20-81-550), issuance of the permit as drafted, or modification of the draft permit and issuance.

9. No permit for a new solid waste management facility nor any modification to a permit allowing a facility expansion or an increase in capacity shall be issued until the director has made a written determination, after an investigation and analysis of the potential human health, environmental, transportation infrastructure, and transportation safety impacts and needs and an evaluation of comments by the host local government, other local governments and interested persons, that (i) the proposed facility, expansion, or increase protects present and future human health and safety and the environment; (ii) there is a need for the additional capacity; (iii) sufficient infrastructure will exist to safely handle the waste flow; (iv) the increase is consistent with locality imposed or state-imposed daily disposal limits; (v) the public interest will be served by the proposed facility's operation or the expansion or increase in capacity of a facility; and (vi) the proposed solid waste management facility, facility expansion, or additional capacity is consistent with regional and local solid waste management plans developed pursuant to § 10.1-1411 of the Code of Virginia.

10. For nonhazardous industrial solid waste management facilities owned or operated by the generator of the waste managed at the facility, and that accept only waste generated by the facility owner or operator the following determination shall apply in lieu of subdivision 9 of this subsection. No new permit for a nonhazardous industrial solid waste management facility that is owned or operated by the generator of the waste managed at the facility, and that accepts only waste generated by the facility owner or operator, shall be issued until the director has determined, after investigation and evaluation of comments by the local government, that the proposed facility poses no substantial present or potential danger to human health or the environment. The department shall hold a public hearing within the county, city, or town where the facility is to be located prior to the issuance of any such permit for the management of nonhazardous industrial solid waste.

11. Where either subdivision 9 or 10 of this subsection applies, the director may request updated information during the review of the permit application if the information on which the director's determination is based is no longer current. If, based on the analysis of the materials presented in the permit application, the determination required in § 10.1-1408.1 of the Code of Virginia cannot be made, the application will be denied in accordance with 9VAC20-81-550 A 6.

12. Any permit for a new sanitary landfill and any permit modification authorizing expansion of an existing sanitary landfill shall incorporate the conditions required for a disposal capacity guarantee in § 10.1-1408.1 of the Code of Virginia. This provision does not apply to permit applications from one or more political subdivisions that will only accept waste from within those political subdivisions' jurisdiction or municipal solid waste generated within other political subdivisions pursuant to an interjurisdictional agreement.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016; Volume 40, Issue 4, eff. November 8, 2023.

9VAC20-81-460 Part A permit application

A. The following information shall be included in the Part A permit application for all solid waste management facilities unless otherwise specified in this section. All plans and drawings of the Part A application shall be certified by a professional engineer or professional geologist.

B. The Part A permit application consists of a letter stating the type of the facility for which the permit application is made and the certification required in subsection J of this section. The applicant shall submit the completed DEQ Form SW PTA (Part A Permit Application Form) and all required information and attachments as detailed in this section.

C. A key map of the Part A permit application, delineating the general location of the proposed facility, shall be prepared and attached as part of the application. The key map shall be plotted on a seven and one-half minute U.S. Geological Survey topographical quadrangle. The quadrangle shall be the most recent revision available, shall include the name of the quadrangle and shall delineate a minimum of one mile from the perimeter of the proposed facility boundaries. One or more maps may be utilized where necessary to insure clarity of the information submitted.

D. A vicinity map shall be prepared and attached as part of the application. This vicinity map shall have a minimum scale of one inch equals 200 feet (1" = 200') and shall delineate an area of 500 feet from the perimeter of the property line of the proposed facility. A vicinity map may be prepared with a reduced scale if it does not fit in a sheet with the required minimum scale and multiple sheets may be used to meet the requirement of minimum scale. The vicinity maps may be an enlargement of a U.S. Geological Survey topographical quadrangle or a recent aerial photograph. Notes may be provided in the map if one or more of the following are not present within the delineated area. The vicinity map shall depict the following:

1. All homes, buildings, or structures including the layout of the buildings that will compose the proposed facility;

2. The surveyed boundaries for the property boundary, facility boundary, and waste management boundary, and the acreages within these boundaries;

3. The limits of the actual disposal operations within the boundaries of the proposed facility;

4. Lots and blocks taken from the tax map for the site of the proposed facility and all contiguous properties;

5. The base floodplain, where it passes through the map area; or, otherwise, a note indicating the expected flood occurrence period for the area;

6. Existing land uses and zoning classification;

7. All water supply wells, springs or intakes, both public and private;

8. All utility lines, pipelines or land-based facilities (including mines and wells); and

9. All parks, recreation areas, surface water bodies, dams, historic areas, wetlands areas, monument areas, cemeteries, wildlife refuges, unique natural areas, or similar features.

E. Any applicant must demonstrate legal control over the site for the permit life.

F. For solid waste disposal facilities regulated under Part III (9VAC20-81-100 et seq.), site hydrogeologic and geotechnical reports by professional geologist or professional engineer.

1. The site investigation for a proposed landfill facility shall provide information regarding the geotechnical and hydrogeologic conditions at the site to allow a reasonable determination of the usefulness of the site for development as a landfill. The geotechnical exploration efforts shall be designed to provide information regarding the availability and suitability of onsite soils for use in the various construction phases of the landfill including liner, cover, drainage material, and cap. The hydrogeologic information shall be sufficient to determine the characteristics of the uppermost aquifer underlying the facility. Subsurface investigation programs conducted shall meet the minimum specifications here.

a. Borings shall be located to identify the uppermost aquifer within the proposed facility boundary, determine the ability to perform groundwater monitoring at the site, and provide data for the evaluation of the physical properties of soils and soil availability. Borings completed for the proposed facility shall be sufficient in number and depth to identify the thickness of the uppermost aquifer and the presence of any significant underlying impermeable zone in the waste management boundary. Impermeable zone shall not be fully penetrated within the anticipated fill areas, whenever possible. The number of borings shall be at a minimum in accordance with Table 5.1 as follows:

| Table 5.1 | | | --- | --- | | Waste Management Boundary Acreage | Total Number of Borings | | Less than 10 | 4 | | 10 - 49 | 8 | | 50 - 99 | 14 | | 100 - 200 | 20 | | More than 200 | 24 + 1 boring for each additional 10 acres |

b. The department reserves the right to require additional borings in areas in which the number of borings required by Table 5.1 is not sufficient to describe the geologic formations and groundwater flow patterns below the proposed solid waste disposal facility.

c. In highly uniform geological formations, the number of borings may be reduced, as approved by the department.

d. The borings shall employ a grid pattern, wherever possible, such that there is, at a minimum, one boring in each major geomorphic feature. The borings pattern shall enable the development of detailed cross sections through the proposed landfill site.

e. Subsurface data obtained by borings shall be collected by standard soil sampling techniques. Diamond bit coring, air rotary drilling, or other appropriate methods, or a combination of methods shall be used as appropriate to characterize competent bedrock. The borings shall be logged from the surface to the lowest elevation (base grade) or to bedrock, whichever is shallower, according to standard practices and procedures. In addition, the borings required by Table 5.1 shall be performed on a continuous basis for the first 20 feet below the lowest elevation of the solid waste disposal facility or to the bed rock. Additional samples as determined by the professional geologist or professional engineer shall be collected at five-foot intervals thereafter.

f. Excavations, test pits, and geophysical methods may be employed to supplement the soil boring investigation.

g. At a minimum, four of the borings shall be converted to water level observations wells, well nests, piezometers, or piezometer nests to allow determination of the rate and direction of groundwater flow across the site. All groundwater monitoring points or water level measurement points shall be designed to allow proper abandonment by backfilling with an impermeable material. The total number of wells or well nests shall be based on the complexity of the geology of the site.

h. Field analyses shall be performed in representative borings to determine the in situ hydraulic conductivity of the uppermost aquifer.

i. All borings not to be utilized as permanent monitoring wells, and wells within the active solid waste disposal area, shall be sealed and excavations and test pits shall be backfilled and properly compacted to prevent possible paths of leachate migration. Boring sealing procedures shall be documented in the hydrogeologic report.

2. The geotechnical and hydrogeologic reports shall at least include the following principal sections:

a. Field procedures. Boring records and analyses from properly spaced borings in the facility portion of the site. Final boring logs shall be submitted for each boring, recording soils or rock conditions encountered. Each log shall include the type of drilling and sampling equipment, date the boring was started, date the boring was finished, a soil or rock description in accordance with the United Soil Classification System or the Rock Quality Designation, the method of sampling, the depth of sample collection, the water levels encountered, and the Standard Penetration Test blow counts, if applicable. Boring locations and elevations shall be surveyed with a precision of 0.01 foot. At least one surveyed point shall be indelibly marked by the surveyor on each well. All depths of soil and rock as described within the boring log shall be corrected to National Geodetic Vertical Datum, if available.

b. Geotechnical interpretations and report including complete engineering description of the soil units underlying the site.

(1) Soil unit descriptions shall include estimates of soil unit thickness, continuity across the site, and genesis. Laboratory determination of the soil unit's physical properties shall be discussed.

(2) Soil units that are proposed for use as a drainage layer, impermeable cap, or impermeable liner material shall be supported by laboratory determinations of the remolded permeability. Remolded hydraulic conductivity tests require a Proctor compaction test (ASTM D698) soil classification liquid limit, plastic limit, particle size distribution, specific gravity, percent compaction of the test sample, remolded density and remolded moisture content, and the percent saturation of the test sample. Proctor compaction test data and hydraulic conductivity test sample data shall be plotted on standard moisture-density test graphs.

(3) The geotechnical report shall provide an estimate of the available volume of materials suitable for use as liner, cap, and drainage layer. It shall also discuss the anticipated uses of the onsite materials, if known.

c. Hydrogeologic report.

(1) The report shall include water table elevations, direction, and calculated rate of groundwater flow and similar information on the hydrogeology of the site. All raw data shall be submitted with calculations.

(2) The report shall contain a discussion of field test procedures and results, laboratory determinations made on undisturbed samples, recharge areas, discharge areas, adjacent or areal usage, and typical radii of influence of pumping wells.

(3) The report shall also contain a discussion of the regional geologic setting, the site geology, and a cataloging and description of the uppermost aquifer from the site investigation and from referenced literature. The geologic description shall include a discussion of the prevalence and orientation of fractures, faults, and other structural discontinuities, and presence of any other significant geologic features. The aquifer description shall address homogeneity, horizontal and vertical extent, isotropy, the potential for groundwater remediation, if required, and the factors influencing the proper placement of a groundwater monitoring network.

(4) The report shall include a geologic map of the site prepared from one of the following sources as available, in order of preference:

(a) Site specific mapping prepared from data collected during the site investigation;

(b) Published geologic mapping at a scale of 1:24,000 or larger;

(c) Published regional geologic mapping at a scale of 1:250,000 or larger; or

(d) Other published mapping.

(5) At least two generally orthogonal, detailed site specific cross sections, which shall describe the geologic formations identified by the geologic maps prepared in accordance with subdivision 2 c (4) of this subsection at a scale that clearly illustrates the geologic formations, shall be included in the hydrogeologic report. Cross sections shall show the geologic units, approximate construction of existing landfill cells base grades, water table, surficial features, and bedrock along the line of the cross section. Cross section locations shall be shown on an overall facility map.

(6) Potentiometric surface maps for the uppermost aquifer that define the groundwater conditions encountered below the proposed solid waste disposal facility area based upon stabilized groundwater elevations. Potentiometric surface maps shall be prepared for each set of groundwater elevation data available. The applicant shall include a discussion of the effects of site modifications, seasonal variations in precipitation, and existing and future land uses of the site on the potentiometric surface.

(7) If a geological map or report from either the Department of Mines, Minerals, and Energy or the U.S. Geological Survey is published, it shall be included.

G. For solid waste management facilities regulated under Part IV (9VAC20-81-300 et seq.) of this chapter:

1. A cataloging and description of aquifers, geological features or any similar characteristic of the site that might affect the operation of the facility or be affected by that operation.

2. If a geological map or report from either the Department of Mines, Minerals, and Energy or the U.S. Geological Survey is published, it shall be included.

H. For a new sanitary landfill or for an increase in daily disposal limit, an adequacy report prepared by the Virginia Department of Transportation or other responsible agency. As required under § 10.1-1408.4 A 1 of the Code of Virginia, the report will address the adequacy of transportation facilities that will be available to serve the landfill, including daily travel routes and traffic volumes that correlate with the daily disposal limit, road congestion, and highway safety. The department may determine an adequacy report is not required for small increases in the daily disposal limit.

I. For a new sanitary landfill or an expansion of an existing sanitary landfill or an increase in capacity by expanding an existing facility vertically upward, a Landfill Impact Statement (LIS).

1. A report must be provided to the department that addresses the potential impact of the landfill on parks, recreational areas, wildlife management areas, critical habitat areas of endangered species as designated by applicable local, state, or federal agencies, public water supplies, marine resources, wetlands, historic sites, fish and wildlife, water quality, and tourism. This report shall comply with the statutory requirements for siting landfills in the vicinity of public water supplies or wetlands as set forth in §§ 10.1-1408.4 and 10.1-1408.5 of the Code of Virginia.

2. The report will include a discussion of the landfill configuration and how the facility design addresses any impacts identified in the report required under subdivision 1 of this subsection.

3. The report will identify all of the areas identified under subdivision 1 of this subsection that are within five miles of the facility.

J. For a new facility or an expansion of an existing facility, or an increase in capacity by expanding an existing facility vertically upward, a signed statement by the applicant that he has sent written notice to all adjacent property owners or occupants that he intends to develop a SWMF or expand laterally or vertically upward of an existing facility on the site, a copy of the notice and the names and addresses of those to whom the notices were sent.

K. The total capacity of the solid waste management facility.

L. One or more of the following indicating that the public interest would be served by a new facility or a facility expansion, which includes:

1. Cost effective waste management for the public within the service area comparing the costs of a new facility or facility expansion to waste transfer, or other disposal options;

2. The facility provides protection of human health and safety and the environment;

3. The facility provides alternatives to disposal including reuse or reclamation;

4. The facility allows for the increased recycling opportunities for solid waste;

5. The facility provides for energy recovery or the subsequent use of solid waste, or both, thereby reducing the quantity of solid waste disposed;

6. The facility will support the waste management needs expressed by the host community; or

7. Any additional factors that indicate that the public interest would be served by the facility.

M. For CCR surface impoundments regulated under Part VIII (9VAC20-81-800 et seq.) of this chapter, site hydrogeologic and geotechnical reports by a professional geologist or professional engineer that meet the requirements of 9VAC20-81-800.

N. For new CCR landfills to be located in Planning District 8, a map identifying existing residential area and properties located within one mile of the facility boundary that are not served by municipal water supply and copies of documentation to satisfy the conditions of § 10.1-1402.05 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016; Volume 40, Issue 4, eff. November 8, 2023.

9VAC20-81-470 Part B permit application for solid waste disposal facilities

Part B permit application requirements for all solid waste disposal facilities regulated under Part III (9VAC20-81-100 et seq.) are contained in this section. The Part B applications shall include the following requirements and documentation:

A. Plans submitted as part of the Part B application shall include the following:

1. Design plans. Design plans shall be certified by a professional engineer and shall consist of, at least, the following:

a. A title sheet indicating the project title, who prepared the plans, the person for whom the plans were prepared, a table of contents, and a location map showing the location of the site and the area to be served.

b. An existing site conditions plans sheet indicating site conditions prior to development.

c. A base grade plan sheet indicating site base grades or the appearance of the site if it were excavated in its entirety to the base elevation, before installation of any engineering modifications or the beginning of any filing.

d. An engineering modification plan sheet indicating the appearance of the site after installation of engineering modifications. More than one plan sheet may be required for complicated sites. This plan is required only for those sites with engineering modifications.

e. A final site topography plan sheet indicating the appearance of the site, and final contours of the site at closing including the details necessary to prepare the site for long-term care.

f. A series of phasing plan sheets showing the progression of site development through time. At a minimum, a separate plan shall be provided for initial site preparations and for each subsequent major phase or new area where substantial site preparation must be performed. Each such plan shall include a list of construction items and quantities necessary to prepare the phase indicated.

g. A site monitoring plan showing the location of all devices for the monitoring of leachate production, groundwater quality, and gas production and venting. This plan shall include a table indicating the parameters to be monitored for the frequency of monitoring before and during site development. The groundwater monitoring plan shall include information as applicable under 9VAC20-81-250 or 9VAC20-81-260.

h. A series of site cross-sections shall be drawn perpendicular and parallel to the site base line at a maximum distance of 500 feet between cross-sections and at points of grade break and important construction features. The location of the cross-sections shall be shown on the plan sheets and the section labeled using the site grid system. Where applicable, each cross-section shall show existing, proposed base and final grades; soil borings and monitoring wells that the section passes through or is adjacent to; soil types, bedrock and water table; leachate control, collection, and monitoring systems; limits of filling for each major waste type; drainage control structures; access roads and ramps on the site perimeter and within the active fill area; the filling sequence or phases; and other site features.

i. Detailed drawings and typical sections for drainage control structures, access roads, fencing, leachate and gas control systems, and monitoring devices, buildings, signs, and other construction details.

j. Plan sheets shall include:

(1) A survey grid with base lines and bench marks to be used for field control.

(2) Limits of filling for each major waste type or fill area.

(3) All drainage patterns and surface water drainage control structures both within the actual fill area and at the site perimeter. Such structures may include berms, ditches, sedimentation basins, pumps, sumps, culverts, pipes, inlets, velocity breaks, sodding, erosion matting, or other methods of erosion control.

(4) Ground surface contours at the time represented by the drawing. Spot elevations shall be indicated for key features.

(5) Areas to be cleared and grubbed and stripped of topsoil.

(6) Borrow areas for liner materials, gas venting materials, berms, roadway construction, daily cover, and final cover.

(7) All soil stockpiles including daily and final cover, topsoil, liner materials, gas venting materials, and other excavation.

(8) Access roads and traffic flow patterns to and within the active fill area.

(9) All temporary and permanent fencing.

(10) The methods of screening such as berms, vegetation, or special fencing.

(11) Leachate collection, control, storage, and treatment systems that may include pipes, manholes, trenches, berms, collection sumps, storage units, pumps, risers, liners, and liner splices.

(12) Gas, leachate, and groundwater monitoring devices and systems.

(13) Severe weather solid waste disposal areas.

(14) Support buildings, scale, utilities, gates, and signs.

(15) Special waste handling areas.

(16) Construction notes and references to details.

(17) Other site features.

2. Closure plan. A detailed closure plan shall be prepared and submitted. Such a plan shall be prepared in two parts, one reflecting those measures to be accomplished at the midpoint of the permit period, and the other when the useful life of the landfill is reached. The plan shall show how the facility will be closed to meet the requirements of 9VAC20-81-160 and 9VAC20-81-170, or 9VAC20-81-800. The plan shall include the procedures to be followed in closing the site, sequence of closure, time schedules, final plans of completion of closure to include final contours, and long-term care plan sheets showing the site at the completion of closing and indicating those items anticipated to be performed during the period of long-term care for the site. The plans shall include a table listing the items and the anticipated schedule for monitoring and maintenance. In many instances this information can be presented on the final site topography sheet.

3. Postclosure plan. A postclosure care plan shall contain long-term care information including a discussion of the procedures to be utilized for the inspection and maintenance of: run-off control structures; settlement; erosion damage; gas and leachate control facilities; monitoring for gas, leachate, and groundwater; and other long-term care needs.

B. A design report shall be submitted, which shall include supplemental discussions and design calculations, to facilitate department review and provide supplemental information including the following information:

1. The design report shall identify the project title; engineering consultants; site owner, permittee and operator; proposed permitted acreage; hours of operation; wastes to be accepted; site life; design capacity; and the daily disposal limit. It shall also identify any variances desired by the applicant.

2. A discussion of the basis for the design of the major features of the site, such as traffic routing, base grade and relationships to subsurface conditions, anticipated waste types and characteristics, phases development, liner design, leachate management system design, facility monitoring, and similar design features shall be provided. A list of the conditions of site development as stated in the department determination of site feasibility and the measures taken to meet the conditions shall be included. A discussion of all calculations, such as refuse-cover balance computations, stockpile sizing estimates, estimate of site life, and run-off and leachate volume estimates shall be included. The calculations shall be summarized with the detailed equations presented in an appendix.

3. Specifications, including detailed instructions to the site operator for all aspects of site construction.

a. Initial site preparations including specifications for clearing and grubbing, topsoil stripping, other excavations, berm construction, drainage control structures, leachate collection system, access roads and entrance, screening, fencing, groundwater monitoring, and other special design features.

b. A plan for initial site preparation including a discussion of the field measurements, photographs to be taken, sampling and testing procedures to be utilized to verify that the in-field conditions encountered were the same as those defined in the feasibility report, and to document that the site was constructed according to the engineering plans and specifications submitted for department approval.

C. Financial assurance documentation. When required by the Financial Assurance Regulations of Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70), the applicant shall provide the completed documentation to demonstrate compliance with those regulations; proof of financial responsibility must be for the entity identified in accordance with 9VAC20-81-450 B 10.

D. DEQ Form SW PTB (Part B Permit Application Form). The applicant shall submit a completed DEQ Form SW PTB.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-475 Part B permit application requirements for CCR surface impoundments

A. Part B permit application requirements for CCR surface impoundments regulated under Part VIII (9VAC20-81-800 et seq.) of this chapter are contained in this section. The Part B applications shall include the requirements and documentation described in this section.

B. A detailed design plan shall be prepared and submitted that describes how the CCR surface impoundment meets the design criteria found in 40 CFR 257.71 (existing CCR surface impoundments), 40 CFR 257.72 (new or lateral expansions of CCR surface impoundments), 40 CFR 257.73 (existing CCR surface impoundments), 40 CFR 257.74 (new or lateral expansions of CCR surface impoundments), as applicable.

C. An operating plan meeting the requirements of 40 CFR 257.80, 40 CFR 257.82, and 40 CFR 257.83 shall be prepared and submitted.

D. A site groundwater monitoring plan shall be prepared and submitted that meets the requirements of 40 CFR 257.90, 40 CFR 257.91, 40 CFR 257.93, 40 CFR 257.94, 40 CFR 257.95, 40 CFR 257.96, 40 CFR 257.97, and 40 CFR 257.98.

E. A detailed closure plan and post-closure plan meeting the requirements found in 40 CFR 257.101, 40 CFR 257.102, 40 CFR 257.103, 40 CFR 257.104 shall be prepared and submitted.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-480 Part B permit application requirements for other solid waste management facilities

Owners or operators of facilities who do not dispose of solid wastes onsite and who will remove all solid wastes or solid waste residues at closing, will use the application procedures of this section. The following information is required in a Part B permit application:

A. Design plans.

Design plans shall be prepared by a professional engineer. The plans shall demonstrate compliance with the applicable portions of this chapter and include at least the following:

1. Existing site conditions plans sheet indicating site conditions prior to development.

2. Engineering modification plan sheet indicating the appearance of the site after installation of engineering modifications. More than one plan sheet may be required for complicated sites. This plan is required only for those sites with engineering modifications.

3. Phasing plan sheets showing the progression of site development through time. At a minimum, a separate plan shall be provided for initial site preparations and for each subsequent major phase or new area where substantial site preparation must be performed. Each such plan shall include a list of construction items and quantities necessary to prepare the phase indicated.

4. Design drawings of the specific solid waste management processes, when applicable. For waste to energy, thermal treatment, and incinerator facilities, the design drawings of the solid waste management facilities to include:

(1) Profile and plan views of all structures and enclosures showing dimensions. Plan views showing building setbacks, side and rear distances between the proposed structure and other existing or proposed structures, roadways, parking areas, and site boundaries;

(2) Interior floor plans showing the layout, profile view and dimensions of the processing lines, interior unloading, sorting, storage, and loading areas as well as other functional areas;

(3) A plan identifying, locating and describing utilities that will service the facility including, but not limited to, the storm water drainage system, sanitary sewer system, water supply system, and energy system; interface of the proposed facility with the existing utility systems.

5. When applicable, the following information shall be presented on plan sheets:

a. All information on existing site conditions map unless including this information leads to confusion with the data intended for display.

b. A survey grid with base lines and monuments to be used for field control.

c. All drainage patterns and surface water drainage control structures both within the area and at the site perimeter to include berms, ditches, sedimentation basins, pumps, sumps, culverts, pipes, inlets, velocity breaks, sodding, erosion matting, or other methods of erosion control.

d. Access roads and traffic flow patterns to and within:

(1) The storage and transfer areas of waste to energy, thermal treatment, and incinerator facilities.

(2) The active fill area of all other facilities.

e. All temporary and permanent fencing.

f. The methods of screening such as berms, vegetation, or special fencing.

g. Wastewater or leachate collection, control and treatment systems, which may include pipes, manholes, trenches, berms, collection sumps or basins, pumps, risers, liners, and liner splices.

h. Special waste handling areas.

i. Construction notes and references to details.

j. Other site features.

6. Detailed drawings and typical sections for drainage control structures, access roads, fencing, buildings, signs, and other construction details.

B. A design report for the facility is required and will provide the technical details and specifications necessary to support the design plans consisting of, at least, the following information:

1. For waste to energy, thermal treatment, and incinerator facilities:

a. The design report shall identify the project title; engineering consultants; site owner, licensee and operator; site life and capacity; municipalities, industries, and collection and transportation agencies served; and waste types to be disposed. It shall also identify any exemptions desired by the applicant.

b. The design capacity specifications shall include, at a minimum, the following information:

(1) The process rate of the facility, in both tons per day and tons per hour;

(2) The expected short-term and projected future long-term daily loadings;

(3) The designation of normal loading, unloading and storage areas, including capacities in cubic yards and tons. Description of the time such areas can be practically used, based on expected short-term daily loadings;

(4) The designation of emergency loading, unloading, storage, or other disposal capabilities to be used when facility system down time exceeds 24 hours;

(5) The designation of alternate management facilities or plans for transfer of stored waste in the event facility system down time exceeds 72 hours;

c. The design specifications for process residues to include the following:

(1) The expected daily quantity of waste residue generations;

(2) The proposed ultimate disposal location for all facility-generated waste residues including, but not limited to, ash residues and bypass material, residues resulting from air pollution control devices, and the proposed alternate disposal locations for any unauthorized waste types, which may have been unknowingly accepted. The schedule for securing contracts for the disposal of these waste types at the designated locations shall be provided;

(3) A descriptive statement of any materials use, reuse, or reclamation activities to be operated in conjunction with the facility, either on the incoming solid waste or the ongoing residue;

d. A descriptive statement and detailed specification of the proposed onsite and offsite transportation system intended to service vehicles hauling waste to the facility for processing, and vehicles removing reclaimed materials and or process residues from the facility. Onsite parking, access and exit points, and the mechanisms or features that will be employed to provide for an even flow of traffic into, out of, and within the site, shall be identified.

e. An appendix to the design plan shall be submitted that shall include any additional data not previously presented, calculations, material specifications, operating agreements, wastewater treatment agreements, documents related to long-term care funding, and other appropriate information.

2. For all other facilities:

a. The design report shall identify the project title; engineering consultants; site owner, licensee and operator; site life and capacity; municipalities, industries and collection and transportation agencies served; and waste types and quantities to be disposed. It shall also identify any exemptions desired by the applicant. The specifications shall include, at a minimum, the following information:

(1) Design and construction specifications for the site shall be presented, including detailed instructions to the site operator for all aspects of site construction and development. References to specifications on the plan sheet shall be pointed out as well as additional instructions included, where appropriate.

(2) The design report specifications shall include access roads and entrance, screening, fencing, and other special design features.

b. An appendix shall be submitted that shall include any additional data not previously presented, calculations, material specifications, operating agreements, leachate treatment agreements, documents related to long-term care funding, and other appropriate information.

C. When required by the Financial Assurance Regulations of Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70), the applicant shall provide the completed documentation to demonstrate compliance with those regulations; proof of financial responsibility must be for the entity identified in accordance with 9VAC20-81-450 B 10.

D. Closure plan. The applicant shall prepare and submit a detailed plan for closing any SWMF. Such a plan shall be prepared to reflect the actions required at the time of closing the facility with the maximum permitted process rate onsite. The plan shall reflect all steps necessary to isolate the facility from the environment or to remove and dispose of all solid waste and residue in the facility. The closure plan shall reflect all actions necessary for facility abandonment or uses other than for solid waste management.

E. Sound level data. When required by the director, the applicant shall survey, record, and submit background sound level data in the vicinity of the proposed facility at the time of application for a permit.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-485 Operations manual requirements for solid waste management facilities

A. Solid waste disposal facilities. An operations manual shall be prepared and maintained in the operating record. The operations manual shall include a certification page signed by a responsible official. This signature shall certify the manual meets the requirements of this chapter. This manual shall be reviewed and recertified annually (by December 31 of each calendar year) to ensure consistency with current operations and regulatory requirements, and shall be made available for review by the department upon request. The operations manual for disposal facility operation shall contain at least the following plans:

1. An operations plan that at a minimum includes:

a. Explanation of how the design and construction plans will be implemented from the initial phase of operation until closure;

b. Municipalities, industries, and collection and transportation agencies served;

c. Waste types and quantities to be disposed;

d. Detailed instructions to the site operator regarding all aspects of site operation in order to ensure that the operational requirements of Part III (9VAC20-81-100 et seq.) of this chapter are achieved. References to specifications on the plan sheet shall be pointed out as well as additional instructions included, where appropriate. At a minimum, the plan specifications shall include:

(1) Daily operations including a discussion of the timetable for development, waste types accepted or excluded, inspection of incoming waste, typical waste handling techniques, hours of operation, traffic routing, drainage and erosion control, windy, wet and cold weather operations, fire protection equipment, manpower, methods for handling of any unusual waste types, methods for vector, dust and odor control, daily cleanup, direction of filling, salvaging, recordkeeping, parking for visitors and employees, monitoring, maintenance, closure of filled areas, gas and leachate control methods, backup equipment with names and telephone numbers where equipment may be obtained, and other special design features;

(2) Development of subsequent phases; and

(3) Site closing information consisting of a discussion of those actions necessary to prepare the site for long-term care and final use in the implementation of the closure plan.

2. An inspection plan that at a minimum includes:

a. A schedule for inspecting all applicable major aspects of facility operations necessary to ensure compliance with the requirements of Part III (9VAC20-81-100 et seq.) of this chapter.

b. The frequency of inspection based on the rate of potential equipment deterioration or malfunction and the probability of an adverse incident occurring if the deterioration or malfunction goes undetected between inspections. The plan shall establish the minimum frequencies for inspections required in 9VAC20-81-140. This plan shall identify areas of the facility subject to spills such as loading and unloading areas and areas in which significant adverse environmental or health consequences may result if breakdown occurs.

c. A schedule for inspecting monitoring, safety, and emergency equipment; security devices; and process operating and structural equipment.

d. The types of potential problems that may be observed during the inspection and any maintenance activities required as a result of the inspection.

3. A health and safety plan that includes description of measures to protect the facility and other personnel from injury and is consistent with the requirements of 29 CFR Part 1910.

4. An unauthorized waste control plan that includes, at a minimum, the methods to be used by the operator to prevent unauthorized disposal of hazardous wastes, bulk liquids, or other wastes not authorized for management or disposal in the facility in order to meet the requirements of 9VAC20-81-140.

5. An emergency contingency plan that includes:

a. Delineation of procedures for responding to fire, explosions, or any unplanned sudden or nonsudden releases of harmful constituents to the air, soil, or surface water;

b. Description of the actions facility personnel shall take in the event of various emergency situations;

c. Description of arrangements made with the local police and fire department that allow for immediate entry into the facility by their authorized representatives should the need arise, such as in the case of personnel responding to an emergency situation; and

d. A list of names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator for the facility. This list shall be kept up to date. Where more than one person is listed, one shall be named as primary emergency coordinator and the others shall be listed in the order in which they will assume responsibility as alternates.

6. A landscaping plan that shall:

a. Delineate existing site vegetation to be retained;

b. Discuss methods to be employed in order to ensure protection of vegetation to be retained during the clearing, grading and construction phases of the project and the supplemental vegetation to be planted; and

c. Provide information relating to vegetation type, location and purpose, such as for buffer, screening or aesthetics, and schedules for planting, shall accompany the plan.

B. Other solid waste management facilities. An operations manual shall be prepared and maintained in the operating record. The Operations Manual shall include a certification page signed by a responsible official. This signature shall certify the manual meets the requirements of this chapter. This manual shall be reviewed and re-certified annually (by December 31 of each calendar year) to ensure consistency with current operations and regulatory requirements and shall be made available to the department upon request. The manual for facility operation shall contain at least the following plans:

1. An operations plan that at a minimum includes:

a. An explanation of how the design and construction plans will be implemented from the initial phase of operation until closure.

b. Detailed instructions to the site operator regarding all aspects of site operation in order to ensure that the applicable operational requirements of Part IV (9VAC20-81-300 et seq.) are achieved. Daily operations including a discussion of the timetable for development, waste types accepted or excluded, typical waste handling techniques, hours of operation, traffic routing, drainage and erosion control, windy, wet and cold weather operations, fire protection equipment, manpower, methods for handling of any unusual waste types, methods for vector, dust and odor control, daily cleanup, salvaging, record keeping, parking for visitors and employees, monitoring, backup equipment with names and telephone numbers where equipment may be obtained, and other special design features. The daily operations section of the operations manual may be developed as a removable section to improve accessibility for the site operator.

c. Development of subsequent phases of the facility, if applicable.

d. Site closing information consisting of a discussion of those actions necessary to prepare the site for long-term care and final use in the implementation of the closure plan.

2. An inspection plan that at a minimum includes:

a. A schedule for inspecting all applicable major aspects of facility operations necessary to ensure compliance with the requirements of Part IV (9VAC20-81-300 et seq.) of this chapter.

b. The frequency of inspection shall be based on the rate of potential equipment deterioration or malfunction and the probability of an adverse incident occurring if the deterioration or malfunction goes undetected between inspections. The plan shall establish the minimum frequencies for inspections required in 9VAC20-81-340. This plan shall identify areas of the facility subject to spills such as loading and unloading areas and areas in which significant adverse environmental or health consequences may result if breakdown occurs.

c. A schedule for inspecting monitoring, safety, and emergency equipment; security devices; and process operating and structural equipment.

d. The types of potential problems that may be observed during the inspection and any maintenance activities required as a result of the inspection.

3. A health and safety plan that includes description of measures to protect the facility and other personnel from injury and is consistent with the requirements of 29 CFR Part 1910.

4. An unauthorized waste control plan that includes, at a minimum, the methods to be used by the operator to prevent unauthorized disposal of hazardous wastes, bulk liquids, or other wastes not authorized for management or disposal in the facility in order to meet the applicable requirements of 9VAC20-81-340.

5. An emergency contingency plan that includes:

a. Delineation of procedures for responding to fire, explosions, or any unplanned sudden or nonsudden releases of harmful constituents to the air, soil, or surface water;

b. Description of the actions facility personnel shall take in the event of various emergency situations;

c. Description of arrangements made with the local police and fire department that allow for immediate entry into the facility by their authorized representatives should the need arise, such as in the case of personnel responding to an emergency situation; and

d. A list of names, addresses and phone numbers (office and home) of all persons qualified to act as emergency coordinator for the facility. This list shall be kept up to date. Where more than one person is listed, one shall be named as primary emergency coordinator and the others shall be listed in the order in which they will assume responsibility as alternates.

C. CCR surface impoundments. Operating plans meeting the requirements of 9VAC20-81-800 shall be prepared, implemented, and placed in the facility's operating record.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-490 Effect of the permit

A. A completed permit for a solid waste management facility shall be prepared at the conclusion of the procedures outlined in 9VAC20-81-450. The permit shall be prepared in detail to establish the construction requirements, monitoring requirements, operating limitations or guides, waste limitations if any, and any other details essential to the operation and maintenance of the facility and its closure. Before receipt of waste by the facility, the applicant must:

1. Notify the department, in writing, that construction has been completed; and submit to the department a letter from a professional engineer certifying that the facilities have been completed in accordance with the approved plans and specifications and is ready to begin operation. This certification letter is in addition to the CQA certification required in 9VAC20-81-130 Q 3 and must be provided by a different individual than the CQA certification. This certification letter is typically provided by the design engineer.

2. Arrange for a department representative to inspect the site and confirm that the site is ready for operation.

B. Certificate-to-Operate (CTO). Following review of a complete CQA certification and site inspection the department shall issue a CTO authorizing the facility to begin receiving waste. The facility shall not receive waste until a CTO has been issued by the department.

C. Inspections. Each facility permitted to accept solid waste requires periodic inspection and review of records and reports. Such requirements shall be set forth in the final permit issued by the department. The permit applicant by accepting the permit, agrees to the specified periodic inspections.

D. Compliance with a valid permit during its term constitutes compliance, for purposes of enforcement, with the Virginia Waste Management Act. However, a permit may be modified, revoked and reissued, or revoked for cause as set forth in 9VAC20-81-570 and 9VAC20-81-600.

E. The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

F. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of federal, Commonwealth, or local law or regulations.

G. A permit may be transferred by the permittee to a new owner or operator only if the permit has been revoked and reissued, or a minor modification made to identify the new permittee and incorporate such other requirements as may be necessary. Upon presentation of the financial assurance proof required by 9VAC20-70 by the new owner, the department will release the old owner from his closure and financial responsibilities and acknowledge existence of the new or modified permit in the name of the new owner.

H. This section provides for the approval of permits or permit modifications that include a time allowance for the permittee to achieve the new standards contained in the approved permit or permit modification.

1. The permit may specify a schedule of compliance leading to compliance with this chapter.

a. Any schedules of compliance under this subsection shall require compliance as soon as possible.

b. Except as otherwise provided, if a permit establishes a schedule of compliance that exceeds one year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.

(1) The time between interim dates shall not exceed one year; and

(2) If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages of completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

c. The permit shall be written to require that no later than 14 days following each interim date and the final date of compliance, a permittee shall notify the department, in writing, of his compliance or noncompliance with the interim or final requirements.

2. A permit applicant or permittee may cease conducting regulated activities (by receiving a terminal volume of solid waste, and, in case of treatment or storage facilities, closing pursuant to applicable requirements, or, in case of disposal facilities, closing and conducting postclosure care pursuant to applicable requirements) rather than continue to operate and meet permit requirements as follows:

a. If the permittee decides to cease conducting regulated activities at a specified time for a permit that has already been issued:

(1) The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

(2) The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.

b. If the decision to cease conducting regulated activities is made before the issuance of a permit whose terms will include the termination date, the permit shall contain a schedule leading to termination that will ensure timely compliance with applicable requirements.

c. If the permittee is undecided whether to cease conducting regulated activities, the director may issue or modify a permit to continue two schedules as follows:

(1) Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date that ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;

(2) One schedule shall lead to timely compliance with applicable requirements;

(3) The second schedule shall lead to cessation of regulated activities by a date that will ensure timely compliance with applicable requirements; and

(4) Each permit containing two schedules shall include a requirement that, after the permittee has made a final decision, he shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities.

d. The applicant's decisions to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the department, such as a resolution of the board of directors of a corporation.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-81-530 Recording and reporting required of a permittee

A. A permit shall specify:

1. Required monitoring, including type, intervals and frequency, sufficient to yield data that are representative of the monitored activity;

2. Requirements concerning the proper use, maintenance, and installation of monitoring equipment or methods, including biological monitoring methods when appropriate; and

3. Applicable reporting requirements based upon the impact of the regulated activity and as specified in this chapter.

B. A permittee shall be subject to the following whenever monitoring is required by the permit:

1. The permittee shall retain records at the permitted facility or another location approved by the department. Records shall include all records required by the facility permit, these regulations, or other applicable regulations. Records of all required monitoring information, including all calibration and maintenance records will be maintained for at least three years from the sample or measurement date. The director may request that this period be extended. For operating landfills, records of the most recent gas and groundwater monitoring event will be maintained at the facility.

2. Records of monitoring information shall include:

a. The date, exact place, and time of sampling or measurements;

b. The individuals who performed the sampling or measurements;

c. The dates analyses were performed;

d. The individuals who performed the analyses;

e. The analytical techniques or methods used; and

f. The results of such analyses.

3. Required monitoring results shall be maintained on file for inspection by the department.

C. A permittee shall be subject to the following reporting requirements:

1. Written notice of any planned physical alterations to the permitted facility shall be submitted to the department and approved before such alterations are to occur, unless such items were included in the plans and specifications approved by the department.

2. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of the permit, shall be submitted no later than 14 days following each schedule date.

3. The permittee shall report to the department any noncompliance or unusual condition that may endanger health or environment. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission shall also be provided within five days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the circumstances and its cause; the period of occurrence, including exact dates and times, and, if the circumstance has not been corrected, the anticipated time it is expected to continue. It shall also contain steps taken or planned to reduce, eliminate, and prevent reoccurrence of the circumstances resulting in an unusual condition or noncompliance.

D. Copies of all reports required by the permit, and records of all data used to complete the permit application must be retained by the permittee for at least three years from the date of the report or application. The director may request that this period be extended.

E. When the permittee becomes aware that he failed to submit any relevant facts or submitted incorrect information in a permit application or in any report to the director, he shall promptly submit such omitted facts or the correct information with an explanation.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-81-550 Permit denial

A. A permit shall be denied if:

1. The applicant fails to provide complete information required for an application;

2. The facility does not conform with the siting standards set forth for the facility in 9VAC20-81-120, 9VAC20-81-320, or 9VAC20-81-800, unless an exemption or variance from the specific siting criteria has been granted;

3. The facility design and construction plans or operating plans, or both, fail to comply with requirements specified for the proposed type of facility unless an exemption or variance from the specific requirement has been granted;

4. The department finds that there is an adverse impact on the public health or the environment by the design, construction, or operation;

5. The applicant is not able to fulfill the financial responsibility requirements as specified in 9VAC20-70; or

6. Current information sufficient to make the determination required in § 10.1-1408.1 D of the Code of Virginia has not been provided.

B. Reasons for the denial of any permit shall be provided to the applicant in writing by the director within 30 days of the decision to deny the permit.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-560 Appeal of a permit denial

A. If the department denies a permit to an applicant, the applicant shall be informed in writing of the decision and the reasons supporting the denial decision. The department shall mail the decision to the applicant by certified mail. Within 30 days of the notification date of denial of the permit, the applicant may make a written request of the director for a hearing to contest the director's decision. The hearing shall be conducted in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The director shall render a decision affirming or modifying the previous denial, and shall notify the applicant of his decision in writing. If the director's decision is adverse to the applicant, the applicant may appeal in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-570 Revocation or suspension of permits

A. Any permit issued by the director may be revoked when any of the following conditions exist:

1. The permit holder violates any regulation of the board or any condition of a permit where such violation poses a threat of release of harmful substances into the environment or presents a hazard to human health;

2. The solid waste management facility is maintained or operated in such a manner as to constitute an open dump or pose a substantial present or potential hazard to human health or the environment;

3. The solid waste management facility because of its location, construction, or lack of protective construction or measures to prevent pollution, constitute an open dump or poses a substantial present or potential hazard to human health or the environment;

4. Leachate or residues from the solid waste management facility used for disposal, storage, or treatment of solid waste pose a threat of contamination or pollution of the air, surface waters, or groundwater in a manner constituting an open dump or resulting in a substantial present or potential hazard to human health or the environment;

5. The person to whom the permit was issued abandons, sells, leases, or ceases to operate the facility permitted;

6. The owner or operator fails to maintain a financial assurance mechanism if required to do so by 9VAC20-70;

7. As a result of changes in key personnel, the director finds that the requirements necessary for issuance of a permit are no longer satisfied;

8. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in applying for a permit or in his disclosure statement, or any other report or certification required under this law or under the regulations of the board, or has knowingly or willfully failed to notify the director of any material change to the information in the disclosure statement;

9. Any key personnel has been convicted of any following crimes punishable as felonies under the laws of the Commonwealth or the equivalent of them under the laws of any other jurisdiction: murder; kidnapping; gambling; robbery; bribery; extortion; criminal usury; arson; burglary; theft and related crimes; forgery and fraudulent practices; fraud in the offering, sale, or purchase of securities; alteration of motor vehicle identification numbers; unlawful manufacture, purchase, use, or transfer of firearms; unlawful possession or use of destructive devices or explosives; violation of the Drug Control Act, Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia; racketeering; or violation of antitrust laws; or has been adjudged by an administrative agency or a court of competent jurisdiction to have violated the environmental protection laws of the United States, the Commonwealth, or any other state and the director determines that such conviction or adjudication is sufficiently probative of the applicant's inability or unwillingness to operate the facility in a lawful manner, as to warrant denial, revocation, modification, or suspension of the permit. In making such determination, the director shall consider:

a. The nature and details of the acts attributed to key personnel;

b. The degree of culpability of the applicant, if any;

c. The applicant's policy or history of discipline of key personnel for such activities;

d. Whether the applicant has substantially complied with all rules, regulations, permits, orders, and statutes applicable to the applicant's activities in Virginia;

e. Whether the applicant has implemented formal management controls to minimize and prevent the occurrence of such violations; and

f. Mitigation based upon demonstration of good behavior by the applicant including, without limitation, prompt payment of damages, cooperation with investigations, termination of employment or other relationship with key personnel or other persons responsible for violations or other demonstrations of good behavior by the applicant that the director finds relevant to its decision; or

10. All postclosure care activities have been terminated by the department in accordance with 9VAC20-81-170 C.

B. Revocation and reissuance.

1. If the director finds that solid wastes are no longer being stored, treated, or disposed at a facility in accordance with department regulations, the director may revoke the permit issued for such facility and reissue it with a condition requiring the person to whom the permit was issued to provide closure and postclosure care of the facility.

2. If the director is notified by the permittee that the ownership of the facility will be transferred to a new owner or that the operation will be conducted by a new operator, the director will upon receipt of financial assurance documents required by Financial Assurance Regulations of Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70), revoke the original permit and reissue it to the new owner or operator.

C. Except in an emergency, a facility posing a substantial threat to public health or the environment, the director may revoke a permit only after a hearing, or a waiver of a hearing, in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

D. If the director summarily suspends a permit pursuant to an emergency based on subdivision 18 of § 10.1-1402 of the Virginia Waste Management Act, the director shall hold a conference pursuant to § 2.2-4019 of the Virginia Administrative Process Act, within 48 hours to consider whether to continue the suspension pending a hearing to modify or revoke the permit, or to issue any other appropriate order. Notice of the hearing shall be delivered at the conference or sent at the time the permit is suspended. Any person whose permit is suspended by the director shall cease activity for which permit was issued until the permit is reinstated by the director or by a court.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-580 Appeal of revocation of a permit

If the director suspends, revokes or revokes and reissues a permit, the permittee may appeal in accordance with Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-600 Modification of permits

A. Permits may be modified at the request of any interested person or upon the director's initiative. However, permits may only be modified for the reasons specified in subsections E and F of this section. All requests shall be in writing and shall contain facts or reasons supporting the request. Any permit modification authorizing expansion of an existing sanitary landfill shall incorporate the conditions required for a disposal capacity guarantee in § 10.1-1408.1 P of the Code of Virginia. This provision does not apply to permit applications from one or more political subdivisions that will only accept waste from within those political subdivisions' jurisdiction or municipal solid waste generated within other political subdivisions pursuant to an interjurisdictional agreement.

B. If the director decides the request is not justified, he shall send the requester a response providing justification for the decision.

C. If the director tentatively decides to modify, he shall prepare a draft permit incorporating the proposed changes. The director may request additional information and may require the submission of an updated permit application. In a permit modification under subsection E of this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect. During any modification proceeding the permittee shall comply with all conditions of the existing permit until the modified permit is issued.

D. When the director receives any information, he may determine whether or not one or more of the causes listed for modification exist. If cause exists, the director may modify the permit on his own initiative subject to the limitations of subsection E of this section and may request an updated application if necessary. If a permit modification satisfies the criteria in subsection F of this section for minor modifications, the permit may be modified without a draft permit or public review. Otherwise, a draft permit shall be prepared and other appropriate procedures followed.

E. Causes for modification. The director may modify a permit upon his own initiative or at the request of a third party:

1. When there are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance that justify the application of permit conditions that are different or absent in the existing permit;

2. When there is found to be a possibility of pollution causing significant adverse effects on the air, land, surface water, or groundwater;

3. When an investigation has shown the need for additional equipment, construction, procedures and testing to ensure the protection of the public health and the environment from adverse effects;

4. If the director has received information pertaining to circumstances or conditions existing at the time the permit was issued that was not included in the administrative record and would have justified the application of different permit conditions, the permit may be modified accordingly if in the judgment of the director such modification is necessary to prevent significant adverse effects on public health or the environment;

5. When the standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued;

6. When the director determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or material shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy;

7. When a modification of a closure plan is required under 9VAC20-81-160, 9VAC20-81-360, or 9VAC20-81-800 and the permittee has failed to submit a permit modification request within the specified period;

8. When the corrective action program specified in the permit under 9VAC20-81-260 or 9VAC20-81-800 has not brought the facility into compliance with the groundwater protection standard within a reasonable period of time; or

9. When cause exists for revocation under 9VAC20-81-570 and the director determines that a modification is more appropriate.

F. Permit modification at the request of the permittee.

| | TABLE 5.2 PERMIT MODIFICATIONS | | | --- | --- | --- | | | MAJOR | 1. Implementation of a groundwater corrective action program as required by 9VAC20-81-260 or 9VAC20-81-800 | | | 2. Change in the remedy applied as part of the groundwater corrective action program | | | | 3. Groundwater monitoring plan for an existing facility where no written plan has previously been provided | | | | 4. Changes to the design of final closure cover | | | | 5. Landfill mining | | | | 6. Reduction in the postclosure care period | | | | 7. Changes in postclosure use of the property with disturbance of cover | | | | 8. All new or modifications of a leachate collection tank or a leachate collection surface impoundment | | | | 9. Addition of new landfill units | | | | 10. Expansion or increase in capacity | | | | 11. Increase in daily disposal limit | | | | 12. Addition or modification of a liner, leachate collection system, leachate detection system | | | | 13. Incorporation or modification of a Research, Development, and Demonstration Plan | | | | MINOR | Any change not specified as major modification (above) or a permittee change (below) | | | PERMITTEE CHANGE | 1. Correction of typographical errors | | | 2. Equipment replacement or upgrade with functionally equivalent components | | | | 3. Replacement of an existing leachate tank with a tank that meets the same design standards and has a capacity within +/-10% of the replaced tank | | | | 4. Replacement with functionally equivalent, upgrade, or relocation of emergency equipment | | | | 5. Changes in name, address, or phone number of contact personnel | | | | 6. Replacement of an existing well that has been damaged or rendered nonoperable, without change to location, design, or depth of the well | | | | 7. Changes to the expected year of final closure, where other permit conditions are not changed | | | | 8. Changes in postclosure use of the property, without disturbance of the cover | | | | 9. Modification of a leachate tank management practice | |

1. Permittee change. Items listed under Permittee Change in Table 5.2 may be implemented without approval of the department. If a permittee changes such an item, the permittee shall:

a. Notify the department of the change at least 14 calendar days before the change is put into effect, indicating the affected permit conditions; and

b. Notify the governing body of the county, city, or town in which the facility is located, within 90 calendar days after the change is put into effect.

2. Minor modifications.

a. Minor modifications apply to minor changes that keep the permit current with routine changes to the facility or its operation. These changes do not substantially alter the permit conditions or reduce the capacity of the facility to protect human health or the environment.

b. Minor modifications may be requested for changes that will result in a facility being more protective of human health and the environment or equivalent to the standards contained in this chapter, unless otherwise noted in Table 5.2. The request for such a minor permit modification will be accompanied by a description of the desired change and an explanation of the manner in which the health and environment will be protected in a greater degree than required by the chapter.

c. Minor permit modifications may be made only with the prior written approval of the department. The permittee shall notify the department that a minor modification is being requested. Notification of the department shall be provided by certified mail or other means that establish proof of delivery. This notice shall specify the changes being made to permit conditions or supporting documents referenced by the permit and shall include an explanation of why they are necessary. Along with the notice, the permittee shall provide the applicable information required by 9VAC20-81-460 and 9VAC20-81-470 or as required by 9VAC20-81-480.

d. The permittee shall send a notice of the modification to the governing body of the county, city or town in which the facility is located. This notification shall be made within 90 days after the department approves the request.

3. Major modifications.

a. Major modifications substantially alter the facility or its operation. Major modifications are listed in Table 5.2.

b. The permittee shall submit a modification request to the department that:

(1) Describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

(2) Identifies that the alteration is a major modification;

(3) Contains an explanation of why the modification is needed; and

(4) Provides the applicable information required by 9VAC20-81-460 and 9VAC20-81-470, by 9VAC20-81-460 and 9VAC20-81-475, or as required by 9VAC20-81-480.

c. No later than 90 days after receipt of the notification request, the director will determine whether the information submitted under subdivision 3 b (4) of this subsection is adequate to formulate a decision. If found to be inadequate, the permittee will be requested to furnish additional information within 30 days of the request by the director to complete the modification request record. The 30-day period may be extended at the request of the applicant. After the completion of the record, the director will either:

(1) Approve the modification request, with or without changes, and draft a permit modification accordingly;

(2) Deny the request; or

(3) Approve the request, with or without changes, as a temporary authorization having a term of up to 180 days in accordance with subdivision 3 of this subsection.

d. If the director proposes to approve the permit modification, he will proceed with the permit issuance in accordance with 9VAC20-81-450 E.

e. The director may deny or change the terms of a major permit modification request under subdivision F 3 b of this section for the following reasons:

(1) The modification request is incomplete;

(2) The requested modification does not comply with the appropriate requirements of Part III (9VAC20-81-100 et seq.), Part IV (9VAC20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter or other applicable requirements; or

(3) The conditions of the modification fail to protect human health and the environment.

4. Temporary authorizations.

a. Upon request of the permittee, the director may, without prior public notice and comment, grant the permittee a temporary authorization in accordance with the requirements of subdivision 4 of this subsection. Temporary authorizations shall have a term of not more than 180 days.

b. (1) The permittee may request a temporary authorization for any major modification that meets the criteria in subdivision 4 c (2) (a) or (b) of this subsection; or that meets the criteria in subdivision 4 c (2) (c) and (d) of this subsection and provides improved management or treatment of a solid waste already listed in the facility permit.

(2) The temporary authorization request shall include:

(a) A description of the activities to be conducted under the temporary authorization;

(b) An explanation of why the temporary authorization is necessary; and

(c) Sufficient information to ensure compliance with the standards of Part III (9VAC20-81-100 et seq.), Part IV (9VAC20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter.

(3) The permittee shall send a notice about the temporary authorization request to all persons on the facility mailing list. This notification shall be made within seven days of submission of the authorization request.

c. The director shall approve or deny the temporary authorization as quickly as practical. To issue a temporary authorization, the director shall find:

(1) The authorized activities are in compliance with the standards of Part III (9VAC20-81-100 et seq.), Part IV (9VAC20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter.

(2) The temporary authorization is necessary to achieve one of the following objectives before action is likely to be taken on an modification request:

(a) To facilitate timely implementation of closure or corrective action activities;

(b) To prevent disruption of ongoing waste management activities;

(c) To enable the permittee to respond to sudden changes in the types or quantities of the wastes managed under the facility permit; or

(d) To facilitate other changes to protect human health and the environment.

d. A temporary authorization may be reissued for one additional term of up to 180 days provided that the permittee has requested a major permit modification for the activity covered in the temporary authorization, and the director determines that the reissued temporary authorization involving a major permit modification request is warranted to allow the authorized activities to continue while the modification procedures of subdivision 3 of this subsection are conducted.

5. The director's decision to grant or deny a permit modification request under subdivision of this subsection may be appealed under the case decision provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

6. Newly defined or identified wastes. The permitted facility is authorized to continue to manage wastes defined or identified as solid waste under 9VAC20-81-95 if:

a. It was in existence as a solid waste management facility with respect to the newly defined or identified solid waste on the effective date of the final rule defining or identifying the waste; and

b. It is in compliance with the standards of Part III (9VAC20-81-100 et seq.), Part IV (9VAC 20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter, as applicable, with respect to the new waste, submits a minor modification request on or before the date on which the waste becomes subject to the new requirements; or

c. It is not in compliance with the standards of Part III (9VAC 20-81-100 et seq.), Part IV (9VAC 20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter, as applicable, with respect to the new waste, also submits a complete permit modification request within 180 days after the effective date of the definition or identifying the waste.

7. Research, development and demonstration plans. Research, development and demonstration (RDD) plans may be submitted for sanitary landfills that meet the applicability requirements. These plans shall be submitted as a major permit modification application for existing sanitary landfills or as a part of the Part B application for new sanitary landfills.

a. Applicability.

(1) RDD shall be restricted to permitted sanitary landfills designed with a composite liner system, as required by 9VAC20-81-130 J 1. The effectiveness of the liner system and leachate collection system shall be demonstrated in the plan and shall be assessed at the end of the testing period in order to compare the effectiveness of the systems to the start of the RDD testing period.

(2) Operating permitted sanitary landfills that have exceeded groundwater protection standards at statistically significant levels in accordance with 9VAC20-81-250 B, from any waste unit on site shall have implemented a remedy in accordance with 9VAC20-81-260 C prior to the RDD plan submittal. Operating permitted sanitary landfills that have an exceedance in the concentration of methane gas migrating from the landfill in accordance with 9VAC20-81-200 shall have a gas control system in place per 9VAC20-81-200 B prior to the RDD plan submittal.

(3) An owner or operator of a sanitary landfill that disposes of 20 tons of municipal solid waste per day or less, based on annual average, may not apply for a modification to include a RDD plan.

(4) The sanitary landfill shall have a leachate collection system designed and constructed to maintain less than a 30 cm depth of leachate on the liner.

b. Requirements.

(1) RDD Plans may be submitted for activities such as:

(a) The addition of liquids in addition to leachate and gas condensate from the same landfill for accelerated decomposition of the waste mass;

(b) Allowing run-on water to flow into the landfill waste mass;

(c) Allowing testing of the construction and infiltration performance of alternative final cover systems; and

(d) For other measures to be taken to enhance stabilization of the waste mass.

(2) No landfill owner or operator may continue to implement an RDD plan beyond any time limit placed in the initial plan approval or any renewal without issuance of written prior approval by the department. Justification for renewals shall be based upon information in annual and final reports as well as research and findings in technical literature.

(3) RDD plans may not include changes to the approved design and construction of subgrade preparation, liner system, leachate collection and removal systems, final cover system, gas and leachate systems outside the limits of waste, run-off controls, run-on controls, or environmental monitoring systems exterior to the waste mass.

(4) Implementation of an approved RDD plan shall comply with the specific conditions of the RDD Plan as approved in the permit for the initial testing period and any renewal.

(5) Structures and features exterior to the waste mass or waste final grades shall be removed at the end of the testing period, unless otherwise approved by the department in writing.

(6) The RDD plan may propose an alternate final cover installation schedule.

c. An RDD plan shall include the following details and specifications. Processes other than adding liquids to the waste mass and leachate recirculation may be practiced in conjunction with the RDD plan.

(1) Initial applications for RDD plans shall be submitted for review and approval prior to the initiation of the process to be tested. These plans shall specify the process that will be tested, describe preparation and operation of the process, describe waste types and characteristics that the process will affect, describe desired changes and end points that the process is intended to achieve, define testing methods and observations of the process or waste mass that are necessary to assess effectiveness of the process, and include technical literature references and research that support use of the process. The plans shall specify the time period for which the process will be tested. The plans shall specify the additional information, operating experience, data generation, or technical developments that the process to be tested is expected to generate.

(2) The test period for the initial application shall be limited to a maximum of three years.

(3) Renewals of testing periods shall be limited to a maximum of three years each. The maximum number of renewals shall be limited to three.

(4) Renewals shall require department review and approval of reports of performance and progress on achievement of goals specified in the RDD plan.

(5) RDD Plans for addition of liquids, in addition to leachate and gas condensate from the same landfill, for accelerated decomposition of the waste mass or for allowing run-on water to flow into the landfill waste mass shall demonstrate that there is no increased risk to human health and the environment. The following minimum performance criteria shall be demonstrated.

(a) Risk of contamination to groundwater or surface water will not be greater than the risk without an approved RDD plan.

(b) Stability analysis demonstrating the physical stability of the landfill.

(c) Landfill gas collection and control in accordance with applicable Clean Air Act requirements (i.e., Title V, NSPS or EG rule, etc.).

(d) For RDD plans that include the addition of offsite nonhazardous waste liquids to the landfill, the following information shall be submitted with the RDD plan:

(i) Demonstration of adequate facility liquid storage volume to receive the offsite liquid;

(ii) A list of proposed characteristics for screening the accepted liquids is developed; and

(iii) The quantity and quality of the liquids are compatible with the RDD plan.

If offsite nonhazardous liquids are certified by the offsite generator as stormwater uncontaminated by solid waste, screening is not required for this liquid.

(6) RDD plans for testing of the construction and infiltration performance of alternative final cover systems shall demonstrate that there is no increased risk to human health and the environment. The proposed final cover system shall be as protective as the final cover system required by 9VAC20-81-160 D. The following minimum performance criteria shall be demonstrated:

(a) No build up of excess liquid in the waste and on the landfill liner;

(b) Stability analysis demonstrating the physical stability of the landfill;

(c) No moisture will escape from the landfill to the surface water or groundwater; and

(d) Sufficient reduction in infiltration so that there will be no leakage of leachate from the landfill.

(7) RDD plans that evaluate introduction of liquids in addition to leachate or gas condensate from the same landfill shall propose measures to be integrated with any approved leachate recirculation plan and compliance with requirements for leachate recirculation.

(8) RDD plans shall include a description of warning symptoms and failure thresholds that will be used to initiate investigation, stand-by, termination, and changes to the process and any other landfill systems that might be affected by the process, such as gas extraction and leachate recirculation. Warning symptoms shall result in a reduction or suspension of liquids addition, leachate recirculation, investigation, and changes to be implemented before resuming the process being tested. Failure thresholds shall result in termination of the process being tested, investigation, and changes that will be submitted to the department for review and approval in writing prior to resumption of the process being tested.

(9) RDD plans shall include an assessment of the manner in which the process to be tested might alter the impact that the landfill may have on human health or environmental quality. The assessment shall include both beneficial and deleterious effects that could result from the process.

(10) RDD plans shall include a geotechnical stability analysis of the waste mass and an assessment of the changes that the implementation of the plan is expected to achieve. The geotechnical stability analysis and assessment shall be repeated at the end of testing period, with alteration as needed to include parameters and parameter values derived from field measurements. The plan shall define relevant parameters and techniques for field measurement.

(11) RDD plans shall propose monitoring parameters, frequencies, test methods, instrumentation, recordkeeping and reporting to the department for purposes of tracking and verifying goals of the process selected for testing.

(12) RDD plans shall propose monitoring techniques and instrumentation for potential movements of waste mass and settlement of waste mass, including proposed time intervals and instrumentation, pertinent to the process selected for testing.

(13) RDD plans shall propose construction documentation, construction quality control and construction quality assurance measures, and recordkeeping for construction and equipment installation that is part of the process selected for testing.

(14) RDD plans shall propose operating practices and controls, staffing, monitoring parameters, and equipment needed to support operations of the process selected for testing.

(15) RDD plans that include aeration of the waste mass shall include a temperature monitoring plan, a fire drill and safety program, instructions for use of liquids for control of temperature and fires in the waste mass, and instructions for investigation and repair of damage to the liner and leachate collection system.

(16) RDD plans may include an alternate interim cover system and final cover installation schedule. The interim cover system shall be designed to account for weather conditions, slope stability, and leachate and gas generation. The interim cover shall also control, at a minimum, disease vectors, fires, odors, blowing litter, and scavenging.

d. Reporting. An annual report shall be prepared for each year of the RDD testing period, including any renewal periods, and a final report shall be prepared for the end of the testing period. These reports shall assess the attainment of goals proposed for the process selected for testing, recommend changes, recommend further work, and summarize problems and their resolution. Reports shall include a summary of all monitoring data, testing data and observations of process or effects and shall include recommendations for continuance or termination of the process selected for testing. Annual reports shall be submitted to the department within three months after the anniversary date of the approved permit or permit modification. Final reports shall be submitted at least 90 days prior to the end of the testing period for evaluation by the department. The department shall review this report within 90 days. If the department's evaluation indicates that the goals of the project have been met, are reliable and predictable, the department will provide a minor permit modification to incorporate the continued operation of the project with the appropriate monitoring.

e. Termination. The department may require modifications to or immediate termination of the RDD process being tested if any of the following conditions occur:

(1) Significant and persistent odors;

(2) Significant leachate seeps or surface exposure of leachate;

(3) Significant leachate head on the liner;

(4) Excessively acidic leachate chemistry or gas production rates or other monitoring data indicate poor waste decomposition conditions;

(5) Instability in the waste mass; or

(6) Other persistent and deleterious effects.

The RDD program is an optional participation program, by accepting the modification or new permit, the applicant acknowledges that the program is optional; and that they are aware the department may provide suspension or termination of the RDD program for any reasonable cause, without a public hearing. Notice of suspension or termination will be by letter for a cause related to a technical problem, nuisance problem, or for protection of human health or the environment as determined by the department.

G. Facility siting. The suitability of the facility location will not be considered at the time of permit modification unless new information or standards indicate that an endangerment to human health or the environment exists which was unknown at the time of permit issuance or the modification is for an expansion or increase in capacity.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016.

Part VI Special Wastes

9VAC20-81-610 General

A. The requirements and standards contained in this part apply to solid waste that requires special handling and precautions and are in addition to the general requirements contained in Part III (9VAC20-81-100 et seq.), Part IV (9VAC20-81-300 et seq.), and Part VIII (9VAC20-81-800 et seq.) of this chapter, as applicable.

1. Facilities may receive solid waste that requires special handling for processing or disposal only with specific approval of the director or by specific provisions within the facility permit. The operator should contact the department for advice about new or unusual wastes and proper handling techniques. If it is not clear that a particular waste is within the authorized wastes that a permitted facility may receive, it is required that the operator receive a letter of clarification from the department before receiving the waste.

2. Nothing in this part shall limit or affect the power of the director, by his order, to prohibit storage, treatment, or disposal of any waste or require special handling requirements he determines are necessary to protect the public health or the environment.

B. The requirements and standards contained in this part also apply to specific materials that are used in a manner that constitutes disposal.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-620 Asbestos-containing waste materials

A. Applicability. The additional standards contained in this section apply to the management of all asbestos-containing waste materials (ACM) generated by asbestos mills, by manufacturing, fabricating, and spraying operations, and Regulated Asbestos Containing Material (RACM) as defined by 40 CFR Part 61, Subpart M, as amended, generated in the course of demolition and renovation of installations, structures or buildings, or other waste-generating activities. These requirements do not apply to naturally occurring asbestos. All definitions included in 40 CFR Part 61, Subpart M, as amended, are hereby by included by reference.

B. Waste preparation for disposal. In order for asbestos-containing waste materials to be accepted at the disposal site, these materials shall meet the transporting and packaging requirements for asbestos-containing waste materials according to 40 CFR Part 61, Subpart M, as amended, which is hereby incorporated.

C. Disposal of asbestos-containing waste materials. Each owner or operator of a solid waste disposal facility that receives asbestos-containing waste materials shall dispose of these materials according to the requirements of 40 CFR Part 61, Subpart M, as amended, which is hereby incorporated. In addition to the requirements of 40 CFR Part 61, Subpart M, as amended, each owner or operator of a solid waste disposal facility that receives asbestos-containing waste materials shall meet the following requirements:

1. All asbestos-containing waste materials generated in a manufacturing, fabrication, or spraying operation and all RACM generated in a demolition or renovation operation shall be disposed in a special purpose landfill or in a designated area of a sanitary landfill. Category I and Category II nonfriable ACM may be disposed in a landfill providing daily soil cover, providing that the operator is notified and other pertinent requirements of this part are met.

2. ACM may be disposed in asbestos disposal cells or units located at existing disposal facilities above the natural ground level, provided they comply with all other appropriate regulatory requirements contained in Part III (9 VAC 20-81-100 et seq.) of this chapter.

D. Closure and postclosure care. In addition to the requirements contained in Part III (9VAC20-81-100 et seq.) of this chapter, the owner or operator of a solid waste disposal facility receiving the asbestos-containing waste material shall, within 60 days of the closure of the site, record with the county clerk's office a notation on the deed to the facility property or any other document that would normally be examined during a title search that will in perpetuity notify any purchaser of the property that:

1. The property has been used for the disposal of asbestos-containing waste materials;

2. The copy of the survey plot and the record of location and quantity of asbestos-containing waste materials disposed are attached to the notation; and

3. The site is subject to regulation under 9VAC5-60-70.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-630 Wastes containing polychlorinated biphenyls (PCBs)

A. Definitions. The definitions provided in this subsection are derived from definitions in 40 CFR 761.3 and are provided here for the convenience of the regulated community. The definitions here have been altered from those appearing in the federal regulation in order to simplify the definitions to indicate the specific types of items that can or cannot be considered for disposal in a sanitary landfill. These definitions are not identical to the federal definitions. All terms that are used in this section and that are not defined in this subsection shall have the same meaning as in Part I (9VAC20-81-10 et seq.) of this chapter or 40 CFR 761.3, as amended. Nothing in this section shall be deemed to allow management other than as required by federal law and regulation.

"PCB cleanup waste" means nonliquid cleaning materials and personal protective equipment at any concentration including nonporous surfaces and other nonliquid materials such as rags, gloves, booties, other disposable personal protective equipment, and similar materials.

B. Solid wastes containing PCB concentrations between 1.0 ppm and 50 ppm are restricted to disposal in sanitary landfills or industrial waste landfills with leachate collection, liners, and appropriate groundwater monitoring as required in Part III (9VAC20-81-100 et seq.) of this chapter, except as allowed in subsection C of this section.

C. Other PCB wastes.

1. PCB bulk product wastes with concentrations above 50 ppm may be approved for disposal by the director on a case-by-case basis. Submissions prepared for the director's decision will include a description of the PCB waste indicating the material proposed for disposal and how the federal regulations under 40 CFR 761.62 apply to the material. Consistent with the procedures in 40 CFR Part 761, PCB bulk product wastes that are shredder fluff or plastics as defined above need not be tested for PCBs prior to disposal. However, other PCB bulk product waste that has been sampled in accordance with the protocols set out in 40 CFR Part 761 Subpart R and may be considered for disposal if the waste leaches PCBs at less than 10 micrograms per liter measured using a procedure used to simulate leachate generation. Requests for a director's determination must come from a permitted landfill. Alternatively, a landfill may modify its permit to incorporate a special waste acceptance plan that addresses PCB wastes. Facilities requesting to receive PCB bulk product waste must also meet the following provisions:

a. The landfill to receive the waste must have a liner system meeting the requirements of 9VAC20-81-130 J 1 a or an alternate liner approved under the provisions of 9VAC20-81-130 J 1 b or 1 c.

b. The landfill to receive the waste must have a leachate collection system consistent with 9VAC20-81-210.

c. Groundwater monitoring may not have detected Table 3.1 constituents above the maximum contaminant levels (MCLs) promulgated under § 141.2 of the Safe Drinking Water Act (40 CFR Part 141, Subpart B) or other established groundwater protection standard during the active life of the facility.

2. Consistent with 40 CFR Part 761, PCB articles such as PCB-contaminated electrical equipment, PCB hydraulic machines, or pipe that have previously contained PCB, which have been drained, may be disposed of in a sanitary landfill with leachate collection, liners, and appropriate groundwater monitoring as required in Part V (9VAC20-81-400 et seq.) of this chapter. PCB testing, draining and other preparation for disposal of the equipment, if required, will be consistent with 40 CFR Part 761.

D. Consistent with 40 CFR Part 761, PCB remediation waste with PCB concentrations greater than or equal to 50 ppm may not be disposed of in a sanitary landfill or industrial landfill. PCB remediation waste includes but is not limited to items such as soil, sediments, dredged materials, muds, and sludge. PCB cleanup waste as defined above may be disposed in a sanitary landfill with liners and a leachate collection system.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-640 Waste tires

A. Unless exempt under 9VAC20-81-95, owners or operators of a solid waste management facility storing tires, to include sites engaged in speculative accumulation, shall obtain a permit in accordance with standards contained in Parts III (9VAC20-81-100 et seq.) or IV (9VAC20-81-300 et seq.) of this chapter as appropriate.

B. Owners or operators of solid waste management facilities that store waste tires in containers such as trailers shall, in addition to applicable requirements contained in Part IV (9VAC20-81-300 et seq.) of this chapter:

1. Establish and maintain a contractual agreement for prompt removal of the waste tires from the facility;

2. Obtain approval for the storage area from the local fire marshal, if required; and

3. Shall not store waste tires in excess of the quantity specified in the permit.

C. Owners or operators of solid waste management facilities that store or treat waste tires in piles shall, in addition to the applicable requirements contained in Part IV (9VAC20-81-300 et seq.) of this chapter:

1. Place the waste tires in piles that do not exceed five feet in height, exceed 50 feet in width, nor exceed 5,000 square feet in base surface area;

2. Provide a minimum separation distance of 50 feet between waste tire piles and between the waste tire piles and any structure. These separation areas shall be maintained free of obstructions and maintained in such a manner that emergency vehicles will have adequate access to all waste tire management areas.

3. Unless the waste tire pile is located at a sanitary or CDD landfill regulated under Part IV (9VAC20-81-300 et seq.) of this chapter:

a. Provide a berm of soil between all waste tire piles in the storage area. The berm shall extend as high as the height of the waste tire pile;

b. In addition to any material in the berm, for each waste tire pile, provide and maintain a stockpile of 20 cubic yards of soil within 200 feet of each pile; and

c. Provide a fence around the entire storage and treatment area to control access to the storage facility;

4. Not store waste tires in excess of the quantity specified in the permit.

D. More than 1,000 discarded tires shall not be stored at a landfill unless the permit expressly allows such storage. Tires disposed in a sanitary or construction/demolition/debris landfill shall be split, cut, or shredded before disposal and should be dispersed in the workface with other solid wastes. Alternate burial not incorporating cutting or splitting at a specific facility may be approved if the method will assure that tires will not emerge from the landfill.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-650 White goods

Appliances and other white goods may be accumulated at a facility so long as 75% of the materials accumulated are removed from the facility annually. Restrictions for the disposal of white goods can be found in 9VAC20-81-140.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-660 Soil contaminated with petroleum products

A. Applicability.

1. The specific requirements contained in this section apply to requests by the owner or operator to manage or dispose of petroleum- contaminated soil or absorbents, unless the facility's permit specifically allows disposal of the contaminated soil. Upon removal from the ground, the soil must be characterized and managed according to the appropriate regulations including 9VAC20-60 and 9VAC20-81.

2. Any contaminated soil from a state other than Virginia that is classified as a hazardous waste in the state of origin shall be managed as a hazardous waste. Such wastes are not acceptable for treatment, storage, or disposal at a solid waste management facility in the Commonwealth.

3. For purposes of this section "soil" shall include soil, sediment, dredge spoils, and other earthen material contaminated only by petroleum products.

B. Testing requirements.

1. Analytical methods. The facility shall use the appropriate EPA SW-846 method to determine the characteristics of the soil. The parameters that shall be investigated, include, but are not limited to, the following, as appropriate: RCRA hazardous waste characteristics (i.e., corrosivity, ignitability, reactivity, and toxicity); total metals; volatile organic compounds; semi-volatile compounds; total petroleum hydrocarbons (TPH), pesticides/herbicides; polychlorinated bi-phenyls (PCBs); presence of liquids; and total organic halides (TOX).

2. The department will determine, on a case-by-case basis, which tests are appropriate. Specific testing requirements may be waived if the department staff determines that the material was contaminated from a specific source such as chlorinated solvents from a drycleaner or petroleum products from an underground storage tank.

3. Sampling frequency. A minimum of one composite sample shall be analyzed for each required test for every 250 cubic yards of soil to be disposed. In the case of soil reclaimed by thermal treatment, a minimum of one sample shall be analyzed for every production day composited hourly. For quantities of soil greater than 2,500 cubic yards the sampling rates may be adjusted with the approval of the department.

C. Required information. Each generator must submit the following information to the department for review:

1. A statement from the generator certifying that the soil is nonhazardous waste as defined by the Virginia Hazardous Waste Management Regulations (9VAC20-60).

2. The amount of contaminated soil to be disposed.

3. A description of the sampling protocol and a copy of all applicable laboratory analyses.

4. If generated in a state other than Virginia, certification from the generator that the waste is not considered a hazardous waste in its state of generation.

5. The potential options for disposal of the material based upon the testing results, including, but not limited to disposal of a hazardous waste, disposal as a special waste, beneficial reuse as a fill material, or use as an alternate daily cover.

D. Disposal criteria.

1. Soils failing the TCLP test shall be managed in accordance with the Virginia Hazardous Waste Management Regulations (9VAC20-60).

2. Soils contaminated solely with petroleum related products including BTEX, TOX, or TPH shall be handled as follows:

a. Soils exhibiting greater than 100 milligram per kilogram (mg/kg) of TOX may not be disposed until separate approval from the department is granted. This request shall document the cause for the high TOX level.

b. If the concentration of total BTEX is greater than 10 mg/kg or TPH is greater than 500 mg/kg, the soil cannot be disposed of in any landfill unless the facility permit expressly allows such disposal.

c. If the concentration of TPH is greater than 50 mg/kg and less than 500 mg/kg and total BTEX is less than 10 mg/kg, the disposal of the contaminated soil may be approved for permitted landfills equipped with liners and leachate collection systems.

d. Soil containing less than 50 mg/kg TPH and total BTEX less than 10 mg/kg may be used as fill material. This soil, however, may not be disposed of closer than 100 feet of any regularly flowing surface water body or river, 500 feet of any well, spring or other groundwater source of drinking water, and 200 feet from any residence, school, hospital, nursing home, or recreational park area. In addition, if the soil is not to be disposed of on the generator's property, the generator shall notify the property owner that the soil is contaminated and with what it is contaminated.

3. Soil contaminated with compounds other than petroleum and that is not hazardous waste shall be disposed of according to the criteria approved by the department.

E. Exemptions.

1. Contaminated soil resulting from a petroleum storage tank release or from a spill qualifies for an exemption from the limits and/or testing specified in subdivisions D 2 a, b, and c of this section where the total volume of contaminated soil from a cleanup site is less than 20 cubic yards, and the contaminated soil is not a hazardous waste.

2. The department may approve the disposal of contaminated soil resulting from an emergency cleanup of a spill of petroleum products, provided that the waste is not hazardous.

3. Soil contaminated with petroleum products resulting from ordinary household functions may be disposed with the general household waste.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

Part VII Variance Application Procedures

9VAC20-81-700 General

A. Any person affected by this chapter may apply to the department for a variance from any requirement of this chapter. Variance determinations shall be subject to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The department shall not accept any variance application relating to:

1. Equivalent testing or analytical methods contained in EPA Publication SW-846;

2. Definition of solid waste contained in 9VAC20-81-95;

3. Criteria used for classification of solid waste disposal facilities contained in 40 CFR Parts 257 and 258, as amended;

4. A change in the regulatory requirements that the applicant is currently violating until such time as the violation has been resolved through the enforcement process; and

5. Any of the requirements of Part VIII (9VAC20-81-800 et seq.) of this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-710 Solid waste classification exemption procedure

A. Applicability.

1. A person who uses, reuses, or reclaims waste that is managed entirely within the Commonwealth may apply to the department to exclude the waste at a particular site from the classification as the solid waste (see Part II of this chapter). The conditions under which an application for a variance will be accepted are shown in 9VAC20-81-710 B. The wastes excluded under such applications may still, however, remain classified as a solid waste for the purposes of other regulations issued by the Virginia Waste Management Board or other agencies of the Commonwealth.

2. A person who uses, reuses, or reclaims materials from a generating site outside the Commonwealth and who causes them to be brought into the Commonwealth for use, reuse, or reclamation shall first obtain favorable decision from the appropriate authorities in that state before the waste may be considered for an exemption by the director.

B. Conditions for an exemption. As the result of an application and in accordance with the standards and criteria in 9VAC20-81-710 C and the procedures in 9VAC20-81-760, the director may determine on a case-by-case basis that the following used, reused, or reclaimed materials are exempt for the purposes of this chapter:

1. Materials that are accumulated speculatively without sufficient amounts being used, reused or reclaimed (9VAC20-81-95);

2. Materials that are reclaimed and then reused within the original primary production process in which they were generated;

3. Materials that have been reclaimed but shall be reclaimed further before the materials are completely recovered; and

4. Materials that are reclaimed and then reused in applications involving their placement into land.

C. Standards and criteria for exemptions.

1. The director may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being used, reused, or reclaimed if the applicant demonstrates that sufficient amounts of the material will be used, reused, or reclaimed or transferred for recycling use, reuse, or reclamation in the following year. If a variance is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The director's decision will be based on the following standards and criteria:

a. The manner in which the material is expected to be used, reused, or reclaimed, and when the material is expected to be used, reused, or reclaimed, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangement for use, reuse, or reclamation);

b. The reason that the applicant has accumulated the material for one or more years without use, reuse, or reclamation of 75% of the volume accumulated at the beginning of the year;

c. The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is used, reused, or reclaimed;

d. The extent to which the material is handled to minimize loss; and

e. Other relevant factors.

2. The director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original primary production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

a. How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

b. The prevalence of the practice on an industrywide basis;

c. The extent to which the material is handled before reclamation to minimize loss;

d. The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

e. The location of the reclamation operation in relation to the production process;

f. Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

g. Whether the person who generates the material also reclaims it; and

h. Other relevant factors.

3. The director may grant requests for a variance from classifying as a solid waste those materials that have been reclaimed but shall be reclaimed further before recovery is completed if, after initial reclamation, the resulting material is commodity-like (even though it is not yet a commercial product, and has to be reclaimed further). This determination will be based on the following factors:

a. The degree of processing the material has undergone and the degree of further processing that is required;

b. The value of the material after it has been reclaimed;

c. The degree to which the reclaimed material is like an analogous raw material;

d. The extent to which an end market for the reclaimed material is guaranteed;

e. The extent to which the reclaimed material is handled to minimize loss; and

f. Other relevant factors.

4. The director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused in applications involving placement into land. This determination will be based on the following factors:

a. How economically advantageous is the utilization process using reclaimed materials compared to the virgin materials;

b. The prevalence of the practice on an industrywide basis;

c. The extent to which the material is handled before reclamation to minimize loss;

d. The location of the generating and reclamation operations in relation to the utilization process;

e. The chemical and physical characteristics of the material prior and after the reclamation process;

f. An estimate of the rate of annual usage of the reclaimed material;

g. Whether the person who generates the material also reclaims it;

h. Proximity of emplaced materials to ground and surface waters; and

i. Other factors relevant to public health and the environment.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-720 Variances to permitting requirements

A. Application and conditions. The director may grant a variance from any regulation contained in Parts III (9VAC20-81-100 et seq.), IV (9VAC20-81-300 et seq.), V (9VAC20-81-400 et seq.), and VI (9VAC20-81-610 et seq.) of this chapter to an applicant if the applicant demonstrates to the satisfaction of the director that:

1. a. Strict application of the regulation to the facility will result in undue hardship that is caused by the applicant's particular situation;

b. The alternate design or operation will result in a facility that is equally protective of human health and the environment as that provided for in the regulations; or

c. Technical conditions exist that make a strict application of the regulation difficult to achieve; and

2. Granting the variance will not result in an unreasonable risk to the public health or the environment.

B. Effects of the decisions.

1. When the director renders a decision under this section in accordance with the procedures contained in 9VAC20-81-760, he may:

a. Deny the application;

b. Grant the variance as requested; or

c. Grant a modified or partial variance.

2. When a variance is granted, the director may:

a. Specify the termination date of the variance; or

b. Include a schedule for:

(1) Compliance, including increments of progress, by the facility with each requirement of the variance; and

(2) Implementation by the facility of such control measures as the director finds necessary in order that the variance may be granted.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-740 Variance to location of the groundwater monitoring system

A. The applicant may request a variance to the location for the groundwater monitoring system other than at the disposal unit boundary as required by 9VAC20-81-250 A 3 a if he can demonstrate that the response time is sufficiently long to identify and remediate or otherwise contain groundwater that may become impacted before it reaches the facility boundary. This alternate point of compliance with the groundwater monitoring requirements shall be located within the facility boundary and shall not be located farther downgradient than 500 feet from the disposal unit boundary.

B. The application shall provide information on:

1. The hydrogeologic characteristics of the facility and surrounding land. The information shall include an estimate of the width and depth of a plume that may migrate from the disposal unit.

2. The volume and physical and chemical characteristics of the leachate.

3. The quality, quantity, and direction of groundwater flow. This information shall include a determination whether contaminants from the unit will be detectable at the proposed point of compliance.

4. The proximity and withdrawal rate of the groundwater users. This information shall include the estimate of time of travel to private or public supply wells.

5. The availability of alternate drinking water supplies in the event of a groundwater contamination problem.

6. The existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the ground water and whether groundwater is currently used or reasonably expected to be used for drinking water.

7. Practicable capability of the owner or operator. The information shall include an indication of financial capability of the owner or operator to maintain a longer and more costly corrective action program owing to the longer detection time frame associated with the proposed point of compliance.

C. Based on the information received the director will consider the potential overall effect on public health, welfare, and safety of the proposed point of compliance. Consideration will include:

1. Distance to the facility boundary and to the nearest groundwater user or potentially affected surface water;

2. The response time required to remediate or otherwise contain groundwater that may become impacted and potentially affect downgradient water supplies; and

3. Risk that detection may not be representative of worst case condition of the groundwater.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-760 Administrative procedures

A. Submission of application.

1. General application requirements. All applications submitted to the director shall include:

a. The applicant's name and address;

b. A statement of applicant's interest in the proposed action;

c. A description of the desired action and a citation to the regulation from which a variance is requested;

d. A description of the need and justification for the proposed action;

e. The duration of the variance, if applicable;

f. The potential impact of the variance on public health or the environment;

g. Other information believed by the applicant to be pertinent; and

h. The following statements signed by the applicant or his authorized representative:

"I certify that I have personally examined and am familiar with the information submitted in this application and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

i. In accordance with the provisions of § 10.1-1408.1 of the Code of Virginia, no application for a variance allowing a noncaptive industrial landfill to expand or increase capacity shall be allowed without providing local government certification and disclosure information in accordance with the provisions of 9VAC20-81-450.

2. Additional requirements for applications under 9VAC20-81-710. In addition to the general information required of all applicants under subdivision 1 of this subsection:

a. To be successful the applicant shall address the standards and criteria listed in 9VAC20-81-710 C.

b. For applications submitted under 9VAC20-81-710 B 4 the following additional information is required:

(1) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the application;

(2) A description of the methodologies and equipment used to obtain representative samples and analyses, to include:

(a) The name and address of the laboratory facility performing the sampling on tests of the waste, if different from that of the applicant;

(b) The qualifications of the persons sampling and testing the wastes;

(c) The dates of sampling and testing;

(d) A description of sample handling and preparation techniques, including techniques used for extraction, containerization, and preservation of samples; and

(e) A description of the tests performed and the results obtained.

(3) The description of the reclamation processes.

3. Additional requirements for application under 9VAC20-81-720. In addition to the general information required of all applicants under subdivision 1 of this subsection, the applicant shall submit:

a. An explanation of the applicant's particular situation that prevents the facility from achieving compliance with the cited regulation; and

b. Other information as may be required by the department.

B. Application processing.

1. After receiving an application that includes the information required in subsection A of this section, the director will determine whether the information received is sufficient to render the decision. If the information is deemed to be insufficient, the director will request that additional information be furnished.

2. The applicant may submit the additional information requested, or may demonstrate that the additional information should not be required. If the director agrees that the additional information should not be required, he will act in accordance with subdivision 3 of this subsection.

3. After the application is deemed complete:

a. The director will make a tentative decision to grant or deny the variance request.

b. If the variance request is tentatively denied, the director will offer the applicant the opportunity to withdraw the request, submit additional information, or proceed with the evaluation.

c. The director will issue a notice tentatively granting the variance request. Notification of this tentative decision will be provided by newspaper advertisement in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days.

d. After evaluating all public comments, the director will, within 15 days after the expiration of the comment period:

(1) Notify the applicant of the final decision; and

(2) Notify all persons who commented on the tentative decision.

C. Decision resolution.

1. In the case of a denial, the applicant has a right to request a formal hearing to challenge the rejection.

2. If the director grants a variance request, the notice to the applicant shall provide that the variance may be terminated upon a finding by the director that the applicant has failed to comply with any variance requirements.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

Part VIII Requirements for the Management of Coal Combustion Residuals

9VAC20-81-800 Adoption of 40 CFR Part 257 Subpart D by reference - Standards for the Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments

A. Except as otherwise provided, those regulations of the U.S. Environmental Protection Agency set forth in Subpart D of 40 CFR Part 257 promulgated as of December 14, 2020, wherein they relate to standards for the disposal of coal combustion residuals in landfills and surface impoundments, are hereby incorporated as part of the Virginia Solid Waste Management Regulations, 9VAC20-81. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are a part of incorporated sections of 40 CFR Part 257 are also hereby incorporated as part of the Virginia Solid Waste Management Regulations.

B. In all locations in this chapter where text from 40 CFR Part 257 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into this chapter. The following terms, where they appear in the Code of Federal Regulations shall, for the purpose of this chapter, have the following meanings or interpretations:

1. "Director" shall supplant the "State Director" wherever it appears.

2. "Qualified professional engineer" or "engineer" means a "professional engineer" certified to practice in the Commonwealth of Virginia as defined in 9VAC20-81-10.

3. The phrase "or approval from the Participating State Director" throughout 40 CFR Part 257 is not incorporated by reference.

4. Notwithstanding the provisions of 9VAC20-81-800 A, the text of 40 CFR 257.50(e) and 40 CFR 257.90(g) is not incorporated into this chapter.

5. In 40 CFR 257.73(a)(4), the phrase "not to exceed six inches above the slope of the dike" is not incorporated by reference. In 40 CFR 257.73(d)(1)(iv), 257.74(a)(4), and 257.74(d)(1)(iv), the phrase "not to exceed six inches above the slope of the dike" is not incorporated by reference.

C. Definitions in 40 CFR 257.53 are incorporated by reference into this part and are applicable to CCR landfills and CCR surface impoundments.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 9, eff. January 27, 2016; amended, Virginia Register Volume 33, Issue 16, eff. May 3, 2017; Volume 41, Issue 9, eff. January 15, 2025.

9VAC20-81-810 Permits for CCR landfills and CCR surface impoundments

A. CCR landfills are a specific type of industrial landfill. Permit requirements for industrial landfills are outlined in Part III (9VAC20-81-100 et seq.) and Part V (9VAC20-81-400 et seq.) of this chapter and must be complied with in addition to the requirements applicable to CCR landfills found in this part. Existing CCR landfills shall submit a complete permit application no later than October 17, 2017. Owners and operators of new CCR landfills are required to submit to the director a permit application for an industrial landfill that meets the requirements of this chapter and receive a permit for an industrial landfill prior to the initial receipt of CCR in the CCR unit. An application for a CCR landfill or lateral expansion of a CCR landfill shall include the following:

1. Location restriction demonstrations required by 40 CFR 257.60, 40 CFR 257.61, 40 CFR 257.62, 40 CFR 257.63, and 40 CFR 257.64, as applicable;

2. Description of the CCR landfill's design criteria required by 40 CFR 257.70 (new CCR landfill or lateral expansion of a CCR landfill);

3. Description of how the CCR landfill's operating criteria required by 40 CFR 257.80, 40 CFR 257.81, and 40 CFR 257.84 are met;

4. Explanation of how groundwater monitoring and corrective action criteria required by 40 CFR 257.90, 40 CFR 257.91, 40 CFR 257.93, 40 CFR 257.94, 40 CFR 257.95, 40 CFR 257.96, 40 CFR 257.97, and 40 CFR 257.98 are met;

5. Explanation of how closure and post-closure care requirements found in 40 CFR 257.101, 40 CFR 257.102, 40 CFR 257.103, and 40 CFR 257.104 will be met;

6. Website address for information required to be posted by 40 CFR 257.105, 40 CFR 257.106, and 40 CFR 257.107; and

7. Part III requirements concerning industrial landfills. If more than one standard is listed, the more stringent standard is to be complied with unless the director has granted a variance to a more stringent state specific standard.

B. Existing CCR surface impoundments are required to submit to the director a permit application for a CCR surface impoundment permit that meets the requirements of this chapter before October 17, 2017. New CCR surface impoundments are required to submit to the director a permit application for a surface impoundment that meets the requirements of this chapter prior to the initial receipt of CCR in the CCR unit. An application for a CCR surface impoundment shall include the following:

1. Location restriction demonstrations required by 40 CFR 257.60, 40 CFR 257.61, 40 CFR 257.62, 40 CFR 257.63, and 40 FR 257.64;

2. Description of the CCR surface impoundment's design criteria required by 40 CFR 257.71 (existing CCR surface impoundments), 40 CFR 257.72 (new CCR surface impoundments and lateral expansions), 40 CFR 257.73 (existing CCR surface impoundments), and 40 CFR 257.74 (new CCR surface impoundments and lateral expansions) as applicable;

3. Description of how the CCR surface impoundment's operating criteria required by 40 CFR 257.80, 40 CFR 257.82, and 40 CFR 257.83 are met;

4. Explanation of how groundwater monitoring and corrective action criteria required by 40 CFR 257.90, 40 CFR 257.91, 40 CFR 257.93, 40 CFR 257.94, 40 CFR 257.95, 40 CFR 257.96, 40 CFR 257.97, and 40 CFR 257.98 are met;

5. Explanation of how closure and post-closure care requirements found in 40 CFR 257.101, 40 CFR 257.102, 40 CFR 257.103, and 40 CFR 257.104 will be met; and

6. Website address for information required to be posted by 40 CFR 257.105, 40 CFR 257.106, and 40 CFR 257.107.

C. CCR landfills and new and existing surface impoundments are required to comply with the applicable permitting provisions in Part V (9VAC20-81-400 et seq.) of this chapter, including Virginia public participation requirements.

D. Inactive CCR surface impoundments were not subject to (i) this chapter during their operating life or (ii) a solid waste permit for operation. Inactive CCR surface impoundments are subject to a solid waste permit to address closure and post-closure, as applicable, except where the applicable requirements are included in an existing solid waste permit or a permit issued under State Water Control Law. Such permit shall include conditions to comply with applicable requirements established pursuant to 9VAC20-81-820.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 9, eff. January 27, 2016; amended, Virginia Register Volume 33, Issue 16, eff. May 3, 2017.

9VAC20-81-820 Inactive CCR surface impoundments

A. Inactive CCR surface impoundments are subject to all the requirements of an existing CCR surface impoundment in accordance with 40 CFR 257.100(a).

B. Inactive CCR surface impoundments are eligible for the alternative timeframes specified in 40 CFR 257.100(e)(2) through (e)(6) if the owner or operator:

1. Prepared and placed in the facility's operating record by December 17, 2015, a notification of intent to initiate closure of the inactive CCR surface impoundment;

2. Provided notification to the director by January 19, 2016, of the intent to initiate closure of the inactive CCR surface impoundment; and

3. Placed on its CCR website by January 19, 2016, the notification of intent to initiate closure of the inactive CCR surface impoundment.

C. Inactive CCR surface impoundments that did not complete the requirements of subdivisions B 1, B 2, and B 3 of this section are not eligible for the alternative timeframes specified in 40 CFR 257.100(e)(2) through (e)(6) and must be in compliance with the deadlines for an existing CCR surface impoundment.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 9, eff. January 27, 2016; amended, Virginia Register Volume 33, Issue 16, eff. May 3, 2017.

Chapter 85 Coal Combustion Byproduct Regulations

Part I Definitions

9VAC20-85-10 Definitions as established in Solid Waste Management Regulations

The definitions set out in the Solid Waste Management Regulations, 9VAC20-81, are incorporated by reference.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 1.1, eff. February 22, 1995; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-85-20 Definitions

In addition to the definitions incorporated by reference, the following words and terms shall have, for the purpose of this chapter, the following meanings:

"ASTM" means the American Society for Testing and Materials.

"CCB" means coal combustion byproducts.

"Closure" means the act of securing a fossil fuel combustion products site pursuant to the requirements of this chapter.

"Coal combustion byproducts" or "CCB" means residuals, including fly ash, bottom ash, boiler slag, and flue gas emission control waste produced by burning coal. CCB includes both CCR and non-CCR wastes identified by this definition.

"Coal combustion residuals" or "CCR" means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers. CCR is a specific type of CCB.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or the Director of the Department of Energy depending on the context.

"Fossil fuel combustion products" means coal combustion byproducts as defined in this regulation, coal combustion byproducts generated at facilities with fluidized bed combustion technology, petroleum coke combustion byproducts, byproducts from the combustion of oil, byproducts from the combustion of natural gas, and byproducts from the combustion of mixtures of coal and "other fuels" (i.e., co-burning of coal with "other fuels" where coal is at least 50% of the total fuel). For purposes of this definition, "other fuels" means waste-derived fuel product, auto shredder fluff, wood wastes, coal mill rejects, peat, tall oil, tire-derived fuel, deionizer resins, and used oil.

"Fossil fuel combustion products site" means all land and structures, other appurtenances, and improvements on them used to manage fossil fuel combustion products by the methods included in either 9VAC20-85-40 A or B.

"Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of groundwater discharge or surface runoff.

"Speculatively accumulated material" means any material that is accumulated before being used, reused, or reclaimed or in anticipation of potential use, reuse, or reclamation. Fossil fuel combustion products are not being accumulated speculatively when they can be used, reused, or reclaimed, have a feasible means of use, reuse, or reclamation available and 75% of the accumulated fossil fuel combustion products are being removed from the storage annually.

"TCLP" means a chemical analytical procedure described in the Virginia Hazardous Waste Management Regulations, 9VAC20-60.

"Waste derived fuel product" means a solid waste or combination of solid wastes that have been treated (altered physically, chemically, or biologically) to produce a fuel product with a minimum heating value of 5,000 BTU/lb. Solid wastes used to produce a waste derived fuel product must have a heating value, or act as binders and may not be added to the fuel for the purpose of disposal. Waste ingredients may not be listed or characteristic hazardous wastes. The fuel product must be stable at ambient temperature, and not degraded by exposure to the elements. This material may not be "refuse derived fuel (RDF)" as defined in 9VAC5-40-890.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 1.2, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 32, Issue 9, eff. January 27, 2016; Volume 38, Issue 7, eff. December 22, 2021.

Part II Purpose and Applicability

9VAC20-85-30 Purpose

The purpose of this chapter is to provide for the use of fossil fuel combustion products including coal combustion byproducts (CCB) and to establish appropriate standards for siting, design, construction, operation, and administrative procedures pertaining to their use, reuse, or reclamation.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941 and 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 2.1, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006.

9VAC20-85-40 Applicability

A. This chapter applies to all persons who use, reuse, or reclaim fossil fuel combustion products by applying them to or placing them on land in a manner other than addressed in 9VAC20-81-95 of the Solid Waste Management Regulations. 9VAC20-81-95 provides for the beneficial use of waste materials such as fossil fuel combustion products, and provides for conditional exemptions from regulation for fossil fuel combustion products. This chapter also applies to all persons who use, reuse, or reclaim 12,400 tons or less of unencapsulated CCR on the land in nonroadway applications.

B. This chapter establishes minimum standards for the owners or operators of coal mining facilities that accept CCB for mine reclamation or mine refuse disposal on a mine site permitted by the Virginia Department of Energy unless otherwise exempt under 9VAC20-81-95 D 18 of the Solid Waste Management Regulations. If the permit issued by the Virginia Department of Energy in accordance with the Coal Surface Mining Reclamation Regulations, 4VAC25-130, specifies the applicable conditions set forth in Parts III (9VAC20-85-70 et seq.) and IV (9VAC20-85-150 et seq.) of this chapter, the permittee is exempt from this chapter.

C. Conditions of applicability are as follows:

1. Persons using fossil fuel combustion products other than in a manner prescribed under this chapter, or managing fossil fuel combustion products containing any constituent at a level exceeding levels set forth in Table 1 in Part IV of this chapter, shall manage their waste in accordance with all applicable provisions of the Solid Waste Management Regulations, 9VAC20-81.

2. Materials that are accumulated speculatively, materials that are not utilized in a manner described in the operation plan required by 9VAC20-85-90, and off-specification materials that cannot be utilized or reprocessed to make them usable shall be managed in accordance with all appropriate provisions of the Solid Waste Management Regulations, 9VAC20-81.

3. Storage, stockpiling, and other processing or handling of fossil fuel combustion products, which may need to occur prior to their final placement or use, reuse, or reclamation, shall be in a manner necessary to protect human health and safety and the environment. For projects permitted by the Virginia Department of Energy, the storage, stockpiling, or handling of CCB shall be managed in accordance with the Coal Surface Mining Reclamation Regulations, 4VAC25-130.

4. Use, reuse, or reclamation of greater than 12,400 tons of unencapsulated CCR on the land in nonroadway applications shall be managed in accordance with all applicable provisions of the Solid Waste Management Regulations, 9VAC20-81.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 2.2, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016; Volume 38, Issue 7, eff. December 22, 2021.

9VAC20-85-50 Relationship to other regulations

This chapter does not affect the Solid Waste Management Regulations, 9VAC20-81, or other pertinent regulations of the department or other agencies of the Commonwealth, except that persons subject to and in compliance with this chapter are exempt from the Solid Waste Management Regulations and the Financial Assurance Regulations for Solid Waste Facilities, 9VAC20-70, for those activities covered by this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR 672-20-20 § 2.3, eff. February 22, 1995; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-85-60 Enforcement and appeals

A. All administrative enforcement and appeals taken from actions of the department relative to the provisions of this chapter shall be governed by the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The owner or operator of the fossil fuel combustion products site who violates any provision of this chapter will be considered to be operating an unpermitted facility as provided for in 9VAC20-81-40 of the Solid Waste Management Regulations and shall be required to either obtain a permit as required by Part V or close under Part III of 9VAC20-81.

C. The requirement to obtain a permit or to close the project shall not preclude additional action for remediation or enforcement, including (without limitations) the assessment of civil charges or civil penalties, as is otherwise authorized by law.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 2.4, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 27, Issue 22, eff. August 3, 2011.

Article 1 Locational Restrictions

9VAC20-85-70 Locational restrictions

Fossil fuel combustion products used, reused, or reclaimed on or below ground shall not be placed:

1. In areas subject to base floods unless it can be shown that fossil fuel combustion products can be protected from inundation or washout and that flow of water is not restricted, except for unamended coal combustion byproduct, which shall not be placed in areas subject to base floods;

2. With the vertical separation between the fossil fuel combustion products and the maximum seasonal water table less than five feet or bedrock less than two feet;

3. Closer than:

a. 100 feet of any perennial stream,

b. 100 feet of any water well (other than a monitoring well) in existence at the onset of the project,

c. 25 feet of a bedrock outcrop, unless the outcrop is properly treated to minimize infiltration into fractured zones,

d. 100 feet of a sinkhole, or

e. 25 feet from any property boundary or, in the case of projects permitted by the Virginia Department of Energy, 25 feet from the permit boundary ( All distances are to be measured in the horizontal plane.);

4. In wetlands, unless applicable federal, state, and local permits are obtained; and

5. On the site of an active or inactive dump, unpermitted landfill, lagoon, or similar facility, even if such facility is closed.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.1, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 26, Issue 11, eff. March 3, 2010; Volume 32, Issue 9, eff. January 27, 2016; Volume 38, Issue 7, eff. December 22, 2021.

Article 2 Design and Construction

9VAC20-85-80 Design and construction

This section prescribes design and construction standards for fossil fuel combustion products sites. The owner or operator of such a site shall submit appropriate design plans, specifications and a design report that address, at a minimum, the requirements contained in this section.

1. A survey benchmark shall be identified and its location referenced on drawings and maps of the site.

2. During construction and filling, off-site runoff shall be diverted around the use, reuse or reclamation areas. The uncovered active fossil fuel combustion products fill areas shall be graded to a maximum slope of 5.0% and a smooth surface maintained to provide for sheet flow runoff and to prevent dusting. Runoff from the use, reuse or reclamation area shall be controlled and contained by use of diversion ditches, sediment traps, berms or collection ponds in accordance with the site erosion control plan. The use, reuse, or reclamation projects shall be designed to divert surface water run on from a 25-year, 24-hour storm event. For projects permitted by the Virginia Department of Energy, the standards for runon, grading, and runoff shall be in accordance with the Coal Surface Mining Reclamation Regulations (4VAC25-130).

3. Finished side slopes shall be stable and be configured to adequately control erosion and runoff. Side slopes of 33% will be allowed provided that adequate runoff controls are established. Steeper side slopes may be considered if supported by necessary stability calculations and appropriate erosion and runoff control features. All finished slopes and runoff management units shall be supported by necessary calculations and included in the design report.

4. The finished top slope shall be at least 2.0% to prevent ponding of water, except where covered by a building, a paved roadway, a paved parking surface, paved walkways or sidewalks, or similar structures.

5. Specifications prepared by a registered professional engineer shall be provided that indicate the criteria for the placement of the fossil fuel combustion products based on the intended use of the site. Specifications will include lab and field testing to be performed, testing frequency based on the nature and source of the materials, and the required performance of the material based on the intended use of the site. All test methods will be in accordance with the Standard Guide for Design and Construction of Coal Ash Structural Fills, American Standard Test Method E2277-03 et seq., where applicable.

6. Upon reaching the final grade, the placed material shall be covered in accordance with the requirements of Article 4 of this part.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.2, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 38, Issue 7, eff. December 22, 2021.

Article 3 Operations

9VAC20-85-90 Operations

The owner or operator of a fossil fuel combustion products site shall prepare an operation plan. At a minimum, the plan shall address the requirements contained in this section.

1. Tracking of mud or fossil fuel combustion products onto public roads from the site shall be controlled at all times to minimize nuisances.

2. The addition of any solid waste, including hazardous, infectious, construction, debris, demolition, industrial, petroleum-contaminated soil, or municipal solid waste to fossil fuel combustion products is prohibited. This prohibition does not apply to solid wastes from the extraction, beneficiation, and processing of ores and minerals conditionally exempted under 9VAC20-81-95 E 3 of the Solid Waste Management Regulations.

3. Fugitive dust shall be controlled at the site so it does not constitute nuisances or hazards.

4. After preparing the sub-base, fossil fuel combustion products shall be placed uniformly and compacted to standards, including in situ density, compaction effort, and relative density as specified by a registered professional engineer based on the intended use of the fossil fuel combustion products. The placement and compaction of CCB on coal mine sites shall be subject to the applicable requirements of the Coal Surface Mining Reclamation Regulations (4VAC25-130).

5. A surface run on and runoff control program shall be implemented to control and reduce the infiltration of surface water through the fossil fuel combustion products and to control the runoff from the placement area to other areas and to surface waters.

6. Runoff shall not be permitted to drain or discharge into surface waters except when in accordance with 9VAC25-10 or otherwise approved by the department.

7. Fossil fuel combustion products site development shall be in accordance with the Virginia Erosion and Stormwater Management Regulation (9VAC25-875) or the Coal Surface Mining Reclamation Regulations (4VAC25-130) as applicable.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.3, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 9, eff. January 27, 2016; Volume 41, Issue 9, eff. January 15, 2025.

Article 4 Closure

9VAC20-85-100 General

Article 4 Closure

Upon reaching the final grade, the owner or operator of a fossil fuel combustion products site shall close his project in a manner that minimizes the need for further maintenance.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941 and 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.4, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006.

9VAC20-85-110 Exemptions from the closure requirements

A. An owner or operator of a site that constructs a building, a paved roadway, a paved parking surface, paved walkways and sidewalks, or other similar structures on top of the fill within a reasonable time period of reaching the final grade not to exceed 12 months shall be exempt from the requirements of this article for the portions of the fossil fuel combustion products site directly under the construction area.

B. An operator of a coal mine site permitted by the Virginia Department of Energy who is reclaiming a site in conformance with the Coal Surface Mining Reclamation Regulations (4VAC25-130) shall be exempt from the closure requirements contained in the section.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.5, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 38, Issue 7, eff. December 22, 2021.

9VAC20-85-120 Closure criteria

A. The owner or operator shall install a final cover system that is designed and constructed to:

1. Minimize infiltration through the closed fossil fuel combustion products site by the use of an infiltration layer that contains a minimum 12 inches of earthen material; and

2. Minimize erosion of the final cover by the use of an erosion control layer that contains a minimum of six inches of earthen material and is capable of sustaining the growth of indigenous plant species or plant species adapted to the area.

B. The use of the property after closure shall not disturb the integrity of the final cover, unless the purpose of the disturbance is to construct buildings, paved roadways, paved parking surfaces, paved walkways and sidewalks, or other similar facilities.

C. Within 90 days after placement of the final cover is complete, the owner or operator shall submit:

1. To the local land recording authority, a survey plat prepared by a professional land surveyor registered by the Commonwealth, indicating the location and dimensions of the placement areas. The plat filed with the local land recording authority shall contain a note, prominently displayed, which states the owner's or operator's future obligation to restrict disturbance of the site.

2. To the department, a statement signed by a registered professional engineer that construction has been completed in accordance with and meeting the requirements of (i) the design plans, specifications, and the design report of 9VAC20-85-80, (ii) 9VAC20-85-90 (operational requirements) and (iii) 9VAC20-85-100 through 9VAC20-85-140 (closure requirements).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941 and 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.6, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006.

9VAC20-85-130 Closure plan and amendment of plan

A. The owner or operator of the fossil fuel combustion products site shall have a written closure plan. This plan shall identify the steps necessary to completely close the site. The plan shall include, at least, a schedule for final closure including, as a minimum, the anticipated date when fossil fuel combustion products will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates.

B. The owner or operator may amend his plan at any time during the active life of the project. The owner or operator shall so amend his plan any time changes in operating plans or project design affect the closure plan.

C. At any time during the operating life of the project, the plan shall be made available to the department upon request.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941 and 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.7, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006.

9VAC20-85-140 Time allowed for closure

The owner or operator shall complete closure activities in accordance with the closure plan and within six months after receiving the final volume of fossil fuel combustion products. The department may approve a longer closure period if the owner or operator can demonstrate that the required or planned closure activities will, of necessity, take longer than six months to complete; and that he has taken all necessary steps to eliminate any significant threat to human health and the environment from the unclosed but inactive project.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941 and 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 3.8, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006.

9VAC20-85-150 General

A. Notwithstanding any provisions of Part V (9VAC20-81-400 et seq.) of the Solid Waste Management Regulations, 9VAC20-81, the owner or operator of a site that manages only fossil fuel combustion products allowed under 9VAC20-85-40 shall not be required to have a solid waste management facility permit, neither must a fossil fuel combustion products facility operator certified by the Board for Waste Management Facility Operators directly supervise operations at the site, if the owner or operator at least 30 days prior to initial placement of fossil fuel combustion products provides to the appropriate department regional office and verifies receipt of:

1. A certification that it has legal control over the fossil fuel combustion products site for the project life and the closure period. For the purposes of this section, on a coal mine site permitted by the Virginia Department of Energy, demonstration of legal right to enter and begin surface coal mining and reclamation operations shall constitute compliance with the provisions of this section.

2. A certification from the governing body of the county, city, or town in which the fossil fuel combustion products site is to be located that the location and operation of the fossil fuel combustion products site are consistent with all applicable ordinances, with the exception of projects permitted by the Virginia Department of Energy.

3. A general description of the intended use, reuse, or reclamation of fossil fuel combustion products. Such description will include:

a. A description of the nature, purpose and location of the fossil fuel combustion products site, including a topographic map showing the site area and available soils, and geological maps. The description shall include an explanation of how fossil fuel combustion products will be stored prior to use, reuse, or reclamation, if applicable;

b. The estimated beginning and ending dates for the operation;

c. An estimate of the volume of the fossil fuel combustion products to be utilized; and

d. A description of the proposed type of fossil fuel combustion products to be used, reused, or reclaimed, including physical and chemical characteristics of the fossil fuel combustion products. The chemical description shall contain the results of TCLP analyses for the constituents shown in Table 1. The description shall also contain a statement that the project will not manage fossil fuel combustion products that contain any constituent at a level exceeding those shown in the table.

| | TABLE 1. LIST OF CONSTITUENTS AND MAXIMUM LEVELS. | | | --- | --- | --- | | | Constituent | Level, mg/lit | | | Arsenic | 5.0 | | | Barium | 100 | | | Cadmium | 1.0 | | | Chromium | 5.0 | | | Lead | 5.0 | | | Mercury | 0.2 | | | Selenium | 1.0 | | | Silver | 5.0 |

4. A certification by a professional engineer licensed to practice by the Commonwealth that the project meets the locational restrictions of 9VAC20-85-70. Such certificate shall contain no qualifications or exemptions from the requirements.

5. A certificate signed by a professional engineer licensed to practice by the Commonwealth that the project has been designed in accordance with the standards of 9VAC20-85-80 if applicable. Such certificate shall contain no qualifications or exceptions from the requirements and plans.

6. An operational plan describing how the standards of 9VAC20-85-90 will be met.

7. A closure plan describing how the standards of Article 4 of Part III of this chapter will be met, if applicable.

8. A signed statement that the owner or operator shall allow authorized representatives of the Commonwealth, upon presentation of appropriate credentials, to have access to areas in which the activities covered by this chapter will be, are being, or have been conducted to ensure compliance.

B. The materials submitted under the provisions of subsection A of this section will be evaluated for completeness within 30 days of receipt by the appropriate department regional office. If the department notifies the applicant of deficiencies within 30 days, the applicant shall postpone any construction or activities proposed in the application for the department's approval until the department's approval has been received. If the applicant has not received a notice of deficiency within 30 days, the applicant can proceed.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 4.1, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006; Volume 27, Issue 22, eff. August 3, 2011; Volume 38, Issue 7, eff. December 22, 2021.

9VAC20-85-160 Project modifications

The owner or operator of a fossil fuel combustion products site may modify the design and operation of the project by furnishing the department a new certificate required by subdivision A 5 of 9VAC20-85-150 and a new operational plan required by subdivision 6 of 9VAC20-85-150. Whenever modifications in the design or operation of the project affect the provisions of the closure plan, the owner or operator shall prepare an amended plan in accordance with the requirements of Article 4 of Part III of this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941 and 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 4.2, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006.

9VAC20-85-170 Applicability

The department may grant a variance from any requirement contained in Part III of this chapter to the owner or operator of the fossil fuel combustion products site if he demonstrates to the satisfaction of the department that granting the variance will not result in an additional risk to the public health or the environment beyond the risk which would be imposed without the variance.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia, 42 USC § 6941 and 40 CFR Part 257.
• Historical Notes: Derived from VR 672-20-20 § 5.1, eff. February 22, 1995; amended, Virginia Register Volume 23, Issue 4, eff. November 29, 2006.

9VAC20-85-180 Administrative procedures

The administrative procedures associated with the submission of the variance petition, its processing and resolution will be accomplished in accordance with the requirements of Part VII (9VAC20-81-700 et seq.) of the Solid Waste Management Regulations.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR 672-20-20 § 5.2, eff. February 22, 1995; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011.

Chapter 90 Solid Waste Management Permit Action Fees and Annual Fees

Part I Definitions

9VAC20-90-10 Definitions

Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia defines words and terms that supplement those in this chapter. The Solid Waste Management Regulations, 9VAC20-81, and the Regulated Medical Waste Management Regulations, 9VAC20-121, define additional words and terms that supplement those in the statute and this chapter. When the statute, as cited, and the solid waste management regulations, as cited, define a word or term differently, the definition of the statute is controlling. The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Department" means the Virginia Department of Environmental Quality.

"Director" means the director of the Department of Environmental Quality.

"Operating" means actively managing solid waste, or conducting closure or post closure activities. A facility will begin operating on the date of the approval of the certificate to operate (CTO) or the approval of the permit-by-rule (PBR) as applicable. The facility will no longer be considered operating upon certification of completion of closure activities or in the case of a disposal facility upon release from post closure responsibility.

"Permit-by-rule" means provisions of the chapter stating that a facility or activity is deemed to have a permit if it meets the requirements of the provision.

"Permitted facility" means a facility holding the written permission of the director to conduct solid waste management activities; this includes facilities operating under permit-by-rule.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 1.1, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

Part II Legislative Authority and General Information

9VAC20-90-20 (Repealed.)

Historical Notes

Derived from VR672-20-11 § 2.1, eff. June 8, 1992; repealed, Virginia Register Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-90-30 Purpose of regulation

A. The purpose of these regulations is to establish schedules and procedures pertaining to the payment and collection of fees from any applicant seeking a new permit or seeking a modification or an amendment to an existing permit for operation of a solid or regulated medical waste management facility in the Commonwealth of Virginia. These regulations also establish fees for the review of other permit-related documents required to be reviewed by the department.

B. These regulations establish schedules and procedures pertaining to the payment of annual fees to be submitted by any person operating a permitted facility for the disposal, storage, or treatment of nonhazardous solid waste.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 2.2, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004.

9VAC20-90-40 Administration of regulation

A. The Virginia Waste Management Board promulgates and enforces regulations that it deems necessary to carry out its powers and duties.

B. The director is authorized and directed to administer these regulations in accordance with the Virginia Waste Management Act, §§ 10.1-1400 through 10.1-1458 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1402.1 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 2.3, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 35, Issue 15, eff. April 17, 2019.

9VAC20-90-50 Applicability of regulations

A. These regulations apply to all persons operating or proposing to operate a permitted facility for the management of solid waste under the provisions of:

1. Part V (9VAC20-81-400 through 9VAC20-81-600) of the Solid Waste Management Regulations;

2. Part V (9VAC20-121-300 through 9VAC20-121-340) of the Regulated Medical Waste Management Regulations; or

3. Part V (9VAC20-85-170 through 9VAC20-85-180) of the Coal Combustion Byproduct Regulations.

The fees shall be assessed in accordance with Part III (9VAC20-90-70 through 9VAC20-90-120) of this chapter.

B. When the director finds it necessary to amend or modify any permit in accordance with § 10.1-1408.1 E or § 10.1-1409 of the Code of Virginia, 9VAC20-81-600 of the Solid Waste Management Regulations or Part V (9VAC20-121-300 through 9VAC20-121-340) of the Regulated Medical Waste Management Regulations, as applicable, the holder of that permit shall be assessed a fee in accordance with 9VAC20-90-90 even if the director has initiated the amendment or modification action.

C. When the director finds it necessary to revoke and reissue any permit in accordance with § 10.1-1408.1 E or § 10.1-1409 of the Code of Virginia, 9VAC20-81-570 B 1 of the Solid Waste Management Regulations, or Part V (9VAC20-121-300 through 9VAC20-121-340) of the Regulated Medical Waste Management Regulations, as applicable, the holder of that permit shall be assessed a fee in accordance with 9VAC20-90-80.

D. If the director finds it necessary either to revoke and reissue a permit in accordance with § 10.1-1408.1 E or § 10.1-1409 of the Code of Virginia, or 9VAC20-81-570 B 2 of the Solid Waste Management Regulations, the holder of that permit shall be assessed a fee in accordance with 9VAC20-90-100.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 2.4, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-90-60 Payment of permit action fees

A. Due date.

1. Except as specified in subdivisions 2, 3, and 4 of this subsection, all permit action fees are due on the day of application and must accompany the application.

2. Applicants for solid waste management permits shall submit the appropriate fee along with the certification from the local governing body and the disclosure statements at the time of the submittal of the notice of intent. An applicant for a new facility shall submit appropriate Part A fees with the notice of intent, and submit the Part B action fee when the Part B application is submitted.

3. Applicants for an emergency permit shall submit the permit action fee to the department within 60 days of submitting an application.

4. For facilities entering the corrective action program, the fee for Corrective Action, Module XIV, is due upon submission of the proposal for presumptive remedy or assessment of corrective measures. If during the course of the corrective action program, modifications to the corrective action program are required, no additional fee will be assessed.

B. Method of payment. Fees shall be paid by check, draft or postal money order made payable to "Treasurer of Virginia." When the department is able to accept electronic payments, payments may be submitted electronically.

C. Incomplete payments. All incomplete payments will be deemed nonpayments.

D. Payment required. No applications will be deemed to be complete until proper payment is received by the department. The department shall not begin a review of an incomplete application unless the application is for an emergency permit. Nonpayment of fees will result in a processing delay. If the director is amending or revoking and re-issuing a permit for cause, nonpayment of fees may lead to termination of the permit.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 2.5, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004.

9VAC20-90-65 Payment of annual fees

A. Operators of permitted solid waste management facilities shall pay annual fees based on the requirements of this section. An annual fee is required for each activity occurring at a permitted facility.

1. Annual fees, including those that are based on annual tonnage, shall be calculated using the procedures in 9VAC20-90-113, 9VAC20-90-114, and 9VAC20-90-115.

2. For facilities engaged in multiple activities under the provisions of a single permit, an operator shall pay multiple annual fees.

3. Annual fees assessed for single or multiple activities conducted under a permit reflect the time and complexity of inspecting and monitoring the different categories of facilities identified in § 10.1-1402.1:1 of the Code of Virginia.

B. Due date.

1. Submission date. The department may bill the operator for amounts due or becoming due in the immediate future. Payments are due on or before October 1 or 30 days after receipt of a bill from the department, whichever comes later, unless the operator is using the quarter payment option. Except as specified in subdivision 2 of this subsection, all annual fees are submitted on a yearly basis and are due on or before October 1 (for the preceding annual year).

2. Optional quarter payment. Facility operators that are required to pay annual fees exceeding $8,000 for single or multiple permits may submit four equal payments totaling the annual fee on or before October 1, January 1, April 1, and June 1. The annual payment cycle for quarter payments will begin with the October 1 payment and will end with the June 1 payment. Those facilities opting for the quarter payment schedule shall accompany all payments with a copy of DEQ form PF001.

3. Late quarter payments. If the quarter payment is not paid by the deadline, DEQ may, in addition to seeking other remedies available under the law, issue a notice of failure to pay. The notice shall require payment of the entire remainder of the annual fee payment within 30 days of the date of the notice, or inform the owner that he is ineligible to opt for the quarter payment schedule until eligibility is reinstated by written notice from the department, or both.

C. Method of payment. Fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ," and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218. When the department is able to accept electronic payments, payments may be submitted electronically.

D. Incomplete payments. All incomplete payments will be deemed nonpayments.

E. Late payment of annual fee. Interest may be charged for late payments at the underpayment rate set out by the U.S. Internal Revenue Service established pursuant to Section 6621(a)(2) of the Internal Revenue Code. This rate is prescribed in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate. A 10% late payment fee may be charged to any delinquent (over 90 days past due) account. The Department of Environmental Quality is entitled to all remedies available under the Code of Virginia in collecting any past due amount and may recover any attorney's fees and other administrative costs incurred in pursuing and collecting any past due amount.

F. Annual fees received by the department shall be deposited in the Virginia Waste Management Permit Program Fund and used exclusively for the solid waste management program as set forth in the Code of Virginia.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 26, Issue 23, eff. August 18, 2010; Volume 27, Issue 22, eff. August 3, 2011.

Part III Determination of Fee Amount

9VAC20-90-70 General

A. Each application for a new permit, each application for a modification or amendment to a permit, and each revocation and issuance of a permit is a separate action and shall be assessed a separate fee. The amount of such fees is determined on the basis of this Part III (9VAC20-90-70 through 9VAC20-90-120).

B. Right of entry, inspection and audit. Upon presentation of appropriate credentials and upon consent of the owner or operator of the facility, the director of the Virginia Department of Environmental Quality or his designee, in addition to the routine inspection of the facility provided in 9VAC20-81-50 or 9VAC20-121-320 shall have the right to enter, inspect, and audit the records of the facility consistent with § 10.1-1456 of the Code of Virginia. The director may designate rights of entry, inspection, and audit to any department personnel or contractors to the department. The owner of operator of the facility shall provide complete and timely access during business hours to all equipment and facility records. The director shall have the right to require an audit of the facility's records related to the payment of annual fees.

C. In addition to permit action fees listed in Tables 3.1-1, 3.1-2, and 3.1-3 of 9VAC20-90-120, the applicant for a permit action shall arrange for the newspaper publication and radio broadcast and bear the cost of the publication and broadcast if required. The department shall send notification to the applicant that the publication and broadcast are required, and the notification shall include the text of the notice, dates of publication and broadcast, and the acceptable newspapers and radio stations wherein the notice may be published. The department shall also require the petitioner for a variance from any regulation to arrange for any newspaper publication and radio broadcast required under the Solid Waste Management Regulations (9VAC20-81) or the Regulated Medical Waste Management Regulations (9VAC20-121) and to bear the cost of such publication and broadcast. The department may arrange for the newspaper publication and radio broadcast listed in this subsection and require the applicant to remit the cost of such publication and broadcast.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 3.1, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-90-80 New facility permit issuance or action

All applicants for new solid and regulated medical waste treatment, storage, and disposal facility permits are assessed an appropriate fee shown in Table 3.1-1 of 9VAC20-90-120 depending on the type of permit or permit action.

Applicants for an emergency permit are assessed a fee shown on Table 3.1-1 of 9VAC20-90-120 unless the director determines that a lesser fee is appropriate at the time the permit is issued.

(NOTE: Certain solid waste management facility permit modifications are so extensive that they require issuance of new permits (see 9VAC20-81-400 C of the Solid Waste Management Regulations). Such applications will be considered to be applications for new facilities.)

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 3.2, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-90-90 Applications for permit actions, amendment or modification

A. General. Facility permits issued by the director are typically based on the modular concept to assure completeness and consistency of the documents. Each facility permit may consist of several modules dealing with the requirements addressing separate topics pertinent to the specific facility. The modules used in the solid and regulated medical waste program are:

1. The general permit conditions module (Module I) that contains the general conditions required for all solid or regulated medical waste facility permits and includes documents to be submitted prior to operation, documents that must be maintained at the facility, and a compliance schedule, if any.

2. The general facility requirements module (Module II) that contains the listing of wastes that the facility may accept or a list of wastes prohibited from acceptance, an analysis plan, security and site access information, inspection requirements, personnel training requirements, special standards based on particular location, a preparedness and prevention plan, a contingency plan, closure and post-closure cost estimates, and facility-specific financial assurance requirements.

3. The separate facility modules, one for each of the different type of facility provided for in Parts III and IV of the Solid Waste Management Regulations, containing design requirements (e.g., liners, leachate management systems, aeration systems, wastewater collection systems), specific operating requirements (e.g., compaction and cover requirements, equipment, monitoring), and recordkeeping requirements. The following modules have been developed:

a. Module III—Sanitary landfills;

b. Module IV—Construction/demolition/debris landfill;

c. Module V—Industrial landfill;

d. Module VI—Compost facility;

e. Module VII—Transfer station;

f. Module VIII—Materials recovery facility; and

g. Module IX—Energy recovery and incineration facility.

4. All gas management plans submitted for review (Module III, IV, or V) will be assessed a fee as listed in Table 3.1-2 of 9VAC20-90-120.

5. The groundwater monitoring modules contain requirements for well location, installation, and construction, listing of monitoring parameters and constituents, sampling and analysis procedures, statistical procedures, data evaluation, recordkeeping and reporting, and special requirements when significant increases occur in monitoring parameters. Module X is designed specifically for Phase I or detection monitoring and Module XI for Phase II or assessment monitoring. If groundwater protection standards are being established for facilities without Modules X and XI, then both Modules X and XI will be issued for the major modification fee. However, for facilities with Module X already included in their permit, the major modification fee will be assessed to add Module XI.

6. The closure module (Module XII), included in all permits, contains requirements for actions during the active life of the facility (updating plan), during the closure process, and after the closure has been performed. Facilities required to submit a closure plan in accordance with §§ 10.1-1410.1 and 10.1-1410.2 A 1 of the Code of Virginia will be assessed a fee for Module XII as listed in Table 3.1-2 of 9VAC20-90-120.

7. The post-closure module (Module XIII), included in solid waste disposal facility permits, contains requirements during the post-closure period and for periodic updating of the post-closure plan. Facilities required to submit a post-closure plan in accordance with § 10.1-1410.2 of the Code of Virginia will be assessed a fee for Module XIII as listed in Table 3.1-2 of 9VAC20-90-120.

8. The schedule for compliance for corrective action (Module XIV) is used when facility groundwater monitoring results indicate groundwater protection standards have been statistically exceeded.

9. The leachate handling module (Module XV), included in solid waste disposal facility permits, contains requirements for storage, treatment and disposal of leachate generated by the facility.

10. The regulated medical waste storage or transfer module (Module XVI) and regulated medical waste treatment module (Module XVII) have been developed for facilities storing, transferring, or treating regulated medical waste.

B. Applicants for a modification or amendment of an existing permit will be assessed a fee associated with only those modules that will require changes. In situations where the modular concept is not employed (for example, changes incorporated directly into a nonmodular permit), fees will be assessed as appropriate for the requirements stipulated for modules in subsection A of this section had they been used.

C. Applicants for a modification or amendment or subject to revocation and reissuance of an existing permit will be assessed a separate public participation fee whenever the modification or amendment requires a public hearing.

D. The fee schedules for major permit actions, amendments, or modifications are shown in Table 3.1-2 of 9VAC20-90-120.

E. In no case will the fee for a modification, amendment or revocation and reissuance of a permit be higher than that for a new facility of the same type.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 3.3, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-90-100 Minor actions, amendments or modifications

Applicants for minor modifications and minor permit amendments under the provisions of 9VAC20-81-600 F 2 shall not be assessed a permit modification fee.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from VR672-20-11 § 3.4, eff. June 8, 1992; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-90-110 Review of variance requests

Applicants requesting variances from the Solid Waste Management Regulations (9VAC20-81), the Regulated Medical Waste Management Regulations (9VAC20-121), or the Coal Combustion Byproduct Regulations (9VAC20-85) will be assessed a fee as shown in Table 3.1-3 of 9VAC20-90-120. All variance requests are subject to base fees. Additional fees are listed for reviews of specific types of variance requests and are to be submitted in addition to base fees. Variance requests are not subject to public participation fees listed in Table 3.1-2 of 9VAC20-90-120.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 18, eff. July 1, 2003; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-90-113 Annual fee calculation for incinerators and energy recovery facilities

A. General. All persons operating an incinerator or energy recovery facility that is permitted under the regulations outlined in 9VAC20-90-50 shall submit annual fees according to the procedures provided in 9VAC20-90-65. Annual fees shall be calculated using the procedures provided in subsection B of this section. Fees shall be rounded to the nearest dollar. The 2010 base fee rate is $0.055 per ton.

B. Fee calculation. Annual tonnage will be determined from the total amount of waste reported as having been incinerated on Form DEQ 50-25 for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-81-80). Annual fees shall be calculated by multiplying the number of tons of waste incinerated by the fee rate set forth in subsection A of this section adjusted annually by the change in the Consumer Price Index. The Consumer Price Index is the Consumer Price Index for all-urban consumers for the 12-month period ending on April 30 of the calendar year preceding the year the annual fee is due. The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0.

C. Weight/volume conversions. For facilities required to pay annual fees based on the tonnage of the waste incinerated, the annual fee shall be based on the accurate weight of waste. If scales are unavailable, the volume of the waste incinerated by the facility must be multiplied by 0.50 tons per cubic yard to determine the weight of the waste incinerated. If the volume of waste is used to determine the tonnage of waste incinerated, accurate and complete records of the waste received and managed must be maintained in addition to the calculated weight records described in this part. These records must be maintained onsite throughout the life of the facility and made available to the department upon request.

D. Emergency. The director may waive or reduce annual fees assessed during a state of emergency or for waste resulting from an emergency response action. A facility operator may request a determination if a given volume of waste incinerated in a given calendar year qualifies for a waived or reduced fee by submitting documentation of the emergency to the regional office where the facility is located. The request will provide the name and permit number of the facility, a facility contact, the nature of the emergency or response action, a description of the waste, and an accurate accounting of the type and tonnage of waste managed as a result of the emergency. Requests for a determination by the director must be submitted by March 31 of the year following the emergency coincident with the solid waste information assessment report. A separate request shall be provided for each year if the emergency lasts for multiple years.

E. Annual fee discounts for environmental excellence program participants are set out in 9VAC20-90-117.

F. The operator of a facility owned by a private entity and subject to any fee imposed pursuant to this section shall collect such fee as a surcharge on any fee schedule established pursuant to law, ordinance, resolution, or contract for solid waste processing or disposal operations at the facility.

G. Closure. Facilities that remove all waste materials at the time of closure and are subject only to closure requirements are subject to payment of the annual fee if they were operating at any time during the calendar year.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 27, Issue 22, eff. August 3, 2011; amended, Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-90-114 Annual fee calculation for sanitary landfills, noncaptive industrial landfills, and construction and demolition debris landfills

A. General. All persons operating a sanitary landfill, noncaptive industrial landfill, or a construction and demolition debris landfill permitted under the regulations outlined in 9VAC20-90-50 shall submit annual fees according to the procedures provided in 9VAC20-90-65. Annual fees shall be calculated using the procedures provided in subsection B of this section. Fees shall be rounded to the nearest dollar. The 2010 base fee rate is $0.115 per ton.

B. Fee calculation. Annual tonnage will be determined from the total amount of waste reported as having been landfilled on Form DEQ 50-25 for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-81-80). Annual fees shall be calculated by multiplying the tons of waste landfilled (excluding any ash landfilled that was generated by incinerators and energy recovery facilities located in Virginia previously assessed a fee under 9VAC20-90-113) by the fee rate set forth in subsection A of this section adjusted annually by the change in the Consumer Price Index. The Consumer Price Index is the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30 of the calendar year preceding the year the annual fee is due. The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0. Landfills receiving ash generated by incinerators and energy recovery facilities located in Virginia previously assessed a fee under 9VAC20-90-113 shall report to the board the amount of ash received from individual facilities on the Solid Waste Information Reporting Table, Form DEQ 50-25. The tonnage of ash identified as being generated by incinerators and energy recovery facilities previously assessed a fee under 9VAC20-90-113 shall be exempted from the annual fee assessed for sanitary landfills, construction and demolition debris landfills, and noncaptive industrial landfills.

C. Weight/volume conversions. For facilities required to pay annual fees based on the tonnage of the waste landfilled, the annual fee shall be based on the accurate weight of waste. If scales are unavailable, the volume of the waste landfilled by the facility must be multiplied by 0.50 tons per cubic yard to determine the weight of the waste landfilled. If the volume of waste is used to determine the tonnage of waste landfilled, accurate and complete records of the waste received and managed must be maintained in addition to the calculated weight records described in this part. These records must be maintained onsite throughout the life of the facility and made available to the department upon request.

D. Emergency. The director may waive or reduce annual fees assessed during a state of emergency or for waste resulting from an emergency response action. A facility operator may request a determination if a given volume of waste landfilled in a given calendar year qualifies for a waived or reduced fee by submitting documentation of the emergency to the regional office where the facility is located. The request will provide the name and permit number of the facility, a facility contact, the nature of the emergency or response action, a description of the waste, and an accurate accounting of the type and tonnage of waste managed as a result of the emergency. Requests for a determination by the director must be submitted by March 31 of the year following the emergency coincident with the solid waste information assessment report. A separate request shall be provided for each year if the emergency lasts for multiple years.

E. Annual fee discounts for environmental excellence program participants are set out in 9VAC20-90-117.

F. The operator of a facility owned by a private entity and subject to any fee imposed pursuant to this section shall collect such fee as a surcharge on any fee schedule established pursuant to law, ordinance, resolution, or contract for solid waste processing or disposal operations at the facility.

G. Closure. Facilities that remove all waste materials at the time of closure and are subject only to closure requirements are subject to payment of the annual fee if they were operating at any time during the calendar year.

H. Transition to post-closure care. Landfills entering post-closure care will pay an annual fee as follows:

1. If the landfill received waste during the previous calendar year, the annual fee will be based on the amount of waste landfilled for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-81-80); or

2. If the landfill did not receive waste during the previous calendar year and began post-closure care during the previous calendar year as provided in 9VAC20-81-170, the landfill shall be subject to the post-closure care annual fee.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 23, eff. August 18, 2010; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011; Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-90-115 Annual fee calculation for other types of facilities

A. General. All persons operating a composting facility, regulated medical waste facility, materials recovery facility, transfer station, landfill in post-closure care, or active captive industrial landfill that is permitted under the regulations outlined in 9VAC20-90-50 shall submit annual fees according to the procedures provided in 9VAC20-90-65. Annual fees shall be calculated using the procedures provided in subsection B of this section. Fees shall be rounded to the nearest dollar. The 2010 base fee rates are provided in Table 4.1 of 9VAC20-90-130. Active captive industrial landfills shall submit Form DEQ 50-25 to the department to indicate if the landfill is a small landfill or large landfill based on the total amount of waste landfilled during the preceding calendar year.

B. Fee calculation. Annual fees shall be the fee rate set forth in subsection A of this section adjusted annually by the change in the Consumer Price Index. The Consumer Price Index is the Consumer Price Index for all-urban consumers for the 12-month period ending on April 30 of the calendar year preceding the year the annual fee is due. The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0.

C. Weight/volume conversions. For facilities required to pay annual fees based on the tonnage of the waste landfilled, the annual fee shall be based on the accurate weight of waste. If scales are unavailable, the volume of the waste landfilled by the facility must be multiplied by 0.50 tons per cubic yard to determine the weight of the waste landfilled. If the volume of waste is used to determine the tonnage of waste landfilled, accurate and complete records of the waste received and managed must be maintained in addition to the calculated weight records described in this part. These records must be maintained onsite throughout the life of the facility and made available to the department upon request.

D. Emergency. The director may waive or reduce annual fees assessed during a state of emergency or for waste resulting from an emergency response action. A facility operator may request a determination if a given volume of waste landfilled in a given calendar year qualifies for a waived or reduced fee by submitting documentation of the emergency to the regional office where the facility is located. The request will provide the name and permit number of the facility, a facility contact, the nature of the emergency or response action, a description of the waste, and an accurate accounting of the type and tonnage of waste managed as a result of the emergency. Requests for a determination by the director must be submitted by March 31 of the year following the emergency coincident with the solid waste information assessment report. A separate request shall be provided for each year if the emergency lasts for multiple years.

E. Annual fee discounts for environmental excellence program participants are set out in 9VAC20-90-117.

F. The operator of a facility owned by a private entity and subject to any fee imposed pursuant to this section shall collect such fee as a surcharge on any fee schedule established pursuant to law, ordinance, resolution or contract for solid waste processing or disposal operations at the facility.

G. Closure. Facilities that remove all waste materials at the time of closure and are subject only to closure requirements are subject to payment of the annual fee if they were operating at any time during the calendar year.

H. Transition to post-closure care. Landfills entering post-closure care will pay an annual fee as follows:

1. If the landfill received waste during the previous calendar year, the annual fee will be based on the amount of waste landfilled for the preceding year pursuant to the Waste Information Assessment Program (9VAC20-81-80); or

2. If the landfill did not receive waste during the previous calendar year and began post-closure care during the previous calendar year as provided in 9VAC20-81-170, the landfill shall be subject to the post-closure care annual fee.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 26, Issue 23, eff. August 18, 2010; Volume 27, Issue 22, eff. August 3, 2011; Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-90-117 Discounted annual fees for Environmental Excellence Program participants

A. The term "Virginia Environmental Excellence Program" (VEEP) means a voluntary program established by the department to provide public recognition and regulatory incentives to encourage higher levels of environmental performance for program participants that develop and implement Environmental Management Systems (EMS). The program is based on the use of EMS that improve compliance, prevent pollution, and utilize other measures to improve environmental performance.

B. Participants in the VEEP shall be eligible for reduced annual fees. The VEEP program includes the Environmental Enterprise (E2) level of participation and the Exemplary Environmental Enterprise (E3) level of participation.

C. Annual fee discounts will not become effective until 2005. The availability of discounts to the annual fees will be dependent upon acceptance and continued participation in the VEEP.

D. Eligibility for reduced annual fees shall be based upon the department's review of the annual report that is required to be submitted by the VEEP. The department shall review annual reports to verify that facilities continue to meet VEEP criteria prior to offering discounted annual fees.

1. The participant's annual report must reflect activities occurring through December 31 and must satisfy all reporting requirements established in the VEEP.

2. Annual reports must be received at the department's central office by April 1 of the following year to be eligible for a reduction of the annual fees.

3. The annual report must list all regulated and permitted activities included within the scope of the facility's Environmental Management System.

4. A participant's level of participation will be evaluated as of December 31 of each calendar year.

E. If a facility participated in the VEEP but participation in the program was terminated, discounted fees will not be available to participants until they have been reaccepted into the VEEP.

F. Participants at the E2 level of participation will be eligible to receive a discount to annual fees for up to a maximum of 3 years.

G. Prior to distributing bills for annual fees, the department shall calculate the discounted annual fees. The total amount of all facilities' discounts to solid waste annual fees shall not exceed $140,000 annually.

1. The total of a 20% discount for each participant at the E3 level of participation and a 10% discount for each participant at the E2 level of participation shall be calculated.

2. If the calculated total of the discounts to annual fees would exceed $140,000, annual fees for participants at the E3 level of participation shall be discounted 10%, and annual fees for participants at the E2 level of participation shall not be discounted.

3. If the calculated total of the discounts to annual fees would not exceed $140,000, annual fees for participants at the E3 level of participation shall be discounted 20%, and annual fees for participants at the E2 level of participation shall be discounted 10%.

4. If the calculated total of all facilities' discounts to annual fees exceeds $140,000, the department shall reevaluate the discounts offered to VEEP participants and shall begin the regulatory process to revise the discounts offered to VEEP participants.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004.

9VAC20-90-120 Permit application fee schedules

| TABLE 3.1–1. NEW OR INITIAL ISSUANCE OR ACTION. | | | | | --- | --- | --- | --- | | TYPE OF FACILITY | FEE | | | | All landfills: | | | | | Part A application | $4,180 | | | | Part B application | $18,680 | | | | Incineration/Energy Recovery Facility | $5,880 | | | | Transfer Station, Materials Recovery Facility, Regulated Medical Waste Storage or Transfer Facility, or Regulated Medical Waste Treatment Facility | $4,310 | | | | Compost Facility | | | | | Facilities Processing Category I Waste | $6,850 | | | | Facilities Processing Waste Categories I, II, or III, or Categories III and Lower | $10,550 | | | | Facilities Processing Waste Categories I, II, III, or IV, or Categories IV and Lower | $12,670 | | | | Experimental Solid Waste Facility | $2,090 | | | | Permit-by-rule Initial Review and Confirmation | $390 | | | | Emergency Permit | $2,310 | | | | | | | |

| TABLE 3.1-2. MAJOR PERMIT ACTIONS, AMENDMENTS, OR MODIFICATIONS. | | | | --- | --- | --- | | TYPE OF PERMIT MODULE | FEE | | | Landfill Part A | $4,180 | | | General - Module I | $390 | | | Facility - Module II | $1,310 | | | Landfill - Module III, IV, or V | $7,050 | | | | Design plan review | $910 | | | Liner design review | $1,960 | | | Leachate system review | $1,310 | | | Gas management plan review | $1,700 | | | Drainage plan review | $910 | | | Cover design review | $1,830 | | | Equipment | $390 | | Compost facility - Module VI | $3,660 | | | | Design plan review | $650 | | | Liner design review | $1,310 | | | Leachate system review | $910 | | | Drainage plan review | $650 | | | Equipment | $390 | | Transfer station - Module VII | $1,180 | | | Material recovery facility - Module VIII | $1,570 | | | | Waste supply analysis | $650 | | | Waste management areas | $520 | | | Wastewater management areas | $390 | | Incinerator/Energy recovery facility - Module IX | $3,000 | | | | Waste and residue storage | $910 | | | Operational requirements | $1,570 | | | Waste control procedures | $520 | | Groundwater monitoring - Module X or XI | $3,260 | | | | Well placement | $1,310 | | | Materials and specifications | $390 | | | Sampling plan | $1,570 | | Closure - Module XII | $390 | | | Post-closure - Module XIII | $390 | | | Corrective action - Module XIV | $3,000 | | | Leachate handling Module XV | $1,310 | | | Regulated medical waste storage or transfer facility - Module XVI | $390 | | | Regulated medical waste treatment facility - Module XVII | $390 | | | Permit-by-rule Modification Review and Confirmation | $390 | | | Public participation (does not include costs of newspaper advertisements or radio broadcasts) | $1,040 | |

| TABLE 3.1-3. VARIANCE REQUESTS. | | | | --- | --- | --- | | TYPE OF VARIANCE | FEE | | | Base fee for all variances | $390 | | | Supplemental fees based on variance type | | | | | Exemption from classification as a solid waste | $520 | | Variance to permitting requirements | | | | | Siting requirements | $520 | | | Facility design (other than alternate liner design) | $520 | | | Operational requirements | -- | | | Groundwater monitoring (other than groundwater protection standards and location of monitoring system) | $920 | | | Closure requirements | -- | | | Post-closure requirements | -- | | Groundwater Protection Standards | -- | | | Alternate liner system design | $1,570 | | | Location of groundwater monitoring system | $920 | |

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 18, eff. July 1, 2003; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 29, Issue 21, eff. August 1, 2013; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-90-130 Base fee rate schedules

| TABLE 4.1. BASE FEE RATES FOR ANNUAL WASTE MANAGEMENT FACILITY FEES. | | | --- | --- | | Category of Facility/Activity | Base Fee Rate | | 1. Sanitary landfills, noncaptive industrial landfills, and construction and demolition landfills are assigned a base fee rate as follows: | | | Sanitary landfill | $0.115 per ton of waste landfilled | | Construction, demolition, debris landfill | $0.115 per ton of waste landfilled | | Noncaptive industrial landfill | $0.115 per ton of waste landfilled | | 2. Incinerators and energy recovery facilities are assigned a base fee rate based upon their annual tonnage as follows: | | | | Base Fee Rate | | Incinerators | $0.055 per ton of waste incinerated | | Energy recovery facilities | $0.055 per ton of waste incinerated | | 3. Other types of facilities are assigned a base fee rate as follows: | | | Type of Facility/Activity | Base Fee Rate | | Composting | $1,200 | | Regulated medical waste | $2,500 | | Materials recovery | $4,500 | | Transfer station | $5,500 | | Facilities in post-closure care | $1,000 | | 4. Active captive industrial landfills are assigned a base fee rate as follows: | | | Type of Facility/Activity | Base Fee Rate | | Small landfills (landfilling less than 100,000 tons per year) | $2,500 | | Large landfills (landfilling 100,000 tons or more per year) | $7,500 |

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 26, Issue 23, eff. August 18, 2010; Volume 27, Issue 22, eff. August 3, 2011.

Chapter 110 Regulations Governing the Transportation of Hazardous Materials

Part I Definitions

9VAC20-110-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Board" means the Virginia Waste Management Board.

"Carrier" means a person engaged in the transportation of passengers or property by:

1. Land or water, as a common, contract, or private carrier; or

2. Civil aircraft.

"CFR" means the Code of Federal Regulations.

"Coordinator" means the Chief Executive Officer of the Virginia Department of Emergency Management.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Virginia Department of Environmental Quality.

"Hazardous material" means a substance or material in a form or quantity which may pose an unreasonable risk to health, safety or property when transported, and which has been incorporated under Part III (9VAC20-110-110 et seq.).

"Hazardous radioactive materials" mean, for the purposes of these regulations, radioactive materials requiring advance notification as described in 10 CFR 71.97.

"Monitor" means to track the transportation of hazardous radioactive materials requiring advance notification prior to transportation within the Commonwealth by:

1. Requiring shippers to register with the coordinator and to notify the coordinator of shipments of hazardous radioactive materials within the Commonwealth; and

2. In requiring the coordinator to prepare a report annually for the Governor and the director summarizing the hazardous radioactive materials transportation for the preceding year.

"Person" means an individual, firm, copartnership, corporation, company, association, joint-stock association, including any trustee, receiver, assignee, or similar representative thereof, or government, Indian tribe, or agency or instrumentality of any government or Indian tribe, when it offers hazardous materials, or hazardous radioactive materials for transportation, or transports hazardous materials or hazardous radioactive materials, but such term does not include:

1. The United States Postal Service; or

2. For the purposes of 49 USC §§ 5123 and 5124, any agency or instrumentality of the federal government.

"Shipper" means a person who transfers possession of hazardous material or hazardous radioactive material to the carrier for transport through the Commonwealth.

"Transport" or "transportation" means any movement of property by any mode, and any packing, loading, unloading, identification, marking, placarding, or storage incidental thereto.

History

• Statutory Authority: § 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 1.1, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996; Volume 19, Issue 19, eff. July 2, 2003.

Part II General Information and Legislative Authority

9VAC20-110-20 Authority for regulations

A. These regulations are issued under authority of Article 7 (§ 10.1-1450 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia, Transportation of Hazardous Materials, and Chapter 3.3 (§ 44-146.30) of Title 44 of the Code of Virginia.

B. Section 10.1-1450 of the Code of Virginia assigns the Virginia Waste Management Board the responsibility for promulgating regulations governing the transportation of hazardous materials. Section 44-146.30 of the Code of Virginia also assigns to the board the responsibility for promulgating regulations by which the coordinator will maintain a register of shippers of hazardous radioactive materials and monitor transportation of hazardous radioactive materials within the Commonwealth, that may constitute a significant potential danger to the citizens of the Commonwealth in the event of accidental spillage or release.

C. The board is authorized to promulgate rules and regulations designating the manner and method by which hazardous materials shall be loaded, unloaded, packed, identified, marked, placarded, stored and transported, such rules to be no more restrictive than any applicable federal laws or regulations.

History

• Statutory Authority: § 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. March 20, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-110-30 Purpose of regulations

The purpose of these regulations is to regulate the transportation of hazardous materials and to maintain a register of shippers and monitor the transportation of hazardous radioactive materials requiring advance notification in Virginia.

History

• Statutory Authority: § 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 2.2, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996; Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-110-40 Administration of regulations

A. The director has the responsibility to administer these regulations. When used in these regulations in any such provisions as may be adopted from 49 CFR Parts 107, 171 through 180, and 390 through 397, except in reference to regulations on international transportation, United States means the "Commonwealth of Virginia"; Environmental Protection Agency means the "Virginia Department of Environmental Quality"; and the Secretary of Transportation, regional director, and administrator mean the "director," unless the context clearly indicates otherwise.

B. The department is responsible for the planning, development and implementation of programs to meet the requirements of Article 7 (§ 10.1-1450 et seq.) of Chapter 14 of Title 10.1 and Chapter 3.3 (§ 44-146.30) of Title 44 of the Code of Virginia.

C. The coordinator is responsible for registering shippers and monitoring transportation of hazardous radioactive materials in accordance with these regulations.

D. The Radiation Advisory Board, established pursuant to § 32.1-233 of the Code of Virginia, shall make recommendations to the director and the board, furnishing such technical advice as may be required, on matters related to development, utilization, and regulations of sources of ionizing radiation.

History

• Statutory Authority: § 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 2.3, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996; Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-110-50 Application of regulations

Notwithstanding the limitations contained in 49 CFR 171.1(a)(3), and subject to the exceptions set forth in 9VAC20-110-60, these regulations apply to any person who transports hazardous materials or hazardous radioactive materials, or offers such materials for shipment.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 2.4, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996.

9VAC20-110-60 Exceptions

Nothing contained in these regulations shall apply to regular military or naval forces of the United States, nor to the duly authorized militia of any state or territory thereof, nor to the police or fire departments of this Commonwealth, providing the same are acting within their official capacity and in the performance of their duties.

The shipment or transportation of hazardous radioactive materials by the U.S. Government, for military or national defense, that is specifically exempt from federal regulations is not subject to the requirements of these regulations. Nothing herein shall be construed as requiring the disclosure of any defense information or restricted data as defined in the Atomic Energy Act of 1954 (68 Stat 919) or the Energy Reorganization Act of 1974 (42 USCS § 5841), as amended.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 2.5, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996.

9VAC20-110-70 Regulations not to preclude exercise of certain regulatory powers

Pursuant to § 10.1-1452 of the Code of Virginia, the provisions of these regulations shall not be construed so as to preclude the exercise of the statutory and regulatory powers of any agency, department or political subdivision of the Commonwealth having statutory authority to regulate hazardous materials on specified highways or portions of them.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 2.6, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 12, Issue 11, eff. March 20, 1996.

9VAC20-110-80 Transportation under United States regulations

Pursuant to § 10.1-1454 of the Code of Virginia, any person transporting or offering for shipment hazardous materials in accordance with regulations promulgated under the laws of the United States, shall be deemed to have complied with the provisions of these regulations, except when such transportation is excluded from regulation under the laws or regulations of the United States.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 2.7, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 12, Issue 11, eff. March 20, 1996.

9VAC20-110-90 Enforcement

A. The Department of State Police and all other law-enforcement officers of the Commonwealth who have satisfactorily completed the course in Hazardous Materials Compliance and Enforcement as prescribed by the U.S. Department of Transportation in federal safety regulations and safety inspection procedures pertaining to the transportation of hazardous materials, shall enforce the provisions of Article 7 (§ 10.1-1450 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia, and any rule or regulation promulgated herein. Those law-enforcement officers certified to enforce the provisions of this article, and any regulations promulgated under such article, shall annually receive in-service training in current federal safety regulations and safety inspection procedures pertaining to the transportation of hazardous materials.

B. Judicial enforcement of these regulations shall be governed by § 10.1-1455 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1450 and 44-146.30 of the Code of Virginia; 49 USC §§ 1809-1810 and 49 CFR Parts 107, 170-180, 383 and 390-397.
• Historical Notes: Derived from VR672-30-1 § 2.8, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996; Volume 19, Issue 19, eff. July 2, 2003; Volume 20, Issue 24, eff. September 8, 2004; Volume 23, Issue 11, eff. March 21, 2007.

9VAC20-110-100 Application of Administrative Process Act

The provisions of the Virginia Administrative Process Act, codified as § 2.2-4000 et seq. of the Code of Virginia, govern the adoption, amendment, modification, and revision of these regulations, and the conduct of all administrative proceedings hereunder.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 2.9, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996; Volume 19, Issue 19, eff. July 2, 2003.

Part III Compliance with Federal Regulations

9VAC20-110-110 Compliance

Every person who transports or offers for transportation hazardous materials within or through the Commonwealth of Virginia shall comply with the federal regulations governing the transportation of hazardous materials promulgated by the U.S. Secretary of Transportation with amendments promulgated as of October 1, 2025, pursuant to the Hazardous Materials Transportation Act, and located at Title 49 of the Code of Federal Regulations as set forth below and which are incorporated in these regulations by reference:

1. Special Permits. 49 CFR Part 107, Subpart B.

2. Registration of Cargo Tank and Cargo Tank Motor Vehicle Manufacturers, Assemblers, Repairers, Inspectors, Testers, and Design Certifying Engineers in 49 CFR Part 107, Subpart F.

3. Registration of Persons Who Offer or Transport Hazardous Materials in 49 CFR Part 107, Subpart G.

4. Hazardous Materials Regulations in 49 CFR Parts 171 through 177.

5. Specifications for Packagings in 49 CFR Part 178.

6. Specifications for Tank Cars in 49 CFR Part 179.

7. Continuing Qualification and Maintenance of Packagings in 49 CFR Part 180.

8. Motor Carrier Safety Regulations in 49 CFR Parts 390 through 397.

History

• Statutory Authority: §§ 10.1-1450 and 44-146.30 of the Code of Virginia; 49 USC §§ 1809 through 1810; 49 CFR Parts 107, 170 through 180, 383, and 390 through 397.
• Historical Notes: Derived from VR672-30-1 § 3.1, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; Volume 12, Issue 11, eff. March 20, 1996; Volume 19, Issue 19, eff. July 2, 2003 and July 4, 2003; Volume 20, Issue 24, eff. September 8, 2004; Volume 23, Issue 11, eff. March 21, 2007; Volume 27, Issue 11, eff. March 2, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 21, eff. July 17, 2013; Volume 30, Issue 12, eff. March 12, 2014; Volume 31, Issue 14, eff. April 8, 2015; Volume 32, Issue 4, eff. December 3, 2015; Volume 32, Issue 24, eff. August 24, 2016; Volume 33, Issue 16, eff. May 3, 2017; Volume 35, Issue 24, eff. August 21, 2019; Volume 37, Issue 6, eff. December 9, 2020; Volume 39, Issue 9, eff. January 18, 2023; Volume 41, Issue 9, eff. January 15, 2025; Volume 42, Issue 12, eff. February 25, 2026.

9VAC20-110-115 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 12, Issue 11, eff. March 20, 1996; repealed, Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

Part IV Hazardous Radioactive Materials Transportation

9VAC20-110-120 (Repealed.)

Historical Notes

Derived from VR672-30-1 § 4.1, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 7, Issue 1, eff. November 7, 1990; Volume 7, Issue 19, eff. July 17, 1991; Volume 8, Issue 16, eff. June 3, 1992; Volume 9, Issue 11, eff. March 24, 1993; repealed, Virginia Register Volume 12, Issue 11, eff. March 20, 1996.

9VAC20-110-121 Register of shippers

Every shipper transporting or proposing to transport hazardous radioactive materials within the Commonwealth shall register with the Department of Emergency Management at least 30 days prior to the initial transportation of such materials. Application for registration or renewal of registration shall be completed on forms furnished by the coordinator and shall contain all the information required by the forms and accompanying instructions. Upon receipt of a complete application form and any other information required by the coordinator, the Department of Emergency Management shall issue a registration certificate. The certificate shall expire two years from the date of issue. Registration information shall be provided by the coordinator to the director upon request.

History

• Statutory Authority: § 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. March 20, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-110-122 Monitoring and transportation

A. Notification. Prior to each shipment or series of shipments of hazardous radioactive materials within the Commonwealth of Virginia, the registrant shall notify the coordinator in writing as required by 10 CFR 71.97, 10 CFR 73.37 (f) or other applicable federal regulations. The coordinator shall disseminate the notification to local law-enforcement agencies, local emergency management coordinators, local fire departments, or other designated local officials along the transportation route as requested by county or municipal authorities, or as determined by the coordinator to be necessary for effective implementation of these regulations.

B. Reports. At least annually, the coordinator shall submit to the director and the Governor's Office a report summarizing activities carried out under the provisions of these regulations pertaining to the transportation of hazardous radioactive materials.

History

• Statutory Authority: § 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 11, eff. March 20, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

Part V Out of Service

9VAC20-110-130 Out of service

The Department of State Police and all other law-enforcement officers of the Commonwealth who have met the qualifications set forth in 9VAC20-110-90 shall be the agents authorized to perform inspections of motor vehicles in operation and to declare and mark vehicles "out of service" as set forth in 49 CFR 396.9.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1450 of the Code of Virginia.
• Historical Notes: Derived from VR672-30-1 § 5.1, eff. November 12, 1986; amended, Virginia Register Volume 4, Issue 21, eff. August 18, 1988; Volume 5, Issue 14, eff. May 12, 1989; Volume 12, Issue 11, eff. March 20, 1996.

Chapter 120 Regulated Medical Waste Management Regulations [Repealed]

Part I Definitions

9VAC20-120-10 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 1.1, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; Volume 27, Issue 22, eff. August 3, 2011; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Part II Legislative Authority and General Information

9VAC20-120-20 (Repealed.)

Historical Notes

Derived from VR672-40-01:1 § 2.1, eff. June 29, 1994; repealed, Virginia Register Volume 18, Issue 18, eff. June 19, 2002.

9VAC20-120-30 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 2.2, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-40 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 2.3, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-50 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 2.4, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-60 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 2.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-70 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 2.6, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; Volume 27, Issue 22, eff. August 3, 2011; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 1 General

9VAC20-120-80 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.1, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-90 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-100 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.3, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; Volume 27, Issue 22, eff. August 3, 2011; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-110 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.4, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 2 Exemptions and Exclusions

9VAC20-120-120 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-130 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.6, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 3 Characteristics

9VAC20-120-140 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.7, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 4 Controlled Regulated Medical Wastes

9VAC20-120-150 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 3.8, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 1 Permits and On-site Permits by Rule

9VAC20-120-160 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.1, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-170 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-180 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.3, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 2 Financial Assurance

9VAC20-120-190 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.4, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 3 Packaging and Labeling Requirements for Regulated Medical Waste

9VAC20-120-200 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-210 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.6, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-220 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.7, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-230 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.8, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-240 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.9, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-250 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.10, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-260 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.11, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 4 Management of Spills of Regulated Medical Waste

9VAC20-120-270 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.12, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-280 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.13, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; Volume 29, Issue 19, eff. July 4, 2013; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 5 Closure Requirements

9VAC20-120-290 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.14, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 6 Treatment and Disposal

9VAC20-120-300 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.15, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; Volume 27, Issue 22, eff. August 3, 2011; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 7 Recordkeeping

9VAC20-120-310 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.16, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 8 Radioactive Materials

9VAC20-120-320 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 4.17, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-330 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 5.1, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-340 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 5.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-350 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 5.3, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-360 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 5.4, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-370 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 5.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-380 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 5.6, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-390 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 5.7, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-400 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.1, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-410 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-420 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.3, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-430 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.4, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-440 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-450 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.6, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-460 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.7, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-470 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.8, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-480 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.9, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 29, Issue 19, eff. July 4, 2013.

9VAC20-120-490 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.10, eff. June 29, 1994; amended, Virginia Register Volume 29, Issue 19, eff. July 4, 2013; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-500 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 6.11, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-510 (Repealed.)

9VAC20-120-520 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 7.1, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-530 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 7.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-540 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 7.3, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; Volume 27, Issue 22, eff. August 3, 2011; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-550 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 7.4, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-560 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 7.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-570 (Repealed.)

9VAC20-120-580 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 8.1, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-590 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 8.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-600 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 8.3, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-610 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 8.4, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-620 (Repealed.)

9VAC20-120-630 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 9.1, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-640 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 9.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-650 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 9.3, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-660 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 9.4, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-670 (Repealed.)

9VAC20-120-680 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.1, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-690 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.2, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-700 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.3, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-710 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.4, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-720 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-730 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.6, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-740 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.7, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-750 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.8, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-760 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.9, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-770 (Repealed.)

Historical Notes

Derived from VR672-40-01:1 §§ 10.10 to 10.13, eff. June 29, 1994; repealed, Virginia Register Volume 18, Issue 18, eff. June 19, 2002.

9VAC20-120-810 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.14, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; Volume 27, Issue 22, eff. August 3, 2011; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-820 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.15, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-830 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 10.16, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 1 Petition for Variance

9VAC20-120-840 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.1, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 2 Variances to Requirements

9VAC20-120-850 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.2, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-860 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.3, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-870 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.4, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-880 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-890 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.6, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Article 3 Innovative Treatment Technology Review

9VAC20-120-900 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.7, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-910 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.8, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-920 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.9, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-930 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.10, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-940 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.11, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-950 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.12, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-960 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.13, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-970 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.14, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-980 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.15, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-990 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.16, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-120-1000 (Repealed.)

History

• Historical Notes: Derived from VR672-40-01:1 § 11.17, eff. June 29, 1994; repealed, Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Chapter 121 Regulated Medical Waste Management Regulations

Part I Definitions

9VAC20-121-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia defines words and terms that supplement those in this chapter. The Solid Waste Management Regulations (9VAC20-81) define additional words and terms that supplement those in the statutes and this chapter. When the statutes, as cited, and the solid waste management regulations, as cited, conflict, the definitions of the statutes are controlling.

"Approved sanitary sewer system" means a network of sewers serving a facility that has been approved in writing by the Virginia Department of Health, including affiliated local health departments. Such sewer systems may be approved septic tank or drainfield systems and onsite treatment systems, or they may be a part of a collection system served by a VPDES permitted treatment works.

"Ash" means the residual waste material produced from an incineration process or any combustion.

"ASTM" means the American Society for Testing and Materials.

"Autoclave" means a wet thermal treatment process that uses saturated steam under a specified amount of pressure for a specified exposure time and at a specific temperature.

"Bioaerosol" means a suspension of airborne particles, generally comprised of microorganisms (e.g., bacteria, viruses) or materials of biological origin released from humans, animals, plants, soil, water, or other sources. Particles range in size from very small to very large, and could include liquid droplets and materials left behind after such droplets evaporate (known as "droplet nuclei").

"Bioburden" means the degree of microbial contamination, including the type and total population of organisms, the number of spore formers present, and their resistance on any material and in a given amount of waste material prior to undergoing treatment.

"Biohazard" means biological substances that pose a threat to the health of living organisms, primarily that of humans, but can include substances harmful to animals.

"Biological indicator" means a preparation of a specific microorganism of a known concentration and resistance to a specific treatment process or to a known physical or chemical condition and is used to evaluate the capability of a process to effectively treat regulated medical waste. "Biological indicators" include bacterial spores or other microorganisms inoculated onto carriers (such as spore strips), spore suspensions, and self-contained biological indicators.

"Biological toxin" or "toxin" means a poison, especially a protein or conjugated protein produced by certain animals, plants, and pathogenic bacteria that is highly poisonous for other living organisms.

"Biologicals" means any preparations (sera, nonviable vaccines, vaccines attenuated in a manner that prevents propagation, antigens, toxins, and antitoxins) derived from a living organism or its products for use in diagnosis, immunization, or treatment of human beings or animals.

"Blood" means human blood, human blood components (e.g., serum and plasma), and products made from human blood.

"Bloodborne pathogen" means pathogenic microorganisms that are present in human blood (including human blood components and products made from human blood) that can cause disease in humans.

"Board" means the Virginia Waste Management Board.

"Body fluids" means liquid emanating or derived from humans, including blood; cerebrospinal, synovial, pleural, peritoneal, and pericardial fluids; semen and vaginal secretions; amniotic fluid; and any other body fluids that are contaminated with blood, mixed or combined with body fluids, or suspected by the health care professional in charge of being capable of producing an infectious disease in humans. This term does not include nail and skin clippings, breast milk, sputum, semen, teeth, sweat, tears, urine, vomitus, or saliva that are not contaminated with visible blood unless transmission of an infectious disease is possible as determined by a health care professional.

"Calibration" means the demonstration that a measuring device produces accurate results within specified limits of its operating range.

"Captive regulated medical waste management facility" means a regulated medical waste management facility that is located on property owned or controlled by the generator of all waste managed or disposed of at that facility.

"Category A infectious substance" means an infectious substance in a form capable of causing permanent disability or life-threatening or fatal disease in otherwise healthy humans or animals when exposure to the substance occurs. Category A infectious substances are defined by 49 CFR 173.134 of the U.S. Department of Transportation Hazardous Materials Regulations.

"Category A waste" means wastes that are contaminated with a Category A infectious substance and must be packaged and transported in accordance with the U.S. Department of Transportation Hazardous Materials Regulations or an applicable Department of Transportation special permit.

"Challenge testing" means periodic monitoring or testing of a regulated medical waste treatment device or system that employs the use of biological indicators to demonstrate continued, effective operation of the device or system.

"Closure" means the act of securing a regulated medical waste management facility and terminating use of the facility for management of regulated medical waste pursuant to the requirements of this chapter.

"Container" means any portable enclosure in which a material is stored, transported, treated, or otherwise handled.

"Contaminated" means the presence or the reasonably anticipated presence of blood or other body fluids, infectious agent, biohazard, or biological toxin on an item or surface.

"Cremains" means the ash or bone shadows that remain after cremation.

"Culture" means an infectious substance containing a pathogen that is intentionally propagated. "Culture" does not include a human or animal patient specimen.

"Cultures and stock" means materials derived from the management (e.g., the systems used to grow and maintain infectious agents in vitro, including nutrient agars, gels, broths, and cell lines) of agents infectious to humans, and associated biologicals, from medical or pathological laboratories, from research and industrial laboratories, or from the production of biologicals and includes discarded live or attenuated vaccines capable of propagation, or culture dishes and devices used to transfer, inoculate, or mix cultures.

"Cycle" means the total operating time required for a device to treat regulated medical waste, and for an autoclave, includes warm-up, residence time, and cool down time.

"D-value" or "decimal reduction value" means the thermal resistance or time in minutes at a specific temperature that is required for a one-log or 90% reduction of a specific microbial population under specified treatment conditions.

"Decontamination" means the use of physical or chemical means to remove, inactivate, or destroy human pathogens on a surface or item to the point where they are no longer capable of transmitting disease and the surface or item is rendered safe for handling, use, or disposal.

"Department" or "DEQ" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or the director's designee.

"Discard" means to throw away or reject. When a material is soiled, contaminated, or no longer usable, and it is placed in a waste receptacle for disposal or treatment prior to disposal, it is considered discarded.

"Discharge" or "waste discharge" means the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of regulated medical waste into or on any land or state waters.

"Disinfectant" means an antimicrobial product used on hard inanimate surfaces and objects to destroy or irreversibly inactivate infectious agents, such as bacteria, fungi, and viruses, but not necessarily bacterial spores. There are three types of disinfectants registered by EPA based on the type of efficacy data submitted: limited, general or broad-spectrum, and hospital grade.

"Disinfection" means any procedure that involves the application of an antimicrobial agent (disinfectant) registered with EPA that is consistent with its approved use in accordance with the manufacturer's instructions. Disinfection shall not be considered a form of treatment, and appropriate handling of disinfected materials, as well as health and safety precautions, shall still be required to achieve protection of public health and the environment.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or on any land or water so that such solid waste or any constituent of it may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

"Disposal facility" means a facility or part of a facility at which solid waste is intentionally placed into or on any land or water, and at which the solid waste will remain after closure.

"Domestic sewage" means untreated sanitary wastes that pass through a sewer system.

"Efficacy testing" means testing of a treatment method, system, or device, conducted by a laboratory, independent of the system manufacturer, in conformance with generally recognized scientific principles, microbiologic examinations, or other pertinent assessments of waste material to establish operating parameters for effective treatment of regulated medical waste.

"Effluent" means liquid waste such as spills, wash water, and wastewater emanating from regulated medical waste storage, transfer, and treatment areas.

"Empty" means wastes have been removed from a container using the practices commonly employed to remove materials of that type such as pouring, pumping, or aspirating.

"EPA" means the U.S. Environmental Protection Agency.

"Exposure time" or "residence time" means the length of time at which the treatment method is held at a specific temperature, pressure, irradiation level, or chemical concentration for effective treatment of regulated medical waste.

"Federal agency" means any department, agency, or other instrumentality of the federal government, any independent agency, or establishment of the federal government, including any government corporation and the Government Printing Office.

"Generate" means to cause waste to become subject to regulation. At the point a regulated medical waste is discarded, it has been generated. Timeframes associated with storage and refrigeration are linked to the date the waste is placed in storage, not the date the waste is generated.

"Generator" means any person, by site location, whose act or process produces regulated medical waste identified or defined in this chapter or whose act first causes a regulated medical waste to become subject to this chapter.

"Hazardous material" means a substance or material that has been so designated under 49 CFR Parts 171 and 173.

"Hazardous waste" means any solid waste defined as a "hazardous waste" by the Virginia Hazardous Waste Management Regulations.

"Health care professional" means a medical doctor or nurse practicing under a license issued by the Department of Health Professions.

"Household sharps" means any needles, syringes with attached needles, lancets, auto injectors, pen needles, and any other devices that are used to penetrate the skin for the delivery of medications that are derived from households through self-care, rather than under the care of a home health care professional or at a health care facility. "Household sharps" are sharps that, except for the fact that they are derived from a household, would otherwise be classified as a regulated medical waste in accordance with this chapter.

"Household waste" means any waste material, including garbage, trash, and refuse, derived from households. Households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas. "Household waste" does not include sanitary waste in septic tanks (septage) that is regulated by other state agencies. Waste generated by a health care professional or nonstationary health care provider administering care in a household, mobile unit, or commercially operated residence, or outpatient recovery facility that meets the definition of regulated medical waste is not household waste and must be managed as regulated medical waste.

"Inactivated" or "inactivation" means having reached the point, through autoclaving, incineration, or other validated treatment process, where the waste material is no longer infectious, does not pose an infection risk, and is not considered to be a regulated medical waste.

"Infectious agent" means any organism or agent, including a synthetic agent, that causes disease or an adverse health impact in humans or can be transferred to humans, as well as animals that have an economic impact on human society.

"Infectious substance" means a material known or reasonably expected to contain a pathogen, including bacteria, viruses, rickettsiae, parasites, fungi, or prions, that can cause disease in humans or animals.

"Inner packaging" means a packaging that is the primary container, such as a red bag or sharps container, for which an outer packaging is required for transport.

"Nonstationary health care provider" means those persons who routinely provide health care at locations that change each day or frequently. This term includes traveling doctors, nurses, midwives, and others providing care in patients' homes, first aid providers operating from emergency vehicles, and mobile blood service collection stations.

"Offsite" means any site that does not meet the definition of onsite, as defined in this part, including areas of a facility that are not on geographically contiguous property or outside of the boundary of the site.

"Onsite" means the same or geographically contiguous property, which may be divided by public or private right-of-way, provided the entrance and exit to the facility are controlled by the owner or the operator of the facility. Noncontiguous properties owned by the same person but connected by a right-of-way that he controls and to which the public does not have access are also considered onsite property.

"Operating parameters" means the specific conditions of pressure, temperature, residence time, chemical concentration, and other physical or engineering condition established through efficacy testing of a treatment method and verified through validation testing to be effective for treatment of regulated medical waste.

"Outer packaging" means packaging that is the secondary container or the outermost enclosure, such as a disposable or reusable rigid pail, fiberboard carton, drum, or portable bin that is under normal conditions of use leak-resistant, strong enough to prevent tearing or bursting, puncture resistant, impervious to moisture, has leak proof sides and bottom, has a tight fitting cover or is otherwise closable, and is in good repair, of a composite or combination packaging together with any absorbent materials, cushioning and any other components necessary to contain and protect inner packaging.

"Overpack" means an enclosure that is used to provide protection or convenience in handling of a package or to consolidate two or more packages. "Overpack" does not include a vehicle, freight container, or aircraft unit load device. Examples of overpacks are one or more packages (i) placed or stacked onto a load board such as a pallet and secured by strapping, shrink wrapping, stretch wrapping, or other suitable means; or (ii) placed in a protective outer packaging such as a box or crate.

"Packaging" means the assembly of one or more containers and any other components necessary to assure compliance with minimum packaging requirements under Regulations Governing the Transportation of Hazardous Materials (9VAC20-110) or this chapter.

"Parametric controls" or "parametric monitoring device" means real time monitoring instrumentation integral to the treatment unit that is designed to quantitatively measure operational parameters, such as temperature, pressure, or other parameter, and provide an electronic or paper record of measurements that can be correlated to treatment. Parametric controls may be used to regulate or maintain preset operating parameters.

"Pathogen" means a microorganism, including bacteria, viruses, rickettsiae, parasites or fungi, or other agent, such as a proteinaceous infectious particle (prion), that can cause disease in humans or animals.

"Patient specimen" means human or animal materials collected directly from humans or animals and transported for research, diagnosis, clinical or investigational activities, or disease treatment or prevention. "Patient specimen" includes excreta, secreta, blood and its components, tissue and tissue swabs, body parts, and specimens in transport media (e.g., transwabs, culture media, and blood culture bottles) until such time that the patient specimen is discarded.

"Prion" means a pathogenic agent that is able to cause abnormal folding of specific normal cellular proteins called "prion proteins," which are found most abundantly in the brain. This abnormal folding is associated with neurological disease. Prions are proteinaceous infectious particles that are highly resistant to all but the most destructive methods of inactivation. They require specific inactivation, disposal, and containment procedures.

"Process rate" means the maximum rate of waste acceptance that a regulated medical waste management facility can process for transfer, treatment, or storage. This rate is limited by the capabilities of equipment, personnel, and infrastructure.

"Processing" means preparation, treatment, or conversion of regulated medical waste by a series of actions, changes, or functions that bring about a decided result.

"Regulated medical waste" or "RMW" means solid wastes defined to be regulated medical wastes in Part II (9VAC20-121-90) this chapter.

"Regulated medical waste management facility" means a site used for planned transfer, treatment, or disposal of regulated medical waste. A regulated medical waste management facility may consist of more than one transfer, treatment, or disposal unit. A regulated medical waste management facility is a type of solid waste management facility.

"Regulated medical waste transfer station" means a regulated medical waste management facility where regulated medical waste is received for the purpose of its subsequent consolidation, over-packing, storage, trans-loading, or subsequent transfer to another regulated medical waste management facility for further processing, treatment, transfer, or disposal. Parking a vehicle containing regulated medical waste during transportation for 24 hours or more is considered a regulated medical waste transfer station.

"Regulated medical waste treatment facility" means a regulated medical waste management facility where regulated medical waste is treated so that it no longer constitutes a threat to public health and the environment, and the waste is subsequently managed as solid waste.

"Reusable medical device" means a device, including surgical forceps, endoscopes, and stethoscopes, that is designed and labeled for multiple uses and is reprocessed by thorough cleaning followed by high-level disinfection or sterilization between patients.

"Sanitizer" means a substance, or mixture of substances, that reduces the bacterial population in the inanimate environment by significant numbers, (e.g., 3 log₁₀ reduction) or more but does not destroy or eliminate all bacteria.

"Select agent or toxin" means a subset of biological agents and toxins that the U.S. Department of Health and Human Services and U.S. Department of Agriculture have determined have the potential to pose a severe threat to public health and safety, to animal or plant health, or to animal or plant products. Select agents and toxins are specified under 42 CFR §§ 73.3 and 73.4, 9 CFR §§ 121.3 and 121.4, and 7 CFR § 331.3.

"Sharps" means any object contaminated with a pathogen or that may become contaminated with a pathogen through handling or during transportation and also capable of cutting or penetrating skin or a packaging material. Sharps include needles, syringes, scalpels, broken glass, culture slides, culture dishes, broken capillary tubes, broken rigid plastic, and exposed ends of dental wires. Discarded unused sharps contained in the original liner and outer packaging are excluded from this definition.

"Sharps drop box" means a secure, tamper-proof sharps container for the temporary storage of only household sharps provided for the convenience of individual home generators who choose to transport their own household sharps to the collection point and where collected sharps are packaged, labeled, and managed as regulated medical waste.

"Shipment" means the movement or quantity conveyed by a transporter of a regulated medical waste between a generator and a designated facility or a subsequent transporter.

"Shipping paper" means a shipping order, bill of lading, manifest, or other shipping document serving a similar purpose and containing the information required by the U.S. Department of Transportation Hazardous Materials Regulations.

"Site" means all land or water and structures, other appurtenances, and improvements on them used for treating, storing, and disposing of regulated medical waste. This term includes adjacent land within the facility boundary used for the utility systems such as repair, storage, shipping or processing areas, or other areas incident to the management of regulated medical waste.

"Solid waste" means any of those materials defined as "solid waste" in 9VAC20-81-95 of the Virginia Solid Waste Management Regulations. Regulated medical waste that has been treated in accordance with this chapter is considered solid waste.

"Spill" means any accidental or unpermitted discharge, leaking, pumping, pouring, emitting, or dumping of wastes or materials that, when spilled, become wastes.

"Spore" means a dormant form of a microorganism that is more resistant to adverse conditions.

"Sterilize" means to inactivate all microorganisms on materials or waste.

"Storage" means the holding, including during transportation, of regulated medical waste.

"Surrogate waste load" means a load of noninfectious material used in validation test runs of treatment units that represents materials and packaging that would be found in the regulated medical waste stream to be treated by the facility.

"Transportation" or "transport" means the movement of regulated medical waste by air, rail, highway, or water.

"Transporter" means a person authorized in accordance with federal and state regulations and engaged in transportation or movement of regulated waste.

"Treatment" means any method, technology, or process designed to change the character or composition of any regulated medical waste so that it is inactivated and no longer constitutes a threat to public health and the environment. Treatment does not include compaction or disinfection.

"Treatment method" means a process including wet thermal sterilization (such as autoclaving) or dry thermal sterilization, chemical sterilization, combustion or incineration, and alternate technologies used to treat regulated medical waste.

"Thermochemical indicator" means a device (e.g., tape, paper strips, integrators, or small ampoules) that responds to the treatment process parameters in some measurable fashion, such as changing color or becoming striped when subjected to temperatures intended to provide sterilization of materials.

"Thermochemical recording device" means a device (e.g., thermocouple, wireless data loggers, or chemical monitoring probes) that reacts in response to one or more critical treatment parameters (such as temperature) and yields a quantifiable value that correlates to microbial lethality or predictable inactivation of microbial spore populations.

"Unauthorized waste" means waste that is not authorized by the department to be managed by the regulated medical waste management facility. Examples are site-specific and dependent upon the treatment technology and permit but may include chemotherapeutic, pathological, pharmaceutical, radioactive, chemical, hazardous, or other wastes.

"Used health care product" means a medical, diagnostic, or research device or piece of equipment, or personal care product used by consumers, medical professionals, or pharmaceutical providers that does not otherwise meet the definition of patient specimen, biological product, or regulated medical waste, but is contaminated with potentially infectious body fluids or materials and is not decontaminated or disinfected to remove or mitigate the infectious hazard prior to transportation.

"Validation testing" means procedures conducted at the site of a regulated medical waste treatment facility prior to initial operation of a treatment system or device, the purpose of which is to demonstrate, through established operating parameters, the effective treatment of regulated medical waste.

"Vector" means a living animal, insect, or other arthropod that is capable of transmitting a pathogen or infectious disease from one organism to another.

"VPDES" means Virginia Pollutant Discharge Elimination System, the Virginia system for the issuance of permits pursuant to the Permit Regulation (9VAC25-31), the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), and § 402 of the Clean Water Act (33 USC § 1251 et seq.).

"Waste management" means the entire process of managing waste from the point of generation to final disposition. For regulated medical waste, the process includes collection and segregation, characterization, classification, packaging, labeling, processing, staging, storing, decontamination, treatment, transportation, and disposal, as well as monitoring of waste management operations and sites to ensure that the management of these wastes is protective of human health and the environment.

"Waste management facility" means all contiguous land and structures, other appurtenances, and improvements on them used for treating, storing, or disposing of waste.

"Z-value" means the temperature change required for the D-value to change by 1 log (i.e., by a factor of 10) for a specific microbial population under specified treatment conditions.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Part II General Information

9VAC20-121-20 Purpose

The purpose of this chapter is to establish standards and procedures pertaining to regulated medical waste management in the Commonwealth of Virginia in order to protect the public health and public safety, and to enhance the environment and natural resources.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-30 Administration

A. The Virginia Waste Management Board promulgates and enforces regulations that it deems necessary to protect the public health and safety, the environment, and natural resources.

B. The director is authorized and directed to administer this chapter in accordance with the Virginia Waste Management Act (§§ 10.1-1400 through 10.1-1457 of the Code of Virginia).

C. Nothing in this chapter shall limit or affect the power of the director, by the director's order, to prohibit storage, transfer, treatment, or disposal of any waste or require special handling requirements the director determines are necessary to protect the public health or the environment.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-40 Applicability

A. This chapter applies (i) to all persons who generate or transport, store, transfer, process, treat, dispose, or otherwise manage regulated medical waste; own or operate a regulated medical waste management facility; or allow a regulated medical waste management facility to be operated on their property in the Commonwealth of Virginia; and (ii) to those who seek approval to engage in these activities, except those specifically exempted or excluded elsewhere in this chapter. A "person" may include an individual, firm, company, corporation, partnership, association, state or federal government and any agency thereof, municipality, commission, political subdivision of a state, or any interstate body.

B. All existing regulated medical waste management facilities must comply with this chapter. Existing facilities, including those with an existing permit, must submit updated permit application documents by September 15, 2024, to come into compliance with this chapter. If the updated application includes changes that result in a different type of facility as outlined in 9VAC20-121-300 C 2, a complete permit-by-rule application shall be required. Existing facilities that only make changes to come into compliance with the regulations shall submit the following updated documents, as applicable, in accordance with 9VAC20-121-310:

1. DEQ Form RMW PBR;

2. Disclosure statements (DEQ Form DISC-01 and DISC-02), if changes in key personnel;

3. Design and construction certification by a professional engineer, in accordance with 9VAC20-121 310 A 2 c;

4. Design plans in accordance with 9VAC20-121-310 A 2 d;

5. Facility standards certification and a copy of the Regulated Medical Waste Management Plan in accordance with 9VAC20-121-310 A 2 f;

6. Treatment Plan in accordance with 9VAC20-121-310 A 2 h and i, respectively;

7. Closure Plan and closure cost estimate, in accordance with 9VAC20-121-310 A 2 j and m;

8. Certification from the State Corporation Commission, in accordance with 9VAC20-121-310 A 2 l, if not previously provided; and

9. Applicable permit fee in accordance with 9VAC20-121-310 A 2 n.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-50 Prohibitions

A. No person shall operate any regulated medical waste management facility for the transfer, treatment, or disposal of regulated medical waste without a permit from the director.

B. No person shall allow regulated medical waste to be stored, disposed, or otherwise managed on the person's property except in accordance with this chapter.

C. It shall be the duty of all persons to manage their regulated medical waste in a legal manner. Untreated regulated medical waste, including its packaging, shall not be used, reused, or reclaimed.

D. No person shall:

1. Allow regulated medical waste to drain or discharge into surface waters except when treated onsite and discharged into surface water as authorized under a Virginia Pollutant Discharge Elimination System (VPDES) Permit (9VAC25-31).

2. Cause the discharge of pollutants into waters of the United States, including wetlands, that violates any requirements of the Clean Water Act (33 USC § 1251 et seq.), including the VPDES requirements and Virginia Water Quality Standards (9VAC25-260).

3. Cause the discharge of a nonpoint source of pollution to waters of the United States, including wetlands, that violates any requirement of an area wide or statewide water quality management plan that has been approved under § 208 or 319 of the Clean Water Act (33 USC § 1251 et seq.) or violates any requirement of the Virginia Water Quality Standards (9VAC25-260).

4. Allow regulated medical waste to be deposited in or to enter any surface waters, groundwaters, or storm drains.

E. Any person who violates subsection A, B, C, or D of this section shall immediately cease the activity of improper management and shall initiate waste removal, cleanup, or closure.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-60 Enforcement and appeal

A. All administrative enforcement and appeals taken from actions of the director relative to the provisions of this chapter shall be governed by the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The Virginia Waste Management Board or the director may enforce the provisions of this chapter utilizing all applicable procedures under the law. The powers of the board and the director include those established under Chapter 11.1 (§ 10.1-1182 et seq. of the Code of Virginia); in Article 8 (§ 10.1-1455 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia; and particularly in § 10.1-1186 of the Code of Virginia. These sections describe the right of entry for inspections; the issuance of orders, penalties, injunctions; and other provisions and procedures for enforcement of this chapter.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-70 Public participation and information

A. All permits for regulated medical waste management facilities are subject to public participation, as specified in Part V (9VAC20-121-300 et seq.) of this chapter.

B. Modifications to regulated medical waste management facility permits shall be subject to public participation in accordance with Part V (9VAC20-121-300 et seq.) of this chapter.

C. Dockets of all permitting actions, enforcement actions, and administrative actions relative to this chapter shall be available to the public for review, consistent with the Virginia Administrative Process Act, Virginia Freedom of Information Act (§ 2.2-3700 of the Code of Virginia), and the provisions of this chapter.

D. Public participation in the compliance evaluation and enforcement programs is encouraged. The department will:

1. Investigate all citizen complaints and provide written responses to all signed, written complaints from citizens, concerning matters within the board's purview;

2. Not oppose intervention by any citizen in a suit brought before a court by the department as a result of the enforcement action; and

3. Provide notice on the department's website and provide at least 30 days of public comment on proposed settlements of civil enforcement actions, except where the settlement requires some immediate action. Where a public comment period is not held prior to the settlement of an enforcement action, public notice will still be provided following the settlement.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-80 Relationship to other bodies of regulation

A. The Solid Waste Management Regulations (9VAC20-81) address other requirements for solid waste management. If there is a conflict between the provisions of this chapter and the solid waste management regulations, this chapter is controlling.

B. Regulated medical waste management facilities must also comply with any applicable sections of the Hazardous Waste Management Regulations (9VAC20-60). If there is a conflict between the provisions of this chapter and the hazardous waste management regulations, 9VAC20-60 is controlling.

C. Intrastate shipment of hazardous materials is subject to the Regulations Governing the Transportation of Hazardous Materials (9VAC20-110). If there is a conflict between the provisions of this chapter and the hazardous materials transportation regulations, 9VAC20-110 is controlling.

D. Generators of regulated medical waste and regulated medical waste management facilities may be subject to the general industry standard for occupational exposure to bloodborne pathogens in 16VAC25-90-1910.1030 (29 CFR 1910.1030).

E. Persons transporting regulated medical waste are subject to the federal requirements in the U.S. Department of Transportation Hazardous Material Regulations at 49 CFR Parts 171 through 180.

F. Facilities managing select agents or toxins are subject to the Regulations for Disease Reporting and Control (12VAC5-90) as administered by the Virginia Department of Health. Facilities that possess, use, or transfer select agents or toxins are also subject to registration, reporting, inactivation, destruction, and compliance with the U.S. Department of Health and Human Services and U.S. Department of Agriculture's Federal Select Agent Program and the federal select agent regulations at 7 CFR Part 331, 9 CFR Part 121, and 42 CFR Part 73.

G. If there is a conflict between provisions of this chapter and adopted regulations of another agency of the Commonwealth, the provisions of these regulations are set aside to the extent necessary to allow compliance with the regulations of the other agency. If neither regulation controls, the more stringent standard applies.

H. Nothing in this chapter either precludes or enables a local governing body to adopt ordinances. Compliance with one body of regulation does not ensure compliance with the other, and normally, both bodies of regulation must be fully complied with.

I. The Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70) shall be applicable in all parts to regulated medical waste management facilities. Nothing in this chapter governing regulated medical waste management shall be considered to delete or alter any requirements of the department as set out in Financial Assurance Regulations for Solid Waste Facilities.

J. The U.S. Nuclear Regulatory Commission, 10 CFR, regulates management of radioactive materials. The Virginia Department of Health has established other requirements in accordance with Title 32.1 of the Code of Virginia. No regulated medical waste containing radioactive materials, regardless of amount or origin, shall be treated unless its management and treatment are in full compliance with these two bodies of regulations and are deemed by both regulations to represent no threat to public health and the environment.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-90 Identification of regulated medical waste

A. A solid waste is a regulated medical waste subject to this chapter if it meets the criteria under subsection B of this section, unless specifically excluded or exempted by subsection C or D of this section. Claims that materials are not regulated medical wastes or are conditionally exempt from regulation shall demonstrate that the material meets the terms of an exemption. In doing so, appropriate documentation shall be provided to demonstrate that the material is not a regulated medical waste or is exempt from regulation.

B. A solid waste is a regulated medical waste if it meets either of the two criteria of this subsection:

1. The solid waste is suspected by the health care professional in charge of being capable of producing an infectious disease in humans. A solid waste shall be considered to be capable of producing an infectious disease if it has been or is likely to have been contaminated by an organism likely to be pathogenic to healthy humans, such organism is not routinely and freely available in the community, and if such organism has a significant probability of being present in sufficient quantities and with sufficient virulence to transmit disease. If the exact cause of a patient's illness is unknown, but the health care professional in charge suspects a contagious disease is the cause, the likelihood of pathogen transmission shall be assessed based on the pathogen suspected of being the cause of the illness.

2. The solid waste or solid waste stream is identified in the following list:

a. Discarded cultures, stocks, specimens, vaccines, and associated items likely to have been contaminated by them are regulated medical wastes if they are likely to contain organisms likely to be pathogenic to healthy humans. Wastes from the production of biologicals and antibiotics likely to have been contaminated by organisms likely to be pathogenic to healthy humans are regulated medical wastes;

b. Wastes consisting of human blood or body fluids, containers of human blood or body fluids, and items contaminated with human blood or body fluids are regulated medical waste. Human blood and body fluids solidified by absorbent gel, powder, or similar means are also regulated medical waste.

c. Human pathological and anatomical waste, including tissues, organs, body parts, and other pathological or anatomical wastes;

d. Sharps likely to be contaminated with a pathogen or that may become contaminated with a pathogen through handling or during transportation and also capable of cutting or penetrating skin or a packaging material. This also includes sharps generated through veterinary practice, acupuncture needles, and household sharps collected in a sharps drop box;

e. When animals are intentionally infected with organisms likely to be pathogenic to healthy humans for the purposes of research, in vivo testing, production of biological materials, or any other reason, the animal carcasses, body parts, bedding material, and all other wastes likely to have been contaminated are regulated medical wastes when discarded, disposed of, or placed in storage;

f. Wastes that are contaminated with a Category A infectious substance are regulated medical waste that shall be managed in accordance with 9VAC20-121-160;

g. Any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill of any regulated medical waste; and

h. Any solid waste contaminated by or mixed with regulated medical waste, including solid wastes that are packaged as regulated medical wastes.

C. The following materials are not solid wastes or regulated medical wastes:

1. Domestic sewage, including wastes that are not stored and are disposed of in a sanitary sewer system (with or without grinding).

2. Any mixture of domestic sewage and other wastes that pass through a sewer system to a wastewater treatment works permitted by the State Water Control Board or the Virginia Department of Health.

3. Sanitary waste from septic tanks (septage) and sewage holding tanks that is regulated by other state agencies.

4. Human remains when:

a. Under the control of a licensed physician or dentist, when the remains are being used or examined for medical purposes and are not solid wastes;

b. Provided to qualified educational programs as anatomical gifts;

c. Removed during a medical procedure and retained by the patient for religious or other purposes provided that the remains are not a source of disease transmission, as determined by a health care professional; or

d. Properly interred in a cemetery or in preparation by a licensed funeral director or embalmer for such interment or cremation.

5. Individual human and animal cremains.

6. Dead or diseased animals subject to regulation by the Virginia Department of Agriculture and Consumer Services.

7. Bed linen, instruments, medical care equipment, and other materials that are routinely cleaned and reused for their original purpose are not subject to this chapter until they are discarded and are a solid waste unless a health care professional has determined these items to be to be capable of producing an infectious disease in humans in accordance with subdivision B 1 of this section. These items do not include reusable carts or containers used in the management of regulated medical waste, which shall be managed in accordance with 9VAC20-121-130.

8. Used health care products and reusable medical devices, being returned to a manufacturer or third party for reprocessing (cleaning and disinfecting or sterilizing) and reuse if packaged and labeled in accordance with 49 CFR 173.134(b)(12)(ii)(A) through (D) and reprocessed in accordance with applicable U.S. Food and Drug Administration requirements. Used health care products and contaminated medical devices or equipment that meet either of the two criteria in subsection B of this section being sent offsite for recycling or disposal are regulated medical waste and shall be managed in accordance with this chapter. These items do not include reusable carts or containers used in the management of regulated medical waste, which shall be managed in accordance with 9VAC20-121-130.

9. The following items while in use: samples for laboratory tests, patient specimens, and criminal evidence items taken during enforcement procedures that meet the definition of regulated medical waste. Once these items are no longer needed for their intended purpose, they shall be managed as regulated medical waste unless exempt under subsection D of this section.

10. Tissue blocks of organs or tissues (except those associated with prions) that have been fixed in paraffin or similar embedding materials for cytological or histological examinations. Once these items are no longer needed for their intended purpose, they may be managed as solid waste.

D. The following solid wastes are not regulated medical wastes for purpose of this chapter:

1. Wastes that have been treated in accordance with this chapter are no longer regulated medical waste and may be used, reused, or reclaimed in accordance with the provisions of the Virginia Solid Waste Management Regulations (9VAC20-81), provided the following requirements are met:

a. Treated waste that was once regulated but is no longer regulated medical waste shall not be repackaged as regulated medical waste. Solid waste repackaged as regulated medical waste is regulated medical waste.

b. If the solid waste is no longer regulated medical waste because of treatment, the generator and the permitted treatment facility shall maintain a record of the treatment for three years after treatment. Generators treating regulated medical waste onsite shall maintain records in accordance with applicable provisions of Part V (9VAC20-121-300 et seq.) of this chapter. Generators shipping regulated medical waste offsite for treatment shall maintain records in accordance with 9VAC20-121-100 I.

c. The generator or proposed user of treated regulated medical waste may request that the department make a case-specific determination that the solid waste may be beneficially used in a manufacturing process to make a product or as an effective substitute for a commercial product. The requestor shall submit a beneficial use demonstration in accordance with the requirements of 9VAC20-81-97.

2. Household waste, including household sharps. Household sharps shall be placed in an opaque, leak proof, puncture resistant container that is closed, tightly sealed, and labeled for home use before being mixed with other solid wastes or disposed. Household sharps may be placed in U.S. Food and Drug Administration-cleared sharps containers if specifically designed and labeled for home use. Household sharps containers shall be labeled "HOUSEHOLD SHARPS – DO NOT RECYCLE" or "HOME GENERATED SHARPS – DO NOT RECYCLE" printed in large legible text and permanent ink. Household sharps centrally collected in a sharps drop box shall be managed as regulated medical waste in accordance with 9VAC20-121-300 E 1. Medical waste generated by a health care professional administering care in a household is regulated medical waste and must be managed in accordance with this chapter.

3. Nail and skin clippings, breast milk, sputum, semen, teeth, sweat, tears, urine, vomitus, or saliva, unless contaminated with visible blood or a health care professional has determined these items to be capable of producing an infectious disease in humans in accordance with subdivision B 1 of this section.

4. Dental amalgam managed in accordance with the Dental Rule (40 CFR Part 441).

5. Meat or other food items being discarded because of spoilage, contamination, or recall.

6. The following discarded items, when they are unused or expired: health care products, medical equipment, medical devices, unused sharps in the original packaging, or other materials, unless a health care professional has determined these items to be capable of producing an infectious disease in humans in accordance with subdivision B 1 of this section.

7. Used products for personal hygiene, such as diapers, facial tissues, underpads, adult incontinence products, sanitary napkins, and feminine hygiene items, unless a health care professional has determined these items to be capable of producing an infectious disease in humans in accordance with subdivision B 1 of this section.

8. The following discarded items when they are empty: urine collection bags and tubing, suction canisters and tubing, IV solution bags and tubing, colostomy bags, ileostomy bags, urostomy bags, plastic fluid containers, enteral feeding containers and tubing, hemovacs, urine bottles, and urine specimen cups, unless the items are subject to regulation under 16VAC25-90-1910.1030 (29 CFR 1910.1030) or a comparable state or federal standard.

9. The following discarded items: urinary catheters, suction catheters, plastic cannula, IV spikes, nasogastic tubes, oxygen tubing and cannula, ventilator tubing, enema bags and tubing, enema bottles, thermometer probe covers, irrigating feeding syringes, and bedpans or urinals, unless the items are subject to 16VAC25-90-1910.1030 (29 CFR 1910.1030) or a comparable state or federal standard.

10. Items such as bandages, gauze, or cotton swabs or other similar absorbent materials, unless at any time following use the items are saturated or would release human blood or human body fluids in a liquid or semiliquid state if compressed. Items that contain or that are caked with dried human blood or human body fluids and are capable of releasing these materials during handling are regulated medical waste. An item would be considered caked if it could release flakes or particles when handled.

11. Human blood and body fluids when solidified by absorbent gel, powder, or similar means as part of a spill cleanup at establishments engaged in operations other than health care or management of regulated medical waste. This category includes waste generated by stores, markets, office buildings, restaurants, businesses, schools, manufacturers, and commercial or industrial operations.

12. Waste generated from the care of an animal when care is provided by the owner of the animal , such as at a household or farm. Waste generated through veterinary practice that meets either of the two criteria of subsection B of this section, such as sharps, must be managed as regulated medical waste.

13. Waste from cosmetology, ear and body piercing, nail salons, and tattoo establishments, except for sharps and unabsorbed human blood or body fluids.

14. Plant or animal wastes, such as bat guano, removed from construction or demolition projects when actions are taken to avoid worker exposure, including use of appropriate personal protective equipment, and the waste is managed in accordance with any applicable best management practice, special handling, and other precautions for processing or disposal.

15. Waste from food, drug, and cosmetics testing laboratories (except research laboratories) using microbiological methods for the detection of human infectious agents, microbial toxins, or chemical residuals as part of routine quality assurance testing of food, drugs, or cosmetic products.

16. Wastes regulated by the Virginia Department of Health, the State Water Control Board, the Air Pollution Control Board, Department of Agriculture and Consumer Services, Federal Drug Administration, U.S. Department of Agriculture, or any other state or federal agency with such authority.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Part III Standards for Management of All Regulated Medical Waste

9VAC20-121-100 General handling and generator requirements

A. Any person or facility handling, generating, storing, transporting, transferring, treating, or disposing of regulated medical waste shall comply with the general management requirements of this section.

B. All generators must identify and segregate regulated medical waste from other waste, including radioactive waste, hazardous waste, and other solid waste, at the point of origin or as soon as practicable after generation. When practical, the generator shall segregate regulated medical waste based on the anticipated treatment method.

C. All generators must comply with the packaging, labeling, storage, reusable container, spill cleanup, transportation, and Category A waste management requirements for regulated medical waste outlined in Part III (9VAC20-121-100 et seq.) of this chapter, as applicable.

D. Anyone handling or packaging regulated medical waste and loading, unloading, or handling containers of regulated medical waste shall wear appropriate personal protective equipment in accordance with the standards for occupational exposure to bloodborne pathogens in the general industry standard in 16VAC25-90-1910.1030 (29 CFR 1910.1030).

E. All regulated medical waste shall be handled in a manner that maintains the integrity of the packaging at all times, prevents damage, leakage, and spills and provides protection from the elements, vectors, and trespassers.

F. Trash chutes shall not be used to manage regulated medical waste. If slides, cart tippers, conveyors, or similar equipment are used to move regulated medical waste from the point of generation to storage areas, between containers, or to vehicles or treatment devices, the movement and impact shall be controlled to maintain the integrity of the regulated medical waste packaging and prevent damage, leaks, and spills. Waste shall not be thrown, dumped, walked upon, or handled in any other manner that could result in spills or releases of regulated medical waste or damage to the packaging.

G. Except in accordance with 9VAC20-121-240 B, regulated medical waste shall not be manually or mechanically compacted, compressed, or subjected to violent mechanical stress prior to treatment; however, after regulated medical waste is fully treated and is no longer regulated medical waste, it may be compacted in a closed container in a safe and sanitary manner.

H. All regulated medical waste generated shall either be treated onsite in accordance with Part IV (9VAC20-121-200 et seq.) of this chapter or packaged, labeled, and transported offsite to a facility permitted to receive the waste for transfer, treatment, or disposal.

I. Generators of regulated medical waste are subject to the following recordkeeping requirements:

a. The generator shall maintain all records of onsite treatment or shipment offsite for a minimum of three years following treatment or shipment. All records shall be available for review by the department upon request.

b. Generators treating regulated medical waste onsite, regulated medical waste transfer stations, and all other regulated medical waste treatment or disposal facilities shall maintain records in accordance with applicable provisions of Part V (9VAC20-121-300 et seq.) of this chapter.

c. Generators shipping regulated medical waste offsite for transfer, treatment, or disposal shall maintain records, including copies of all shipping papers, specifying the date of shipment, amount of waste removed from the site, and the names, addresses, and telephone numbers of the transporter and the destination facility receiving the shipment for treatment or disposal.

d. If regulated medical waste is received from offsite, records shall be maintained for three years following receipt of the waste and shall include the date of receipt, name of each offsite generator (except for generators of household sharps using sharps drop boxes), amount of waste received, and dates of subsequent treatment or shipment offsite.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-110 Packaging and labeling of regulated medical waste

A. All regulated medical waste shall be appropriately packaged, labeled, and managed as required by this section.

B. The generator of regulated medical waste is responsible for the packaging and labeling of regulated medical waste. Contractors or other agents may provide services to the generator, including packaging and labeling of regulated medical waste; however, no contract or other relationship shall relieve the generator of the responsibility for packaging and labeling the regulated medical waste as required by this chapter.

C. No person shall receive for transportation, transfer, storage, or treatment any regulated medical waste that is not packaged and labeled in accordance with this chapter. Contractors or other agents may package or label regulated medical wastes to comply with this chapter, so long as the packaging and labeling is performed onsite where the regulated medical waste was generated and no transportation, storage, treatment, or disposal occurs prior to the packaging. Nothing in this section shall prevent the proper repackaging and further transportation of regulated medical waste that has spilled during transportation.

D. All regulated medical waste shall be packaged and labeled onsite prior to storage, treatment, transport, or other management and at a minimum must conform with the following:

1. When regulated medical wastes are first discarded, they shall be placed directly in bags or containers meeting the requirements of the standards for occupational exposure to bloodborne pathogens in the general industry standard in 16VAC25-90-1910.1030 (29 CFR 1910.1030). The general industry standard requires the packaging to be closable, constructed to contain all contents and prevent leakage of fluids, labeled, and closed prior to removal. Red bags shall be used for the packaging of all regulated medical waste except as provided in subdivision 2 of this subsection.

2. Sharps shall be placed directly in puncture resistant containers as required by the general industry standards in 16VAC25-90-1910.1030(d)(4)(iii)(A). Sharps containers must not be filled beyond the fill line indicated on the container.

3. Waste packages must not be overfilled. As a bag or container becomes full at the point of generation, and prior to moving, it shall be closed, capped, or sealed so that no waste materials can leak, spill, or protrude during handling, storage, or transport.

4. Once closed, capped, and sealed, bags and containers of regulated medical waste shall not be opened, unsealed, unpackaged, or repackaged. If damage, spills, or outside contamination of the regulated medical waste packaging occurs, the bag or container shall be placed in a secondary packaging that meets all requirements of this subsection.

5. All regulated medical waste packaging shall be labeled. The label shall be securely attached to or printed on packaging. The label may be a tag or sticker securely affixed to the package. Permanent ink shall be used to complete the information on the label. The label and the information provided on the label must be clearly legible. The following information shall be included:

a. The name, address, and business telephone number of the generator. For hospitals, the label shall identify the specific department or lab where the waste originated;

b. The words "Regulated Medical Waste," "Biohazard," or "Infectious Waste" in large print; and

c. The universal biohazard symbol.

E. When regulated medical waste is conveyed in reusable carts or containers, the waste in the cart or container shall be packaged and labeled in accordance with this section.

F. When not being filled and prior to moving, wheeled carts and other items used to move regulated medical waste shall be secured, locked, or sealed so that no waste materials can leak and labeled with the universal biohazard symbol or color-coded red to indicate that the contents contain regulated medical waste.

G. Wheeled carts and roll-off containers shall not be used for the holding of liquids, sharps, animal carcasses or body parts, and human anatomical waste, including tissues, organs, or body parts, unless the regulated medical waste is:

1. Properly contained in rigid containers capable of retaining liquids with enough absorbent material to absorb all liquid present, and

2. Separated from other types of regulated medical waste by a leak-proof rigid barrier, divider, or separate compartment.

H. Prior to transporting regulated medical waste offsite for treatment, transfer, or disposal, waste shall be packaged and labeled for transportation in accordance with the standards of 49 CFR Part 173 of the U.S. Department of Transportation Hazardous Materials Regulations or packaged in accordance with an exemption approved by the U.S. Department of Transportation.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-120 Storage of regulated medical waste

A. The requirements of this section apply to storage of regulated medical waste, including storage (i) in soiled utility rooms and other accumulation areas; (ii) at a generating facility; (iii) during transportation; (iv) at a regulated medical waste transfer stations; and (v) at a regulated medical waste treatment or disposal facility. This section also applies to areas used to transfer a load of regulated medical waste from one vehicle to another or when a vehicle containing regulated medical waste is parked for 24 hours or more during transportation.

B. All regulated medical waste shall be stored in a manner that:

1. Maintains the integrity of the packaging at all times, prevents damage, leakage, and spills and provides protection from the elements, vectors, and trespassers;

2. Maintains the packaging in an upright and stable configuration to minimize the potential for spills. If packages or containers are stacked, except during transport, the top of the stacked containers must not be more than six feet above the level of the floor. The integrity of the containers must not be compromised by the stacking arrangement;

3. Is clean and orderly and located in areas free of standing liquid and debris;

4. Provides security from unauthorized access and protects workers and the general public. Regulated medical waste shall be stored in areas where access is limited to only those persons specifically designated to manage regulated medical waste;

5. Meets the packaging and labeling requirements of 9VAC20-121-110; and

6. Meets the requirements of 9VAC20-121-130 when regulated medical waste is stored in reusable carts or containers.

C. Regulated medical waste transfer stations, treatment facilities, and generators of 250 gallons or more of regulated medical waste per calendar month are subject to the following storage requirements:

1. All regulated medical waste shall be stored on surfaces that are cleanable and impermeable to liquids. Carpets and floor coverings with cracks or gaps shall not be used in storage areas. Where tile floors are used and seams are present in the tile, the floor must be sealed with wax or other floor coatings in order to meet this requirement.

2. In areas used to store regulated medical waste, all floor drains shall discharge directly to an approved sanitary sewer system, and all ventilation shall discharge so as to minimize human exposure to the waste.

3. Signage shall be displayed to indicate any areas used to store regulated medical waste.

D. All regulated medical waste shall be stored in accordance with the following timeframes:

1. Generators of less than 250 gallons of regulated medical waste per calendar month shall arrange for the removal of all regulated medical waste stored onsite at least once per calendar month and provide shipment to a facility permitted to receive it for transfer, treatment, or disposal. No regulated medical waste shall be stored onsite for more than 45 calendar days, and no more than 250 gallons of regulated medical waste shall be stored onsite at any given time. Records shall be maintained in accordance with 9VAC20-121-100 I.

2. Generators of 250 gallons or more of regulated medical waste per calendar month shall arrange for the removal of all regulated medical waste stored onsite at least once per calendar week and provide shipment to a facility permitted to receive it for transfer, treatment, or disposal. No regulated medical waste shall be stored onsite for more than 10 calendar days. Records shall be maintained in accordance with 9VAC20-121-100 I.

3. Regulated medical waste treatment facilities shall provide treatment or removal of all regulated medical waste stored onsite on at least a weekly basis. No regulated medical waste shall be stored onsite for more than 10 calendar days. Records shall be maintained in accordance with 9VAC20-121-340 , as applicable.

4. Regulated medical waste transfer stations shall store unrefrigerated regulated medical waste onsite for no more than seven calendar days. All regulated medical waste stored for more than seven calendar days must be refrigerated and stored in an ambient temperature between 35°F and 45°F (2°C and 7°C). No regulated medical waste shall be stored onsite for more than a total of 15 calendar days. Records shall be maintained in accordance with 9VAC20-121-340 , as applicable.

5. Regulated medical waste transfer stations and treatment facilities shall clearly demonstrate the length of time that regulated medical waste is accumulated onsite by marking the outer packaging in permanent ink or maintaining an inventory, barcode, log, or other recordkeeping system.

E. Except in accordance with a permit:

1. No more than 25% of the regulated medical waste stored onsite each month shall be generated or received from offsite, except for emergency cleanups conducted in accordance with 9VAC20-121-300 E 5 and household sharps collected at sharps drop boxes in accordance with 9VAC20-121-300 E 1;

2. Regulated medical waste shall not be treated onsite; and

3. Regulated medical waste that is stored on a loading dock or in areas designated for loading shall be packaged, marked, and labeled for transport and shall not be stored in loading areas for more than 24 hours.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-130 Reusable container requirements

A. The requirements of this section shall be implemented whenever regulated medical waste is conveyed in reusable carts or containers.

B. The waste in the cart or container shall be packaged and labeled in accordance with 9VAC20-121-110.

C. Reusable carts and containers must be constructed of smooth, easily cleanable materials that are impervious to liquids and made of materials designed to withstand exposure to hot water or chemical disinfectants. A plastic bag shall not be reused.

D. Use of reusable carts and containers and any automated or mechanical cleaning and disinfection systems shall maintain the integrity of the packaging at all times, prevent damage, leakage, and spills and provide protection from the elements, vectors, and trespassers.

E. Persons cleaning and disinfecting reusable carts and containers shall wear appropriate personal protective equipment.

F. Immediately following each time a container is emptied and prior to being reused, all reusable carts and containers, including reusable suction canisters and fluid carts that receive blood, shall be both thoroughly cleaned and disinfected. Cleaning shall be conducted with detergent and water using an agitation method or by pressure and movement to remove all waste and visible contamination from all inner and outer surfaces of the container. At least one of the following methods shall be used for disinfection:

1. Utilizing an EPA-registered general or broad-spectrum disinfectant following manufacturer's label instructions;

2. Exposure to heated rinse water at a minimum of 180°F (82°C) and a maximum 195°F (90°C) for a minimum of 15 seconds, or until the surface reaches a temperature of 160°F (71°C); or

3. Immersion in or rinsing with, one of the following chemical sanitizers for a minimum of three minutes:

a. Hypochlorite solution (500 ppm available chlorine);

b. Phenolic solution (500 ppm active agent);

c. Iodophor solution (100 ppm available iodine);

d. Quaternary ammonium solution (400 ppm active agent); or

e. Other organic, plant-based, or nonchemical disinfectant registered by EPA.

G. All wash water from cleaning and disinfection shall be contained and discharged directly to an approved sanitary sewer system.

H. Reusable carts and containers shall not be reused if there are cracks, holes, damage, or other defects, including to a lid or locking mechanism or if contamination or waste residuals are present.

I. Reusable carts or containers used for the holding or storage of regulated medical waste shall not be used for any other purpose.

J. When reusable carts or containers containing regulated medical waste are used for offsite transport, all aspects of the cart or container management shall comply with federal Department of Transportation Hazardous Material Regulations, 49 CFR Parts 171 through 180, as applicable.

K. Reusable carts or containers that are damaged, defective, or ready to be discarded shall not be disposed of as solid waste unless they are cleaned and disinfected in accordance with this section, and all regulated medical waste labeling is removed or covered, prior to disposal. Containers unable to be cleaned and disinfected must be treated as regulated medical waste.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-140 Management of spills of regulated medical waste

A. Any person or facility handling, generating, storing, transporting, transferring, treating, or disposing of regulated medical waste shall immediately address all spills of regulated medical waste, incidents or emergencies, maintenance events, and nonconformances that could have an impact on the management of regulated medical waste at the facility.

B. Anyone handling regulated medical waste shall maintain a spill containment and cleanup kit onsite within the vicinity of any area where regulated medical waste is managed, and the location of the kit shall provide for rapid and efficient cleanup of spills anywhere within the area. All vehicles transporting regulated medical wastes are required to carry a spill containment and clean up kit in the vehicle whenever regulated medical wastes are conveyed. A spill containment and cleanup kit shall consist of at least the following items:

1. Material designed to absorb spilled liquids, and the amount of absorbent material shall be that having a capacity, as rated by the manufacturer, of one gallon of liquid for every cubic foot of regulated medical waste that is normally managed in the area for which the kit is provided or 10 gallons, whichever is less;

2. In a sprayer capable of dispersing its charge in a mist and a stream at a distance, at least one gallon of an EPA-registered hospital grade disinfectant effective against mycobacteria, unless it can be demonstrated that an alternate EPA-registered disinfectant is protective of human health and the environment and is appropriate for the type of regulated medical waste managed and surfaces being disinfected;

3. Enough red plastic bags to double enclose at least 150% of the maximum load managed (up to a maximum of 500 bags) that meet the applicable requirements of 49 CFR Part 173, including the ASTM 125 pound drop test for filled bags (D959) or an exemption approved by the U.S. Department of Transportation and are accompanied by seals and labels. These bags shall be large enough to overpack any box or container normally used for regulated medical waste management by that generator, handler, or facility;

4. Appropriate personal protective equipment, such as puncture and leak resistant gloves, safety glasses or face shield, protective coveralls or bib, protective footwear, and mask or respiratory protection as needed; and

5. For vehicles only, a first aid kit, fire extinguisher, boundary marking tape, lights, and other appropriate safety equipment.

C. Following any spill or release of regulated medical waste or its discovery, the following procedures shall be implemented:

1. Take appropriate precautions to ensure personnel do not come into contact with any contaminants by wearing appropriate personal protective equipment.

2. Repackage spilled regulated medical waste in accordance with the packaging requirements in 9VAC20-121-110.

3. Transport any regulated medical waste by a transporter that meets the requirements of 9VAC20-121-150.

4. Clean and disinfect all areas and materials having been contacted by regulated medical waste using an EPA-registered hospital grade disinfectant effective against mycobacteria in accordance with manufacturer's label instructions, unless it can be demonstrated that an alternate EPA-registered disinfectant is protective of human health and the environment and is appropriate for the type of regulated medical waste managed and surfaces being disinfected.

5. Take necessary steps to replenish the spill containment and cleanup kit.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-150 Transportation of regulated medical waste

A. The requirements of this section apply to the transportation of regulated medical waste including by intermediate transporters and generators who transport their own waste offsite.

B. All transporters of regulated medical waste must comply with the general handling requirements in 9VAC20-121-100.

C. Regulated medical waste shall be transported in accordance with the applicable requirements for shipping papers, packaging, labeling, marking and vehicle placarding in accordance with the U.S. Department of Transportation Hazardous Materials Regulations, 49 CFR Parts 171 through 180. No person shall transport or receive for transport any regulated medical waste that is not packaged and labeled fully in accordance with the U.S. Department of Transportation Hazardous Materials Regulations. Reusable carts or containers used to transport regulated medical waste shall meet the requirements of the U.S. Department of Transportation Hazardous Materials Regulations and must be sealed, puncture resistant, and leak proof.

D. Transportation of regulated medical waste shall maintain the packaging in an upright and stable configuration to minimize the potential for spills. The integrity of the containers must not be compromised by the stacking arrangement.

E. All vehicles and equipment used in the transportation of regulated medical waste must have access control that limits access to those persons specifically designated to manage regulated medical waste, and the cargo carrying body must be secured except when loading and unloading.

F. Surfaces of vehicles and equipment used to transport regulated medical waste must be clean and impermeable to liquids if those areas are involved with the management of the waste. Carpets and floor coverings with cracks or gaps shall not be used. Vehicles used to transport regulated medical waste shall be clean and maintained in an orderly condition, free of standing liquid and debris, in those areas involved with the management of the waste.

G. Storage, transport, and transfer to, from, and between vehicles and equipment shall be under a cover or packaged in a container that protects the waste from the elements and over a floor or bermed pavement that will contain leaks and spills of liquid from the waste. All effluent, wash water, and other runoff shall discharge directly to or through a holding tank to an approved sanitary sewer system. A cover, floor, or pavement is not required if the activity is transient in nature, such as in the case of spill cleanup or collection of waste packages from professional offices for transport.

H. All vehicles transporting regulated medical waste must carry a spill containment and cleanup kit in the vehicle as specified in 9VAC20-121-140 B, whenever regulated medical wastes are conveyed. Following a spill of regulated medical waste or its discovery, the procedures specified in 9VAC20-121-140 C shall be implemented.

I. Any vehicle parked 24 hours or more during transport will be considered a regulated medical waste transfer station subject to the requirements of Part IV (9VAC20-121-200 et seq.) of this chapter. Unless exempt under 9VAC20-121-300 E, no storage during transport will be allowed without a permit issued in accordance with the procedures in Part V (9VAC20-121-300 et seq.) of this chapter.

J. All vehicles and equipment used to transport regulated medical waste must be thoroughly cleaned and disinfected before being used for any other purpose and prior to any transfer of ownership. Disinfection shall include using an EPA-registered hospital grade disinfectant effective against mycobacteria in accordance with manufacturer's label instructions, unless it can be demonstrated that an alternate EPA-registered disinfectant is protective of human health and the environment and is appropriate for the type of regulated medical waste managed and surfaces being disinfected. Any areas of vehicles or equipment that are visibly contaminated, or that become contaminated as a result of a spill, must be immediately decontaminated in accordance with 9VAC20-121-140.

K. Transport of regulated medical waste by the United States Postal Services that fully complies with 39 CFR 111 shall be considered to be transportation in compliance with this chapter if:

1. The generator maintains a complete and legible copy of the manifest or mail disposal service shipping record for a period of three years. Disposer's certification and other tracking items must be completed and shown on the copy;

2. The addressee is a facility permitted by all the appropriate agencies of the Commonwealth or the host state; and

3. No package shall be more than 35 pounds by weight.

L. Category A waste shall be managed in accordance with the requirements of 9VAC20-121-160.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-160 Management of Category A waste

A. Category A waste shall be managed in accordance with the requirements of this section.

B. Overarching Planning Considerations and Waste Generator Information and Responsibilities for Category A waste are specified in Sections 3 and 5 of Managing Solid Waste Contaminated with a Category A Infectious Substance. In addition to the general management requirements for regulated medical waste in Part III (9VAC20-121-100 et seq.), all Category A waste shall be handled in accordance with the following additional requirements:

1. Every effort shall be made to minimize the amount of Category A waste generated. Category A waste shall be physically separated, if practical, from other types of waste at the point of origin. When other types of regulated medical waste are mixed with Category A waste, the mixture shall be managed as Category A waste. Category A wastes not suitable for conventional treatment methods, such as batteries, electronics, and oxygen cylinders, shall be segregated from other waste at the point of generation for special handling.

2. All handling, storage, transfer, and treatment of Category A waste must be conducted in areas with cleanable and impermeable surfaces. Carpets and floor coverings with cracks or gaps shall not be used. Where tile floors are used and seams are present in the tile, the floor must be sealed with wax or other floor coatings in order to meet this requirement.

3. Equipment and handling techniques that could potentially cause bioaerosols, such as cart tipping, slides, conveyors, and mechanical cleaning or disinfection systems, shall not be used for Category A waste unless the movement and impact is controlled to maintain the integrity of the packaging, prevent exposure to the waste, and any aerosol, bioaerosol, or mist caused by the process is collected and treated or filtered.

4. Category A waste shall not be conveyed in reusable carts or containers unless the containers are subsequently cleaned and disinfected in accordance with 9VAC20-121-130 using an EPA-registered disinfectant appropriate for the type of Category A waste managed and materials being disinfected.

5. All spills of Category A waste shall be cleaned and disinfected in accordance with 9VAC20-121-140 using an EPA-registered disinfectant appropriate for the type of Category A waste managed and materials being disinfected.

6. Category A waste shall be stored in accordance with the requirements of 9VAC20-121-120 B and C. Packages or containers of Category A waste shall not be stacked.

7. A generator storing 250 gallons or more of Category A waste shall notify the department within 24 hours of exceeding 250 gallons. At least once per calendar week, accumulated Category A waste shall be treated onsite in accordance with this section or shipped offsite to a facility permitted to receive it for treatment or disposal. No Category A waste shall be stored onsite for more than 10 calendar days unless an extended storage timeframe is approved by the department. Records shall be maintained in accordance with 9VAC20-121-100 I.

8. The regulated medical waste transfer station or treatment facility shall notify DEQ of receipt of any Category A waste in accordance with 9VAC20-121-340.

C. Waste Transporter Information and Responsibilities for Category A waste are specified in Section 6 of Managing Solid Waste Contaminated with a Category A Infectious Substance. Packaging and labeling of Category A waste for transport must comply with the more stringent packaging standards of 49 CFR Parts 171 through 180 of the HMR, or may require a Department of Transportation special permit for an exception to the HMR requirements to allow for alternative packaging to accommodate the waste.

D. Waste Treatment Information and Responsibilities for Category A waste are specified in Section 7 of Managing Solid Waste Contaminated with a Category A Infectious Substance. In addition to the general treatment requirements for regulated medical waste in Part IV (9VAC20-121-200 et seq.), all Category A waste shall be treated in accordance with the following additional requirements:

1. A facility shall only receive Category A waste for processing or treatment upon specific approval from the director or by specific provisions within the facility's permit.

2. Prior to treatment of any Category A waste, the facility shall notify DEQ and conduct additional validation testing in accordance with 9VAC20-121-260 and an approved treatment plan that is specific to the Category A waste stream and packaging types that will be received.

3. The treatment method and operating parameters shall be appropriate and effective for the type of Category A waste being managed. Treatment units that employ a mechanical process, such as grinding or shredding, prior to treatment or integral to the treatment unit, may not be appropriate for Category A waste streams. The facility shall demonstrate that the process prevents employee exposure to the waste; contains any aerosol, bioaerosol, or mist caused by the process; and treats or filters any air evacuated from the chamber during processing.

4. The facility shall not receive or treat Category A waste until the department has reviewed and approved the validation results, operating parameters, and protocols to be used for the treatment unit.

5. Treatment of Category A waste shall only be in accordance with the operating parameters and protocols approved by the department.

6. Challenge testing shall be performed and documented for every load containing Category A waste. The facility may request an alternate challenge test frequency once a high level of confidence is established that the Category A waste is being effectively treated.

7. The owner or operator shall provide a certification that the regulated medical waste management plan demonstrates protocols specific to the Category A waste stream to be treated and meets all additional standards of Part III (9VAC20-121-100 et seq.) and Part IV (9VAC20-121-200 et seq.), as applicable, in accordance with 9VAC20-121-330. The plan shall specify if and how management protocols for Category A waste differ from existing protocols for routinely received regulated medical waste, including how treated wastes will be disposed. The certification shall also include a statement that the emergency contingency plan has been provided to the local police and fire departments, local emergency manager, and local emergency health coordinator.

E. Final Disposal Information and Responsibilities for Category A waste are specified in Section 8 of Managing Solid Waste Contaminated with a Category A Infectious Substance. Category A waste shall be disposed of in accordance with the following requirements:

1. Category A waste that has been treated in accordance with the special requirements of this section is no longer Category A waste or regulated medical waste. Category A waste treated in accordance with this section is solid waste and shall be disposed of at a permitted solid waste disposal facility, provided the disposal is in accordance with the Solid Waste Management Regulations (9VAC20-81) and the facility's permit.

2. Category A waste not treated in accordance with this chapter shall not be transported to, received for transport, or disposal by, or disposed of in, any solid waste management facility.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Part IV Standards for Regulated Medical Waste Transfer Stations and Treatment Facilities

9VAC20-121-200 General and applicability

A. Any person who designs, constructs, or operates any regulated medical waste transfer station or treatment facility not otherwise exempt under 9VAC20-121-300 E shall obtain a permit-by-rule pursuant to this chapter prior to operation and comply with the requirements of this part. Further, all applications pursuant to this chapter shall demonstrate specific means proposed for compliance with requirements set forth in this part.

B. All facilities, except exempted facilities, shall be maintained and operated in accordance with the permit-by-rule status pursuant to this chapter. All facilities shall be maintained and operated in accordance with the approved design and intended use of the facility.

C. Hazardous wastes shall not be managed or disposed in facilities subject to this regulation unless specifically authorized by the facility permit or the director and managed in accordance with 9VAC20-60. Any material from a state other than Virginia that is classified as a hazardous waste in that state shall be managed as hazardous waste in accordance with 9VAC20-60.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-210 Siting requirements

A. The siting of all regulated medical waste transfer stations or treatment facilities shall be governed by the standards as set forth in this section. These facilities shall:

1. Be adjacent to or have direct access to roads that are paved or surfaced and capable of withstanding anticipated load limits;

2. Not be sited or constructed in areas subject to base floods;

3. Shall not be closer than:

a. 50 feet to any property boundary;

b. 50 feet to any perennial stream or river;

c. 200 feet to any residence or recreational park area; or

d. 200 feet to any health care facility, school, or similar type public institution, unless the facility is located at the health care facility, school, or similar type public institution.

B. The site of a regulated medical waste transfer station or treatment facility shall provide room to minimize traffic congestion and allow for safe management of regulated medical waste and safe operation of the facility.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-220 Design and construction requirements

A. The design and construction of all regulated medical waste transfer stations or treatment facilities shall be governed by the standards as set forth in this section. These facilities shall have:

1. An access road suitable for loaded collection vehicles in all weather conditions from the entrance to the unloading or receiving area of the facility.

2. Onsite queuing capacity for the expected traffic so that the waiting collection vehicles do not back up onto the public road.

3. Unloading and loading areas of an adequate size and design to facilitate efficient transfer of regulated medical waste to and from collection vehicles and the unobstructed movement of vehicles.

4. Access controls such as perimeter security fencing, gates, locks, badge systems, or other controls to limit access to areas used to store, transfer, or treat regulated medical waste to only those persons specifically designated to manage regulated medical waste.

5. Adequate lighting so that operating personnel can exercise site control. Lighting may be provided by portable equipment as necessary.

6. Covered areas with cleanable and impermeable surfaces for handling, storage, transfer, and treatment of regulated medical waste and the cleaning and disinfection of reusable containers. These areas shall not be carpeted or have floor coverings with cracks or gaps. Where tile floors are used and seams are present in the tile, the floor must be sealed with wax or other floor coatings in order to meet this requirement.

7. Bermed pavement, a liquid retaining lip, or equivalent controls at loading docks and near rolling or bay doors to contain potential leaks and spills of regulated medical waste or other liquids.

8. Floors sloped or graded to drain such that all effluent, wash water, and other runoff from storage and processing areas, treatment equipment, waste compactors, and reusable container cleaning and disinfection areas is contained and discharged directly to an approved sanitary sewer system.

9. Ventilation that discharges to minimize human exposure to the waste.

10. A water supply shall be provided for cleaning purposes.

11. Fire alarm and protection systems capable of detecting, controlling, and extinguishing any and all fires.

12. Fixed radiation detectors in a location as close as practicable to the incoming waste loads and in an appropriate geometry to monitor all waste prior to storage, transfer, or treatment. A fixed radiation detector is not required at captive regulated medical waste management facility if the facility demonstrates that there is no potential for generation or management of radioactive materials or wastes. Demonstration shall include a certification that there is no radiation producing equipment or material onsite.

B. Effluent, wash water, and other runoff from the facility shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES permit issued pursuant to 9VAC25-31.

C. Slides, cart tippers, conveyors, and similar equipment used to move regulated medical waste must be designed and constructed such that the movement and impact is controlled to maintain the integrity of the packaging at all times and prevent damage, leakage, and spills. Trash chutes shall not be used to manage regulated medical waste.

D. Any areas used for the storage of regulated medical waste shall be designed in accordance with 9VAC20-121-120 and have sufficient storage capacity for the maximum anticipated storage amount based on the amount of daily incoming waste and maximum length of time in storage.

E. All facilities that manage reusable containers or carts for regulated medical waste shall have designated areas for manual or mechanical cleaning and disinfection that comply with the requirements of 9VAC20-121-130.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-230 Operation requirements

A. The operation of regulated medical waste transfer stations or treatment facilities shall be governed by the standards as set forth in this section.

B. The regulated medical waste transfer station or treatment facility shall maintain and operate in accordance with a regulated medical waste management plan that meets all requirements of 9VAC20-121-330. This plan shall be reviewed and recertified annually, within one year from the date of the last certification, to ensure consistency with current operations and regulatory requirements, and shall be made available for review by the department upon request. If the applicable standards of this chapter and the facility's operations plan conflict, this chapter shall take precedence.

C. The facility must operate to comply with the general handling requirements of 9VAC20-121-100.

D. All regulated medical waste shall be packaged, labeled in accordance with 9VAC20-121-110 and managed in accordance with the storage conditions and timeframes required by 9VAC20-121-120. The facility shall employ methods to track and document specific incoming waste throughout the duration of storage, treatment or transfer, and shipment offsite.

E. All facilities that manage reusable carts or containers for regulated medical waste shall comply with the requirements of 9VAC20-121-130 and maintain onsite an adequate water supply and sufficient quantity of detergent and EPA-registered disinfectant or other approved materials, as applicable.

F. Except for reusable containers authorized by the department to be opened, regulated medical waste containers must not be opened or unpackaged unless approved as part of the consolidation or treatment process.

G. The facility shall immediately address all spills of regulated medical waste, incidents or emergencies, maintenance events, and nonconformances that could have an impact on the management of regulated medical waste. Spill containment and cleanup kits shall be maintained as required by 9VAC20-121-140 B, and immediately following a spill of regulated medical waste or its discovery, the procedures specified in 9VAC20-121-140 C shall be implemented.

H. Damaged or leaking packages of regulated medical waste shall either be properly repackaged prior to storage and subsequent shipment offsite or contained and treated onsite within 24 hours if the facility is permitted for treatment operations.

I. Transportation of regulated medical waste is subject to the requirements of 9VAC20-121-150.

J. Waste must not be accepted unless it is allowed in accordance with the permit-by-rule issued and the regulated medical waste management plan and there is sufficient storage, transfer, or treatment capacity. The amount of regulated medical waste received and stored at the facility shall not exceed the permit process rate and designed storage capacity.

K. Regulated medical waste transfer stations and treatment facilities regulated under this part shall implement an unauthorized waste control program in accordance with their written plan as required by 9VAC20-121-330 and the following provisions:

1. Prior to managing regulated medical waste or using process equipment, and at least annually, within one year from the date of the last training, the facility shall provide training to staff to recognize, segregate, properly manage, document, and report receipt of waste not authorized to be managed by the facility's permit.

2. If unauthorized waste is observed in the waste delivered to the facility prior to unloading, the owner or operator must refuse to accept the waste.

3. If the unauthorized waste is observed in the waste at the facility or delivered to the facility, the owner or operator shall segregate it, notify the generator (if applicable), document the incident in the operating record, make necessary arrangements to have the material managed in accordance with applicable federal and state laws, and notify the department of the incident to include the means of proper handling, in accordance with the reporting procedures of 9VAC20-121-340.

4. Any unauthorized waste accepted by the owner or operator shall be managed in accordance with applicable federal or state laws and regulations. The facility must carefully store the waste in a designated storage area within the facility separate from untreated regulated medical waste and treated regulated medical waste. Unauthorized waste that has been segregated and stored shall be adequately secured and contained to prevent leakage or contamination to the environment. The facility shall have the unauthorized waste removed or properly managed no later than 10 calendar days after discovery unless an alternate timeframe up to 30 days is approved by the department . Handling and management of the unauthorized waste, including segregation, removal, and transportation, shall be by a person authorized to manage such waste and shall be transferred, treated, or disposed of at a permitted waste management facility approved to receive it.

5. The facility must maintain a record of all unauthorized waste accepted at the facility, the date accepted, the type of waste, date of transfer, treatment, or disposal, management method, and the name, address, and telephone number of the final treatment or disposal facility.

L. Radiation detection equipment shall be operated and maintained in a manner that ensures all incoming waste is screened and the measurements are meaningful and fulfill the objectives for detecting radiologically contaminated waste. If fixed radiation detectors become inoperable, repairs shall be made as soon as practicable, and appropriate portable equipment shall be used to screen incoming waste loads until the equipment is repaired.

M. Untreated waste, radioactive waste, hazardous waste, and any unauthorized waste must be segregated and stored in clearly identified containers. Category A waste shall be managed in accordance with the requirements of 9VAC20-121-160.

N. The facility shall be operated to maintain the design and construction standards as required by 9VAC20-121-220.

O. All areas used to transfer or treat regulated medical waste shall have prominent signage or markings displayed on the door or access point to indicate that the space is used to manage regulated medical waste, and those areas shall be secured to prevent unauthorized access.

P. Floors and areas used for the handling, tipping, storage, transfer, or treatment of regulated medical waste and reusable container cleaning must be kept clean, in an orderly condition, and free of standing liquid and debris.

Q. Effluent, wash water, and other runoff from facility floors, storage and processing areas, treatment equipment, waste compactors, and reusable container cleaning and disinfection areas shall be contained and discharged directly to an approved sanitary sewer system. Effluent, wash water, and other runoff from the facility shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES permit issued pursuant to 9VAC25-31.

R. All infrastructure and equipment shall be properly maintained and operated as designed and approved in the facility's permit. Facility maintenance must include annual calibrations of parametric controls, including recording devices and temperature and pressure gauges; overall cleaning (the facility, vehicles, and processing systems); servicing of exhaust lines and drains; ensuring the proper functioning of pressure and safety valves, and water, steam, disinfectant and electrical lines; replacing gaskets as needed to ensure a complete seal at all times; ensuring floor drains are maintained such that liquid is free-draining at all times; and maintaining proper functioning of mechanical waste handling systems, conveyors and shredders, HEPA, and other ventilation and filtration devices, and radiation monitoring devices, as applicable.

S. Adequate numbers and types of properly maintained equipment shall be available for operation. Provision shall be made for substitute equipment to be available, except for treatment units which must be approved by the department, or the emergency contingency plan implemented to achieve compliance with this chapter, as applicable, within 24 hours should the former become inoperable or unavailable. Operators with training appropriate to the tasks they are expected to perform and in sufficient numbers for the complexity of the site shall be on the site whenever it is in operation.

T. Safety hazards to operating personnel shall be controlled through an active safety program consistent with the requirements of 29 CFR Part 1910, as amended.

U. Each facility shall conduct monthly inspections of all major aspects of facility operations necessary to ensure compliance with the requirements of this chapter. Records of these inspections must be maintained in the operating record and available for review in accordance with 9VAC20-121-340. If a deficiency or release is identified during an inspection, the owner or operator must document it on the self-inspection checklist, provide a remedy for the issue as soon as feasible, and document repairs and remedial actions, including the date implemented. The following aspects of the facility shall be inspected on a monthly basis whenever the facility is in operation:

1. Each component of the processing equipment, treatment system, and infrastructure;

2. Spill containment and cleanup kit and any other decontamination materials;

3. Safety and emergency equipment, including radiation detection equipment, fire alarm and protection systems, fire extinguishers, eyewash stations, or other equipment;

4. Waste storage areas and loading and unloading areas;

5. All floors and floor drains and any areas and inventory for managing, cleaning, and disinfecting reusable carts or containers;

6. Proper use of personal protective equipment by all employees;

7. Monitoring for pests and vermin, litter, blowing debris, odor, dust, breached containers, and spills; and

8. Any areas in which significant adverse environmental or health consequences may result if breakdown occurs.

V. Prior to managing regulated medical waste or using process equipment, and at least annually, within one year from the date of the last training, the facility shall provide all operators with training on the procedures for managing regulated medical waste specific to the transfer or treatment process used, including:

1. General handling of regulated medical waste and use of personal protective equipment;

2. Packaging, labeling, and storage of regulated medical waste;

3. Cleaning and disinfection of reusable containers;

4. Facility housekeeping and management of spills;

5. Overall process and mechanical operation of any equipment used ;

6. Emergency contingency plan procedures, in case of system failure or other emergency ; and

7. In addition to the requirements of subdivisions 1 through 6 of this subsection, treatment facility operators shall be trained on the operation of any treatment units and procedures for conducting periodic challenge testing.

W. The facility shall retain records in accordance with 9VAC20-121-340. Records shall be retained for three years and available for review as requested by the department.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-240 Treatment standards

A. Prior to disposal or recycling, all regulated medical waste, including its packaging, must be treated by a department approved regulated medical waste treatment process. Any method used for the treatment of regulated medical waste must be verifiable to render the waste noninfectious in a manner that is protective of human health and the environment. Untreated regulated medical waste shall not be recycled or disposed of in a solid waste landfill or other solid waste management facility.

B. The requirements in this subsection are applicable to all treatment methods. Additional requirements are provided in subsections C through I of this section and are dependent on the type of treatment used.

1. The treatment method and operating parameters shall be appropriate and effective for the type of waste being managed.

a. Human pathological and anatomical waste, including tissues, organs, body parts, and other related waste and animal carcasses shall be treated by incineration unless an alternative treatment process is approved by the department. Alkaline hydrolysis is an alternative treatment process that may be considered for treatment. Pathological waste in a liquid fixative may require special management, such as decanting the liquid for separate disposal, incineration, or management as hazardous waste if applicable.

b. Thermally resistant waste, including solidified liquids and bulk animal bedding, requires approval of treatment operating parameters on a case-by-case basis.

c. Category A waste shall be managed in accordance with the requirements of 9VAC20-121-160.

d. Waste contaminated with toxins and toxin waste solutions (depending on the toxin) can be inactivated by incineration or extensive autoclaving, or by soaking in suitable decontamination solutions. Toxin inactivation procedures shall not be assumed to be 100% effective without validation using specific toxin bioassays.

2. Treatment equipment shall include built-in automatic controls and fail safe mechanisms to ensure the waste cannot bypass the treatment process.

3. Size reduction, grinding, shredding, or puncturing of containers is permissible if integral to the treatment unit and shall be done with safe and sanitary methods. Nothing in this section shall prevent the use of devices that grind, shred, or compact to reduce volume at the point of generation and prior to enclosing the regulated medical waste in plastic bags and other required packaging; however, the waste remains regulated medical waste. The facility shall demonstrate that devices are constructed and operated in a manner that prevents employee exposure to the waste; contains any aerosol, bioaerosol, or mist caused by the process; and treats or filters any air evacuated from the chamber during processing. Appropriate means must be employed to appropriately protect workers and contain the waste when unloading regulated medical wastes from such a device.

4. If grinding, shredding, or size reduction or puncturing of packaging takes place prior to treatment, it shall occur in a closed unit immediately preceding the treatment unit. If grinding, shredding, or size reduction takes place following treatment, it must occur within 24 hours of leaving the treatment unit. Transfer from a grinder or shredder to or from a treatment unit shall be under forced draft ventilation that removes fumes from the operations area to a safe discharge.

5. All process units for the preparation or treatment of regulated medical waste shall be in closed vessels designed to operate under a negative pressure atmospheric control that filters all vents, discharges, and fugitive emissions of air from the process units through a high efficiency particulate air (HEPA) filter with efficiency of 99.97% for 0.3 microns. Proper installation of filters shall be documented. Air and gases which have themselves been sterilized by the process are not required to pass through a filter.

6. All effluent must be discharged to an approved sanitary sewer system. Effluent from the facility shall not be permitted to drain or discharge into surface waters except when authorized under a VPDES permit issued pursuant to 9VAC25-31.

7. Only the types of regulated medical waste specified in the facility's permit shall be treated using the approved treatment unit. Treatment methods include:

a. Autoclaves (steam sterilization);

b. Microwaves;

c. Dry heat treatment;

d. Chemical treatment;

e. Alkaline hydrolysis;

f. Incineration; and

g. Alternate treatment technologies as reviewed and approved by the department in accordance with this chapter.

8. Prior to operation of any treatment unit, the facility must conduct validation testing in accordance with 9VAC20-121-260 and an approved treatment plan to establish the appropriate operating parameters for effective treatment of regulated medical waste. The results of the testing must be submitted to the department for review and approval in accordance with 9VAC20-121-320. The facility shall not receive or treat regulated medical waste until the department has approved the validation results, operating parameters, and protocols to be used for the treatment unit. Revalidation shall be conducted as required by 9VAC20-121-260.

9. Treatment units shall operate in accordance with the specified operating parameters and protocols set forth in subsections C through I of this section or alternate standards established through validation testing and approved by the department. Records of treatment shall be maintained in accordance with 9VAC20-121-340.

10. Periodic challenge testing shall be performed under full loading in accordance with 9VAC20-121-270 to evaluate the effectiveness of each treatment unit and treatment method.

11. Effective treatment of regulated medical waste must achieve a 6 Log₁₀ or greater reduction of the viable spore concentrations of the most appropriate bacterial species for the treatment method. Effective treatment is demonstrated by no growth in all treated biological indicators and growth in all untreated biological indicators during validation and periodic challenge testing.

12. The selection of the most appropriate biological indicator to utilize during validation and challenge testing of a treatment process shall be supported by referenced standards, guidelines, or information from peer reviewed journals related to the process.

a. Biological indicators shall utilize spores from one of the following bacterial species:

(1) Geobacillus stearothermophilus (G.s.);

(2) Bacillus atrophaeus (B.a.);

(3) Bacillus subtilis (B.s.);

(4) Other Bacillus species or spore forming bacteria from domestic or international culture collections; or

(5) Organisms that demonstrate the necessary resistance for the treatment method, as approved by the department.

b. The facility shall use commercially prepared biological indicators, such as spore strips, spore suspensions, and self-contained biological indicators.

c. Biological indicators shall be placed in the most challenging location during validation and periodic challenge testing. Indicator ports, chambers, or other mechanisms shall be used for placement of the biological indicator when placement directly into the waste may be compromised by the treatment method, such as when shredding, grinding, or other mechanism is used. Ports and chambers shall be accessible by the operator.

d. When using the appropriate biological indicator, the number to be used shall be based upon the amount of waste to be processed in accordance with 9VAC20-121-260 D 7 (for validation) and 9VAC20-121-270 B (for periodic challenge testing).

13. Parametric controls shall be used to monitor critical operational treatment parameters and provide a record of measurements that can be correlated to effective treatment.

14. Door alignment, gaskets, locking mechanisms, and other components of any treatment unit that utilizes a pressure vessel (such as an autoclave) shall achieve a complete seal during operation to prevent leaking of steam, liquid, or waste and avoid decreases in pressure or temperature that could cause isolated cold spots inside the unit.

15. In the event of power failure, interrupted, or incomplete treatment cycle, the facility shall investigate the cause of the failure and make any necessary repairs to resolve the issue prior to the next treatment cycle. Any waste in the treatment unit shall either be removed and managed as regulated medical waste or subjected to another full treatment cycle once repairs are made.

16. After each cycle, treated waste shall be removed from reusable treatment carts and containers. All reusable treatment carts and containers shall be cleaned on a periodic basis to remove the buildup of more than de minimis amounts of treated waste residual on cart and container surfaces.

C. The requirements in this subsection are applicable to autoclave treatment methods.

1. All autoclaves shall be operated at 100% saturated steam conditions at appropriate combinations of operating temperatures, pressures, and residence times, that have been demonstrated through validation testing to achieve reliable and effective treatment of microorganisms in regulated medical waste at design capacity. Longer treatment cycles may be needed for loads with liquids. Autoclave operating temperatures shall be greater than or equal to 250^oF (121^oC) at no less than 15 pounds per square inch of gauge pressure, and the minimum operating temperature and pressure shall be maintained during the residence time of the treatment cycle.

2. All autoclaves shall be equipped with continuous time, temperature, and pressure monitoring and recording.

3. For vacuum autoclaves, pre-vacuum shall be conducted such that all system air is fully evacuated a minimum of two times prior to the residence phase of the treatment cycle , during which all air is evacuated to ensure adequate steam exposure throughout the waste. Additional pre-vacuum pulls may be required based on certain waste or packaging types, and as determined through validation testing.

4. For gravity autoclaves, pressure pulsing must be performed to evacuate all air in the unit.

5. Validation and periodic challenge testing shall be performed using biological indicators utilizing spores from the bacterial species Geobacillus stearothermophilus.

D. The requirements in this subsection are applicable to microwave treatment methods.

1. Microwaving treatment shall incorporate pretreatment by shredding and steam injection or induction.

2. All microwaves shall be operated between 203^oF and 212^oF (95^oC and 100^oC) for a minimum of 45 minutes. Alternate operating temperatures and cycle times may be demonstrated through validation testing.

3. Microwave radiation power of the treatment process shall be at least six units each having a power of 1,200 watts or the equivalent power output.

4. Each microwave treatment unit shall be equipped to sense, display, and continuously record the temperature at the start, middle, and end of the treatment chamber.

5. Process temperatures at the exposure chamber entry and exit and the waste flow rate shall be continuously monitored, displayed, and recorded.

6. Validation and periodic challenge testing shall be performed using biological indicators utilizing spores from the bacterial species Bacillus atrophaeus.

E. The requirements in this subsection are applicable to dry heat treatment methods.

1. Dry heat systems shall be operated per the following operational standards:

a. Temperature of not less than 320^oF (160°C) for 120 minutes;

b. Temperature of not less than 340^oF (170°C) for 60 minutes; or

c. Temperature of not less than 360^oF (180°C) for 30 minutes.

Alternate operating temperatures and cycle times may be demonstrated through validation testing.

2. Each treatment unit shall be equipped to sense, display, and continuously record the temperature of the treatment chamber.

3. Unless otherwise approved by the department, no treatment unit employing dry heat as the main treatment process shall have a treatment chamber capacity greater than 1.0 cubic foot in volume.

4. Validation and periodic challenge testing shall be performed using biological indicators utilizing spores from the bacterial species Bacillus atrophaeus.

F. The requirements in this subsection are applicable to chemical treatment methods.

1. Operating standards for chemical treatment systems are dependent on the chemical concentration and exposure time. Facilities wishing to employ a chemical treatment system shall submit an alternate treatment technology petition per 9VAC20-121-250 to justify the proposed operating parameters. Once the petition is approved, chemical concentration and treatment time operating parameters shall be demonstrated through validation testing in the presence of the maximum anticipated organic waste content.

2. The facility shall maintain registration for the chemical used in the treatment system in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act, if required.

3. Containers holding chemicals shall be labeled in accordance with 40 CFR 156 (Labeling Requirements for Pesticides and Devices), and the facility shall maintain Safety Data Sheets for all chemicals related to the chemical treatment system.

4. Validation and periodic challenge testing shall be performed using biological indicators utilizing spores from the bacterial species Bacillus subtilis or Bacillus atropheus.

G. The requirements in this subsection are applicable to alkaline hydrolysis treatment methods. Alkaline hydrolysis is a process by which heat and pressure dissolve and sterilize regulated medical waste in a strong solution of sodium or potassium hydroxide (NaOH or KOH, respectively).

1. Alkaline hydrolysis shall only be used for treatment of human pathological and anatomical waste, including tissues, organs, body parts, other related waste, and animal carcasses.

2. Systems that operate above atmospheric pressure must employ a dissolution chamber that is a certified pressure vessel by the American Society of Mechanical Engineers (ASME).

3. Operating parameters for alkaline hydrolysis systems vary depending on the amount of regulated medical waste to be treated and the type of contamination:

a. To inactivate microbial pathogens, the waste must be heated to 212^oF (100^oC), and pressurized at 15 pounds per square inch for three hours;

b. To destroy transmissible spongiform encephalopathy (TSE), including bovine spongiform encephalopathy, the waste must be heated to 300^oF (150^oC) and pressurized at 70 pounds per square inch for six to eight hours.

c. Chemical concentration and treatment time shall be demonstrated through validation testing in the presence of the worst case organic material waste content.

4. Treatment shall ensure the complete dissolution of all tissue remains, if applicable, and any solids left shall be disposed of at a solid waste management facility permitted to receive it.

5. Validation and periodic challenge testing shall be performed using biological indicators utilizing spores from the bacterial species Geobacillus stearothermophilus.

H. The requirements in this subsection are applicable to incineration treatment methods.

1. All incinerators shall be permitted under regulations of the State Air Pollution Control Board and be in compliance with the regulations of that body.

2. All combustible regulated medical waste shall be converted by the incineration process into ash that is not recognizable as to its former character.

3. Analysis of ash and air pollution control residues:

a. Incinerator bottom ash and residues collected from air pollution control equipment shall be collected separately in leak resistant containers with runoff controls to prevent releases from the ash storage. Incinerator bottom ash and air pollution control residues shall be stored separately until sample testing per subdivision 3 b of this subsection is performed and the waste streams are determined to be a solid waste.

b. Testing requirements:

(1) Representative samples consisting of 250 milliliters of each waste stream shall be collected once every eight hours of operation of a continuously fed incinerator and once every batch or 24 hours of operation of a batch fed incinerator. Samples shall be collected during each 1,000 hours of operation or quarterly, whichever is more often, and samples shall be thoroughly mixed and seven random portions of equal volume shall be composited into one sample for laboratory analysis. This sample shall be tested in accordance with the methods established by the Virginia Hazardous Waste Management Regulations (9VAC20-60) for determining if a solid waste is a hazardous waste.

(2) In addition to subdivision 3 b (1) of this subsection, composite samples of incinerator bottom ash shall be tested for total organic content.

c. If ash or air pollution control residues are found to be hazardous waste (based on a sample and a confirmation sample) the waste ash shall be managed of as a hazardous waste in accord with the Virginia Hazardous Waste Management Regulations (9VAC20-60). The operator shall notify the department within 24 hours. No later than 15 calendar days following, the permittee shall submit a plan for treating and disposing of the waste on hand at the facility and all unsatisfactorily treated waste that has left the facility. The permittee shall include with the plan a description of the corrective actions to be taken to prevent further unsatisfactory performance. No ash or air pollution control residues subsequently generated from the incinerator waste stream found to be hazardous waste shall be sent to a nonhazardous solid waste management facility in the Commonwealth unless written approval of the director is obtained in accordance with Solid Waste Management Regulations (9VAC20-81).

d. If ash or air pollution control residues are found not to be hazardous waste by analysis, they may be disposed of in a solid waste landfill that is permitted to receive municipal solid waste or incinerator ash, provided the disposal is in accordance with the Solid Waste Management Regulations (9VAC20-81).

e. A log shall document the ash sampling, to include the date and time of each sample collected; the date, time, and identification number of each composite sample; and the results of the analyses, including laboratory identification. Results of analyses must be returned from the laboratory and recorded within four weeks following collection of the composite sample. The results and records described in this part shall be maintained for a period of three years, and shall be available for review.

I. Alternate treatment technologies as reviewed and approved by the department. All alternate treatment technologies approved by the director shall conform to the general treatment standards in subsection B of this section and any additional requirements the department imposes at the time of approval.

1. Any person who desires to use a chemical treatment technology per subsection F of this section or treatment technology, other than those described in subsections C, D, and E or subsections G and H of this section, shall petition the director for a review under 9VAC20-121-250.

2. If the director finds that the technology and application is in accordance with this part, the department may consider the facility for permitting.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-250 Alternate treatment technologies

A. In accordance with 9VAC20-121-240 I, chemical treatment and other alternate treatment technologies may be approved for permitting if the department reviews the process and determines that the technology provides treatment in accordance with this chapter and protects public health and the environment, and if the department establishes appropriate conditions for their siting, design, and operation. This section establishes the criteria, protocols, procedures, and processes to be used to petition the director for review and to demonstrate the suitability of the proposed technology for the treatment of regulated medical waste.

B. Alternate treatment technologies are subject to the general treatment standards of 9VAC20-121-240 and the additional requirements of this section. To ensure effectiveness of the proposed chemical or alternate treatment technology, the applicant must demonstrate effective microbial and bacterial inactivation at a 6 log₁₀ or greater reduction for the microorganisms and spores listed in subsections C and D of this section through validation testing that meets the requirements of 9VAC20-121-260.

C. Microbial inactivation shall be demonstrated using one or more representative microorganisms from each microbial group:

1. For vegetative bacteria: either Staphylococcus aureus (ATCC 6538) or Pseudomonas aeruginosa (ATCC 15442).

2. For fungi: either Candida albicans (ATCC 18804), Penicillium chrysogenum (ATCC 24791), or Aspergillus niger.

3. For viruses: either Polio 2 or Polio 3, or MS-2 Bacteriophage (ATCC 15597-B1).

4. For parasites: either Cryptosporidium spp. oocysts or Giardia spp. Cysts.

5. For Mycobacteria: either Mycobacterium terrae, Mycobacterium phlei, Mycobacterium bovis (BCG) (ATCC 35743).

D. Bacterial inactivation shall be demonstrated for chemical, thermal, and irradiation treatment systems using spores from either B. stearothermophilus (ATCC 7953) or B. subtilis (ATCC 19659).

E. For those treatment processes that can maintain the integrity of the biological indicator carrier (i.e., ampules, plastic strips) of the desired microbiological test strain, biological indicators of the required strain and concentration shall be used to demonstrate effective treatment. Effective treatment is demonstrated by no growth in all treated biological indicators and growth in all untreated biological indicators during validation and periodic challenge testing.

F. For those treatment mechanisms that cannot ensure or provide integrity of the biological indicator (i.e., chemical inactivation or grinding), quantitative measurement of effective treatment requires a two-step approach: Step 1, "Control"; Step 2, "Test." The purpose of Step 1 is to account for the reduction of test microorganisms due to loss by dilution or physical entrapment.

1. Step 1 is:

a. Use microbial cultures of a predetermined concentration necessary to ensure a sufficient microbial recovery at the end of this step.

b. Add suspension to a standardized medical waste load that is to be processed under normal operating conditions without the addition of the microbial inactivation agent (i.e., heat, chemicals).

c. Collect and wash waste samples after processing to recover the biological indicator organisms in the sample.

d. Plate recovered microorganism suspensions to quantify microbial recovery. (The number of viable microorganisms recovered serves as a baseline quantity for comparison to the number of recovered microorganisms from wastes processed with the microbial inactivation agent).

e. The required number of recovered viable indicator microorganisms from Step 1 must be equal to or greater than the number of microorganisms required to demonstrate a 6 log₁₀ or greater reduction.

2. Step 2 is:

a. Use microbial cultures of the same concentration as in Step 1.

b. Add suspension to the standardized medical waste load that is to be processed under normal operating conditions with the addition of the microbial inactivation agent.

c. Collect and wash waste samples after processing to recover the biological indicator organisms in the sample.

d. Plate recovered microorganism suspensions to quantify microbial recovery.

3. From data collected from Step 1 and Step 2, the level of microbial and bacterial inactivation shall be calculated based on the:

a. Number of viable "Test" microorganisms (in colony forming units per gram of waste solids) introduced into the treatment unit,

b. Number of "Control" microorganisms (in colony forming units per gram of waste solids) that were not recovered after processing, and

c. Number of viable "Test" microorganisms (in colony forming units per gram of waste solids) recovered in treated processed waste residue.

G. To initiate the technology review process the applicant shall complete and submit DEQ Form RMWTP-01, Application for Evaluation and Approval of Regulated Medical Waste Treatment Technology to the department. The application shall be accompanied by:

1. A detailed description of the chemical or alternate treatment technology. The description must include:

a. A discussion of operating procedures and conditions, including, as applicable, treatment times, pressure, temperatures, chemical concentrations, irradiation doses, feed rates, and waste load composition;

b. A discussion of parametric controls, verifying effective treatment, and ensuring operator noninterference; and

c. A discussion of waste residues and by-products generated and methods of disposal or recycling.

d. The description shall be accompanied by the manufacturer's operations manual or equipment usage instructions, equipment specifications, and maintenance manual.

2. Documentation demonstrating the chemical or alternate treatment technology meets microbial and bacterial inactivation criteria specified under subsections B through F of this section. The documentation must include a description of the test procedures and calculations used in fulfilling required performance standards verifying effective treatment, of user verification methodology, and of microbial culturing protocols that ensure traceability, purity and concentration, and copy of all test results.

3. A chemical management plan describing all chemicals to be stored on site and include copies of Safety Data Sheets for all chemicals used for regulated medical waste treatment and EPA pesticide registration, if applicable.

4. Documentation providing occupational safety and health assurance.

H. The applicant shall demonstrate that all required surrogate pathogens and resistant bacterial endospores are inactivated to criteria specified in subsections B through F of this section under the representative surrogate waste load compositions.

I. The applicant shall demonstrate where the relationship between effective treatment, biological indicator data, and data procured from real-time parametric monitoring devices for the treatment unit.

J. The review of the application will occur in accordance with this subsection.

1. After receiving an application that includes the information and demonstrations required in subsections A through I of this section, the department will perform an administrative review and determine whether the information received is sufficient to approve the proposed chemical or alternate treatment technology. If the information is deemed to be insufficient, the department will request that additional information be furnished.

2. The applicant may submit the additional information requested or may demonstrate that the additional information should not be required. If the department agrees that the additional information is not required, the department will determine if the application is complete.

3. After the application is deemed complete, the director may then issue a treatment technology approval. The approval shall be issued under the conditions specified in the manufacturer's instructions and equipment specifications, operating procedures, and conditions as outlined in the application, including, as applicable, treatment times, temperatures, pressure, chemical concentrations, irradiation doses, feed rates, and waste load composition. Any significant revision to these conditions will require reapplication for approval in accordance with this section.

4. Following technology approval, any facility wishing to use the approved technology to treat regulated medical waste shall apply for and obtain the necessary permits in accordance with Part V (9VAC20-121-300 et seq.).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-260 Validation testing

A. Prior to using any treatment system, the facility must conduct validation testing that employs the use of process controls, biological indicators, and process monitoring to establish operating parameters to demonstrate effective treatment of regulated medical waste.

B. Prior to validation testing, the owner or operator shall submit to the department a treatment plan containing the information required by 9VAC20-121-330 E. The plan shall demonstrate that the validation protocols for each treatment unit meet the standards of this section and shall indicate any additional protocols specific to the regulated medical waste to be treated, such as the use of packaging types that may affect treatment of the waste. Validation testing must be conducted in accordance with an approved treatment plan and the requirements of this section. The validation test results and operating parameters must be submitted to the department for review prior to acceptance of regulated medical waste for treatment.

C. To demonstrate reproducibility, a minimum of three separate treatment runs must be performed on three separate days, using three distinct loads, during which the department is present to witness at least one complete validation test run. All test runs shall meet the following requirements:

1. Operating parameters used during the tests must be consistent with the parameters that will be used during routine operation of the treatment process (e.g., cycle duration, temperature, pressure, chemical concentration, irradiation exposure time, or other treatment parameters as applicable).

2. Surrogate waste load composition (e.g., porosity, liquids, solids, moisture content, organic matter, thermal resistance, and type of packaging or containers) and waste load configuration (e.g., packing density and orientation) used during the tests must be consistent with the waste properties and loading process that will be used during routine operation. The surrogate waste load shall represent the most difficult waste anticipated to be treated during routine operation.

3. The weight and volume of the surrogate waste loads used during the tests must be consistent with the amount of waste that will be treated during routine operation. Validation testing must be performed at the treatment unit's full capacity unless an alternate load size is approved.

D. To assess treatment performance, the system must employ commercially-prepared biological indicators from the same lot or batch, each containing spores that demonstrate the necessary resistance for the treatment method, as determined by the department. The indicators must:

1. Have a minimum concentration of 6 log₁₀ spores per biological indicator. The concentration must be higher and more thermally resistant than the bioburden routinely associated with the waste;

2. Include a supplier's certificate of performance (or certificate of analysis) that identifies the organism (genus, species, strain, and population) and, for thermal treatment systems (including autoclaves), the D-value and Z-value. The D-value must be 1.5 to 3.0 minutes, unless otherwise approved by the department, and the Z-value must be no less than 50°F (10°C);

3. Be appropriate for the type of waste and device (i.e., self-contained, suspension, or spore strip), including the shelf life, the carrier material and primary packaging, the culture medium (for self-contained biological indicators) and the media, growth, and culture conditions (for non-self-contained biological indicators);

4. Be compatible with the treatment process and have a resistance relative to the temperature, pressures, conditions, chemicals, or irradiation used in the process; the infectious agents on a substrate; the type and density of the waste to be treated; and its packaging;

5. Be placed in a carrier system (e.g., net bags, wrapped in a paper towel and encased in cotton batting or inside tennis balls, socks, or alloy containers with holes in them) designed to mimic the thermal resistance of the waste before placement into the package to be treated. Materials used to hold biological indicators must be similar to the waste to be treated, provide effective protection from damage or breakage or from otherwise being compromised, be loose in the bulk of the waste, and be easily retrievable at the end of each validation test run. Indicators shall not be placed in carrier systems that would enhance treatment or produce erroneous results (such as metal containers that would conduct heat);

6. Be placed throughout the waste load during each validation test at the coldest or most challenging locations within the treatment unit, where the sum of all influences on the microorganisms results in minimal inactivation for a defined waste load;

7. Be used in accordance with the quantity specified as follows, for each test run:

a. Three biological indicators per cycle for 0 to 110 pounds of waste per load;

b. Five biological indicators per cycle for 111 to 550 pounds of waste per load;

c. Seven biological indicators per cycle for 551 to 1,100 pounds of waste per load;

d. Nine biological indicators per cycle for 1,101 to 1,650 pounds of waste per load;

e. Eleven or more biological indicators per cycle, as determined by the department, for greater than 1,650 pounds of waste per load; and

f. One or more biological indicators from the same lot or batch to be left untreated and used as a control;

8. Be stored in accordance with the manufacturer's specifications when not in use. Expired biological indicators shall not be utilized.

9. Biological indicators in the form of paper strips must not be used in devices or areas where fluids can pool or puddle around the indicator. Self-contained biological indicators with vent caps must not be used where liquids may accumulate and contaminate the indicators.

10. Qualitative or quantitative biological indicators shall be used provided the operator or vendor of the technology provides evidence from such sources as peered reviewed journals that support the use of that particular indicator. Biological indicators requiring microbial bioassay to confirm effective treatment must be quantitatively analyzed after the treatment cycle. All self-contained biological indicators used for test runs must be evaluated for growth (e.g. qualitatively analyzed for color change) following incubation in accordance with the manufacturer's instructions.

E. Concurrent with biological indicators, the process must employ devices or instrumentation that demonstrates the treatment unit is achieving critical operating parameters for effective treatment. Process monitoring shall include:

1. Thermochemical indicators (e.g., tape, paper strips, or integrators) that demonstrate that the waste has been exposed to a certain temperature or chemical concentration;

2. Thermochemical recording devices (e.g., wireless data loggers, thermocouples, or chemical monitoring probes) that are placed in or on waste packages and that provide a measurable record of actual treatment conditions of the waste . The minimum number of thermochemical recording devices to be used during each validation test shall be at least one device per treatment bin plus one additional device in the treatment chamber; and

3. Parametric controls or monitoring devices integral to the treatment system that record critical operational treatment parameters and provide a record of measurements that can be correlated to effective treatment.

F. Effective treatment of regulated medical waste must achieve a 6 log₁₀ or greater reduction of the viable spore concentrations of the most appropriate bacterial species for the treatment method. Effective treatment is demonstrated by no growth in all treated biological indicators and growth in all untreated biological indicators during each test run. In certain situations where the waste poses a greater risk (e.g., a higher bioburden waste), the department may require a greater reduction.

G. The facility shall submit to the department for approval a summary of the validation test results demonstrating the treatment effectiveness and specifying the operating parameters based on the results of all validation test runs. The report shall describe the results of all validation test runs, including:

1. Date and time of all test runs, including the operator's name and cycle start and end times;

2. Surrogate waste load composition, configuration, and size;

3. Number, type, batch or lot number, expiration date, and placement of biological indicators, thermochemical indicators, and thermochemical recording devices; and

4. Results of all methods used to monitor operating parameters achieved throughout the treatment cycle and the accuracy of parametric monitoring devices, including copies of charts, graphs, or other read-outs from the treatment equipment and growth results of all treated indicators and untreated controls.

H. Validation testing must be repeated when any of the following occurs:

1. Failure of any treatment process to achieve operational parameters, such as time, temperature, or pressure during validation testing;

2. Failure to achieve microbial inactivation in any biological indicator during any treatment cycle during validation testing;

3. Failure of the untreated control indicator to show growth of the viable spore concentration;

4. Any modifications to any of the treatment process operational parameters, bioburden, waste mass, chemical type, concentration, irradiation or exposure time, type of waste to be treated, or mechanical or engineering changes to the treatment system from those assessed during the validation testing;

5. A failure identified in subdivision 1, 2, or 3 of this subsection during periodic challenge testing as identified by biological or process monitoring that occurs three or more times in a calendar year or during the first 30 days of actual operation;

6. A treatment device has been operational without a repeat validation for at least five years; or

7. A treatment device has not been used for at least one year.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-270 Periodic challenge testing

A. After initial validation testing and during routine operation, a regulated medical waste treatment facility shall perform periodic challenge testing under full loading to evaluate the effectiveness of each treatment device in accordance with procedures outlined in the facility's approved treatment plan.

B. Periodic challenge testing shall be performed in accordance with the following requirements:

1. Biological indicators shall be used to periodically challenge test a load of regulated medical waste and must comply with all requirements of 9VAC20-121-260 D, with the exception of the quantity of biological indicators required under 9VAC20-121-260 D 7.

2. Periodic challenge testing must include at least one-third of the number of appropriate biological indicators that are required for the validation test, or two indicators, whichever is greater, unless otherwise determined by the department. One or more additional biological indicators from the same lot or batch shall be left untreated and used as a control.

3. The results of all periodic challenge testing shall be maintained for three years in accordance with 9VAC20-121-340 and shall include:

a. Date and time of all challenge tests, including the operator's name and cycle start and end times;

b. Number, type, batch or lot number, expiration date, and placement of biological and thermochemical indicators; and

c. Results of all methods used to monitor operating parameters achieved throughout the treatment cycle, including copies of charts, graphs, or other read-outs from the treatment equipment and growth results of all treated indicators and untreated controls.

4. Effective treatment of regulated medical waste must be demonstrated by a 6 Log₁₀ or greater reduction of spore concentrations in all biological indicators in each periodic challenge test. A challenge test is considered a failure if any of the following occurs:

a. Failure of any treatment process to achieve operational parameters such as time, temperature, or pressure;

b. Failure to achieve microbial inactivation in any biological indicator during any treatment cycle. All biological indicators must show passing results (no growth in the viable spore concentration) after treatment or the challenge test is considered a failure; or

c. Failure of the untreated control indicator to show growth of the viable spore concentration.

C. Any regulated medical waste treated during or after a challenge test shall be stored temporarily until challenge test results are obtained. Regulated medical waste shall not be shipped offsite until the challenge test is complete and shows passing results for all biological indicators.

D. Unless otherwise approved by the department, for the first 30 days of actual operation, each treatment unit shall undergo challenge testing twice per day. The first load of each day shall be used for one of the required challenge tests.

E. Following the first 30 days of actual operation, periodic challenge testing must be conducted at a minimum of once per week or every 40 hours of operation, whichever is greater.

F. After six months of successful operation with no challenge test failures in weekly or 40- hour testing, challenge testing shall be conducted at least once per month.

G. Any challenge test failures during the first six months of actual operation shall require a return to daily challenge testing for at least 30 operating days. After the first six months of actual operation, any challenge test failure shall require a return to challenge testing once per week or every 40 hours of operation, whichever is greater.

H. Following any challenge test failure:

1. The waste shall continue to be managed as regulated medical waste and shall be retreated, stored temporarily until retreatment, or diverted to another approved facility for treatment or disposal. Regulated medical waste shall not be considered treated until a subsequent challenge test is conducted with passing results;

2. The facility shall evaluate and correct any issues with the treatment cycle and unit prior to treating any additional waste;

3. The facility shall notify the department of the failure in accordance with 9VAC20-121-340; and

4. The facility shall increase the frequency of challenge testing in accordance with subsection G of this section.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-280 Disposal of treated regulated medical waste

A. Regulated medical waste that has been treated in accordance with this part is no longer a regulated medical waste. Treated regulated medical waste is a solid waste. Treated waste may be compacted in a closed container in a safe and sanitary manner.

B. Treated waste shall be disposed of at a permitted solid waste disposal facility in accordance with the Solid Waste Management Regulations (9VAC20-81) and the solid waste disposal facility's permit. Regulated medical waste not treated in accordance with this chapter remains a regulated medical waste and shall not be transported to, received for transport or disposal by, or disposed in any solid waste management facility.

C. Where non-bulk treatment is used, treated waste shall be placed in sealed bags or containers that allow for visible assessment of treatment, such as clear bags or bags marked with sterilization indicators. The bags shall not be red in color. Opaque bags and bags with special labels are permissible if agreed upon in writing by the solid waste management facility receiving the treated waste. Treatment cart liners that are resistant to treatment conditions (such as temperature) may be used to package treated waste. Where bulk treatment is used and the solid waste is immediately placed or compacted in closed bulk solid waste management containers that are more than 64 gallons in volume, the repackaging of the solid waste in bags is not required. Treated waste shall not be repackaged as regulated medical waste.

D. The regulated medical waste treatment facility shall have a written treated waste disposal plan that shall be provided to each permitted solid waste management facility that will transfer, store, or dispose of the treated waste. The plan shall specify and include the following:

1. A description of how the treated waste will be packaged and transported to each solid waste management facility, including the types and colors of bags or containers used, and any special labeling if applicable;

2. The type of regulated medical waste treated, treatment method, and name, address, and telephone number of the treatment facility;

3. The name, address, and telephone number of any transfer stations or other intermediate facilities or locations where the treated waste will be transferred or temporarily stored prior to transport to a permitted solid waste disposal facility ;

4. The plan shall be updated and redistributed to receiving facilities when there are changes to the treatment process or facility operation that impact the plan.

5. The facility shall maintain records of distribution of the plan to all transfer, storage, or disposal facilities that manage the treated waste.

E. If treated residuals are determined to be hazardous, then the waste must be managed in accordance with the Virginia Hazardous Waste Management Regulations (9VAC20-60).

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-290 Closure requirements

A. The owner or operator of a regulated medical waste management facility shall close the facility in a manner that minimizes the need for further maintenance, and controls, minimizes, or eliminates, to the extent necessary to protect human health and the environment, the post-closure escape of regulated medical waste, uncontrolled effluent, surface runoff, or waste decomposition products to the groundwater, surface water, or atmosphere.

1. When a unit that has been used for regulated medical waste management is to cease operations involving regulated medical waste, the unit and all related equipment, structures, and surfaces shall be thoroughly cleaned and disinfected. Cleaning shall be conducted with detergent and water. At a minimum, disinfection shall include using an EPA-registered hospital grade disinfectant effective against mycobacteria in accordance with manufacturer's label instructions, unless it can be demonstrated to the satisfaction of the department that an alternate EPA-registered disinfectant will be protective of human health and the environment and is appropriate for the type of regulated medical waste managed and surfaces being disinfected.

2. All regulated medical waste, materials contaminated with waste constituents, and treatment residue shall be removed and disposed of in accordance with this chapter.

B. Closure plan and modification of plan.

1. The owner or operator of a regulated medical waste management facility shall have a written closure plan that meets the requirements of 9VAC20-121-330 G.

2. The owner or operator may amend the closure plan at any time during the active life of the facility. The owner or operator shall so amend the plan any time changes in operating plans or facility design affects the closure plan. The amended closure plan shall be placed in the operating record.

3. The owner or operator shall submit to the department the amended closure plan that was placed in the operating record.

4. At least 180 days prior to beginning closure of each unit, the owner or operator shall notify the director of the intent to close.

5. The owner or operator shall provide to the department a certification that the facility has been closed in accordance with the closure plan.

C. The owner or operator shall complete closure activities in accordance with the closure plan and within six months after receiving the final volume of wastes. The director may approve a longer closure period if the owner or operator can demonstrate that the required or planned closure activities will take longer than six months to complete, and that the owner or operator has taken all steps to eliminate any significant threat to human health and the environment from the unclosed but inactive facility.

D. The owner or operator shall post one sign notifying all persons of the closing and providing a notice prohibiting further receipt of waste materials. The sign shall remain in place until closure activities are complete. Further, suitable barriers shall be installed at former accesses to prevent new waste from being delivered.

E. The department shall inspect the facility to confirm that the closure is complete and adequate in accordance with this chapter. The department shall notify the owner of a closed facility in writing if the closure is satisfactory, or if unsatisfactory, shall require any necessary construction or such other steps as may be necessary to bring unsatisfactory sites into compliance with this chapter. Notification by the department that the closure is satisfactory does not relieve the operator of responsibility for corrective action to prevent or abate problems caused by the facility.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Part V Permitting of Regulated Medical Waste Management Facilities

9VAC20-121-300 Applicability

A. Any facility operated for the transfer or treatment of regulated medical waste that is not exempt in accordance with this chapter, must hold a permit-by-rule from the department prior to commencement of operations.

B. Each regulated medical waste management facility permit-by-rule shall be limited to one site and shall be nontransferable between sites.

C. A new permit-by-rule is required when there is:

1. Any new regulated medical waste management facility; or

2. Any change in design or process of a regulated medical waste management facility that will result in a different type of facility. These changes may include a change from transfer to treatment facility, change of physical location, or change from captive to non-captive facility.

D. The director may grant a variance from any provision contained in this part to a permittee provided the requirements of Part VI (9VAC20-121-400 et seq.) of this chapter are met.

E. The following regulated medical waste management activities are conditionally exempt from the requirements of this part provided no open dump, hazard, or public nuisance is created and wastes are managed in accordance with the requirements promulgated by other applicable state or federal regulations or the conditions provided in this section.

1. Household sharps may be collected in a sharps drop box located in a public restroom, airport, train station, health clinic, pharmacy, health department, police or fire station, community organization building, permitted solid waste management facility, or other location as a convenience to the public, as long as the following requirements are met:

a. Sharps drop boxes shall only receive household sharps from individual home generators who choose to transport household sharps to the drop box. Sharps drop boxes shall not receive waste from collection vehicles or other entities that have collected waste from more than one real property owner;

b. All owners and operators of sharps drop boxes must comply with the general handling, packaging and labeling, storage, reusable container, spill cleanup, transportation, and Category A waste management requirements for regulated medical waste outlined in Part III (9VAC20-121-100 et seq.) of this chapter; and

c. Collected sharps shall be treated or disposed of as regulated medical waste in accordance with this chapter. Untreated sharps shall not be recycled or disposed of in a solid waste landfill or other solid waste management facility. Collected sharps that are shipped offsite as part of a mail-back program shall be transported in accordance with the requirements of 39 CFR 111 and 9VAC20-121-150 K.

2. Facilities that employ a treatment method to treat regulated medical waste onsite but subsequently package, label, and transport the waste offsite to be further managed as regulated medical waste are exempt from permitting in accordance with this chapter, but are subject to all other standards outlined in Part III (9VAC20-121-100 et seq.) for the management of regulated medical waste.

3. Treatment systems (such as an effluent decontamination system) used to treat industrial or domestic sewage discharges in compliance with federal, state, or local pretreatment requirements as applicable. If the treatment unit separates solids from liquids prior to discharge, the solids shall be managed as regulated medical waste unless it meets an exemption in accordance with this chapter.

4. Combustion of up to 10% by weight of regulated medical waste in a Virginia Solid Waste Management Regulations (9VAC20-81) permitted solid waste incinerator, thermal treatment, or waste to energy facility. Regulated medical waste must be an approved supplemental waste or included in an approved material review process in accordance with the State Air Pollution Control Board regulations and management of the regulated medical waste prior to addition to the incinerator, thermal treatment, or waste to energy unit must be in accordance with this chapter.

5. Temporary offsite storage of regulated medical waste generated from an emergency cleanup for up to 72 hours, including in a locked vehicle, prior to transporting directly to a regulated medical waste management facility permitted to receive the waste for treatment, transfer, or disposal, provided that all regulated medical waste is:

a. Generated from an emergency or unplanned sudden or nonsudden spill or release of regulated medical waste requiring immediate response in order to protect human health or the environment, and the regulated medical waste was not generated by a health care professional or nonstationary health care provider;

b. Collected from not more than one individual regulated medical waste generator and is not received from collection vehicles or other entities that have collected waste from more than one real property owner;

c. Managed, stored, and transported in accordance with all requirements of Part III (9VAC20-121-100 et seq.) of this chapter, except for the storage timeframe which shall be no more than 72 hours; and

d. Not a Category A waste, hazardous waste, or radioactive waste.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-310 Permits by rule and emergency permits

A. This subsection contains the requirements for permits-by-rule. The owner or operator of a facility described in subdivision A 1 of this section shall be deemed to have a regulated medical waste management facility permit if (i) the owner or operator submits the completed DEQ Form RMW PBR, Regulated Medical Waste Management Facility Permit-by-Rule Form, and all required information and attachments as detailed in subdivision A 2 of this section, and (ii) the department acknowledges completeness of the submittal per subdivision A 4 of this section.

1. Except for exempt facilities described in 9VAC20-121-300 E, the owner or operator of the following regulated medical waste management facilities shall apply for a permit-by-rule:

a. Regulated medical waste transfer stations as defined by this chapter, including when a vehicle transporting regulated medical waste will be parked for 24 hours or more during transport;

b. Facilities treating regulated medical waste employing a treatment method described in 9VAC20-121-240; and

c. Facilities treating regulated medical waste employing an alternate treatment method as described in 9VAC20-121-250.

2. The owner or operator of a regulated medical waste management facility shall submit the following information and documentation to the department:

a. To initiate the permit-by-rule application process, any person who proposes to establish a new regulated medical waste management facility, or modify an existing regulated medical waste management facility shall file a notice of intent with the director stating the type of facility for which the permit-by-rule application is made, the precise location of the proposed facility, and the intended use of the facility. The notice shall be in letter form and be accompanied by the following documents:

(1) A disclosure statement (DEQ Forms DISC-01 and DISC-02) identifying all key personnel as required by § 10.1-1408.1 of the Code of Virginia.

(2) A copy of the certification for at least one operator licensed by the Board for Waste Management Facility Operators as required by § 10.1-1408.2 of the Code of Virginia.

(3) A certification (DEQ Form CERT-01) from the governing body of the county, city, or town in which the facility is to be located stating, without qualifications, conditions, or reservations, that the location and operation of the facility are consistent with all applicable ordinances. No certification shall be required for the application for a modification to an existing permit-by-rule.

(4) The results of the public participation effort conducted in accordance with the requirements contained in subdivision A 3 of this section;

b. A certification that the facility meets the siting standards, as applicable, of 9VAC20-121-210;

c. A certificate signed by a professional engineer that the facility has been designed and constructed in accordance with the design and construction standards, as applicable, of 9VAC20-121-220;

d. Design plans certified by a professional engineer consisting of at least the following:

(1) A title sheet indicating the facility name, who prepared the plans, the person for whom the plans were prepared, a table of contents, and a location map showing the location of the site and area to be served.

(2) An exterior site plan identifying building dimensions of the transfer or treatment facility and the location of property boundaries and building setbacks, fencing, loading or unloading areas, vehicle staging and queuing locations, and parking areas.

(3) An interior site plan identifying location and size of all receiving, storage, temporary storage, including storage areas to be used to segregate unauthorized waste, radioactive waste, hazardous waste, and other untreated waste from treated waste, and processing areas, and location of treatment units, reusable container washing stations, and floor drains.

(4) A process flow diagram for all treatment units showing, piping and instrumentation, vents, and liquid discharge locations;

e. Documentation of the authorization to discharge into an approved sanitary sewer system or publicly or privately owned treatment works;

f. A certification that the facility meets the standards of Part III (9VAC20-121-100 et seq.) and Part IV (9VAC20-121-200 et seq.), as applicable, and a copy of the regulated medical waste management plan to be maintained in the operating record in accordance with 9VAC20-121-330. The certification shall also include a statement that the emergency contingency plan has been provided to the local police and fire departments, local emergency manager, and local emergency health coordinator;

g. Alternate treatment technologies shall provide a copy of the treatment technology approval;

h. A treatment plan for each treatment unit in accordance with 9VAC20-121-330 E;

i. For treatment facilities, a treated waste disposal plan in accordance with 9VAC20-121-280 D ;

j. A closure plan in accordance with 9VAC20-121-330 G;

k. Demonstration of legal control over the site for the permit life;

l. A certification from the State Corporation Commission that the business entity pursing the permit-by-rule status is a valid entity, authorized to transact its business in Virginia. This requirement does not apply to those facilities owned solely by governmental units;

m. Closure cost estimates and proof of financial responsibility as required by the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70). Proof of financial responsibility must be for the entity identified in subdivision A 2 l of this section. For treatment facilities, proof of financial responsibility is required prior to department approval to begin operation in accordance with 9VAC20-121-320; and

n. The applicable permit fees under the provisions of 9VAC20-90.

3. Public participation.

a. The applicant for a new regulated medical waste transfer station or treatment facility shall publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation of the intent to construct and operate a facility eligible for a permit-by-rule. The notice shall include:

(1) A statement of the applicant's intent to apply for a permit-by-rule to operate a regulated medical waste transfer station or treatment facility;

(2) A brief description of the proposed facility and its location;

(3) A statement that the purpose of the public participation is to identify issues of concern, to facilitate communication and to establish a dialogue between the applicant and persons who may be affected by the facility;

(4) Announcement of a 30-day comment period, in accordance with subdivision A 3 d of this section;

(5) Announcement of the date, time, and location for a public meeting to be held in accordance with subdivision A 3 c of this section;

(6) The name, address, and telephone number of the owner's or operator's representative who can be contacted by interested persons to answer questions or receive comments on the siting and operation of the proposed regulated medical waste facility; and

(7) Location where copies of the documentation to be submitted to the department in support of the permit-by-rule notification can be viewed and copied in accordance with subdivision A 3 b of this section.

b. The owner or operator shall place a copy of the documentation and support documents in a location accessible to the public in the vicinity of the proposed facility.

c. The owner or operator shall hold a public meeting not earlier than 14 days after the publication of the notice required in subdivision A 3 a of this section and no later than seven days before the close of the 30-day comment period. The meeting shall be held to the extent practicable in the vicinity of the proposed facility at a time convenient for the public.

d. The public shall be provided 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period will begin on the date the owner or operator publishes the first notice in the local newspaper.

e. The requirements of this section do not apply to the owners or operators of a regulated medical waste treatment unit that has received a permit from the department based on the regulations promulgated by the State Air Pollution Control Board or State Water Control Board that required facility-specific public participation procedures.

4. Upon receiving the certifications and other required documents, including the results of the public meeting and the applicant's response to the comments received, the department shall conduct a completeness review and respond within 30 days.

a. If the applicant's submission for a regulated medical waste transfer station is administratively complete, the applicant shall be deemed to operate under permit-by-rule status.

b. If the applicant's submission for a treatment unit is administratively complete, the applicant shall be deemed to operate under permit-by-rule status and granted authorization to initiate validation testing in accordance with an approved validation protocol and 9VAC20-121-320. The facility shall not accept regulated medical waste for treatment until the results of validation testing and operating parameters are submitted and approved by the department.

c. If the applicant's submission is administratively incomplete, the department will respond with a letter stating that the facility will not be considered to have a permit-by-rule or initiate the validation protocol until the missing certifications or other required documentation is submitted. At the time of the initial receipt or at a later date, the director may require changes in the documents designed to assure compliance with this chapter. Should such changes not be accomplished by the facility owner or operator, the facility will not be deemed to have a regulated medical waste management facility permit.

5. A permit-by-rule shall not be transferred by the permittee to a new owner or operator. However, when the property transfer takes place without proper closure, the new owner shall notify the department of the sale and fulfill all the requirements contained in subdivision A 2 of this section. Upon presentation of the financial assurance proof required by Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70) by the new owner, the department will release the former owner from the closure and financial responsibilities and acknowledge existence of the new permit-by-rule in the name of the new owner.

6. The owner or operator of a facility operating under a permit-by-rule may modify its design and operation by furnishing the department a new certificate and applicable permit fees under the provisions of 9VAC20-90. For modifications of design, the new certificate shall be prepared by a professional engineer and shall include new documentation required under subdivision A 2 of this section, as applicable, and subdivision A 3 of this section. For modifications to the operations, the owner or operator shall submit to the department a new certificate and documentation required under subdivision A 2 of this section, as applicable. For treatment units, a new treatment plan and revalidation with department approval to begin operation will be required for design and operation changes that include changing the treatment unit type, changing the treatment unit operating parameters, changes in waste stream, and adding a new treatment unit. Whenever modifications in the design or operation of the facility affect the provisions of the closure plan, the owner or operator shall revise the closure plan and submit to the department a new certificate and documentation required under subdivision A 2 of this section, as applicable. Should there be an increase in the closure costs, the owner or operator shall submit a new proof of financial responsibility as required by 9VAC20-70.

7. The director may terminate a regulated medical waste management facility's coverage under a permit-by-rule and require closure of the facility when the director finds that:

a. As a result of changes in key personnel, the requirements necessary for a permit-by-rule are no longer satisfied;

b. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in the disclosure statement or any other report or certification required under this chapter or has knowingly or willfully failed to notify the director of any material change to the information in the disclosure statement;

c. Any key personnel have been convicted of any of the crimes listed in § 10.1-1409 of the Code of Virginia, punishable as felonies under the laws of the Commonwealth or the equivalent under the laws of any other jurisdiction or has been adjudged by an administrative agency or a court of competent jurisdiction to have violated the environmental protection laws of the United States, the Commonwealth, or any other state, and the director determines that such conviction or adjudication is sufficiently probative of the permittee's inability or unwillingness to operate the facility in a lawful manner; or

d. The operation of the facility is inconsistent with the facility's regulated medical waste management plan or the requirements of Part IV (9VAC20-121-200 et seq.) of this chapter.

B. Notwithstanding any other provision of this chapter, in the event the director finds an imminent and substantial endangerment to human health or the environment, the director may issue a temporary emergency permit to a facility to allow transfer, treatment, or storage of regulated medical waste. Such permits:

1. May be issued to allow:

a. Transfer, treatment, or storage of regulated medical waste at a nonpermitted facility;

b. Transfer, treatment, or storage of types of regulated medical waste not covered by the permit for a facility with an effective permit;

c. Treatment of regulated medical waste by a new or temporary treatment unit or treatment unit or method not covered by the permit for a facility with an effective permit; or

d. Temporary transfer, treatment, or storage activities not covered by the permit for a facility with an effective permit.

2. If oral, the emergency permit shall be followed within five calendar days by a written emergency permit.

3. Shall not exceed 90 days in duration.

4. Shall clearly specify:

a. The regulated medical wastes to be received;

b. The manner and location of their transfer, treatment, storage, or disposal; and

c. For emergency treatment units, the treatment plan in accordance with 9VAC20-121-330 E.

5. Shall be accompanied by a public notice including:

a. Name and address of the office granting the emergency authorization;

b. Name and location of the facility so permitted;

c. A brief description of the wastes involved;

d. A brief description of the action authorized and reasons for authorizing it; and

e. Duration of the emergency permit.

6. Shall incorporate, to the extent possible and not inconsistent with the emergency situation, all applicable requirements of this chapter, and shall include the applicable permit fees under the provisions of 9VAC20-90.

7. For emergency treatment units, the facility shall not accept regulated medical waste for treatment until the results of validation testing and operating parameters are submitted and approved by the department.

8. Any permit issued under this subsection may be renewed not more than three times if necessary and with appropriate justification. Each such renewal shall be for a period of not more than 90 days.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-320 Effect of the permit

A. A regulated medical waste treatment facility will be approved to perform its validation protocol following determination of a complete permit-by-rule application in accordance with the procedures outlined in 9VAC20-121-310. Before receipt of waste by the facility, the permittee must:

1. Arrange for a department representative to inspect the site to observe at least one validation test run and perform validation testing in accordance with approved protocols.

2. Submit to the department for approval a summary of the validation test results demonstrating the treatment effectiveness and specifying the operating parameters based on the results of all validation test runs. The report shall include the results of all validation test runs.

B. Following approval by the department of the validation results, a regulated medical waste treatment facility may begin receiving and treating regulated medical waste as defined in the permit-by-rule. The facility shall comply with the operating parameters necessary to achieve treatment. A regulated medical waste treatment facility shall not receive or treat regulated medical waste until the department has approved the validation results and operating parameters to be used for the treatment unit.

C. Each facility permitted to accept regulated medical waste requires periodic inspection and review of records and reports. By accepting coverage under a permit-by-rule in accordance with 9VAC20-121-310, the owner or operator agree to the specified periodic inspections.

D. Compliance with a valid permit-by-rule and this chapter during its term constitutes compliance for purposes of enforcement with the Virginia Waste Management Act. However, a permit-by-rule may be modified or terminated for cause as set forth in 9VAC20-121-310 A 6 and A 7.

E. A permit-by-rule does not convey any property rights or any sort or any exclusive privilege.

F. A permit-by-rule does not authorize any injury to persons or property or invasion of other private rights or any infringement of federal, state, or local law or regulations.

G. A permit-by-rule may be transferred by the permittee to a new owner or operator only if the permit-by-rule has been terminated and reissued or modified to identify the new owner or operator and incorporate such other requirements as may be necessary. Upon presentation of the financial assurance proof required by 9VAC20-70 by the new owner, the department will release the old owner from the old owner's closure and financial responsibilities and acknowledge existence of the new or modified permit-by-rule in the name of the new owner.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-330 Regulated medical waste management plan

A. All permitted regulated medical waste management facilities, such as regulated medical waste transfer stations or treatment facilities, shall prepare and maintain a written regulated medical waste management plan. The plan shall include a certification page signed by a responsible official. This signature shall certify the plan meets the requirements of this chapter. The plan shall be maintained in the operating record and shall be made available for review by the department upon request. The plan shall include, at a minimum, the items in subsections B through G of this section.

B. A written waste acceptance plan, which includes, at a minimum:

1. Types and quantities of regulated medical waste to be managed, including sources of the waste and proposed service areas (if waste is accepted from offsite). The plan shall identify:

a. Acceptable waste types for treatment onsite (if applicable); and

b. Acceptable wastes types to be transferred to another approved facility for treatment or management offsite. The plan shall include a description of the offsite facility that will receive the waste, including the name, address, and telephone number for the receiving facility and how specific waste types will be managed.

2. Protocols for identification and segregation of regulated medical waste from other types of waste, including radioactive wastes, hazardous wastes, and other solid waste. The plan shall include a description of how incoming waste will be monitored to detect the presence of radioactive materials and actions that will be taken to verify the source of any alarm.

3. Procedures for handling Category A waste in accordance with 9VAC20-121-160.

4. Facilities that accept regulated medical waste from offsite shall include the following:

a. A description of onsite traffic control, schedules, and routing for waste delivery vehicle flow and methods of enforcement of traffic flow plans for the waste delivery vehicles;

b. Procedures for arrival confirmatory inspections of each delivery vehicle and their loads to ensure that the waste has been packaged and transported in accordance with the U.S. Department of Transportation Hazardous Materials Regulations and this chapter;

c. A description of how the waste will be off-loaded, weighed, and compared to the shipping paper that accompanies the waste and how any discrepancies will be resolved; and

d. For each generator or customer, the facility shall maintain a signed certificate, contract, or equivalent document for each load or inclusive of all loads received from the generator in which the generator affirms that the loads do not contain unauthorized waste.

5. Procedures for handling regulated medical waste received from onsite or offsite that is not packaged, labeled, or marked correctly; leaking, dented, ripped, torn, bulging, or otherwise damaged; or not accompanied by a shipping paper.

C. A written description of the procedures for the detection and management of unauthorized waste in accordance with 9VAC20-121-230 K. The plan shall contain, at a minimum:

1. A list of unauthorized waste types that are not acceptable for management at the facility.

2. Methods used by the operator to prevent management of unauthorized wastes, such as routine monitoring and observation of incoming waste, generator agreements, and informational materials.

3. Procedures to detect and address any unauthorized waste discovered at the facility, including the protocol for identifying and contacting the generator and to prevent recurrence.

4. Procedures for containing and storing each type of unauthorized waste, such as radioactive or hazardous waste, until it is removed for proper management, including designated storage locations, storage timeframes, packaging, and labeling.

5. Instructions for documenting and notifying the department of receipt and ultimate disposition of unauthorized waste.

D. A written operations plan that includes, at a minimum:

1. A general description of the overall process and equipment used. The plan shall include the following: hours of operation; process rate; procedures for daily startup; methods, containers, and other devices for the collection, off-loading, tipping, and conveyance of regulated medical waste from the point of generation or receipt to areas for processing; normal loading, unloading, and waste handling procedures; and timeframes for transfer or treatment.

2. Protocols for packaging and labeling regulated medical waste for treatment onsite or transport offsite, including protocols for labeling or marking wheeled carts, containers, conveyance systems, or other items used for moving regulated medical waste.

3. Procedures for temporary onsite storage of regulated medical waste until it is collected for treatment onsite or transport offsite. The plan shall identify each storage location and capacity, the maximum length of time the waste will be stored, and procedures used to document compliance with required storage timeframes.

4. Methods and equipment used to empty, clean, and disinfect reusable containers in accordance with 9VAC20-121-130, including types and quantities of reusable containers and disinfectant to be used, disinfection procedures utilized between uses, and final disposal in case of damage or wear and tear. The plan shall also include a description of appropriate personal protective equipment, such as puncture and leak resistant gloves, safety glasses or face shield, protective coveralls or bib, protective footwear, and mask or respiratory protection as needed, used to protect personnel when cleaning and disinfecting reusable containers.

5. Procedures for spill prevention and response and how spilled waste will be collected, packaged, and the spill area decontaminated in accordance with 9VAC20-121-140. This includes locations and contents of all spill containment and cleanup kits.

6. Names, addresses, and telephone number of final treatment or ultimate disposal facilities to be used for untreated waste and treated residues, facility-generated wastes, unauthorized waste, hazardous waste, radioactive waste, and other waste bypassed or disposed.

7. A description of equipment and procedures used to control access to areas used for the storage, transfer, and treatment of regulated medical waste. The plan shall identify all entry and exit points where access is controlled.

8. Methods and equipment used for routine cleaning and disinfection of facility equipment, floors, vehicles, and other surfaces that come into contact with regulated medical waste.

9. Measures used to control and monitor for fire, dust, noise, litter, odors, vectors, and blowing debris at the facility.

10. Collection and management of effluent, wash water, and other runoff from facility floors, storage and processing areas, waste compactors, and reusable container cleaning and disinfection areas, including location and discharge of drains.

11. Identification of all appropriate personal protective equipment, such as puncture and leak resistant gloves, safety glasses or face shield, protective coveralls or bib, protective footwear, and mask or respiratory protection as needed, and when the items are used to protect personnel managing regulated medical waste at the facility. The plan shall also include a description of donning and offing procedures for personal protective equipment.

12. A self-inspection plan that at a minimum includes copies of the inspection checklists that comply with 9VAC20-121-230 U along with a description of the types of potential problems and corrective actions that may result from the inspections.

13. A schedule and description of initial and annual refresher training to be provided to employees in-person, in a language they can understand, including interactive training, and the types and numbers of adequately trained personnel. Initial training shall be provided within seven working days of employment, and annual refresher training shall be provided within one year from the date of the last training. Training shall include:

a. Operational procedures in accordance with 9VAC20-121-230 V;

b. Protocols to recognize, manage, document, and report unauthorized waste in accordance with 9VAC20-121-230 K;

c. Procedures for retraining staff when noncompliance or other incidents occur; and

d. Any other specialized waste training specific to the job function.

14. Procedures for recordkeeping in accordance with 9VAC20-121-340. The procedures shall address how inventory will be managed and methods used to track, link, and document specific incoming waste loads to specific outgoing waste loads.

15. A description of the type and estimated daily quantity of any facility-generated waste residues and procedures for handling and disposal of the residues.

E. A written treatment plan for each unit used to treat regulated medical waste that meets the standards of 9VAC20-121-240 and 9VAC20-121-250 and includes at a minimum:

1. A detailed description of the treatment technology to be used, including:

a. An overview of the treatment process and description of the treatment unit, including manufacturer, model name or number, and treatment capacity;

b. Procedures for equipment startup and shut down including warm-up, loading and unloading wastes, and anticipated load size during routine operation;

c. A description of built-in automatic controls and fail safe mechanisms to ensure the waste cannot bypass the treatment process;

d. If applicable, methods used to grind, shred, or puncture containers or packaging before, during, or after treatment, along with the methods to prevent exposure to the waste; contain any aerosol, bioaerosol, or mists caused by the process; and treat or filter any air evacuated from the chamber during processing;

e. If applicable, methods to transfer from a grinder or shredder to or from a treatment unit under forced draft ventilation that removes fumes from the operations area to a safe discharge;

f. Methods for maintaining negative pressure atmospheric control in the vessel and filtering all vents, discharges, and fugitive emissions of air from the process units through a high efficiency particulate air (HEPA) filter with efficiency of 99.97% for 0.3 microns. Installation and maintenance of filters shall be specified;

g. Methods to manage effluent including location and discharge of drains; and

h. A description of preventative maintenance that is performed on the treatment unit, including on engineering and electronic controls.

2. Identification of acceptable waste types to be treated and a listing of types of wastes that shall not be treated.

3. Treatment unit operating parameters (e.g., cycle duration, temperature, pressure, chemical concentration, irradiation exposure time, or other treatment parameters as applicable) and a description of how the operating parameters will be monitored and recorded, including number, type, and location of parametric monitoring devices, thermochemical indicators, and thermochemical recording devices, as applicable for routine operation.

4. Identification of the biological indicators to be used and documentation that lack of growth in the treated indicator corresponds to a 6 Log₁₀ reduction of viable spores. An explanation of why each indicator is suitable for the treatment process and wastes to be treated, including referencing any standards, guidelines, or information from peer reviewed journals, shall be included. The facility shall also specify the:

a. Type of biological indicators (spore strip, suspension, or self-contained), including a copy of the supplier's certificate of performance (or certificate of analysis) that identifies the organism (genus, species, strain, and population), purity, and for thermal treatment systems (including autoclaves) the D-value, and Z-value;

b. Estimated shelf life and storage conditions to be maintained;

c. Culture medium, incubation procedures, and incubation time (for self-contained biological indicators) and the media, growth, and culture conditions (for non-self-contained biological indicators), including how the results are to be interpreted and recorded;

d. Carrier system or material and primary packaging;

e. Relative resistance to temperature, pressure, chemicals, irradiation, infectious agents, or any other conditions used in the treatment process; and

f. Number, location, and placement of untreated (control) and treated indicators relative to the coldest spot in the treatment unit as identified by the manufacturer.

5. Number, type, and placement of thermochemical indicators, including a description of how results will be interpreted and recorded.

6. A validation plan that includes a detailed description of the validation testing protocol used to demonstrate effective treatment by each treatment unit that meets the standards of 9VAC20-121-260 and includes:

a. Surrogate waste load composition, including packaging type, porosity, relative percentages of inorganic and organic components, moisture content, thermal resistance, and a relative breakdown of solid components, such as blood culture bottles, plastics (including suction canisters), microbiological waste, and sharps;

b. Load configuration including packing density, orientation, and load size;

c. Number, type, and location or placement of biological indicators; thermochemical indicators; thermochemical recording devices; and any other methods used to monitor operating parameters and accuracy of parametric monitoring devices during validation runs to ensure that the gauge or electronic read-out is a true reflection of conditions inside the treatment unit;

d. A description of how the results will be interpreted and documented; and

e. Identification of who will conduct the validation testing.

7. A detailed description of the periodic challenge testing procedures used to evaluate the effectiveness of each treatment device under full loading, which meets the standards of 9VAC20-121-270 and includes:

a. Frequency of challenge testing to be performed;

b. Number, type, and location or placement of biological and thermochemical indicators, and other methods used to monitor operating parameters;

c. A description of how the results will be interpreted and documented;

d. Procedures used to address challenge test failures, including evaluating and correcting any issues with the treatment cycle and unit, and management of untreated regulated medical waste to include temporary storage or diversion to another approved facility for treatment or disposal; and

e. Procedures for reporting failing results of challenge testing to the department in accordance with 9VAC20-121-340.

8. Identification of all appropriate personal protective equipment, such as puncture and leak resistant gloves, safety glasses or face shield, protective coveralls or bib, protective footwear, and mask or respiratory protection as needed, and when the items are used to protect personnel.

9. Safety procedures used to minimize occupational exposure and prevent physical injury to operators during loading, unloading, and treatment cycle.

10. Procedures for handling and disposing of treated wastes, including packaging, labeling, and transport.

11. A copy of the treated waste disposal plan in accordance with 9VAC20-121-280 D.

F. A written emergency contingency plan that describes the organized, planned, coordinated courses of action to be followed in the event of emergencies and nonoperation. In addition to submission to the department, the plan shall be provided to the local police and fire departments, local emergency manager, and local emergency health coordinator. The plan shall include:

1. Procedures to minimize hazards to human health and the environment from utility failure, fires or explosions, spills, leaks and releases, and exposure to regulated medical waste.

2. A description of the actions facility personnel shall take in the event of various emergency situations (fire, explosion, catastrophic loss, temporary shutdown, release of regulated medical waste or regulated medical waste constituents, or other incident that could threaten human health or the environment), including evacuation procedures.

3. A list of available fire protection and emergency equipment, and appropriate uses, such as fire extinguishers, emergency safety showers, eye wash stations, spill control materials, and alarm systems.

4. Procedures to be employed in the event of equipment breakdown or maintenance events, including standby equipment, extension of operating hours, or diversion of waste to another facility.

5. A list of onsite and offsite backup equipment with names and telephone numbers where offsite equipment may be obtained.

6. Provisions for loading, unloading, storage, transfer, treatment, or other disposal capabilities to be used during emergency situations, including when the facility downtime exceeds 24 hours.

7. The designation of alternate treatment areas or plans for transfer of stored waste in the event facility or system downtime exceeds 72 hours.

8. Procedures for spill cleanup and decontamination following a release of regulated medical waste.

9. A description of arrangements made with the local police and fire department that allow for immediate entry into the facility by their authorized representatives should the need arise, such as in the case of response personnel responding to an emergency situation.

10. The telephone numbers for local fire and police departments.

11. An identification of personnel designated as emergency coordinators. A list of names, addresses, and phone numbers (office and home) of all persons qualified to act as an emergency coordinator for the facility. Where more than one person is listed, one shall be named as primary emergency coordinator and the other shall be listed in the order in which they will assume responsibility as alternates. The emergency coordinator must be onsite or on-call and is responsible for responding to emergencies and coordinating emergency response measures.

12. A description of where and how emergency response information will be posted.

G. A written closure plan that identifies the steps necessary to completely close the facility or unit at its full operation under the permit conditions, which includes:

1. Procedures for removal of regulated medical waste, treated residue, and other materials for proper treatment or disposal;

2. Methods for cleaning and disinfecting the unit or facility and all related equipment, structures, and surfaces;

3. A description of any sampling to be conducted to ensure the facility has been decontaminated;

4. A schedule for final closure including, as a minimum, the anticipated date when wastes will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates that will allow tracking of the progress of closure; and

5. Actions necessary for facility abandonment or uses other than for regulated medical waste management.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-340 Recordkeeping and reporting required of a permittee

A. Regulated medical waste management facilities having coverage under a permit-by-rule shall maintain and retain records and reports as required by this chapter.

B. A facility shall retain records whenever monitoring is required.

1. The facility shall retain records of all monitoring information, including all calibration and maintenance records and all original recordings for continuous monitoring instrumentation, for at least three years from the sample or measurement date. The director may request that this period be extended.

2. Records of monitoring information shall include:

a. The date, exact place, and time of sampling or measurements;

b. The name of the individuals who performed the sampling or measurements;

c. The date analysis were performed;

d. The name of the individuals who performed the analysis;

e. The analytical techniques or methods used; and

f. The results of such analyses.

C. The facility must maintain accurate written or digital records as required by this chapter. Records shall include all records required by the facility permit, this chapter, or other applicable regulations. Records must be maintained at the facility or another location approved by the department for at least three years from the date of the record, sample or measurement date, treatment date, shipping date, or receipt date. The department may request that this period be extended. Records shall be available for review by the department as requested.

D. The facility shall maintain a regulated medical waste management plan in the operating record in accordance with 9VAC20-121-330.

E. The owner or operator of a regulated medical waste management facility under a permit-by-rule that transfers or treats regulated medical waste, except for a captive regulated medical waste management facility, shall submit a Solid Waste Information and Assessment report to the department by March 31 of each year in accordance with 9VAC20-81-80.

F. A disclosure statement identifying all key personnel as required by § 10.1-1408.1 of the Code of Virginia shall be on file with the department and updated on a quarterly basis as necessary. At least one operator listed as key personnel on the facility's disclosure statement shall be licensed by the Board for Waste Management Facility Operators as required by § 10.1-1408.2 of the Code of Virginia.

G. If regulated medical waste is received from offsite, records shall be maintained for three years following receipt of the waste and shall include the date of receipt, name of each offsite generator, transporter, type and quantity (weight or volume) of waste received, and dates of subsequent treatment onsite or shipment offsite. The facility shall maintain a signed certificate, contract, or equivalent document for each load or inclusive of all loads received from offsite in which the generator affirms that the load does not contain hazardous waste or radioactive materials, unless the facility is permitted to receive those types of wastes.

H. If regulated medical waste is shipped or transferred offsite, the facility shall maintain records, including copies of all shipping papers, specifying the date of shipment, type, and quantity (weight or volume) of waste removed from the site and the names, addresses, and telephone numbers of both the transporters and the destination facility receiving the shipments for treatment or disposal.

I. A regulated medical waste treatment facility shall maintain an onsite treatment log at each treatment unit that is complete for the preceding three-year period. The log shall record the date, start time, end time, and operator of each treatment cycle; the type and quantity (weight or volume) of regulated medical waste treated onsite; monitoring records for the operating parameters (e.g. time, temperature, pressure, and chemical concentration) achieved throughout each treatment cycle; and the results of all validation and periodic challenge testing. Monitoring records shall include original recordings for continuous monitoring instrumentation and parametric controls as well as the results of all biological and thermochemical indicators. Where multiple treatment units are used, a working log can be maintained at each unit and such logs periodically consolidated at a central location as long as the records distinguish which treatment unit is applicable to each record. The consolidated logs shall be retained for three years and be available for review.

J. The facility shall retain records of all unauthorized waste in accordance with 9VAC20-121-230 K.

K. The facility must maintain a record of self-inspections in an inspection log. The log must include the date and time of the inspection, the name of the inspector, a description of the inspection, including the identity of the specific equipment and structures inspected, observations recorded, and the date and nature of any remedial actions implemented or repairs made.

L. Written documentation of all training received by each employee, including the date and topics of the training, shall be maintained in the facility's operating record.

M. A regulated medical waste management facility shall be subject to the following reporting requirements. The facility shall report to the department any noncompliance, emergency, or unusual condition that may endanger health, the environment, or the facility's operation. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission shall also be provided within five working days of the time the facility becomes aware of the circumstances. The written report shall contain a description of the circumstances and its cause; the period of occurrence, including exact dates and times; and if the circumstance has not been corrected, the anticipated time it is expected to continue. It shall also contain steps taken or planned to reduce, eliminate, and prevent reoccurrence of the circumstances resulting in an unusual condition or noncompliance, to include retraining of staff as necessary. Reportable conditions include:

1. Any interruption to operations that requires implementation of the facility's emergency contingency plan or diversion of regulated medical waste to another management facility;

2. Releases or discharges of regulated medical waste from a fire, explosion, storm, or other emergency that could endanger human health or the environment outside the facility;

3. Unauthorized discharge of effluent, wash water, waste, or other pollutant to surface water (i.e., offsite, natural water body or tributary, including wetlands);

4. Spills of regulated medical waste in any areas not protected from the elements, such as outside of a building;

5. Storage of regulated medical waste beyond capacity or storage timeframes;

6. Failing results of periodic challenge testing;

7. Receipt or discovery of unauthorized waste;

8. Receipt of Category A waste; and

9. Shipment of regulated medical waste offsite in inappropriate packaging.

N. Copies of all reports required and records of all data used to complete the permit-by-rule application must be retained for at least three years from the date of the report or application. The director may request that this period be extended.

O. When the permittee becomes aware that the permittee failed to submit any relevant facts or submitted incorrect information in a permit-by-rule application or in any report to the department, the permittee shall promptly submit such omitted facts or the correct information with an explanation.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Part VI Variance Application Procedures

9VAC20-121-400 General

A. Any person affected by this chapter may apply to the department for a variance from any requirement of this chapter. Variance determinations shall be subject to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The department shall not accept any variance application relating to:

1. Equivalent testing or analytical methods contained in EPA Publication SW-846;

2. A change in the regulatory requirements that the applicant is currently violating until such time as the violation has been resolved through the enforcement process.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

9VAC20-121-410 Variance to requirements

A. The director may grant a variance from any regulation contained in Part III (9VAC20-121-100 et seq.) through Part V (9VAC20-121-300 et seq.) of this chapter to an applicant if the applicant demonstrates to the satisfaction of the director that:

1. a. Strict application of the regulation to the facility will result in undue hardship that is caused by the applicant's particular situation;

b. The alternate is equally protective of human health and the environment as that provided for in the regulations; or

c. Technical conditions exist that make a strict application of the regulation difficult to achieve; and

2. Granting the variance will not result in an unreasonable risk to the public health or the environment.

B. Effects of the decisions.

1. When the director renders a decision under this section in accordance with the procedures contained in 9VAC20-121-420, the director may:

a. Deny the application;

b. Grant the variance as requested; or

c. Grant a modified or partial variance.

2. When a variance is granted, the director may:

a. Specify the termination date of the variance; or

b. Include a schedule for:

(1) Compliance, including increments of progress, by the facility with each requirement of the variance; and

(2) Implementation by the facility of such control measures as the director finds necessary in order that the variance may be granted.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023; Errata, 39:15 VA.R. 2075 March 13, 2023.

9VAC20-121-420 Administrative procedures

A. Persons requesting variance from a provision of this chapter shall submit an application for such variance in accordance with this section.

1. All applications submitted to the director shall include:

a. The applicant's name and address;

b. A statement of applicant's interest in the proposed action;

c. A description of the desired action and a citation to the regulation from which a variance is requested;

d. A description of the need and justification for the proposed action;

e. The duration of the variance, if applicable;

f. The potential impact of the variance on public health or the environment;

g. Other information believed by the applicant to be pertinent; and

h. The following statements signed by the applicant or his authorized representative:

"I certify that I have personally examined and am familiar with the information submitted in this application and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

2. In addition to the general information required of all applicants under this part:

a. To be successful the applicant shall address the applicable standards and criteria;

b. An explanation of the applicant's particular situation that prevents the facility from achieving compliance with the cited regulation; and

c. Other information as may be required by the department.

B. The variance application shall be processed in accordance with this subsection.

1. After receiving an application that includes the information required in subsection A of this section, the director will determine whether the information received is sufficient to render the decision. If the information is deemed to be insufficient, the director will request that additional information be furnished.

2. The applicant may submit the additional information requested or may demonstrate that the additional information should not be required. If the director agrees that the additional information should not be required, the director will act in accordance with subdivision 3 of this subsection.

3. After the application is deemed complete:

a. The director will make a tentative decision to grant or deny the variance request.

b. If the variance request is tentatively denied, the director will offer the applicant the opportunity to withdraw the request, submit additional information, or proceed with the evaluation.

c. The director will issue a notice tentatively granting the variance request. Notification of this tentative decision will be provided by newspaper advertisement in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days.

d. After evaluating all public comments, the director will, within 15 days after the expiration of the comment period:

(1) Notify the applicant of the final decision; and

(2) Notify all persons who commented on the tentative decision.

C. Decision resolution.

1. In the case of a denial, the applicant has a right to request a formal hearing to challenge the rejection.

2. If the director grants a variance request, the notice to the applicant shall provide that the variance may be terminated upon a finding by the director that the applicant has failed to comply with any variance requirements.

History

• Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 257.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 13, eff. March 15, 2023.

Chapter 150 Waste Tire End User Reimbursement Regulation

Part I Definitions

9VAC20-150-10 Definitions

A. The definitions set out in Part I of the Solid Waste Management Regulations (9VAC20-81) are incorporated by reference.

B. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Applicant" means any person or persons seeking reimbursement under this chapter.

"Asphalt pavement containing recycled rubber" means any hot mix or spray applied binder in asphalt paving mixture that contains rubber from waste tire materials which is used for asphalt pavement base, surface course or interlayer, or other road and highway related uses.

"Authorized signature" means the signature of an individual who has authority to sign on behalf of, and bind, the applicant.

"Available funds" means for a given fiscal year, a maximum of 80% of the previous fiscal year's collection of the waste tire tax plus 85% of nonobligated carryover funds at the end of the previous fiscal year.

"Burning" means the controlled burning of waste tire materials for the purpose of energy recovery.

"Collector" means a person who receives waste tires from a generator or hauler for the purpose of delivery to a permitted storage, processing, or disposal facility.

"Cost of use" means the equipment, leasehold improvements, buildings, land, engineering, transportation, operating, taxes, interest, and depreciation or replacement costs of using waste tire materials incurred by the end user after deducting any tipping fee received by the end user.

"Daily cover" means using waste tire material as an alternate cover placed upon exposed solid waste to control disease vectors, fires, odors, blowing litter and scavenging without presenting a threat to human health and the environment.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or the director's designee.

"Embankment" means a raised earthen structure to carry a roadway.

"End user" means:

1. For resource recovery, the person who utilizes the heat content or other forms of energy from the incineration or pyrolysis of waste tires, chips, or similar materials;

2. For other eligible uses of waste tires, the last person who uses the waste tires, chips, or similar materials to make a product with economic value. If the waste tire is processed by more than one person in becoming a product, the end user is the last person to use the tire as a tire, tire chips, or as similar material. A person who distributes tire chips or similar materials and gives or sells them to another person to use is not an end user.

"Energy recovery" means utilizing the heat content or other forms of energy from the burning or pyrolysis of waste tire materials.

"Fill material for construction" means the material is used as a base or sub-base under the footprint of a structure, a paved parking lot, sidewalk, walkway or similar application.

"Generator" means any person whose act or process produces waste tires or whose act first causes a tire to become a solid waste.

"Hauler" means a person who picks up or transports waste tires for the purpose of removal to a permitted storage, processing or disposal facility.

"Partial reimbursement" means reimbursement that does not exceed the purchase price of waste tire materials or the cost of use if the waste tire materials were not purchased.

"Passenger tire equivalent" means a measure of passenger, truck tires, and oversize tires where: One passenger car tire equals 20 pounds or 1/100 ton. One truck tire 20-24 inch rim equals 100 pounds or 1/200 ton and a tire with over 24-inch rim equals 200 pounds or greater as computed by the end user.

"Processor" means a person engaged in the processing of waste tires including, but not limited to, stamping, stripping, shredding, or crumbing; that operates under a permit issued by the local, state, or federal government or is exempt from permit requirements.

"Pyrolysis" means thermal treatment of waste tire materials to separate it into other components with economic value.

"Retreading" means processing a waste tire by attaching a new tread to make a usable tire.

"Road bed base" means the foundation of a road prepared for surfacing.

"Tipping fee" means a fee charged to a person for disposal of a waste tire.

"Tire" means a continuous solid or pneumatic rubber covering encircling the wheel of a vehicle in which a person or property is transported, or by which they may be drawn on a highway.

"Tire pile" means an accumulation of waste tire materials that violates the Solid Waste Management Regulations (9VAC20-81).

"Waste tire" means a tire that has been discarded because it is no longer suitable for its original intended purpose because of wear, damage or defect.

"Waste tire materials" means whole waste tires or waste tires that have been size reduced by physical or chemical process. This term includes waste tires or chips or similar materials as specified in §§ 10.1-1422.3 and 10.1-1422.4 of the Code of Virginia.

"Waste Tire Trust Fund" means the nonreverting fund set up by § 10.1-1422.3 of the Code of Virginia in which proceeds from the tire recycling fee are deposited.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 1.1, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 14, Issue 6, eff. November 18, 1997; Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 24, eff. July 25, 2016.

Part II General Information

9VAC20-150-20 Purpose

The purpose of this chapter is to define the types of uses eligible for partial reimbursement, to establish the procedures for application and processing of reimbursement, and to establish the amount of reimbursement.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 2.1, eff. December 20, 1994; amended, Virginia Register Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-150-25 Compliance with other requirements

Any removal or processing of waste tires must be conducted in accordance with all applicable local, state, and federal laws and regulations and in accordance with applicable departmental policies.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 24, eff. July 25, 2016.

9VAC20-150-30 (Repealed.)

History

• Historical Notes: Derived from VR672-60-1 § 2.2, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 19, Issue 6, eff. November 13, 2002; repealed Virginia Register Volume 32, Issue 24, eff. July 25, 2016.

Part III Eligibility for Reimbursement

9VAC20-150-40 End uses of waste tires eligible for reimbursement

Eligibility for Reimbursement

A. The following uses of waste tire materials will be eligible for the reimbursement if the use complies with applicable local ordinances and regulations and the Solid Waste Management Regulations (9VAC20-81) or the equivalent regulations in another state. The eligible uses are:

1. Civil engineering applications, which utilize waste tire materials as a substitute for soil, sand, or aggregate in a construction project such as land or surface applications, road bed base and embankments; fill material for construction projects; and daily cover and other substitutions at a permitted solid waste facility if the facility's permit is so modified;

2. Incineration of waste tire materials for energy recovery; and

3. Pyrolysis.

B. Producing products made from waste tire materials such as molded rubber products, rubberized asphalt, soil amendments, playground and horse arena surfacing materials, mulches, mats, sealers, etc. is eligible for end user reimbursement.

C. Uses that are not eligible for reimbursement include:

1. Reuse as a vehicle tire;

2. Retreading;

3. Burning without energy recovery; and

4. Landfilling, except use as specified in subdivision A 1 of this section.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 3.1, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 19, Issue 6, eff. November 13, 2002; Volume 27, Issue 22, eff. August 3, 2011; Volume 32, Issue 24, eff. July 25, 2016.

9VAC20-150-50 Eligible end users

A. To be eligible for a reimbursement, the applicant shall be the end user of the waste tire materials as defined in Part I of this chapter. The end user need not be located in Virginia.

B. To be eligible for a reimbursement, the waste tire materials utilized by the end user must be:

1. Waste tire materials from waste tires generated in Virginia and be documented as such according to the requirements in Part V of this chapter; and

2. Utilized through a method specified in 9VAC20-150-40.

C. Distributors of products made from waste tire materials listed in 9VAC20-150-40 B are not eligible for end user reimbursement.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 3.2, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 32, Issue 24, eff. July 25, 2016.

Part IV Reimbursement Rates

9VAC20-150-60 The amount of reimbursement for purchased material

Reimbursement Rates

As a partial reimbursement, the amount reimbursed shall be equal to the purchase price paid for the waste tire materials, subject to the maximum reimbursement rates listed in 9VAC20-150-80.

History

• Statutory Authority: §§ 10.1-1402, 10.1-1422.3, and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 4.1, eff. December 20, 1994.

9VAC20-150-70 The amount of reimbursement for material used but not purchased

As a partial reimbursement, the amount reimbursed shall be the cost of use of the waste tire materials, subject to the maximum reimbursement rates listed in 9VAC20-150-80.

History

• Statutory Authority: §§ 10.1-1402, 10.1-1422.3, and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 4.2, eff. December 20, 1994.

9VAC20-150-80 Maximum rate of reimbursement

A. The maximum amount of the reimbursement for waste tires specified in 9VAC20-150-100 A 1 shall be $22.50.

B. The maximum amount of the reimbursement for waste tires specified in 9VAC20-150-100 A 2 and A 3 shall be $100 per ton subject to available funding.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 4.3, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 12, Issue 14, eff. April 1, 1996; Volume 19, Issue 6, eff. November 13, 2002; Volume 32, Issue 24, eff. July 25, 2016.

9VAC20-150-90 (Repealed.)

Historical Notes

Derived from VR672-60-1 § 4.4, eff. December 20, 1994; repealed, Virginia Register Volume 14, Issue 6, eff. November 18, 1997.

Part V Virginia Generated Waste Tires

9VAC20-150-100 Qualification as Virginia generated waste tires

A. A Virginia generated waste tire is a waste tire that is:

1. Discarded as the result of a sale, trade, or exchange in Virginia;

2. From a Virginia tire pile that existed prior to December 20, 1994; or

3. From a Virginia tire pile that was created without the property owner's knowledge or permission.

B. Tires qualifying for subdivision A 2 or A 3 of this section must be certified as such through a field inspection conducted by the department using department form DEQ-CERT.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 5.1, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 12, Issue 14, eff. April 1, 1996; Volume 19, Issue 6, eff. November 13, 2002; Volume 32, Issue 24, eff. July 25, 2016.

9VAC20-150-110 Documentation

A. To be considered as Virginia generated waste tires eligible for reimbursement, the waste tires must be documented as such in a manner acceptable to the department. Acceptable documentation must provide at a minimum a certifying statement signed by the end user stating that the waste tires are Virginia generated in accordance with the requirements of 9VAC20-150-100. One type of acceptable documentation is form DEQ-WTC. All documentation submitted shall include the information listed in this section, as applicable.

B. Generators shall submit the following information:

1. Generator's company name;

2. Mailing address;

3. Telephone number;

4. Business identification number (ID) or Virginia driver's license number (VDL);

5. Physical location of where the waste tires were generated;

6. The number of car or light truck tires, truck tires, oversize tires, or the tire materials in tons; and

7. The following certification signed by the generator "I certify under penalty of law that the information submitted on this document is to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of a fine and imprisonment for willful violations. I further certify that, to the best of my knowledge and belief, all the waste tire materials identified by me on this document and delivered to the hauler below were generated in the Commonwealth of Virginia in accordance with the Waste Tire End User Reimbursement Regulations (9VAC20-150)."

C. Haulers shall submit the following information:

1. Hauler's company name;

2. Mailing address;

3. Telephone number;

4. Business ID or VDL;

5. The number of car or light truck tires, truck tires, oversize tires, or the tire materials in tons; and

6. The following certification signed by the hauler "I certify that the waste tire materials listed in this section of this document were received from the generator in the amounts indicated, to the best of my knowledge and belief."

D. Collectors shall submit the following information:

1. Collector's company name;

2. Mailing address;

3. Telephone number;

4. Business ID or VDL;

5. The number of car or light truck tires, truck tires, oversize tires, or the tire materials in tons; and

6. The following certification signed by the collector "I certify that the waste tire materials listed in this section of this document were received from the generator or hauler in the amounts indicated, to the best of my knowledge and belief."

E. Processors shall submit the following information:

1. Processor's company name;

2. Mailing address;

3. Telephone number;

4. Business ID or VDL;

5. The number of car or light truck tires, truck tires, oversize tires, or the tire materials in tons; and

6. The following certification signed by the processor "I certify that the waste tire materials listed in this section of this document were received from the generator, hauler, or collector in the amounts indicated, to the best of my knowledge and belief."

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 5.2, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 19, Issue 6, eff. November 13, 2002; Volume 32, Issue 24, eff. July 25, 2016.

Part VI Application Procedures

9VAC20-150-120 Application for reimbursement

Application Procedures

A. A person may apply to the department for reimbursement from the Waste Tire Trust Fund on a monthly or quarterly basis for utilizing waste tire materials if the request for reimbursement is complete and complies with other provisions of this chapter.

B. The minimum reimbursement application amount is 5,000 passenger tire equivalents or 10 tons of waste tire materials used. Lesser amounts may be considered on a case-by-case basis.

C. In order to apply for reimbursement, the utilization of the waste tire materials must occur after December 20, 1994.

D. An applicant for reimbursement must file form DEQ-EURR with the department, providing at a minimum:

1. Applicant's name and address;

2. Name and location of facility where end use occurs;

3. A description of the end use;

4. A statement of the purchase price paid for the waste tire materials or, if the waste tire materials were not purchased, the cost of use; and

5. An authorized signature.

E. An applicant for a reimbursement for utilization of waste tire materials is subject to audit by the department. Applicants shall allow access to all records related to waste tire management activities during normal business hours for the purpose of determining compliance with this chapter for five years from the date of reimbursement.

F. In addition to any other penalty imposed by law, any person who knowingly or intentionally provides false information to the department in applying for a reimbursement shall be ineligible to receive any reimbursement under this chapter.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 6.1, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 14, Issue 6, eff. November 18, 1997; Volume 32, Issue 24, eff. July 25, 2016.

Part VII Processing of Applications

9VAC20-150-130 Review of application

Processing of Applications

A. The department shall review the reimbursement application form, DEQ-EURR, for completeness and eligibility within 10 working days of receipt.

B. If an application is not complete as required in 9VAC20-150-120 D, the department may require the applicant to submit the missing information. The department may delay reimbursement until the information is received.

C. The department will process for payment all applications for reimbursement that are complete and in compliance with the regulations up to the amount of available funds. The complete applications will be processed in the order received and until available funds are exhausted. When available funds for a given fiscal year are exhausted, all remaining eligible applications will be held and paid first in the following fiscal year.

D. If an applicant believes an error has been made in the review of or response to his application, he shall notify the department in writing within 30 days of receiving the department's response. The applicant shall submit to the department a brief statement describing the believed error, and copies of any documents supporting the statement.

The department shall review the applicant's response and attached documents and may further review the matter. The department shall respond to the applicant in writing concerning the review of the information submitted by the applicant.

If the department concludes that an error has been made, the application shall be reprocessed by the department. If funds are not available, the reprocessed application shall be carried over to the next year and paid from available funds.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1422.4 of the Code of Virginia.
• Historical Notes: Derived from VR672-60-1 § 7.1, Virginia Register Volume 11, Issue 8, eff. December 20, 1994; amended, Virginia Register Volume 14, Issue 6, eff. November 18, 1997; Volume 19, Issue 6, eff. November 13, 2002; Volume 32, Issue 24, eff. July 25, 2016.

Chapter 170 Transportation of Solid and Medical Wastes on State Waters

Part I Definitions and Program Administration

9VAC20-170-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Affiliated company" means (i) any company that directly or indirectly owns, controls, or holds, with power to vote, 10% or more of the outstanding voting securities of a pure captive insurer or (ii) any company of which 10% or more of the voting securities are directly or indirectly owned, controlled, or held, with power to vote, by a parent, subsidiary, or associated company.

"Anniversary date" means the date of issuance of a financial mechanism.

"Applicant" means any and all persons seeking or holding a permit required under this chapter.

"Associated company" means any company in the same corporate system with a pure captive insurer.

"Association captive insurer" means any insurer transacting the business of insurance and reinsurance only on risks, hazards, and liabilities of the members of an insurance association.

"Beneficial use" means both instream and offstream uses of state waters. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural, electric power generation, commercial and industrial uses. Public water supply uses for human consumption shall be considered the highest priority.

"Board" means the Virginia Waste Management Board.

"Bodily injury" means the death or injury of any person incident to a waste deposit from a vessel, but not including any death, disablement, or injuries covered by workers' compensation, disability benefits or unemployment compensation law or other similar law. Bodily injury may include payment of medical, hospital, surgical, and funeral expenses arising out of the death or injury of any person. This term shall not include those liabilities that, consistent with standard insurance industry practices, are excluded from coverage in liability insurance policies for bodily injury.

"Captive insurer" means any pure captive insurer or any association captive insurer.

"Certificant" means an owner or operator who has been issued a Certificate of Financial Responsibility under this chapter.

"Certificate applicant" means an owner or operator who has applied for a Certificate of Financial Responsibility or for the renewal of a Certificate of Financial Responsibility under this chapter.

"Certificate of Financial Responsibility" or "certificate" means a Certificate of Financial Responsibility issued under Part VI (9VAC20-170-270 et seq.) of this chapter, unless otherwise indicated.

"Certified copy" means a legible copy certified as accurate by a notary public or other person authorized to take oaths in the United States.

"CFR" means Code of Federal Regulations.

"Charter by demise" means to hire for exclusive use through a lease.

"Closure" means the act of securing a solid waste management facility pursuant to the requirements of this chapter.

"Commercial transport" means transportation for the purposes of commercial carriage of solid wastes or regulated medical wastes as cargo.

"Commercial transporter" means any person who transports for the purposes of commercial carriage of solid wastes or regulated medical wastes as cargo.

"Construction demolition debris waste" or "CDD waste" means solid waste that is produced or generated during construction or destruction, remodeling, or repair of pavements, houses, commercial buildings, their foundations and other structures. Construction demolition debris wastes include, but are not limited to lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, paving materials, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids and garbage are not construction demolition debris wastes.

"Container" means any watertight structure that meets the provisions of this chapter.

"Containment and cleanup" means abatement, containment, removal and disposal of solid wastes or regulated medical wastes that have been deposited to state waters or adjoining shorelines, and the restoration of the environment to its existing state prior to a deposit of the wastes.

"Demise charterer" means a person with whom the owner of the vessel enters into a demise charter. The charterer takes over all possession and control of the vessel from the owner of the vessel and becomes subject to the duties and responsibilities of ownership. The charterer is also responsible for directing the operations of the vessel and providing the master and crew.

"Department" means the Virginia Department of Environmental Quality.

"Destination facility" means a facility that treats, disposes of, or recycles solid wastes or regulated medical wastes in accordance with applicable federal and state regulations.

"Director" means the Director of the Virginia Department of Environmental Quality or an authorized representative.

"Disclosure statement" means a sworn statement or affirmation, in such form as may be required by the director, which includes:

1. The full name and business address of all key personnel;

2. The full name and business address of any entity, other than a natural person, that collects, transports, treats, stores, or disposes of solid waste or hazardous waste in which any key personnel holds an equity interest of 5.0% or more;

3. A description of the business experience of all key personnel listed in the disclosure statement;

4. A listing of all permits or licenses required for the collection, transportation, treatment, storage or disposal of solid waste or hazardous waste issued to or held by any key personnel within the past 10 years;

5. A listing and explanation of any notices of violation, prosecutions, administrative orders (whether by consent or otherwise), license or permit suspensions or revocations, or enforcement actions of any sort by any state, federal or local authority, within the past 10 years, that are pending or have concluded with a finding of violation or entry of a consent agreement, regarding an allegation of civil or criminal violation of any law, regulation or requirement relating to the collection, transportation, treatment, storage or disposal of solid waste or hazardous waste by any key personnel, and an itemized list of all convictions within 10 years of key personnel of any of the following crimes punishable as felonies under the laws of the Commonwealth or the equivalent thereof under the laws of any other jurisdiction: murder; kidnapping; gambling; robbery; bribery; extortion; criminal usury; arson; burglary; theft and related crimes; forgery and fraudulent practices; fraud in the offering, sale, or purchase of securities; alteration of motor vehicle identification numbers; unlawful manufacture, purchase, use or transfer of firearms; unlawful possession or use of destructive devices or explosives; violation of the Drug Control Act, Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia; racketeering; or violation of antitrust laws;

6. A listing of all agencies outside the Commonwealth that have regulatory responsibility over the applicant or have issued any environmental permit or license to the applicant within the past 10 years in connection with the applicant's collection, transportation, treatment, storage, or disposal of solid waste or hazardous waste;

7. Any other information about the applicant and the key personnel that the director may require that reasonably relates to the qualifications and abilities of the key personnel or the applicant to lawfully and competently operate a solid waste management facility in Virginia; and

8. The full name and business address of any member of the local governing body or planning commission in which the solid waste management facility is located or proposed to be located, who holds an equity interest in the facility.

"Existing facility" means any receiving facility that is constructed prior to July 2, 2003.

"Generator" means any person, by site, whose act or process produces solid wastes or regulated medical wastes, or whose act first causes solid wastes or regulated medical wastes to become subject to this chapter.

"Insurance association" means any group of individuals, corporations, partnerships, associations, or governmental units or agencies whose members collectively own, control, or hold with power to vote all of the outstanding voting securities of an association captive insurer.

"Key personnel" means the applicant itself and any person employed by the applicant in a managerial capacity, or empowered to make discretionary decisions, with respect to the solid waste or hazardous waste operations of the applicant in Virginia, but shall not include employees exclusively engaged in the physical or mechanical collection, transportation, treatment, storage, or disposal of solid or hazardous waste and such other employees as the director may designate by regulation. If the applicant has not previously conducted solid waste or hazardous waste operations in Virginia, the term also includes any officer, director, partner of the applicant, or any holder of 5.0% or more of the equity or debt of the applicant. If any holder of 5.0% or more of the equity or debt of the applicant or of any key personnel is not a natural person, the term includes all key personnel of that entity, provided that where such entity is a chartered lending institution or a reporting company under the Federal Security and Exchange Act of 1934, the term does not include key personnel of such entity. Provided further that the term means the chief executive officer of any agency of the United States or of any agency or political subdivision of the Commonwealth, and all key personnel of any person, other than a natural person, that operates a landfill or other facility for the disposal, treatment or storage of nonhazardous solid waste under contract with or for one of those governmental entities.

"Leachate" means a liquid that has passed through or emerged from solid waste or regulated medical waste and contains soluble, suspended, or miscible materials from such waste. Leachate and any material with which it is mixed is solid waste; except that leachate that is pumped from a collection tank for transportation to disposal in an off-site facility is regulated as septage, and leachate discharged into a wastewater collection system is regulated as industrial wastewater.

"Load Line Certificate" means a certificate issued by the American Bureau of Shipping (ABS) or other similarly qualified organizations authorized by the Secretary of Transportation (U.S. Department of Transportation) to the owner of the vessel, in accordance with 46 USC Chapter 51.

"Manifest" means the shipping document originated and signed by the generator in accordance with the provisions of this chapter. For transportation of regulated medical wastes, the hazardous materials shipping paper requirements under 49 CFR Part 172 Subpart C may be reflected in the manifest.

"Medical waste" or "regulated medical waste" means solid wastes defined to be regulated medical wastes by Part II of the Regulated Medical Waste Management Regulations (9VAC20-121). Solid waste packaged as regulated medical waste is regulated medical waste. Medical wastes that have been sterilized, treated or incinerated in accordance with the Regulated Medical Waste Management Regulations (9VAC20-121) are no longer considered as regulated medical waste.

"Navigable waters of the Commonwealth" means state water being used or susceptible of being used, in its natural and ordinary condition, as a highway for commerce, on which trade and travel are or may be conducted in the customary modes of trade and travel on water.

"New facility" means any receiving facility that is constructed on or after July 2, 2003.

"Odors" means any emissions that cause an odor objectionable to individuals of ordinary sensibility.

"Operator" means, in the case of a receiving facility, any person responsible for the overall operation of a receiving facility that handles solid wastes or regulated medical wastes. In the case of a vessel, it means any person who operates, charters by demise, rents or otherwise exercises control over or responsibility for a vessel.

"Owner" means, in the case of a receiving facility, any person who owns a receiving facility or part of a receiving facility that handles solid wastes or regulated medical wastes as cargo for hire. In the case of a vessel, it means any person who owns a vessel or a part of a vessel that transports solid wastes or regulated medical wastes as cargo for hire.

"Parent" means a corporation, partnership, governmental unit or agency, or individual who directly or indirectly owns, controls or holds, with power to vote, more than 50% of the outstanding voting securities of a pure captive insurer.

"Permit by rule" means provisions including public participation of this chapter stating that a facility or activity is deemed to have a permit if it meets the requirements of the provision.

"Person" means an individual, trust, firm, joint stock company, corporation including a government corporation, partnership, association, any state or agency thereof, municipality, county, town, commission, political subdivision of a state, any interstate body, consortium, joint venture, commercial entity, the government of the United States or any unit or agency thereof.

"Property damage" means the loss or destruction of, or damage to, the property of any third party including any loss, damage or expense incident to a waste deposit from a vessel. This term shall not include those liabilities that, consistent with standard insurance industry practices, are excluded from coverage in liability insurance policies for property damage.

"Provider of financial responsibility" means an entity that provides financial responsibility to an owner and operator of a vessel transporting solid wastes or regulated medical wastes through one of the mechanisms listed in 9VAC20-170-310, including a financial institution, surety, or issuer of a letter of credit.

"Public vessel" means a vessel that is owned or demise chartered and operated by the United States government or a government of a foreign country and that is not engaged in commercial service.

"Pure captive insurer" means any insurer transacting the business of insurance and reinsurance only on risks, hazards, and liabilities of its parent, subsidiary companies of its parent, and associated and affiliated companies.

"Receiving facility" means a facility, vessel or operation that loads or off-loads solid wastes or regulated medical wastes transported upon the navigable waters of the Commonwealth by a commercial transporter.

"Solid waste" means any garbage, refuse, sludge and other discarded material, including solid, liquid, semisolid or contained gaseous material, resulting from industrial, commercial, mining and agricultural operations, or community activities but does not include (i) materials regulated as hazardous wastes under the Virginia Hazardous Waste Management Regulations (9VAC20-60); (ii) scrap metal, dredged material, recyclable construction demolition debris being transported directly to a processing facility for recycling or reuse and source-separated recyclables; (iii) solid or dissolved material in domestic sewage; (iv) solid or dissolved material in irrigation return flows or in industrial discharges that are sources subject to a permit from the State Water Control Board; or (v) source, special nuclear, or byproduct material as defined by the Federal Atomic Energy Act of 1954, as amended.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction.

"Subsidiary company" means any corporation of which 50% or more of the outstanding voting securities are directly or indirectly owned, controlled, or held, with power to vote, by a parent or by a company that is a subsidiary of the parent.

"Surface water" means any water in the Commonwealth, except ground water as defined in § 62.1-255 of the Code of Virginia.

"Transport" or "transportation" means any movement of solid wastes or regulated medical wastes, and any packing, loading, unloading or storage incidental thereto.

"USC" means the U.S. Code.

"Vehicle" means any motor vehicle, rolling stock or other artificial contrivance for transport whether self-propelled or otherwise, except vessels.

"Vessel" includes every description of watercraft or other contrivance used as a means of transporting on water, whether self-propelled or otherwise, and shall include barges and tugs.

"Waste deposit" or "deposit of waste" means any solid waste or regulated medical waste from a vessel or a receiving facility that is placed, discharged, spilled, dropped, or leaked into state waters or adjoining shorelines.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003; amended, Virginia Register Volume 26, Issue 11, eff. March 3, 2010; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-170-20 Purpose

This chapter establishes standards and procedures pertaining to the commercial transport, loading and off-loading of solid wastes or regulated medical wastes upon the navigable waters of the Commonwealth to the extent allowable under state law in order to protect the public health, safety and welfare, and to protect the environment and natural resources from pollution, impairment or destruction.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-30 Applicability

A. This chapter applies to each owner and/or operator of a vessel transporting solid wastes or regulated medical wastes for the purposes of commercial carriage as cargo, and each owner or operator of a receiving facility. This chapter also applies to the receiving facilities and vessels transporting solid wastes or regulated medical wastes upon the navigable waters of the Commonwealth to the extent allowable under state law.

B. This chapter does not apply to a public vessel as defined under 9VAC20-170-10, the owner and operator of a public vessel, vessels transporting solid wastes or regulated medical wastes incidental to their predominant business or purposes, vessels transporting solid wastes or regulated medical wastes generated during normal operations of the vessel, solid wastes or regulated medical wastes generated during the normal operations of the vessel, and solid wastes excluded or conditionally exempted pursuant to 9VAC20-81-95 of the Solid Waste Management Regulations.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003; amended, Volume 27, Issue 22, eff. August 3, 2011.

9VAC20-170-40 Relationship to other regulations

A. The Solid Waste Management Regulations (9VAC20-81) prescribe requirements for the solid waste management facilities in general. While a facility utilized to receive solid wastes or regulated medical wastes transported, loaded, or unloaded upon the navigable waters of the Commonwealth, to the extent allowable under state law, by a commercial transporter is a solid waste management facility, this chapter herein prescribes specific requirements, including siting, design/construction, operation, and permitting, for this type of facilities. If there is any overlapping requirement between these two regulations, whichever is more stringent shall apply.

B. The Regulated Medical Waste Management Regulations (9VAC20-121) address special needs for regulated medical waste management. A facility utilized to receive regulated medical waste transported, loaded, or unloaded upon the navigable waters of the Commonwealth, to the extent allowable under state law, by a commercial transporter is a regulated medical waste facility and it must conform to any applicable sections of the Regulated Medical Waste Management Regulations adopted by the board. If there is any overlapping requirement between these two regulations, whichever is more stringent shall apply.

C. This chapter does not exempt any receiving facility from obtaining a Virginia Water Protection Permit as required by the Virginia Water Protection Permit Program Regulation (9VAC25-210), whenever it is applicable.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003; amended, Volume 27, Issue 22, eff. August 3, 2011; Volume 40, Issue 5, eff. November 22, 2023.

9VAC20-170-50 Enforcement, inspections, and right of entry

A. Any person violating any requirement of this chapter, except for those enforced by the U.S. Department of Transportation and the U.S. Coast Guard, is liable for a civil penalty of not more than $25,000 per violation. Each day of a continuing violation is a separate violation.

B. The owner or operator of a receiving facility or a vessel shall allow the director or his designee, upon presentation of appropriate credentials or other documents as may be required by law, to:

1. Enter at reasonable times upon any premises where a regulated facility or activity is located or conducted, or where records must be kept under the provisions of this chapter;

2. Have access to and copy, at reasonable times, any records that must be kept under the provisions of this chapter;

3. Inspect at reasonable times any facilities, equipment, practices, or operations regulated or required under the provisions of this chapter; and

4. Sample or monitor at reasonable times, for the purposes of assuring compliance with the provisions of this chapter.

C. The regulations of the U.S. Department of Transportation and the U.S. Coast Guard are enforced by those federal agencies. Information on possible violations of federal rules will be referred to the federal agency for enforcement.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-60 Delegation of authority

The director may perform any act of the board provided under this chapter, except as limited by § 10.1-1405 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

Part II Standards for Containers

9VAC20-170-70 Design, operation and maintenance of containers

Standards for Containers

A. All transportation of solid waste or regulated medical waste on state waters shall be in containers meeting the specifications and standards specified in this section.

B. Each container must meet the following:

1. Each container shall be watertight and shall be designed, constructed, loaded, operated, secured and maintained so as to prevent the escape of wastes, liquids, and odors and to prevent the loss or spillage of wastes in the event of an accident.

2. Each container shall be stacked no higher on barges than allowable under federal law, and shall be secured to the barges to prevent accidents during transportation, loading and unloading.

3. Each container shall be completely enclosed, rigid, and constructed of nonpermeable material.

4. Each container shall meet all applicable U.S. Department of Transportation specifications.

5. Waste that is rocks, brick, cement block, uncontaminated dirt, broken concrete or road pavement and contains no paper, vegetative waste, wallboard or wood waste may be contained in covered barges without other containerization and the barge itself shall be considered the container if the following requirements are met:

a. The barge shall fully comply with all other requirements of this section, 9VAC20-170-70, except subdivisions D1, D2 and D3 a, and subsection E of this section.

b. The waste shall be free of municipal waste, sludge, hazardous waste, regulated medical waste, radiological waste, putrescible waste, ash, waste that gives off gases or objectionable odors, petroleum products, industrial chemicals, industrial waste, or any waste that causes a nuisance.

C. Each container shall be identified on a manifest in accordance with 9VAC20-170-100 and be accompanied by a current certificate from the owner of the container that it has been tested and found to be watertight in accordance with the requirements of this part.

D. Each container shall be certified for special service by a delegated approval authority approved by the U.S. Coast Guard in accordance with 49 CFR Parts 450 through 453 as having met the requirements for the approval of prototype containers described in Sections 1.5 and 1.17.2 of the Rules for Certification of Cargo Containers, 1998, American Bureau of Shipping, including a special container prototype test as follows: a minimum internal head of three inches of water shall be applied to all sides, seams, bottom and top of the container for at least 15 minutes on each side, seam, bottom and top, during which the container shall remain free from the escape of water. Delegated approval authority certification shall include, at least, the following items.

1. Each container shall be certified and bear a plate (CSC plate) showing certification of compliance with the International Convention for Safe Containers standards for ocean shipping containers (1972 (CSC), 1996 Edition).

2. Each container shall be certified as meeting the American Bureau of Shipping's general specifications (see Section 6 of the Rules for Certification of Cargo Containers, 1987, American Bureau of Shipping), including weathertightness for general service. Each container shall have affixed to it in a visible and accessible location a decal including the ABS general service emblem, special service emblem, a notice and date of certification, and the names, addresses and telephone numbers of the person performing the test and the owner of the container.

3. Each container shall be certified as having passed the following test when it is placed in service and at least once every six months thereafter while it remains in service:

a. Each container shall have a minimum internal head of 24 inches of water applied to the container in an upright position for at least 15 minutes during which the container shall remain free from the escape of water. All wastewater and contaminated water resulting from this test procedure shall be disposed of in compliance with the applicable regulations of the State Water Control Board.

b. Each container shall be visually inspected for damage on all sides, plus the top and bottom and must have no visible holes, gaps or structural damage affecting its integrity or performance.

E. Each container shall have affixed to it in a visible and accessible location: (i) a decal including the ABS general service emblem, a notice and date of certification, and the name and address and telephone numbers of the person performing the test and the owner of the container, (ii) a CSC plate showing compliance with the International Convention for Safe Container Standards as prescribed in this section, (iii) the delegated approval authority certification for compliance with the provisions set forth in subsection D of this section, including a notice and date of certification and the names, addresses and telephone numbers of the persons performing the task and the owner of the container, and (iv) a special service emblem.

F. Owners of all containers shall keep a record of testing of each container for, at least, the preceding three years and provide copies of those records to persons who lease or handle the container. Such records shall be available to the department for inspection at the receiving facility.

G. Following each unloading of solid waste from a container, each container shall be visually inspected, as practical, at the solid waste management facility immediately upon unloading for damage on all sides, plus top and bottom, and shall have no visible holes, gaps, or structural damage affecting its integrity or performance.

H. Notwithstanding the foregoing, during transportation, holding and storage operations or in the event of an accident, the (i) entry of liquids into a container; (ii) escape, loss or spillage of wastes or liquids from a container; or (iii) escape of odors from a container shall be a violation of this chapter.

History

• Statutory Authority: § 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 3, eff. November 19, 2003; amended, Virginia Register Volume 22, Issue 21, eff. July 26, 2006.

Part III Standards for Loading and Off-Loading Receiving Facilities Article 1 Standards for Design and Operation

9VAC20-170-80 Siting

Standards for Loading and Off-Loading Receiving Facilities

Article 1

Standards for Design and Operation

A. The receiving facility shall be adjacent to or have direct access to roads that are paved or surfaced and capable of withstanding anticipated load limits.

B. The receiving facility shall be located so as to minimize waterborne traffic congestion and navigational hazards. Sites shall allow for sufficient room to minimize land traffic congestion and allow for safe operation.

C. No loading, unloading, or receiving areas shall be located closer than 50 feet to any property line (excluding the property line along the water side), nor closer than 200 feet to any occupied dwelling, a health care facility, school or recreational park area, or similar type public institution.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-90 Design and construction of facilities

A. An all-weather road suitable for loaded transfer vehicles shall be provided from the entrance gate to the loading, unloading, or receiving area.

B. Any solid waste or liquid deriving from solid waste shall be properly managed and not be allowed to contact or mix with storm water. The loading, unloading, or receiving areas shall be constructed of easily cleanable materials; equipped with containment or diversionary structures, drains or pumps, or equivalent means to facilitate the removal of wastewater for proper storage or disposal; and equipped with appropriate storm water management systems so as to prevent storm water from contacting wastes and/or contaminating state waters.

C. Sufficient on-site queuing capacity shall be provided for the expected traffic so that the waiting transfer vehicles do not back up onto the public road.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-100 Operation

A. At facilities handling containers used to transport solid wastes or regulated medical wastes on state waters, all containers, including empty containers, shall be secured and maintained so as to prevent the escape of wastes, liquids, and odors, and to prevent the loss or spillage of wastes during transport, normal handling, and in the event of an accident.

B. No person shall load solid waste or regulated medical waste into a container to be commercially transported on state waters if the container is not fully in compliance with 9VAC20-170-70. No person shall unload solid waste or regulated medical waste from a container that is not fully in compliance with 9VAC20-170-70. No person shall receive or unload from a vessel commercially transporting container containing solid waste or regulated medical waste if the container is not fully in compliance with 9VAC20-170-70. No person shall operate a vessel commercially transporting on state waters a container of solid waste or regulated medical waste if the container is not fully in compliance with 9VAC20-170-70.

C. The owner or operator of a receiving facility shall not receive solid wastes or regulated medical wastes in containers that do not meet the requirements of this chapter. Containers shall not be received without a properly signed manifest, as specified under subsection D of this section. The owner or operator of the receiving facility shall sign and date each copy of the manifest to certify that the waste covered by the manifest was received. The owner or operator shall note any significant discrepancies on each copy of the manifest. A copy of the properly signed manifest shall be delivered to the next transporter and, subsequently, delivered to the destination facility.

D. The manifest shall include, but not be limited to, the following information:

1. An identification number of each container and a description of the container to include its total volumetric capacity and weight when empty;

2. A general description of the wastes being transported (solid wastes or regulated medical wastes) in each container;

3. The total quantity of the wastes being transported in each container;

4. The name and address of the generator, transporter or transporters, receiving facility, and destination facility; and

5. For transportation of solid wastes, a certification statement signed by the generator as follows:

"I hereby certify that the above-named materials meet the quality acceptable to the destination facility according to applicable federal and state regulations; have been properly described, classified and packaged; and are in proper condition for transportation according to applicable federal and state regulations."

For transportation of regulated medical waste, a certification statement signed by the generator as follows:

"I hereby certify that the above-named materials do not contain any radioactive, explosive, toxic, or hazardous waste as defined by 40 CFR Part 261 or the Virginia Hazardous Waste Management Regulations; have been properly described, classified, packaged, marked and labeled; and are in proper condition for transportation according to applicable federal and state regulations."

6. A certification of receipt of materials signed by the transporter or transporters, the owner or operator of the receiving facility, and the owner or operator of the destination facility.

E. Containers loaded with solid wastes or regulated medical wastes shall not be kept on site more than 72 hours once they arrive at the off-loading receiving facility by vessels during normal operation. In the event of inclement weather or equipment malfunction, containers may be kept on site up to seven days provided a written justification is filed with the appropriate department regional office. Loaded containers shall not be stacked more than two high in the loading or unloading areas.

F. Empty containers shall be maintained watertight to prevent any escape of residual wastes, liquids, and odors during normal handling and in the event of an accident. Any remaining liquids inside of the containers shall be managed as leachate.

G. The owner or operator of a receiving facility shall load and off-load solid wastes or regulated medical wastes to assure that any deposit of solid wastes or regulated medical wastes into state waters or adjoining shorelines is prevented. Receiving facilities shall employ containment or diversionary structures and any other appropriate equipment to limit the dispersion of wastes or leachate in the event of a spill.

H. In the event of a deposit of solid wastes or regulated medical wastes into state waters or adjoining shorelines as a result of any facility operation or failure of the integrity of the containers, the owner or operator of a receiving facility shall immediately notify the appropriate department regional office, the National Response Center at 1-800-424-8802, the cleanup contractor as identified under subdivision 3 g of 9VAC20-170-110, the emergency coordinator of the local jurisdiction, the local office of the state Health Department, and any federal or state wildlife or natural resource authority or private natural resource management entity whose reserves could be affected by the incident. Such verbal notification shall be followed by written notification to the department regional office within five days.

I. In the event of a deposit of solid wastes or regulated medical wastes into state waters or adjoining shorelines, the owner or operator of a receiving facility shall immediately take all necessary actions, in accordance with the receiving facility's Response and Mitigation Plan as specified under subdivision 3 of 9VAC20-170-110, to contain and remove such waste.

J. The owner or operator of the receiving facility shall have a placard located at the facility where it will be readily visible to persons involved in waste handling indicating the individuals responsible for notifying the appropriate department regional office, the National Response Center, and the cleanup contractor as identified under subdivision 3 g of 9VAC20-170-110, in the event of a deposit of solid wastes or regulated medical wastes into state waters or adjoining shorelines.

1. The telephone numbers for the individuals responsible for notification shall be visibly and legibly displayed on the placard.

2. The telephone numbers for the individuals responsible for notification shall be designated by the owner or operator of the receiving facility.

3. The individuals responsible for notification must be a supervisory employee responsible for waste handling activities or an officer of the company owning or operating the receiving facility who is responsible for some aspect of waste handling activities (e.g., vice president in charge of operations).

K. Adequate numbers and types of properly maintained equipment shall be available for operation. Provision shall be made for substitute equipment to be available within 24 hours should the former become inoperable or unavailable. In the event of a deposit of solid wastes or regulated medical wastes into state waters or adjoining shorelines, and initiation of cleanup activities, operation shall not be continued unless adequate cleanup equipment is available on site and cleanup is proceeding in an effective and expeditious manner.

L. The receiving facility shall operate under the direct supervision of a Class I waste management facility operator licensed by the Board for Waste Management Facility Operators. During the facility's operating hours, the licensed operator shall be present at the facility or be readily available to direct the facility personnel in the proper handling of solid wastes or regulated medical wastes.

M. An operating record to include date, quantity by weight or volume, source and type of the wastes received and processed shall be maintained on site for at least three years and be made available to the department for examination or use when requested. A copy of the manifest shall be maintained in the operating record.

N. The owner or operator shall conduct daily inspections of the receiving facility. The inspection shall include, but is not limited to, visual inspection of the integrity of the containers, equipment, and loading, unloading, and receiving areas to ensure that the provisions of this chapter are met. The owner or operator shall keep an inspection log or summary including at least the date and time of inspection, the printed name and the handwritten signature of the inspector, a notation of observations made and the date and nature of any repairs or corrective action. The log or summary shall be kept on site as part of the operating record.

O. All new or modified receiving facilities shall be inspected by the department to verify that the provisions of this chapter and the permit have been met prior to the commencement of operations. All facilities shall be inspected by the department regional office on at least a quarterly basis to verify that the provisions of this chapter and the permit are met. These inspections may include, but are not limited to, documentation verification and visual inspections of the receiving facility and containers.

P. The specifications and methods adopted by the owner or operator to meet these waste handling practice standards shall be identified in the Operation and Maintenance manual.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-110 Operation and Maintenance Manual

The Operation and Maintenance Manual shall contain the following information:

1. Housekeeping and recordkeeping procedures, on-site traffic control, schedules for waste loading and unloading, wastewater and storm water collections, odor control, noise control, and methods of enforcement of traffic flow plans for the waste transfer vehicles;

2. A description of the basic operation and maintenance measures adopted by the receiving facility to implement the requirements of 9VAC20-170-90 and 9VAC20-170-100; and

3. A Response and Mitigation Plan. The plan shall include the following information:

a. Name of the facility, geographic location on the applicable 7.5 minute USGS quadrangle map, and the access routes to the facility by road and water;

b. Name of the facility operators and owners, including address and telephone number;

c. A physical description of the facility consisting of a plan of the facility which identifies the waste loading and unloading areas, staging areas, cranes, wharves, roadways, pollution control devices, diversionary structures within the facility boundary, and adjacent easements and leased property;

d. A complete listing, including 24-hour numbers, of all federal, state and local agencies, to be notified in the event of a deposit of wastes to state waters or adjoining shorelines due to any facility operation or failure of the integrity of the containers. This listing shall include the appropriate department regional office, the National Response Center, the cleanup contractor as identified under subdivision 3 g of this section, the emergency coordinator of the local jurisdiction, the local office of the state Health Department and any federal or state wildlife or natural resource authority or private natural resource management entity whose reserves could be affected by the incident described in 9VAC20-170-100 H. This list shall also include the adjacent property owners;

e. The position title of the individuals responsible for making the required notifications and a copy of the notification check-off list;

f. The position title, address and phone number of the individuals authorized to act on behalf of the owner or operator to initiate containment and cleanup actions and ensure compliance with all applicable federal, state and local requirements. These individuals shall be available on a 24-hour basis to ensure the appropriate containment and cleanup actions are undertaken;

g. Identification and assurance by contract or other means acceptable to the department of the availability of the facility and/or private personnel and equipment necessary to contain and cleanup the worst case circumstance. This contract or agreement shall ensure a certain response within the shortest feasible time. The department will accept a letter of understanding between the operator and the response contractors which attests to this capability being readily available. Membership in a cleanup cooperative or other response organization is also acceptable. A listing of contractor or cooperative capabilities, including an inventory of the on-site and off-site equipment, and means to conduct a monitoring program to assess the effects of the incident, shall be included;

h. Assessment of the worst case circumstance, including measures to limit the dispersion of floating and sinking wastes as well as those wastes that are miscible in water, the recovery strategy, disposal plan and monitoring plan. For the purpose of this chapter, the worst case circumstance is (i) the instantaneous release of the contents of the maximum number of waste handling containers that may be on site at any given time and (ii) the instantaneous release of the contents of the maximum number of waste handling containers that may be on a barge traveling to the facility which is deposited into state waters. Facilities shall take into consideration the types of wastes that may be solid wastes or regulated medical wastes; the forms of wastes that may be solid, liquid, semisolid or contained gaseous materials; and the dispersion of the wastes due to downstream flow or tidal influences within 72 hours of the event;

i. Identification and location of natural resources at risk due to the worst case circumstance listed in subdivision 3 h of this section. These resources are, but are not limited to, all surface waters as indicated on the applicable USGS quadrangle maps, groundwater, public and agricultural water supplies, public and private water wells and springs, state or federal wildlife management areas, wildlife refuges, public or private management areas, sanctuaries, shoreline habitats, wetlands, property listed on the National Register of Historic Places and property listed on the National Register of Natural Landmarks. The identification shall include priorities for protection, the means of protecting these resources and respective monitoring programs to ensure protection and recovery of these resources and their beneficial uses; and

j. Identification of risks to human health due to the worst case circumstance listed in subdivision 3 h of this section. These risks shall include water borne and air borne pathogens; alterations of the physical, chemical or biological properties of the affected waters that would deny or prevent full beneficial uses of these waters; and the impairment or destruction of commercial or recreational fisheries, including shellfish. The identification shall include priorities of the risks and means of notification of closure of affected areas, if necessary. The facility shall provide for the monitoring and restoration of the affected areas in cooperation with the local emergency coordinator, health department and fisheries regulatory agencies.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

Article 2 Facility Closure

9VAC20-170-120 Closure standards

Article 2

Facility Closure

A. The owner or operator shall close the receiving facility in a manner that minimizes the need for further maintenance, and controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, the escape of residual waste, surface runoff, or waste decomposition products to the groundwater, surface water, or to the atmosphere.

B. At closure, the owner or operator shall remove or decontaminate all waste residues, contaminated containment systems, containers, contaminated subsoils, and structures and equipment contaminated with waste.

C. The owner or operator shall complete closure activities in accordance with the closure plan and within six months after receiving the final volume of wastes.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-130 Closure plan and amendment of plan

A. The owner or operator of a receiving facility shall prepare a written closure plan. The plan shall identify the steps necessary to completely close the facility at its full operation. The closure plan shall include, at least a schedule for final closure including, as a minimum, the anticipated date when wastes will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates which will allow tracking of the progress of closure.

B. The owner or operator with the approval of the department may amend his closure plan at any time during the active life of the facility. At least 45 days prior to the submittal of the amended plan for the department's approval, the owner or operator shall publish a notice in a major local newspaper of general circulation informing the public that he intends to amend the closure plan. Results of the public participation effort including a summary of and the permittee's response to the comments received shall be submitted along with the amended closure plan for approval. The approved plan shall be placed in the operating record.

C. At least 90 days prior to beginning closure of the receiving facility, the owner or operator shall notify the department of the intent to close.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-140 Inspection

The department shall inspect all receiving facilities that have been closed to determine if the closing is complete and adequate. It shall notify the owner of a closed facility, in writing, if the closure is satisfactory, and shall order necessary construction or such other steps as may be necessary to bring unsatisfactory sites into compliance with this part.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-150 Applicability

Permitting of Off-Loading Receiving Facilities

A. This part applies to a receiving facility (as defined under 9VAC20-170-10) that off-loads solid waste or regulated medical waste and its owner or operator.

B. Each off-loading receiving facility's permit shall be limited to one site and shall be nontransferable between sites.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-160 Compliance dates

No new or existing facilities shall receive any solid wastes or regulated medical wastes from a ship, barge, or other vessel without a permit issued in accordance with this part.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-170 Permit by rule

The owner or operator of the off-loading receiving facility shall be deemed to have a solid waste management facility permit if the provisions in 9VAC20-170-180 and 9VAC20-170-190 are met.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-180 Permit certification procedures

A. The owner or operator of a receiving facility shall submit the permit certification fee in accordance with 9VAC20-170-190 and a certification package including the following documents:

1. A notice of intent which notifies the department of his intent to operate such a facility and a statement certifying that the siting standards have been met by the facility in accordance with 9VAC20-170-80;

2. Plans and specifications of the receiving facility and a certificate signed by a registered professional engineer that the facility has been designed and constructed in accordance with 9VAC20-170-90;

3. An Operation and Maintenance Manual and a statement certifying that the Operation and Maintenance Manual will be implemented prior to the commencement of operation in accordance with 9VAC20-170-110;

4. A certification from the governing body of the county, city or town in which the facility is or is to be located that the location and operation of the facility is consistent with all applicable ordinances. If the applicant proposes to locate the facility on property not governed by any county, city or town zoning ordinance, a certification from the governing body that it has held a public hearing to receive public comment on the proposed facility;

5. A disclosure statement for all key personnel;

6. Results of the public participation effort conducted in accordance with the requirements contained in subsection B of this section, including a summary of and the applicant's response to the comments received; and

7. A closure plan and a statement certifying that a closure plan has been prepared in accordance with 9VAC20-170-120.

B. Public participation.

1. Before the initiation of any construction of a new receiving facility or operation of an existing facility, the owner or operator shall publish a notice as a display ad in a major local newspaper of general circulation informing the public that he intends to construct and/or operate a facility eligible for a permit by rule. The notice shall include:

a. A brief description of the new or existing facility;

b. A statement that the purpose of the public participation is to acquaint the public with the technical aspects of the facility and how the standards and the requirements of this chapter will be met;

c. Announcement of a 30-day comment period in accordance with subdivision 4 of this subsection, and the name and address of the owner's or operator's representative where comments shall be sent;

d. Announcement of the date, time, and place for a public meeting in accordance with subdivision 3 of this subsection; and

e. Location where copies of the documentation to be submitted to the department in support of the permit by rule notification and any supporting documents can be viewed and copied.

2. The owner or operator shall place a copy of the documentation and support documents in a location accessible to the public in the vicinity of the proposed facility.

3. The owner or operator shall hold a public meeting not earlier than 15 days after the publication of the notice required in subdivision 1 of this subsection and no later than seven days before the close of the 30-day comment period. The meeting shall be held to the extent practicable in the vicinity of the new or existing facility.

4. The public shall be provided 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin on the date the owner or operator publishes the notice in the local newspaper.

C. Upon receiving the certifications and other required documents, the director will review and make determination of the technical and administrative completeness of the certification package within 60 days. If the applicant's submission is incomplete, the applicant will be notified that the facility will not be considered to have a permit by rule until the missing certifications or other documents are submitted and approved.

D. Change of ownership. A permit by rule shall not be transferred by the permittee to a new owner or operator without proper notification to and approval by the department. In the event that the property transfer takes place without proper closure, at least 30 days in advance of the property transfer, the new owner shall notify, in writing, the department of the sale, agree to abide by the provisions of this chapter, and submit a disclosure statement and an updated Operation and Maintenance Manual in accordance with subsection A of this section. Upon receipt and approval of such notification, the director will release the old owner from his closure obligation and issue a new permit by rule in the name of the new owner.

E. Facility modifications. The owner or operator of a facility operating under a permit by rule may modify its permit by rule by furnishing the department the permit fee in accordance with 9VAC20-170-190 and a new documentation required under subsection A of this section, as applicable. Whenever modifications in the permit by rule affect the provisions of the approved closure plan, the owner or operator shall also submit an amended closure plan in accordance with 9VAC20-170-130 and subdivision A 7 of this section.

F. Loss of permit by rule status. In the event that a facility operating under a permit by rule violates any applicable siting, design, construction, or closure provisions of this chapter, or the owner or operator fails to submit the inspection fee in accordance with 9VAC20-170-190, the owner or operator of the facility will be considered to be operating an unpermitted facility and shall be required to either obtain a new permit by rule in accordance with subsection A of this section or close the facility in accordance with this chapter.

G. Revocation or amendment of permits. Any permit issued by the director pursuant to this chapter may be revoked, amended or suspended in accordance with the provisions of § 10.1-1409 and Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-190 Permit fee requirements

A. Purpose. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of fees from any owner or operator of a receiving facility seeking a new permit by rule or seeking a modification to an existing permit by rule. It also establishes schedules and procedures pertaining to the payment and collection of inspection fees from any owner or operator of a receiving facility.

B. Payment, deposit and use of fees.

1. Due date. All permit certification fees are due on the submittal day of the certification package. The inspection fees for the first year or portion of a year are due as part of the permit certification. Thereafter, all inspection fees are due March 1.

2. Method of payment. Fees shall be paid by check, draft or postal money order made payable to "Treasurer of Virginia/DEQ", and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218.

3. Incomplete payments. All incomplete payments will be deemed nonpayments.

4. Late payment. No certifications will be deemed complete until the department receives proper payment. In the event that the inspection fee is not received by the department on or prior to March 1, the owner or operator of the facility will be considered to be operating an unpermitted facility.

5. Fee schedules. Each certification for a permit by rule or each certification for a modification to a permit by rule is a separate action and shall be assessed a separate fee. The amount of the permit certification fee is based on the costs associated with the permitting program required by this chapter. An inspection fee will be collected annually and its amount is based on the costs associated with the inspections program conducted by the department on at least a quarterly basis. The fee schedules are shown in the following table.

| | Type of Action | Fee | | --- | --- | --- | | | Initial certification | $6,200 | | | Modification | | | | with a closure plan amendment without a closure plan amendment | $2,500 $1,250 | | | Inspections | $10,000 |

History

• Statutory Authority: § 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003; amended, Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-170-195 Monthly fee requirements

Monthly Fees Collected by Receiving Facilities

A. Purpose and application.

1. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of waste monthly fees from any owner or operator of any ship, barge or other vessel by the receiving facility.

2. The fees shall be based on the accurate weight of waste received at the receiving facility. If scales are unavailable, the maximum volumetric capacity of the container multiplied by 0.50 tons per cubic yard may be used as an alternative to accurate weighing of the waste. If the volumetric alternative is used, accurate and complete records of the volume of each container of such waste must be maintained in addition to the calculated weight records describe in this part.

3. If a ship, barge or other vessel that off-loads no more than 50 tons of waste per month in total at all facilities, then the owner or operator of the ship, barge, or other vessel is exempt from the assessment and payment of operating fees and related requirements set out in this section, except for the maintenance of records.

B. Payment, deposit and use of fees.

1. Due date. The owner or operator of the ship, barge, or other vessel shall pay, and the receiving facility shall collect, the correct fees for all waste off-loading at the facility at or before the time it is off-loaded. The owner or operator of the receiving facility shall be the responsible steward for the funds collected and shall forward to the department the total amounts due from all ships, barges or other vessels off-loading at the facility on a monthly basis. All payments for waste received at a facility during the month shall be received by the department no later than the fifteenth of the succeeding month.

2. Method of payment.

a. The owner or operator of the receiving facility shall send a payment transmittal letter to the Department of Environmental Quality regional office for the area in which the receiving facility is located. The letter shall contain the name of the facility, the period that the payment covers, and a summary of weights of wastes received at the facility for the period, including those calculated in accordance with subdivision A 2 of this section. Attached to the letter shall be a log of the waste received showing the date; time of weighing or measurement; weight or volume and calculated weight of each container received; the name, address, and telephone number of the owner or operator of the ship, barge, or other vessel off-loading the container; the name, address and telephone number of the person actually weighing the waste container or verifying the volume; a certification of the accuracy of the scales based on a calibration, including the name, address and telephone number of the person certifying the accuracy of the scale. A facsimile of the check, draft, or money order submitted under subdivision B 2 b of this section shall also be attached. The owner or operator of the receiving facilities shall keep accurate accounts of all payments of monthly fees by ship, barge or vessel owners and make them available to the department for audit; however, he need not send this information with the aforementioned payment unless requested to do so by the department.

b. Fees shall be paid by check, draft or postal money order made payable to "Treasurer of Virginia/DEQ", and shall be sent to the Department of Environmental Quality, Receipts Control, P. O. Box 1104, Richmond, VA 23218. A copy of the transmittal letter required in subdivision B 2 a of this section, not to include the attachments, shall be included with the check.

c. Scales shall be accurate to measurements of plus or minus 40 pounds and shall be calibrated at least every 180 days. Scales for weighing containers must be located at the receiving facility, unless the monthly fee is determined by the maximum volumetric capacity of the container. Any failure to provide immediate access by Department of Environmental Quality personnel or agents to records or scale equipment during business hours shall be a violation of these regulations.

3. Late payment and incomplete payments. A late fee of 18.0% per annum, compounded daily, shall accrue immediately after a payment is due but not received by VDEQ. A facility shall be in arrears when a payment has not been received by the Department of Environmental Quality by the date it is due. In the event that a facility fails to submit the required monthly fee, the owner or operator of the facility will be considered to be operating an unpermitted facility and shall be required to either obtain a new permit by rule in accordance with 9VAC20-170-180 A or close the facility in accordance with Article 2 (9VAC20-170-120 et seq.) of Part III of this chapter.

4. Fee schedules. The fee for each ton or partial ton of waste (the weight of the waste subject to the fee does not include the weight of the empty container itself) off-loaded at the facility shall be $1.00.

5. The fees collected shall be deposited into a separate account with the Virginia Waste Management Board Permit Program Fund and shall be treated as are other moneys in that fund except that they shall only be used for the purposes of Article 7.1 (§ 10.1-1454.1) of Chapter 14 of Title 10.1 of the Code of Virginia, and for funding purposes authorized by the article. Authorized funding purposes under the article include the administrative and enforcement costs associated with such operations including, but not limited to, the inspection and monitoring of such ships, barges or other vessels to ensure compliance with the article, and activities authorized by § 10.1-1454.1 to abate pollution caused by barging of waste, to improve water quality, or for other waste-related purposes.

C. Right of entry, inspection and audit. Upon presentation of appropriate credentials and upon the consent of the owner or custodian, the director of the Department of Environmental Quality or his designee, in addition to the routine inspection of the facility, shall have the right to enter, inspect and audit the records of the receiving facility. The owner or operator of the facility shall provide complete and timely access, during business hours, to all associated equipment, records and facility personnel.

History

• Statutory Authority: § 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 3, eff. November 19, 2003; amended, Virginia Register Volume 28, Issue 23, eff. August 15, 2012.

9VAC20-170-200 [Reserved]

Historical Notes

Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-270 General purpose and scope

A. This part sets forth the procedures by which an owner and operator of a vessel transporting solid wastes or regulated medical wastes upon the navigable waters of the Commonwealth, to the extent allowable under state law, may establish and maintain evidence of financial responsibility to cover liability of the owner and operator arising from a deposit of solid wastes or regulated medical wastes into state waters.

B. In order to ensure that the costs associated with protecting public health, welfare and property from the consequences of such a deposit of solid wastes or regulated medical wastes are to be recovered from the owner and operator of a vessel transporting solid wastes or regulated medical waste, the owner and operator of such a vessel shall obtain one or a combination of the financial mechanisms described in this part.

C. The director may reject the proposed evidence of financial responsibility if the mechanism or mechanisms submitted do not adequately ensure that funds will be available to accomplish the purpose of this part.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-280 Applicability

A. This part applies to all persons who own or operate a vessel transporting solid wastes or regulated medical wastes for the purposes of commercial carriage as cargo on the navigable waters of the Commonwealth, to the extent allowable under state law, unless otherwise exempt.

B. For purposes of this part, when a vessel is chartered by demise, the demise charterer rather than the title owner is the owner of the chartered vessel.

C. Owners or operators of such vessels who are federal or state government entities whose debts and liabilities are the debts or liabilities of the United States or the Commonwealth, are exempt from this part.

D. If separate, nonexempt persons own or operate a vessel subject to this part, the owner and operator shall be jointly and severally liable for meeting the requirements of this part. If either the owner or operator is exempt, as provided in subsection C of this section, then the other person shall be responsible for meeting the requirements of this part. If both the owner and the operator are exempt, as provided in subsection C of this section, then the requirements of this part are not applicable to that vessel.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-290 Certificate of Financial Responsibility

A. No vessel shall transport solid waste or regulated medical waste upon the navigable waters of the Commonwealth, to the extent allowable under state law, without a valid Certificate of Financial Responsibility (certificate).

B. Application requirements.

1. Each owner and operator shall file an application for a certificate with the department. If the owner and operator are the same entity, only one application is required to be filed with the department. The application shall be in the standard form approved by the board. The application and all supporting documents shall be in English. All monetary terms must be expressed in United States dollars.

2. A certificate applicant may include more than one vessel on the application.

3. Each completed application form shall be accompanied by valid evidence of financial responsibility from the certificate applicant in accordance with 9VAC20-170-310, in the amounts specified in 9VAC20-170-300 and valid evidence of liability coverage in accordance with 9VAC20-170-330.

4. An authorized official of the certificate applicant shall sign the application. The title of the signer must be shown in the space provided on the application. The application must be accompanied by a written statement providing authority to sign, where the signer is not disclosed as an individual (sole proprietor) certificate applicant, a partner in a partnership certificate applicant, or a director, chief executive officer, or any other duly authorized officer of a corporate certificate applicant.

5. If, before the issuance of a certificate, the certificate applicant becomes aware of a change in any of the facts contained in the application or supporting documentation, the certificate applicant shall, within five business days of becoming aware of the change, notify the department, in writing, of the change.

C. Issuance and carriage requirements.

1. Within 60 days of receipt of a complete application and acceptable evidence of financial responsibility in accordance with subsection B of this section from both the owner and operator, the director will issue a Certificate of Financial Responsibility. The original certificate or a certified copy shall be carried aboard the vessel covered by the certificate and a copy shall remain on file with the department. The director shall issue an individual certificate for each vessel for which a completed application has been submitted by the owner and the operator.

2. Each vessel transporting solid wastes or regulated medical waste on the navigable waters of the Commonwealth, to the extent allowable under state law, shall carry an original or certified copy of a valid certificate in the name of the owner and operator. The carriage of a valid certificate or certified copy indicates compliance with this chapter. Failure to carry a valid certificate or certified copy subjects the vessel to enforcement action, except where a certificate is removed temporarily from a vessel for inspection by a state official.

3. The certificate applicant or an authorized officer of the certificate applicant may submit to the department a letter requesting that additional vessels be added to a previously submitted application for an individual certificate. The letter must provide the following information: vessel name, vessel owner and operator, gross tonnage, and type of wastes to be transported. The certificate applicant or an authorized official also shall submit or cause to be submitted acceptable evidence of financial responsibility in accordance with subsection B of this section for these additional vessels.

D. Renewal requirements.

1. The Certificate of Financial Responsibility shall expire one year from the date of issuance.

2. Each owner and operator shall file a written application, in the form provided by the department, for the renewal of a certificate at least 60 days before the expiration date of the certificate. The certificate applicant shall identify in the renewal application any changes that have occurred since the original application for which a certificate was filed, and set forth the correct information in full.

E. Denial or revocation of certificate.

1. The director may deny a certificate when a certificate applicant:

a. Willfully or knowingly makes a false statement in connection with an application for an initial or renewal certificate;

b. Fails to establish acceptable evidence of financial responsibility as required by this part;

c. Fails to comply with or respond to lawful inquiries, regulations, or orders of the department pertaining to the activities subject to this part; or

d. Fails to timely file requested statements, data, notifications, affidavits, or other information.

2. The director may revoke a certificate when a certificant:

a. Willfully or knowingly makes a false statement in connection with an application for an initial or a renewal certificate, or in connection with any other filing required by this part;

b. Fails to comply with or respond to lawful inquiries, regulations, or orders of the department pertaining to the activities subject to this part;

c. Fails to timely file required statements, data, notifications, or affidavits;

d. Fails to maintain acceptable evidence of financial responsibility as required by this part; or

e. Alters any certificate or copy of a certificate except as permitted by this part in connection with notarized certifications of copies.

3. The director shall advise the certificate applicant or certificant, in writing, of the intention to deny or revoke a certificate under subdivision 1 or 2 of this subsection and shall state the reason therefore. Written advice from the director that an incomplete application will be considered withdrawn unless it is completed within a stated period, shall be the equivalent of a denial.

4. If the intended revocation under subdivision 2 of this subsection is based on failure to timely file the required financial statements, data, notifications, or affidavits, the revocation is effective 10 days after the date of the notice of intention to revoke, unless, before revocation, the certificant demonstrates to the satisfaction of the director that the required documents were timely filed or have been filed.

5. Except in the case of subdivisions 3 and 4 of this subsection, the director may deny or revoke a certificate only after an informal fact-finding conference, or a waiver of a conference, in accordance with Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia. A certificate subject to revocation under this subdivision remains valid until the director issues a written decision revoking the certificate.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-300 Amount and scope of financial responsibility requirement

Each owner and operator of a vessel transporting solid waste and/or regulated medical waste upon the navigable waters of the Commonwealth, to the extent allowable under state law, shall demonstrate financial responsibility for the total cost of cleanup and containment of a solid waste and/or regulated medical waste deposit into state waters, and the potential impairment of beneficial use of these waters in the following amounts:

1. For each owner and operator of a vessel transporting solid wastes only: $1 million or $300 per gross ton of such vessel, whichever is larger. If the owner or operator owns or operates more than one vessel transporting waste, the amount of financial responsibility shall equal $1 million or $300 per gross ton of the owned or operated vessel with the largest transporting capacity, whichever is larger.

2. For each owner and operator of a vessel transporting regulated medical waste or a combination of regulated medical waste and solid waste: $5 million or $300 per gross ton of such vessel. If the owner or operator owns or operates more than one vessel transporting waste, the amount of financial responsibility shall equal $5 million or $300 per gross ton of the owned or operated vessel with the largest transporting capacity, whichever is larger.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-310 Allowable financial mechanisms

A. Each owner and operator shall demonstrate financial responsibility by establishing and maintaining a financial mechanism, or combination of mechanisms, in the amounts specified in 9VAC20-170-300. The mechanisms used to demonstrate financial responsibility shall ensure that the funds necessary to meet the costs of cleanup and containment and the restoration of beneficial uses of state waters will be available whenever they are needed. The owner and operator shall provide continuous coverage until released by the director.

B. Each owner and operator shall submit the original financial mechanism or combination of mechanisms together with the application for a certificate as specified in 9VAC20-170-290 B.

C. Owners and operators shall demonstrate financial responsibility using one or more of the following financial mechanisms:

1. Trust fund.

a. The owner or operator of a vessel may satisfy the requirements of subsection A of this section by establishing a trust fund that conforms to the requirements of this section and by submitting an originally signed trust agreement to the department. The trustee for the trust fund shall be a bank or financial institution that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or the State Corporation Commission.

b. The trust fund shall be irrevocable and shall continue until terminated at the written direction of the director and the trustee. Upon termination of the trust, all remaining trust property, less final trust administration expenses, shall be delivered to the owner or operator. The wording of the trust agreement must be identical to the wording specified in APPENDIX I, except that instructions in brackets must be replaced with the relevant information and the brackets deleted, and must be accompanied by a formal certification of acknowledgment as specified in APPENDIX I.

c. The owner or operator initially shall submit the original, signed trust agreement to the department as a part of the application for a certificate as specified in 9VAC20-170-290 B.

d. The irrevocable trust fund, when established, must be funded for the full financial responsibility amount as specified in 9VAC20-170-300, or funded for part of the required amount and used in combination with other mechanisms that provide the remaining required amount.

e. If the value of the trust fund is greater than the required financial responsibility amount as specified in 9VAC20-170-300, the owner or operator may submit a written request to the department for release of the excess.

f. If another financial mechanism as specified in this part is substituted for all or part of the trust fund, the owner or operator may submit a written request to the department for release of the excess.

g. Within 60 days after receiving a request from the owner or operator for release of funds as specified in subdivision 1 e or 1 f of this subsection, the director will instruct the trustee to release to the owner or operator such funds as the director deems appropriate, if any, in writing.

h. Whenever the required financial responsibility amount as specified in 9VAC20-170-300 changes after the establishment of the trust fund, the owner or operator shall compare the new amount with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the required amount, the owner or operator shall, within 60 days of the change in the required amount specified in 9VAC20-170-300, deposit a sufficient amount into the fund so that its value after payment at least equals the new financial responsibility amount, or obtain another financial mechanism or combination of mechanisms as specified in this part to cover the difference. If the value of the trust fund is greater than the new financial responsibility amount, the owner or operator may submit a written request to the department for release of the amount that is in excess of the new amount.

i. After beginning a cleanup or containment operation in accordance with the approved Response and Mitigation Plan, an owner or operator or any other person authorized to conduct cleanup or containment, may request reimbursement for cleanup or containment expenditures by submitting itemized bills to the department. Within 60 days after receiving bills for cleanup or containment activities, the director shall instruct the trustee to make reimbursements in those amounts as the director determines are justified.

j. If the director approves reimbursements from the fund, the owner or operator providing the mechanism shall by the anniversary date of the trust:

(1) Replenish the value of the trust to equal the full amount of coverage required pursuant to 9VAC20-170-300; or

(2) Acquire another financial responsibility mechanism for the amount by which the funds in the trust have been reduced.

2. Standby trust fund.

a. An owner or operator using any one of the mechanisms authorized by subdivisions 3 and 4 of this subsection or 9VAC20-170-330 C 3 and 4 must establish a standby trust fund when the mechanism is acquired and submit the original standby trust agreement to the department. The trustee of the standby trust fund must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or the State Corporation Commission.

b. The standby trust agreement or trust agreement must be worded identically as specified in APPENDIX I or APPENDIX VI, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted, and accompanied by a formal certification of acknowledgment as specified in APPENDIX I and APPENDIX VI.

c. An owner or operator may establish one trust fund as the depository mechanism for all funds assured in compliance with this section.

3. Surety bond guaranteeing payment.

a. An owner or operator may satisfy the requirements of subsection A of this section by obtaining a surety bond that conforms to the requirements of this section and submitting the original bond to the department. The surety company issuing the bond shall be licensed to operate as a surety in the Commonwealth of Virginia and be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.

b. The surety bond must be worded identically as specified in APPENDIX II, except that instructions in brackets must be replaced with the relevant information and the brackets deleted.

c. The owner or operator initially shall submit the original bond to the department as a part of the application for a certificate as specified in 9VAC20-170-290 B.

d. The surety bond shall name the vessel operator or owner as the principal and name the Commonwealth of Virginia as the obligee.

e. Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. The surety's liability is limited to the penal sum of the bond.

f. The owner or operator who uses a surety bond to satisfy the requirements of subsection A of this section must establish a standby trust fund when the surety bond is acquired. Under the terms of the bond, all amounts paid by the surety under the bond will be deposited directly into the standby trust fund in accordance with instructions from the director under 9VAC20-170-360. This standby trust fund shall meet the requirements specified in subdivision 2 of this subsection.

g. Whenever the financial responsibility amount specified in 9VAC20-170-300 increases to an amount greater than the penal sum of the bond, the owner or operator shall, within 60 days of the increase, cause the penal sum of the bond to be increased to an amount at least equal to the amount specified in 9VAC20-170-300 or obtain another financial mechanism or combination of mechanisms as specified in this part to cover the increase. Whenever the financial responsibility amount specified in 9VAC20-170-300 decreases, the penal sum of the bond may be reduced to the new amount following written approval by the director. The surety shall send the notice of an increase or decrease in the amount of the bond to the department by certified mail within 60 days of the change.

4. Letter of credit.

a. An owner or operator may satisfy the requirements of subsection A of this section by obtaining an irrevocable standby letter of credit that satisfies the requirements of this section and by submitting the original letter of credit to the department. The issuing institution shall be a bank or other financial institution that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Commonwealth of Virginia, by a federal agency, or by an agency of another state.

b. The owner or operator initially shall submit the original letter of credit to the department as a part of the application for a certificate as specified in 9VAC20-170-290 B.

c. The letter of credit shall be irrevocable and issued for a period of at least one year in an amount at least equal to the amount specified in 9VAC20-170-300. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the letter of credit is canceled by the issuing institution, the owner or operator shall obtain alternate evidence of financial responsibility in accordance with this part.

d. The letter of credit must be worded identically as specified in APPENDIX III, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

e. An owner or operator who uses a letter of credit to satisfy the requirements of subsection A of this section must also establish a standby trust fund when the letter of credit is acquired. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the board will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the board under 9VAC20-170-360. This standby trust fund must meet the requirements specified in subdivision 2 of this subsection.

f. Whenever the financial responsibility amount specified in 9VAC20-170-300 increases to an amount greater than the amount of credit, the owner or operator shall, within 60 days of the increase, cause the amount of credit to be increased to an amount at least equal to the amount specified in 9VAC20-170-300 or obtain another financial mechanism or combination of mechanisms as specified in this part to cover the increase. Whenever the financial responsibility amount specified in 9VAC20-170-300 decreases, the letter of credit may be reduced to the new amount following written approval by the director. The issuing institution shall send the notice of an increase or decrease in the amount of the credit to the department by certified mail within 60 days of the change.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-320 Multiple mechanisms

An owner or operator may satisfy the requirements of this part by establishing more than one financial mechanism, except that mechanisms guaranteeing performance, rather than payment, may not be combined with other mechanisms. The mechanisms shall be as specified in 9VAC20-170-310 C 1 through 4, except that evidence of financial responsibility in the amount at least equal to the amount specified in 9VAC20-170-300 may be provided by a combination of mechanisms, rather than a single mechanism.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-330 Liability requirement

A. The owner and operator of a vessel or a group of such vessels transporting solid wastes or regulated medical wastes upon the navigable waters of the Commonwealth, to the extent allowable under state law, shall demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden and/or nonsudden accidental occurrences arising from a deposit of solid wastes and/or regulated medical waste into the navigable waters of the Commonwealth. The owner or operator shall establish and maintain liability coverage in the following amounts:

1. For sudden and/or nonsudden accidental occurrences, arising from the deposit of solid wastes from a vessel into the navigable waters of the Commonwealth, to the extent allowable under state law, at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs; and

2. For sudden and/or nonsudden accidental occurrences, arising from the deposit of regulated medical wastes, or a combination of solid wastes and regulated medical wastes, from a vessel into the navigable waters of the Commonwealth, to the extent allowable under state law, at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.

B. Liability coverage shall include coverage for waste deposits that occur from loading and unloading the vessels.

C. An owner or operator may demonstrate liability coverage with the following mechanisms:

1. An insurance policy(s) that conforms to the requirements of this section from a qualified insurer.

a. Such insurance may be in the form of a separate insurance policy or an endorsement to an existing insurance policy.

b. Each insurance policy must be amended by an endorsement worded in no respect less favorable than the coverage as specified in APPENDIX IV, or evidenced by a certificate of insurance worded identically as specified in APPENDIX V, except that instructions in brackets must be replaced with the relevant information and the brackets deleted.

c. The owner or operator initially shall submit an original certificate of insurance or endorsement and a copy of the entire insurance policy to the department as a part of the application for a certificate as specified in 9VAC20-170-290 B. After the initial submission, the owner or operator shall submit an original certificate of insurance or endorsement evidencing policy renewal as a part of the application for renewal of the vessel's certificate as specified in 9VAC20-170-290 D.

d. An owner or operator shall submit a copy of the entire insurance policy to the department within 30 days of the director's written request.

e. Each insurance policy must be issued by an insurer that, at a minimum, is licensed to transact the business of insurance or eligible to provide insurance as an excess or approved surplus lines insurer in the Commonwealth of Virginia. The insurer shall not be a captive insurer.

f. Each insurance policy shall provide first dollar coverage. The insurer shall be liable for the payment of all amounts within any deductible applicable to the policy to the damaged third party, as provided in this chapter, with a right of reimbursement by the insured for any such payment made by the insurer. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated under another mechanism or combination of mechanisms as specified in subdivisions 2 through 4 of this subsection.

2. A trust agreement as specified in 9VAC20-170-310 C 1 except that the amount of the trust shall be equal to the amount specified in subsection A of this section. The trust agreement must be worded identically as specified in APPENDIX VI, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

3. A surety bond as specified in 9VAC20-170-310 C 3 except that the amount of the bond shall be equal to the amount specified in subsection A of this section. The surety bond must be worded identically as specified in APPENDIX VII, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

4. A letter of credit as specified in 9VAC20-170-310 C 4 except that the face amount of the letter of credit shall be equal to the amount specified in subsection A of this section. The letter of credit must be worded identically as specified in APPENDIX VIII, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

D. An owner or operator shall notify the department in writing within 30 days:

1. Whenever a claim for bodily injury or property damages caused by a waste deposit into state waters is made against the owner or operator or an instrument providing financial responsibility for liability coverage under subsection A of this section; or

2. Whenever the amount of financial responsibility for liability coverage under subsection A of this section provided by a financial instrument authorized by subsection C of this section is reduced.

E. An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, trust funds, surety bonds, and letters of credit. The amounts of coverage demonstrated shall total at least the minimum amounts required by subsection A of this section. If the owner or operator demonstrates the required coverage through the use of a combination of financial responsibility mechanisms under subsection C of this section, the owner or operator shall specify at least one such mechanism as "primary" coverage and shall specify other mechanism as "excess" coverage.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-340 Substitution of financial responsibility mechanisms by owner or operator

A. An owner or operator may substitute any alternate financial responsibility mechanism as specified in this part, provided that at all times the owner or operator maintains an effective financial responsibility mechanism or combination of mechanisms that satisfies the requirements of 9VAC20-170-310 C if the mechanism or mechanisms are submitted to comply with the requirements of 9VAC20-170-310 A and 9VAC20-170-330 if the mechanism or mechanisms are submitted to comply with the requirements of 9VAC20-170-330 A.

B. After obtaining an alternate financial responsibility mechanism, or combination of mechanisms, as specified in this part and written approval from the director, an owner or operator may cancel the replaced financial responsibility mechanism by providing notice to the provider of financial responsibility.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-350 Cancellation or nonrenewal by a provider of financial responsibility

A. Except as otherwise provided, a provider of financial responsibility may cancel or fail to renew a financial responsibility mechanism by sending a notice of termination by certified mail to the owner or operator and the department.

1. Termination of a surety bond or a letter of credit may not occur until 120 days after the date on which the department and the owner or operator receive the notice of termination, as evidenced by the return receipts.

2. Termination of insurance coverage, except for nonpayment or misrepresentation by the insured may not occur until 60 days after the date on which the department and the owner or operator receive the notice of termination, as evidenced by the return receipts. Termination for nonpayment of premium or misrepresentation by the insured may not occur until a minimum of 30 days after the date on which the department and the owner or operator receives the notice of termination, as evidenced by the return receipts.

B. If a provider of financial responsibility cancels or fails to renew, the owner or operator must obtain alternate coverage as specified in this section within 60 days after receipt of the notice of termination.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-360 Drawing on a financial responsibility mechanism

A. The director may require the surety or institution issuing a letter of credit to place the amount of funds stipulated by the board, up to the limit of funds provided by the financial responsibility mechanism, into the standby trust if:

1. a. The owner or operator fails to obtain and submit an alternate financial responsibility mechanism, or combination of mechanisms within 60 days after receiving notice of cancellation of the surety bond or letter of credit described in this subsection; or

b. The director determines or has a reasonable belief that a deposit of solid wastes and/or regulated medical wastes into state waters has occurred and so notifies the owner and operator, or the owner or operator has notified the department of a waste deposit into state waters from a vessel covered by the mechanism; or

2. The conditions of subsection B of this section are satisfied.

B. The director may draw on a standby trust fund or funds when:

1. The director makes a final determination that a waste deposit has occurred and immediate or long-term cleanup and/or containment for the waste deposit is needed, or the beneficial uses of state waters have been impaired as a result of the waste deposit and the owner and operator, after appropriate notice and opportunity to comply, have not conducted cleanup or containment; or

2. The director has received either:

a. Certification from the owner or operator and the third-party liability claimants and from attorneys representing the owner or operator and the third-party liability claimants that a third-party liability claim should be paid. The certification must be worded identically as specified in APPENDIX IX, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted;

b. A valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by a waste deposit from a vessel covered by financial responsibility under this part and the board determines that the owner or operator has not satisfied the judgment.

C. If the director determines that the amount of cleanup and/or containment costs or beneficial use impact costs and third-party liability claims eligible for payment under subsection B of this section may exceed the balance of the standby trust fund and the obligation of the provider of financial responsibility, the first priority for payment shall be the cleanup and containment activities necessary to protect human health and the environment. The board shall direct payment from the standby trust fund for third-party liability claims in the order in which the board receives certifications under subdivision B 2 a of this section and valid court orders under subdivision B 2 b of this section.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-370 Replenishment of letters of credit or surety bonds

A. If at any time after a standby trust is funded upon the instruction of the director with funds drawn from a letter of credit or surety bond, and the amount in the standby trust is reduced below the full amount of coverage required, the owner or operator providing the mechanism shall by the anniversary date of the financial mechanism from which the funds were drawn:

1. Replenish the value of the financial responsibility mechanism to equal the full amount of coverage required; or

2. Acquire another financial responsibility mechanism for the amount by which funds in the standby trust have been reduced.

B. For purposes of this section, the full amount of coverage required is the amount of coverage to be provided under 9VAC20-170-300, if the owner or operator is demonstrating for cleanup or containment, or 9VAC20-170-340 A if the owner or operator is demonstrating financial responsibility for liability coverage. If a combination of mechanisms was used to provide the financial responsibility funds that were drawn upon, replenishment shall occur by the earliest anniversary date among the mechanisms.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-380 Incapacity of owners, operators or financial institution

A. An owner or operator shall notify the department by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding.

B. An owner or operator who fulfills the requirements of this part by obtaining a trust fund, a letter of credit, a surety bond, or an insurance policy, will be deemed to be without the required financial responsibility in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing a surety bond, letter of credit, or insurance policy to issue such mechanisms. The owner or operator shall establish another financial responsibility mechanism, or combination of mechanisms, within 60 days of such event. If the owner or operator does not obtain alternate coverage within 60 days after such notification, he shall immediately notify the department in writing.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-390 Service of process

A. When executing the forms required by this part, each certificate applicant shall designate on the face of the application, a person located in Virginia as its agent for service of process for purposes of this part and for receipt of notices of designations and presentations of claims under this regulation. Each designated agent shall acknowledge his designation by providing the department with a letter showing that he has agreed to act as the registered agent for service of process for the certificate applicant or certificant in question.

B. If any certificate applicant or certificant desires, for any reason, to change any designated agent, the certificate applicant or certificant shall notify the department of the change and furnish the relevant information, including the new agent's acknowledgment in accordance with subsection A of this section. In the event of death, disability, or unavailability of a designated agent, the certificate applicant or certificant shall designate another agent in accordance with paragraph A of this section within 10 days of knowledge of any such event. The certificate applicant or certificant shall submit the new designation to the department. The director may revoke a certificate if a certificate applicant or certificant fails to designate and maintain an agent for service of process.

C. If a designated agent can not be served because of death, disability, unavailability, or similar event and another agent has not been designated under this section, then service of process on the director will constitute valid service of process. Service of process on the director will not be effective unless the server

1. Sends the certificate applicant or certificant by registered mail, at its last known address on file with the director a copy of each document served on the department; and

2. Attests to this registered mailing, at the time process is served upon the director, indicating that the intent of the mailing is to effect service of process on the certificate applicant or certificant and that service on the designated agent is not possible, stating the reason why.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-400 Release from financial responsibility requirements

Within 60 days after termination of vessel registration is accomplished, the director shall notify the owner and operator in writing that they are no longer required to maintain financial responsibility and liability coverage for the vessel. Such notice shall release the owner and operator only from the requirements for financial responsibility for the vessel; it does not release him from legal responsibility for meeting any other requirements of this chapter.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

9VAC20-170-410 General provisions

Compliance of Vessels Transporting Solid Wastes or Regulated Medical Wastes with Federal Statutes and Regulations and State Spill Response Requirements

Vessels must comply with federal regulations 33 CFR Part 151 (effective July 1, 2002) and 46 CFR Part 42 (effective October 1, 2002). These regulations apply to vessels transporting solid wastes or regulated medical wastes on state waters and are enforced by the U. S. Coast Guard. The owner or operator of a vessel shall immediately notify the appropriate regional office of the department, the Virginia Department of Emergency Management, and the National Response Center at 1-800-424-8802 in the event of a deposit of solid wastes or regulated medical wastes into state waters. Such verbal notification shall be followed by written notification to the appropriate department regional office within five days. The owner or operator of a vessel from which there is spillage or loss to state waters of wastes shall immediately take all such actions as may be necessary to contain and remove such wastes from state waters.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

Part VIII Variance

9VAC20-170-420 Petitioning for variance or exemption

Variance

A. Any person regulated by this chapter may petition the department to grant a variance or an exemption from any requirement of this chapter subject to the provisions of this section. Any petition submitted to the department is also subject to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The petition shall be submitted to the department by certified mail and shall include:

1. The petitioner's name and address;

2. A statement of petitioner's interest in the proposed action;

3. A description of desired action and a citation of the regulation from which a variance is requested;

4. A description of need and justification for the proposed action, including impacts from existing operations;

5. Information demonstrating that the requested variance will meet the purposes and objectives of the relevant regulatory provision and of the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia);

6. The duration of the variance, if applicable;

7. The potential impact of the variance on public health or the environment;

8. Other information believed by the applicant to be pertinent; and

9. The following statement signed by the petitioner or authorized representative:

"I certify that I have personally examined and am familiar with the information submitted in this petition and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

C. Effects of the decisions:

1. When the director renders a decision under this section in accordance with the procedures contained in subsection B of this section, he may:

a. Deny the petition;

b. Grant the variance as requested; or

c. Grant a modified or partial variance.

2. When a modified variance is granted, the director may:

a. Specify the termination date of the variance;

b. Include a schedule for:

(1) Compliance, including increments of progress, by the facility with each requirement of the variance; and

(2) Implementation by the facility of such control measures as the director finds necessary in order that the variance may be granted.

D. The director will evaluate the application and issue a draft notice tentatively denying the petition, granting the variance as requested, or granting a modified or partial variance. Notification of this tentative decision will be provided by newspaper advertisement in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days, and shall hold a public hearing if a request is received or at his discretion if there is no request. The director will issue a final decision after receipt of comments and after the hearing (if any).

E. The director may grant the variance if the applicant demonstrates to the satisfaction of the director that:

1. The proposed variance will meet the goals and purposes of the provisions from which a variance is sought;

2. The variance does not conflict with federal or state law or regulations.

F. In the event of a declared emergency by the Governor, a temporary variance may be granted and the public comment period may be held after the variance is granted. In any event, notice of the public comment period shall be published within 90 days after the variance is granted.

History

• Statutory Authority: §§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003.

Agency 25 State Water Control Board

Chapter 11 Public Participation Guidelines

Part I Purpose and Definitions

9VAC25-11-10 Purpose

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Water Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC25-11-20 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Water Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Part II Notification of Interested Persons

9VAC25-11-30 Notification list

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC25-11-40 Information to be sent to persons on the notification list

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC25-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Part III Public Participation Procedures

9VAC25-11-50 Public comment

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009; amended, Virginia Register Volume 34, Issue 2, eff. November 2, 2017.

9VAC25-11-60 Petition for rulemaking

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC25-11-70 Appointment of regulatory advisory panel

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC25-11-80 Appointment of negotiated rulemaking panel

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC25-11-90 Meetings

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC25-11-100 Public hearings on regulations

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working daysprior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

9VAC25-11-110 Periodic review of regulations

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

History

• Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 5, eff. January 1, 2009.

Chapter 15 Regulation for Dispute Resolution

Part I Definitions

9VAC25-15-10 Use of terms

A. For the purpose of this chapter and subsequent amendments to it, of regulations of the board, or of orders issued by the board, the words or terms shall have the meanings given them in 9VAC25-15-20.

B. Unless specifically defined in the Virginia Water Control Law or in the regulations of the board, terms used shall have the meanings commonly ascribed to them.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001.

9VAC25-15-20 Terms defined

"Board" means the State Water Control Board.

"Conciliation" means a process in which a neutral facilitates settlement by clarifying issues and serving as an intermediary for negotiations in a manner that is generally more informal and less structured than mediation.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or his designee.

"Dispute resolution," "dispute resolution procedure," or "dispute resolution proceeding" means any structured process in which a neutral assists disputants in reaching a voluntary settlement by means of dispute resolution techniques such as mediation, conciliation, early neutral evaluation, nonjudicial settlement conferences, or any other proceeding leading to a voluntary settlement conducted consistent with the requirements of this chapter. The term includes the orientation session.

"Dispute resolution program" means a program that offers dispute resolution services to the public that is run by the Commonwealth or any private for-profit or not-for-profit (including nonprofit) organization, political subdivision, or public corporation, or a combination of these.

"Dispute resolution services" includes screening and intake of disputants, conducting dispute resolution proceedings, drafting agreements, and providing information or referral services.

"Mediation" means a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.

"Mediator" means a neutral who is an impartial third party selected by agreement of the parties to a controversy to assist them in mediation. As used in this chapter, this word may refer to a single person or to two or more people.

"Neutral" means a person who is trained or experienced in conducting dispute resolution proceedings and in providing dispute resolution services. As used in this chapter, this word may refer to a single person or to two or more people.

"Orientation session" means a preliminary meeting during which the dispute resolution proceeding is explained to the parties and the parties and the neutral assess the case and decide whether to continue with a dispute resolution proceeding or adjudication.

"Party" means an interested person who has chosen to be and who is eligible to be a disputant in a dispute resolution proceeding. An interested person is eligible if he (i) has attended a public meeting or public hearing on the permit or regulation in dispute and is therefore named in the public record, (ii) is the applicant for the permit in dispute, or (iii) is the department.

"Person" means an individual, a corporation, a partnership, an association, a government body, a municipal corporation, or any other legal entity.

"Virginia Water Control Law" means Chapter 3.1 (§ 62.1-44.2 et seq.), Chapter 3.2 (§ 62.1-44.36 et seq.), Chapter 24 (§ 62.1-242 et seq.), and Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Part II General Provisions

9VAC25-15-30 Applicability

A. The provisions of this chapter, unless specified otherwise, shall apply throughout the Commonwealth of Virginia.

B. The provisions of this chapter, unless specified otherwise, shall apply in the administration of all regulations of the board to the extent not covered by a specific regulation of the board. In cases where the provisions of this chapter conflict with another regulation of the board, the provisions of the other regulation shall apply.

C. No provision of this chapter shall limit the power of the board to take appropriate action as necessary to carry out its duties under the Virginia Water Control Law.

D. By the adoption of this chapter, the board confers upon the director the administrative, enforcement, and decision-making authority articulated in this chapter.

E. Nothing in this chapter shall create or alter any right, action, or cause of action, or be interpreted or applied in a manner inconsistent with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), with applicable federal law, or with any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.

F. For a permit in dispute, dispute resolution may not be initiated after the final permit is issued. For a regulation in dispute, dispute resolution may not be initiated after the final regulation is adopted.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-40 Purpose and scope

A. This chapter shall be construed to encourage the fair, expeditious, voluntary, consensual resolution of disputes. It shall not be construed to preclude collaborative community problem solving.

B. Dispute resolution shall be used to resolve only those disputes that reveal significant issues of disagreement among parties and may be used unless the board decides that it is not in the public interest to do so.

C. The decision to employ dispute resolution is in the board's sole discretion and is not subject to judicial review.

D. The outcome of any dispute resolution procedure shall not be binding upon the board but may be considered by the board in issuing a permit or promulgating a regulation.

E. Dispute resolution may be used to resolve a dispute relating to the promulgation, amendment, or repeal of a regulation that is subject to the public participation process prescribed in Article 2 (§ 2.2-4006 et seq. of the Code of Virginia) of the Administrative Process Act.

F. Dispute resolution may be used to resolve a dispute involving any process relating to the issuance of a permit. Dispute resolution may be used in this case only with the consent and participation of the permit applicant and may be terminated at any time at the request of the permit applicant.

G. The board shall consider not using dispute resolution in the circumstances listed in § 10.1-1186.3 A of the Code of Virginia.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-50 Costs

A. Compensation of the neutral and any other associated common costs, such as rental fees, shall be the responsibility of the parties. Compensation of each party's counsel and other individual costs shall be the responsibility of that party alone, unless the parties agree otherwise.

B. An agreement regarding compensation and other associated costs shall be reached between the neutral and the parties before the dispute resolution procedure commences and shall be memorialized in writing.

C. In the absence of an agreement to the contrary, all costs shall be paid by the parties in equal shares.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-60 Date, time, and place

The dispute resolution procedure shall be conducted in any place within the Commonwealth of Virginia, on any date, and at any time agreeable to the parties and the neutral.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-70 Attendance at the dispute resolution procedure

A. All parties shall attend all sessions of the dispute resolution procedure. Any party who fails to attend any session shall be conclusively deemed to have dropped out of the dispute resolution procedure. A party may satisfy the attendance requirement by sending a representative familiar with the facts of the case. This representative shall have the authority to negotiate and to recommend settlement to the party that he represents.

B. Any party may have the assistance of an attorney or other representative during any session of the dispute resolution procedure.

C. Persons who are not parties or representatives of parties may attend dispute resolution sessions only with the permission of all parties and with the consent of the neutral.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-80 Confidentiality

A. The provisions of § 8.01-576.10 of the Code of Virginia concerning the confidentiality of dispute resolution shall govern all dispute resolution proceedings held pursuant to this chapter except when the board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation. The board shall inform the parties in the order of referral issued under 9VAC25-15-150 what this information is expected to be. If the board later decides that it will need additional information before it can issue the permit or promulgate the regulation, it shall so notify the parties as expeditiously as possible. If any of the information requested by the board would normally be protected by the confidentiality provisions of this section, the parties shall waive that protection when delivering the requested information to the board. Notwithstanding the above, any information qualifying as confidential under the Virginia Water Control Law shall remain confidential.

B. With the exception noted in subsection A of this section, all memoranda, work products, and other materials contained in the case files of a neutral or dispute resolution program are confidential. Any communication made during dispute resolution that relates to the controversy, including screening, intake, and scheduling a dispute resolution proceeding, whether made to the neutral or dispute resolution program staff, to a party, or to any other person, is confidential. Any party's lack of consent to participate in the dispute resolution process, at any point in the process, is confidential.

C. A written settlement agreement shall not be confidential, unless the parties otherwise agree in writing.

D. Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except:

1. When all parties to the dispute resolution process agree, in writing, to waive the confidentiality;

2. To the extent necessary, in a subsequent action between the neutral or dispute resolution program and a party to the dispute resolution proceeding for damages arising out of the dispute resolution process;

3. Statements, memoranda, materials, and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in the dispute resolution procedure;

4. Where a threat to inflict bodily injury is made;

5. Where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime;

6. Where an ethics complaint is made against the neutral by a party to the dispute resolution proceeding to the extent necessary for the complainant to prove misconduct and the neutral to defend against such complaint;

7. Where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party's legal representative based on conduct occurring during a mediation;

8. Where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-576.12 of the Code of Virginia in a proceeding to vacate a mediated agreement; or

9. As provided by law or rule other than the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

E. The use of attorney work product in dispute resolution shall not result in a waiver of the attorney work product privilege.

F. Unless otherwise specified by the parties, no dispute resolution procedure shall be electronically or stenographically recorded.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-90 Public participation

A. In general, when a dispute has been referred to dispute resolution, the public shall be so notified by a notice placed in the Virginia Register of Regulations. The public also may be notified by any other means deemed appropriate by the board. The notice shall state the nature of the dispute and the name, telephone number, postal address, and e-mail address of the department staff person to whom a member of the public should apply in order to become a party. The notice shall allow for a response time of at least 10 business days following publication.

B. Anyone who is interested in becoming a party in the pending dispute resolution and who meets the eligibility criteria specified in the definition of "party" in 9VAC25-15-20 shall, within the time allotted in the notice, apply to the department staff person listed in the notice. The application shall include the name, telephone number, postal address, and, if applicable, the fax number and e-mail address of the interested person. The application shall also include a brief statement setting forth the factual nature and the extent of the interest of the requester in the dispute.

C. The director shall respond to the application of the interested person in writing, explaining the obligations of a party to dispute resolution concerning attendance and costs. The director shall also request that the interested person submit a dated and signed statement as follows: "I understand that by becoming a party to dispute resolution, I am obligated to abide by Virginia law and regulations concerning dispute resolution and that I incur partial financial responsibility for the dispute resolution procedure."

D. After receiving the signed and dated statement from the interested person as required by subsection C of this section, the director may consider this person a party and proceed accordingly.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 40, Issue 4, eff. October 9, 2023.

9VAC25-15-100 Standards for and authority of neutral

A. A neutral participating in a dispute resolution procedure pursuant to this chapter shall comply with all provisions of this section. A neutral shall indicate compliance by filing with the director a signed, written statement as follows: "I agree to comply with Virginia's statutes and regulations governing dispute resolution, including § 10.1-1186.3 of the Code of Virginia and 9VAC25-15-10 et seq."

B. A neutral acting as a mediator shall adhere to the Judicial Council of Virginia's Standards of Ethics and Professional Responsibility for Certified Mediators, effective July 1, 2011, and the standards and duty provisions of § 8.01-581.24 of the Code of Virginia. A neutral conducting a nonmediation dispute resolution proceeding shall adhere to the requirements of § 8.01-576.9 of the Code of Virginia.

C. If a complaint is made to the director that a neutral has failed to comply with all the provisions of the applicable regulations, laws, and Judicial Council Standards during a dispute resolution proceeding, the director shall notify the neutral of the complaint and shall give the neutral 10 business days to respond in writing. If the director deems the response unsatisfactory, or if no response is made by the deadline, the director shall remove the neutral from the ongoing dispute resolution process. The parties to the terminated dispute resolution procedure shall decide whether to continue in the same dispute resolution procedure with a new neutral, to begin a new dispute resolution procedure, or to forego further dispute resolution.

D. The recommendation of a neutral is not a case decision as defined in § 2.2-4001 of the Administrative Process Act and therefore may not be appealed.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-110 Resumes of neutrals and descriptions of dispute resolution programs

The department may maintain a file containing the resumes of neutrals and descriptions of dispute resolution programs. The file shall contain a disclaimer stating, "Inclusion of a resume or dispute resolution program description in this file does not constitute an endorsement of a neutral or a dispute resolution program, nor should negative implications be drawn from the fact that a neutral's resume or a dispute resolution program description is not included in this file. Parties are not obligated to choose a neutral or dispute resolution program from those whose resumes and descriptions are maintained in this file."

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-120 Enforcement of written settlement agreement

The board may incorporate the terms of the written settlement agreement into decisions pertinent to the case.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001.

9VAC25-15-130 Referral of disputes to dispute resolution

A. The board, consistent with the provisions of 9VAC25-15-40 G, may refer a dispute to dispute resolution.

B. A party other than the board may request dispute resolution by applying to the director.

1. The application shall contain the following:

a. A request for dispute resolution, specifying mediation or another dispute resolution procedure;

b. The names, postal addresses, telephone numbers, fax numbers, email addresses, or other appropriate communication addresses or numbers of all known parties to the dispute and of their attorneys, if known; and

c. A statement of issues and a summary of the basis for the dispute.

2. Filing an application constitutes consent to referral of the dispute to dispute resolution.

3. Filing an application shall not stay any proceeding and shall have no effect on any procedural or substantive right of any party to the dispute.

4. Under normal circumstances, within 14 business days of the receipt of an application from a party requesting dispute resolution, the director shall review the application to determine if the dispute is suitable for dispute resolution, shall decide which form of dispute resolution is appropriate, and shall notify the parties in writing accordingly.

5. If the director has decided that mediation is appropriate, the provisions of Part III (9VAC25-15-140 et seq.) of this chapter shall apply.

6. If the director has decided that a dispute resolution proceeding other than mediation is appropriate, the director shall specify what that proceeding is. The appointment of the neutral for this proceeding shall follow the procedure for the appointment of a mediator as specified in 9VAC25-15-140. The parties and the neutral shall determine the appropriate procedures for conducting this dispute resolution proceeding.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Part III Mediation Procedures

9VAC25-15-140 Appointment of mediator

A. If the director has decided that mediation is appropriate, any party may nominate a mediator.

B. If all parties agree with the nomination, the director shall appoint that person the mediator for the case and shall notify the parties accordingly.

C. If all parties do not agree with the nomination, the following procedure shall apply:

1. By a date specified by the director, each party shall name up to three mediators who would be acceptable to that party. These mediators may or may not have resumes on file with the department.

2. The director shall compile a list of the names submitted and send it to the parties.

3. Upon receipt of the list, each party may strike two names and return the list to the director within 14 business days following the date on which the list was mailed.

4. On the next business day after the 14-day period expires or as soon as practicable thereafter, the director shall appoint a mediator from the remaining list of names and shall notify the parties accordingly.

D. Once the mediator is appointed, the director shall send the mediator an acceptance form to sign and return. The acceptance form shall require the mediator to append his signature to the following statements:

1. That the mediator agrees to abide by the applicable dispute resolution and mediation statutes, regulations, and ethical standards;

2. That the mediator agrees to attempt to complete the mediation within 60 business days from the date of his appointment; and

3. That the mediator foresees no potential conflict of interest in agreeing to mediate the case. A determination of conflict of interest shall be made by the director or board on a case-by-case basis.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-150 Orientation session

A. Once the mediator has been appointed, the board shall issue a referral to the mediator and the parties. This referral shall include a list of the information that the board, in its preliminary judgment, expects to use in making its final decision regarding the case. This list shall contain the caveat that the board may require other information as yet unspecified at some point in the future. All parties shall attend one orientation session with the mediator unless excused pursuant to subsection B of this section.

B. The board shall excuse a party from participation in the orientation session if, within 14 business days after issuance of the order of referral, a statement signed by the party is filed with the board. This statement shall declare that the mediation process has been explained to the party and that the party does not wish to participate in the orientation session.

C. The orientation session shall be conducted at any place within the Commonwealth of Virginia, at any time, and on any date convenient to the mediator and the parties.

D. At least seven business days before the orientation session, each party shall provide the mediator with a statement outlining his perspective on the facts and issues of the case. At the discretion of the mediator, these statements may be mutually exchanged by the parties.

E. During the orientation session, the parties, assisted by the mediator, shall determine the manner in which the issues in dispute shall be framed and addressed. In the absence of agreement by the parties, the mediator shall make this determination.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-15-160 Continuation, termination, and resolution of mediation

A. Following the orientation session, mediation shall proceed in any manner agreed on by the parties and the mediator in conformance with the provisions of 9VAC25-15-50 through 9VAC25-15-80.

B. Mediation may be terminated through written notice by the permit applicant or the director at any time before settlement is reached.

C. Mediation shall continue if a party other than the permit applicant or the director chooses to opt out of mediation following the orientation session. A party who chooses to opt out of mediation at any time following the orientation session shall not be bound by any written settlement agreement resulting from the mediation but shall be bound by the cost provisions of 9VAC25-15-50 and the confidentiality provisions of 9VAC25-15-80.

D. If the mediation is terminated before settlement is reached, the parties shall resume the same status as before mediation and may proceed with the formal adjudication as if mediation had not taken place. The board shall not refer the case to mediation a second time.

E. If the mediation results in settlement, a written settlement agreement shall be signed and dated by each party or by that party's authorized representative.

History

• Statutory Authority: § 10.1-1186.3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 17, Issue 16, eff. July 1, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

Chapter 20 Fees for Permits and Certificates

Part I General

9VAC25-20-10 Definitions

Unless otherwise defined in this chapter or unless the context clearly indicates otherwise, the terms used in this regulation shall have the meanings ascribed to them by the State Water Control Law, § 62.1-44.3; the board's Virginia Pollutant Discharge Elimination System Permit Regulation, 9VAC25-31-10; the board's Virginia Pollution Abatement Permit Regulation, 9VAC25-32-10; the board's Virginia Water Protection Permit Program Regulation, 9VAC25-210-10; the board's Surface Water Management Area Regulation, 9VAC25-220-10; and the board's Groundwater Withdrawal Regulations, 9VAC25-610-10, including any general permits issued thereunder.

"Applicant" means for the purposes of this chapter any person filing an application for issuance, reissuance, or modification, except as exempted by 9VAC25-20-50, of a permit, certificate or special exception or filing a registration statement or application for coverage under a general permit issued in response to Chapters 3.1 (§ 62.1-44.2 et seq.), 24 (§ 62.1-242 et seq.), and 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.

"Application" means for the purposes of this chapter the forms approved by the department for applying for issuance or reissuance of a permit, certificate or special exception or for filing a registration statement or application for coverage under a general permit issued in response to Chapters 3.1, 24, and 25 of Title 62.1 of the Code of Virginia. In the case of modifications to an existing permit, permit authorization, certificate or special exception requested by the permit, permit authorization, certificate or special exception holder and not exempted by 9VAC25-20-50, the application shall consist of the formal written request and any accompanying documentation submitted by the permit, permit authorization, certificate or special exception holder to initiate the modification.

"Biosolids" means a sewage sludge that has received an established treatment for required pathogen control and is treated or managed to reduce vector attraction to a satisfactory level and contains acceptable levels of pollutants, such that it is acceptable for use for land application, marketing or distribution in accordance with 9VAC25-31 or 9VAC25-32.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Dry tons" means dry weight established as representative of land applied biosolids or industrial residuals, and expressed in units of English tons.

"Existing permit" means for the purposes of this chapter a permit, permit authorization, certificate or special exception issued by the department or general permit issued as a regulation by the board and currently held by an applicant.

"Established fees" means a fee established by the department per dry ton of biosolids or industrial residuals managed by land appliers.

"Industrial residual" means solid or semisolid industrial waste including solids, residues, and precipitates separated or created by the unit processes of a device or system used to treat industrial wastes.

"Land application" means, in regard to sewage, biosolids, and industrial residuals, the distribution of treated wastewater of acceptable quality, referred to as effluent, or stabilized sewage sludge of acceptable quality, referred to as biosolids, or industrial residuals by spreading or spraying on the surface of the land, injecting below the surface of the land, or incorporating into the soil with a uniform application rate for the purpose of fertilizing crops or vegetation or conditioning the soil. Bulk disposal of stabilized sludge or industrial residuals in a confined area, such as in landfills, is not land application. Sites approved for land application of biosolids in accordance with 9VAC25-31 or 9VAC25-32 are not to be considered to be treatment works.

"Land applier" means someone who land applies biosolids or industrial residuals pursuant to a valid permit from the department as set forth in 9VAC25-31 or 9VAC25-32.

"Local monitor" means a person or persons employed by local government to perform the duties of monitoring the operations of land appliers pursuant to a local ordinance.

"Major modification" means for the purposes of this chapter modification or amendment of an existing permit, permit authorization, certificate or special exception before its expiration which is not a minor modification as defined in this regulation.

"Major reservoir" means for the purposes of this chapter any new or expanded reservoir with greater than or equal to 17 acres of total surface water impacts (stream and wetlands), or a water withdrawal of greater than or equal to 3,000,000 gallons in any one day.

"Minor modification" means for the purposes of this chapter minor modification or amendment of an existing permit, permit authorization, certificate or special exception before its expiration as specified in 9VAC25-31-400, 9VAC25-32-240, 9VAC25-210-180, 9VAC25-220-230, or 9VAC25-610-330. Minor modification for the purposes of this chapter also means other modifications and amendments not requiring extensive review and evaluation including, but not limited to, changes in EPA promulgated test protocols, increasing monitoring frequency requirements, changes in sampling locations, and changes to compliance dates within the overall compliance schedules. A minor permit modification or amendment does not substantially alter permit conditions, substantially increase or decrease the amount of surface water impacts, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.

"Minor reservoir" means for the purposes of this chapter any new or expanded reservoir with less than 17 acres of total surface water impacts (stream and wetlands), or a water withdrawal of less than 3,000,000 gallons in any one day.

"New permit" means for the purposes of this chapter a permit, permit authorization, certificate or special exception issued by the department or coverage issued, pursuant to a general permit issued as a regulation adopted by the board, to an applicant that does not currently hold and has never held a permit, permit authorization, certificate or special exception of that type, for that activity, at that location.

"Reimbursement application" means forms approved by the department to be used to apply for reimbursement of local monitoring costs for land application of biosolids or industrial residuals in accordance with the provisions of this regulation. The application shall consist of a formal written request and any accompanying documentation submitted by a local government in accordance with a local ordinance.

"Revoked permit" means, for the purposes of this chapter, an existing permit, permit authorization, certificate or special exception which is terminated by the department before its expiration.

"Single jurisdiction" means for the purposes of this chapter a single county or city. The term county includes incorporated towns that are part of the county.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 1.1, eff. July 1, 1993; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 32, Issue 5, eff. January 1, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-20-20 Purpose

Section 62.1-44.15:6 of the Code of Virginia requires the promulgation of regulations establishing a fee assessment and collection system to recover a portion of the Department of Environmental Quality's, Department of Game and Inland Fisheries', and the Department of Conservation and Recreation's direct and indirect costs associated with the processing of an application to issue, reissue, or modify any permit, permit authorization or certificate that the board or department has the authority to issue from the applicant for such permit, permit authorization or certificate. Section 62.1-44.19:3 of the Code of Virginia requires the promulgation of regulations establishing a fee to be charged to all permit holders and persons applying for permits and permit modifications associated with land application of biosolids. Section 62.1-44.16 of the Code of Virginia requires the promulgation of regulations requiring the payment of a fee by persons land applying solid or semisolid industrial wastes. Section 62.1-44.19:3 of the Code of Virginia also requires the promulgation of regulations requiring the payment of a fee by persons land applying biosolids. These regulations establish the required fee assessment and collection system.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 1.2, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 5, eff. January 1, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-20-30 (Repealed.)

History

• Historical Notes: Derived from VR680-01-01 § 1.3, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; repealed, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-20-40 Applicability

A. This chapter applies to:

1. All applicants for issuance of a new permit, permit authorization or certificate, or reissuance of an existing permit, permit authorization or certificate, except as specifically exempt under 9VAC25-20-50 A. The fee due shall be as specified under 9VAC25-20-110 or 9VAC25-20-130.

2. All permit, permit authorization or certificate holders who request that an existing permit, permit authorization or certificate be modified, except as specifically exempt under 9VAC25-20-50 A 3 or 9VAC25-20-50 A 6. The fee due shall be as specified under 9VAC25-20-120.

3. All land appliers land applying biosolids or industrial residuals on permitted sites in the Commonwealth of Virginia. The fee due shall be as specified under 9VAC25-20-146.

B. An applicant for a permit, permit authorization or certificate involving a permit that is to be revoked and reissued shall be considered an applicant for a new permit. The fee due shall be as specified under 9VAC25-20-110.

C. Permit maintenance fees apply to each Virginia Pollutant Discharge Elimination System (VPDES) permit holder and each Virginia Pollution Abatement (VPA) permit holder, except those specifically exempt under 9VAC25-20-50 B of this chapter. The fee due shall be as specified under 9VAC25-20-142.

D. Virginia Water Protection (VWP) Individual/Minimum Instream Flow permit fees apply to any permit for the construction of an intake on a stream or river, or to any permit for the construction of a new intake on an existing reservoir. The fee due shall be as specified under 9VAC25-20-110 or 9VAC25-20-120, as applicable.

E. VWP Individual/Reservoir permit fees apply to any permit for the construction of a new reservoir, or the expansion of an existing reservoir in which one of the purposes of the reservoir is for water supply. The fee due shall be as specified under 9VAC25-20-110 or 9VAC25-20-120, as applicable. VWP Individual/Reservoir permit fees do not apply to the construction of any impoundment, pond or lake in which water supply is not part of the project's purpose.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 1.4, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 31, Issue 24, eff. October 1, 2015; Volume 32, Issue 5, eff. January 1, 2016.

9VAC25-20-50 Exemptions

A. No permit application fees will be assessed to:

1. An applicant for a permit, permit authorization, certificate or special exception pertaining to a farming operation engaged in production for market.

2. An applicant for a permit, permit authorization, or certificate pertaining to maintenance dredging for federal navigation channels or other U.S. Army Corps of Engineers-sponsored or Department of the Navy-sponsored dredging projects.

3. Permit holders who request minor modifications or minor amendments to permits, permit authorizations or certificates as defined in 9VAC25-20-10.

4. Permit, permit authorization or certificate holders whose permits, permit authorizations or certificates are modified or amended at the initiative of the department.

5. VPDES permit holders or VPA permit holders for the regularly scheduled renewal of an individual permit for an existing facility, except VPDES and VPA permit holders whose permits expire on or before December 27, 2004.

6. An applicant for a permit, permit authorization, permit modification, or certificate pertaining solely to biosolids research.

B. No permit maintenance fees will be assessed to:

1. VPDES and VPA facilities operating under a general permit.

2. Permits pertaining to a farming operation engaged in production for market.

3. Virginia Water Protection (VWP), Surface Water Withdrawal (SWW), and Ground Water Withdrawal (GWW) permits, permit authorizations, certificates and special exceptions.

4. Permits pertaining solely to biosolids research.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 1.5, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 27, Issue 26, eff. September 28, 2011; Volume 31, Issue 24, eff. October 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

Part II Payment, Deposits, and Use of Fees

9VAC25-20-60 Due dates

A. Virginia Pollutant Discharge Elimination System (VPDES) and Virginia Pollution Abatement (VPA) permits.

1. Application fees for all new permit applications are due on the day an application is submitted and shall be paid in accordance with 9VAC25-20-70 A. Applications will not be processed without payment of the required fee.

2. For reissuance of permits that expire on or before December 27, 2004, the application fee for new permit applications as set forth in this regulation is due on the day the application is submitted.

3. An application fee is due on the day an application is submitted for either a major modification or a permit reissuance that occurs (and becomes effective) before the stated permit expiration date. There is no application fee for a regularly scheduled renewal of an individual permit for an existing facility, unless the permit for the facility expires on or before December 27, 2004. There is no application fee for a major modification or amendment that is made at the department's initiative.

4. Permit maintenance fees shall be paid to the department by October 1 of each year. Additional permit maintenance fees for facilities that are authorized to land apply, distribute, or market biosolids; are in a toxics management program; or have more than five process wastewater discharge outfalls at a single facility (not including "internal" outfalls) shall also be paid to the department by October 1 of each year. No permit will be reissued or administratively continued without payment of the required fee.

a. Existing individual permit holders with an effective permit as of July 1, 2004, (including permits that have been administratively continued) shall pay the permit maintenance fee or fees to the department by October 1, 2004, unless one of the following conditions apply:

(1) The permit is terminated prior to October 1, 2004; or

(2) The permit holder applied or reapplied for a municipal minor VPDES permit with a design flow of 10,000 gallons per day or less between July 1, 2003, and July 1, 2004, and paid the applicable permit application fee.

b. Effective April 1, 2005, any permit holder whose permit is effective as of April 1 of a given year (including permits that have been administratively continued) shall pay the permit maintenance fee or fees to the department by October 1 of that same year.

B. Surface Water Withdrawal (SWW) and Groundwater Withdrawal (GWW) permits.

1. All permit application fees are due on the day an application is submitted and shall be paid in accordance with 9VAC25-20-70 A. Applications will not be processed without payment of the required fee. No permit will be administratively continued without payment of the required fee.

2. For reissuance of GWW permits that expire on or before March 27, 2005, the application fee for new permit applications as set forth in this regulation is due on the day the application is submitted.

3. Application fees for major modifications or amendments are due on the day an application is submitted. Applications will not be processed without payment of the required fee. There is no fee for a major modification or amendment that is made at the department's initiative.

C. Virginia Water Protection (VWP) permits.

1. VWP permit application fees shall be paid in accordance with 9VAC25-20-70 A. Review of applications may be initiated before the fee is received; however, draft permits or authorizations shall not be issued prior to payment of the required fee. No permit or permit authorization shall be administratively continued without payment of the required fee.

2. VWP application fees for major modifications shall be paid in accordance with 9VAC25-20-70 A. Review of applications may be initiated before the fee is received; however, major modifications shall not be issued prior to payment of the required fee. There is no application fee for a major modification that is made at the department's initiative.

D. Land application fees for biosolids and industrial residuals. The department may bill the land applier for amounts due following the submission of the monthly land application report. Payments are due 30 days after receipt of a bill from the department. No permit or modification of an existing permit will be approved in the jurisdiction where payment of the established fee by the land applier has not been received by the due date; until such time that the fees are paid in full. Existing permits may be revoked or approved sources may be reclassified as unapproved unless the required fee is paid by the due date. No permit will be reissued or administratively continued or modified without full payment of any past due fee.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 2.1, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 5, eff. January 1, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-20-70 Method of payment

A. Fees shall be paid by check, draft or postal money order payable to the Treasurer of Virginia, or submitted electronically (if available), and must be in U.S. currency, except that agencies and institutions of the Commonwealth of Virginia may submit Interagency Transfers for the amount of the fee. All fees shall be sent to the following address (or submitted electronically, if available): Department of Environmental Quality, Receipts Control, P.O. Box 1105, Richmond, Virginia 23218.

B. Required information. All applicants for new permit issuance, permit reissuance or permit modification shall submit the following information along with the fee payment:

1. Applicant name, address and daytime phone number.

2. Applicant Federal Identification Number (FIN).

3. The name of the facility/activity, and the facility/activity location.

4. The type of permit applied for.

5. Whether the application is for a new permit issuance, permit reissuance or permit modification.

6. The amount of fee submitted.

7. The existing permit number, if applicable.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.15:6 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 2.2, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 28, Issue 18, eff. June 6, 2012.

9VAC25-20-80 Incomplete payments and late payments

All incomplete payments will be deemed as nonpayments.

Interest may be charged for late payments at the underpayment rate set out by the U.S. Internal Revenue Service established pursuant to § 6621(a)(2) of the Internal Revenue Code. This rate is prescribed in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate.

A 10% late payment fee may be charged to any delinquent (over 90 days past due) account.

The Department of Environmental Quality is entitled to all remedies available under the Code of Virginia in collecting any past due amount and may recover any attorney's fees and other administrative costs incurred in pursuing and collecting any past due amount.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 2.3, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004.

9VAC25-20-90 Deposit and use of fees

A. Sludge Management Fund. All land application fees collected from permit holders who land apply biosolids or industrial residuals in the Commonwealth of Virginia and fees collected from permit holders and persons applying for permits and permit modifications pursuant to § 62.1-44.19:3 of the Code of Virginia shall be deposited into the Sludge Management Fund established by and used and accounted for as specified in §§ 62.1-44.16 and 62.1-44.19:3 of the Code of Virginia. Payments to the Department of Conservation and Recreation for their costs related to implementation of the biosolids land application program and to localities with duly adopted ordinances providing for the testing and monitoring of the land application of biosolids or industrial residuals will be made from this fund. Such ordinance may provide for testing and monitoring for PFAS, as that term is defined in § 62.1-44.34:29 of the Code of Virginia, using an applicable test method established by the U.S. Environmental Protection Agency; however, no expenses for such testing and monitoring shall be eligible for reimbursement from the Sludge Management Fund. Fees collected shall be exempt from statewide indirect costs charged and collected by the Department of Accounts and shall not supplant or reduce the general fund appropriation to the department.

B. State Water Control Board Permit Program Fund. All fees collected in response to this chapter and not deposited into the Sludge Management Fund shall be deposited into the State Water Control Board Permit Program Fund established by and used and accounted for as specified in § 62.1-44.15:7 of the Code of Virginia. Payment to the Departments of Conservation and Recreation and of Wildlife Resources for permit applications they are required under state law to review will be made from this fund. Fees collected shall be exempt from statewide indirect costs charged and collected by the Department of Accounts.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 2.4, eff. July 1, 1993; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 5, eff. January 1, 2016; Volume 42, Issue 25, eff. August 26, 2026.

Part III Determination of Fee Amount

9VAC25-20-100 General

Each application for a new permit, permit authorization or certificate, each application for reissuance of a permit, permit authorization or certificate, each application for major modification of a permit, permit authorization or certificate, each revocation and reissuance of a permit, permit authorization or certificate, and each application of a dry ton of biosolids or industrial residuals is a separate action and shall be assessed a separate fee, as applicable. The fees for each type of permit, permit authorization or certificate that the board or department has the authority to issue, reissue or modify will be as specified in this part.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 3.1, eff. July 1, 1993; amended, Virginia Register Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 5, eff. January 1, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-20-110 Fee schedules for individual VPDES and VPA new permit issuance, and individual VWP, SWW, and GWW new permit issuance and existing permit reissuance

A. Virginia Pollutant Discharge Elimination System (VPDES) permits. The following fee schedules apply to applications for issuance of a new individual VPDES permit or certificate. (Note: All flows listed in the table below are facility "design" flows.)

| | VPDES Industrial Major | $24,000 | | --- | --- | --- | | VPDES Municipal Major | $21,300 | | | VPDES Industrial Minor/No Standard Limits | $10,200 | | | VPDES Industrial Minor/Standard Limits | $3,300 | | | VPDES Industrial Stormwater | $7,200 | | | VPDES Municipal Minor/Greater Than 100,000 GPD | $7,500 | | | VPDES Municipal Minor/10,001 GPD-100,000 GPD | $6,000 | | | VPDES Municipal Minor/1,001 GPD-10,000 GPD | $5,400 | | | VPDES Municipal Minor/1,000 GPD or less | $2,000 | | | VPDES Municipal - The authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge | $5,000* | | | | *For a new VPDES permit that includes authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge, the $5,000 biosolids permit fee will be paid in addition to the required VPDES permit fee. | |

B. Virginia Pollution Abatement (VPA) permits. The following fee schedules apply to applications for issuance of a new individual VPA permit or certificate.

| | VPA Concentrated Animal Feeding Operation | (Reserved) | | --- | --- | --- | | VPA Intensified Animal Feeding Operation | (Reserved) | | | VPA Industrial Wastewater Operation/Land Application of 10 or More Inches Per Year | $15,000 | | | VPA Industrial Wastewater Operation/Land Application of Less Than 10 Inches Per Year | $10,500 | | | VPA Industrial Sludge Operation | $7,500 | | | VPA Combined Sludge Operation - Industrial Sludge (excluding water treatment plant residuals) and Municipal Biosolids | $7,500 | | | VPA Municipal Wastewater Operation | $13,500 | | | VPA Municipal Biosolids Operation | $5,000 | | | All other operations not specified above | $750 | |

C. Virginia Water Protection (VWP) permits. The following fee schedules apply to applications for issuance of a new individual and reissuance of an existing individual VWP permit or certificate. Only one permit application fee shall be assessed per application; for a permit application involving more than one of the operations described below, the governing fee shall be based upon the primary purpose of the proposed activity. (Note: Withdrawal amounts shown in the table below are maximum daily withdrawals.)

| | VWP Individual/Surface Water Impacts (Wetlands, Streams and/or Open Water) | $2,400 plus $220 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($60,000 maximum) | | --- | --- | --- | | VWP Individual/Minimum Instream Flow - Withdrawals equal to or greater than 3,000,000 gallons on any day | $25,000 | | | VWP Individual/Minimum Instream Flow - Withdrawals between 2,000,000 and 2,999,999 gallons on any day | $20,000 | | | VWP Individual/Minimum Instream Flow - Withdrawals between 1,000,000 and 1,999,999 gallons on any day | $15,000 | | | VWP Individual/Minimum Instream Flow - Withdrawals less than 1,000,000 gallons on any day that do not otherwise qualify for a general VWP permit for water withdrawals | $10,000 | | | VWP Individual/Reservoir - Major | $35,000 | | | VWP Individual/Reservoir - Minor | $25,000 | | | VWP Individual/Nonmetallic Mineral Mining | $2,400 plus $220 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($7,500 maximum) | |

D. Surface Water Withdrawal (SWW) permits or certificates issued in response to Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia. The following fee schedules apply to applications for issuance of a new individual, and reissuance of an existing individual SWW permit or certificate.

| | Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) | | --- | --- | --- | | Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) | | | Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) | | | Surface Water Withdrawal | $12,000 | |

E. Groundwater Withdrawal (GWW) permits issued in response to Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia. The following fee schedules apply to applications for issuance of a new individual, and reissuance of an existing individual GWW permit or certificate.

| | Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) | | --- | --- | --- | | Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) | | | Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) | | | Groundwater Withdrawal/Initial Permit for an Existing Withdrawal Based Solely on Historic Withdrawals | $1,200 | | | Groundwater Withdrawal - effective through December 31, 2018 | $6,000 | | | | Groundwater Withdrawal - effective January 1, 2019 | $9,000 |

History

• Statutory Authority: § 62.1-44.15:6 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 3.2, eff. July 1, 1993; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 35, Issue 4, eff. November 14, 2018; Volume 37, Issue 1, eff. October 15, 2020.

9VAC25-20-120 Fee schedules for major modification of individual permits or certificates requested by the permit or certificates holder

The following fee schedules apply to applications for major modification of an individual permit or certificate requested by the permit or certificate holder:

1. Virginia Pollutant Discharge Elimination System (VPDES) permits. The application fees listed in the table below apply to a major modification that occurs (and becomes effective) before the stated permit expiration date. (Note: All flows listed in the table below are facility "design" flows.)

| | VPDES Industrial Major | $12,000 | | --- | --- | --- | | VPDES Municipal Major | $10,650 | | | VPDES Industrial Minor/No Standard Limits | $5,100 | | | VPDES Industrial Minor/Standard Limits | $3,300 | | | VPDES Industrial Stormwater | $3,600 | | | VPDES Municipal Minor/Greater Than 100,000 GPD | $3,750 | | | VPDES Municipal Minor/10,001 GPD - 100,000 GPD | $3,000 | | | VPDES Municipal Minor/1,001 GPD - 10,000 GPD | $2,700 | | | VPDES Municipal - modification relating to the authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge | $1,000* | | | VPDES Municipal Minor/1,000 GPD or Less | $1,000 | | | | *The fee for modification of a VPDES permit due to changes relating to authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge shall be $1,000, notwithstanding other modification fees incurred. The modification fee shall apply for any addition of land application sites to a permit. | |

2. Virginia Pollution Abatement (VPA) permits. The application fees listed in the table below apply to a major modification that occurs (and becomes effective) before the stated permit expiration date.

| | VPA Concentrated Animal Feeding Operation | (Reserved) | | --- | --- | --- | | VPA Intensified Animal Feeding Operation | (Reserved) | | | VPA Industrial Wastewater Operation/Land Application of 10 or More Inches Per Year | $7,500 | | | VPA Industrial Wastewater Operation/Land Application of Less Than 10 Inches Per Year | $5,250 | | | VPA Industrial Sludge Operation | $3,750¹ | | | VPA Combined Sludge Operation - Industrial Sludges (excluding water treatment plant residuals) and Municipal Biosolids | $3,750¹ | | | VPA Municipal Wastewater Operation | $6,750 | | | VPA Municipal Biosolids Operation | $1,000^{1, 2} | | | All other operations not specified above | $375 | | | | ¹ The modification fee shall apply for any addition of land application sites to a permit. ²When adding any industrial source (excluding water treatment plant residuals) to a permit that only authorizes the land application of municipal biosolids, the modification fee for a VPA combined sludge operation shall apply. | |

3. Virginia Water Protection (VWP) permits. (Note: Only one permit application fee shall be assessed per application; for a permit application involving more than one of the operations described below, the governing fee shall be based upon the primary purpose of the proposed activity.)

| | VWP Individual/Surface Water Impacts (Wetlands, Streams and/or Open Water) | $1,200 plus $110 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($30,000 maximum) | | --- | --- | --- | | VWP Individual/Minimum Instream Flow | $5,000 | | | VWP Individual/Reservoir (Major or Minor) | $12,500 | | | VWP Individual/Nonmetallic Mineral Mining | $1,200 plus $110 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($3,750 maximum) | |

4. Surface Water Withdrawal (SWW) permits or certificates issued in response to Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.

| | Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) | | --- | --- | --- | | Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) | | | Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) | | | Surface Water Withdrawal | $6,000 | |

5. Groundwater Withdrawal (GWW) permits issued in response to Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.

| | Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) | | --- | --- | --- | | Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) | | | Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) | | | Groundwater Withdrawal/Initial Permit for an Existing Withdrawal Based Solely on Historic Withdrawals | $600 | | | Groundwater Withdrawal | $3,000 | |

History

• Statutory Authority: § 62.1-44.15:6 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 3.3, eff. July 1, 1993; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 37, Issue 1, eff. October 15, 2020.

9VAC25-20-130 Fees for filing registration statements or applications for general permits issued by the board

The following fees apply to filing of applications or registration statements for all general permits issued by the board, except:

1. The fee for filing a registration statement for coverage under 9VAC25-110 (General VPDES Permit for Domestic Sewage Discharges of Less Than or Equal to 1,000 GPD) is $0.

2. The fee for filing a registration statement for coverage under 9VAC25-120 (General VPDES Permit Regulation for Discharges from Petroleum Contaminated Sites) is $0.

3. The fee for filing an application or registration statement for coverage under a VWP General Permit issued by the board shall be:

| VWP General/Less Than 4,356 sq. ft. (1/10 acre) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $0 | | --- | --- | | VWP General/4,356 sq. ft. to 21,780 sq. ft. (1/10 acre to 1/2 acre) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $600 | | VWP General/21,781 sq. ft. to 43,560 sq. ft. (greater than 1/2 acre to one acre) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $1,200 | | VWP General/43,561 sq. ft. to 87,120 sq. ft. (greater than one acre to two acres) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $1,200 plus $120 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 43,560 sq. ft. (one acre) ($2,400 maximum) | | VWP General/Minimum Instream Flow/Reservoir - Water withdrawals and/or pond construction | $2,400 |

4. The fee for filing a registration statement for coverage under a VPDES general permit issued as a regulation adopted by the board for an industrial stormwater permit issued by the department shall be $500.

5. Except as specified in subdivisions 1, 2, 3 and 4 of this section, the fee for filing an application or registration statement for coverage under any general permit issued by the board shall be $600.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from VR680-01-01 § 3.4, eff. July 1, 1993; amended, Virginia Register Volume 19, Issue 18, eff. July 1, 2003; Volume 20, Issue 23, eff. July 1, 2004; Volume 24, Issue 6, eff. January 1, 2008; Volume 37, Issue 1, eff. October 15, 2020; Volume 39, Issue 5, eff. November 23, 2022; Errata, 41:5 VA.R. 734 October 21, 2024.

9VAC25-20-140 (Repealed.)

Historical Notes

Derived from VR680-01-01 § 3.5, eff. July 1, 1993; repealed, Virginia Register Volume 20, Issue 23, eff. July 1, 2004.

9VAC25-20-142 Permit maintenance fees

A. The following annual permit maintenance fees apply to each individual VPDES and VPA permit, including expired permits that have been administratively continued, except those exempted by 9VAC25-20-50 B or 9VAC25-20-60 A 4:

1. Base fee rate for Virginia Pollutant Discharge Elimination System (VPDES) permitted facilities. (Note: All flows listed in the table below are facility "design" flows.)

| VPDES Industrial Major | $7,876 | | --- | --- | | VPDES Municipal Major/Greater Than 10 MGD | $7,794 | | VPDES Municipal Major/2 MGD - 10 MGD | $7,138 | | VPDES Municipal Major/Less Than 2 MGD | $6,317 | | VPDES Industrial Minor/No Standard Limits | $3,347 | | VPDES Industrial Minor/Standard Limits | $1,969 | | VPDES Industrial Minor/Water Treatment System | $1,969 | | VPDES Industrial Stormwater | $2,363 | | VPDES Municipal Minor/Greater Than 100,000 GPD | $2,461 | | VPDES Municipal Minor/10,001 GPD - 100,000 GPD | $1,969 | | VPDES Municipal Minor/1,001 GPD - 10,000 GPD | $1,772 | | VPDES Municipal Minor/1,000 GPD or Less | $656 |

2. Base fee rate for Virginia Pollution Abatement (VPA) permits.

| VPA Industrial Wastewater Operation/Land Application of 10 or More Inches Per Year | $2,461 | | --- | --- | | VPA Industrial Wastewater Operation/Land Application of Less Than 10 Inches Per Year | $1,723 | | VPA Industrial Sludge Operation | $1,231 | | VPA Combined Sludge Operation - Industrial Sludges (excluding water treatment plant residuals) and Municipal Biosolids | $1,231 | | VPA Municipal Wastewater Operation | $2,215 | | VPA Municipal Biosolids Operation | $100 | | VPA Concentrated Animal Feeding Operation | (Reserved) | | VPA Intensified Animal Feeding Operation | (Reserved) | | All other operations not specified above | $123 |

3. The amount of the annual permit maintenance fee due from the owner for VPDES and VPA permits for a specified year as required by 9VAC25-20-40 C shall be calculated according to the following formulae:

| | F = | B x C | | --- | --- | --- | | | C = | 1 + ΔCPI | | | ΔCPI = | CPI - 215.15 | | 215.15 | | |

Where:

F = the permit maintenance fee amount due for the specified calendar year, expressed in dollars.

B = the base fee rate for the type of VPDES or VPA permit from subdivision 1 or 2 of this subsection, expressed in dollars.

C = the Consumer Price Index adjustment factor.

ΔCPI = the difference between CPI and 215.15 (the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30, 2009), expressed as a proportion of 215.15.

CPI = the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30 of the calendar year before the specified year for which the permit maintenance fee is due. (The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0).

For example, if calculating the 2010 permit maintenance fee (F) for a VPDES Industrial Major source:

CPI = 215.15 (the average of CPI values from May 1, 2008, to April 30, 2009, inclusive would be used for the 2010 permit maintenance fee calculation).

ΔCPI = zero for the 2010 permit maintenance fee calculation (i.e., (CPI - 215.15)/215.15 = (215.15 - 215.15)/215.15 = 0). (Note: ΔCPI for other years would not be zero.)

C = 1.0 for the 2010 permit maintenance fee calculation (i.e., 1 + ΔCPI = 1 + 0 = 1.0).

B = $7,876 (i.e. the value for a VPDES Industrial Major source, taken from subdivision 1 of this subsection).

F = $7,876 for the 2010 permit maintenance fee calculation for this VPDES Industrial Major source (i.e., $7,876 x 1.0 = $7,876).

4. Permit maintenance fees (F) calculated for each facility shall be rounded to the nearest dollar.

5. The total amount of permit fees collected by the department (permit maintenance fees plus permit application fees) shall not exceed 50% of direct costs for administration, compliance, and enforcement of VPDES and VPA permits. The director shall take whatever action is necessary to ensure that this limit is not exceeded.

B. Additional permit maintenance fees.

1. An additional permit maintenance fee of $1,000 shall be paid annually by permittees in a toxics management program. Any facility that performs acute or chronic biological testing for compliance with a limit or special condition requiring monitoring in a VPDES permit is included in the toxics management program.

2. An additional permit maintenance fee of $1,000 shall be paid annually by permittees that have more than five process wastewater discharge outfalls at a single facility (not including "internal" outfalls).

3. For a local government or public service authority with permits for multiple facilities in a single jurisdiction, the total permit maintenance fees for all permits held as of April 1, 2004, shall not exceed $32,818 per year.

C. If the category of a facility (as described in subdivision A 1 or A 2 of this section) changes as the result of a permit modification, the permit maintenance fee based upon the permit category as of April 1 shall be submitted by October 1.

D. Annual permit maintenance fees may be discounted for participants in the Environmental Excellence Program as described in 9VAC25-20-145.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004; amended, Virginia Register Volume 26, Issue 23, eff. August 18, 2010; Volume 29, Issue 24, eff. September 1, 2013; Volume 37, Issue 1, eff. October 15, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-20-145 Discounted permit maintenance fees for Environmental Excellence Program participants

A. The term "Virginia Environmental Excellence Program" (VEEP) means a voluntary program established by the department to provide public recognition and regulatory incentives to encourage higher levels of environmental performance for program participants that develop and implement Environmental Management Systems (EMS). The program is based on the use of EMSs that improve compliance, prevent pollution, and utilize other measures to improve environmental performance.

B. Participants in the VEEP shall be eligible for reduced annual permit maintenance fees. The VEEP includes the Environmental Enterprise (E2) level of participation and the Exemplary Environmental Enterprise (E3) level of participation.

C. Annual permit maintenance fee discounts will not become effective until 2005. The availability of discounts to the annual permit maintenance fees will be dependent upon acceptance and continued participation in the VEEP.

D. Eligibility for reduced annual permit maintenance fees shall be based upon the department's review of the annual report that is required to be submitted by the VEEP. The department shall review annual reports to verify that facilities continue to meet VEEP criteria prior to offering discounted annual permit maintenance fees.

1. The participant's annual report must reflect activities occurring through December 31 and must satisfy all reporting requirements established in the VEEP.

2. Annual reports must be received at the department's central office by April 1 of the following year to be eligible for a reduction of the annual permit maintenance fees.

3. The annual report must list all regulated and permitted activities included within the scope of the facility's Environmental Management System.

4. A participant's level of participation will be evaluated as of December 31 of each calendar year.

E. If a facility participated in the VEEP but participation in the program was terminated, discounted fees will not be available to participants until they have been reaccepted into the VEEP.

F. Participants at the E2 level of participation will be eligible to receive a discount to annual permit maintenance fees for up to a maximum of three years.

G. Prior to distributing bills for annual permit maintenance fees, the department shall calculate the discounted annual permit maintenance fees. The total amount of all facilities' discounts to water annual permit maintenance fees shall not exceed $64,000 annually.

1. The total of a 5.0% discount for each participant at the E3 level of participation and a 2.0% discount for each participant at the E2 level of participation shall be calculated.

2. If the calculated total of the discounts to annual permit maintenance fees would exceed $64,000, annual permit maintenance fees for participants at the E3 level of participation shall be discounted 2.0%, additional discounts of annual permit maintenance fees for participants at the E3 level of participation shall not be available, and annual permit maintenance fees for participants at the E2 level of participation shall not be discounted.

3. If the calculated total of the discounts to annual permit maintenance fees would not exceed $64,000, annual permit maintenance fees for participants at the E3 level of participation shall be discounted 5.0%, annual permit maintenance fees for participants at the E2 level of participation shall be discounted 2.0%, and a larger discount may be provided for participants at the E3 level of participation, based upon direct program costs and program revenues, not to exceed a total discount of 20%. The total of all discounts shall not exceed $64,000. Any additional discounted fees will be calculated as follows:

(Total program revenues in the previous fiscal year minus direct program costs for the previous fiscal year) multiplied by 0.75 equals the additional discounts to be distributed to program participants. Additional discounts will be distributed to participants at the E3 level of participation in equal whole percentages.

4. If the calculated total of all facilities' discounts to annual fees exceeds $64,000, the department shall reevaluate the discounts offered to VEEP participants and shall begin the regulatory process to revise the discounts offered to VEEP participants.

History

• Statutory Authority: § 62.1-44.15:6 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. July 1, 2004.

Part IV Biosolids and Industrial Residuals Fees and Reimbursable Costs

9VAC25-20-146 Established fees

A. Land appliers shall remit the established fees to the department as specified in this regulation. The land appliers shall collect the required fees from the owners of the sewage treatment works and facilities that generate Class B biosolids and exceptional quality biosolids cake that are land applied. The land appliers shall collect the required fees from the owners of the industrial waste treatment facilities and other facilities that generate the industrial residuals that are land applied in localities that have adopted ordinances in accordance with § 62.1-44.16 D of the Code of Virginia. Such works and facilities shall be approved sources of biosolids or industrial residuals in accordance with 9VAC25-31 or 9VAC25-32. Land application shall only include biosolids or industrial residuals from approved sources as listed in the land application permit. The established fee shall be imposed on each dry ton of Class B biosolids and exceptional quality biosolids cake that is land applied in the Commonwealth of Virginia in accordance with 9VAC25-31 or 9VAC25-32. The established fee shall be imposed on each dry ton of industrial residuals that is land applied in localities that have adopted ordinances in accordance with § 62.1-44.16 D of the Code of Virginia.

B. The amount of the established fee and disbursement are as follows:

1. The fee shall be $7.50 per dry ton of Class B biosolids land applied in the Commonwealth of Virginia.

2. The fee shall be $3.75 per dry ton of exceptional quality biosolids land applied as a cake in the Commonwealth of Virginia.

3. The fee shall be $5.00 per dry ton of industrial residuals land applied in localities that have adopted ordinances in accordance with § 62.1-44.16 D of the Code of Virginia.

4. Disbursement of the established fees collected by the department for the land application of biosolids or industrial residuals shall be made to reimburse or partially reimburse those counties, cities and towns with duly adopted local ordinances that submit documentation of reimbursable expenses acceptable to the department as provided for in this regulation.

5. Disbursement of the established fees collected by the department for the land application of biosolids shall be made to reimburse the Department of Conservation and Recreation's costs for implementation of the biosolids application program.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 31, Issue 24, eff. October 1, 2015; Volume 32, Issue 5, eff. January 1, 2016.

9VAC25-20-147 Records and reports

A. Records. Permittees shall maintain complete records of the land application activities and amounts of Class B biosolids, exceptional quality biosolids cake, and industrial residuals that they land apply in the Commonwealth of Virginia. Such records shall be maintained by the permittee for five years after the date of the activity in a form that is available for inspection by the department. Records of land application activities shall include at minimum:

1. Name of permittee, DEQ permit number, and dates of activity.

2. Identification of land application site, including the DEQ control number.

3. The source of Class B biosolids, exceptional quality biosolids cake, or industrial residuals and the field area receiving those biosolids or industrial residuals.

4. The amount of Class B biosolids, exceptional quality biosolids cake, or industrial residuals applied in dry tons and the method and calculations used to determine the reported value.

5. Name of responsible representative of permittee and a statement signed and dated by that representative indicating that the information submitted has been verified by that representative as correctly reported in accordance with this regulation.

B. Reports and notification. The permittee shall submit a monthly report by the 15th day of each month for land application activity that occurred in the previous calendar month, unless another date is specified in the permit in accordance with 9VAC25-32-80 I 4. The report shall include (i) the recorded information listed in subsection A of this section and (ii) a calculation of the total fee. The submitted report shall include a summary list of the total amount of Class B biosolids, exceptional quality biosolids cake, and industrial residuals land-applied and the calculated fee based on the land-applied Class B biosolids, exceptional quality biosolids cake, and industrial residuals for each county in which land application occurred. If no land application occurs under a permit during the calendar month, a report shall be submitted stating that no land application occurred.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 31, Issue 24, eff. October 1, 2015; Volume 32, Issue 5, eff. January 1, 2016.

9VAC25-20-148 Reimbursable local monitoring costs

A. Reasonable expenses for the following types of activities may be submitted for reimbursement:

1. Charges for reviewing the permit to identify potential health and environmental protection issues upon notification by the permittee that operations will be initiated on permitted sites.

2. Charges and expenses, including local travel for site monitoring, inspections, collection and delivery of biosolids, industrial residuals, or soil samples to a nearby laboratory and examination of records.

3. Charges for recordkeeping.

4. Charges for complaint and incident response.

5. Charges for biosolids, industrial residuals, and soil sample testing costs.

6. Charges for the training of local monitors.

B. Charges for site monitoring not associated with determining compliance with state or federal law or regulation are ineligible for reimbursement.

C. No expenses for testing and monitoring for PFAS, as that term is defined in § 62.1-44.34:29 of the Code of Virginia, shall be eligible for reimbursement.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 5, eff. January 1, 2016; Volume 42, Issue 25, eff. August 26, 2026.

9VAC25-20-149 Reimbursement of local monitoring costs

A. Reimbursement of local monitoring costs deemed reasonable by the department will be made for costs up to $2.50 per dry ton of biosolids or industrial residuals land applied in a county during the period of time specified in the submitted invoice. Costs of up to $4.00 per dry ton of biosolids or industrial residuals land applied in a county during the period of time that the costs were incurred may be reimbursed with prior approval from the department.

B. Application. A local government must submit a reimbursement application to request reimbursement from the department. All information shall be clearly typed or printed and all required or supporting documents must be attached. The county administrator or designated local monitor shall sign and date the application where indicated. The original signed application with one copy of each of the supporting documents shall be submitted to the department. Applications may not be submitted by facsimile or through electronic means. A reimbursement invoice form as described in this regulation must be completed before a reimbursement application can be submitted. The invoice form must include all expenses for which reimbursement is requested during the designated time period.

C. Application forms and submittal. The application for reimbursement must be submitted within 30 days of the last day of the month in which the reimbursable activity occurred. All applications received after this time frame will be ineligible for reimbursement. The following is a description of the application forms and an explanation of their use. The application forms and detailed instructions can be obtained from the department.

1. Form 1 - Reimbursement Application. An invoice form shall be submitted with each application for reimbursement. The invoice form shall list all reimbursable charges. To be reimbursed for eligible expenses, an applicant must provide documentation to demonstrate that the expenses were incurred. Invoices are acceptable proof of incurred expenses. Invoices signed by the local monitor or agent who performed or managed the monitoring activities shall be legible. All invoices are to include the following:

a. DEQ permit number and site identification;

b. DEQ control number for application fields;

c. Land applier's name;

d. Date and type of activity monitored;

e. Name of local monitor;

f. Number of hours to be reimbursed and charge per hour;

g. List of expenses for which reimbursement is sought; and

h. Type of sampling activity performed and associated laboratory expense vouchers.

2. The application requires the county administrator to certify that the responsible official has read and understands the requirements for reimbursement and that the application submitted is not fraudulent. The local monitor must attest to the accuracy and completeness of the information provided.

3. Form 2 - Multiple Owners Payment Assignment Form. When there are multiple local governments as claimants, a separate, signed and notarized invoice form for each claimant must be filled out and submitted with the application.

D. Processing applications.

1. If contacted by the department regarding an incomplete reimbursement application, an applicant will have 14 days from the date of the call or letter to submit the information requested and correct deficiencies. Extensions of the 14-day deadline will not be granted. An application that does not contain all of the required information after the 14-day time frame may be rejected.

2. Only invoices pertaining to the monitoring activity claimed in the current application will be accepted. Costs omitted from previous claims are ineligible for reimbursement in subsequent claims. Invoices submitted in previous claims are not eligible documentation for reimbursement of costs in subsequent claims. To reduce the risk of disqualification of costs, costs for different monitoring activities should be invoiced separately. If possible, invoices should be structured so that costs are grouped according to task or activity.

E. Reconsideration process.

1. Claimants may submit a written response indicating why they believe costs denied on the reimbursement decision should be paid.

2. If the claimant disagrees with the decision in the reimbursement payment package, a notice of intent (NOI) to object and a reconsideration claim form must be submitted to the department within the filing deadlines specified in the reconsideration procedure package:

a. If filing deadlines are not met, the decision in the reimbursement payment package is final. This written objection shall be in the format specified in the reconsideration procedure package and explain the reasons for disagreement with the decisions in the reimbursement payment letter and supply any additional supporting documentation.

b. Upon receipt of this information and at the claimant's request, the department may schedule a reconsideration meeting to reevaluate the denied costs.

3. Claimants will be given an opportunity to contest the reimbursement decisions in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Within the filing deadline, the claimant must submit a written summary of the issues that will be contested using the reconsideration claim form.

4. The reconsideration procedures provide the department the opportunity to correct certain errors as follows:

a. Failure of the reviewer to verify an invoice form that was received prior to completing the verification package for the reimbursement.

b. Errors the reviewer makes in verifying an invoice form.

c. Failure of the claimant to submit all invoices.

5. Errors ineligible for reconsideration. Notwithstanding the above, some types of errors cannot be corrected using the reconsideration process. It is the responsibility of the claimant or consultant, or both, to ensure that all application forms (invoice forms, and sampling and testing verification) are complete and accurate. The following types of errors may result in a denial of costs:

a. Items omitted from the invoice;

b. Unverified sampling and testing results;

c. Additions or revisions to the invoice forms submitted after the reviewer forwards the verification package to the department;

d. Using one invoice in multiple claims. Invoices submitted in an application cannot be used as documentation for reimbursement of costs in subsequent claims;

e. Failure to claim performed work on the invoice form;

f. Failure to claim sampling and testing costs as authorized; or

g. Failure to obtain prior approval from the department for costs that exceed $2.50 per dry ton of biosolids or industrial residuals land applied.

History

• Statutory Authority: §§ 62.1-44.15:6, 62.1-44.16, and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 5, eff. January 1, 2016.

Part V Delegation of Authority [Repealed]

9VAC25-20-150 (Repealed.)

History

• Historical Notes: Derived from VR680-01-01 § 4.1, eff. July 1, 1993; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Chapter 31 Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation

Part I Definitions and General Program Requirements

9VAC25-31-10 Definitions

"Act" means Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), as amended, 33 USC § 1251 et seq.

"Administrator" means the Administrator of the United States Environmental Protection Agency, or an authorized representative.

"Animal feeding operation" or "AFO" means a lot or facility (other than an aquatic animal production facility) where the following conditions are met: (i) animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and (ii) crops, vegetation forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

"Applicable standards and limitations" means all state, interstate, and federal standards and limitations to which a discharge, a sewage sludge use or disposal practice, or a related activity is subject under the CWA (33 USC § 1251 et seq.) and the law, including effluent limitations, water quality standards, standards of performance, toxic effluent standards or prohibitions, best management practices, pretreatment standards, and standards for sewage sludge use or disposal under §§ 301, 302, 303, 304, 306, 307, 308, 403, and 405 of CWA.

"Approval authority" means the Director of the Department of Environmental Quality.

"Approved POTW Pretreatment Program" or "Program" or "POTW Pretreatment Program" means a program administered by a POTW that meets the criteria established in Part VII (9VAC25-31-730 et seq.) of this chapter and which has been approved by the director or by the administrator in accordance with 9VAC25-31-830.

"Approved program" or "approved state" means a state or interstate program that has been approved or authorized by EPA under 40 CFR Part 123.

"Aquaculture project" means a defined managed water area that uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater, estuarine, or marine plants or animals.

"Average monthly discharge limitation" means the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during that month.

"Average weekly discharge limitation" means the highest allowable average of daily discharges over a calendar week, calculated as the sum of all daily discharges measured during a calendar week divided by the number of daily discharges measured during that week.

"Best management practices" or "BMPs" means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to implement the prohibitions listed in 9VAC25-31-770 and to prevent or reduce the pollution of surface waters. BMPs also include treatment requirements, operating procedures, and practices to control plant site run-off, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

"Biosolids" means a sewage sludge that has received an established treatment and is managed in a manner to meet the required pathogen control and vector attraction reduction, and contains concentrations of regulated pollutants below the ceiling limits established in 40 CFR Part 503 and 9VAC25-31-540, such that it meets the standards established for use of biosolids for land application, marketing, or distribution in accordance with this chapter. Liquid biosolids contains less than 15% dry residue by weight. Dewatered biosolids contains 15% or more dry residue by weight.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Bypass" means the intentional diversion of waste streams from any portion of a treatment facility.

"Class I sludge management facility" means any POTW identified under Part VII (9VAC25-31-730 et seq.) of this chapter as being required to have an approved pretreatment program and any other treatment works treating domestic sewage classified as a Class I sludge management facility by the regional administrator, in conjunction with the director, because of the potential for its sludge use or disposal practices to adversely affect public health and the environment.

"Concentrated animal feeding operation" or "CAFO" means an AFO that is defined as a Large CAFO or as a Medium CAFO, or that is designated as a Medium CAFO or a Small CAFO. Any AFO may be designated as a CAFO by the director in accordance with the provisions of 9VAC25-31-130 B.

1. "Large CAFO." An AFO is defined as a Large CAFO if it stables or confines as many or more than the numbers of animals specified in any of the following categories:

a. 700 mature dairy cows, whether milked or dry;

b. 1,000 veal calves;

c. 1,000 cattle other than mature dairy cows or veal calves. Cattle includes heifers, steers, bulls and cow/calf pairs;

d. 2,500 swine each weighing 55 pounds or more;

e. 10,000 swine each weighing less than 55 pounds;

f. 500 horses;

g. 10,000 sheep or lambs;

h. 55,000 turkeys;

i. 30,000 laying hens or broilers, if the AFO uses a liquid manure handling system;

j. 125,000 chickens (other than laying hens), if the AFO uses other than a liquid manure handling system;

k. 82,000 laying hens, if the AFO uses other than a liquid manure handling system;

l. 30,000 ducks, if the AFO uses other than a liquid manure handling system; or

m. 5,000 ducks if the AFO uses a liquid manure handling system.

2. "Medium CAFO." The term Medium CAFO includes any AFO with the type and number of animals that fall within any of the ranges below that has been defined or designated as a CAFO. An AFO is defined as a Medium CAFO if:

a. The type and number of animals that it stables or confines falls within any of the following ranges:

(1) 200 to 699 mature dairy cattle, whether milked or dry;

(2) 300 to 999 veal calves;

(3) 300 to 999 cattle other than mature dairy cows or veal calves. Cattle includes heifers, steers, bulls and cow/calf pairs;

(4) 750 to 2,499 swine each weighing 55 pounds or more;

(5) 3,000 to 9,999 swine each weighing less than 55 pounds;

(6) 150 to 499 horses;

(7) 3,000 to 9,999 sheep or lambs;

(8) 16,500 to 29,999 laying hens or broilers, if the AFO uses a liquid manure handling system;

(9) 37,500 to 124,999 chickens (other than laying hens), if the AFO uses other than a liquid manure handling system;

(10) 25,000 to 81,999 laying hens, if the AFO uses other than a liquid manure handling system;

(11) 10,000 to 29,999 ducks, if the AFO uses other than a liquid manure handling system;

(12) 1,500 to 4,999 ducks, if the AFO uses a liquid manure handling system; and

b. Either one of the following conditions are met:

(1) Pollutants are discharged into surface waters of the state through a man-made ditch, flushing system, or other similar man-made device; or

(2) Pollutants are discharged directly into surface waters of the state that originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

3. "Small CAFO." An AFO that is designated as a CAFO and is not a Medium CAFO.

"Concentrated aquatic animal production facility" means a hatchery, fish farm, or other facility that meets the criteria of this definition, or that the department designates under 9VAC25-31-140. A hatchery, fish farm, or other facility is a concentrated aquatic animal production facility if it contains, grows, or holds aquatic animals in either of the following categories:

1. Cold water fish species or other cold water aquatic animals in ponds, raceways, or other similar structures that discharge at least 30 days per year but does not include:

a. Facilities that produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year; and

b. Facilities that feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding; or

2. Warm water fish species or other warm water aquatic animals in ponds, raceways, or other similar structures that discharge at least 30 days per year, but does not include:

a. Closed ponds that discharge only during periods of excess run-off; or

b. Facilities that produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) of aquatic animals per year.

Cold water aquatic animals include the Salmonidae family of fish (e.g., trout and salmon).

Warm water aquatic animals include the Ictaluridae, Centrarchidae and Cyprinidae families of fish (e.g., respectively, catfish, sunfish and minnows).

"Contiguous zone" means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone (37 FR 11906).

"Continuous discharge" means a discharge that occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

"Control authority" refers to the POTW if the POTW's pretreatment program submission has been approved in accordance with the requirements of 9VAC25-31-830 or the approval authority if the submission has not been approved.

"Controversial permit" means a water permitting action for which a public hearing has been granted pursuant to 9VAC25-31-315.

"Co-permittee" means a permittee to a VPDES permit that is only responsible for permit conditions relating to the discharge for which it is the operator.

"CWA" means the Clean Water Act (33 USC § 1251 et seq.) (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972) Public Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Public Law 96-483, Public Law 97-117, and Public Law 100-4.

"CWA and regulations" means the Clean Water Act (CWA) and applicable regulations promulgated thereunder. For the purposes of this chapter, it includes state program requirements.

"Daily discharge" means the discharge of a pollutant measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.

"Department" or "DEQ" means the Department of Environmental Quality.

"Designated project area" means the portions of surface within which the permittee or permit applicant plans to confine the cultivated species, using a method or plan or operation (including physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants and be harvested within a defined geographic area.

"Direct discharge" means the discharge of a pollutant.

"Director" means the Director of the Department of Environmental Quality or an authorized representative.

"Discharge," when used without qualification, means the discharge of a pollutant.

"Discharge," when used in Part VII (9VAC25-31-730 et seq.) of this chapter, means "indirect discharge" as defined in this section.

"Discharge of a pollutant" means:

1. Any addition of any pollutant or combination of pollutants to surface waters from any point source; or

2. Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft that is being used as a means of transportation.

This definition includes additions of pollutants into surface waters from: surface run-off that is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger.

"Discharge Monitoring Report" or "DMR" means the form supplied by the department or an equivalent form developed by the permittee and approved by the department, for the reporting of self-monitoring results by permittees.

"Draft permit" means a document indicating the department's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a permit. A notice of intent to terminate a permit, and a notice of intent to deny a permit are types of draft permits. A denial of a request for modification, revocation and reissuance, or termination is not a draft permit. A proposed permit is not a draft permit.

"Effluent limitation" means any restriction imposed by the board or department on quantities, discharge rates, and concentrations of pollutants that are discharged from point sources into surface waters, the waters of the contiguous zone, or the ocean.

"Effluent limitations guidelines" means a regulation published by the administrator under § 304(b) of the CWA to adopt or revise effluent limitations.

"Environmental Protection Agency" or "EPA" means the United States Environmental Protection Agency.

"Existing source" means any source that is not a new source or a new discharger.

"Facilities or equipment" means buildings, structures, process or production equipment or machinery that form a permanent part of a new source and that will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the new source or water pollution treatment for the new source.

"Facility or activity" means any VPDES point source or treatment works treating domestic sewage or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the VPDES program.

"General permit" means a VPDES permit authorizing a category of discharges under the CWA and the law within a geographical area.

"Hazardous substance" means any substance designated under the Code of Virginia and 40 CFR Part 116 pursuant to § 311 of the CWA.

"Incorporated place" means a city, town, township, or village that is incorporated under the Code of Virginia.

"Indian country" means (i) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (ii) all dependent Indian communities with the borders of the United States whether within the originally or subsequently acquired territory thereof, and whether within or without the limits of a state; and (iii) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

"Indirect discharge" means the introduction of pollutants into a POTW from any nondomestic source regulated under § 307(b), (c) or (d) of the CWA and the law.

"Indirect discharger" means a nondomestic discharger introducing pollutants to a POTW.

"Individual control strategy" means a final VPDES permit with supporting documentation showing that effluent limits are consistent with an approved wasteload allocation or other documentation that shows that applicable water quality standards will be met not later than three years after the individual control strategy is established.

"Industrial residual" means solid or semisolid industrial waste including solids, residues, and precipitates separated or created by the unit processes of a device or system used to treat industrial wastes.

"Industrial user" or "user" means a source of indirect discharge.

"Industrial wastes" means liquid or other wastes resulting from any process of industry, manufacture, trade, or business, or from the development of any natural resources.

"Institution of higher education" means a public institution of higher education, as that term is defined in § 23.1-100 of the Code of Virginia.

"Interference" means an indirect discharge that, alone or in conjunction with an indirect discharge or discharges from other sources, both: (i) inhibits or disrupts the POTW, its treatment processes or operations, or its sludge processes, use, or disposal; and (ii) therefore is a cause of a violation of any requirement of the POTW's VPDES permit (including an increase in the magnitude or duration of a violation) or of the prevention of biosolids use or sewage sludge disposal in compliance with the following statutory provisions and regulations or permits issued thereunder (or more stringent state or local regulations): Section 405 of the Clean Water Act, the Solid Waste Disposal Act (SWDA) (including Title II, more commonly referred to as the Resource Conservation and Recovery Act (RCRA) (42 USC § 6901 et seq.), and including state regulations contained in any state sludge management plan prepared pursuant to Subtitle D of the SWDA) the Clean Air Act (42 USC § 701 et seq.), the Toxic Substances Control Act (15 USC § 2601 et seq.), and the Marine Protection, Research and Sanctuaries Act (33 USC § 1401 et seq.).

"Interstate agency" means an agency of two or more states established by or under an agreement or compact approved by Congress, or any other agency of two or more states having substantial powers or duties pertaining to the control of pollution as determined and approved by the administrator under the CWA and regulations.

"Land application" means, in regard to sewage, biosolids, and industrial residuals, the distribution of treated wastewater of acceptable quality, referred to as effluent, or stabilized sewage sludge of acceptable quality, referred to as biosolids, or industrial residuals by spreading or spraying on the surface of the land, injecting below the surface of the land, or incorporating into the soil with a uniform application rate for the purpose of fertilizing crops or vegetation or conditioning the soil. Sites approved for land application of biosolids in accordance with this chapter are not considered to be treatment works. Bulk disposal of stabilized sludge or industrial residuals in a confined area, such as in landfills, is not land application. For the purpose of this chapter, the use of biosolids in agricultural research and the distribution and marketing of exceptional quality biosolids are not land application.

"Land application area" means, in regard to an AFO, land under the control of an AFO owner or operator that is owned, rented, or leased to which manure, litter, or process wastewater from the production area may be applied.

"Land application area" means, in regard to biosolids, the area in the permitted field, excluding the setback area, where biosolids may be applied.

"Local ordinance" means an ordinance adopted by counties, cities, or towns in accordance with § 62.1-44.16 or 62.1-44.19:3 of the Code of Virginia.

"Log sorting facilities" and "log storage facilities" mean facilities whose discharges result from the holding of unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking).

"Major facility" means any VPDES facility or activity classified as such by the regional administrator in conjunction with the department.

"Malodor" means an unusually strong or offensive odor associated with biosolids or sewage sludge as distinguished from odors normally associated with biosolids or sewage sludge.

"Man-made" means constructed by man and used for the purpose of transporting wastes.

"Manure" means manure, bedding, compost and raw materials or other materials commingled with manure or set aside for disposal.

"Maximum daily discharge limitation" means the highest allowable daily discharge.

"Municipal separate storm sewer" means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains): (i) owned or operated by a state, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to state law) having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including special districts under state law, such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under § 208 of the CWA that discharges to surface waters of the state; (ii) designed or used for collecting or conveying stormwater; (iii) that is not a combined sewer; and (iv) that is not part of a publicly owned treatment works (POTW).

"Municipality" means a city, town, county, district, association, or other public body created by or under state law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under § 208 of the CWA.

"National Pollutant Discharge Elimination System" or "NPDES" means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements under §§ 307, 402, 318, and 405 of the CWA. The term includes an approved program.

"National pretreatment standard," "pretreatment standard," or "standard," when used in Part VII (9VAC25-31-730 et seq.) of this chapter, means any regulation containing pollutant discharge limits promulgated by EPA in accordance with § 307(b) and (c) of the CWA, which applies to industrial users. This term includes prohibitive discharge limits established pursuant to 9VAC25-31-770.

"New discharger" means any building, structure, facility, or installation:

1. From which there is or may be a discharge of pollutants;

2. That did not commence the discharge of pollutants at a particular site prior to August 13, 1979;

3. That is not a new source; and

4. That has never received a finally effective VPDES permit for discharges at that site.

This definition includes an indirect discharger that commences discharging into surface waters after August 13, 1979. It also includes any existing mobile point source (other than an offshore or coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a site for which it does not have a permit, and any offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas developmental drilling rig that commences the discharge of pollutants after August 13, 1979.

"New source," except when used in Part VII (9VAC25-31-730 et seq.) of this chapter, means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

1. After promulgation of standards of performance under § 306 of the CWA that are applicable to such source; or

2. After proposal of standards of performance in accordance with § 306 of the CWA that are applicable to such source, but only if the standards are promulgated in accordance with § 306 of the CWA within 120 days of their proposal.

"New source," when used in Part VII of this chapter, means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced after the publication of proposed pretreatment standards under § 307(c) of the CWA that will be applicable to such source if such standards are thereafter promulgated in accordance with that section, provided that:

1. a. The building, structure, facility, or installation is constructed at a site at which no other source is located;

b. The building, structure, facility, or installation totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

c. The production of wastewater generating processes of the building, structure, facility, or installation are substantially independent of an existing source at the same site. In determining whether these are substantially independent, factors such as the extent to which the new facility is integrated with the existing plant, and the extent to which the new facility is engaged in the same general type of activity as the existing source should be considered.

2. Construction on a site at which an existing source is located results in a modification rather than a new source if the construction does not create a new building, structure, facility, or installation meeting the criteria of subdivision 1 b or c of this definition but otherwise alters, replaces, or adds to existing process or production equipment.

3. Construction of a new source as defined under this subdivision has commenced if the owner or operator has:

a. Begun, or caused to begin, as part of a continuous on-site construction program:

(1) Any placement, assembly, or installation of facilities or equipment; or

(2) Significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities that is necessary for the placement, assembly, or installation of new source facilities or equipment; or

b. Entered into a binding contractual obligation for the purchase of facilities or equipment that are intended to be used in its operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this subdivision.

"Overburden" means any material of any nature, consolidated or unconsolidated, that overlies a mineral deposit, excluding topsoil or similar naturally occurring surface materials that are not disturbed by mining operations.

"Owner" means the Commonwealth or any of its political subdivisions including sanitation district commissions and authorities, and any public or private institution, corporation, association, firm or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any actual or potential discharge of sewage, industrial wastes, or other wastes to state waters, or any facility or operation that has the capability to alter the physical, chemical, or biological properties of state waters in contravention of § 62.1-44.5 of the Code of Virginia.

"Owner" or "operator" means the owner or operator of any facility or activity subject to regulation under the VPDES program.

"Pass through" means a discharge that exits the POTW into state waters in quantities or concentrations that, alone or in conjunction with a discharge or discharges from other sources, is a cause of a violation of any requirement of the POTW's VPDES permit (including an increase in the magnitude or duration of a violation).

"Permit" means an authorization, certificate, license, or equivalent control document issued by the department to implement the requirements of this chapter. Permit includes a VPDES general permit issued as a regulation adopted by the board. Permit does not include any permit that has not yet been the subject of final agency action, such as a draft permit or a proposed permit.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Point source" means any discernible, confined, and discrete conveyance including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater run-off.

"Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. It does not mean:

1. Sewage from vessels; or

2. Water, gas, or other material that is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well if the well used either to facilitate production or for disposal purposes is approved by the department, and if the department determines that the injection or disposal will not result in the degradation of ground or surface water resources.

"POTW treatment plant" means that portion of the POTW that is designed to provide treatment (including recycling and reclamation) of municipal sewage and industrial waste.

"Pretreatment" means the reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater prior to or in lieu of discharging or otherwise introducing such pollutants into a POTW. The reduction or alteration may be obtained by physical, chemical, or biological processes, process changes or by other means, except as prohibited in Part VII of this chapter. Appropriate pretreatment technology includes control equipment, such as equalization tanks or facilities, for protection against surges or slug loadings that might interfere with or otherwise be incompatible with the POTW. However, where wastewater from a regulated process is mixed in an equalization facility with unregulated wastewater or with wastewater from another regulated process, the effluent from the equalization facility must meet an adjusted pretreatment limit calculated in accordance with Part VII of this chapter.

"Pretreatment requirements" means any requirements arising under Part VII (9VAC25-31-730 et seq.) of this chapter including the duty to allow or carry out inspections, entry or monitoring activities; any rules, regulations, or orders issued by the owner of a publicly owned treatment works; or any reporting requirements imposed by the owner of a publicly owned treatment works or by the regulations of the board. Pretreatment requirements do not include the requirements of a national pretreatment standard.

"Primary industry category" means any industry category listed in the NRDC settlement agreement (Natural Resources Defense Council et al. v. Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1833 (D.D.C. 1979)); also listed in 40 CFR Part 122 Appendix A.

"Privately owned treatment works" or "PVOTW" means any device or system that is (i) used to treat wastes from any facility whose operator is not the operator of the treatment works and (ii) not a POTW.

"Process wastewater" means any water that, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product. Process wastewater from an AFO means water directly or indirectly used in the operation of the AFO for any of the following: spillage or overflow from animal or poultry watering systems; washing, cleaning, or flushing pens, barns, manure pits, or other AFO facilities; direct contact swimming, washing, or spray cooling of the animals; or dust control. Process wastewater from an AFO also includes any water that comes into contact with any raw materials, products, or byproducts including manure, litter, feed, milk, eggs, or bedding.

"Production area" means that part of an AFO that includes the animal confinement area, the manure storage area, the raw materials storage area, and the waste containment areas. The animal confinement area includes open lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal walkways, and stables. The manure storage area includes lagoons, runoff ponds, storage sheds, stockpiles, under house or pit storages, liquid impoundments, static piles, and composting piles. The raw materials storage areas include feed silos, silage bunkers, and bedding materials. The waste containment area includes settling basins, and areas within berms and diversions that separate uncontaminated stormwater. Also included in the definition of production area is any egg washing or egg processing facility, and any area used in the storage, handling, treatment, or disposal of mortalities.

"Proposed permit" means a VPDES permit prepared after the close of the public comment period (and, when applicable, any public hearing and administrative appeals) which is sent to EPA for review before final issuance. A proposed permit is not a draft permit.

"Publicly owned treatment works" or "POTW" means a treatment works as defined by § 212 of the CWA, which is owned by a state or municipality (as defined by § 502(4) of the CWA). This definition includes any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature. It also includes sewers, pipes, and other conveyances only if they convey wastewater to a POTW treatment plant. The term also means the municipality as defined in § 502(4) of the CWA, which has jurisdiction over the indirect discharges to and the discharges from such a treatment works.

"Recommencing discharger" means a source that recommences discharge after terminating operations.

"Regional administrator" means the Regional Administrator of Region III of the Environmental Protection Agency or the authorized representative of the regional administrator.

"Rock crushing and gravel washing facilities" means facilities that process crushed and broken stone, gravel, and riprap.

"Schedule of compliance" means a schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the law, the CWA and regulations.

"Secondary industry category" means any industry category that is not a primary industry category.

"Secretary" means the Secretary of the Army, acting through the Chief of Engineers.

"Septage" means the liquid and solid material pumped from a septic tank, cesspool, or similar domestic sewage treatment system, or a holding tank when the system is cleaned or maintained.

"Setback area" means the area of land between the boundary of the land application area and adjacent features where biosolids or other managed pollutants may not be land applied.

"Severe property damage" means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

"Sewage from vessels" means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes that are discharged from vessels and regulated under § 312 of CWA.

"Sewage sludge" means any solid, semisolid, or liquid residue removed during the treatment of municipal wastewater or domestic sewage. Sewage sludge includes solids removed during primary, secondary, or advanced wastewater treatment, scum, domestic septage, portable toilet pumpings, type III marine sanitation device pumpings, and sewage sludge products. Sewage sludge does not include grit or screenings, or ash generated during the incineration of sewage sludge.

"Sewage sludge use" or "disposal practice" means the collection, storage, treatment, transportation, processing, monitoring, use of biosolids, or disposal of sewage sludge.

"Significant industrial user" or "SIU" means:

1. Except as provided in subdivisions 2 and 3 of this definition:

a. All industrial users subject to categorical pretreatment standards under 9VAC25-31-780 and incorporated by reference in 9VAC25-31-30; and

b. Any other industrial user that: discharges an average of 25,000 gallons per day or more of process wastewater to the POTW (excluding sanitary, noncontact cooling and boiler blowdown wastewater); contributes a process wastestream which makes up 5.0% or more of the average dry weather hydraulic or organic capacity of the POTW treatment plant; or is designated as such by the control authority, on the basis that the industrial user has a reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement.

2. The control authority may determine that an industrial user subject to categorical pretreatment standards under 9VAC25-31-780 and 40 CFR Chapter I, Subchapter N is a nonsignificant categorical industrial user rather than a significant industrial user on a finding that the industrial user never discharges more than 100 gallons per day (gpd) of total categorical wastewater (excluding sanitary, noncontact cooling and boiler blowdown wastewater, unless specifically included in the pretreatment standard) and the following conditions are met:

a. The industrial user, prior to control authority's finding, has consistently complied with all applicable categorical pretreatment standards and requirements;

b. The industrial user annually submits the certification statement required in 9VAC25-31-840 together with any additional information necessary to support the certification statement; and

c. The industrial user never discharges any untreated concentrated wastewater.

3. Upon a finding that an industrial user meeting the criteria in subdivision 1 b of this definition has no reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement, the control authority may at any time, on its own initiative or in response to a petition received from an industrial user or POTW, and in accordance with Part VII (9VAC25-31-730 et seq.) of this chapter, determine that such industrial user is not a significant industrial user.

"Significant materials" means, but is not limited to: raw materials; fuels; materials such as solvents, detergents, and plastic pellets; finished materials such as metallic products; raw materials used in food processing or production; hazardous substances designated under § 101(14) of CERCLA (42 USC § 9601(14)); any chemical the facility is required to report pursuant to § 313 of Title III of SARA (42 USC § 11023); fertilizers; pesticides; and waste products such as ashes, slag and sludge that have the potential to be released with stormwater discharges.

"Silvicultural point source" means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities that are operated in connection with silvicultural activities and from which pollutants are discharged into surface waters. The term does not include nonpoint source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural run-off. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a CWA § 404 permit.

"Site" means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

"Sludge-only facility" means any treatment works treating domestic sewage whose methods of biosolids use or sewage sludge disposal are subject to regulations promulgated pursuant to the law and § 405(d) of the CWA, and is required to obtain a VPDES permit.

"Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

"Standards for biosolids use or sewage sludge disposal" means the regulations promulgated pursuant to the law and § 405(d) of the CWA that govern minimum requirements for sludge quality, management practices, and monitoring and reporting applicable to sewage sludge or the use of biosolids or disposal of sewage sludge by any person.

"State" means the Commonwealth of Virginia.

"State/EPA agreement" means an agreement between the regional administrator and the state that coordinates EPA and state activities, responsibilities and programs including those under the CWA and the law.

"State Water Control Law" or "Law" means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.

"Stormwater" means stormwater run-off, snow melt run-off, and surface run-off and drainage.

"Stormwater" discharge associated with industrial activity" means the discharge from any conveyance that is used for collecting and conveying stormwater and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the VPDES program under 9VAC25-31. For the categories of industries identified in this definition, the term includes stormwater discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or byproducts used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process wastewaters; sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to stormwater. For the purposes of this definition, material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, byproduct, or waste product. The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots, as long as the drainage from the excluded areas is not mixed with stormwater drained from the above described areas. Industrial facilities (including industrial facilities that are federally, state, or municipally owned or operated that meet the description of the facilities listed in subdivisions 1 through 10 of this definition) include those facilities designated under the provisions of 9VAC25-31-120 A 1 c or under 9VAC25-31-120 A 7 a (1) or (2) of the VPDES Permit Regulation. The following categories of facilities are considered to be engaging in industrial activity for purposes of this subsection:

1. Facilities subject to stormwater effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40 CFR Subchapter N (except facilities with toxic pollutant effluent standards that are exempted under category 10 of this definition);

2. Facilities classified as Standard Industrial Classifications (SIC) 24 (except 2434), 26 (except 265 and 267), 28 (except 283 and 285), 29, 311, 32 (except 323), 33, 3441, 373 (Office of Management and Budget (OMB) SIC Manual, 1987);

3. Facilities classified as SIC 10 through 14 (mineral industry) (OMB SIC Manual, 1987) including active or inactive mining operations (except for areas of coal mining operations no longer meeting the definition of a reclamation area under 40 CFR 434.11(l) because the performance bond issued to the facility by the appropriate Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 USC § 1201 et seq.) authority has been released, or except for areas of non-coal mining operations that have been released from applicable state or federal reclamation requirements after December 17, 1990) and oil and gas exploration, production, processing, or treatment operations, or transmission facilities that discharge stormwater contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts, or waste products located on the site of such operations (inactive mining operations are mining sites that are not being actively mined, but which have an identifiable owner or operator; inactive mining sites do not include sites where mining claims are being maintained prior to disturbances associated with the extraction, beneficiation, or processing of mined materials, nor sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim);

4. Hazardous waste treatment, storage, or disposal facilities, including those that are operating under interim status or a permit under Subtitle C of RCRA (42 USC § 6901 et seq.);

5. Landfills, land application sites, and open dumps that receive or have received any industrial wastes (waste that is received from any of the facilities described under this subsection) including those that are subject to regulation under Subtitle D of RCRA;

6. Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards, including but limited to those classified as SIC 5015 and 5093;

7. Steam electric power generating facilities, including coal handling sites;

8. Transportation facilities classified as SIC 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 that have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or that are otherwise identified under subdivisions 1 through 7 or 9 and 10 of this definition are associated with industrial activity;

9. Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that are located within the confines of the facility, with a design flow of 1.0 mgd or more, or required to have an approved pretreatment program. Not included are farm lands, domestic gardens, or lands used for sludge management where sludge is beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with § 405 of the CWA; and

10. Facilities under SIC 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 30, 31 (except 311), 323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25.

"Submission" means: (i) a request by a POTW for approval of a pretreatment program to the regional administrator or the director; (ii) a request by POTW to the regional administrator or the director for authority to revise the discharge limits in categorical pretreatment standards to reflect POTW pollutant removals; or (iii) a request to EPA by the director for approval of the Virginia pretreatment program.

"Surface waters" means:

1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a. That are or could be used by interstate or foreign travelers for recreational or other purposes;

b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c. That are used or could be used for industrial purposes by industries in interstate commerce;

4. All impoundments of waters otherwise defined as surface waters under this definition;

5. Tributaries of waters identified in subdivisions 1 through 4 of this definition;

6. The territorial sea; and

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subdivisions 1 through 6 of this definition.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA and the law, are not surface waters. Surface waters do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other agency, for the purposes of the Clean Water Act, the final authority regarding the Clean Water Act jurisdiction remains with EPA.

"Total dissolved solids" means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136.

"Toxic pollutant" means any pollutant listed as toxic under § 307(a)(1) of the CWA or, in the case of sludge use or disposal practices, any pollutant identified in regulations implementing § 405(d) of the CWA.

"Treatment facility" means only those mechanical power driven devices necessary for the transmission and treatment of pollutants (e.g., pump stations, unit treatment processes).

"Treatment works" means any devices and systems used for the storage, treatment, recycling or reclamation of sewage or liquid industrial waste, or other waste or necessary to recycle or reuse water, including intercepting sewers, outfall sewers, sewage collection systems, individual systems, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, or alterations thereof; and any works, including land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from such treatment; or any other method or system used for preventing, abating, reducing, storing, treating, separating, or disposing of municipal waste or industrial waste, including waste in combined sewer water and sanitary sewer systems.

"Treatment works treating domestic sewage" means a POTW or any other sewage sludge or wastewater treatment devices or systems, regardless of ownership (including federal facilities), used in the storage, treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated for the disposal of sewage sludge. This definition does not include septic tanks or similar devices. For purposes of this definition, domestic sewage includes waste and wastewater from humans or household operations that are discharged to or otherwise enter a treatment works.

"TWTDS" means treatment works treating domestic sewage.

"Uncontrolled sanitary landfill" means a landfill or open dump, whether in operation or closed, that does not meet the requirements for run-on or run-off controls established pursuant to subtitle D of the Solid Waste Disposal Act (42 USC § 6901 et seq.).

"Upset," except when used in Part VII (9VAC25-31-730 et seq.) of this chapter, means an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

"Variance" means any mechanism or provision under § 301 or § 316 of the CWA or under 40 CFR Part 125, or in the applicable effluent limitations guidelines that allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of the CWA. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on § 301(c), 301(g), 301(h), 301(i), or 316(a) of the CWA.

"Vegetated buffer" means a permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for the purposes of slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential nutrients or pollutants from leaving the field and reaching surface waters.

"Virginia Pollutant Discharge Elimination System permit" or "VPDES permit" means an individual permit issued by the department, or a general permit issued as a regulation adopted by the board pursuant to this chapter authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters and the use of biosolids or disposal of sewage sludge. Under the approved state program, a VPDES permit is equivalent to an NPDES permit.

"VPDES application" or "application" means the standard form or forms, including any additions, revisions or modifications to the forms, approved by the administrator and the department for applying for a VPDES permit.

"Wastewater," when used in Part VII (9VAC25-31-730 et seq.) of this chapter, means liquid and water carried industrial wastes and domestic sewage from residential dwellings, commercial buildings, industrial and manufacturing facilities and institutions, whether treated or untreated, that are contributed to the POTW.

"Wastewater works operator" means any individual employed or appointed by any owner, and who is designated by such owner to be the person in responsible charge, such as a supervisor, a shift operator, or a substitute in charge, and whose duties include testing or evaluation to control wastewater works operations. Not included in this definition are superintendents or directors of public works, city engineers, or other municipal or industrial officials whose duties do not include the actual operation or direct supervision of wastewater works.

"Water Management Division Director" means the director of the Region III Water Management Division of the Environmental Protection Agency or this person's delegated representative.

"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

"Whole effluent toxicity" means the aggregate toxic effect of an effluent measured directly by a toxicity test.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 9, eff. February 15, 2002; Volume 21, Issue 2, eff. November 3, 2004; Volume 21, Issue 9, eff. February 9, 2005; Errata 21:13 VA.R. 1941 March 7, 2005; amended, Virginia Register Volume 22, Issue 24, eff. September 6, 2006; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 24, eff. September 1, 2013; Volume 30, Issue 11, eff. February 26, 2014; Volume 32, Issue 5, eff. January 1, 2016; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022; Volume 42, Issue 1, eff. September 24, 2025.

9VAC25-31-15 Permit rationale

In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-20 Purpose

This chapter delineates the procedures and requirements to be followed in connection with VPDES permits issued by the department or a general permit issued as a regulation adopted by the board pursuant to the Clean Water Act and the State Water Control Law.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-25 Applicability of incorporated references based on the dates that they became effective

Except as noted, when a regulation of the U.S. Environmental Protection Agency set forth in Title 40 of the Code of Federal Regulations (CFR) is referenced and incorporated in this chapter, that regulation shall be as it exists and has been published in the July 1, 2023, update; however, references to 40 CFR Part 136 are incorporated as published in the July 1, 2024, update.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 28, Issue 10, eff. February 15, 2012; amended, Virginia Register Volume 29, Issue 9, eff. January 30, 2013; Volume 30, Issue 11, eff. February 26, 2014; Volume 33, Issue 22, eff. July 26, 2017; Volume 34, Issue 19, eff. June 13, 2018; Volume 37, Issue 1, eff. October 1, 2020; Volume 40, Issue 14, eff. March 27, 2024; Volume 41, Issue 7, eff. December 18, 2024.

9VAC25-31-30 Federal effluent guidelines

A. The following federal regulations are hereby incorporated by reference:

Airport Deicing Operations - 40 CFR Part 449

Aluminum Forming - 40 CFR Part 467

Asbestos Manufacturing - 40 CFR Part 427

Battery Manufacturing - 40 CFR Part 461

Canned and Preserved Fruits and Vegetables - 40 CFR Part 407

Canned and Preserved Seafood - 40 CFR Part 408

Carbon Black Manufacturing - 40 CFR Part 458

Cement Manufacturing - 40 CFR Part 411

Centralized Waste Treatment - 40 CFR Part 437

Coal Mining - 40 CFR Part 434

Coil Coating - 40 CFR Part 465

Concentrated Aquatic Animal Production - 40 CFR Part 451

Copper Forming - 40 CFR Part 468

Dairy Products - 40 CFR Part 405

Dental Offices - 40 CFR Part 441

Electrical and Electronic Components - 40 CFR Part 469

Electroplating - 40 CFR Part 413

Explosives Manufacturing - 40 CFR Part 457

Feedlots - 40 CFR Part 412

Ferroalloy Manufacturing - 40 CFR Part 424

Fertilizer Manufacturing - 40 CFR Part 418

Glass Manufacturing - 40 CFR Part 426

Grain Mills - 40 CFR Part 406

Gum and Wood Chemicals Manufacturing - 40 CFR Part 454

Hospitals - 40 CFR Part 460

Ink Formulating - 40 CFR Part 447

Inorganic Chemicals Manufacturing - 40 CFR Part 415

Iron and Steel Manufacturing - 40 CFR Part 420

Landfills - 40 CFR Part 445

Leather Tanning and Finishing - 40 CFR Part 425

Meat Products - 40 CFR Part 432

Metal Finishing - 40 CFR Part 433

Metal Molding and Casting - 40 CFR Part 464

Metal Products and Machinery - 40 CFR Part 438

Mineral Mining and Processing - 40 CFR Part 436

Nonferrous Metals - 40 CFR Part 421

Nonferrous Metal Forming - 40 CFR Part 471

Oil and Gas Extraction - 40 CFR Part 435

Ore Mining and Dressing - 40 CFR Part 440

Organic Chemicals, Plastics and Synthetic Fibers - 40 CFR Part 414

Paint Formulating - 40 CFR Part 446

Paving and Roofing Materials - 40 CFR Part 443

Pesticide Chemicals - 40 CFR Part 455

Petroleum Refining - 40 CFR Part 419

Pharmaceutical Manufacturing - 40 CFR Part 439

Phosphate Manufacturing - 40 CFR Part 422

Photographic Processing - 40 CFR Part 459

Plastics Molding and Forming - 40 CFR Part 463

Porcelain Enameling - 40 CFR Part 466

Pulp, Paper and Paperboard - 40 CFR Part 430

Rubber Processing - 40 CFR Part 428

Secondary Treatment - 40 CFR Part 133

Soaps and Detergents - 40 CFR Part 417

Steam Electric Power Generation - 40 CFR Part 423

Sugar Processing - 40 CFR Part 409

Textile Mills - 40 CFR Part 410

Timber Products - 40 CFR Part 429

Toxic Pollutant Effluent Standards - 40 CFR Part 129

Transportation Equipment Cleaning - 40 CFR Part 442

Waste Combustors - 40 CFR Part 444

B. The director shall be responsible for identifying any subsequent changes in the regulations incorporated in the previous subsection or the adoption or the modification of any new national standard. Upon identifying any such federal change or adoption, the director shall initiate a regulation adopting proceedings by preparing and filing with the Registrar of Regulations the notice required by § 2.2-4006 A 4 c of the Code of Virginia or a notice of a public hearing pursuant to § 2.2-4007 C of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 9, eff. February 15, 2002; Volume 21, Issue 2, eff. November 3, 2004; Volume 22, Issue 24, eff. September 6, 2006; Volume 26, Issue 11, eff. March 3, 2010; Volume 28, Issue 10, eff. February 15, 2012; Volume 30, Issue 11, eff. February 26, 2014; Volume 34, Issue 19, eff. June 13, 2018.

9VAC25-31-40 Exclusions

The following discharges do not require VPDES permits:

1. Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when used as an energy or mining facility, a storage facility or a seafood processing facility, or when secured to a storage facility or a seafood processing facility, or when secured to the bed of the ocean, contiguous zone or surface waters for the purpose of mineral or oil exploration or development.

2. Discharges of dredged or fill material into surface waters which are regulated under § 404 of the CWA.

3. The introduction of sewage, industrial wastes or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to surface waters are eliminated. This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other party not leading to treatment works.

4. Any discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 CFR Part 300 (The National Oil and Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous Substances).

5. Any introduction of pollutants from nonpoint source agricultural and silvicultural activities, including stormwater run-off from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations, discharges from concentrated aquatic animal production facilities, discharges to aquaculture projects, and discharges from silvicultural point sources.

6. Return flows from irrigated agriculture.

7. Discharges into a privately owned treatment works, except as the board and department may otherwise require.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-50 Prohibitions

A. Except in compliance with a VPDES permit, or another permit, issued by the department or a general permit issued as a regulation adopted by the board or other entity authorized by the board or department, it shall be unlawful for any person to:

1. Discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances;

2. Otherwise alter the physical, chemical or biological properties of such state waters and make them detrimental to the public health, or to animal or aquatic life, or to the use of such waters for domestic or industrial consumption, or for recreation, or for other uses; or

3. Discharge stormwater into state waters from municipal separate storm sewer systems or land disturbing activities.

B. Any person in violation of subsection A of this section, who discharges or causes or allows a discharge of sewage, industrial waste, other wastes or any noxious or deleterious substance into or upon state waters; or who discharges or causes or allows a discharge that may reasonably be expected to enter state waters in violation of subsection A of this section shall notify the department of the discharge, immediately upon discovery of the discharge but in no case later than 24 hours after said discovery. A written report of the unauthorized discharge shall be submitted by the owner, to the department, within five days of discovery of the discharge. The written report shall contain:

1. A description of the nature and location of the discharge;

2. The cause of the discharge;

3. The date on which the discharge occurred;

4. The length of time that the discharge continued;

5. The volume of the discharge;

6. If the discharge is continuing, how long it is expected to continue;

7. If the discharge is continuing, what the expected total volume of the discharge will be; and

8. Any steps planned or taken to reduce, eliminate and prevent a recurrence of the present discharge or any future discharges not authorized by the permit.

Discharges reportable to the department under the immediate reporting requirements of other regulations are exempted from this requirement.

C. No permit may be issued:

1. When the conditions of the permit do not provide for compliance with the applicable requirements of the CWA or the law, or regulations promulgated under the CWA or the law;

2. When the applicant is required to obtain a state or other appropriate certification under § 401 of the CWA and that certification has not been obtained or waived;

3. When the regional administrator has objected to issuance of the permit;

4. When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states;

5. When, in the judgment of the Secretary of the Army, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge;

6. For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

7. For any discharge inconsistent with a plan or plan amendment approved under § 208(b) of the CWA;

8. For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the following circumstances:

a. Before the promulgation of guidelines under § 403(c) of the CWA (for determining degradation of the waters of the territorial seas, the contiguous zone, and the oceans) unless the board or department determines permit issuance to be in the public interest; or

b. After promulgation of guidelines under § 403(c) of the CWA, when insufficient information exists to make a reasonable judgment whether the discharge complies with them.

9. To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by the law and §§ 301(b)(1)(A) and 301(b)(1)(B) of the CWA, and for which the department has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:

a. There are sufficient remaining pollutant load allocations to allow for the discharge; and

b. The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The department may waive the submission of information by the new source or new discharger required by this subdivision if the department determines that it already has adequate information to evaluate the request. An explanation of the development of limitations to meet the criteria of this paragraph is to be included in the fact sheet to the permit under 9VAC25-31-280.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 25, eff. September 25, 2002; Volume 30, Issue 11, eff. February 26, 2014; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-60 Effect of a permit

A. Compliance with a permit.

1. Except for any toxic effluent standards and prohibitions imposed under § 307 of the CWA and standards for biosolids use or sewage sludge disposal under § 405(d) of the CWA, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with the law and with §§ 301, 302, 306, 307, 318, 403, and 405 (a) through (b) of the CWA. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in this chapter.

2. Compliance with a permit condition which implements a particular standard for biosolids use or sewage sludge disposal shall be an affirmative defense in any enforcement action brought for a violation of that standard for biosolids use or sewage sludge disposal pursuant to the law and §§ 309 and 405(e) of the CWA.

B. The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

C. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of state or local law or regulations.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-70 Continuation of expiring permits

A. The permit shall expire at the end of its term, except that the conditions of an expired permit continue in force until the effective date of a new permit if:

1. The permittee has submitted a timely application as required by this chapter, which is a complete application for a new permit; and

2. The department, through no fault of the permittee, does not issue a new permit or the board, through no fault of the permittee, does not issue a new general permit as a regulation adopted by the board with an effective date on or before the expiration date of the previous permit.

B. Permits continued under this section remain fully effective and enforceable.

C. When the permittee is not in compliance with the conditions of the expiring or expired permit the department may choose to do any or all of the following:

1. Initiate enforcement action based upon the permit which has been continued;

2. Issue a notice of intent to deny the new permit. If the permit is denied, the owner or operator would then be required to cease the activities authorized by the continued permit or be subject to enforcement action for operating without a permit;

3. Issue a new permit with appropriate conditions; or

4. Take other actions authorized by this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-80 Confidentiality of information

A. Any secret formula, secret processes, or secret methods other than effluent data submitted to the department pursuant to this chapter may be claimed as confidential by the submitter pursuant to § 62.1-44.21 of the Code of Virginia. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words "secret formulae," "secret processes" "secret methods" on each page containing such information. If no claim is made at the time of submission, the department may make the information available to the public without further notice. If a claim is asserted, the information will be treated in accordance with the procedures in the Virginia Freedom of Information Act (§ 2.2-3700 and § 62.1-44.21 of the Code of Virginia).

B. Claims of confidentiality for the following information will be denied:

1. The name and address of any permit applicant or permittee;

2. Permit applications, permits, and effluent data.

C. Information required by VPDES application forms provided by the department may not be claimed confidential. This includes information submitted on the forms themselves and any attachments used to supply information required by the forms.

History

• Statutory Authority: § 62.1-44.15 (10) of the Code of Virginia; § 402 of the Clean Water Act, 40 CFR Parts 122, 123, 124, 403 and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 22, Issue 24, eff. September 6, 2006.

9VAC25-31-90 Guidance documents

The department may develop and use guidance, as appropriate, to implement technical and regulatory details of the VPDES permit program. Such guidance is distinguished from regulation by the fact that it is not binding on either the department or permittees. If a more appropriate methodology than that called for in guidance is available in a given situation, the more appropriate methodology shall be used to the extent it is consistent with applicable regulations and the State Water Control Law.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

Part II Permit Applications and Special VPDES Permit Programs

9VAC25-31-100 Application for a permit

A. Duty to apply. The following shall submit a complete application to the department in accordance with this section. The requirements for concentrated animal feeding operations are described in subdivisions C 1 and 2 of 9VAC25-31-130.

1. Any person who discharges or proposes to discharge pollutants; and

2. Any person who owns or operates a sludge-only facility whose biosolids use or sewage sludge disposal practice is regulated by 9VAC25-31-420 through 9VAC25-31-720 and who does not have an effective permit.

B. Exceptions. The following are not required to submit a complete application to the department in accordance with this section unless the department requires otherwise:

1. Persons covered by general permits;

2. Persons excluded from the requirement for a permit by this chapter; or

3. A user of a privately owned treatment works.

C. Who applies.

1. The owner of the facility or operation.

2. When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

3. Notwithstanding the requirements of subdivision 2 of this subsection, biosolids land application by the operator may be authorized by the owner's permit.

D. Time to apply.

1. Any person proposing a new discharge shall submit an application at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the department. Facilities proposing a new discharge of stormwater associated with industrial activity shall submit an application 180 days before that facility commences industrial activity that may result in a discharge of stormwater associated with that industrial activity. Different submittal dates may be required under the terms of applicable general permits. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 180-day requirement to avoid delay. New discharges composed entirely of stormwater, other than those dischargers identified in 9VAC25-31-120 A 1, shall apply for and obtain a permit according to the application requirements in 9VAC25-31-120 B.

2. All TWTDS whose biosolids use or sewage sludge disposal practices are regulated by 9VAC25-31-420 through 9VAC25-31-720 must submit permit applications according to the applicable schedule in subdivision 2 a or b of this subsection.

a. A TWTDS with a currently effective VPDES permit must submit a permit application at the time of its next VPDES permit renewal application. Such information must be submitted in accordance with subsection D of this section.

b. Any other TWTDS not addressed under subdivision 2 a of this subsection must submit the information listed in subdivisions 2 b (1) through (5) of this subsection to the department within one year after publication of a standard applicable to its biosolids use or sewage sludge disposal practice or practices, using a form provided by the department. The department will determine when such TWTDS must submit a full permit application.

(1) The TWTDS's name, mailing address, location, and status as federal, state, private, public, or other entity;

(2) The applicant's name, address, telephone number, email address, and ownership status;

(3) A description of the biosolids use or sewage sludge disposal practices. Unless the biosolids meets the requirements of subdivision Q 9 d of this section, the description must include the name and address of any facility where biosolids or sewage sludge is sent for treatment or disposal and the location of any land application sites;

(4) Annual amount of sewage sludge generated, treated, used or disposed (estimated dry weight basis); and

(5) The most recent data the TWTDS may have on the quality of the biosolids or sewage sludge.

c. Notwithstanding subdivision 2 a or b of this subsection, the department may require permit applications from any TWTDS at any time if the department determines that a permit is necessary to protect public health and the environment from any potential adverse effects that may occur from toxic pollutants in sewage sludge.

d. Any TWTDS that commences operations after promulgation of an applicable standard for biosolids use or sewage sludge disposal shall submit an application to the department at least 180 days prior to the date proposed for commencing operations.

E. Duty to reapply. All permittees with a currently effective permit shall submit a new application at least 180 days before the expiration date of the existing permit, unless permission for a later date has been granted by the department. The department shall not grant permission for applications to be submitted later than the expiration date of the existing permit.

F. Completeness.

1. The department shall not issue a permit before receiving a complete application for a permit except for VPDES general permits. An application for a permit is complete when the department receives an application form and any supplemental information that are completed to its satisfaction. The completeness of any application for a permit shall be judged independently of the status of any other permit application or permit for the same facility or activity.

2. No application for a VPDES permit to discharge sewage into or adjacent to state waters from a privately owned treatment works serving, or designed to serve, 50 or more residences shall be considered complete unless the applicant has provided the department with notification from the State Corporation Commission that the applicant is incorporated in the Commonwealth and is in compliance with all regulations and relevant orders of the State Corporation Commission.

3. No application for a new individual VPDES permit authorizing a new discharge of sewage, industrial wastes, or other wastes shall be considered complete unless it contains notification from the county, city, or town in which the discharge is to take place that the location and operation of the discharging facility are consistent with applicable ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of Virginia. The county, city, or town shall inform in writing the applicant and the department of the discharging facility's compliance or noncompliance not more than 30 days from receipt by the chief administrative officer, or his agent, of a request from the applicant. Should the county, city, or town fail to provide such written notification within 30 days, the requirement for such notification is waived. The provisions of this subsection shall not apply to any discharge for which a valid VPDES permit had been issued prior to March 10, 2000.

4. A permit application shall not be considered complete if the department has waived application requirements under subsection K or Q of this section and EPA has disapproved the waiver application. If a waiver request has been submitted to EPA more than 210 days prior to permit expiration and EPA has not disapproved the waiver application 181 days prior to permit expiration, the permit application lacking the information subject to the waiver application shall be considered complete.

5. Except as specified in subdivision 5 a of this subsection, a permit application shall not be considered complete unless all required quantitative data are collected in accordance with sufficiently sensitive analytical methods approved under 40 CFR Part 136 or required under 40 CFR Chapter I, Subchapter N (Effluent Guidelines and Standards) or O (Sewage Sludge).

a. For the purposes of this requirement, a method approved under 40 CFR Part 136 or required under 40 CFR Chapter I, Subchapter N or O is "sufficiently sensitive" when:

(1) The method minimum level (ML) is at or below the level of the applicable water quality criterion for the measured pollutant or pollutant parameter;

(2) The method ML is above the applicable water quality criterion, but the amount of the pollutant or pollutant parameter in a facility's discharge is high enough that the method detects and quantifies the level of the pollutant or pollutant parameter in the discharge; or

(3) The method has the lowest ML of the analytical methods approved under 40 CFR Part 136 or required under 40 CFR Chapter I, Subchapter N or O for the measured pollutant or pollutant parameter.

b. When there is no analytical method that has been approved under 40 CFR 136, required under 40 CFR Chapter I, Subchapter N or O, and is not otherwise required by the director, the applicant may use any suitable method but shall provide a description of the method. When selecting a suitable method, other factors such as a method's precision, accuracy, or resolution, may be considered when assessing the performance of the method.

6. In accordance with § 62.1-44.19:3 A of the Code of Virginia, no application for a permit or variance to authorize the storage of biosolids shall be complete unless it contains certification from the governing body of the locality in which the biosolids is to be stored that the storage site is consistent with all applicable ordinances. The governing body shall confirm or deny consistency within 30 days of receiving a request for certification. If the governing body does not so respond, the site shall be deemed consistent.

7. No application for a permit to land apply biosolids in accordance with Part VI (9VAC25-31-420 et seq.) of this chapter shall be complete unless it includes the written consent of the landowner to apply biosolids on his property.

G. Information requirements. All applicants for VPDES permits, other than POTWs and other TWTDS, shall provide the following information to the department, using the application form provided by the department (additional information required of applicants is set forth in subsections H through L and Q through R of this section).

1. The activities conducted by the applicant that require it to obtain a VPDES permit;

2. Name, mailing address, and location of the facility for which the application is submitted;

3. Up to four SIC and NAICS codes that best reflect the principal products or services provided by the facility;

4. The operator's name, address, telephone number, email address, ownership status, and status as federal, state, private, public, or other entity;

5. Whether the facility is located on Indian lands;

6. A listing of all permits or construction approvals received or applied for under any of the following programs:

a. Hazardous Waste Management program under RCRA (42 USC § 6921);

b. UIC program under SDWA (42 USC § 300h);

c. VPDES program under the CWA and the law;

d. Prevention of Significant Deterioration (PSD) program under the Clean Air Act (42 USC § 4701 et seq.);

e. Nonattainment program under the Clean Air Act (42 USC § 4701 et seq.);

f. National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act (42 USC § 4701 et seq.);

g. Ocean dumping permits under the Marine Protection Research and Sanctuaries Act (33 USC § 14 et seq.);

h. Dredge or fill permits under § 404 of the CWA; and

i. Other relevant environmental permits, including state permits;

7. A topographic map (or other map if a topographic map is unavailable) extending one mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area;

8. A brief description of the nature of the business;

9. An indication of whether the facility uses cooling water and the source of the cooling water; and

10. An indication of whether the facility is requesting any of the variances in subsection M of this section, if known at the time of application.

H. Application requirements for existing manufacturing, commercial, mining, and silvicultural dischargers. Existing manufacturing, commercial mining, and silvicultural dischargers applying for VPDES permits, except for those facilities subject to the requirements of subsection I of this section, shall provide the following information to the department, using application forms provided by the department.

1. The latitude and longitude of each outfall to the nearest 15 seconds and the name of the receiving water.

2. A line drawing of the water flow through the facility with a water balance, showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under subdivision 3 of this subsection. The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined (for example, for certain mining activities), the applicant may provide instead a pictorial description of the nature and amount of any sources of water and any collection and treatment measures.

3. A narrative identification of each type of process, operation, or production area that contributes wastewater to the effluent for each outfall, including process wastewater, cooling water, and stormwater run-off; the average flow that each process contributes; and a description of the treatment the wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Processes, operations, or production areas may be described in general terms (for example, dye-making reactor, distillation tower). For a privately owned treatment works, this information shall include the identity of each user of the treatment works. The average flow of point sources composed of stormwater may be estimated. The basis for the rainfall event and the method of estimation must be indicated.

4. If any of the discharges described in subdivision 3 of this subsection are intermittent or seasonal, a description of the frequency, duration and flow rate of each discharge occurrence (except for stormwater run-off, spillage, or leaks).

5. If an effluent guideline promulgated under § 304 of the CWA applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by 9VAC25-31-230 B 2.

6. If the applicant is subject to any present requirements or compliance schedules for construction, upgrading or operation of waste treatment equipment, an identification of the abatement requirement, a description of the abatement project, and a listing of the required and projected final compliance dates.

7. Information on the discharge of pollutants specified in this subdivision (except information on stormwater discharges that is to be provided as specified in 9VAC25-31-120).

a. When quantitative data for a pollutant are required, the applicant must collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136 unless use of another method is required under 40 CFR Subchapter N or O. When no analytical method is approved, the applicant may use any suitable method but must provide a description of the method. When an applicant has two or more outfalls with substantially identical effluents, the department may allow the applicant to test only one outfall and report that the quantitative data also apply to the substantially identical outfalls. The requirements in subdivisions 7 e and f of this subsection that an applicant must provide quantitative data for certain pollutants known or believed to be present do not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. When this subdivision requires analysis of pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform (including E. coli) and Enterococci (previously known as fecal streptococcus at 40 CFR 122.26 (d)(2)(iii)(A)(3)), or volatile organics, grab samples must be collected for those pollutants. For all other pollutants, a 24-hour composite sample, using a minimum of four grab samples, must be used unless specified otherwise at 40 CFR 136. However, a minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours. In addition, for discharges other than stormwater discharges, the department may waive composite sampling for any outfall for which the applicant demonstrates that the use of an automatic sampler is infeasible and that the minimum of four grab samples will be a representative sample of the effluent being discharged. Results of analyses of individual grab samples for any parameter may be averaged to obtain the daily average. Grab samples that are not required to be analyzed immediately (see Table II at 40 CFR 136.3 (e)) may be composited in the laboratory, provided that container, preservation, and holding time requirements are met (see Table II at 40 CFR 136.3(e)) and that sample integrity is not compromised by compositing.

b. For stormwater discharges, all samples shall be collected from the discharge resulting from a storm event that is greater than 0.1 inch and at least 72 hours from the previously measurable (greater than 0.1 inch rainfall) storm event. Where feasible, the variance in the duration of the event and the total rainfall of the event should not exceed 50% from the average or median rainfall event in that area. For all applicants, a flow-weighted composite shall be taken for either the entire discharge or for the first three hours of the discharge. The flow-weighted composite sample for a stormwater discharge may be taken with a continuous sampler or as a combination of a minimum of three sample aliquots taken in each hour of discharge for the entire discharge or for the first three hours of the discharge, with each aliquot being separated by a minimum period of 15 minutes (applicants submitting permit applications for stormwater discharges under 9VAC25-31-120 C may collect flow-weighted composite samples using different protocols with respect to the time duration between the collection of sample aliquots, subject to the approval of the department). However, a minimum of one grab sample may be taken for stormwater discharges from holding ponds or other impoundments with a retention period greater than 24 hours. For a flow-weighted composite sample, only one analysis of the composite of aliquots is required. For stormwater discharge samples taken from discharges associated with industrial activities, quantitative data must be reported for the grab sample taken during the first 30 minutes (or as soon thereafter as practicable) of the discharge for all pollutants specified in 9VAC25-31-120 B 1. For all stormwater permit applicants taking flow-weighted composites, quantitative data must be reported for all pollutants specified in 9VAC25-31-120 except pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. The department may allow or establish appropriate site-specific sampling procedures or requirements, including sampling locations, the season in which the sampling takes place, the minimum duration between the previous measurable storm event and the storm event sampled, the minimum or maximum level of precipitation required for an appropriate storm event, the form of precipitation sampled (snow melt or rain fall), protocols for collecting samples under 40 CFR Part 136, and additional time for submitting data on a case-by-case basis. An applicant is expected to know or have reason to believe that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant, or on any previous analyses for the pollutant. (For example, any pesticide manufactured by a facility may be expected to be present in contaminated stormwater run-off from the facility.)

c. Every applicant must report quantitative data for every outfall for the following pollutants:

(1) Biochemical oxygen demand (BOD₅);

(2) Chemical oxygen demand;

(3) Total organic carbon;

(4) Total suspended solids;

(5) Ammonia (as N);

(6) Temperature (both winter and summer); and

(7) pH.

d. The department may waive the reporting requirements for individual point sources or for a particular industry category for one or more of the pollutants listed in subdivision 7 c of this subsection if the applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements.

e. Each applicant with processes in one or more primary industry category (see 40 CFR Part 122 Appendix A) contributing to a discharge must report quantitative data for the following pollutants in each outfall containing process wastewater, except as indicated in subdivisions 7 e (3), (4), and (5) of this subsection:

(1) The organic toxic pollutants in the fractions designated in Table I of 40 CFR Part 122 Appendix D for the applicant's industrial category or categories unless the applicant qualifies as a small business under subdivision 8 of this subsection. Table II of 40 CFR Part 122 Appendix D lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure that uses gas chromatography/mass spectrometry. A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the applicant's inclusion in that category for any other purposes.

(2) The pollutants listed in Table III of 40 CFR Part 122 Appendix D (the toxic metals, cyanide, and total phenols).

(3) Subdivision H 7 e (1) of this section and the corresponding portions of the VPDES Application Form 2C are suspended as they apply to coal mines.

(4) Subdivision H 7 e (1) of this section and the corresponding portions of Item V-C of the VPDES Application Form 2C are suspended as they apply to:

(a) Testing and reporting for all four organic fractions in the Greige Mills Subcategory of the Textile Mills industry (subpart C-Low water use processing of 40 CFR Part 410), and testing and reporting for the pesticide fraction in all other subcategories of this industrial category.

(b) Testing and reporting for the volatile, base/neutral, and pesticide fractions in the Base and Precious Metals Subcategory of the Ore Mining and Dressing industry (40 CFR Part 440, Subpart B) and testing and reporting for all four fractions in all other subcategories of this industrial category.

(c) Testing and reporting for all four GC/MS fractions in the Porcelain Enameling industry.

(5) Subdivision H 7 e (1) of this section and the corresponding portions of Item V-C of the VPDES Application Form 2C are suspended as they apply to:

(a) Testing and reporting for the pesticide fraction in the Tall Oil Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory (subpart F) of the Gum and Wood Chemicals industry (40 CFR Part 454), and testing and reporting for the pesticide and base-neutral fractions in all other subcategories of this industrial category.

(b) Testing and reporting for the pesticide fraction in the leather tanning and finishing, paint and ink formulation, and photographic supplies industrial categories.

(c) Testing and reporting for the acid, base/neutral, and pesticide fractions in the petroleum refining industrial category.

(d) Testing and reporting for the pesticide fraction in the Papergrade Sulfite Subcategories (subparts J and U) of the Pulp and Paper industry (40 CFR Part 430); testing and reporting for the base/neutral and pesticide fractions in the following subcategories: Deink (subpart Q), Dissolving Kraft (subpart F), and Paperboard from Waste Paper (subpart E); testing and reporting for the volatile, base/neutral, and pesticide fractions in the following subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-Fine Papers (subpart R); and testing and reporting for the acid, base/neutral, and pesticide fractions in the following subcategories: Fine Bleached Kraft (subpart I), Dissolving Sulfite Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G), Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers (subpart S).

(e) Testing and reporting for the base/neutral fraction in the Once-Through Cooling Water, Fly Ash and Bottom Ash Transport Water process waste streams of the Steam Electric Power Plant industrial category.

f. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table IV of 40 CFR Part 122 Appendix D (certain conventional and nonconventional pollutants) is discharged from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator, the applicant must report quantitative data. For every pollutant discharged that is not so limited in an effluent limitations guideline, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged.

g. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants listed in Table II or Table III of 40 CFR Part 122 Appendix D (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under subdivision 7 e of this subsection, is discharged from each outfall. For every pollutant expected to be discharged in concentrations of 10 ppb or greater the applicant must report quantitative data. For acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 100 ppb or greater the applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb, or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, in concentrations less than 100 ppb, the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying as a small business under subdivision 8 of this subsection is not required to analyze for pollutants listed in Table II of 40 CFR Part 122 Appendix D (the organic toxic pollutants).

h. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table V of 40 CFR Part 122 Appendix D (certain hazardous substances and asbestos) are discharged from each outfall. For every pollutant expected to be discharged, the applicant must briefly describe the reasons the pollutant is expected to be discharged, and report any quantitative data it has for any pollutant.

i. Each applicant must report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:

(1) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or

(2) Knows or has reason to believe that TCDD is or may be present in an effluent.

j. Where quantitative data are required in subdivisions H 7 a through i of this section, existing data may be used, if available, in lieu of sampling done solely for the purpose of the application, provided that all data requirements are met; sampling was performed, collected, and analyzed no more than four and one-half years prior to submission; all data are representative of the discharge; and all available representative data are considered in the values reported.

8. An applicant that qualifies as a small business under one of the following criteria is exempt from the requirements in subdivision 7 e (1) or 7 f of this subsection to submit quantitative data for the pollutants listed in Table II of 40 CFR Part 122 Appendix D (the organic toxic pollutants):

a. For coal mines, a probable total annual production of less than 100,000 tons per year; or

b. For all other applicants, gross total annual sales averaging less than $100,000 per year (in second quarter 1980 dollars).

9. A listing of any toxic pollutant that the applicant currently uses or manufactures as an intermediate or final product or byproduct. The department may waive or modify this requirement for any applicant if the applicant demonstrates that it would be unduly burdensome to identify each toxic pollutant and the department has adequate information to issue the permit.

10. Reserved.

11. An identification of any biological toxicity tests that the applicant knows or has reason to believe have been made within the last three years on any of the applicant's discharges or on a receiving water in relation to a discharge.

12. If a contract laboratory or consulting firm performed any of the analyses required by subdivision 7 of this subsection, the identity of each laboratory or firm and the analyses performed.

13. In addition to the information reported on the application form, applicants shall provide to the department, at its request, such other information, including pertinent plans, specifications, maps and such other relevant information as may be required, in scope and details satisfactory to the department, as the department may reasonably require to assess the discharges of the facility and to determine whether to issue a VPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity of discharges to aquatic life and requirements to determine the cause of the toxicity.

I. Application requirements for manufacturing, commercial, mining and silvicultural facilities that discharge only nonprocess wastewater. Except for stormwater discharges, all manufacturing, commercial, mining, and silvicultural dischargers applying for VPDES permits that discharge only nonprocess wastewater not regulated by an effluent limitations guideline or new source performance standard shall provide the following information to the department using application forms provided by the department:

1. Outfall number, latitude and longitude to the nearest 15 seconds, and the name of the receiving water;

2. Date of expected commencement of discharge;

3. An identification of the general type of waste discharged, or expected to be discharged upon commencement of operations, including sanitary wastes, restaurant or cafeteria wastes, or noncontact cooling water. An identification of cooling water additives (if any) that are used or expected to be used upon commencement of operations, along with their composition if existing composition is available;

4. a. Quantitative data for the pollutants or parameters listed below, unless testing is waived by the department. The quantitative data may be data collected over the past 365 days, if they remain representative of current operations, and must include maximum daily value, average daily value, and number of measurements taken. The applicant must collect and analyze samples in accordance with 40 CFR Part 136. When analysis of pH, temperature, residual chlorine, oil and grease, or fecal coliform (including E. coli), and Enterococci (previously known as fecal streptococcus) and volatile organics is required in subdivisions I 4 a (1) through (11) of this section, grab samples must be collected for those pollutants. For all other pollutants, a 24-hour composite sample, using a minimum of four grab samples, must be used unless specified otherwise at 40 CFR Part 136. For a composite sample, only one analysis of the composite of aliquots is required. New dischargers must include estimates for the pollutants or parameters listed below instead of actual sampling data, along with the source of each estimate. All levels must be reported or estimated as concentration and as total mass, except for flow, pH, and temperature.

(1) Biochemical oxygen demand (BOD₅).

(2) Total suspended solids (TSS).

(3) Fecal coliform (if believed present or if sanitary waste is or will be discharged).

(4) Total residual chlorine (if chlorine is used).

(5) Oil and grease.

(6) Chemical oxygen demand (COD) (if noncontact cooling water is or will be discharged).

(7) Total organic carbon (TOC) (if noncontact cooling water is or will be discharged).

(8) Ammonia (as N).

(9) Discharge flow.

(10) pH.

(11) Temperature (winter and summer).

b. The department may waive the testing and reporting requirements for any of the pollutants or flow listed in subdivision 4 a of this subsection if the applicant submits a request for such a waiver before or with his application that demonstrates that information adequate to support issuance of a permit can be obtained through less stringent requirements.

c. If the applicant is a new discharger, he must submit the information required in subdivision 4 a of this subsection by providing quantitative data in accordance with that section no later than two years after commencement of discharge. However, the applicant need not submit testing results that he has already performed and reported under the discharge monitoring requirements of his VPDES permit.

d. The requirements of subdivisions 4 a and 4 c of this subsection that an applicant must provide quantitative data or estimates of certain pollutants do not apply to pollutants present in a discharge solely as a result of their presence in intake water. However, an applicant must report such pollutants as present. Net credit may be provided for the presence of pollutants in intake water if the requirements of 9VAC25-31-230 G are met;

5. A description of the frequency of flow and duration of any seasonal or intermittent discharge (except for stormwater run-off, leaks, or spills);

6. A brief description of any treatment system used or to be used;

7. Any additional information the applicant wishes to be considered, such as influent data for the purpose of obtaining net credits pursuant to 9VAC25-31-230 G;

8. Signature of certifying official under 9VAC25-31-110; and

9. Pertinent plans, specifications, maps and such other relevant information as may be required, in scope and details satisfactory to the department.

J. Application requirements for new and existing concentrated animal feeding operations and aquatic animal production facilities. New and existing concentrated animal feeding operations and concentrated aquatic animal production facilities shall provide the following information to the department, using the application form provided by the department:

1. For concentrated animal feeding operations:

a. The name of the owner or operator;

b. The facility location and mailing address;

c. Latitude and longitude of the production area (entrance to the production area);

d. A topographic map of the geographic area in which the CAFO is located showing the specific location of the production area, in lieu of the requirements of subdivision G 7 of this section;

e. Specific information about the number and type of animals, whether in open confinement or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other);

f. The type of containment and storage (anaerobic lagoon, roofed storage shed, storage ponds, underfloor pits, above ground storage tanks, below ground storage tanks, concrete pad, impervious soil pad, other) and total capacity for manure, litter, and process wastewater storage (tons/gallons);

g. The total number of acres under control of the applicant available for land application of manure, litter, or process wastewater;

h. Estimated amounts of manure, litter, and process wastewater generated per year (tons/gallons); and

i. For CAFOs required to seek coverage under a permit after December 31, 2009, a nutrient management plan that at a minimum satisfies the requirements specified in subsection E of 9VAC25-31-200 and subdivision C 5 of 9VAC25-31-130, including, for all CAFOs subject to 40 CFR Part 412 Subpart C or Subpart D, the requirements of 40 CFR 412.4(c), as applicable.

2. For concentrated aquatic animal production facilities:

a. The maximum daily and average monthly flow from each outfall;

b. The number of ponds, raceways, and similar structures;

c. The name of the receiving water and the source of intake water;

d. For each species of aquatic animals, the total yearly and maximum harvestable weight;

e. The calendar month of maximum feeding and the total mass of food fed during that month; and

f. Pertinent plans, specifications, maps and such other relevant information as may be required, in scope and details satisfactory to the department.

K. Application requirements for new and existing POTWs and treatment works treating domestic sewage. Unless otherwise indicated, all POTWs and other dischargers designated by the department must provide to the department, at a minimum, the information in this subsection using an application form provided by the department. Permit applicants must submit all information available at the time of permit application. The information may be provided by referencing information previously submitted to the department. The department may waive any requirement of this subsection if it has access to substantially identical information. The department may also waive any requirement of this subsection that is not of material concern for a specific permit, if approved by the regional administrator. The waiver request to the regional administrator must include the department's justification for the waiver. A regional administrator's disapproval of the department's proposed waiver does not constitute final agency action but does provide notice to the department and permit applicant that EPA may object to any department-issued permit issued in the absence of the required information.

1. All applicants must provide the following information:

a. Name, mailing address, and location of the facility for which the application is submitted;

b. Name, mailing address, telephone number, and email address of the applicant and indication as to whether the applicant is the facility's owner, operator, or both;

c. Identification of all environmental permits or construction approvals received or applied for (including dates) under any of the following programs:

(1) Hazardous Waste Management program under the Resource Conservation and Recovery Act (RCRA), Subpart C;

(2) Underground Injection Control program under the Safe Drinking Water Act (SDWA);

(3) NPDES program under the Clean Water Act (CWA);

(4) Prevention of Significant Deterioration (PSD) program under the Clean Air Act;

(5) Nonattainment program under the Clean Air Act;

(6) National Emission Standards for Hazardous Air Pollutants (NESHAPS) preconstruction approval under the Clean Air Act;

(7) Ocean dumping permits under the Marine Protection Research and Sanctuaries Act;

(8) Dredge or fill permits under § 404 of the CWA; and

(9) Other relevant environmental permits, including state permits;

d. The name and population of each municipal entity served by the facility, including unincorporated connector districts. Indicate whether each municipal entity owns or maintains the collection system and whether the collection system is separate sanitary or combined storm and sanitary, if known;

e. Information concerning whether the facility is located in Indian country and whether the facility discharges to a receiving stream that flows through Indian country;

f. The facility's design flow rate (the wastewater flow rate the plant was built to handle), annual average daily flow rate, and maximum daily flow rate for each of the previous three years;

g. Identification of types of collection systems used by the treatment works (i.e., separate sanitary sewers or combined storm and sanitary sewers) and an estimate of the percent of sewer line that each type comprises;

h. The following information for outfalls to surface waters and other discharge or disposal methods:

(1) For effluent discharges to surface waters, the total number and types of outfalls (e.g., treated effluent, combined sewer overflows, bypasses, constructed emergency overflows);

(2) For wastewater discharged to surface impoundments:

(a) The location of each surface impoundment;

(b) The average daily volume discharged to each surface impoundment; and

(c) Whether the discharge is continuous or intermittent;

(3) For wastewater applied to the land:

(a) The location of each land application site;

(b) The size of each land application site, in acres;

(c) The average daily volume applied to each land application site, in gallons per day; and

(d) Whether land application is continuous or intermittent;

(4) For effluent sent to another facility for treatment prior to discharge:

(a) The means by which the effluent is transported;

(b) The name, mailing address, contact person, phone number, and email address of the organization transporting the discharge, if the transport is provided by a party other than the applicant;

(c) The name, mailing address, contact person, phone number, email address, and VPDES permit number (if any) of the receiving facility; and

(d) The average daily flow rate from this facility into the receiving facility, in millions of gallons per day; and

(5) For wastewater disposed of in a manner not included in subdivisions 1 h (1) through (4) of this subsection (e.g., underground percolation, underground injection):

(a) A description of the disposal method, including the location and size of each disposal site, if applicable;

(b) The annual average daily volume disposed of by this method, in gallons per day; and

(c) Whether disposal through this method is continuous or intermittent; and

i. An indication of whether applicant is operating under or requesting to operate under a variance as specified in subsection N of this section, if known at the time of application.

2. All applicants with a design flow greater than or equal to 0.1 mgd must provide the following information:

a. The current average daily volume of inflow and infiltration, in gallons per day, and steps the facility is taking to minimize inflow and infiltration;

b. A topographic map (or other map if a topographic map is unavailable) extending at least one mile beyond property boundaries of the treatment plant, including all unit processes, and showing:

(1) Treatment plant area and unit processes;

(2) The major pipes or other structures through which wastewater enters the treatment plant and the pipes or other structures through which treated wastewater is discharged from the treatment plant. Include outfalls from bypass piping, if applicable;

(3) Each well where fluids from the treatment plant are injected underground;

(4) Wells, springs, and other surface water bodies listed in public records or otherwise known to the applicant within 1/4 mile of the treatment works' property boundaries;

(5) Sewage sludge management facilities (including on-site treatment, storage, and disposal sites); and

(6) Location at which waste classified as hazardous under RCRA enters the treatment plant by truck, rail, or dedicated pipe;

c. Process flow diagram or schematic:

(1) A diagram showing the processes of the treatment plant, including all bypass piping and all backup power sources or redundancy in the system. This includes a water balance showing all treatment units, including disinfection, and showing daily average flow rates at influent and discharge points, and approximate daily flow rates between treatment units; and

(2) A narrative description of the diagram; and

d. The following information regarding scheduled improvements:

(1) The outfall number of each outfall affected;

(2) A narrative description of each required improvement;

(3) Scheduled or actual dates of completion for the following:

(a) Commencement of construction;

(b) Completion of construction;

(c) Commencement of discharge; and

(d) Attainment of operational level; and

(4) A description of permits and clearances concerning other federal or state requirements.

3. Each applicant must provide the following information for each outfall, including bypass points, through which effluent is discharged, as applicable:

a. The following information about each outfall:

(1) Outfall number;

(2) State, county, and city or town in which outfall is located;

(3) Latitude and longitude, to the nearest second;

(4) Distance from shore and depth below surface;

(5) Average daily flow rate, in million gallons per day;

(6) The following information for each outfall with a seasonal or periodic discharge:

(a) Number of times per year the discharge occurs;

(b) Duration of each discharge;

(c) Flow of each discharge; and

(d) Months in which discharge occurs; and

(7) Whether the outfall is equipped with a diffuser and the type (e.g., high-rate) of diffuser used.

b. The following information, if known, for each outfall through which effluent is discharged to surface waters:

(1) Name of receiving water;

(2) Name of watershed/river/stream system and United States Soil Conservation Service 14-digit watershed code;

(3) Name of State Management/River Basin and United States Geological Survey 8-digit hydrologic cataloging unit code; and

(4) Critical flow of receiving stream and total hardness of receiving stream at critical low flow (if applicable).

c. The following information describing the treatment provided for discharges from each outfall to surface waters:

(1) The highest level of treatment (e.g., primary, equivalent to secondary, secondary, advanced, other) that is provided for the discharge for each outfall and:

(a) Design biochemical oxygen demand (BOD₅ or CBOD₅) removal (percent);

(b) Design suspended solids (SS) removal (percent); and, where applicable;

(c) Design phosphorus (P) removal (percent);

(d) Design nitrogen (N) removal (percent); and

(e) Any other removals that an advanced treatment system is designed to achieve.

(2) A description of the type of disinfection used, and whether the treatment plant dechlorinates (if disinfection is accomplished through chlorination).

4. Effluent monitoring for specific parameters.

a. As provided in subdivisions 4 b through 4 k of this subsection, all applicants must submit to the department effluent monitoring information for samples taken from each outfall through which effluent is discharged to surface waters, except for CSOs. The department may allow applicants to submit sampling data for only one outfall on a case-by-case basis, where the applicant has two or more outfalls with substantially identical effluent. The department may also allow applicants to composite samples from one or more outfalls that discharge into the same mixing zone. For POTWs applying prior to commencement of discharge, data shall be submitted no later than 24 months after the commencement of discharge;

b. All applicants must sample and analyze for the following pollutants:

(1) Biochemical oxygen demand (BOD₅ or CBOD₅);

(2) Fecal coliform;

(3) Design flow rate;

(4) pH;

(5) Temperature; and

(6) Total suspended solids.

c. All applicants with a design flow greater than or equal to 0.1 mgd must sample and analyze for the following pollutants:

(1) Ammonia (as N);

(2) Chlorine (total residual, TRC);

(3) Dissolved oxygen;

(4) Nitrate/Nitrite;

(5) Kjeldahl nitrogen;

(6) Oil and grease;

(7) Phosphorus; and

(8) Total dissolved solids.

d. Facilities that do not use chlorine for disinfection, do not use chlorine elsewhere in the treatment process, and have no reasonable potential to discharge chlorine in their effluent may delete chlorine.

e. All POTWs with a design flow rate equal to or greater than one million gallons per day, all POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program, and other POTWs, as required by the department must sample and analyze for the pollutants listed in Table 2 of 40 CFR Part 122 Appendix J, and for any other pollutants for which the department or EPA have established water quality standards applicable to the receiving waters.

f. The department may require sampling for additional pollutants, as appropriate, on a case-by-case basis.

g. Applicants must provide data from a minimum of three samples taken within 4-1/2 years prior to the date of the permit application. Samples must be representative of the seasonal variation in the discharge from each outfall. Existing data may be used, if available, in lieu of sampling done solely for the purpose of this application. The department may require additional samples, as appropriate, on a case-by-case basis.

h. All existing data for pollutants specified in subdivisions 4 b through 4 f of this subsection that is collected within 4-1/2 years of the application must be included in the pollutant data summary submitted by the applicant. If, however, the applicant samples for a specific pollutant on a monthly or more frequent basis, it is only necessary, for such pollutant, to summarize all data collected within one year of the application.

i. Applicants must collect samples of effluent and analyze such samples for pollutants in accordance with analytical methods approved under 40 CFR Part 136 unless an alternative is specified in the existing VPDES permit. When analysis of pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform (including E. coli), or volatile organics is required in subdivisions K 4 b, c, and e of this section, grab samples must be collected for those pollutants. For all other pollutants, 24-hour composite samples must be used. For a composite sample, only one analysis of the composite of aliquots is required.

j. The effluent monitoring data provided must include at least the following information for each parameter:

(1) Maximum daily discharge, expressed as concentration or mass, based upon actual sample values;

(2) Average daily discharge for all samples, expressed as concentration or mass, and the number of samples used to obtain this value;

(3) The analytical method used; and

(4) The threshold level (i.e., method detection limit, minimum level, or other designated method endpoints) for the analytical method used.

k. Unless otherwise required by the department, metals must be reported as total recoverable.

5. Effluent monitoring for whole effluent toxicity.

a. All applicants must provide an identification of any whole effluent toxicity tests conducted during the 4-1/2 years prior to the date of the application on any of the applicant's discharges or on any receiving water near the discharge. For POTWs applying prior to commencement of discharge, data shall be submitted no later than 24 months after the commencement of discharge.

b. As provided in subdivisions 5 c through i of this subsection, the following applicants must submit to the department the results of valid whole effluent toxicity tests for acute or chronic toxicity for samples taken from each outfall through which effluent is discharged to surface waters, except for combined sewer overflows:

(1) All POTWs with design flow rates greater than or equal to one million gallons per day;

(2) All POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program;

(3) Other POTWs, as required by the department, based on consideration of the following factors:

(a) The variability of the pollutants or pollutant parameters in the POTW effluent (based on chemical-specific information, the type of treatment plant, and types of industrial contributors);

(b) The ratio of effluent flow to receiving stream flow;

(c) Existing controls on point or nonpoint sources, including total maximum daily load calculations for the receiving stream segment and the relative contribution of the POTW;

(d) Receiving stream characteristics, including possible or known water quality impairment, and whether the POTW discharges to a coastal water, or a water designated as an outstanding natural resource water; or

(e) Other considerations (including the history of toxic impacts and compliance problems at the POTW) that the department determines could cause or contribute to adverse water quality impacts.

c. Where the POTW has two or more outfalls with substantially identical effluent discharging to the same receiving stream segment, the department may allow applicants to submit whole effluent toxicity data for only one outfall on a case-by-case basis. The department may also allow applicants to composite samples from one or more outfalls that discharge into the same mixing zone.

d. Each applicant required to perform whole effluent toxicity testing pursuant to subdivision 5 b of this subsection must provide:

(1) Results of a minimum of four quarterly tests for a year, from the year preceding the permit application; or

(2) Results from four tests performed at least annually in the 4-1/2 year period prior to the application, provided the results show no appreciable toxicity using a safety factor determined by the department.

e. Applicants must conduct tests with multiple species (no less than two species, e.g., fish, invertebrate, plant) and test for acute or chronic toxicity, depending on the range of receiving water dilution. The department recommends that applicants conduct acute or chronic testing based on the following dilutions: (i) acute toxicity testing if the dilution of the effluent is greater than 100:1 at the edge of the mixing zone or (ii) chronic toxicity testing if the dilution of the effluent is less than or equal to 100:1 at the edge of the mixing zone.

f. Each applicant required to perform whole effluent toxicity testing pursuant to subdivision 5 b of this subsection must provide the number of chronic or acute whole effluent toxicity tests that have been conducted since the last permit reissuance.

g. Applicants must provide the results using the form provided by the department, or test summaries if available and comprehensive, for each whole effluent toxicity test conducted pursuant to subdivision 5 b of this subsection for which such information has not been reported previously to the department.

h. Whole effluent toxicity testing conducted pursuant to subdivision 5 b of this subsection must be conducted using methods approved under 40 CFR Part 136, as directed by the department.

i. For whole effluent toxicity data submitted to the department within 4-1/2 years prior to the date of the application, applicants must provide the dates on which the data were submitted and a summary of the results.

j. Each POTW required to perform whole effluent toxicity testing pursuant to subdivision 5 b of this subsection must provide any information on the cause of toxicity and written details of any toxicity reduction evaluation conducted, if any whole effluent toxicity test conducted within the past 4-1/2 years revealed toxicity.

6. Applicants must submit the following information about industrial discharges to the POTW:

a. Number of significant industrial users (SIUs) and nonsignificant categorical industrial users (NSCIUs), including SIUs and NSCIUs that truck or haul waste, discharging to the POTW; and

b. POTWs with one or more SIUs shall provide the following information for each SIU, as defined in 9VAC25-31-10, that discharges to the POTW:

(1) Name and mailing address;

(2) Description of all industrial processes that affect or contribute to the SIU's discharge;

(3) Principal products and raw materials of the SIU that affect or contribute to the SIU's discharge;

(4) Average daily volume of wastewater discharged, indicating the amount attributable to process flow and nonprocess flow;

(5) Whether the SIU is subject to local limits;

(6) Whether the SIU is subject to categorical standards and, if so, under which category and subcategory; and

(7) Whether any problems at the POTW (e.g., upsets, pass through, interference) have been attributed to the SIU in the past 4-1/2 years.

c. The information required in subdivisions 6 a and b of this subsection may be waived by the department for POTWs with pretreatment programs if the applicant has submitted either of the following that contain information substantially identical to that required in subdivisions 6 a and b of this subsection:

(1) An annual report submitted within one year of the application; or

(2) A pretreatment program.

7. Discharges from hazardous waste generators and from waste cleanup or remediation sites. POTWs receiving Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or RCRA Corrective Action wastes or wastes generated at another type of cleanup or remediation site must provide the following information:

a. If the POTW receives, or has been notified that it will receive, by truck, rail, or dedicated pipe any wastes that are regulated as RCRA hazardous wastes pursuant to 40 CFR Part 261, the applicant must report the following:

(1) The method by which the waste is received (i.e., whether by truck, rail, or dedicated pipe); and

(2) The hazardous waste number and amount received annually of each hazardous waste.

b. If the POTW receives, or has been notified that it will receive, wastewaters that originate from remedial activities, including those undertaken pursuant to CERCLA and § 3004(u) or 3008(h) of RCRA, the applicant must report the following:

(1) The identity and description of the site or facility at which the wastewater originates;

(2) The identities of the wastewater's hazardous constituents, as listed in Appendix VIII of 40 CFR Part 261, if known; and

(3) The extent of treatment, if any, the wastewater receives or will receive before entering the POTW.

c. Applicants are exempt from the requirements of subdivision 7 b of this subsection if they receive no more than 15 kilograms per month of hazardous wastes, unless the wastes are acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e).

8. Each applicant with combined sewer systems must provide the following information:

a. The following information regarding the combined sewer system:

(1) A map indicating the location of the following:

(a) All CSO discharge points;

(b) Sensitive use areas potentially affected by CSOs (e.g., beaches, drinking water supplies, shellfish beds, sensitive aquatic ecosystems, and outstanding national resource waters); and

(c) Waters supporting threatened and endangered species potentially affected by CSOs; and

(2) A diagram of the combined sewer collection system that includes the following information:

(a) The location of major sewer trunk lines, both combined and separate sanitary;

(b) The locations of points where separate sanitary sewers feed into the combined sewer system;

(c) In-line and off-line storage structures;

(d) The locations of flow-regulating devices; and

(e) The locations of pump stations.

b. The following information for each CSO discharge point covered by the permit application:

(1) The following information on each outfall:

(a) Outfall number;

(b) State, county, and city or town in which outfall is located;

(c) Latitude and longitude, to the nearest second;

(d) Distance from shore and depth below surface;

(e) Whether the applicant monitored any of the following in the past year for this CSO: (i) rainfall, (ii) CSO flow volume, (iii) CSO pollutant concentrations, (iv) receiving water quality, or (v) CSO frequency; and

(f) The number of storm events monitored in the past year;

(2) The following information about CSO overflows from each outfall:

(a) The number of events in the past year;

(b) The average duration per event, if available;

(c) The average volume per CSO event, if available; and

(d) The minimum rainfall that caused a CSO event, if available, in the last year;

(3) The following information about receiving waters:

(a) Name of receiving water;

(b) Name of watershed/stream system and the United States Soil Conservation Service watershed (14-digit) code, if known; and

(c) Name of State Management/River Basin and the United States Geological Survey hydrologic cataloging unit (8-digit) code, if known; and

(4) A description of any known water quality impacts on the receiving water caused by the CSO (e.g., permanent or intermittent beach closings, permanent or intermittent shellfish bed closings, fish kills, fish advisories, other recreational loss, or exceedance of any applicable state water quality standard).

9. All applicants must provide the name, mailing address, telephone number, email address, and responsibilities of all contractors responsible for any operational or maintenance aspects of the facility.

10. All applications must be signed by a certifying official in compliance with 9VAC25-31-110.

11. Pertinent plans, specifications, maps and such other relevant information as may be required, in scope and details satisfactory to the department.

L. Application requirements for new sources and new discharges. New manufacturing, commercial, mining and silvicultural dischargers applying for VPDES permits (except for new discharges of facilities subject to the requirements of subsection I of this section or new discharges of stormwater associated with industrial activity that are subject to the requirements of 9VAC25-31-120 B 1 and this subsection) shall provide the following information to the department, using the application forms provided by the department:

1. The expected outfall location in latitude and longitude to the nearest 15 seconds and the name of the receiving water;

2. The expected date of commencement of discharge;

3. a. Description of the treatment that the wastewater will receive, along with all operations contributing wastewater to the effluent, average flow contributed by each operation, and the ultimate disposal of any solid or liquid wastes not discharged;

b. A line drawing of the water flow through the facility with a water balance as described in subdivision H 2;

c. If any of the expected discharges will be intermittent or seasonal, a description of the frequency, duration and maximum daily flow rate of each discharge occurrence (except for stormwater run-off, spillage, or leaks);

4. If a new source performance standard promulgated under § 306 of the CWA or an effluent limitation guideline applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's expected actual production reported in the units used in the applicable effluent guideline or new source performance standard for each of the first three years. Alternative estimates may also be submitted if production is likely to vary;

5. The requirements in subdivisions I 4 a, b, and c of this section that an applicant must provide estimates of certain pollutants expected to be present do not apply to pollutants present in a discharge solely as a result of their presence in intake water; however, an applicant must report such pollutants as present. Net credits may be provided for the presence of pollutants in intake water if the requirements of 9VAC25-31-230 G are met. All levels (except for discharge flow, temperature, and pH) must be estimated as concentration and as total mass.

a. Each applicant must report estimated daily maximum, daily average, and source of information for each outfall for the following pollutants or parameters. The department may waive the reporting requirements for any of these pollutants and parameters if the applicant submits a request for such a waiver before or with his application that demonstrates that information adequate to support issuance of the permit can be obtained through less stringent reporting requirements:

(1) Biochemical oxygen demand (BOD).

(2) Chemical oxygen demand (COD).

(3) Total organic carbon (TOC).

(4) Total suspended solids (TSS).

(5) Flow.

(6) Ammonia (as N).

(7) Temperature (winter and summer).

(8) pH.

b. Each applicant must report estimated daily maximum, daily average, and source of information for each outfall for the following pollutants, if the applicant knows or has reason to believe they will be present or if they are limited by an effluent limitation guideline or new source performance standard either directly or indirectly through limitations on an indicator pollutant: all pollutants in Table IV of 40 CFR Part 122 Appendix D (certain conventional and nonconventional pollutants).

c. Each applicant must report estimated daily maximum, daily average, and source of information for the following pollutants if he knows or has reason to believe that they will be present in the discharges from any outfall:

(1) The pollutants listed in Table III of 40 CFR Part 122 Appendix D (the toxic metals, in the discharge from any outfall, Total cyanide, and total phenols);

(2) The organic toxic pollutants in Table II of 40 CFR Part 122 Appendix D (except bis (chloromethyl) ether, dichlorofluoromethane and trichlorofluoromethane). This requirement is waived for applicants with expected gross sales of less than $100,000 per year for the next three years, and for coal mines with expected average production of less than 100,000 tons of coal per year.

d. The applicant is required to report that 2,3,7,8 Tetrachlorodibenzo-P-Dioxin (TCDD) may be discharged if he uses or manufactures one of the following compounds, or if he knows or has reason to believe that TCDD will or may be present in an effluent:

(1) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS #93-76-5);

(2) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) (CAS #93-72-1);

(3) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) (CAS #136-25-4);

(4) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) (CAS #299-84-3);

(5) 2,4,5-trichlorophenol (TCP) (CAS #95-95-4); or

(6) Hexachlorophene (HCP) (CAS #70-30-4);

e. Each applicant must report any pollutants listed in Table V of 40 CFR Part 122 Appendix D (certain hazardous substances) if he believes they will be present in any outfall (no quantitative estimates are required unless they are already available).

f. No later than 24 months after the commencement of discharge from the proposed facility, the applicant is required to submit the information required in subsection H of this section. However, the applicant need not complete those portions of subsection H of this section requiring tests that have already been performed and reported under the discharge monitoring requirements of the VPDES permit;

6. Each applicant must report the existence of any technical evaluation concerning his wastewater treatment, along with the name and location of similar plants of which he has knowledge;

7. Any optional information the permittee wishes to have considered;

8. Signature of certifying official under 9VAC25-31-110; and

9. Pertinent plans, specifications, maps, and such other relevant information as may be required, in scope and details satisfactory to the department.

M. Variance requests by non-POTWs. A discharger that is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified in this subsection:

1. Fundamentally different factors.

a. A request for a variance based on the presence of fundamentally different factors from those on which the effluent limitations guideline was based shall be filed as follows:

(1) For a request from best practicable control technology currently available (BPT), by the close of the public comment period for the draft permit; or

(2) For a request from best available technology economically achievable (BAT) or best conventional pollutant control technology (BCT), by no later than:

(a) July 3, 1989, for a request based on an effluent limitation guideline promulgated before February 4, 1987, to the extent July 3, 1989, is not later than that provided under previously promulgated regulations; or

(b) 180 days after the date on which an effluent limitation guideline is published in the Federal Register for a request based on an effluent limitation guideline promulgated on or after February 4, 1987.

b. The request shall explain how the requirements of the applicable regulatory or statutory criteria have been met.

2. A request for a variance from the BAT requirements for CWA § 301(b)(2)(F) pollutants (commonly called nonconventional pollutants) pursuant to § 301(c) of the CWA because of the economic capability of the owner or operator, or pursuant to § 301(g) of the CWA (provided however that a § 301(g) variance may only be requested for ammonia; chlorine; color; iron; total phenols (when determined by the administrator to be a pollutant covered by § 301(b)(2)(F) of the CWA) and any other pollutant that the administrator lists under § 301(g)(4) of the CWA) must be made as follows:

a. For those requests for a variance from an effluent limitation based upon an effluent limitation guideline by:

(1) Submitting an initial request to the regional administrator, as well as to the department, stating the name of the discharger, the permit number, the outfall number, the applicable effluent guideline, and whether the discharger is requesting a § 301(c) or 301(g) of the CWA modification, or both. This request must have been filed not later than 270 days after promulgation of an applicable effluent limitation guideline; and

(2) Submitting a completed request no later than the close of the public comment period for the draft permit demonstrating that: (i) all reasonable ascertainable issues have been raised and all reasonably available arguments and materials supporting their position have been submitted; and (ii) that the applicable requirements of 40 CFR Part 125 have been met. Notwithstanding this provision, the complete application for a request under § 301(g) of the CWA shall be filed 180 days before EPA must make a decision (unless the Regional Division Director establishes a shorter or longer period); or

b. For those requests for a variance from effluent limitations not based on effluent limitation guidelines, the request need only comply with subdivision 2 a (2) of this subsection and need not be preceded by an initial request under subdivision 2 a (1) of this subsection.

3. A modification under § 302(b)(2) of the CWA of requirements under § 302(a) of the CWA for achieving water quality related effluent limitations may be requested no later than the close of the public comment period for the draft permit on the permit from which the modification is sought.

4. A variance for alternate effluent limitations for the thermal component of any discharge must be filed with a timely application for a permit under this section, except that if thermal effluent limitations are established on a case-by-case basis or are based on water quality standards the request for a variance may be filed by the close of the public comment period for the draft permit. A copy of the request shall be sent simultaneously to the department.

N. Variance requests by POTWs. A discharger that is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory provisions as specified in this paragraph:

1. A request for a modification under § 301(h) of the CWA of requirements of § 301(b)(1)(B) of the CWA for discharges into marine waters must be filed in accordance with the requirements of 40 CFR Part 125, Subpart G.

2. A modification under § 302(b)(2) of the CWA of the requirements under § 302(a) of the CWA for achieving water quality based effluent limitations shall be requested no later than the close of the public comment period for the draft permit on the permit from which the modification is sought.

O. Expedited variance procedures and time extensions.

1. Notwithstanding the time requirements in subsections M and N of this section, the department may notify a permit applicant before a draft permit is issued that the draft permit will likely contain limitations that are eligible for variances. In the notice the department may require the applicant as a condition of consideration of any potential variance request to submit a request explaining how the requirements of 40 CFR Part 125 applicable to the variance have been met and may require its submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance.

2. A discharger who cannot file a timely complete request required under subdivision M 2 a (2) or M 2 b of this section may request an extension. The extension may be granted or denied at the discretion of the department. Extensions shall be no more than six months in duration.

P. Recordkeeping. Except for information required by subdivision D 2 of this section, which shall be retained for a period of at least five years from the date the application is signed (or longer as required by Part VI (9VAC25-31-420 et seq.) of this chapter), applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this section for a period of at least three years from the date the application is signed.

Q. Sewage sludge management. All TWTDS subject to subdivision D 2 a of this section must provide the information in this subsection to the department using an application form approved by the department. New applicants must submit all information available at the time of permit application. The information may be provided by referencing information previously submitted to the department. The department may waive any requirement of this subsection if it has access to substantially identical information. The department may also waive any requirement of this subsection that is not of material concern for a specific permit, if approved by the regional administrator. The waiver request to the regional administrator must include the department's justification for the waiver. A regional administrator's disapproval of the department's proposed waiver does not constitute final agency action, but does provide notice to the department and the permit applicant that EPA may object to any department issued permit issued in the absence of the required information.

1. All applicants must submit the following information:

a. The name, mailing address, and location of the TWTDS for which the application is submitted;

b. Whether the facility is a Class I Sludge Management Facility;

c. The design flow rate (in million gallons per day);

d. The total population served;

e. The TWTDS's status as federal, state, private, public, or other entity;

f. The name, mailing address, telephone number, and email address of the applicant; and

g. Indication whether the applicant is the owner, operator, or both.

2. All applicants must submit the facility's VPDES permit number, if applicable, and a listing of all other federal, state, and local permits or construction approvals received or applied for under any of the following programs:

a. Hazardous Waste Management program under the Resource Conservation and Recovery Act (RCRA);

b. UIC program under the Safe Drinking Water Act (SDWA);

c. NPDES program under the Clean Water Act (CWA);

d. Prevention of Significant Deterioration (PSD) program under the Clean Air Act;

e. Nonattainment program under the Clean Air Act;

f. National Emission Standards for Hazardous Air Pollutants (NESHAPS) preconstruction approval under the Clean Air Act;

g. Dredge or fill permits under § 404 of the CWA;

h. Other relevant environmental permits, including state or local permits.

3. All applicants must identify any generation, treatment, storage, land application of biosolids, or disposal of sewage sludge that occurs in Indian country.

4. All applicants must submit a topographic map (or other map if a topographic map is unavailable) extending one mile beyond property boundaries of the facility and showing the following information:

a. All sewage sludge management facilities, including on-site treatment, storage, and disposal sites; and

b. Wells, springs, and other surface water bodies that are within 1/4 mile of the property boundaries and listed in public records or otherwise known to the applicant.

5. All applicants must submit a line drawing or a narrative description that identifies all sewage sludge management practices employed during the term of the permit, including all units used for collecting, dewatering, storing, or treating sewage sludge; the destination of all liquids and solids leaving each such unit; and all processes used for pathogen reduction and vector attraction reduction.

6. All applicants must submit an odor control plan that contains at minimum:

a. Methods used to minimize odor in producing biosolids;

b. Methods used to identify malodorous biosolids before land application (at the generating facility);

c. Methods used to identify and abate malodorous biosolids that have been delivered to the field, prior to land application; and

d. Methods used to abate malodor from biosolids if land applied.

7. The applicant must submit biosolids monitoring data for the pollutants for which limits in biosolids have been established in Part VI (9VAC25-31-420 et seq.) of this chapter for the applicant's use or disposal practices on the date of permit application with the following conditions:

a. When applying for authorization to land apply a biosolids source not previously included in a VPDES or Virginia Pollution Abatement Permit, the biosolids shall be sampled and analyzed for PCBs. The sample results shall be submitted with the permit application or request to add the source.

b. The department may require sampling for additional pollutants, as appropriate, on a case-by-case basis.

c. Applicants must provide data from a minimum of three samples taken within 4-1/2 years prior to the date of the permit application. Samples must be representative of the biosolids and should be taken at least one month apart. Existing data may be used in lieu of sampling done solely for the purpose of this application.

d. Applicants must collect and analyze samples in accordance with analytical methods specified in 9VAC25-31-490, 40 CFR Part 503, and 40 CFR Part 136.

e. The monitoring data provided must include at least the following information for each parameter:

(1) Average monthly concentration for all samples (mg/kg dry weight), based upon actual sample values;

(2) The analytical method used; and

(3) The method detection level.

8. If the applicant is a person who prepares biosolids or sewage sludge, as defined in 9VAC25-31-500, the applicant must provide the following information:

a. If the applicant's facility generates biosolids or sewage sludge, the total dry metric tons per 365-day period generated at the facility.

b. If the applicant's facility receives biosolids or sewage sludge from another facility, the following information for each facility from which biosolids or sewage sludge is received:

(1) The name, mailing address, and location of the other facility;

(2) The total dry metric tons per 365-day period received from the other facility; and

(3) A description of any treatment processes occurring at the other facility, including blending activities and treatment to reduce pathogens or vector attraction characteristics.

c. If the applicant's facility changes the quality of biosolids or sewage sludge through blending, treatment, or other activities, the following information:

(1) Whether the Class A pathogen reduction requirements in 9VAC25-31-710 A or the Class B pathogen reduction requirements in 9VAC25-31-710 B are met, and a description of any treatment processes used to reduce pathogens in sewage sludge;

(2) Whether any of the vector attraction reduction options of 9VAC25-31-720 B 1 through 8 are met, and a description of any treatment processes used to reduce vector attraction properties in sewage sludge; and

(3) A description of any other blending, treatment, or other activities that change the quality of sewage sludge.

d. If biosolids from the applicant's facility meets the ceiling concentrations in 9VAC25-31-540 B Table 1, the pollutant concentrations in 9VAC25-31-540 B Table 3, the Class A pathogen requirements in 9VAC25-31-710 A, and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through 8, and if the biosolids is applied to the land, the applicant must provide the total dry metric tons per 365-day period of sewage sludge subject to this subsection that is applied to the land.

e. If biosolids from the applicant's facility is sold or given away in a bag or other container for application to the land, and the biosolids is not subject to subdivision 8 d of this subsection, the applicant must provide the following information:

(1) The total dry metric tons per 365-day period of biosolids subject to this subsection that is sold or given away in a bag or other container for application to the land; and

(2) A copy of all labels or notices that accompany the biosolids being sold or given away.

f. If biosolids or sewage sludge from the applicant's facility is provided to another person who prepares biosolids, as defined in 9VAC25-31-500, and the biosolids is not subject to subdivision 8 d of this subsection, the applicant must provide the following information for each facility receiving the biosolids or sewage sludge:

(1) The name, mailing address, and email address of the receiving facility;

(2) The total dry metric tons per 365-day period of biosolids or sewage sludge subject to this subsection that the applicant provides to the receiving facility;

(3) A description of any treatment processes occurring at the receiving facility, including blending activities and treatment to reduce pathogens or vector attraction characteristic;

(4) A copy of the notice and necessary information that the applicant is required to provide the receiving facility under 9VAC25-31-530 G; and

(5) If the receiving facility places biosolids in bags or containers for sale or give-away for application to the land, a copy of any labels or notices that accompany the biosolids.

9. If biosolids from the applicant's facility is applied to the land in bulk form and is not subject to subdivision 8 d, e, or f of this subsection, the applicant must provide the following information:

a. Written permission of landowners on the most current form approved by the department.

b. The total dry metric tons per 365-day period of biosolids subject to this subsection that is applied to the land.

c. If any land application sites are located in states other than the state where the biosolids is prepared, a description of how the applicant will notify the permitting authority for the state where the land application sites are located.

d. The following information for each land application site that has been identified at the time of permit application:

(1) The DEQ control number, if previously assigned, identifying the land application field or site. If a DEQ control number has not been assigned, provide the site identification code used by the permit applicant to report activities and the site's location;

(2) The site's latitude and longitude in decimal degrees to three decimal places and method of determination;

(3) A legible topographic map and aerial photograph, including legend, of proposed application areas to scale as needed to depict the following features:

(a) Property boundaries;

(b) Surface water courses;

(c) Water supply wells and springs;

(d) Roadways;

(e) Rock outcrops;

(f) Slopes;

(g) Frequently flooded areas (National Resources Conservation Service (NRCS) designation);

(h) Occupied dwellings within 400 feet of the property boundaries and all existing extended dwelling and property line setback distances;

(i) Publicly accessible properties and occupied buildings within 400 feet of the property boundaries and the associated extended setback distances; and

(j) The gross acreage of the fields where biosolids will be applied;

(4) County map or other map of sufficient detail to show general location of the site and proposed transport vehicle haul routes to be utilized from the treatment plant;

(5) County tax maps labeled with Tax Parcel ID or IDs for each farm to be included in the permit, which may include multiple fields, to depict properties within 400 feet of the field boundaries;

(6) A USDA soil survey map, if available, of proposed sites for land application of biosolids;

(7) The name, mailing address, telephone number, and email address of each site owner, if different from the applicant;

(8) The name, mailing address, telephone number, and email address of the person who applies biosolids to the site, if different from the applicant;

(9) Whether the site is agricultural land, forest, a public contact site, or a reclamation site, as such site types are defined in 9VAC25-31-500;

(10) Description of agricultural practices, including a list of proposed crops to be grown;

(11) Whether either of the vector attraction reduction options of 9VAC25-31-720 B 9 or 10 is met at the site, and a description of any procedures employed at the time of use to reduce vector attraction properties in biosolids;

(12) Pertinent calculations justifying storage and land area requirements for biosolids application, including an annual biosolids balance incorporating such factors as precipitation, evapotranspiration, soil percolation rates, wastewater loading, and monthly storage (input and drawdown); and

(13) Other information that describes how the site will be managed, as specified by the department.

e. The following information for each land application site that has been identified at the time of permit application, if the applicant intends to apply bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B Table 2 to the site:

(1) Whether the applicant has contacted the permitting authority in the state where the bulk biosolids subject to 9VAC25-31-540 B Table 2 will be applied, to ascertain whether bulk biosolids subject to 9VAC25-31-540 B Table 2 has been applied to the site on or since July 20, 1993, and if so, the name of the permitting authority and the name, phone number, and email address, if available, of a contact person at the permitting authority; and

(2) Identification of facilities other than the applicant's facility that have sent, or are sending, biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B Table 2 to the site since July 20, 1993, if, based on the inquiry in subdivision 9 e (1) of this subsection, bulk biosolids subject to cumulative pollutant loading rates in 9VAC25-31-540 B Table 2 has been applied to the site since July 20, 1993.

10. Biosolids storage facilities not located at the site of the wastewater treatment plant. Plans and specifications for biosolids storage facilities not located at the site of the wastewater treatment plant generating the biosolids, including routine and on-site storage, shall be submitted for issuance of a certificate to construct and a certificate to operate in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790) and shall depict the following information:

a. Site layout on a recent 7.5 minute topographic quadrangle or other appropriate scaled map;

b. Location of any required soil, geologic, and hydrologic test holes or borings;

c. Location of the following field features within 0.25 miles of the site boundary (indicate on map) with the approximate distances from the site boundary:

(1) Water wells (operating or abandoned);

(2) Surface waters;

(3) Springs;

(4) Public water supplies;

(5) Sinkholes;

(6) Underground and surface mines;

(7) Mine pool (or other) surface water discharge points;

(8) Mining spoil piles and mine dumps;

(9) Quarries;

(10) Sand and gravel pits;

(11) Gas and oil wells;

(12) Diversion ditches;

(13) Occupied dwellings, including industrial and commercial establishments;

(14) Landfills and dumps;

(15) Other unlined impoundments;

(16) Septic tanks and drainfields; and

(17) Injection wells;

d. Topographic map (10-foot contour preferred) of sufficient detail to clearly show the following information:

(1) Maximum and minimum percent slopes;

(2) Depressions on the site that may collect water;

(3) Drainage ways that may attribute to rainfall run-on to or run-off from this site; and

(4) Portions of the site, if any, that are located within the 100-year floodplain;

e. Data and specifications for the liner proposed for seepage control;

f. Scaled plan view and cross-sectional view of the facilities showing inside and outside slopes of all embankments and details of all appurtenances;

g. Calculations justifying impoundment capacity; and

h. Groundwater monitoring plans for the facilities if required by the department. The groundwater monitoring plan shall include pertinent geohydrological data to justify upgradient and downgradient well location and depth.

11. Staging. Generic plans are required for staging of biosolids.

12. A biosolids management plan shall be provided that includes the following minimum site specific information at the time of permit application:

a. A comprehensive, general description of the operation shall be provided, including biosolids source or sources, quantities, flow diagram illustrating treatment works biosolids flows and solids handling units, site description, methodology of biosolids handling for application periods, including storage and nonapplication period storage, and alternative management methods when storage is not provided.

b. A nutrient management plan approved by the Department of Conservation and Recreation as required for application sites prior to department authorization under the following conditions:

(1) Sites operated by an owner or lessee of a confined animal feeding operation, as defined in subsection A of § 62.1-44.17:1 of the Code of Virginia, or confined poultry feeding operation, as defined in subsection A of § 62.1-44.17:1.1 of the Code of Virginia;

(2) Sites where land application is proposed more frequently than once every three years at greater than 50% of the annual agronomic rate;

(3) Mined or disturbed land sites where land application is proposed at greater than agronomic rates; or

(4) Other sites based on site-specific conditions that increase the risk that land application may adversely impact state waters.

13. Biosolids transport.

a. General description of transport vehicles to be used;

b. Procedures for biosolids offloading at the biosolids facilities and the land application site together with spill prevention, cleanup (including vehicle cleaning), field reclamation, and emergency spill notification and cleanup measures; and

c. Voucher system used for documentation and recordkeeping.

14. Field operations.

a. Storage.

(1) Routine storage at facilities not located at the site of the wastewater treatment plant – supernatant handling and disposal, biosolids handling, and loading of transport vehicles, equipment cleaning, freeboard maintenance, and inspections for structural integrity;

(2) On-site storage – procedures for department approval and implementation;

(3) Staging – procedures to be followed, including either designated site locations provided in the "Design Information" or the specific site criteria for such locations, including the liner/cover requirements and the time limit assigned to such use; and

(4) Field reestablishment of offloading (staging) areas.

b. Application methodology.

(1) Description and specifications on spreader vehicles;

(2) Procedures for calibrating equipment for various biosolids contents to ensure uniform distribution and appropriate loading rates on a day-to-day basis; and

(3) Procedures used to ensure that operations address the following constraints: application of biosolids to frozen ground, pasture/hay fields, crops for direct human consumption and saturated or ice-covered or snow-covered ground; establishment of setback distances, slopes, prohibited access for beef and dairy animals, and soil pH requirements; and proper site specific biosolids loading rates on a field-by-field basis.

15. An applicant for a permit authorizing the land application of biosolids shall provide to the department, and to each locality in which the applicant proposes to land apply biosolids, written evidence of financial responsibility. Evidence of financial responsibility shall be provided in accordance with requirements specified in Article 6 (9VAC25-32-770 et seq.) of Part IX (9VAC25-32-303 et seq.) of the Virginia Pollution Abatement (VPA) Permit Regulation.

16. If sewage sludge from the applicant's facility is placed on a surface disposal site, the applicant must provide the following information:

a. The total dry metric tons of sewage sludge from the applicant's facility that is placed on surface disposal sites per 365-day period.

b. The following information for each surface disposal site receiving sewage sludge from the applicant's facility that the applicant does not own or operate:

(1) The site name or number, contact person, mailing address, telephone number, and email address for the surface disposal site; and

(2) The total dry metric tons from the applicant's facility per 365-day period placed on the surface disposal site.

c. The following information for each active sewage sludge unit at each surface disposal site that the applicant owns or operates:

(1) The name or number and the location of the active sewage sludge unit;

(2) The unit's latitude and longitude to the nearest second, and method of determination;

(3) If not already provided, a topographic map (or other map if a topographic map is unavailable) that shows the unit's location;

(4) The total dry metric tons placed on the active sewage sludge unit per 365-day period;

(5) The total dry metric tons placed on the active sewage sludge unit over the life of the unit;

(6) A description of any liner for the active sewage sludge unit, including whether it has a maximum permeability of 1 X 10^-7cm/sec;

(7) A description of any leachate collection system for the active sewage sludge unit, including the method used for leachate disposal, and any federal, state, and local permit number for leachate disposal;

(8) If the active sewage sludge unit is less than 150 meters from the property line of the surface disposal site, the actual distance from the unit boundary to the site property line;

(9) The remaining capacity (dry metric tons) for the active sewage sludge unit;

(10) The date on which the active sewage sludge unit is expected to close, if such a date has been identified;

(11) The following information for any other facility that sends sewage sludge to the active sewage sludge unit:

(a) The name, contact person, mailing address, and email address of the facility; and

(b) Available information regarding the quality of the sewage sludge received from the facility, including any treatment at the facility to reduce pathogens or vector attraction characteristics;

(12) Whether any of the vector attraction reduction options of 9VAC25-31-720 B 9 through 11 is met at the active sewage sludge unit, and a description of any procedures employed at the time of disposal to reduce vector attraction properties in sewage sludge;

(13) The following information, as applicable to any groundwater monitoring occurring at the active sewage sludge unit:

(a) A description of any groundwater monitoring occurring at the active sewage sludge unit;

(b) Any available groundwater monitoring data, with a description of the well locations and approximate depth to groundwater;

(c) A copy of any groundwater monitoring plan that has been prepared for the active sewage sludge unit;

(d) A copy of any certification that has been obtained from a qualified groundwater scientist that the aquifer has not been contaminated; and

(14) If site-specific pollutant limits are being sought for the sewage sludge placed on this active sewage sludge unit, information to support such a request.

17. If sewage sludge from the applicant's facility is fired in a sewage sludge incinerator, the applicant must provide the following information:

a. The total dry metric tons of sewage sludge from the applicant's facility that is fired in sewage sludge incinerators per 365-day period.

b. The following information for each sewage sludge incinerator firing the applicant's sewage sludge that the applicant does not own or operate:

(1) The name or number, contact person, mailing address, telephone number, and email address of the sewage sludge incinerator; and

(2) The total dry metric tons from the applicant's facility per 365-day period fired in the sewage sludge incinerator.

18. If sewage sludge from the applicant's facility is sent to a municipal solid waste landfill (MSWLF), the applicant must provide the following information for each MSWLF to which sewage sludge is sent:

a. The name, contact person, mailing address, email address, location, and all applicable permit numbers of the MSWLF;

b. The total dry metric tons per 365-day period sent from this facility to the MSWLF;

c. A determination of whether the sewage sludge meets applicable requirements for disposal of sewage sludge in a MSWLF, including the results of the paint filter liquids test and any additional requirements that apply on a site-specific basis; and

d. Information, if known, indicating whether the MSWLF complies with criteria set forth in the Solid Waste Management Regulations, 9VAC20-81.

19. All applicants must provide the name, mailing address, telephone number, email address, and responsibilities of all contractors responsible for any operational or maintenance aspects of the facility related to biosolids or sewage sludge generation, treatment, use, or disposal.

20. At the request of the department, the applicant must provide any other information necessary to determine the appropriate standards for permitting under Part VI (9VAC25-31-420 et seq.) of this chapter, and must provide any other information necessary to assess the biosolids use and sewage sludge disposal practices, determine whether to issue a permit, or identify appropriate permit requirements; and pertinent plans, specifications, maps, and such other relevant information as may be required, in scope and details satisfactory to the department.

21. All applications must be signed by a certifying official in compliance with 9VAC25-31-110.

R. Applications for facilities with cooling water intake structures.

1. Application requirements. New facilities with new or modified cooling water intake structures. New facilities with cooling water intake structures as defined in 9VAC25-31-165 must report the information required under subdivisions 2, 3, and 4 of this subsection and under 9VAC25-31-165. Requests for alternative requirements under 9VAC25-31-165 must be submitted with the permit application.

2. Source water physical data. These include:

a. A narrative description and scaled drawings showing the physical configuration of all source water bodies used by the facility, including area dimensions, depths, salinity and temperature regimes, and other documentation that supports the determination of the water body type where each cooling water intake structure is located;

b. Identification and characterization of the source water body's hydrological and geomorphologic features, as well as the methods used to conduct any physical studies to determine the intake's area of influence within the water body and the results of such studies; and

c. Location maps.

3. Cooling water intake structure data. These include:

a. A narrative description of the configuration of each cooling water intake structure and where it is located in the water body and in the water column;

b. Latitude and longitude in degrees, minutes, and seconds for each cooling water intake structure;

c. A narrative description of the operation of each cooling water intake structure, including design intake flow, daily hours of operation, number of days of the year in operation, and seasonal changes, if applicable;

d. A flow distribution and water balance diagram that includes all sources of water to the facility, recirculation flows, and discharges; and

e. Engineering drawings of the cooling water intake structure.

4. Source water baseline biological characterization data. This information is required to characterize the biological community in the vicinity of the cooling water intake structure and to characterize the operation of the cooling water intake structures. The department may also use this information in subsequent permit renewal proceedings to determine if the design and construction technology plan as required in 9VAC25-31-165 should be revised. This supporting information must include existing data if available. Existing data may be supplemented with data from newly conducted field studies. The information must include:

a. A list of the data in subdivisions 4 b through 4 f of this subsection that is not available and efforts made to identify sources of the data;

b. A list of species (or relevant taxa) for all life stages and their relative abundance in the vicinity of the cooling water intake structure;

c. Identification of the species and life stages that would be most susceptible to impingement and entrainment. Species evaluated should include the forage base as well as those most important in terms of significance to commercial and recreational fisheries;

d. Identification and evaluation of the primary period of reproduction, larval recruitment, and period of peak abundance for relevant taxa;

e. Data representative of the seasonal and daily activities (e.g., feeding and water column migration) of biological organisms in the vicinity of the cooling water intake structure;

f. Identification of all threatened, endangered, and other protected species that might be susceptible to impingement and entrainment at the cooling water intake structures;

g. Documentation of any public participation or consultation with federal or state agencies undertaken in development of the plan; and

h. If information requested in this subdivision 4 is supplemented with data collected using field studies, supporting documentation for the source water baseline biological characterization must include a description of all methods and quality assurance procedures for sampling, and data analysis, including a description of the study area; taxonomic identification of sampled and evaluated biological assemblages (including all life stages of fish and shellfish); and sampling and data analysis methods. The sampling and data analysis methods used must be appropriate for a quantitative survey and based on consideration of methods used in other biological studies performed within the same source water body. The study area should include, at a minimum, the area of influence of the cooling water intake structure.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 9, eff. February 15, 2002; Volume 18, Issue 25, eff. September 25, 2002; Volume 21, Issue 2, eff. November 3, 2004; Volume 21, Issue 9, eff. February 9, 2005; Errata 21:14 VA.R. 2022 March 21, 2005; amended, Virginia Register Volume 22, Issue 24, eff. September 6, 2006; Volume 24, Issue 3, eff. November 14, 2007; Volume 24, Issue 6, eff. January 1, 2008; Volume 25, Issue 26, eff. September 30, 2009; Volume 26, Issue 11, eff. March 3, 2010; Volume 27, Issue 26, eff. September 28, 2011; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 24, eff. September 1, 2013; Volume 30, Issue 4, eff. November 20, 2013; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022; Volume 40, Issue 14, eff. March 27, 2024.

9VAC25-31-110 Signatories to permit applications and reports

A. All permit applications shall be signed as follows:

1. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy-making or decision-making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities, provided the manager is authorized to make management decisions that govern the operation of the regulated facility, including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long-term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;

2. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

3. For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes: (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

B. All reports required by permits, and other information requested by the department shall be signed by a person described in subsection A of this section, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

1. The authorization is made in writing by a person described in subsection A of this section;

2. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. (A duly authorized representative may thus be either a named individual or any individual occupying a named position.); and

3. The written authorization is submitted to the department.

C. If an authorization under subsection B of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subsection B of this section must be submitted to the department prior to or together with any reports, or information to be signed by an authorized representative.

D. Any person signing a document under subsection A or B of this section shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

E. Electronic reporting. If documents described in subsection A or B of this section are submitted electronically by or on behalf of the VPDES-regulated facility, any person providing the electronic signature for such documents shall meet all relevant requirements of this section and shall ensure that all of the relevant requirements of Part XI (9VAC25-31-950 et seq.) of this chapter and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D are met for that submission).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 33, Issue 22, eff. July 26, 2017; Errata, 35:4 VA.R. 602 October 15, 2018; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-120 Stormwater discharges

A. Permit requirements.

1. Prior to October 1, 1994, discharges composed entirely of stormwater shall not be required to obtain a VPDES permit except:

a. A discharge with respect to which a permit has been issued prior to February 4, 1987;

b. A discharge associated with industrial activity; or

c. A discharge which either the department or the regional administrator determines to contribute to a violation of a water quality standard or is a significant contributor of pollutants to surface waters. This designation may include a discharge from any conveyance or system of conveyances used for collecting and conveying stormwater run-off, except for those discharges from conveyances which do not require a permit under subdivision 2 of this subsection or agricultural stormwater run-off which is exempted from the definition of point source.

2. The board or department may not require a permit for discharges of stormwater run-off from mining operations or oil and gas exploration, production, processing or treatment operations, or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including pipes, conduits, ditches, and channels) used for collecting and conveying precipitation run-off and which are not contaminated by contact with or that has not come into contact with, any overburden, raw material, intermediate products, finished product, by-product or waste products located on the site of such operations.

3. In addition to meeting the requirements of subsection B of this section, an operator of a stormwater discharge associated with industrial activity which discharges through a large or medium municipal separate storm sewer system shall submit, to the operator of the municipal separate storm sewer system receiving the discharge no later than May 15, 1991, or 180 days prior to commencing such discharge: the name of the facility; a contact person and phone number; the location of the discharge; a description, including Standard Industrial Classification, which best reflects the principal products or services provided by each facility; and any existing VPDES permit number.

4. For stormwater discharges associated with industrial activity from point sources which discharge through a nonmunicipal or nonpublicly owned separate storm sewer system, the department, in its discretion, may issue: a single VPDES permit, with each discharger a co-permittee to a permit issued to the operator of the portion of the system that discharges into surface waters; or, individual permits to each discharger of stormwater associated with industrial activity through the nonmunicipal conveyance system.

a. All stormwater discharges associated with industrial activity that discharge through a stormwater discharge system that is not a municipal separate storm sewer must be covered by an individual permit, or a permit issued to the operator of the portion of the system that discharges to surface waters, with each discharger to the nonmunicipal conveyance a co-permittee to that permit.

b. Where there is more than one operator of a single system of such conveyances, all operators of stormwater discharges associated with industrial activity must submit applications.

c. Any permit covering more than one operator shall identify the effluent limitations, or other permit conditions, if any, that apply to each operator.

5. Conveyances that discharge stormwater run-off combined with municipal sewage are point sources that must obtain VPDES permits in accordance with the procedures of 9VAC25-31-100 and are not subject to the provisions of this section.

6. Whether a discharge from a municipal separate storm sewer is or is not subject to VPDES regulation shall have no bearing on whether the owner or operator of the discharge is eligible for funding under Title II, Title III or Title VI of the CWA.

7. a. On and after October 1, 1994, for discharges composed entirely of stormwater, that are not required by subdivision 1 of this subsection to obtain a permit, operators shall be required to obtain a VPDES permit only if:

(1) The department or the EPA regional administrator determines that stormwater controls are needed for the discharge based on wasteload allocations that are part of "total maximum daily loads" (TMDLs) that address the pollutant(s) of concern; or

(2) The department or the EPA regional administrator determines that the discharge, or category of discharges within a geographic area, contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.

b. Operators of nonmunicipal sources designated pursuant to subdivisions 7 a (1) and (2) of this subsection shall seek coverage under a VPDES permit in accordance with subdivision B 1 of this section.

c. Operators of stormwater discharges designated pursuant to subdivisions 7 a (1) and (2) of this subsection shall apply to the department for a permit within 180 days of receipt of notice, unless permission for a later date is granted by the department.

B. Application requirements for stormwater discharges associated with industrial activity.

1. Dischargers of stormwater associated with industrial activity are required to apply for an individual permit or seek coverage under a promulgated stormwater general permit. Facilities that are required to obtain an individual permit, or any discharge of stormwater which the department is evaluating for designation under subdivision A 1 c of this section, shall submit a VPDES application in accordance with the requirements of 9VAC25-31-100 as modified and supplemented by the provisions of this subsection.

a. Except as provided in subdivisions 1 b and c of this subsection, the operator of a stormwater discharge associated with industrial activity subject to this section shall provide:

(1) A site map showing topography (or indicating the outline of drainage areas served by the outfall or outfalls covered in the application if a topographic map is unavailable) of the facility including: each of its drainage and discharge structures; the drainage area of each stormwater outfall; paved areas and buildings within the drainage area of each stormwater outfall, each past or present area used for outdoor storage or disposal of significant materials, each existing structural control measure to reduce pollutants in stormwater run-off, materials loading and access areas, areas where pesticides, herbicides, soil conditioners and fertilizers are applied, each of its hazardous waste treatment, storage or disposal facilities (including each area not required to have a RCRA permit that is used for accumulating hazardous waste under 40 CFR 262.34); each well where fluids from the facility are injected underground; springs, and other surface water bodies which receive stormwater discharges from the facility;

(2) An estimate of the area of impervious surfaces (including paved areas and building roofs) and the total area drained by each outfall (within a mile radius of the facility) and a narrative description of the following: Significant materials that in the three years prior to the submittal of this application have been treated, stored or disposed in a manner to allow exposure to stormwater; method of treatment, storage or disposal of such materials; materials management practices employed, in the three years prior to the submittal of this application, to minimize contact by these materials with stormwater runoff; materials loading and access areas; the location, manner and frequency in which pesticides, herbicides, soil conditioners and fertilizers are applied; the location and a description of existing structural and nonstructural control measures to reduce pollutants in stormwater runoff; and a description of the treatment the stormwater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge;

(3) A certification that all outfalls that should contain stormwater discharges associated with industrial activity have been tested or evaluated for the presence of nonstormwater discharges that are not covered by a VPDES permit; tests for such nonstormwater discharges may include smoke tests, fluorometric dye tests, analysis of accurate schematics, as well as other appropriate tests. The certification shall include a description of the method used, the date of any testing, and the onsite drainage points that were directly observed during a test;

(4) Existing information regarding significant leaks or spills of toxic or hazardous pollutants at the facility that have taken place within the three years prior to the submittal of this application;

(5) Quantitative data based on samples collected during storm events and collected in accordance with 9VAC25-31-100 of this part from all outfalls containing a stormwater discharge associated with industrial activity for the following parameters:

(a) Any pollutant limited in an effluent guideline to which the facility is subject;

(b) Any pollutant listed in the facility's VPDES permit for its process wastewater (if the facility is operating under an existing VPDES permit);

(c) Oil and grease, pH, BOD₅, COD, TSS, total phosphorus, total Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;

(d) Any information on the discharge required under 9VAC25-31-100 G 7 f and g;

(e) Flow measurements or estimates of the flow rate, and the total amount of discharge for the storm event or events sampled, and the method of flow measurement or estimation; and

(f) The date and duration (in hours) of the storm event or events sampled, rainfall measurements or estimates of the storm event (in inches) which generated the sampled run-off and the duration between the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event (in hours);

(6) Operators of a discharge which is composed entirely of stormwater are exempt from the requirements of 9VAC25-31-100 G 2, G 3, G 4, G 5, G 7 c, G 7 d, G 7 e, and G 7 h; and

(7) Operators of new sources or new discharges that are composed in part or entirely of stormwater must include estimates for the pollutants or parameters listed in subdivision 1 a (5) of this subsection instead of actual sampling data, along with the source of each estimate. Operators of new sources or new discharges composed in part or entirely of stormwater must provide quantitative data for the parameters listed in subdivision 1 a (5) of this subsection within two years after commencement of discharge, unless such data has already been reported under the monitoring requirements of the VPDES permit for the discharge. Operators of a new source or new discharge that is composed entirely of stormwater are exempt from the requirements of 9VAC25-31-100 K 3 b, K 3 c, and K 5.

b. The operator of an existing or new discharge composed entirely of stormwater from an oil or gas exploration, production, processing, or treatment operation, or transmission facility is not required to submit a permit application in accordance with subdivision 1 a of this subsection, unless the facility:

(1) Has had a discharge of stormwater resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at any time since November 16, 1987;

(2) Has had a discharge of stormwater resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 110.6 at any time since November 16, 1987; or

(3) Contributes to a violation of a water quality standard.

c. The operator of an existing or new discharge composed entirely of stormwater from a mining operation is not required to submit a permit application unless the discharge has come into contact with any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.

d. Applicants shall provide such other information the department may reasonably require to determine whether to issue a permit.

2. No application for a VPDES permit authorizing direct or indirect discharge of stormwater runoff from a new municipal solid waste landfill into a local watershed protection district established and designated as such by city ordinance prior to January 1, 2006, shall be considered complete unless it contains certification from the local governing body of the city in which the discharge is to take place, that the discharge is consistent with the city's ordinance establishing and designating the local watershed protection district. This requirement shall apply to applications for new or modified individual VPDES permits and for new or modified coverage under general VPDES permits. This requirement does not apply to any municipal solid waste landfill in operation on or before January 1, 2006.

C. Application deadlines. Any operator of a point source required to obtain a permit under this section that does not have an effective VPDES permit authorizing discharges from its stormwater outfalls shall submit an application in accordance with the following deadlines:

1. Individual applications.

a. Except as provided in subdivision 1 b of this subsection, for any stormwater discharge associated with industrial activity as defined in this chapter which is not authorized by a stormwater general permit, a permit application made pursuant to subsection B of this section shall be submitted to the department by October 1, 1992;

b. For any stormwater discharge associated with industrial activity from a facility that is owned or operated by a municipality with a population of less than 100,000 that is not authorized by a general or individual permit, other than an airport, powerplant, or uncontrolled sanitary landfill, permit applications must be submitted to the department by March 10, 2003;

2. A permit application shall be submitted to the department within 180 days of notice, unless permission for a later date is granted by the department, for:

a. A stormwater discharge which either the department or the regional administrator, determines that the discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters; or

b. A stormwater discharge subject to subdivision B 1 d of this section;

3. Facilities with existing VPDES permits for stormwater discharges associated with industrial activity shall maintain existing permits. Facilities with permits for stormwater discharges associated with industrial activity which expire on or after May 18, 1992, shall submit a new application in accordance with the requirements of 9VAC25-31-100 and 9VAC25-31-120 B (Form 1, Form 2F, and other applicable forms) 180 days before the expiration of such permits.

D. Petitions.

1. Any person may petition the department to require a VPDES permit for a discharge that is composed entirely of stormwater which contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.

2. The department shall make a final determination on any petition received under this section within 90 days after receiving the petition.

E. Conditional exclusion for no exposure of industrial activities and materials to stormwater. Discharges composed entirely of stormwater are not stormwater discharges associated with industrial activity if there is no exposure of industrial materials and activities to rain, snow, snowmelt or run-off and the discharger satisfies the conditions in subdivisions 1 through 4 of this subsection. No exposure means that all industrial materials and activities are protected by a storm resistant shelter to prevent exposure to rain, snow, snowmelt, and run-off. Industrial materials or activities include material handling equipment or activities, industrial machinery, raw materials, intermediate products, by-products, final products, or waste products. Material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product or waste product.

1. To qualify for this exclusion, the operator of the discharge must:

a. Provide a storm resistant shelter to protect industrial materials and activities from exposure to rain, snow, snow melt, and run-off;

b. Complete and sign (according to 9VAC25-31-110) a certification that there are no discharges of stormwater contaminated by exposure to industrial materials and activities from the entire facility, except as provided in subdivision 2 of this subsection;

c. Submit the signed certification to the department once every five years. As of the start date in Table 1 of 9VAC25-31-1020, all certifications submitted in compliance with this section shall be submitted electronically by the owner or operator to the department in compliance with this section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, owners or operators may be required to report electronically if specified by a particular permit;

d. Allow the department to inspect the facility to determine compliance with the no exposure conditions;

e. Allow the department to make any no exposure inspection reports available to the public upon request; and

f. For facilities that discharge through an MS4, upon request, submit a copy of the certification of no exposure to the MS4 operator, as well as allow inspection and public reporting by the MS4 operator.

2. Storm resistant shelter is not required for:

a. Drums, barrels, tanks, and similar containers that are tightly sealed, provided those containers are not deteriorated and do not leak ("sealed" means banded or otherwise secured and without operational taps or valves);

b. Adequately maintained vehicles used in material handling; and

c. Final products, other than products that would be mobilized in stormwater discharge (e.g., rock salt).

3. a. This conditional exclusion from the requirement for a VPDES permit is available on a facility-wide basis only, not for individual outfalls. If a facility has some discharges of stormwater that would otherwise be no exposure discharges, individual permit requirements should be adjusted accordingly.

b. If circumstances change and industrial materials or activities become exposed to rain, snow, snow melt, or run-off, the conditions for this exclusion no longer apply. In such cases, the discharge becomes subject to enforcement for unpermitted discharge. Any conditionally exempt discharger who anticipates changes in circumstances should apply for and obtain permit authorization prior to the change of circumstances.

c. Notwithstanding the provisions of this subsection, the department retains the authority to require permit authorization (and deny this exclusion) upon making a determination that the discharge causes, has a reasonable potential to cause, or contributes to an instream excursion above an applicable water quality standard, including designated uses.

4. The no exposure certification requires the submission of the following information, at a minimum, to aid the department in determining if the facility qualifies for the no exposure exclusion:

a. The legal name, address, and phone number of the discharger.

b. The facility name and address, the county name and the latitude and longitude where the facility is located.

c. Certification that indicates that none of the following materials or activities are, or will be in the foreseeable future, exposed to precipitation:

(1) Using, storing, or cleaning industrial machinery or equipment, and areas where residuals from using, storing, or cleaning industrial machinery or equipment remain and are exposed to stormwater;

(2) Materials or residuals on the ground or in stormwater inlets from spills/leaks;

(3) Materials or products from past industrial activity;

(4) Material handling equipment (except adequately maintained vehicles);

(5) Materials or products during loading/unloading or transporting activities;

(6) Materials or products stored outdoors (except final products intended for outside use, e.g., new cars, where exposure to stormwater does not result in the discharge of pollutants);

(7) Materials contained in open, deteriorated or leaking storage drums, barrels, tanks, and similar containers;

(8) Materials or products handled/stored on roads or railways owned or maintained by the discharger;

(9) Waste material (except waste in covered, nonleaking containers, e.g., dumpsters);

(10) Application or disposal of process wastewater (unless otherwise permitted); and

(11) Particulate matter or visible deposits of residuals from roof stacks/vents not otherwise regulated, i.e., under an air quality control permit, and evident in the stormwater outflow.

d. All no exposure certifications must include the following certification statement and be signed in accordance with the signatory requirements of 9VAC25-31-110: "I certify under penalty of law that I have read and understand the eligibility requirements for claiming a condition of no exposure and obtaining an exclusion from VPDES stormwater permitting; and that there are no discharges of stormwater contaminated by exposure to industrial activities or materials from the industrial facility identified in this document (except as allowed under 9VAC25-31-120 E 2). I understand that I am obligated to submit a no exposure certification form once every five years to the Department of Environmental Quality and, if requested, to the operator of the local MS4 into which this facility discharges (where applicable). I understand that I must allow the department, or MS4 operator where the discharge is into the local MS4, to perform inspections to confirm the condition of no exposure and to make such inspection reports publicly available upon request. I understand that I must obtain coverage under a VPDES permit prior to any point source discharge of stormwater associated with industrial activity from the facility. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based upon my inquiry of the person or persons who manage the system, or those persons directly involved in gathering the information, the information submitted is to the best of my knowledge and belief true, accurate and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 9, eff. February 15, 2002; Volume 21, Issue 9, eff. February 9, 2005; Errata 21:13 VA.R. 1941 March 7, 2005; amended, Virginia Register Volume 24, Issue 3, eff. November 14, 2007; Volume 28, Issue 10, eff. February 15, 2012; Volume 33, Issue 22, eff. July 26, 2017; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-121 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 16, Issue 25, eff. September 27, 2000; amended, Virginia Register Volume 18, Issue 9, eff. February 15, 2002; repealed, Virginia Register Volume 21, Issue 9, eff. February 9, 2005.

9VAC25-31-130 Concentrated animal feeding operations

A. Permit requirement for CAFOs.

1. Concentrated animal feeding operations as defined in 9VAC25-31-10 or designated in accordance with subsection B of this section are point sources that require VPDES permits for discharges. Once an operation is defined as a CAFO, the VPDES requirements for CAFOs apply with respect to all animals in confinement at the operation and all manure, litter and process wastewater generated by those animals or the production of those animals, regardless of the type of animal.

2. Two or more animal feeding operations under common ownership are considered, for the purposes of this chapter, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

B. Case-by-case designations. The department may designate any animal feeding operation as a concentrated animal feeding operation upon determining that it is a significant contributor of pollution to surface waters.

1. In making this designation the department shall consider the following factors:

a. The size of the animal feeding operation and the amount of wastes reaching surface waters;

b. The location of the animal feeding operation relative to surface waters;

c. The means of conveyance of animal wastes and process wastewaters into surface waters;

d. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process wastewaters into surface waters; and

e. Other relevant factors.

2. No animal feeding operation with less than the numbers of animals set forth in the definition of Medium CAFO in this regulation shall be designated as a concentrated animal feeding operation unless:

a. Pollutants are discharged into surface waters through a manmade ditch, flushing system, or other similar manmade device; or

b. Pollutants are discharged directly into surface waters which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

3. A permit application shall not be required from a concentrated animal feeding operation designated under this subsection until the department has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the VPDES permit program.

C. VPDES permit authorization.

1. Permit requirement. The owners or operators of a CAFO shall not discharge unless the discharge is authorized by a VPDES permit. In order to obtain authorization under a VPDES permit, the CAFO owner or operator shall either apply for an individual VPDES permit or apply for coverage under a VPDES general permit. The owners or operators of a CAFO must have obtained authorization under the VPDES permit at the time that the CAFO discharges.

2. Information to submit with permit application. A permit application for an individual permit must include the information specified in 9VAC25-31-100 J. A notice of intent for a general permit must include the information specified in 9VAC25-31-100 J and 9VAC25-31-170.

3. Land application discharges from a CAFO are subject to VPDES requirements. The discharge of manure, litter or process wastewater to surface waters from a CAFO as the result of the application of that manure, litter or process wastewater by the CAFO to land areas under its control is a discharge from that CAFO subject to VPDES requirements, except where it is an agricultural stormwater discharge as provided in 33 USC § 1362(14). For purposes of this subdivision, where the manure, litter or process wastewater has been applied in accordance with a nutrient management plan approved by the Department of Conservation and Recreation and in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater, as specified in subdivisions E 1 f through i of 9VAC25-31-200, a precipitation-related discharge of manure, litter or process wastewater from land areas under the control of a CAFO is an agricultural stormwater discharge.

a. For unpermitted Large CAFOs, a precipitation-related discharge of manure, litter, or process wastewater from land areas under the control of a CAFO shall be considered an agricultural stormwater discharge only where the manure, litter, or process wastewater has been land applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater, as specified in subdivisions E 1 f through i of 9VAC25-31-200.

b. Unpermitted Large CAFOs shall maintain documentation specified in subdivision E 1 i of 9VAC25-31-200 either on site or at a nearby office, or otherwise make such documentation readily available to department staff upon request.

4. Procedures for CAFOs seeking coverage under a general permit. CAFO owners or operators shall submit a registration statement when seeking authorization to discharge under a general permit in accordance with subsection B of 9VAC25-31-170. The department will review registration statements submitted by CAFO owners or operators to ensure that the registration statement includes the information required by subsection J of 9VAC25-31-100, including a nutrient management plan that meets the requirements of subsection E of 9VAC25-31-200 and applicable effluent limitations and standards, including those specified in 40 CFR Part 412. When additional information is necessary to complete the registration statement or clarify, modify, or supplement previously submitted material, the department may request such information from the owner or operator. If the department makes a preliminary determination that the registration statement meets the requirements of subsection J of 9VAC25-31-100 and subsection E of 9VAC25-31-200, the department will notify the public of the department's proposal to grant coverage under the permit to the CAFO and make available for public review and comment the registration statement submitted by the CAFO, including the CAFO's nutrient management plan, and the draft terms of the nutrient management plan to be incorporated into the permit. The process for submitting public comments and public hearing requests, and the public hearing process if a request for a public hearing is granted, shall follow the procedures applicable to draft permits set forth in 9VAC25-31-300, 9VAC25-31-310, and 40 CFR 124.13. The board may establish, either by regulation or in the general permit, an appropriate period of time for the public to comment and request a public hearing that differs from the time period specified in 9VAC25-31-290. The department's response to significant comments received during the comment period is governed by 9VAC25-31-320, and, if necessary, the department will require the CAFO owner or operator to revise the nutrient management plan in order to be granted permit coverage. When the department authorizes coverage for the CAFO owner or operator under the general permit, the terms of the nutrient management plan shall become incorporated as terms and conditions of the permit for the CAFO. The department will notify the CAFO owner or operator and inform the public that coverage has been authorized and of the terms of the nutrient management plan incorporated as terms and conditions of the permit applicable to the CAFO.

5. Changes to a nutrient management plan. Any permit issued to a CAFO shall require the following procedures to apply when a CAFO owner or operator makes changes to the CAFO's nutrient management plan previously submitted to the department:

a. The CAFO owner or operator shall provide the department with the most current version of the CAFO's nutrient management plan and identify changes from the previous version, except that the results of calculations made in accordance with the requirements of subdivisions E 5 a (2) and E 5 b (4) of 9VAC25-31-200 are not subject to the requirements of this subdivision 5.

b. The department will review the revised nutrient management plan to ensure that it meets the requirements of this section and applicable effluent limitations and standards, including those specified in 40 CFR Part 412, and will determine whether the changes to the nutrient management plan necessitate revision to the terms of the nutrient management plan incorporated into the permit issued to the CAFO. If revision to the terms of the nutrient management plan is not necessary, the department will notify the CAFO owner or operator and upon such notification the CAFO may implement the revised nutrient management plan. If revision to the terms of the nutrient management plan is necessary, the department will determine whether such changes are substantial changes as described in subdivision 5 c of this subsection.

(1) If the department determines that the changes to the terms of the nutrient management plan are not substantial, the department will make the revised nutrient management plan publicly available and include it in the permit record, revise the terms of the nutrient management plan incorporated into the permit, and notify the owner or operator and inform the public of any changes to the terms of the nutrient management plan that are incorporated into the permit.

(2) If the department determines that the changes to the terms of the nutrient management plan are substantial, the department will notify the public and make the proposed changes and the information submitted by the CAFO owner or operator available for public review and comment. The process for public comments, public hearing requests, and the public hearing process if a public hearing is held shall follow the procedures applicable to draft permits set forth in 9VAC25-31-300, 9VAC25-31-310, and 40 CFR 124.13. The board may establish by regulation or the department may establish in the CAFO's permit, an appropriate period of time for the public to comment and request a public hearing on the proposed changes that differs from the time period specified in 9VAC25-31-290. The department will respond to all significant comments received during the comment period as provided in 9VAC25-31-320, and require the CAFO owner or operator to further revise the nutrient management plan if necessary, in order to approve the revision to the terms of the nutrient management plan incorporated into the CAFO's permit. Once the department incorporates the revised terms of the nutrient management plan into the permit, the department will notify the owner or operator and inform the public of the final decision concerning revisions to the terms and conditions of the permit.

c. Substantial changes to the terms of a nutrient management plan incorporated as terms and conditions of a permit include:

(1) Addition of new land application areas not previously included in the CAFO's nutrient management plan. Except that if the land application area that is being added to the nutrient management plan is covered by terms of a nutrient management plan incorporated into an existing VPDES permit in accordance with the requirements of subdivision E 5 of 9VAC25-31-200, and the CAFO owner or operator applies manure, litter, or process wastewater on the newly added land application area in accordance with the existing field-specific permit terms applicable to the newly added land application area, such addition of new land would be a change to the new CAFO owner or operator's nutrient management plan but not a substantial change for purposes of this section;

(2) Any changes to the field-specific maximum annual rates for land application, as set forth in subdivision E 5 a of 9VAC25-31-200, and to the maximum amounts of nitrogen and phosphorus derived from all sources for each crop, as set forth in subdivision E 5 b of 9VAC25-31-200;

(3) Addition of any crop or other uses not included in the terms of the CAFO's nutrient management plan and corresponding field-specific rates of application expressed in accordance with subdivision E 5 of 9VAC25-31-200; and

(4) Changes to site-specific components of the CAFO's nutrient management plan, where such changes are likely to increase the risk of nitrogen and phosphorus transport to state waters.

6. Causes for modification of nutrient management plans. The incorporation of the terms of a CAFO's nutrient management plan into the terms and conditions of a general permit when a CAFO obtains coverage under a general permit in accordance with subdivision C 4 of 9VAC25-31-130 and 9VAC25-31-170 is not a cause for modification pursuant to the requirements of 9VAC25-31-370.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 21, Issue 2, eff. November 3, 2004; Volume 21, Issue 9, eff. February 9, 2005; Volume 26, Issue 11, eff. March 3, 2010; Errata, 26:19 VA.R. 2501 May 24, 2010; amended, Virginia Register Volume 28, Issue 10, eff. February 15, 2012; Volume 30, Issue 4, eff. November 20, 2013; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-140 Concentrated aquatic animal production facilities

A. Concentrated aquatic animal production facilities, as defined in this chapter, are point sources subject to the VPDES permit program.

B. Case-by-case designations. The department may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to surface waters.

1. In making this designation the department shall consider the following factors:

a. The location and quality of the receiving surface waters;

b. The holding, feeding, and production capacities of the facility;

c. The quantity and nature of the pollutants reaching surface waters; and

d. Other relevant factors.

2. A permit application shall not be required from a concentrated aquatic animal production facility designated under this subsection until the department has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the VPDES permit program.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-150 Aquaculture projects

Discharges into aquaculture projects, as defined in this chapter, are subject to the VPDES permit program. Permits for aquaculture projects shall be issued according to the criteria of 40 CFR Part 125, Subpart B.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012.

9VAC25-31-160 Silvicultural activities

Silvicultural point sources, as defined in this chapter, are point sources subject to the VPDES permit program.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-165 Requirements applicable to cooling water intake structures

A. Definitions. The following definitions apply specifically to this section:

"Annual mean flow" means the average of daily flows over a calendar year.

"Closed-cycle recirculating system" means a system designed, using minimized makeup and blowdown flows, to withdraw water from a natural or other water source to support contact and/or noncontact cooling uses within a facility. The water is usually sent to a cooling canal or channel, lake, pond, or tower to allow waste heat to be dissipated to the atmosphere and then is returned to the system. (Some facilities divert the waste heat to other process operations.) New source water (make-up water) is added to the system to replenish losses that have occurred due to blowdown, drift, and evaporation.

"Cooling water" means water used for contact or noncontact cooling, including water used for equipment cooling, evaporative cooling tower makeup, and dilution of effluent heat content. The intended use of the cooling water is to absorb waste heat rejected from the process or processes used, or from auxiliary operations on the facility's premises. Cooling water that is used in a manufacturing process either before or after it is used for cooling is considered process water for the purposes of calculating the percentage of a new facility's intake flow that is used for cooling purposes.

"Cooling water intake structure" means the total physical structure and any associated constructed waterways used to withdraw cooling water from state waters. The cooling water intake structure extends from the point at which water is withdrawn from the surface water source up to, and including, the intake pumps.

"Design intake flow" means the value assigned (during the facility's design) to the total volume of water withdrawn from a source water body over a specific time period.

"Design intake velocity" means the value assigned (during the design of a cooling water intake structure) to the average speed at which intake water passes through the open area of the intake screen (or other device) against which organisms might be impinged or through which they might be entrained.

"Entrainment" means the incorporation of all life stages of fish and shellfish with intake water flow entering and passing through a cooling water intake structure and into a cooling water system.

"Estuary" means a semi-enclosed body of water that has a free connection with open seas and within which the seawater is measurably diluted with fresh water derived from land drainage. The salinity of an estuary exceeds 0.5 parts per thousand (by mass) but is typically less than 30 parts per thousand (by mass).

"Existing facility" means any facility that is not a new facility.

"Freshwater river or stream" means a lotic (free-flowing) system that does not receive significant inflows of water from oceans or bays due to tidal action. For the purposes of this section, a flow-through reservoir with a retention time of seven days or less will be considered a freshwater river or stream.

"Hydraulic zone of influence" means that portion of the source water body hydraulically affected by the cooling water intake structure withdrawal of water.

"Impingement" means the entrapment of all life stages of fish and shellfish on the outer part of an intake structure or against a screening device during periods of intake water withdrawal.

"Lake or reservoir" means any inland body of open water with some minimum surface area free of rooted vegetation and with an average hydraulic retention time of more than seven days. Lakes or reservoirs might be natural water bodies or impounded streams, usually fresh, surrounded by land or by land and a man-made retainer (e.g., a dam). Lakes or reservoirs might be fed by rivers, streams, springs, and/or local precipitation. Flow-through reservoirs with an average hydraulic retention time of seven days or less should be considered a freshwater river or stream.

"Maximize" means to increase to the greatest amount, extent, or degree reasonably possible.

"Minimize" means to reduce to the smallest amount, extent, or degree reasonably possible.

"Natural thermal stratification" means the naturally-occurring division of a water body into horizontal layers of differing densities as a result of variations in temperature at different depths.

"New facility" means any building, structure, facility, or installation that meets the definition of a "new source" or "new discharger" and is a greenfield or stand-alone facility that commences construction after January 17, 2002, and uses either a newly constructed cooling water intake structure, or an existing cooling water intake structure whose design capacity is increased to accommodate the intake of additional cooling water. A greenfield facility is a facility that is constructed at a site at which no other source is located, or that totally replaces the process or production equipment at an existing facility. A stand-alone facility is a new, separate facility that is constructed on property where an existing facility is located and whose processes are substantially independent of the existing facility at the same site. New facility does not include new units that are added to a facility for purposes of the same general industrial operation (for example, a new peaking unit at an electrical generating station).

"Ocean" means marine open coastal waters with a salinity greater than or equal to 30 parts per thousand (by mass).

"Source water" means the water body from which the cooling water is withdrawn.

"Thermocline" means the middle layer of a thermally stratified lake or reservoir. In this layer, there is a rapid decrease in temperatures.

"Tidal excursion" means the horizontal distance along the estuary or tidal river that a particle moves during one tidal cycle of ebb and flow.

"Tidal river" means the most seaward reach of a river or stream where the salinity is typically less than or equal to 0.5 parts per thousand (by mass) at a time of annual low flow and whose surface elevation responds to the effects of coastal lunar tides.

B. Cooling water intake structures for new facilities.

1. Applicability.

a. This section applies to a new facility if it:

(1) Is a point source that uses or proposes to use a cooling water intake structure;

(2) Has at least one cooling water intake structure that uses at least 25% of the water it withdraws for cooling purposes as specified in subdivision 1 c of this subsection; and

(3) Has a design intake flow greater than two million gallons per day (MGD).

b. Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier (or multiple suppliers) of cooling water if the supplier or suppliers withdraw(s) water from waters of the United States. Use of cooling water does not include obtaining cooling water from a public water system or the use of treated effluent that otherwise would be discharged to state waters. This provision is intended to prevent circumvention of these requirements by creating arrangements to receive cooling water from an entity that is not itself a point source.

c. The threshold requirement that at least 25% of water withdrawn be used for cooling purposes must be measured on an average monthly basis. A new facility meets the 25% cooling water threshold if, based on the new facility's design, any monthly average over a year for the percentage of cooling water withdrawn is expected to equal or exceed 25% of the total water withdrawn.

d. This section does not apply to facilities that employ cooling water intake structures in the offshore and coastal subcategories of the oil and gas extraction point source category as defined under 40 CFR 435.10 and 40 CFR 435.40.

2. Compliance.

a. The owner or operator of a new facility must comply with either Track I in subdivision 2 b or c of this subsection or Track II in subdivision 2 d of this subsection. In addition to meeting the requirements in subdivision 2 b, c or d of this subsection, the owner or operator of a new facility may be required to comply with subdivision 2 e of this subsection.

b. Track I requirements for new facilities that withdraw equal to or greater than 10 MGD. Facilities must comply with all of the following requirements:

(1) Reduce intake flow, at a minimum, to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system;

(2) Design and construct each cooling water intake structure to a maximum through-screen design intake velocity of 0.5 ft/s;

(3) Design and construct the cooling water intake structure such that the total design intake flow from all cooling water intake structures meets the following requirements:

(a) For cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than 5.0% of the source water annual mean flow;

(b) For cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency(ies);

(c) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than 1.0% of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level;

(4) Select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if:

(a) There are threatened or endangered or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or

(b) Based on information submitted by any fishery management agency(ies) or other relevant information, there are migratory and/or sport or commercial species of impingement concern to the department that pass through the hydraulic zone of influence of the cooling water intake structure; or

(c) It is determined by the department, based on information submitted by any fishery management agency(ies) or other relevant information that the proposed facility, after meeting the technology-based performance requirements in subdivision 2 b (1), (2), and (3) of this subsection, would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;

(5) Select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish if:

(a) There are threatened or endangered or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or

(b) Based on information submitted by any fishery management agency(ies) or other relevant information, there are or would be undesirable cumulative stressors affecting entrainable life stages of species of concern to the department, and the department determines that the proposed facility, after meeting the technology-based performance requirements in subdivision 2 b (1), (2), and (3) of this subsection, would contribute unacceptable stress to these species of concern;

(6) Submit the application information required in 9VAC25-31-100 Q and subdivision 4 b of this subsection;

(7) Implement the monitoring requirements specified in subdivision 5 of this subsection;

(8) Implement the record-keeping requirements specified in subdivision 6 of this subsection.

c. Track I requirements for new facilities that withdraw equal to or greater than two MGD and less than 10 MGD and that choose not to comply with subdivision 2 b of this subsection. Facilities must comply with all of the following requirements:

(1) Design and construct each cooling water intake structure at the facility to a maximum through-screen design intake velocity of 0.5 ft/s;

(2) Design and construct the cooling water intake structure such that the total design intake flow from all cooling water intake structures at the facility meets the following requirements:

(a) For cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than 5.0% of the source water annual mean flow;

(b) For cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency(ies);

(c) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than 1.0% of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level;

(3) Select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if:

(a) There are threatened or endangered or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or

(b) Based on information submitted by any fishery management agency(ies) or other relevant information there are migratory and/or sport or commercial species of impingement concern to the department that pass through the hydraulic zone of influence of the cooling water intake structure; or

(c) It is determined by the department, based on information submitted by any fishery management agency(ies) or other relevant information that the proposed facility, after meeting the technology-based performance requirements in subdivisions 2 c (1) and (2) of this subsection, would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;

(4) Select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish;

(5) Submit the application information required in 9VAC25-31-100 Q and 9VAC25-31-165 B 4;

(6) Implement the monitoring requirements specified in 9VAC25-31-165 B 5;

(7) Implement the recordkeeping requirements specified in 9VAC25-31-165 B 6.

d. Track II. The owner or operator of a new facility that chooses to comply under Track II must comply with the following requirements:

(1) Demonstrate to the department that the technologies employed will reduce the level of adverse environmental impact from cooling water intake structures to a comparable level to that which would be achieved using the requirements of subdivision 3 b (1) and (2) of this subsection. This demonstration must include a showing that the impacts to fish and shellfish, including important forage and predator species, within the watershed will be comparable to those that would result implementing the requirements of subdivisions 3 b (1) and (2) of this subsection. This showing may include consideration of impacts other than impingement mortality and entrainment, including measures that will result in increases in fish and shellfish, but it must demonstrate comparable performance for species that the department identifies as species of concern. In identifying such species the department may consider information provided by fishery management agencies with responsibility for fisheries potentially affected by the cooling water intake structure along with data and information from other sources.

(2) Design and construct the cooling water intake structure such that the total design intake flow from all cooling water intake structures at the facility meet the following requirements:

(a) For cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than 5.0% of the source water annual mean flow;

(b) For cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency(ies);

(c) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than 1.0% of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level.

(3) Submit the application information required in 9VAC25-31-100 Q and 9VAC25-31-165 B 4 c.

(4) Implement the monitoring requirements specified in 9VAC25-31-165 B 5.

(5) Implement the record-keeping requirements specified in 9VAC25-31-165 B 6.

e. The owner or operator of a new facility must comply with any more stringent requirements relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements at a new facility that the department deems are reasonably necessary to comply with any provision of state law, including compliance with state water quality standards (including designated uses, criteria, and antidegradation requirements).

3. Alternative requirements.

a. Any interested person may request that alternative requirements less stringent than those specified in 9VAC25-31-165 B 2 a through e be imposed in the permit. The department may establish alternative requirements less stringent than the requirements of 9VAC25-31-165 B 2 a through e only if:

(1) There is an applicable requirement under 9VAC25-31-165 B 2 a through e;

(2) The department determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to those EPA considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets;

(3) The alternative requirement requested is no less stringent than justified by the wholly out of proportion cost or the significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets; and

(4) The alternative requirement will ensure compliance with other applicable provisions of the Clean Water Act and state law.

b. The burden is on the person requesting the alternative requirement to demonstrate that alternative requirements should be authorized.

4. Application information requirements.

a. The owner or operator of a new facility must submit to the department:

(1) A statement of intention to comply with either:

(a) The Track I requirements for new facilities that withdraw equal to or greater than 10 MGD in 9VAC25-31-165 B 2 b;

(b) The Track I requirements for new facilities that withdraw equal to or greater than 2 MGD and less than 10 MGD in 9VAC25-31-165 B 2 c or;

(c) The requirements for Track II in 9VAC25-31-165 B 2 d.

(2) The owner or operator must also submit the application information required by 9VAC25-31-100 Q and the information required in either subdivision 4 b of this subsection for Track I or subdivision 4 c of this section for Track II when application is made for a new or reissued VPDES permit.

b. Track I application requirements. To demonstrate compliance with Track I requirements in 9VAC25-31-165 B 2 b or c, collect and submit to the department the information in subdivision 4 b (1) through (4) of this subsection.

(1) Flow reduction information. To comply with the flow reduction requirements in 9VAC25-31-165 B 2 b (1), submit the following information to demonstrate reduction of flow to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system:

(a) A narrative description of the system that has been designed to reduce intake flow to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system and any engineering calculations, including documentation demonstrating that make-up and blowdown flows have been minimized; and

(b) If the flow reduction requirement is met entirely, or in part, by reusing or recycling water withdrawn for cooling purposes in subsequent industrial processes, provide documentation that the amount of cooling water that is not reused or recycled has been minimized.

(2) Velocity information. Submit the following information to demonstrate compliance with the requirement to meet a maximum through-screen design intake velocity of no more than 0.5 ft/s at each cooling water intake structure:

(a) A narrative description of the design, structure, equipment, and operation used to meet the velocity requirement; and

(b) Design calculations showing that the velocity requirement will be met at minimum ambient source water surface elevations (based on best professional judgment using available hydrological data) and maximum head loss across the screens or other device.

(3) Source water body flow information. Submit the following information to demonstrate that the cooling water intake structure meets the flow requirements in 9VAC25-31-165 B 2 b (3) and c (2):

(a) If the cooling water intake structure is located in a freshwater river or stream, provide the annual mean flow and any supporting documentation and engineering calculations to show that the cooling water intake structure meets the flow requirements;

(b) If the cooling water intake structure is located in an estuary or tidal river, provide the mean low water tidal excursion distance and any supporting documentation and engineering calculations to show that the cooling water intake structure facility meets the flow requirements; and

(c) If the cooling water intake structure is located in a lake or reservoir, provide a narrative description of the water body thermal stratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish provide supporting documentation and include a written concurrence from any fisheries management agency(ies) with responsibility for fisheries potentially affected by the cooling water intake structure(s).

(4) Design and Construction Technology Plan. To comply with 9VAC25-31-165 B 2 b (4) and (5), or 9VAC25-31-165 B 2 c (3) and (4), submit the following information in a Design and Construction Technology Plan:

(a) Information to demonstrate whether or not the criteria in 9VAC25-31-165 B 2 b (4) and b (5), or 9VAC25-31-165 B 2 c (3) and c (4) are met;

(b) Delineation of the hydraulic zone of influence for the cooling water intake structure;

(c) New facilities required to install design and construction technologies and/or operational measures must develop a plan explaining the technologies and measures selected based on information collected for the Source Water Biological Baseline Characterization required by 9VAC25-31-100 Q. (Examples of appropriate technologies include, but are not limited to, wedgewire screens, fine mesh screens, fish handling and return systems, barrier nets, aquatic filter barrier systems, etc. Examples of appropriate operational measures include, but are not limited to, seasonal shutdowns or reductions in flow, continuous operations of screens, etc.) The plan must contain the following information:

(i) A narrative description of the design and operation of the design and construction technologies, including fish-handling and return systems, that will be used to maximize the survival of those species expected to be most susceptible to impingement. Provide species-specific information that demonstrates the efficacy of the technology;

(ii) A narrative description of the design and operation of the design and construction technologies that will be used to minimize entrainment of those species expected to be the most susceptible to entrainment. Provide species-specific information that demonstrates the efficacy of the technology; and

(iii) Design calculations, drawings, and estimates to support the descriptions provided in 9VAC25-31-165 B 4 b (4) (c) (i) and (ii).

c. Application requirements for Track II. In order to with the requirements of Track II in 9VAC25-31-165 B 2 d collect and submit the following information:

(1) Source water body flow information. Submit to the department the following information to demonstrate that the cooling water intake structure meets the source water body requirements in 9VAC25-31-165 B 2 d (2):

(a) If the cooling water intake structure is located in a freshwater river or stream, provide the annual mean flow and any supporting documentation and engineering calculations to show that the cooling water intake structure meets the flow requirements;

(b) If the cooling water intake structure is located in an estuary or tidal river, provide the mean low water tidal excursion distance and any supporting documentation and engineering calculations to show that the cooling water intake structure facility meets the flow requirements; and

(c) If the cooling water intake structure is located in a lake or reservoir, provide a narrative description of the water body thermal stratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and thermal or turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish provide supporting documentation and include a written concurrence from any fisheries management agency(ies) with responsibility for fisheries potentially affected by the cooling water intake structure(s).

(2) Track II Comprehensive Demonstration Study. Perform and submit the results of a Comprehensive Demonstration Study (study). This information is required to characterize the source water baseline in the vicinity of the cooling water intake structure(s), characterize operation of the cooling water intake(s), and to confirm that the technology(ies) proposed and/or implemented at the cooling water intake structure reduce the impacts to fish and shellfish to levels comparable to those achieved by implementation of the requirements in 9VAC25-31-165 B 2 b (1) and (2) of Track I. To demonstrate the "comparable level" requirement, include information showing that:

(a) Both impingement mortality and entrainment of all life stages of fish and shellfish are reduced by 90% or greater of the reduction that would be achieved through 9VAC25-31-165 B 2 b (1) and (2); or

(b) If the demonstration includes consideration of impacts other than impingement mortality and entrainment, that the measures taken will maintain the fish and shellfish in the water body at a substantially similar level to that which would be achieved through 9VAC25-31-165 B 2 b (1) and (2); and

(c) Develop and submit a plan to the department containing a proposal for how information will be collected to support the study. The plan must include:

(i) A description of the proposed and/or implemented technology(ies) to be evaluated in the study;

(ii) A list and description of any historical studies characterizing the physical and biological conditions in the vicinity of the proposed or actual intakes and their relevancy to the proposed study. If existing source water body data is used, it must be no more than five years old, demonstrated sufficient to develop a scientifically valid estimate of potential impingement and entrainment impacts, and include documentation that the data were collected using appropriate quality assurance/quality control procedures;

(iii) Any public participation or consultation with federal or state agencies undertaken in developing the plan; and

(iv) A sampling plan for data that will be collected using actual field studies in the source water body. The sampling plan must document all methods and quality assurance procedures for sampling, and data analysis. The sampling and data analysis methods proposed must be appropriate for a quantitative survey and based on consideration of methods used in other studies performed in the source water body. The sampling plan must include a description of the study area (including the area of influence of the cooling water intake structure and at least 100 meters beyond); taxonomic identification of the sampled or evaluated biological assemblages (including all life stages of fish and shellfish); and sampling and data analysis methods; and

(d) Submit documentation of the results of the study to the director. Documentation of the results of the study must include:

(i) Source Water Biological Study. The Source Water Biological Study must include a taxonomic identification and characterization of aquatic biological resources including a summary of historical and contemporary aquatic biological resources; determination and description of the target populations of concern (those species of fish and shellfish and all life stages that are most susceptible to impingement and entrainment); and a description of the abundance and temporal/spatial characterization of the target populations based on the collection of multiple years of data to capture the seasonal and daily activities (e.g., spawning, feeding and water column migration) of all life stages of fish and shellfish found in the vicinity of the cooling water intake structure; an identification of all threatened or endangered species that might be susceptible to impingement and entrainment by the proposed cooling water intake structure(s); and a description of additional chemical, water quality, and other anthropogenic stresses on the source water body.

(ii) Evaluation of potential cooling water intake structure effects. This evaluation will include calculations of the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would need to be achieved by the technologies selected to implement requirements under Track II and an engineering estimate of efficacy for the proposed and/or implemented technologies used to minimize impingement mortality and entrainment of all life stages of fish and shellfish and maximize survival of impinged life stages of fish and shellfish, demonstrating that the technologies reduce impingement mortality and entrainment of all life stages of fish and shellfish to a comparable level to that which would be achieved implementing the requirements in 9VAC25-31-165 B 2 b (1) and (2) of Track I. The efficacy projection must include a site-specific evaluation of technology(ies) suitability for reducing impingement mortality and entrainment based on the results of the Source Water Biological Study. Efficacy estimates may be determined based on case studies that have been conducted in the vicinity of the cooling water intake structure and/or site-specific technology prototype studies.

(iii) Evaluation of proposed restoration measures. If restoration measures are proposed to maintain the fish and shellfish provide information and data to show coordination with the appropriate fishery management agency(ies) and a plan that provides a list of the measures to implement to demonstrate and continue to ensure that restoration measures will maintain the fish and shellfish in the water body to a substantially similar level to that which would be achieved through 9VAC25-31-165 B 2 b (1) and (2).

(iv) Verification monitoring plan. Include in the study a plan to conduct, at a minimum, two years of monitoring to verify the full-scale performance of the proposed or implemented technologies or operational measures. The verification study must begin at the start of operations of the cooling water intake structure and continue for a sufficient period of time to demonstrate that the facility is reducing the level of impingement and entrainment to the level documented in 9VAC25-31-165 B 4 c (2) (d) (ii). The plan must describe the frequency of monitoring and the parameters to be monitored. The department will use the verification monitoring to confirm that the level of impingement mortality and entrainment reduction required in is met and that the operation of the technology has been optimized. Include a plan to conduct monitoring to verify that restoration measures will maintain the fish and shellfish in the water body to a substantially similar level as that which would be achieved through 9VAC25-31-165 B 2 b (1) and (2).

5. Monitoring. The owner or operator of a new facility will be required to perform monitoring to demonstrate compliance with the requirements specified in 9VAC25-31-165 B 2.

a. Biological monitoring. Monitor both impingement and entrainment of the commercial, recreational, and forage base fish and shellfish species identified in either the Source Water Baseline Biological Characterization data or the Comprehensive Demonstration Study, depending on whether compliance with Track I or Track II was chosen. The monitoring methods used must be consistent with those used for the Source Water Baseline Biological Characterization or the Comprehensive Demonstration Study. Follow the monitoring frequencies identified below for at least two years after the initial permit issuance.

(1) Impingement sampling. Collect samples to monitor impingement rates (simple enumeration) for each species over a 24-hour period and no less than once per month when the cooling water intake structure is in operation.

(2) Entrainment sampling. Collect samples to monitor entrainment rates (simple enumeration) for each species over a 24-hour period and no less than biweekly during the primary period of reproduction, larval recruitment, and peak abundance identified during the Source Water Baseline Biological Characterization or the Comprehensive Demonstration Study. Collect samples only when the cooling water intake structure is in operation.

b. Velocity monitoring. If the facility uses surface intake screen systems, monitor head loss across the screens and correlate the measured value with the design intake velocity. The head loss across the intake screen must be measured at the minimum ambient source water surface elevation (best professional judgment based on available hydrological data). The maximum head loss across the screen for each cooling water intake structure must be used to determine compliance with the velocity requirement in 9VAC25-31-165 B 2 b (2) or c (1). If the facility uses devices other than surface intake screens, monitor velocity at the point of entry through the device. Monitor head loss or velocity during initial facility startup, and thereafter, at the frequency specified in the VPDES permit.

c. Visual or remote inspections. Conduct visual inspections or employ remote monitoring devices during the period the cooling water intake structure is in operation. Conduct visual inspections at least weekly to ensure that any design and construction technologies are maintained and operated to ensure that they will continue to function as designed. Alternatively, inspect via remote monitoring devices to ensure that the impingement and entrainment technologies are functioning as designed.

6. Records and reporting. The owner or operator of a new facility is required to keep records and report information and data to the department as follows:

a. Keep records of all the data used to complete the permit application and show compliance with the requirements, any supplemental information developed under 9VAC25-31-165 B 4, and any compliance monitoring data submitted under 9VAC25-31-165 B 5, for a period of at least three years from the date of permit issuance. The department may require that these records be kept for a longer period.

b. Provide the following to the department in a yearly status report:

(1) Biological monitoring records for each cooling water intake structure as required by 9VAC25-31-165 B 5 a;

(2) Velocity and head loss monitoring records for each cooling water intake structure as required by 9VAC25-31-165 B 5 b; and

(3) Records of visual or remote inspections as required in 9VAC25-31-165 B 5 c.

C. Cooling water intake structures for existing facilities.

Existing facilities that are not subject to requirements under this section must meet requirements under section 316(b) of the Clean Water Act determined by the department on a case-by-case, best professional judgment (BPJ) basis.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 22, Issue 24, eff. September 6, 2006; amended, Virginia Register Volume 24, Issue 3, eff. November 14, 2007; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-170 General permits

A. The board may issue a general permit in accordance with the following:

1. The general permit shall be written to cover one or more categories or subcategories of discharges or sludge use or disposal practices or facilities described in the permit under subdivision 2 b of this subsection, except those covered by individual permits, within a geographic area. The area should correspond to existing geographic or political boundaries, such as:

a. Designated planning areas under §§ 208 and 303 of the CWA;

b. Sewer districts or sewer authorities;

c. City, county, or state political boundaries;

d. State highway systems;

e. Standard metropolitan statistical areas as defined by the Office of Management and Budget;

f. Urbanized areas as designated by the Bureau of the Census according to criteria in 30 FR 15202 (May 1, 1974); or

g. Any other appropriate division or combination of boundaries.

2. The general permit may be written to regulate one or more categories or subcategories of discharges or sludge use or disposal practices or facilities, within the area described in subdivision 1 of this subsection, where the sources within a covered subcategory of discharges are either:

a. Stormwater point sources; or

b. One or more categories or subcategories of point sources other than stormwater point sources, or one or more categories or subcategories of treatment works treating domestic sewage, if the sources or treatment works treating domestic sewage within each category or subcategory all:

(1) Involve the same or substantially similar types of operations;

(2) Discharge the same types of wastes or engage in the same types of sludge use or disposal practices;

(3) Require the same effluent limitations, operating conditions, or standards for sewage sludge use or disposal;

(4) Require the same or similar monitoring; and

(5) In the opinion of the board, are more appropriately controlled under a general permit than under individual permits.

3. Where sources within a specific category of dischargers are subject to water quality-based limits imposed pursuant to 9VAC25-31-220, the sources in that specific category or subcategory shall be subject to the same water quality-based effluent limitations.

4. The general permit must clearly identify the applicable conditions for each category or subcategory of dischargers or treatment works treating domestic sewage covered by the permit.

5. The general permit may exclude specified sources or areas from coverage.

B. Administration.

1. General permits may be issued, modified, revoked and reissued, or terminated in accordance with applicable requirements of this chapter.

2. Authorization to discharge, or authorization to engage in sludge use and disposal practices.

a. Except as provided in subdivisions 2 e and 2 f of this subsection, dischargers (or treatment works treating domestic sewage) seeking coverage under a general permit shall submit to the department a written notice of intent to be covered by the general permit. A discharger (or treatment works treating domestic sewage) who fails to submit a notice of intent in accordance with the terms of the permit is not authorized to discharge, (or in the case of a sludge disposal permit, to engage in a sludge use or disposal practice), under the terms of the general permit unless the general permit, in accordance with subdivision 2 e of this subsection, contains a provision that a notice of intent is not required or the department notifies a discharger (or treatment works treating domestic sewage) that it is covered by a general permit in accordance with subdivision 2 f of this subsection. A complete and timely notice of intent (NOI) to be covered in accordance with general permit requirements fulfills the requirements for permit applications for the purposes of this chapter. As of the start date in Table 1 of 9VAC25-31-1020, all notices of intent submitted in compliance with this subsection shall be submitted electronically by the discharger (or treatment works treating domestic sewage) to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, dischargers (or treatment works treating domestic sewage) may be required to report electronically if specified by a particular permit.

b. The contents of the notice of intent shall be specified in the general permit and shall require the submission of information necessary for adequate program implementation, including at a minimum, the legal name and address of the owner or operator, the facility name and address, type of facility or discharges, and the receiving stream or streams and other required data elements as identified in Appendix A to 40 CFR Part 127, as adopted by reference in 9VAC25-31-1030. General permits for stormwater discharges associated with industrial activity from inactive mining, inactive oil and gas operations, or inactive landfills occurring on federal lands where an operator cannot be identified may contain alternative notice of intent requirements. Notices of intent for coverage under a general permit for concentrated animal feeding operations must include the information specified in 9VAC25-31-100 J 1, including a topographic map. All notices of intent shall be signed in accordance with 9VAC25-31-110.

c. General permits shall specify the deadlines for submitting notices of intent to be covered and the date or dates when a discharger is authorized to discharge under the permit.

d. General permits shall specify whether a discharger (or treatment works treating domestic sewage) that has submitted a complete and timely notice of intent to be covered in accordance with the general permit and that is eligible for coverage under the permit, is authorized to discharge, (or in the case of a sludge disposal permit, to engage in a sludge use or disposal practice), in accordance with the permit either upon receipt of the notice of intent by the department, after a waiting period specified in the general permit, on a date specified in the general permit, or upon receipt of notification of inclusion by the department. Coverage may be terminated or revoked in accordance with subdivision 3 of this subsection.

e. Discharges other than discharges from publicly owned treatment works, combined sewer overflows, primary industrial facilities, and stormwater discharges associated with industrial activity, may, at the discretion of the department, be authorized to discharge under a general permit without submitting a notice of intent where the department finds that a notice of intent requirement would be inappropriate. In making such a finding, the department shall consider: the type of discharge; the expected nature of the discharge; the potential for toxic and conventional pollutants in the discharges; the expected volume of the discharges; other means of identifying discharges covered by the permit; and the estimated number of discharges to be covered by the permit. The department shall provide in the public notice of the general permit the reasons for not requiring a notice of intent.

f. The department may notify a discharger (or treatment works treating domestic sewage) that it is covered by a general permit, even if the discharger (or treatment works treating domestic sewage) has not submitted a notice of intent to be covered. A discharger (or treatment works treating domestic sewage) so notified may request an individual permit under subdivision 3 c of this subsection.

g. A CAFO owner or operator may be authorized to discharge under a general permit only in accordance with the process described in subdivision C 4 of 9VAC25-31-130.

3. Requiring an individual permit.

a. The department may require any discharger authorized by a general permit to apply for and obtain an individual VPDES permit. Any interested person may request the department to take action under this subdivision. Cases where an individual VPDES permit may be required include the following:

(1) The discharger or treatment works treating domestic sewage is not in compliance with the conditions of the general VPDES permit;

(2) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source or treatment works treating domestic sewage;

(3) Effluent limitation guidelines are promulgated for point sources covered by the general VPDES permit;

(4) A water quality management plan containing requirements applicable to such point sources is approved;

(5) Circumstances have changed since the time of the request to be covered so that the discharger is no longer appropriately controlled under the general permit, or either a temporary or permanent reduction or elimination of the authorized discharge is necessary;

(6) Standards for sewage sludge use or disposal have been promulgated for the sludge use and disposal practice covered by the general VPDES permit; or

(7) The discharge is a significant contributor of pollutants. In making this determination, the department may consider the following factors:

(a) The location of the discharge with respect to surface waters;

(b) The size of the discharge;

(c) The quantity and nature of the pollutants discharged to surface waters; and

(d) Other relevant factors.

b. Permits required on a case-by-case basis.

(1) The department may determine, on a case-by-case basis, that certain concentrated animal feeding operations, concentrated aquatic animal production facilities, stormwater discharges, and certain other facilities covered by general permits that do not generally require an individual permit may be required to obtain an individual permit because of their contributions to water pollution.

(2) Whenever the department decides that an individual permit is required under this subsection, except as provided in subdivision 3 b (3) of this subsection, the department shall notify the discharger in writing of that decision and the reasons for it, and shall send an application form with the notice. The discharger must apply for a permit within 60 days of notice, unless permission for a later date is granted by the department. The question whether the designation was proper will remain open for consideration during the public comment period for the draft permit and in any subsequent public hearing.

(3) Prior to a case-by-case determination that an individual permit is required for a stormwater discharge under this subsection, the department may require the discharger to submit a permit application or other information regarding the discharge under the law and § 308 of the CWA. In requiring such information, the department shall notify the discharger in writing and shall send an application form with the notice. The discharger must apply for a permit under 9VAC25-31-120 A 1 within 60 days of notice or under 9VAC25-31-120 A 7 within 180 days of notice, unless permission for a later date is granted by the department. The question whether the initial designation was proper will remain open for consideration during the public comment period for the draft permit and in any subsequent public hearing.

c. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under 9VAC25-31-100 with reasons supporting the request. The request shall be processed under the applicable parts of this chapter. The request shall be granted by issuing of an individual permit if the reasons cited by the owner or operator are adequate to support the request.

d. When an individual VPDES permit is issued to an owner or operator otherwise subject to a general VPDES permit, the applicability of the general permit to the individual VPDES permittee is automatically terminated on the effective date of the individual permit.

e. A source excluded from a general permit solely because it already has an individual permit may request that the individual permit be revoked, and that it be covered by the general permit. Upon revocation of the individual permit, the general permit shall apply to the source.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 21, Issue 2, eff. November 3, 2004; Volume 21, Issue 9, eff. February 9, 2005; Volume 26, Issue 11, eff. March 3, 2010; Volume 30, Issue 4, eff. November 20, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-180 New sources and new dischargers

A. Criteria for new source determination.

1. Except as otherwise provided in an applicable new source performance standard, a source is a new source if it meets the definition of new source in this chapter, and

a. It is constructed at a site at which no other source is located; or

b. It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

c. Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the department shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.

2. A source meeting the requirements of subdivision 1 a, b, or c of this subsection is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger.

3. Construction on a site at which an existing source is located results in a permit modification subject to 9VAC25-31-390 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of subdivision 1 b or c of this subsection but otherwise alters, replaces, or adds to existing process or production equipment.

4. Construction of a new source has commenced if the owner or operator has:

a. Begun, or caused to begin as part of a continuous on-site construction program:

(1) Any placement, assembly, or installation of facilities or equipment; or

(2) Significant site preparation work including clearing, excavation or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or

b. Entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility engineering, and design studies do not constitute a contractual obligation under the paragraph.

B. Effect of compliance with new source performance standards. The provisions of this subsection do not apply to existing sources which modify their pollution control facilities or construct new pollution control facilities and achieve performance standards, but which are neither new sources or new dischargers or otherwise do not meet the requirements of this subdivision.

1. Except as provided in subdivision 2 of this subsection, any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under § 301(b)(2) of the CWA for the soonest ending of the following periods:

a. Ten years from the date that construction is completed;

b. Ten years from the date the source begins to discharge process or other nonconstruction related wastewater; or

c. The period of depreciation or amortization of the facility for the purposes of §§ 167 or 169 (or both) of the Internal Revenue Code of 1954 (26 USC 167 and 26 USC 169, respectively).

2. The protection from more stringent standards of performance afforded by subdivision 1 of this subsection does not apply to:

a. Additional or more stringent permit conditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under the law and § 307(a) of the CWA; or

b. Additional permit conditions controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.

3. When a VPDES permit issued to a source with a protection period under subdivision 1 of this subsection will expire on or after the expiration of the protection period, that permit shall require the owner or operator of the source to comply with the requirements of § 301 of the CWA and any other then applicable requirements of the CWA and the law immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.

4. The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger shall install and have in operating condition, and shall start-up all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit conditions. The requirements of this paragraph do not apply if the owner or operator is issued a permit containing a compliance schedule under 9VAC25-31-250 A 2.

5. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

Part III Permit Conditions

9VAC25-31-190 Conditions applicable to all permits

The following conditions apply to all VPDES permits. Additional conditions applicable to VPDES permits are in 9VAC25-31-200. All conditions applicable to VPDES permits shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to this regulation must be given in the permit.

A. The permittee must comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the law and the CWA, except that noncompliance with certain provisions of the permit may constitute a violation of the law but not the CWA. Permit noncompliance is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application.

The permittee shall comply with effluent standards or prohibitions established under § 307(a) of the CWA for toxic pollutants and with standards for sewage sludge use or disposal established under § 405(d) of the CWA within the time provided in the chapters that establish these standards or prohibitions or standards for sewage sludge use or disposal, even if the permit has not yet been modified to incorporate the requirement.

B. If the permittee wishes to continue an activity regulated by the permit after the expiration date of the permit, the permittee must apply for and obtain a new permit.

C. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

D. The permittee shall take all reasonable steps to minimize or prevent any discharge or sludge use or disposal in violation of the permit which has a reasonable likelihood of adversely affecting human health or the environment.

E. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used by the permittee to achieve compliance with the conditions of the permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems that are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit.

F. Permits may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition.

G. Permits do not convey any property rights of any sort, or any exclusive privilege.

H. The permittee shall furnish to the department, within a reasonable time, any information that the department may request to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. The department may require the permittee to furnish, upon request, such plans, specifications, and other pertinent information as may be necessary to determine the effect of the wastes from the permittee's discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the law. The permittee shall also furnish to the department upon request, copies of records required to be kept by the permit.

I. The permittee shall allow the director, or an authorized representative (including an authorized contractor acting as a representative of the administrator), upon presentation of credentials and other documents as may be required by law, to:

1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of the permit;

2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

3. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the permit; and

4. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the CWA and the law, any substances or parameters at any location.

J. Monitoring and records.

1. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

2. Except for records of monitoring information required by the permit related to the permittee's sewage sludge use and disposal activities, which shall be retained for a period of at least five years (or longer as required by Part VI (9VAC25-31-420 et seq.) of this chapter), the permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three years from the date of the sample, measurement, report or application. This period of retention shall be extended automatically during the course of any unresolved litigation regarding the regulated activity or regarding control standards applicable to the permittee, or as requested by the department.

3. Records of monitoring information shall include:

a. The date, exact place, and time of sampling or measurements;

b. The individual who performed the sampling or measurements;

c. The date analyses were performed;

d. The individual who performed the analyses;

e. The analytical techniques or methods used; and

f. The results of such analyses.

4. Monitoring results must be conducted according to test procedures approved under 40 CFR Part 136 or alternative EPA approved methods; or, in the case of sludge use or disposal, approved under 40 CFR Part 136 unless otherwise specified in Part VI of this chapter, unless other test procedures have been specified in the permit.

5. Samples taken shall be analyzed by a laboratory certified under 1VAC30-45, Certification for Noncommercial Environmental Laboratories, or 1VAC30-46, Accreditation for Commercial Environmental Laboratories.

K. All applications, reports, or information submitted to the department shall be signed and certified as required by 9VAC25-31-110.

L. Reporting requirements.

1. The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:

a. The alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in 9VAC25-31-180 A;

b. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations in the permit, nor to notification requirements under 9VAC25-31-200 A 1; or

c. The alteration or addition results in a significant change in the permittee's sludge use or disposal practices, and such alteration, addition, or change may justify the application of permit conditions that are different from or absent in the existing permit, including notification of additional use or disposal sites not reported during the permit application process or not reported pursuant to an approved land application plan.

2. The permittee shall give advance notice to the department of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements.

3. Permits are not transferable to any person except after notice to the department. The department may require modification or revocation and reissuance of permits to change the name of the permittee and incorporate such other requirements as may be necessary under the law or the CWA.

4. Monitoring results shall be reported at the intervals specified in the permit.

a. Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or specified by the department for reporting results of monitoring of sludge use or disposal practices. As of the start date in Table 1 of 9VAC25-31-1020, all reports and forms submitted in compliance with this subdivision 4 shall be submitted electronically by the permittee to the department in compliance with this subdivision 4 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, permittees may be required to report electronically if specified by a particular permit.

b. If the permittee monitors any pollutant specifically addressed by the permit more frequently than required by the permit using test procedures approved under 40 CFR Part 136 or, in the case of sludge use or disposal, approved under 40 CFR Part 136 unless otherwise specified in Part VI of this chapter, or as specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR or sludge reporting form specified by the department.

c. Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in the permit.

5. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of the permit shall be submitted no later than 14 days following each schedule date.

6. If any unusual or extraordinary discharge including a bypass or upset should occur from a facility and such discharge enters or could be expected to enter state waters, the owner shall promptly notify, in no case later than 24 hours, the department by telephone after the discovery of such discharge. This notification shall provide all available details of the incident, including any adverse effects on aquatic life and the known number of fish killed. The permittee shall reduce the report to writing and shall submit it to the department within five days of discovery of the discharge in accordance with subdivision 7 a of this subsection. Unusual and extraordinary discharges include but are not limited to any discharge resulting from:

a. Unusual spillage of materials resulting directly or indirectly from processing operations;

b. Breakdown of processing or accessory equipment;

c. Failure or taking out of service of the treatment plant or auxiliary facilities (such as sewer lines or wastewater pump stations); and

d. Flooding or other acts of nature.

7. Twenty-four hour and five-day reporting.

a. The permittee shall report any noncompliance that may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A report in a format required by the department shall also be provided within five days of the time the permittee becomes aware of the circumstances. The five-day report shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

(1) For noncompliance events related to combined sewer overflows, sanitary sewer overflows, or bypass events, these reports must include the data described in subdivision 7 a of this subsection with the exception of time of discovery, as well as the type of event (i.e., combined sewer overflows, sanitary sewer overflows, or bypass events); type of sewer overflow structure (e.g., manhole, combine sewer overflow outfall); discharge volumes untreated by the treatment works treating domestic sewage; types of human health and environmental impacts of the sewer overflow event; and whether the noncompliance was related to wet weather.

(2) As of the start date in Table 1 of 9VAC25-31-1020, all reports related to combined sewer overflows, sanitary sewer overflows, or bypass events submitted in compliance with this subdivision 7 shall be submitted electronically by the permittee to the department in compliance with this subdivision 7 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, permittees may be required to electronically submit reports related to combined sewer overflows, sanitary sewer overflows, or bypass events under this subdivision by a particular permit.

(3) The director may also require permittees to electronically submit reports not related to combined sewer overflows, sanitary sewer overflows, or bypass events under this subdivision.

b. The following shall be reported within 24 hours under this subdivision:

(1) Any unanticipated bypass that exceeds any effluent limitation in the permit.

(2) Any upset that exceeds any effluent limitation in the permit.

(3) Violation of a maximum daily discharge limitation for any of the pollutants listed in the permit to be reported within 24 hours.

c. The department may waive the five-day report on a case-by-case basis for reports under this subdivision if the oral report has been received within 24 hours.

8. The permittee shall report all instances of noncompliance not reported under subdivisions 4, 5, 6, and 7 of this subsection, in a format required by the department at the time the next monitoring reports are submitted. The reports shall contain the information listed in subdivision 7 of this subsection.

a. For noncompliance events related to combined sewer overflows, sanitary sewer overflows, or bypass events, these reports shall contain the information described in subdivision 7 a of this subsection and the applicable required data in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030.

b. As of the start date in Table 1 of 9VAC25-31-1020, all reports related to combined sewer overflows, sanitary sewer overflows, or bypass events submitted in compliance with this subdivision 8 shall be submitted electronically by the permittee to the department in compliance with this subdivision 8 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, permittees may be required to electronically submit reports related to combined sewer overflows, sanitary sewer overflows, or bypass events under this section by a particular permit.

c. The director may also require permittees to electronically submit reports not related to combined sewer overflows, sanitary sewer overflows, or bypass events under this section.

9. Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the department, it shall promptly submit such facts or information.

10. The owner, operator, or the duly authorized representative of an VPDES-regulated entity is required to electronically submit the required information, as specified in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030, to the department.

M. Bypass.

1. The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subdivisions 2 and 3 of this subsection.

2. Notice.

a. Anticipated bypass. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least 10 days before the date of the bypass. As of the start date in Table 1 of 9VAC25-31-1020, all notices submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, permittees may be required to report electronically if specified by a particular permit.

b. Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in subdivision L 7 of this section. As of the start date in Table 1 of 9VAC25-31-1020, all notices submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, permittees may be required to report electronically if specified by a particular permit.

3. Prohibition of bypass.

a. Bypass is prohibited, and the department may take enforcement action against a permittee for bypass, unless:

(1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(3) The permittee submitted notices as required under subdivision 2 of this subsection.

b. The department may approve an anticipated bypass, after considering its adverse effects, if the department determines that it will meet the three conditions listed above in subdivision 3 a of this subsection.

N. Upset.

1. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology based permit effluent limitations if the requirements of subdivision 2 of this subsection are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.

2. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

a. An upset occurred and that the permittee can identify the cause or causes of the upset;

b. The permitted facility was at the time being properly operated;

c. The permittee submitted notice of the upset as required in subdivision L 7 b (2) of this section (24-hour notice); and

d. The permittee complied with any remedial measures required under subsection D of this section.

3. In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012; Volume 33, Issue 22, eff. July 26, 2017; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-200 Additional conditions applicable to specified categories of VPDES permits

The following conditions, in addition to those set forth in 9VAC25-31-190, apply to all VPDES permits within the categories specified in this section:

A. Existing manufacturing, commercial, mining, and silvicultural dischargers. All existing manufacturing, commercial, mining, and silvicultural dischargers must notify the department as soon as they know or have reason to believe:

1. That any activity has occurred or will occur that would result in the discharge, on a routine or frequent basis, of any toxic pollutant that is not limited in the permit, if that discharge will exceed the highest of the following notification levels:

a. One hundred micrograms per liter (100 μg/l);

b. Two hundred micrograms per liter (200 μg/l) for acrolein and acrylonitrile; five hundred micrograms per liter (500 μg/l) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter (1 mg/l) for antimony;

c. Five times the maximum concentration value reported for that pollutant in the permit application; or

d. The level established by the department in accordance with 9VAC25-31-220 F.

2. That any activity has occurred or will occur that would result in any discharge, on a nonroutine or infrequent basis, of a toxic pollutant that is not limited in the permit, if that discharge will exceed the highest of the following notification levels:

a. Five hundred micrograms per liter (500 μg/l);

b. One milligram per liter (1 mg/l) for antimony;

c. Ten times the maximum concentration value reported for that pollutant in the permit application; or

d. The level established by the department in accordance with 9VAC25-31-220 F.

B. Publicly and privately owned treatment works. All POTWs and PVOTWs must provide adequate notice to the department of the following:

1. Any new introduction of pollutants into the POTW or PVOTW from an indirect discharger that would be subject to § 301 or 306 of the CWA and the law if it were directly discharging those pollutants; and

2. Any substantial change in the volume or character of pollutants being introduced into that POTW or PVOTW by a source introducing pollutants into the POTW or PVOTW at the time of issuance of the permit.

3. For purposes of this subsection, adequate notice shall include information on (i) the quality and quantity of effluent introduced into the POTW or PVOTW and (ii) any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW or PVOTW.

4. When the monthly average flow influent to a POTW or PVOTW reaches 95% of the design capacity authorized by the VPDES permit for each month of any three-month period, the owner shall within 30 days notify the department in writing and within 90 days submit a plan of action for ensuring continued compliance with the terms of the permit.

a. The plan shall include the necessary steps and a prompt schedule of implementation for controlling any current problem, or any problem that could be reasonably anticipated, resulting from high influent flows.

b. Upon receipt of the owner's plan of action, the department shall notify the owner whether the plan is approved or disapproved. If the plan is disapproved, such notification shall state the reasons and specify the actions necessary to obtain approval of the plan.

c. Failure to timely submit an adequate plan shall be deemed a violation of the permit.

d. Nothing herein shall in any way impair the authority of the department to take enforcement action under § 62.1-44.15, 62.1-44.23, or 62.1-44.32 of the Code of Virginia.

C. Wastewater works operator requirements.

1. The permittee shall employ or contract at least one wastewater works operator who holds a current wastewater license appropriate for the permitted facility. The license shall be issued in accordance with Title 54.1 of the Code of Virginia and Waterworks and Wastewater Works Operators Licensing Regulations (18VAC160-30). Notwithstanding the foregoing requirement, unless the discharge is determined by the department on a case-by-case basis to be a potential contributor of pollution, no licensed operator is required for wastewater treatment works:

a. That have a design hydraulic capacity equal to or less than 0.04 mgd;

b. That discharge industrial waste or other waste from coal mining operations; or

c. That do not utilize biological or physical or chemical treatment.

2. In making this case-by-case determination, the department shall consider the location of the discharge with respect to state waters, the size of the discharge, the quantity and nature of pollutants reaching state waters, and the treatment methods used at the wastewater works.

3. The permittee shall notify the department in writing whenever the permittee is not complying or has grounds for anticipating the permittee will not comply with the requirements of subdivision 1 of this subsection. The notification shall include a statement of reasons and a prompt schedule for achieving compliance.

4. Every sewage treatment works owner shall employ or contract an operator who holds a current wastewater operator license, issued in accordance with Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia, of the appropriate class for the type of facility, as determined by the department, or higher class at the owner's option. If the position of the licensed operator of the appropriate class is unexpectedly vacated due to death, extended illness, firing for cause, resignation, or similar cause, the treatment works owner shall notify the department promptly and in accordance with any specific timeframe directed by the department. The department shall temporarily waive the licensed operator requirement for the interim, provided the owner (i) informs the department in writing of the owner's designation of another licensed operator or professional engineer responsible for interim operations within five days of the vacancy, (ii) informs the department in writing within 10 days of the vacancy arising of the owner's plan to hire a replacement licensed operator of the appropriate class as soon as practicable, (iii) implements the hiring plan diligently, and (iv) provides a monthly report to the department on the implementation and progress of such hiring plan. The department may revoke the temporary waiver if the department finds that continued operation pursuant to the waiver presents a public health or water quality threat due to statutory, regulatory, or permit violations.

5. Where the facility is equipped with adequate technological capability, the department shall credit remote monitoring of the facility by a licensed operator of the appropriate class as operator attendance toward recommended licensed operator attendance hours, provided that the owner submits and the department approves a remote monitoring plan demonstrating that the facility possesses sufficient technology for the remote operator to adequately monitor the facility and manage onsite operators with a lower license class, mechanics, or other staff to operate the facility under the remote operator's direct supervision. In determining whether to approve a remote monitoring plan for multiple facilities, the department may consider the number of facilities the remote operator is monitoring simultaneously, whether the multiple facilities being monitored remotely are under common ownership, whether the remote operator is employed by the owner of the multiple facilities, and whether occasional in-person attendance is provided, among other factors. The department may cease crediting remote monitoring if the department finds that continued operation pursuant to the remote monitoring plan presents a public health or water quality threat due to statutory, regulatory, or permit violations. The department shall not credit remote monitoring by an operator without the appropriate license class who is operating the waterworks or treatment facility pursuant to a temporary waiver issued under subdivision 4 of this subsection.

D. Lake level contingency plans. Any VPDES permit issued for a surface water impoundment whose primary purpose is to provide cooling water to power generators shall include a lake level contingency plan to allow specific reductions in the flow required to be released when the water level above the dam drops below designated levels due to drought conditions, and such plan shall take into account and minimize any adverse effects of any release reduction requirements on downstream users. This subsection shall not apply to any such facility that addresses releases and flow requirements during drought conditions in a Virginia Water Protection Permit.

E. Concentrated animal feeding operations (CAFOs). The activities of the CAFO shall not contravene the Water Quality Standards, as amended and adopted by the board, or any provision of the State Water Control Law. There shall be no point source discharge of manure, litter, or process wastewater to surface waters of the state except in the case of an overflow caused by a storm event greater than the 25-year, 24-hour storm. Agricultural stormwater discharges as defined in 9VAC25-31-130 C 3 are permitted. Domestic sewage or industrial waste shall not be managed under the Virginia Pollutant Discharge Elimination System General Permit for CAFOs (9VAC25-191). Any permit issued to a CAFO shall include:

1. Requirements to develop, implement, and comply with a nutrient management plan. At a minimum, a nutrient management plan shall include best management practices and procedures necessary to implement applicable effluent limitations and standards. Permitted CAFOs must have nutrient management plans developed and implemented and be in compliance with the nutrient management plan as a requirement of the permit. The nutrient management plan must, to the extent applicable:

a. Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities;

b. Ensure proper management of mortalities (i.e., dead animals) to ensure that they are not disposed of in a liquid manure, stormwater, or process wastewater storage or treatment system that is not specifically designed to treat animal mortalities;

c. Ensure that clean water is diverted, as appropriate, from the production area;

d. Prevent direct contact of confined animals with surface waters of the state;

e. Ensure that chemicals and other contaminants handled on site are not disposed of in any manure, litter, process wastewater, or stormwater storage or treatment system unless specifically designed to treat such chemicals and other contaminants;

f. Identify appropriate site-specific conservation practices to be implemented, including as appropriate buffers or equivalent practices, to control runoff of pollutants to surface waters of the state;

g. Identify protocols for appropriate testing of manure, litter, process wastewater, and soil;

h. Establish protocols to land apply manure, litter, or process wastewater in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater; and

i. Identify specific records that will be maintained to document the implementation and management of the minimum elements described in this subdivision 1.

2. Recordkeeping requirements. The permittee must create, maintain for five years, and make available to the director upon request the following records:

a. All applicable records identified pursuant to subdivision 1 i of this subsection; and

b. In addition, all CAFOs subject to EPA Effluent Guidelines for Feedlots (40 CFR Part 412) must comply with recordkeeping requirements as specified in 40 CFR 412.37(b) and (c) and 40 CFR 412.47(b) and (c).

A copy of the CAFO's site-specific nutrient management plan must be maintained on site and made available to the director upon request.

3. Requirements relating to transfer of manure or process wastewater to other persons. Prior to transferring manure, litter, or process wastewater to other persons, large CAFOs must provide the recipient of the manure, litter, or process wastewater with the most current nutrient analysis. The analysis provided must be consistent with the requirements of EPA Effluent Guidelines for Feedlots (40 CFR Part 412). Large CAFOs must retain for five years records of the date, recipient name and address, and approximate amount of manure, litter, or process wastewater transferred to another person.

4. Annual reporting requirements for CAFOs. The permittee must submit an annual report to the director. As of the start date in Table 1 of 9VAC25-31-1020, all annual reports submitted in compliance with this subsection shall be submitted electronically by the permittee to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, the permittee may be required to report electronically if specified by a particular permit. The annual report must include:

a. The number and type of animals, whether in open confinement or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other);

b. Estimated amount of total manure, litter, and process wastewater generated by the CAFO in the previous 12 months in tons or gallons;

c. Estimated amount of total manure, litter, and process wastewater transferred to other persons by the CAFO in the previous 12 months in tons or gallons;

d. Total number of acres for land application covered by the nutrient management plan developed in accordance with subdivision 1 of this subsection;

e. Total number of acres under control of the CAFO that were used for land application of manure, litter, and process wastewater in the previous 12 months;

f. Summary of all manure, litter, and process wastewater discharges from the production area that occurred in the previous 12 months, including for each discharge the date of discovery, duration of discharge, and approximate volume;

g. A statement indicating whether the current version of the CAFO's nutrient management plan was developed or approved by a certified nutrient management planner; and

h. The actual crops planted and actual yield for each field, the actual nitrogen and phosphorus content of the manure, litter, and process wastewater, the results of calculations conducted in accordance with subdivisions 5 a (2) and 5 b (4) of this subsection, and the amount of manure, litter, and process wastewater applied to each field during the previous 12 months; and, for any CAFO that implements a nutrient management plan that addresses rates of application in accordance with subdivision 5 b of this subsection, the results of any soil testing for nitrogen and phosphorus taken during the preceding 12 months, the data used in calculations conducted in accordance with subdivision 5 b (4) of this subsection, and the amount of any supplemental fertilizer applied during the previous 12 months.

5. Terms of the nutrient management plan. Any permit issued to a CAFO shall require compliance with the terms of the CAFO's site-specific nutrient management plan. The terms of the nutrient management plan are the information, protocols, best management practices, and other conditions in the nutrient management plan determined by the department to be necessary to meet the requirements of subdivision 1 of this subsection. The terms of the nutrient management plan, with respect to protocols for land application of manure, litter, or process wastewater required by subdivision 4 h of this subsection and, as applicable, 40 CFR 412.4(c), shall include the fields available for land application; field-specific rates of application properly developed, as specified in subdivisions 5 a and 5 b of this subsection, to ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater; and any timing limitations identified in the nutrient management plan concerning land application on the fields available for land application. The terms shall address rates of application using one of the following two approaches, unless the department specifies that only one of these approaches may be used:

a. Linear approach. An approach that expresses rates of application as pounds of nitrogen and phosphorus, according to the following specifications:

(1) The terms include maximum application rates from manure, litter, and process wastewater for each year of permit coverage, for each crop identified in the nutrient management plan, in chemical forms determined to be acceptable to the department, in pounds per acre, per year, for each field to be used for land application, and certain factors necessary to determine such rates. At a minimum, the factors that are terms shall include: the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses of a field, such as pasture or fallow fields; the realistic yield goal for each crop or use identified for each field; the nitrogen and phosphorus recommendations from sources specified by the department for each crop or use identified for each field; credits for all nitrogen in the field that will be plant available; consideration of multi-year phosphorus application; and accounting for all other additions of plant-available nitrogen and phosphorus to the field. In addition, the terms include the form and source of manure, litter, and process wastewater to be land applied; the timing and method of land application; and the methodology by which the nutrient management plan accounts for the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied.

(2) Large CAFOs that use this approach shall calculate the maximum amount of manure, litter, and process wastewater to be land applied at least once each year using the results of the most recent representative manure, litter, and process wastewater tests for nitrogen and phosphorus taken within 12 months of the date of land application; or

b. Narrative rate approach. An approach that expresses rates of application as a narrative rate of application that results in the amount, in tons or gallons, of manure, litter, and process wastewater to be land applied, according to the following specifications:

(1) The terms include maximum amounts of nitrogen and phosphorus derived from all sources of nutrients, for each crop identified in the nutrient management plan, in chemical forms determined to be acceptable to the department, in pounds per acre, for each field, and certain factors necessary to determine such amounts. At a minimum, the factors that are terms shall include: the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses, such as pasture or fallow fields, including alternative crops identified in accordance with subdivision 5 b (2) of this subsection; the realistic yield goal for each crop or use identified for each field; and the nitrogen and phosphorus recommendations from sources specified by the department for each crop or use identified for each field. In addition, the terms include the methodology by which the nutrient management plan accounts for the following factors when calculating the amounts of manure, litter, and process wastewater to be land applied: results of soil tests conducted in accordance with protocols identified in the nutrient management plan, as required by subdivision 1 g of this subsection; credits for all nitrogen in the field that will be plant available; the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied; consideration of multi-year phosphorus application; accounting for all other additions of plant-available nitrogen and phosphorus to the field; the form and source of manure, litter, and process wastewater; the timing and method of land application; and volatilization of nitrogen and mineralization of organic nitrogen.

(2) The terms of the nutrient management plan include alternative crops identified in the CAFO's nutrient management plan that are not in the planned crop rotation. Where a CAFO includes alternative crops in its nutrient management plan, the crops shall be listed by field, in addition to the crops identified in the planned crop rotation for that field, and the nutrient management plan shall include realistic crop yield goals and the nitrogen and phosphorus recommendations from sources specified by the department for each crop. Maximum amounts of nitrogen and phosphorus from all sources of nutrients and the amounts of manure, litter, and process wastewater to be applied shall be determined in accordance with the methodology described in subdivision 5 b (1) of this subsection.

(3) For CAFOs using this approach, the following projections shall be included in the nutrient management plan submitted to the department, but are not terms of the nutrient management plan: the CAFO's planned crop rotations for each field for the period of permit coverage; the projected amount of manure, litter, or process wastewater to be applied; projected credits for all nitrogen in the field that will be plant available; consideration of multi-year phosphorus application; accounting for all other additions of plant-available nitrogen and phosphorus to the field; and the predicted form, source, and method of application of manure, litter, and process wastewater for each crop. Timing of application for each field, insofar as it concerns the calculation of rates of application, is not a term of the nutrient management plan.

(4) CAFOs that use this approach shall calculate maximum amounts of manure, litter, and process wastewater to be land applied at least once each year using the methodology required in subdivision 5 b (1) of this subsection before land applying manure, litter, and process wastewater and shall rely on the following data:

(a) A field-specific determination of soil levels of nitrogen and phosphorus, including, for nitrogen, a concurrent determination of nitrogen that will be plant available consistent with the methodology required by subdivision 5 b (1) of this subsection, and for phosphorus, the results of the most recent soil test conducted in accordance with soil testing requirements approved by the department; and

(b) The results of most recent representative manure, litter, and process wastewater tests for nitrogen and phosphorus taken within 12 months of the date of land application, in order to determine the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied.

F. Publicly owned treatment works.

1. As used in this subsection, "PFAS" means per- and polyfluoroalkyl substances, as that term is defined in § 62.1-44.34:29 of the Code of Virginia.

2. Every POTW shall require the following new or existing industrial users of the POTW to perform quarterly discharge monitoring for PFAS for an initial characterization period of one year and report the results to the POTW no later than 30 days after receipt from the laboratory, provided, however, that the POTW may discontinue remaining quarterly discharge monitoring by an industrial user with proper monitoring results that are below the method detection level for the first two quarters:

a. Any facility manufacturing PFAS; any electroplating or metal finishing facility using PFAS; any semiconductor or circuit board facility using PFAS; any paper or packaging manufacturing facility using PFAS; and any textile mill, tannery, or leather, fabric, or carpet treater using PFAS;

b. Any centralized waste treatment industrial facility;

c. Any industrial launderer defined by NAICS code 812332; and

d. Any airport, air base, air station, fire training facility, landfill, or other facility or site that the POTW has a reasonable basis to believe is a source of PFAS.

3. If an industrial user subject to the monitoring requirement in subdivision 2 of this subsection detects PFAS in any amount above the method detection limit in its initial year of quarterly monitoring, such industrial user shall continue to perform and report to the POTW no later than 30 days after receiving the discharge monitoring results from the laboratory. The POTW may reduce the frequency of required monitoring to annually for any industrial user with proper monitoring results that are below the method detection level for at least two consecutive quarters.

4. For any new industrial user subject to the monitoring requirement in subdivision 2 of this subsection, the POTW shall require discharge monitoring for PFAS and submission of the results of such monitoring within 90 days of the commencement of such discharges to the POTW. The new industrial user shall report to the POTW no later than 30 days after receiving the discharge monitoring results from the laboratory.

5. A POTW that receives PFAS monitoring results pursuant to subdivision 2, 3, or 4 of this subsection shall report such results to the department on a quarterly basis in a format specified by the department.

6. For purposes of discharge monitoring under this subsection, the applicable laboratory test method is Method 1633 or such other method approved by the EPA that may be allowed by the department. Monitoring reports shall include all PFAS analytes measured by the test method. For purposes of this section, the department shall not require, and the facility and its laboratory shall be exempt from, environmental laboratory certification or accreditation requirements specifically for use of Method 1633.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.19:3.5 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 21, Issue 2, eff. November 3, 2004; Volume 21, Issue 9, eff. February 9, 2005; Volume 26, Issue 11, eff. March 3, 2010; Volume 28, Issue 10, eff. February 15, 2012; Volume 30, Issue 4, eff. November 20, 2013; Volume 30, Issue 11, eff. February 26, 2014; Volume 33, Issue 22, eff. July 26, 2017; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022; Volume 41, Issue 1, eff. September 25, 2024; Volume 42, Issue 26, eff. September 9, 2026.

9VAC25-31-210 Establishing permit conditions

A. In addition to conditions required in all permits, the department shall establish conditions, as required on a case-by-case basis, to provide for and assure compliance with all applicable requirements of the law, the CWA and regulations. These shall include conditions under 9VAC25-31-240 (duration of permits), 9VAC25-31-250 (schedules of compliance), 9VAC25-31-220 (monitoring), electronic reporting requirements of 40 CFR Part 3 and Part XI (9VAC25-31-950 et seq.) of this chapter.

B. 1. An applicable requirement is a state statutory or regulatory requirement which takes effect prior to final administrative disposition of a permit. An applicable requirement is also any requirement which takes effect prior to the modification or revocation and reissuance of a permit, to the extent allowed in Part V of this chapter.

2. New or reissued permits, and to the extent allowed under Part V of this chapter modified or revoked and reissued permits, shall incorporate each of the applicable requirements referenced in 9VAC25-31-220 and 9VAC25-31-230.

C. All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 33, Issue 22, eff. July 26, 2017; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-220 Establishing limitations, standards, and other permit conditions

In addition to the conditions established under 9VAC25-31-210 A, each VPDES permit shall include conditions meeting the following requirements when applicable.

A. 1. Technology-based effluent limitations and standards based on effluent limitations and standards promulgated under § 301 of the CWA, on new source performance standards promulgated under § 306 of CWA, on case-by-case effluent limitations determined under § 402(a)(1) of CWA, or a combination of the three. For new sources or new dischargers, these technology-based limitations and standards are subject to the provisions of 9VAC25-31-180 B (protection period).

2. The department may authorize a discharger subject to technology-based effluent limitations guidelines and standards in a VPDES permit to forego sampling of a pollutant found at 40 CFR Subchapter N if the discharger has demonstrated through sampling and other technical factors that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger. This waiver is good only for the term of the permit and is not available during the term of the first permit issued to a discharger. Any request for this waiver must be submitted when applying for a reissued permit or modification of a reissued permit. The request must demonstrate through sampling or other technical information, including information generated during an earlier permit term, that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger. Any grant of the monitoring waiver must be included in the permit as an express permit condition and the reasons supporting the grant must be documented in the permit's fact sheet or statement of basis. This provision does not supersede certification processes and requirements already established in existing effluent limitations guidelines and standards.

B. Other effluent limitations and standards.

1. Other effluent limitations and standards under §§ 301, 302, 303, 307, 318, and 405 of the CWA. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under § 307(a) of the CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the department shall institute proceedings under this chapter to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition.

2. Standards for sewage sludge use or disposal under § 405(d) of the CWA and Part VI (9VAC25-31-420 et seq.) of this chapter unless those standards have been included in a permit issued under the appropriate provisions of Subtitle C of the Solid Waste Disposal Act (42 USC § 6901 et seq.), Part C of Safe Drinking Water Act (42 USC § 300f et seq.), the Marine Protection, Research, and Sanctuaries Act of 1972 (33 USC § 1401 et seq.), or the Clean Air Act (42 USC § 4701 et seq.), or in another permit issued by the Department of Environmental Quality or any other appropriate state agency under another permit program approved by the administrator. When there are no applicable standards for sewage sludge use or disposal, the permit may include requirements developed on a case-by-case basis to protect public health and the environment from any adverse effects which may occur from toxic pollutants in sewage sludge. If any applicable standard for sewage sludge use or disposal is promulgated under § 405(d) of the CWA and that standard is more stringent than any limitation on the pollutant or practice in the permit, the department may initiate proceedings under this chapter to modify or revoke and reissue the permit to conform to the standard for sewage sludge use or disposal.

3. Requirements applicable to cooling water intake structures at new facilities under § 316 (b) of the CWA, in accordance with 9VAC25-31-165.

C. Reopener clause. For any permit issued to a treatment works treating domestic sewage (including sludge-only facilities), the department shall include a reopener clause to incorporate any applicable standard for sewage sludge use or disposal promulgated under § 405(d) of the CWA. The department may promptly modify or revoke and reissue any permit containing the reopener clause required by this subdivision if the standard for sewage sludge use or disposal is more stringent than any requirements for sludge use or disposal in the permit, or controls a pollutant or practice not limited in the permit.

D. Water quality standards and state requirements. Any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under §§ 301, 304, 306, 307, 318, and 405 of the CWA necessary to:

1. Achieve water quality standards established under the law and § 303 of the CWA, including state narrative criteria for water quality.

a. Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the department determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any Virginia water quality standard, including Virginia narrative criteria for water quality.

b. When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a Virginia water quality standard, the department shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.

c. When the department determines, using the procedures in subdivision 1 b of this subsection, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable ambient concentration of a Virginia numeric criteria within a Virginia water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant.

d. Except as provided in this subdivision, when the department determines, using the procedures in subdivision 1 b of this subsection, toxicity testing data, or other information, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative criterion within an applicable Virginia water quality standard, the permit must contain effluent limits for whole effluent toxicity. Limits on whole effluent toxicity are not necessary where the department demonstrates in the fact sheet or statement of basis of the VPDES permit, using the procedures in subdivision 1 b of this subsection, that chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative Virginia water quality standards.

e. Where Virginia has not established a water quality criterion for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excursion above a narrative criterion within an applicable Virginia water quality standard, the department must establish effluent limits using one or more of the following options:

(1) Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the department demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criterion may be derived using a proposed Virginia criterion, or an explicit policy or regulation interpreting Virginia's narrative water quality criterion, supplemented with other relevant information which may include: EPA's Water Quality Standards Handbook, August 1994, risk assessment data, exposure data, information about the pollutant from the Food and Drug Administration, and current EPA criteria documents;

(2) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under § 307(a) of the CWA, supplemented where necessary by other relevant information; or

(3) Establish effluent limitations on an indicator parameter for the pollutant of concern, provided:

(a) The permit identifies which pollutants are intended to be controlled by the use of the effluent limitation;

(b) The fact sheet required by 9VAC25-31-280 sets forth the basis for the limit, including a finding that compliance with the effluent limit on the indicator parameter will result in controls on the pollutant of concern which are sufficient to attain and maintain applicable water quality standards;

(c) The permit requires all effluent and ambient monitoring necessary to show that during the term of the permit the limit on the indicator parameter continues to attain and maintain applicable water quality standards; and

(d) The permit contains a reopener clause allowing the department to modify or revoke and reissue the permit if the limits on the indicator parameter no longer attain and maintain applicable water quality standards.

f. When developing water quality-based effluent limits under this subdivision the department shall ensure that:

(1) The level of water quality to be achieved by limits on point sources established under this subsection is derived from, and complies with all applicable water quality standards; and

(2) Effluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, or both, are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by Virginia and approved by EPA pursuant to 40 CFR 130.7;

2. Attain or maintain a specified water quality through water quality related effluent limits established under the law and § 302 of the CWA;

3. Conform to the conditions of a Virginia Water Protection Permit (VWPP) issued under the law and § 401 of the CWA;

4. Conform to applicable water quality requirements under § 401(a)(2) of the CWA when the discharge affects a state other than Virginia;

5. Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established under the law or regulations in accordance with § 301(b)(1)(C) of the CWA;

6. Ensure consistency with the requirements of a Water Quality Management plan approved by EPA under § 208(b) of the CWA;

7. Incorporate § 403(c) criteria under 40 CFR Part 125, Subpart M, for ocean discharges; or

8. Incorporate alternative effluent limitations or standards where warranted by fundamentally different factors, under 40 the CFR Part 125, Subpart D.

E. Technology-based controls for toxic pollutants. Limitations established under subsection A, B, or D of this section, to control pollutants meeting the criteria listed in subdivision 1 of this subsection. Limitations will be established in accordance with subdivision 2 of this subsection. An explanation of the development of these limitations shall be included in the fact sheet.

1. Limitations must control all toxic pollutants which the department determines (based on information reported in a permit application or in a notification required by the permit or on other information) are or may be discharged at a level greater than the level which can be achieved by the technology-based treatment requirements appropriate to the permittee; or

2. The requirement that the limitations control the pollutants meeting the criteria of subdivision 1 of this subsection will be satisfied by:

a. Limitations on those pollutants; or

b. Limitations on other pollutants which, in the judgment of the department, will provide treatment of the pollutants under subdivision 1 of this subsection to the levels required by the law and 40 CFR Part 125, Subpart A.

F. A notification level which exceeds the notification level of 9VAC25-31-200 A 1 a, b, or c, upon a petition from the permittee or on the department's initiative. This new notification level may not exceed the level which can be achieved by the technology-based treatment requirements appropriate to the permittee.

G. Twenty-four-hour reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under 9VAC25-31-190 L 7 b (3) (24-hour reporting) shall be listed in the permit. This list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

H. Durations for permits, as set forth in 9VAC25-31-240.

I. Monitoring requirements. The following monitoring requirements:

1. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);

2. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring;

3. Applicable reporting requirements based upon the impact of the regulated activity and as specified in 9VAC25-31-190, subdivisions 5 through 8 of this subsection, and Part XI (9VAC25-31-950 et seq.) of this chapter. Reporting shall be no less frequent than specified in the above regulation;

4. To assure compliance with permit limitations, requirements to monitor:

a. The mass (or other measurement specified in the permit) for each pollutant limited in the permit;

b. The volume of effluent discharged from each outfall;

c. Other measurements as appropriate including pollutants in internal waste streams; pollutants in intake water for net limitations; frequency, rate of discharge, etc., for noncontinuous discharges; pollutants subject to notification requirements; and pollutants in sewage sludge or other monitoring as specified in Part VI (9VAC25-31-420 et seq.) of this chapter; or as determined to be necessary on a case-by-case basis pursuant to the law and § 405(d)(4) of the CWA; and

d. According to sufficiently sensitive test procedures (i.e., methods) approved under 40 CFR Part 136 for the analysis of pollutants or pollutant parameters or required under 40 CFR Chapter I, Subchapter N or O.

(1) For the purposes of this subdivision, a method is "sufficiently sensitive" when:

(a) The method minimum level (ML) is at or below the level of the effluent limit established in the permit for the measured pollutant or pollutant parameter; or

(b) The method has the lowest ML of the analytical methods approved under 40 CFR Part 136 or required under 40 CFR Chapter I, Subchapter N or O for the measured pollutant or pollutant parameter.

(2) In the case of pollutants or pollutant parameters for which there are no approved methods under 40 CFR Part 136 or methods are not otherwise required under 40 CFR Chapter I, Subchapter N or O, monitoring shall be conducted according to a test procedure specified in the permit for such pollutants or pollutant parameters;

5. Except as provided in subdivisions 7 and 8 of this subsection, requirements to report monitoring results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less that once a year. For sewage sludge use or disposal practices, requirements to monitor and report results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the sewage sludge use or disposal practice; minimally this shall be as specified in Part VI (9VAC25-31-420 et seq.) of this chapter (where applicable), but in no case less than once a year. All results shall be electronically reported in compliance with 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter;

6. Requirements to report monitoring results for stormwater discharges associated with industrial activity which are subject to an effluent limitation guideline shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year;

7. Requirements to report monitoring results for stormwater discharges associated with industrial activity (other than those addressed in subdivision 6 of this subsection) shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge. At a minimum, a permit for such a discharge must require:

a. The discharger to conduct an annual inspection of the facility site to identify areas contributing to a stormwater discharge associated with industrial activity and evaluate whether measures to reduce pollutant loading identified in a stormwater pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit or whether additional control measures are needed;

b. The discharger to maintain for a period of three years a record summarizing the results of the inspection and a certification that the facility is in compliance with the plan and the permit, and identifying any incidents of noncompliance;

c. Such report and certification be signed in accordance with 9VAC25-31-110; and

d. Permits for stormwater discharges associated with industrial activity from inactive mining operations may, where annual inspections are impracticable, require certification once every three years by a Registered Professional Engineer that the facility is in compliance with the permit, or alternative requirements; and

8. Permits that do not require the submittal of monitoring result reports at least annually shall require that the permittee report all instances of noncompliance not reported under 9VAC25-31-190 L 1, 4, 5, 6, and 7 at least annually.

J. Pretreatment program for POTWs. Requirements for POTWs to:

1. Identify, in terms of character and volume of pollutants, any significant indirect dischargers into the POTW subject to pretreatment standards under § 307(b) of the CWA and Part VII (9VAC25-31-730 et seq.) of this chapter;

2. Submit a local program when required by and in accordance with Part VII of this chapter to assure compliance with pretreatment standards to the extent applicable under § 307(b) of the CWA. The local program shall be incorporated into the permit as described in Part VII of this chapter. The program shall require all indirect dischargers to the POTW to comply with the reporting requirements of Part VII of this chapter;

3. Provide a written technical evaluation of the need to revise local limits under Part VII of this chapter following permit issuance or reissuance; and

4. For POTWs that are sludge-only facilities, a requirement to develop a pretreatment program under Part VII of this chapter when the department determines that a pretreatment program is necessary to assure compliance with Part VI of this chapter.

K. Best management practices to control or abate the discharge of pollutants when:

1. Authorized under § 304(e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary industrial activities;

2. Authorized under § 402(p) of the CWA for the control of stormwater discharges;

3. Numeric effluent limitations are infeasible; or

4. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the law and the CWA.

L. Reissued permits.

1. In the case of effluent limitations established on the basis of § 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under § 304(b) of the CWA subsequent to the original issuance of such permit, to contain effluent limitations which are less stringent than the comparable effluent limitations in the previous permit. In the case of effluent limitations established on the basis of § 301(b)(1)(C) or 303(d) or (e) of the CWA, a permit may not be renewed, reissued, or modified to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit except in compliance with § 303(d)(4) of the CWA.

2. Exceptions. A permit with respect to which subdivision 1 of this subsection applies may be renewed, reissued, or modified to contain a less stringent effluent limitation applicable to a pollutant, if:

a. Material and substantial alterations or additions to the permitted facility occurred after permit issuance which justify the application of a less stringent effluent limitation;

b. (1) Information is available that was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and that would have justified the application of a less stringent effluent limitation at the time of permit issuance; or

(2) The department determines that technical mistakes or mistaken interpretations of law were made in issuing the permit under § 402(a)(1)(B) of the CWA;

c. A less stringent effluent limitation is necessary because of events over which the permittee has no control and for which there is no reasonably available remedy;

d. The permittee has received a permit modification under the law and § 301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a) of the CWA; or

e. The permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the reviewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification).

Subdivision 2 b of this subsection shall not apply to any revised waste load allocations or any alternative grounds for translating water quality standards into effluent limitations, except where the cumulative effect of such revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters, and such revised allocations are not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of the law or the CWA or for reasons otherwise unrelated to water quality.

3. In no event may a permit with respect to which subdivision 2 of this subsection applies be renewed, reissued, or modified to contain an effluent limitation that is less stringent than required by effluent guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may such a permit to discharge into waters be renewed, issued, or modified to contain a less stringent effluent limitation if the implementation of such limitation would result in a violation of a Virginia water quality standard applicable to such waters.

M. For a privately owned treatment works, any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under this part. Alternatively, the department may issue separate permits to the treatment works and to its users, or may require a separate permit application from any user. The department's decision to issue a permit with no conditions applicable to any user, to impose conditions on one or more users, to issue separate permits, or to require separate applications, and the basis for that decision, shall be stated in the fact sheet for the draft permit for the treatment works.

N. Any conditions imposed in grants made by the department to POTWs under §§ 201 and 204 of the CWA that are reasonably necessary for the achievement of effluent limitations under § 301 of the CWA and the law.

O. Requirements governing the disposal of sewage sludge from publicly owned treatment works or any other treatment works treating domestic sewage for any use regulated by Part VI of this chapter.

P. When a permit is issued to a facility that may operate at certain times as a means of transportation over water, a condition that the discharge shall comply with any applicable regulations promulgated by the secretary of the department in which the Coast Guard is operating, that establish specifications for safe transportation, handling, carriage, and storage of pollutants.

Q. Navigation. Any conditions that the Secretary of the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired in accordance with 9VAC25-31-330.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 9, eff. February 15, 2002; Volume 21, Issue 9, eff. February 9, 2005; Volume 22, Issue 24, eff. September 6, 2006; Volume 24, Issue 6, eff. January 1, 2008; Volume 28, Issue 10, eff. February 15, 2012; Volume 33, Issue 22, eff. July 26, 2017; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-230 Calculating VPDES permit conditions

A. Permit effluent limitations, monitoring requirements, standards and prohibitions shall be established for each outfall or discharge point of the permitted facility, except as otherwise provided under 9VAC25-31-220 and subsection H of this section (limitations on internal waste streams).

B. Production-based limitations.

1. In the case of POTWs, permit effluent limitations, standards, or prohibitions shall be calculated based on design flow.

2. a. Except in the case of POTWs or as provided in subdivision 2 b of this subsection, calculation of any permit limitations, standards, or prohibitions which are based on production (or other measure of operation) shall be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production shall be estimated using projected production. The time period of the measure of production shall correspond to the time period of the calculated permit limitations; for example, monthly production shall be used to calculate average monthly discharge limitations.

b. (1) (a) The department may include a condition establishing alternate permit limitations, standards, or prohibitions based upon anticipated increased (not to exceed maximum production capability) or decreased production levels.

(b) For the automotive manufacturing industry only, the department may establish a condition under subdivision 2 b (1) (a) of this subsection if the applicant satisfactorily demonstrates to the department at the time the application is submitted that its actual production, as indicated in subdivision 2 a of this subsection, is substantially below maximum production capability and that there is a reasonable potential for an increase above actual production during the duration of the permit.

(2) If the department establishes permit conditions under subdivision 2 b (1) of this subsection:

(a) The permit shall require the permittee to notify the department at least two business days prior to a month in which the permittee expects to operate at a level higher than the lowest production level identified in the permit. The notice shall specify the anticipated level and the period during which the permittee expects to operate at the alternate level. If the notice covers more than one month, the notice shall specify the reasons for the anticipated production level increase. New notice of discharge at alternate levels is required to cover a period or production level not covered by prior notice or, if during two consecutive months otherwise covered by a notice, the production level at the permitted facility does not in fact meet the higher level designated in the notice;

(b) The permittee shall comply with the limitations, standards, or prohibitions that correspond to the lowest level of production specified in the permit, unless the permittee has notified the department under subdivision 2 b (2) (a) of this subsection, in which case the permittee shall comply with the lower of the actual level of production during each month or the level specified in the notice; and

(c) The permittee shall submit with the DMR the level of production that actually occurred during each month and the limitations, standards, or prohibitions applicable to that level of production.

C. All permit effluent limitations, standards, or prohibitions for a metal shall be expressed in terms of total recoverable metal as defined in 40 CFR Part 136 unless:

1. An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent or total form; or

2. In establishing permit limitations on a case-by-case basis under 40 CFR 125.3, it is necessary to express the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the CWA and the law; or

3. All approved analytical methods for the metal inherently measure only its dissolved form (e.g., hexavalent chromium).

D. For continuous discharges all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, shall unless impracticable be stated as:

1. Maximum daily and average monthly discharge limitations for all dischargers other than publicly owned treatment works; and

2. Average weekly and average monthly discharge limitations for POTWs.

E. Discharges which are not continuous, as defined in 9VAC25-31-10, shall be particularly described and limited, considering the following factors, as appropriate:

1. Frequency;

2. Total mass;

3. Maximum rate of discharge of pollutants during the discharge; and

4. Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure.

F. Mass Limitations.

1. All pollutants limited in permits shall have limitations, standards or prohibitions expressed in terms of mass except:

a. For pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass;

b. When applicable standards and limitations are expressed in terms of other units of measurement; or

c. If in establishing technology-based permit limitations on a case-by-case basis, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of TSS from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment.

2. Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations.

G. Pollutants in intake water.

1. Upon request of the discharger, technology-based effluent limitations or standards shall be adjusted to reflect credit for pollutants in the discharger's intake water to the extent necessary to meet the applicable technology-based limitation or standard, up to a maximum value equal to the influent value. Credit shall be granted only if:

a. The applicable effluent limitations and standards contained in the regulations incorporated by reference in 9VAC25-31-30 specifically provide that they shall be applied on a net basis; or

b. The discharger demonstrates that the control system it proposes or uses to meet applicable technology-based limitations and standards would, if properly installed and operated, meets the limitations and standards in the absence of pollutants in the intake waters.

2. Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.

3. Credit for the level of pollutants in the intake water may be considered in setting water quality-based effluent limitations according to 9VAC25-31-220 D. Where a total maximum daily load has been established for the receiving waterbody and it is applicable to the discharge, it shall be considered when such effluent limitations are developed. The department may consider the presence of intake pollutants when determining either that water quality-based effluent limitations are not necessary under 9VAC25-31-220 D or that any water quality-based effluent limitations justified by 9VAC25-31-220 D will be established in a manner that does not hold the permittee responsible for removing pollutants originating in its intake water.

4. Additional monitoring may be necessary to determine eligibility for any credits and compliance with permit limits.

5. Credits shall be granted only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The department may waive this requirement for technology-based effluent limitations, standards, and prohibitions if he finds that no environmental degradation will result.

a. An intake pollutant is considered to be from the same body of water as the discharge if the department finds that the intake pollutant would have reached the vicinity of the outfall point in the receiving water within a reasonable period had it not been removed by the permittee. This finding may be deemed established if:

(1) The background concentration of the pollutant in the receiving water (excluding any amount of the pollutant in the facility's discharge) is similar to that in the intake water;

(2) There is direct hydrological connection between the intake and discharge points; and

(3) Water quality characteristics (e.g., temperature, pH, hardness) are similar in the intake and receiving waters.

Other site-specific factors relevant to the transport and fate of the pollutant may be considered in making this finding.

b. An intake pollutant from groundwater may be considered to be from the same body of water if the department determines that the pollutant would have reached the vicinity of the outfall point in the receiving water within a reasonable period had it not been removed by the permittee, except that such a pollutant is not from the same body of water if the groundwater contains the pollutant partially or entirely due to human activity, such as industrial, commercial, or municipal operations, disposal actions or treatment processes.

c. For pollutants in intake water provided by a water supply system, where the raw water supply is removed from the same body of water as the discharge, the concentration of the intake pollutant shall be determined at the point where the water enters the water supplier's distribution system.

d. Where a facility discharges intake pollutants that originate in part from the same body of water and in part from a different body of water, the effluent limitation may provide for intake credits for the portion of the pollutants derived from the same body of water, provided that adequate monitoring to determine compliance can be established and is included in the permit.

6. Credits shall not be granted if the discharger contributes to the level of the pollutant in the intake water prior to the intake.

7. Credits for intake pollutants do not apply to technology-based limitations on the discharge of raw water clarifier sludge generated from the treatment of intake water.

H. Internal waste streams.

1. When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the monitoring required by 9VAC25-31-220 I shall also be applied to the internal waste streams.

2. Limits on internal waste streams will be imposed only when the fact sheet sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible, the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.

I. Disposal of pollutants into wells, POTWs or by land application.

1. When part of a discharger's process wastewater is not being discharged into surface waters or into the contiguous zone because it is disposed into a well, into a POTW, or by land application thereby reducing the flow or level of pollutants being discharged into surface waters, applicable effluent standards and limitations for the discharge in a VPDES permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit shall be calculated by one of the following methods:

a. If none of the waste from a particular process is discharged into surface waters, and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process shall be eliminated from calculation of permit effluent limitations or standards.

b. In all cases other than those described in subdivision 1 a of this subsection, effluent limitations shall be adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater flow to be treated and discharged into surface waters, and dividing the result by the total wastewater flow. Effluent limitations and standards so calculated may be further adjusted to make them more or less stringent if discharges to wells, publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters. This method may be algebraically expressed as:

| | P = | E x N | | --- | --- | --- | | T | | |

where P is the permit effluent limitation, E is the limitation derived by applying effluent guidelines to the total wastestream, N is the wastewater flow to be treated and discharged to surface waters, and T is the total wastewater flow.

2. Subdivision 1 of this subsection does not apply to the extent that promulgated effluent limitations guidelines:

a. Control concentrations of pollutants discharged but not mass; or

b. Specify a different specific technique for adjusting effluent limitations to account for well injection, land application, or disposal into POTWs.

3. Subdivision 1 of this subsection does not alter a discharger's obligation to meet any more stringent requirements established in the permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-240 Duration of permits

A. VPDES permits shall be effective for a fixed term not to exceed five years.

B. Except as provided in 9VAC25-31-70, the term of a permit shall not be extended by modification beyond the maximum duration specified in this section.

C. The department may issue any permit for a duration that is less than the full allowable term under this section.

D. A permit may be issued to expire on or after the statutory deadline set forth in §§ 301(b)(2) (A), (C), and (E) of the CWA, if the permit includes effluent limitations to meet the requirements of §§ 301(b)(2) (A), (C), (D), (E) and (F) of the CWA, whether or not applicable effluent limitations guidelines have been promulgated or approved.

E. A determination that a particular discharger falls within a given industrial category for purposes of setting a permit expiration date under subsection D of this section is not conclusive as to the discharger's inclusion in that industrial category for any other purposes, and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination is formulated.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-250 Schedules of compliance

A. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the law, the CWA, and regulations.

1. Any schedules of compliance under this section shall require compliance as soon as possible, but not later than the applicable statutory deadline under the CWA.

2. The first VPDES permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge.

3. Schedules of compliance may be established in permits for existing sources which are reissued or modified to contain new or more restrictive water quality-based effluent limitations. The schedule may allow a reasonable period of time for the discharger to attain compliance with the water quality-based limitations.

4. Except as provided in subdivision B 1 b of this section, if a permit establishes a schedule of compliance which exceeds one year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.

a. The time between interim dates shall not exceed one year, except that in the case of a schedule for compliance with standards for sewage sludge use and disposal, the time between interim dates shall not exceed six months.

b. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

5. The permit shall be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee shall notify the department in writing of its compliance or noncompliance with the interim or final requirements, or submit progress reports if subdivision 4 b of this subsection is applicable.

B. A VPDES permit applicant or permittee may cease conducting regulated activities (by terminating of direct discharge for VPDES sources) rather than continuing to operate and meet permit requirements as follows:

1. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:

a. The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

b. The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit;

2. If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements no later than the statutory deadline;

3. If the permittee is undecided whether to cease conducting regulated activities, the department may issue or modify a permit to contain two schedules as follows:

a. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;

b. One schedule shall lead to timely compliance with applicable requirements, no later than the statutory deadline;

c. The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements no later than the statutory deadline; and

d. Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under subdivision 3 a of this subsection it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities; and

4. The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the department, such as a resolution of the board of directors of a corporation.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 35, Issue 25, eff. September 4, 2019; Volume 39, Issue 4, eff. November 9, 2022.

Part IV Public Involvement

9VAC25-31-260 Draft permits

A. Once an application is complete, the department shall tentatively decide whether to prepare a draft permit or to deny the application.

B. If the department tentatively decides to deny the permit application, the owner shall be advised of that decision and of the changes necessary to obtain approval. The owner may withdraw the application prior to department action. If the application is not withdrawn or modified to obtain the tentative approval to issue, the department shall provide public notice and opportunity for a public hearing prior to department action on the application.

C. If the department tentatively decides to issue a VPDES general permit, a draft general permit shall be prepared under subsection D of this section.

D. If the department decides to prepare a draft permit, the draft permit shall contain the following information:

1. All conditions under 9VAC25-31-190 and 9VAC25-31-210;

2. All compliance schedules under 9VAC25-31-250;

3. All monitoring requirements under 9VAC25-31-220; and

4. Effluent limitations, standards, prohibitions, standards for biosolids use or sewage sludge disposal, and conditions under 9VAC25-31-190, 9VAC25-31-200, 9VAC25-31-220, and Part VI (9VAC25-31-370 et seq.), and all variances that are to be included.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-270 Statement of basis

A statement of basis shall be prepared for every draft permit for which a fact sheet under 9VAC25-31-280 is not prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis shall be sent to the applicant and, on request, to any other person.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-280 Fact sheet

A. A fact sheet shall be prepared for every draft permit for a major VPDES facility or activity, for every Class I sludge management facility, for every VPDES general permit, for every VPDES draft permit that incorporates a variance or requires an explanation under subsection B 8 of this section, for every draft permit that includes a biosolids land application under 9VAC25-31-100 D 2, and for every draft permit which the department finds is the subject of wide-spread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The department shall send this fact sheet to the applicant and, on request, to any other person.

B. The fact sheet shall include, when applicable:

1. A brief description of the type of facility or activity that is the subject of the draft permit;

2. The type and quantity of wastes, fluids, or pollutants that are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged;

3. A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;

4. Reasons why any requested variances or alternatives to required standards do or do not appear justified;

5. A description of the procedures for reaching a final decision on the draft permit including:

a. The beginning and ending dates of the comment period for the draft permit and the address where comments will be received;

b. Procedures for requesting a public hearing and the nature of that hearing; and

c. Any other procedures by which the public may participate in the final decision;

6. Name and telephone number of a person to contact for additional information;

7. Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions or standards for biosolids use or sewage sludge disposal, including a citation to the applicable effluent limitation guideline, performance standard, or standard for biosolids use or sewage sludge disposal and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed;

8. When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable:

a. Limitations to control toxic pollutants;

b. Limitations on internal waste streams;

c. Limitations on indicator pollutants;

d. Technology-based or sewage sludge disposal limitations set on a case-by-case basis;

e. Limitations to meet the criteria for permit issuance under 9VAC25-31-50; or

f. Waivers from monitoring requirements granted under 9VAC25-31-220 A;

9. For every permit to be issued to a treatment works owned by a person other than a state or municipality, an explanation of the department's decision on regulation of users;

10. When appropriate, a sketch or detailed description of the location of the discharge or regulated activity described in the application; and

11. Justification of waiver of any application requirements under 9VAC25-31-100 K or Q.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 29, Issue 24, eff. September 1, 2013; Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-290 Public notice of permit actions and public comment period

A. Scope.

1. The department shall give public notice that the following actions have occurred:

a. A draft permit has been prepared under 9VAC25-31-260 D;

b. A public hearing has been scheduled under 9VAC25-31-310; or

c. A VPDES new source determination has been made under 9VAC25-31-180.

2. No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under 9VAC25-31-370 B. Written notice of that denial shall be given to the requester and to the permittee.

3. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application.

4. Public notices may describe more than one permit or permit actions.

B. Timing.

1. Public notice of the preparation of a draft permit required under subsection A of this section shall allow at least 30 days for public comment.

2. Public notice of a public hearing shall be given at least 30 days before the hearing. (Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.)

C. Methods. Public notice of activities described in subdivision A 1 of this section shall be given by the following methods:

1. By mailing, either by electronic or postal delivery, a copy of a notice to the following persons (any person otherwise entitled to receive notice under this subdivision may waive his rights to receive notice for any classes and categories of permits):

a. The applicant (except for VPDES general permits when there is no applicant);

b. Any other agency which the department knows has issued or is required to issue a VPDES, biosolids management permit;

c. Federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected states (Indian Tribes);

d. Any state agency responsible for plan development under § 208(b)(2), § 208(b)(4) or § 303(e) of the CWA and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service;

e. Any user identified in the permit application of a privately owned treatment works;

f. Persons on a mailing list developed by:

(1) Including those who request in writing to be on the list;

(2) Soliciting persons for area lists from participants in past permit proceedings in that area; and

(3) Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as EPA regional and state funded newsletters, environmental bulletins, or state law journals. (The department may update the mailing list from time to time by requesting written indication of continued interest from those listed. The department may delete from the list the name of any person who fails to respond to such a request.);

g. Any unit of local government having jurisdiction over the area where the facility is proposed to be located; and

h. Each state agency having any authority under state law with respect to the construction or operation of such facility;

2. Except for permits for concentrated animal feeding operations as defined in 9VAC25-31-10 or designated in accordance with 9VAC25-31-130 B, by publication once a week for two successive weeks in a newspaper of general circulation in the area affected by the discharge. However, if the applicant so chooses for industrial minor permit actions, an abbreviated public notice shall be published in such newspaper, listing the name of the permitted facility, the type of discharge, and a link to the department's website where the full public notice consistent with subsection D of this section is posted. The cost of public notice shall be paid by the owner; and

3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

D. Contents.

1. All public notices issued under this part shall contain the following minimum information:

a. Name and address of the office processing the permit action for which notice is being given;

b. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of VPDES draft general permits;

c. A brief description of the business conducted at the facility or activity described in the permit application or the draft permit, for VPDES general permits when there is no application;

d. Name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, as the case may be, statement of basis or fact sheet, and the application;

e. A brief description of the procedures for submitting comments and the time and place of any public hearing that will be held, including a statement of procedures to request a public hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision;

f. A general description of the location of each existing or proposed discharge point, the name of the receiving water, the biosolids use and sewage sludge disposal practice, the location of each sludge treatment works treating domestic sewage, and use or disposal sites known at the time of permit application. For draft general permits, this requirement will be satisfied by a map or description of the permit area;

g. Requirements applicable to cooling water intake structures under § 316 of the CWA, in accordance with 9VAC25-31-165; and

h. Any additional information considered necessary or proper.

2. In addition to the general public notice described in subdivision 1 of this subsection, the public notice of a public hearing under 9VAC25-31-310 shall contain the following information:

a. Reference to the date of previous public notices relating to the permit;

b. Date, time, and place of the public hearing;

c. A brief description of the nature and purpose of the public hearing, including the applicable rules and procedures; and

d. A concise statement of the issues raised by the persons requesting the public hearing.

3. Public notice of a VPDES draft permit for a discharge where a request for alternate thermal effluent limitations has been filed shall include:

a. A statement that the thermal component of the discharge is subject to effluent limitations incorporated in 9VAC25-31-30 and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under §§ 301 or 306 of the CWA;

b. A statement that an alternate thermal effluent limitation request has been filed and that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under the law and § 316(a) of the CWA and a brief description, including a quantitative statement, of the alternative effluent limitations, if any, included in the request; and

c. If the applicant has filed an early screening request for a CWA § 316(a) variance, a statement that the applicant has submitted such a plan.

E. In addition to the general public notice described in subdivision D 1 of this section, all persons identified in subdivisions C 1 a, b, c, and d of this section shall be mailed, by electronic or postal delivery, a copy of the fact sheet or statement of basis, the permit application (if any) and the draft permit (if any).

F. Upon receipt of an application for the issuance of a new or modified permit other than those for agricultural production or aquacultural production activities, the department shall:

1. Notify, in writing, the locality wherein the discharge or, as applicable, the associated land application of biosolids, or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage does or is proposed to take place of, at a minimum:

a. The name of the applicant;

b. The nature of the application and proposed discharge;

c. The availability and timing of any comment period; and

d. Upon request, any other information known to, or in the possession of, the department regarding the applicant not required to be held confidential by this chapter.

2. Except for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge or stabilized septage make a good faith effort to provide this same notice and information to (i) each locality and riparian property owner to a distance one-quarter mile downstream and one-quarter mile upstream or to the fall line whichever is closer on tidal waters and (ii) each locality and riparian property owner to a distance one-half mile downstream on nontidal waters. Distances shall be measured from the point, or proposed point, of discharge. If the receiving river at the point or proposed point of discharge is two miles wide or greater, the riparian property owners on the opposite shore need not be notified. Notice to property owners shall be based on names and addresses taken from local tax rolls. Such names and addresses shall be provided by the commissioners of the revenue or the tax assessor's office of the affected jurisdictions upon request by the department.

G. Whenever the department receives an application for a new permit for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage, or an application to reissue with the addition of sites increasing acreage by 50% or more of that authorized by the initial permit, the department shall establish a date for a public meeting to discuss technical issues relating to proposals for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage. The department shall give notice of the date, time, and place of the public meeting and a description of the proposal by publication in a newspaper of general circulation in the city or county where the proposal is to take place. Public notice of the scheduled meeting shall occur no fewer than seven or more than 14 days prior to the meeting. The department shall not issue the permit until the public meeting has been held and comment has been received from the local governing body or until 30 days have lapsed from the date of the public meeting.

H. Following the submission of an application for a new permit for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage, the department shall make a good faith effort to notify or cause to be notified persons residing on property bordering the sites that contain the proposed land application fields. This notification shall be in a manner selected by the department. For the purposes of this subsection, "site" means all contiguous land under common ownership, but which may contain more than one tax parcel.

I. Following the submission of an application to add a site that is not contiguous to sites included in an existing permit authorizing the land application of biosolids:

1. The department shall notify persons residing on property bordering such site and shall receive written comments from those persons for a period of 30 days. Based upon written comments, the department shall determine whether additional site-specific requirements should be included in the authorization for land application at the site.

2. An application for any permit amendment to increase the acreage authorized by the initial permit by 50% or more shall be considered a major modification and shall be treated as a new application for purposes of public notice and public hearings. The increase in acreage for the purpose of determining the need for the public meeting is the sum of all acreage that has been added to the permit since the last public meeting, plus that proposed to be added.

J. Before issuing any permit, if the department finds that there are localities particularly affected by the permit, the department shall:

1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed permit, which at a minimum shall include information on the specific pollutants involved and the total quantity of each which may be discharged.

2. Mail, by electronic or postal delivery, the notice to the chief elected official and chief administrative officer and planning district commission for those localities.

3. Accept written comments for at least 15 days after any public hearing on the permit, unless the department shortens the period.

4. For the purposes of this section, consider the term "locality particularly affected" to mean any locality that bears any identified disproportionate material water quality impact that would not be experienced by other localities.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 14, Issue 9, eff. March 1, 1998; Volume 22, Issue 24, eff. September 6, 2006; Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 35, Issue 4, eff. November 14, 2018; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-300 Public comments and requests for public hearings

During the public comment period provided under 9VAC25-31-290, any interested person may submit written comments on the draft permit and may request a public hearing, if no public hearing has already been scheduled. A request for a public hearing shall be in writing and shall meet the requirements of 9VAC25-31-315. All comments shall be considered in making the final decision and shall be answered as provided in 9VAC25-31-320.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 30, Issue 11, eff. February 26, 2014; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-310 Public hearings

A. 1. Procedures for public hearings for permits before the department are those set forth in 9VAC25-31-315.

2. Public notice of the public hearing shall be given as specified in 9VAC25-31-290 of this chapter.

3. Any public hearing convened pursuant to this section shall be held in the geographical area of the proposed discharge, or in another appropriate area. Related groups of permit applications may be considered at any such public hearing.

B. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period for the draft permit shall automatically be extended to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the public hearing.

C. A tape recording or written transcript of the hearing shall be made available to the public.

D. Proceedings at the public hearing will be governed by the board's Procedural Rule No. 1 - Public and Formal Hearing Procedures (9VAC25-230), and the decision from the public hearing will be governed by 9VAC25-31-316.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 30, Issue 11, eff. February 26, 2014; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-315 Criteria for requesting and granting a public hearing on an individual permit action

A. During the public comment period on a permit action in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest the action or terms and conditions of the permit.

B. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and the conditions of the permit in question, together with suggested revisions and alterations to those terms, and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Water Control Board.

C. Upon completion of the public comment period on a permit action, the director shall review all timely requests for public hearing filed during the comment period on the permit action and, within 30 calendar days following the expiration of the time period for the submission of requests, shall grant a public hearing, unless the permittee or applicant agrees to a later date if the director finds the following:

1. That there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;

2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

3. That the action requested by the interested party is not on its face inconsistent with or in violation of the basic laws of the State Water Control Board for a water permit action, a federal law, or any regulation promulgated thereunder.

D. The director of DEQ shall notify by email or postal mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.

E. If the request for a public hearing is granted, the director shall:

1. Schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing.

2. Cause or require the applicant to publish notice of a public hearing to be published once in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located at least 30 days before the hearing date.

F. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

G. The director may, at the director's discretion, convene a public hearing on a permit action.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-316 Controversial permits

Before rendering a final decision on a controversial permit, the department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at that time. In making its decision, the department shall consider (i) the verbal and written comments received during the comment period and the public hearing made part of the record, (ii) any commentary of the board, and (iii) the agency files.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-317 Controversial permits reporting

At each regular meeting of the board, the department shall provide an overview and update regarding any controversial permits pending before the department that are relevant. Immediately after such presentation by the department, the board shall have an opportunity to respond to the department's presentation and provide commentary regarding such pending permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-320 Response to comments

A. At the time that a final permit is issued, the department shall issue a response to comments. This response shall:

1. Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

2. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any public hearing.

B. The response to comments shall be available to the public.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-330 Conditions requested by the Corps of Engineers and other government agencies

A. If during the comment period for an VPDES draft permit, the district engineer advises the department in writing that anchorage and navigation of any of the waters of the United States would be substantially impaired by the granting of a permit, the permit shall be denied and the applicant so notified. If the District Engineer advised the department that imposing specified conditions upon the permit is necessary to avoid any substantial impairment of anchorage or navigation, then the department shall include the specified conditions in the permit. Review or appeal of denial of a permit or of conditions specified by the district engineer shall be made through the applicable procedures of the Corps of Engineers, and may not be made through the procedures provided in this part. If the conditions are stayed by a court of competent jurisdiction or by applicable procedures of the Corps of Engineers, those conditions shall be considered stayed in the VPDES permit for the duration of that stay.

B. If during the comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any other state or federal agency with jurisdiction over fish, wildlife, or public health advises the department in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial impairment of fish, shellfish, or wildlife resources, the department may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of this regulation, the law and of the CWA.

C. In appropriate cases the department may consult with one or more of the agencies referred to in this section before issuing a draft permit and may reflect their views in the statement of basis, the fact sheet, or the draft permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-340 Decision on variances

A. The department may grant or deny requests for variances requested pursuant to 9VAC25-31-100 L 4, subject to EPA objection. Decisions on these variances shall be made according to the criteria of 40 CFR Part 125, Subpart H.

B. The department may deny, or forward to the regional administrator with a written concurrence, or submit to EPA without recommendation a completed request for:

1. A variance based on the economic capability of the applicant submitted pursuant to 9VAC25-31-100 L 2; or

2. A variance based on water quality related effluent limitations submitted pursuant to 9VAC25-31-100 L 3 or 9VAC25-31-100 M 2.

C. If the EPA Office Director for Wastewater Management approves the variance, the department may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision.

D. The department may deny or forward to the administrator with a written concurrence a completed request for:

1. A variance based on the presence of fundamentally different factors from those on which an effluent limitations guideline was based, made according to the criteria and standards of 40 CFR Part 125, Subpart D; or

2. A variance based upon certain water quality factors submitted pursuant to 9VAC25-31-100 L 2 or 9VAC25-31-100 M 1.

E. If the administrator approves the variance, the department may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-350 Appeals of variances

When the department issues a permit on which EPA has made a variance decision, separate appeals of the VPDES permit and of the EPA variance decision are possible.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-360 Computation of time

A. Any time period scheduled to begin on the occurrence of an act or event shall begin on the day after the act or event.

B. Any time period scheduled to begin before the occurrence of an act or event shall be computed so that the period ends on the day before the act or event.

C. If the final day of any time period falls on a weekend or legal holiday, the time period shall be extended to the next working day.

D. Whenever a party or interested person has the right or is required to act within a prescribed period after the service of notice or other paper upon him or her by mail, electronic or postal delivery, three days shall be added to the prescribed time.

History

• Statutory Authority: §§ 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

Part V Transfer, Modification, Revocation and Reissuance, and Termination of Permits

9VAC25-31-370 Modification, revocation and reissuance, or termination of permits

A. Permits may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) or upon the department's initiative. When the department receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for modification or revocation and reissuance, or conducts a review of the permit file) it may determine whether or not one or more of the causes listed in this section for modification or revocation and reissuance, or both, exist. However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in 9VAC25-31-390 or 9VAC25-31-410. All requests shall be in writing and shall contain facts or reasons supporting the request. If cause does not exist under these sections, the department shall not modify, revoke and reissue or terminate the permit. If a permit modification satisfies the criteria for minor modifications, the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared and other procedures in Part IV (9VAC25-31-260 et seq.) followed.

B. If the department decides the request is not justified, it shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or public hearings.

C. 1. If the department tentatively decides to modify or revoke and reissue a permit, it shall prepare a draft permit incorporating the proposed changes. The department may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, the department shall require the submission of a new application.

2. In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued and the permit is reissued for a new term. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

3. Minor modifications as defined in 9VAC25-31-400 are not subject to the requirements of this section.

D. If the department tentatively decides to terminate a permit under 9VAC25-31-410, where the permittee objects, it shall issue a notice of intent to terminate. A notice of intent to terminate is a type of draft permit which follows the same procedures as any draft permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-380 Transfer of permits

A. Except as provided in subsection B of this section, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued, or a minor modification made, to identify the new permittee and incorporate such other requirements as may be necessary under the law and the CWA.

B. Automatic transfers. As an alternative to transfers under subsection A of this section, any VPDES permit may be automatically transferred to a new permittee if:

1. The current permittee notifies the department at least 30 days in advance of the proposed transfer date in subdivision 2 of this subsection;

2. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them;

3. The department does not notify the existing permittee and the proposed new permittee of its intent to modify or revoke and reissue the permit. A modification under this subdivision may also be a minor modification. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in subdivision 2 of this subsection; and

4. The new owner or operator has demonstrated compliance with 9VAC25-650-70, if applicable.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 37, Issue 1, eff. October 1, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-390 Modification or revocation and reissuance of permits

A. Causes for modification. The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees.

1. There are material and substantial alterations or additions to the permitted facility or activity (including a change or changes in the permittee's sludge use or disposal practice) which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit.

2. The department has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For VPDES general permits this cause includes any information indicating that cumulative effects on the environment are unacceptable. For new source or new discharger VPDES permits this cause shall include any significant information derived from effluent testing required on the permit application after issuance of the permit.

3. The standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:

a. For promulgation of amended standards or regulations, when:

(1) The permit condition requested to be modified was based on a promulgated effluent limitation guideline, EPA approved or promulgated water quality standards, or the Secondary Treatment Regulations incorporated by reference in 9VAC25-31-30; and

(2) EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based, or has approved a state action with regard to a water quality standard on which the permit condition was based; and

(3) A permittee requests modification in accordance with this chapter within 90 days after Federal Register notice of the action on which the request is based;

b. For judicial decisions, a court of competent jurisdiction has remanded and stayed EPA promulgated regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with this chapter within 90 days of judicial remand; or

c. For changes based upon modified state certifications of VPDES permits.

4. The department determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case may a VPDES compliance schedule be modified to extend beyond an applicable CWA statutory deadline.

5. When the permittee has filed a request for a variance pursuant to 9VAC25-31-100 L or M within the time specified in this chapter.

6. When required to incorporate an applicable CWA § 307(a) toxic effluent standard or prohibition.

7. When required by the reopener conditions in a permit which are established under 9VAC25-31-220 B or C or 9VAC25-31-800 E.

8. a. Upon request of a permittee who qualifies for effluent limitations on a net basis under 9VAC25-31-230 G.

b. When a discharger is no longer eligible for net limitations as provided in 9VAC25-31-230 G 1 b.

9. As necessary under 9VAC25-31-800 E for a pretreatment program.

10. Upon failure to notify another state whose waters may be affected by a discharge.

11. When the level of discharge of any pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements appropriate to the permittee.

12. To establish a notification level as provided in 9VAC25-31-220 F.

13. To modify a schedule of compliance to reflect the time lost during construction of an innovative or alternative facility, in the case of a POTW which has received a grant under § 202(a)(3) of the CWA for 100% of the costs to modify or replace facilities constructed with a grant for innovative and alternative wastewater technology under § 202(a)(2) of the CWA. In no case shall the compliance schedule be modified to extend beyond an applicable CWA statutory deadline for compliance.

14. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.

15. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under the law and § 402(a)(1) of the CWA and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by a subsequently promulgated effluent limitations guideline).

B. Causes for modification or revocation and reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit:

1. Cause exists for termination under 9VAC25-31-410, and the department determines that modification or revocation and reissuance is appropriate; or

2. The department has received notification of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 13, eff. April 11, 2001; Volume 21, Issue 9, eff. February 9, 2005; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-400 Minor modifications of permits

Upon the consent of the permittee, the department may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section, without following the procedures of Part IV of this chapter. Any permit modification not processed as a minor modification under this section must be made for cause and with draft permit and public notice. Minor modifications may only:

A. Correct typographical errors;

B. Require more frequent monitoring or reporting by the permittee;

C. Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

D. Allow for a change in ownership or operational control of a facility where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the department;

E. 1. Change the construction schedule for a discharger which is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge.

2. Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits; or

F. Incorporate conditions of an approved POTW pretreatment program (or a modification thereto that has been approved in accordance with the procedures in this chapter) as enforceable conditions of the POTW's permits.

G. Incorporate changes to the terms of a CAFO's nutrient management plan that have been revised in accordance with the requirements of subdivision C 5 of 9VAC25-31-130.

H. Require electronic reporting requirements (to replace paper reporting requirements) including those specified in 40 CFR Part 3 and Part XI (9VAC25-31-950 et seq.) of this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 26, Issue 11, eff. March 3, 2010; Volume 30, Issue 4, eff. November 20, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-410 Termination of permits

A. The following are causes for terminating a permit during its term, or for denying a permit renewal application, after public notice and opportunity for a public hearing:

1. The permittee has violated any regulation of the board or order of the department, any provision of the law, or any order of a court, where such violation results in a release of harmful substances into the environment or poses a substantial threat of release of harmful substances into the environment or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations which in the opinion of the department, demonstrates the permittee's disregard for or inability to comply with applicable laws, regulations or requirements;

2. Noncompliance by the permittee with any condition of the permit;

3. The permittee's failure to disclose fully all relevant material facts, or the permittee's misrepresentation of any relevant material facts in applying for a permit, or in any other report or document required under the law or this chapter;

4. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination;

5. A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge or sludge use or disposal practice controlled by the permit; or

6. There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit necessary to protect human health or the environment.

B. The department shall follow the applicable procedures in this chapter in terminating any VPDES permit under this section, except that if the entire discharge is permanently terminated by elimination of the flow or by connection to a POTW or a PVOTW (but not by land application or disposal into a well), the department may terminate the permit by notice to the permittee. Termination by notice shall be effective 30 days after notice is sent, unless the permittee objects within that time. If the permittee objects during that period, the department shall follow the applicable procedures for termination under 9VAC25-31-370 D. Expedited permit termination procedures are not available to permittees that are subject to pending state or federal enforcement actions including citizen suits brought under state or federal law. If requesting expedited permit termination procedures, a permittee must certify that it is not subject to any pending state or federal enforcement actions including citizen suits brought under state or federal law.

C. Permittees that wish to terminate their permit must submit a notice of termination (NOT) to the department. If requesting expedited permit termination procedures, a permittee must certify in the NOT that it is not subject to any pending state or federal enforcement actions including citizen suits brought under state or federal law. As of the start date in Table 1 of 9VAC25-31-1020, all NOTs submitted in compliance with this subsection shall be submitted electronically by the permittee to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, the permittee may be required to report electronically if specified by a particular permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 33, Issue 22, eff. July 26, 2017; Volume 39, Issue 4, eff. November 9, 2022.

Article 1 General Requirements

9VAC25-31-420 Purpose and applicability

Article 1 General Requirements

A. This part establishes standards, which consist of general requirements, pollutant limits, management practices, and operational standards, for the final use of biosolids or disposal of sewage sludge generated during the treatment of domestic sewage in a treatment works. Standards are included in this part for biosolids applied to the land or sewage sludge placed on a surface disposal site. Also included in this part are pathogen and alternative vector attraction reduction requirements for biosolids applied to the land or sewage sludge placed on a surface disposal site.

B. In addition, the standards in this part include the frequency of monitoring and recordkeeping requirements when biosolids is applied to the land or sewage sludge is placed on a surface disposal site. Also included in this part are reporting requirements for Class I sludge management facilities, publicly owned treatment works (POTWs) with a design flow rate equal to or greater than one million gallons per day, and POTWs that serve 10,000 people or more.

C. Applicability.

1. This part applies to any person who prepares sewage sludge or biosolids, or applies biosolids to the land and to the owner/operator of a surface disposal site.

2. This part applies to biosolids applied to the land or sewage sludge placed on a surface disposal site.

3. This part applies to land where biosolids is applied and to a surface disposal site.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-430 [Reserved]. (Reserved)

9VAC25-31-440 Permits and direct enforceability

A. The requirements in this part may be implemented through a permit issued to a treatment works treating domestic sewage, in accordance with this chapter. Treatment works treating domestic sewage shall submit a permit application in accordance with this chapter.

B. No person shall use biosolids or dispose of sewage sludge through any practice for which requirements are established in this part except in accordance with such requirements.

C. No person shall land apply Class B biosolids on any land in Virginia unless that land has been identified in an application to issue, reissue, or modify a permit and approved by the department.

D. No person shall land apply, market, or distribute biosolids in Virginia unless the biosolids source has been approved by the department.

E. The permitting requirements of this chapter shall not apply to any land application of biosolids for a research project when such land is owned and operated by an institution of higher education in the Commonwealth. At least 30 days prior to commencing any land application of biosolids, the institution of higher education shall notify the department and the owner of every adjoining property of its intent to land apply such biosolids. The institution of higher education shall comply with setback and recordkeeping requirements as outlined in the Virginia Pollution Abatement Permit regulation (9VAC25-32).

F. The provisions of subsection E of this section shall expire on July 1, 2030.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.19:3 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022; Volume 42, Issue 1, eff. September 24, 2025.

9VAC25-31-450 Relationship to other regulations

Disposal of sewage sludge in a municipal solid waste landfill unit that complies with the requirements in the Solid Waste Management Regulations (9VAC20-81) constitutes compliance with § 405(d) of the CWA. Any person who prepares sewage sludge that is disposed in a municipal solid waste landfill unit shall ensure that the sewage sludge meets the requirements in 9VAC20-81 concerning the quality of materials disposed in a municipal solid waste landfill unit.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18 of the Code of Virginia; § 402 of the Clean Water Act, 40 CFR Parts 122, 123, 124, 403 and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 27, Issue 26, eff. September 28, 2011.

9VAC25-31-460 Additional or more stringent requirements

A. On a case-by-case basis, the department may impose requirements for the use of biosolids or disposal of sewage sludge in addition to or more stringent than the requirements in this part when necessary to protect public health and the environment from any adverse effect of a pollutant in the biosolids or sewage sludge.

B. Nothing in this part precludes the authority of another state agency, any political subdivision of Virginia, or an interstate agency with respect to the use of biosolids or disposal of sewage sludge.

C. For biosolids land application where, because of site-specific conditions, including soil type, identified during the permit application review process, the department determines that special requirements are necessary to protect the environment or the health, safety or welfare of persons residing in the vicinity of a proposed land application site, the department may incorporate in the permit at the time it is issued reasonable special conditions regarding setback distances, transportation routes, slope, material source, methods of handling and application, and time of day restrictions exceeding those required by this regulation. The permit applicant shall have at least 14 days in which to review and respond to the proposed conditions.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-465 PFAS requirements

A. In addition to the definitions given in Part I (9VAC25-31-10 et seq.) and Part VI (9VAC25-31-420 et seq.) of this chapter, the following definitions apply to this section:

"PFAS" means per- and polyfluoroalkyl substances, as that term is defined in § 62.1-44.34:29 of the Code of Virginia.

"PFOA" means perfluorooctanoic acid.

"PFOS" means perfluorooctane sulfonate.

B. Beginning January 1, 2027, any owner of a treatment works land applying, marketing, or distributing biosolids in the Commonwealth shall collect representative samples of the biosolids that are intended to be land applied, marketed, or distributed and have such samples analyzed by an accredited laboratory for PFAS using U.S. Environmental Protection Agency (EPA) Method 1633, an applicable EPA revision, or another method approved by EPA that may be allowed by the department.

1. The minimum frequency of such sampling shall be monthly for the initial sampling period from January 1, 2027, through December 31, 2027, and thereafter may be reduced to not less frequently than quarterly upon the approval of the department.

2. The owner of the treatment works shall provide the concentration results for PFOS and PFOA and all other target analytes from the analysis to the department and any person land applying biosolids from the treatment works within 10 days of receipt of such results.

3. If the treatment works that is the source of the biosolids is located outside of the Commonwealth, the permit holder intending to land apply, market, or distribute the biosolids in the Commonwealth from such treatment works shall provide analyses to the department that meet all requirements of this subsection.

C. After July 1, 2027, if the analysis required under subsection B of this section finds:

1. A PFOS or PFOA concentration in the biosolids of greater than or equal to 50 micrograms per kilogram annual average on a rolling 12-month basis, the biosolids shall not be land applied, marketed, or distributed. The owner of the treatment works shall arrange for alternative treatment, use, or disposal of the biosolids until such time as the annual average on a rolling 12-month basis demonstrates a concentration of less than 50 micrograms per kilogram;

2. A PFOS or PFOA concentration in the biosolids of greater than or equal to 25 but less than 50 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder shall reduce the application rate of the biosolids to three dry tons per acre, not to exceed the application rate required by the nutrient management plan, or submit to the department for approval an alternative risk management strategy at least two weeks prior to land application in lieu of the reduced land application rate. Such permit holder shall reduce the application rate required in this subdivision until such time as the annual average on a 12-month basis demonstrates a concentration of less than 25 micrograms per kilogram. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations for all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

a. Notwithstanding the provisions of this subdivision 2, if any single test result exceeds 75 micrograms per kilogram for PFOS or PFOA, the owner of the treatment works shall promptly collect another sample for testing; and

b. If the result of such sample exceeds 75 micrograms per kilogram for PFOS or PFOA, the owner of the treatment works shall arrange for alternative treatment, use, or disposal of the biosolids until such time as a subsequent sample result demonstrates a concentration of less than 50 micrograms per kilogram; or

3. A PFOS and PFOA concentration in the biosolids of less than 25 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder may land apply, market, or distribute the biosolids in accordance with its permit with no additional requirements. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations of all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

D. After July 1, 2027, when biosolids from two or more treatment works are blended prior to land application, the requirements of subdivisions C 1, C 2, and C 3 of this section shall be applied to the blended biosolids without further testing, using a mass-balance calculation.

E. After July 1, 2029, if the analysis required under subsection B of this section finds:

1. A combined PFOS and PFOA concentration in the biosolids of greater than or equal to 50 micrograms per kilogram annual average on a rolling 12-month basis, the biosolids shall not be land applied, marketed, or distributed. The owner of the treatment works shall arrange for alternative treatment, use, or disposal of the biosolids until the annual average on a rolling 12-month basis demonstrates a concentration of less than 50 micrograms per kilogram;

2. A combined PFOS and PFOA concentration in the biosolids of greater than or equal to 25 but less than 50 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder shall reduce the application rate of the biosolids to three dry tons per acre, not to exceed the application rate required by the nutrient management plan, or submit to the department for approval an alternative risk management strategy at least two weeks prior to land application in lieu of the reduced land application rate. Such permit holder shall reduce the application rate required in this subdivision until such time as the annual average on a rolling 12-month basis demonstrates a concentration of less than 25 micrograms per kilogram. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations for all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

a. Notwithstanding the provisions of this subdivision 2, if any single test result exceeds a combined PFOS and PFOA concentration of 75 micrograms per kilogram, the owner of the treatment works shall promptly collect another sample for testing; and

b. If the result of such test exceeds a combined PFOS and PFOA concentration of 75 micrograms per kilogram, such owner shall arrange for the alternative treatment, use, or disposal of the biosolids until a subsequent sample result demonstrates a concentration of less than 50 micrograms per kilogram; or

3. A combined PFOS and PFOA concentration in the biosolids of less than 25 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder may land apply, market, or distribute the biosolids in accordance with its permit with no additional requirements. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations for all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

F. After July 1, 2029, when biosolids from two or more treatment works are blended prior to land application, the requirements of subdivisions E 1, E 2, and E 3 of this section shall be applied to the blended biosolids without further testing, using a mass-balance calculation.

History

• Statutory Authority: § 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-31-470 Exclusions

A. Treatment processes. This part does not establish requirements for processes used to treat domestic sewage or for processes used to treat sewage sludge prior to final use or disposal, except as provided in 9VAC25-31-710 and 9VAC25-31-720.

B. Selection of a use or disposal practice. This part does not require the selection of a sewage sludge use or disposal practice. The determination of the manner in which sewage sludge is used or disposed is a local determination.

C. Incineration of sewage sludge. This part does not establish requirements for sewage sludge fired in a sewage sludge incinerator or co-fired in an incinerator with other wastes or for the incinerator in which sewage sludge and other wastes are co-fired.

D. Sludge generated at an industrial facility. This part does not establish requirements for the use or disposal of sludge generated at an industrial facility during the treatment of industrial wastewater, including sewage sludge generated during the treatment of industrial wastewater combined with domestic sewage.

E. Hazardous sewage sludge. This part does not establish requirements for the use or disposal of sewage sludge determined to be hazardous in accordance with 40 CFR Part 261 or the Code of Virginia.

F. Sewage sludge with high PCB concentration. This part does not establish requirements for the use or disposal of sewage sludge with a concentration of polychlorinated biphenyls (PCBs) equal to or greater than 50 milligrams per kilogram of total solids (dry weight basis).

G. Incinerator ash. This part does not establish requirements for the use or disposal of ash generated during the firing of sewage sludge in a sewage sludge incinerator.

H. Grit and screenings. This part does not establish requirements for the use or disposal of grit (e.g., sand, gravel, cinders, or other materials with a high specific gravity) or screenings (e.g., relatively large materials such as rags) generated during preliminary treatment of domestic sewage in a treatment works.

I. Drinking water treatment sludge. This part does not establish requirements for the use or disposal of sludge generated during the treatment of either surface water or ground water used for drinking water.

J. Commercial and industrial septage. This part does not establish requirements for the use or disposal of commercial septage, industrial septage, a mixture of domestic septage and commercial septage, or a mixture of domestic septage and industrial septage.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012.

9VAC25-31-475 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; repealed, Virginia Register Volume 32, Issue 5, eff. January 1, 2016.

9VAC25-31-480 Requirements for a person who prepares biosolids or sewage sludge

A. Any person who prepares biosolids shall ensure that the applicable requirements in this part are met when biosolids is applied to the land.

B. Any person who prepares sewage sludge shall ensure that the applicable requirements in this part are met when the sewage sludge is placed on a surface disposal site.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-485 Requirements for a person who land apply biosolids

A. No person shall land apply biosolids pursuant to a permit issued in accordance with this chapter unless an individual holding a valid certificate of competence as specified in Article 5 (9VAC25-32-690 et seq.) of Part IX (9VAC25-32-303 et seq.) of the Virginia Pollution Abatement (VPA) Permit Regulation is on site at all times during such land application.

B. When an application for a permit that authorizes the land application of biosolids is submitted to the department:

1. Permit holders shall use a DEQ control number, if previously assigned, identifying each land application field. If a DEQ control number has not been assigned, provide the site identification code used by the permit applicant to report activities and the site's location.

2. A written agreement shall be established between the landowner and permit applicant or permit holder to be submitted with the permit application, whereby the landowner shall consent to the application of biosolids on his property. The landowner agreement shall include:

a. A statement certifying that the landowner is the sole owner or one of multiple owners of the property identified on the landowner agreements;

b. A statement certifying that no concurrent agreements are in effect for the fields to be permitted for biosolids application;

c. An acknowledgment that the landowner shall notify the permittee when land is sold or ownership transferred;

d. An acknowledgment that the landowner shall notify the permittee if any conditions change such that any component of the landowner agreement becomes invalid;

e. Permission to allow department staff on the landowner's property to conduct inspections;

f. An acknowledgment by the landowner of any site restrictions identified in this chapter;

g. An acknowledgment that the landowner has received a biosolids fact sheet approved by the department; and

h. An acknowledgment that the landowner shall not remove notification signs placed by the permit holder.

3. New landowner agreements, using the most current form provided by the department, shall be submitted to the department for proposed land application sites identified in each application for issuance or reissuance of a permit or the modification to add land to an existing permit that authorizes the land application of biosolids.

4. For permits modified in order to incorporate changes to this chapter, the permit holder shall, within 60 days of the effective date of the permit modification, advise the landowner by certified letter of the requirement to provide a new landowner agreement. The letter shall include instructions to the landowner for signing and returning the new landowner agreement and shall advise the landowner that the permit holder's receipt of such new landowner agreement is required prior to application of biosolids to the landowner's property.

5. The responsibility for obtaining and maintaining the agreements lies with the permit holder.

C. The permit holder shall ensure that the landowner agreement is still valid at the time of land application.

D. Notification requirements.

1. At least 100 days prior to commencing the first land application of biosolids at a permitted site, the permittee shall deliver or cause to be delivered written notification to the chief executive officer or designee for the local government where the site is located. The notice shall identify the location of the permitted site and the expected sources of the biosolids to be applied to the site. This requirement may be satisfied by the department's notice to the local government at the time of receiving the permit application if all necessary information is included in the notice or by providing a list of all available permitted sites in the locality at least 100 days prior to commencing the application at any site on the list. If the site is located in more than one county, the notice shall be provided to all jurisdictions where the site is located.

2. At least 14 days prior to commencing land application of biosolids at a permitted site, the permit holder shall deliver or cause to be delivered written notification to the department and the chief executive officer or designee for the local government where the site is located unless they request in writing not to receive the notice. The notice shall identify the location of the permitted site and the expected sources of the sewage sludge to be applied to the site.

3. Not more than 24 hours prior to commencing land application activities, including delivery of biosolids at a permitted site, the permittee shall notify in writing the department and the chief executive officer or designee for the local government where the site is located unless they request in writing not to receive the notice. This notification shall include identification of the biosolids source and shall include only sites where land application activities will commence within 24 hours or where the biosolids will be staged within 24 hours.

4. The permit holder shall conduct notification in accordance with 9VAC25-31-465.

E. Evidence of financial responsibility shall be provided in accordance with requirements specified in Article 6 (9VAC25-32-770 et seq.) of Part IX (9VAC25-32-303 et seq.) of the Virginia Pollution Abatement (VPA) Permit Regulation.

F. Posting signs.

1. At least five business days prior to delivery of biosolids for land application on any site permitted under this chapter, the permit holder shall post signs at the site that comply with this section, are visible and legible from the public right-of-way in both directions of travel, and conform to the specifications in this subsection. The sign shall remain in place for at least five business days after land application has been completed at the site. The permit holder shall not remove the signs until at least 30 days after land application has been completed at the site.

a. A sign shall be posted at or near the intersection of the public right-of-way and the main site access road or driveway to the site used by the biosolids transport vehicles.

b. If the field is located adjacent to a public right-of-way, at least one sign shall be posted along each public road frontage beside the field to be land applied.

c. The department may grant a waiver to the requirements in this section or require alternative posting options due to extenuating circumstances or where requirements conflict with local government ordinances and other requirements regulating the use of signs.

2. Upon the posting of signs at a land application site prior to commencing land application, the permittee shall deliver or cause to be delivered written notification to the department and the chief executive officer or designee for the local government where the site is located unless they request in writing not to receive the notice. Notification shall be delivered to the department within 24 hours of the posting of the signs. The notice shall include the following:

a. The name and telephone number of the permit holder, including the name of a representative knowledgeable of the permit;

b. Identification by tax map number and the DEQ control number for sites on which land application is to take place;

c. The name or title and telephone number of at least one individual designated by the permit holder to respond to questions and complaints related to the land application project if not the permit holder identified in subdivision a of this subdivision; and

d. The approximate dates on which land application is to begin and end at the site.

3. The sign shall be made of weather-resistant materials and shall be sturdily mounted so as to be capable of remaining in place and legible throughout the period that the sign is required at the site. Signs required by this section shall be temporary, nonilluminated, and four square feet or more in area, and only contain the following information:

a. A statement that biosolids are being land applied at the site;

b. The name of the permit holder;

c. The telephone number of an individual designated by the permit holder to respond to complaints and inquiries; and

d. Contact information for the department, including a telephone number for complaints and inquiries.

4. The permit holder shall make a good faith effort to replace or repair any sign that has been removed from a land application site or that has been damaged so as to render any of its required information illegible prior to five business days after completion of land application.

G. Biosolids management plan.

1. The permit holder shall maintain and implement a biosolids management plan, which shall consist of three components:

a. The materials, including site booklets, developed and submitted at the time of permit application or permit modification adding a site to the permit in accordance with 9VAC25-31-100 Q;

b. Nutrient management plan for each site, in accordance with 9VAC25-31-505; and

c. Operation and maintenance (O&M) manual, developed and submitted to the department within 90 days of the effective date of the permit.

2. The biosolids management plan and all of the plan's components shall be incorporated as an enforceable part of the permit.

3. The O&M manual shall include at a minimum:

a. Equipment maintenance and calibration procedures and schedules;

b. Storage facility maintenance procedures and schedules;

c. Sampling schedules for:

(1) Required monitoring; and

(2) Operational control testing;

d. Sample collection, preservation, and analysis procedures, including laboratories and methods used; and

e. Instructions for recording and reporting all monitoring activities.

4. Current VPDES permit holders who land apply biosolids may use their existing VPDES O&M plan addressing land application to satisfy the requirements of this section if the existing plan addresses all of the required minimum components identified in this section.

H. Handling of complaints.

1. Within 24 hours of receiving notification of a complaint, the permit holder shall commence investigation of the complaint and shall determine whether the complaint is substantive. The permit holder shall confirm receipt of all substantive complaints by phone, email, or facsimile to the department, the chief executive officer or designee for the local government of the jurisdiction in which the complaint originates, and the owner of the treatment facility from which the biosolids originated within 24 hours after receiving the complaint.

2. For the purposes of this section, a substantive complaint shall be deemed to be any complaint alleging a violation of this chapter, state law, or local ordinance; a release of biosolids to state waters or to a public right-of-way or to any location not authorized in the permit; or failure to comply with the nutrient management plan for the land application site.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022; Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-31-490 Sampling and analysis

A. Representative samples of biosolids that is applied to the land or placed on a surface disposal site shall be collected and analyzed.

B. Methods in the materials listed below or in 40 CFR Part 136 shall be used to analyze samples of biosolids and calculation procedures in the materials shall be used to calculate the percent volatile solids reduction for biosolids.

1. Enteric viruses.

ASTM Designation: D 4994-89, "Standard Practice for Recovery of Viruses From Wastewater Sludges," Annual Book of ASTM Standards: Section 11 - Water and Environmental Technology, ASTM, Philadelphia, PA., 1992.

2. Fecal coliform.

Part 9221 E. or Part 9222 D., "Standard Methods for the Examination of Water and Wastewater," 18th Edition, American Public Health Association, Washington, D.C., 1992.

3. Helminth ova.

Yanko, W.A., "Occurrence of Pathogens in Distribution and Marketing Municipal Sludges," EPA 600/1-87-014, 1987. PB 88-154273/AS, National Technical Information Service, Springfield, Virginia.

4. Inorganic pollutants.

"Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, Third Edition as amended by Final Updates I, II, IIA, IIB, III, IIIA, IIIB, IVA and IVB. PB88-239223, National Technical Information Service, Springfield, Virginia.

5. Salmonella sp. bacteria.

Part 9260 D., "Standard Methods for the Examination of Water and Wastewater," 18th Edition, American Public Health Association, Washington, D.C., 1992; or

Kenner, B.A. and H.P. Clark, "Detection and enumeration of Salmonella and Pseudomonas aeruginosa," J. Water Pollution Control Federation, 46(9):2163-2171, 1974.

6. Specific oxygen uptake rate.

Part 2710 B., "Standard Methods for the Examination of Water and Wastewater," 18th Edition, American Public Health Association, Washington, D.C., 1992.

7. Total, fixed, and volatile solids.

Part 2540 G., "Standard Methods for the Examination of Water and Wastewater," 18th Edition, American Public Health Association, Washington, D.C., 1992.

8. Percent volatile solids reduction calculation.

"Environmental Regulations and Technology - Control of Pathogens and Vector Attraction in Sewage Sludge," EPA-625/R-92/013, U.S. Environmental Protection Agency, Cincinnati, Ohio, Revised July 2003.

9. Per- and polyfluoroalkyl substances.

"Method 1633, Revision A - Analysis of Per- and Polyfluoroalkyl Substances (PFAS) in Aqueous, Solid, Biosolids, and Tissue Samples by LC-MS/MS," EPA-820/R-24/007, U.S. Environmental Protection Agency, Washington, DC, Revised December 2024.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 24, eff. September 1, 2013; Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-31-500 Definitions

In addition to the definitions given in Part I (9VAC25-31-10 et seq.) of this chapter, the following definitions apply to Part VI (9VAC25-31-420 et seq.) of this chapter. Where the same term is defined in both parts, the definition of Part VI of this chapter applies to the use of the term in Part VI of this chapter.

"Active sewage sludge unit" means a sewage sludge unit that has not closed.

"Aerobic digestion" means the biochemical decomposition of organic matter in sewage sludge into carbon dioxide and water by microorganisms in the presence of air.

"Agricultural land" means land on which a food crop, a feed crop, or a fiber crop is grown. This includes range land and land used as pasture.

"Agronomic rate" means the whole sludge application rate (dry weight basis) designed: (i) to provide the amount of nitrogen needed by the food crop, feed crop, fiber crop, cover crop, or vegetation grown on the land and (ii) to minimize the amount of nitrogen in the biosolids that passes below the root zone of the crop or vegetation grown on the land to the groundwater.

"Anaerobic digestion" means the biochemical decomposition of organic matter in sewage sludge into methane gas and carbon dioxide by microorganisms in the absence of air.

"Annual pollutant loading rate " or "APLR" means the maximum amount of a pollutant that can be applied to a unit area of land during a 365-day period.

"Annual whole sludge application rate" or "AWSAR" means the maximum amount of biosolids (dry weight basis) that can be applied to a unit area of land during a 365-day period.

"Apply biosolids" or "biosolids applied to the land" means land application of biosolids.

"Aquifer" means a geologic formation, group of geologic formations, or a portion of a geologic formation capable of yielding groundwater to wells or springs.

"Base flood" means a flood that has a one percent chance of occurring in any given year (i.e., a flood with a magnitude equaled once in 100 years).

"Bulk biosolids" means biosolids that are not sold or given away in a bag or other container for application to the land.

"Class I sludge management facility" means any publicly owned treatment works (POTW) required to have an approved pretreatment program under this chapter and any treatment works treating domestic sewage classified as a Class I sludge management facility by the department because of the potential for its biosolids use or sewage sludge disposal practice to affect public health and the environment adversely.

"Contaminate an aquifer" means to introduce a substance that causes the maximum contaminant level for nitrate in the Virginia Water Quality Standards or in 40 CFR 141.62(b) to be exceeded in groundwater or that causes the existing concentration of nitrate in groundwater to increase when the existing concentration of nitrate in the groundwater exceeds the maximum contaminant level for nitrate in the Virginia Water Quality Standards or 40 CFR 141.62(b).

"Cover" means soil or other material used to cover sewage sludge placed on an active sewage sludge unit.

"Cumulative pollutant loading rate" means the maximum amount of an inorganic pollutant that can be applied to an area of land.

"Density of microorganisms" means the number of microorganisms per unit mass of total solids (dry weight) in the biosolids or sewage sludge.

"Displacement" means the relative movement of any two sides of a fault measured in any direction.

"Domestic septage" means either liquid or solid material removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap at a restaurant.

"Domestic sewage" means waste and wastewater from humans or household operations that is discharged to or otherwise enters a treatment works.

"Dry tons" means dry weight established as representative of land applied biosolids and expressed in units of English tons.

"Dry weight" means the measured weight of a sample of sewage sludge or biosolids after all moisture has been removed in accordance with the standard methods of testing and often represented as percent solids.

"Dry weight basis" means calculated on the basis of having been dried at 105°C until reaching a constant mass (i.e., essentially 100% solids content).

"Exceptional quality biosolids" means biosolids that have received an established level of treatment for pathogen control and vector attraction reduction and contain known levels of pollutants, such that they may be marketed or distributed for public use in accordance with this regulation.

"Fault" means a fracture or zone of fractures in any materials along which strata on one side are displaced with respect to strata on the other side.

"Feed crops" means crops produced primarily for consumption by animals.

"Fiber crops" means crops such as flax and cotton.

"Field" means an area of land within a site where land application is proposed or permitted.

"Final cover" means the last layer of soil or other material placed on a sewage sludge unit at closure.

"Food crops" means crops produced primarily for consumption by humans. These include, but are not limited to, fruits, vegetables, and tobacco.

"Forest" means a tract of land thick with trees and underbrush.

"Groundwater" means water below the land surface in the saturated zone.

"Holocene time" means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene epoch to the present.

"Industrial wastewater" means wastewater generated in a commercial or industrial process.

"Land application" means in regard to biosolids, the distribution of biosolids by spreading or spraying on the surface of the land, injecting below the surface of the land, or incorporating into the soil with a uniform application rate for the purpose of fertilizing the crops and vegetation or conditioning the soil. Sites approved for land application of biosolids in accordance with this chapter are not to be considered to be treatment works. Bulk disposal of stabilized sludge in a confined area, such as in landfills, is not land application. For the purpose of this chapter, the use of biosolids in agricultural research and the distribution and marketing of exceptional quality biosolids are not land application.

"Land application area" means, in regard to biosolids, the area in the permitted field, excluding the setback distances, where the biosolids may be applied.

"Land applier" means someone who land applies biosolids pursuant to a valid permit from the department as set forth in this chapter and 9VAC25-32-690 through 9VAC25-32-760.

"Land with a high potential for public exposure" means land that the public uses frequently. This includes, but is not limited to, a public contact site and a reclamation site located in a populated area (e.g., a construction site located in a city).

"Land with a low potential for public exposure" means land that the public uses infrequently. This includes, but is not limited to, agricultural land, forest, and a reclamation site located in an unpopulated area (e.g., a strip mine located in a rural area).

"Leachate collection system" means a system or device installed immediately above a liner that is designed, constructed, maintained, and operated to collect and remove leachate from a sewage sludge unit.

"Liner" means soil or synthetic material that has a hydraulic conductivity of 1 X 10^-7 centimeters per second or less.

"Local monitor" means a person or persons employed by a local government to perform the duties of monitoring the operations of land appliers pursuant to a local ordinance.

"Local ordinance" means an ordinance adopted by counties, cities, or towns in accordance with § 62.1-44.19:3 of the Code of Virginia.

"Lower explosive limit for methane gas" means the lowest percentage of methane gas in air, by volume that propagates a flame at 25°C and atmospheric pressure.

"Monthly average" means the arithmetic mean of all measurements taken during the month.

"Municipality" means a city, town, county, district, association, or other public body (including an intermunicipal Agency of two or more of the foregoing entities) created by or under state law; an Indian tribe or an authorized Indian tribal organization having jurisdiction over sewage sludge management; or a designated and approved management agency under § 208 of the CWA, as amended. The definition includes a special district created under state law, such as a water district, sewer district, sanitary district, utility district, drainage district, or similar entity, or an integrated waste management facility as defined in § 201(e) of the CWA, as amended, that has as one of its principal responsibilities the treatment, transport, use, or disposal of biosolids or sewage sludge.

"Odor sensitive receptor" means, in the context of land application of biosolids, any health care facility, such as hospitals, convalescent homes, etc. or a building or outdoor facility regularly used to host or serve large groups of people such as schools, dormitories, or athletic and other recreational facilities.

"Other container" means either an open or closed receptacle. This includes, but is not limited to, a bucket, a box, a carton, and a vehicle or trailer with a load capacity of one metric ton or less.

"Pasture" means land on which animals feed directly on feed crops such as legumes, grasses, grain stubble, or stover.

"Pathogenic organisms" means disease-causing organisms. These include, but are not limited to, certain bacteria, protozoa, viruses, and viable helminth ova.

"Person who prepares biosolids" means either the person who generates biosolids during the treatment of domestic sewage in a treatment works or the person who derives a material from sewage sludge.

"pH" means the logarithm of the reciprocal of the hydrogen ion concentration measured at 25° Celsius or measured at another temperature and then converted to an equivalent value at 25° Celsius.

"Place sewage sludge or sewage sludge placed" means disposal of sewage sludge on a surface disposal site.

"Pollutant" means an organic substance, an inorganic substance, a combination of organic and inorganic substances, or a pathogenic organism that, after discharge and upon exposure, ingestion, inhalation, or assimilation into an organism either directly from the environment or indirectly by ingestion through the food chain, could, on the basis of information available to the department, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or physical deformations in either organisms or offspring of the organisms.

"Pollutant limit" means a numerical value that describes the amount of a pollutant allowed per unit amount of biosolids (e.g., milligrams per kilogram of total solids); the amount of a pollutant that can be applied to a unit area of land (e.g., kilograms per hectare); or the volume of a material that can be applied to a unit area of land (e.g., gallons per acre).

"Public contact site" means land with a high potential for contact by the public. This includes, but is not limited to, public parks, ball fields, cemeteries, and golf courses.

"Qualified groundwater scientist" means an individual with a baccalaureate or post-graduate degree in the natural sciences or engineering who has sufficient training and experience in groundwater hydrology and related fields, as may be demonstrated by state registration, professional certification, or completion of accredited university programs, to make sound professional judgments regarding groundwater monitoring, pollutant fate and transport, and corrective action.

"Range land" means open land with indigenous vegetation.

"Reclamation site" means drastically disturbed land that is reclaimed using biosolids. This includes, but is not limited to, strip mines and construction sites.

"Run-off" means rainwater, leachate, or other liquid that drains overland on any part of a land surface and runs off of the land surface.

"Seismic impact zone" means an area that has a 10% or greater probability that the horizontal ground level acceleration of the rock in the area exceeds 0.10 gravity once in 250 years.

"Sewage sludge" means solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and a material derived from sewage sludge. Sewage sludge does not include ash generated during the firing of sewage sludge in a sewage sludge incinerator or grit and screenings generated during preliminary treatment of domestic sewage in a treatment works.

"Sewage sludge unit" means land on which only sewage sludge is placed for final disposal. This does not include land on which sewage sludge is either stored or treated. Land does not include surface waters.

"Sewage sludge unit boundary" means the outermost perimeter of an active sewage sludge unit.

"Site" means the area of land within a defined boundary where an activity is proposed or permitted.

"Specific oxygen uptake rate (SOUR)" means the mass of oxygen consumed per unit time per unit mass of total solids (dry weight basis) in the sewage sludge.

"Store or storage of sewage sludge" means the placement of sewage sludge on land on which the sewage sludge remains for two years or less. This does not include the placement of sewage sludge on land for treatment.

"Surface disposal site" means an area of land that contains one or more active sewage sludge units.

"Total solids" means the materials in sewage sludge that remain as residue when the sewage sludge is dried at 103°C to 105°C.

"Treat or treatment of sewage sludge" means the preparation of sewage sludge for final use or disposal. This includes, but is not limited to, thickening, stabilization, and dewatering of sewage sludge. This does not include storage of sewage sludge.

"Treatment works" means either a federally owned, publicly owned, or privately owned device or system used to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and industrial waste of a liquid nature.

"Unstable area" means land subject to natural or human-induced forces that may damage the structural components of an active sewage sludge unit. This includes, but is not limited to, land on which the soils are subject to mass movement.

"Unstabilized solids" means organic materials in sewage sludge that have not been treated in either an aerobic or anaerobic treatment process.

"Use" means to manage or recycle a processed waste product in a manner so as to derive a measurable benefit as a result of such management.

"Vector attraction" means the characteristic of biosolids or sewage sludge that attracts rodents, flies, mosquitoes, or other organisms capable of transporting infectious agents.

"Volatile solids" means the amount of the total solids in sewage sludge lost when the sewage sludge is combusted at 550°C in the presence of excess air.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

Article 2 Biosolids Applied to the Land

9VAC25-31-505 Universal requirements for land application operations

A. A nutrient management plan prepared by a person who is certified as a nutrient management planner by the Department of Conservation and Recreation shall be developed for all application sites prior to biosolids land application.

1. A nutrient management plan approved by the Department of Conservation and Recreation shall be required for application sites prior to department authorization under specific conditions, including but not limited to:

a. Sites operated by an owner or lessee of a confined animal feeding operation, as defined in subsection A of § 62.1-44.17:1 of the Code of Virginia, or confined poultry feeding operation, as defined in subsection A of § 62.1-44.17:1.1 of the Code of Virginia;

b. Sites where land application more frequently than once every three years at greater than 50% of the annual agronomic rate is proposed;

c. Mined or disturbed land sites where land application is proposed at greater than agronomic rates; and

d. Other sites based on site-specific conditions that increase the risk that land application may adversely impact state waters.

e. Where conditions at the land application site change so that it meets one or more of the specific conditions identified in this section, an approved nutrient management plan shall be submitted prior to any future land application at the site.

2. The nutrient management plan shall be available for review by the department at the land application site during biosolids land application.

3. Within 30 days after land application at the site has commenced, the permit holder shall provide a copy of the nutrient management plan to the farm operator of the site, the Department of Conservation and Recreation, and the chief executive officer or designee for the local government unless they request in writing not to receive the nutrient management plan.

4. The nutrient management plan must be approved by the Department of Conservation and Recreation prior to land application for land application sites where the soil test phosphorus levels exceed the values in Table 1 of this section. For purposes of approval, permittees should submit the nutrient management plan to the Department of Conservation and Recreation at least 30 days prior to the anticipated date of land application to ensure adequate time for the approval process.

| TABLE 1 SOIL PHOSPHORUS LEVELS REQUIRING NMP APPROVAL | | | --- | --- | | Region | Soil Test P (ppm) VPI & SU Test (Mehlich I)* | | Eastern Shore and Lower Coastal Plain | 135 | | Middle and Upper Coastal Plain and Piedmont | 136 | | Ridge and Valley | 162 | | *If results are from another laboratory, the Department of Conservation and Recreation approved conversion factors must be used. | |

B. Sewage sludge shall be treated to meet standards for land application of biosolids as required by Part VI (9VAC25-31-420 et seq.) of this chapter prior to delivery at the land application site. No person shall alter the composition of biosolids at a site approved for land application of biosolids under a VPDES permit. Any person who engages in the alteration of such biosolids shall be subject to the penalties provided in Article 6 (§ 62.1-44.31 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia. The addition of lime or deodorants to biosolids that have been treated to meet standards for land application as required by Part VI (9VAC25-31-420 et seq.) of this chapter, shall not constitute alteration of the composition of biosolids. The department may authorize public institutions of higher education to conduct scientific research on the composition of biosolids that may be applied to land.

C. Bulk biosolids meeting Class B pathogen reduction standards shall be land applied in accordance with the Virginia Pollution Abatement Permit Regulation, Article 3, Biosolids Use Standards and Practices, set forth in 9VAC25-32-490 through 9VAC25-32-580.

D. Surface incorporation may be required on cropland by the department, or the local monitor with approval of the department, to mitigate malodors, when incorporation is practicable and compatible with a soil conservation plan or contract meeting the standards and specifications of the U.S. Department of Agriculture Natural Resources Conservation Service.

E. For applications where surface applied biosolids are not incorporated, the department (or the local monitor with approval of the department) may require as a site-specific permit condition, extended setback distances when necessary to protect odor sensitive receptors.

F. No person shall apply to the Department of Environmental Quality for a permit, a variance, or a permit modification authorizing storage of sewage sludge or biosolids without first complying with all requirements adopted pursuant to § 62.1-44.19:3 R of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-510 Applicability; bulk biosolids; biosolids sold or given away in a bag or other container for application to the land

A. This article applies to any person who prepares biosolids that is applied to the land, to any person who applies biosolids to the land, to biosolids applied to the land, and to the land on which biosolids is applied.

B. General requirements for bulk biosolids.

1. The general requirements in 9VAC25-31-530 and the management practices in 9VAC25-31-550 B through F do not apply when bulk biosolids is applied to the land if the bulk biosolids meets the ceiling concentrations in 9VAC25-31-540 B 1, the pollutant concentrations in 9VAC25-31-540 B 3, the Class A pathogen requirements in 9VAC25-31-710 A, and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8.

2. The department may apply any or all of the general requirements in 9VAC25-31-530 and the management practices in 9VAC25-31-550 to the bulk biosolids in subdivision 1 of this subsection on a case-by-case basis after determining that the general requirements or management practices are needed to protect public health and the environment from any reasonably anticipated adverse effect that may occur from any pollutant in the bulk biosolids.

C. General requirements for bulk material derived from biosolids.

1. The general requirements in 9VAC25-31-530 and the management practices in 9VAC25-31-550 B through F do not apply when a bulk material derived from biosolids is applied to the land if the derived bulk material meets the ceiling concentrations in 9VAC25-31-540 B 1, the pollutant concentrations in 9VAC25-31-540 B 3, the Class A pathogen requirements in 9VAC25-31-710 A, and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8.

2. The department may apply any or all of the general requirements in 9VAC25-31-530 or the management practices in 9VAC25-31-550 to the bulk material in subdivision 1 of this subsection on a case-by-case basis after determining that the general requirements or management practices are needed to protect public health and the environment from any reasonably anticipated adverse effect that may occur from any pollutant in the bulk biosolids.

D. The requirements in this article do not apply when a bulk material derived from biosolids is applied to the land if the biosolids from which the bulk material is derived meets the ceiling concentrations in 9VAC25-31-540 B 1, the pollutant concentrations in 9VAC25-31-540 B 3, the Class A pathogen requirements in 9VAC25-31-710 A, and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8.

E. The general requirements in 9VAC25-31-530 and the management practices in 9VAC25-31-550 B through F do not apply when biosolids is sold or given away in a bag or other container for application to the land if the biosolids sold or given away in a bag or other container for application to the land meets the ceiling concentrations in 9VAC25-31-540 B 1, the pollutant concentrations in 9VAC25-31-540 B 3, the Class A pathogen requirements in 9VAC25-31-710 A, and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8.

F. The general requirements in 9VAC25-31-530 and the management practices in 9VAC25-31-550 B through F do not apply when a material derived from biosolids is sold or given away in a bag or other container for application to the land if the derived material meets the ceiling concentrations in 9VAC25-31-540 B 1, the pollutant concentrations in 9VAC25-31-540 B 3, the Class A pathogen requirements in 9VAC25-31-710 A, and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8.

G. The requirements in this article do not apply when a material derived from biosolids is sold or given away in a bag or other container for application to the land if the biosolids from which the material is derived meets the ceiling concentrations in 9VAC25-31-540 B 1, the pollutant concentrations in 9VAC25-31-540 B 3, the Class A pathogen requirements in 9VAC25-31-710 A, and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-520 [Reserved]. (Reserved)

9VAC25-31-530 General requirements

A. No person shall apply biosolids to the land except in accordance with the requirements in this article.

B. No person shall apply bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B 2 to agricultural land, forest, a public contact site, or a reclamation site if any of the cumulative pollutant loading rates in 9VAC25-31-540 B 2 has been reached.

C. No person shall apply domestic septage to agricultural land, forest, or a reclamation site during a 365-day period if the annual application rate in 9VAC25-31-540 C has been reached during that period.

D. The person who prepares bulk biosolids that is applied to agricultural land, forest, a public contact site, or a reclamation site shall provide the person who applies the bulk biosolids written notification of the concentration of total nitrogen (as N on a dry weight basis) in the bulk biosolids.

E. Application of biosolids to the land.

1. The person who applies biosolids to the land shall obtain information needed to comply with the requirements in this subpart.

2. Before bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B 2 is applied to the land:

a. The person who proposes to apply the bulk biosolids shall contact the department to determine whether bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B 2 has been applied to the site since July 20, 1993.

b. If bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B 2 has not been applied to the site since July 20, 1993, the cumulative amount for each pollutant listed in Table 2 of 9VAC25-31-540 may be applied to the site in accordance with 9VAC25-31-540 A 2 a.

c. If bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B 2 has been applied to the site since July 20, 1993, and the cumulative amount of each pollutant applied to the site in the bulk biosolids since that date is known, the cumulative amount of each pollutant applied to the site shall be used to determine the additional amount of each pollutant that can be applied to the site in accordance with 9VAC25-31-540 A 2 a.

d. If bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B 2 has been applied to the site since July 20, 1993, and the cumulative amount of each pollutant applied to the site in the bulk biosolids since that date is not known, an additional amount of each pollutant shall not be applied to the site in accordance with 9VAC25-31-540 A 2 a.

F. When a person who prepares bulk biosolids provides the bulk biosolids to a person who applies the bulk biosolids to the land, the person who prepares the bulk biosolids shall provide the person who applies the biosolids notice and necessary information to comply with the requirements in this article.

G. When a person who prepares biosolids provides the biosolids to another person who prepares the biosolids, the person who provides the biosolids shall provide the person who receives the biosolids notice and necessary information to comply with the requirements in this article.

H. The person who applies bulk biosolids to the land shall provide the owner or lease holder of the land on which the bulk biosolids is applied notice and necessary information to comply with the requirements in this article.

I. Any person who prepares bulk biosolids in another state that is applied to land in Virginia shall provide written notice to the department prior to the initial application of bulk biosolids to the land application site by the applier. The notice shall include:

1. The location, by either street address or latitude and longitude, of each land application site;

2. The approximate time period bulk biosolids will be applied to the site;

3. The name, address, telephone number, and National Pollutant Discharge Elimination System permit number (if appropriate) for the person who prepares the bulk biosolids; and

4. The name, address, telephone number, and National (or Virginia) Pollutant Discharge Elimination System permit number (if appropriate) for the person who will apply the bulk biosolids.

J. Any person who applies bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-31-540 B 2 to the land shall provide written notice, prior to the initial application of bulk biosolids to a land application site by the applier, to the department and the department shall retain and provide access to the notice. The notice shall include:

1. The location, by either street address or latitude and longitude, of the land application site; and

2. The name, address, telephone number, and Virginia Pollutant Discharge Elimination System permit number (if appropriate) of the person who will apply the bulk biosolids.

K. Any person who land applies, markets, or distributes biosolids must do so in accordance with the requirements in 9VAC25-31-465.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-31-540 Pollutant limits

A. Biosolids.

1. Bulk biosolids or biosolids sold or given away in a bag or other container shall not be applied to the land if the concentration of any pollutant in the biosolids exceeds the ceiling concentration for the pollutant in Table 1 of this section.

2. If bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site, either:

a. The cumulative loading rate for each pollutant shall not exceed the cumulative pollutant loading rate for the pollutant in Table 2 of this section; or

b. The concentration of each pollutant in the biosolids shall not exceed the concentration for the pollutant in Table 3 of this section.

3. If bulk biosolids is applied to a lawn or a home garden, the concentration of each pollutant in the biosolids shall not exceed the concentration for the pollutant in Table 3 of this section.

4. If biosolids is sold or given away in a bag or other container for application to the land, either:

a. The concentration of each pollutant in the biosolids shall not exceed the concentration for the pollutant in Table 3 of this section; or

b. The product of the concentration of each pollutant in the biosolids and the annual whole sludge application rate for the biosolids shall not cause the annual pollutant loading rate for the pollutant in Table 4 of this section to be exceeded. The procedure used to determine the annual whole sludge application rate is presented in subsection D of this section.

5. Biosolids that are land applied, marketed, or distributed must satisfy the requirements in 9VAC25-31-465.

B. Pollutant concentrations and loading rates - biosolids.

| TABLE 1 CEILING CONCENTRATIONS | | | --- | --- | | Pollutant | Ceiling Concentration (milligrams per kilogram)* | | Arsenic | 75 | | Cadmium | 85 | | Copper | 4,300 | | Lead | 840 | | Mercury | 57 | | Molybdenum | 75 | | Nickel | 420 | | Selenium | 100 | | Zinc | 7,500 | | *Dry weight basis | |

| TABLE 2 CUMULATIVE POLLUTANT LOADING RATES⁽¹⁾ | | | | --- | --- | --- | | Pollutant | Cumulative Pollutant Loading Rate | | | (kilograms per hectare) | (pounds per acre) | | | Arsenic⁽²⁾ | 41 | 36 | | Cadmium | 39 | 35 | | Copper | 1,500 | 1,340 | | Lead | 300 | 270 | | Mercury | 17 | 16 | | Molybdenum⁽²⁾ | | | | Nickel | 420 | 375 | | Selenium | 100 | 89 | | Zinc | 2,800 | 2,500 | | Notes: ⁽¹⁾Such total applications to be made on soils with the biosolids/soil mixture pH adjusted to 6.0 or greater if the biosolids cadmium content is greater than or equal to 21 mg/kg. The maximum cumulative application rate is limited for all ranges of cation exchange capacity due to soil background pH in Virginia of less than 6.5 and lack of regulatory controls of soil pH adjustment after biosolids application ceases. ⁽²⁾The maximum cumulative application rate is currently under study by EPA. Research suggests that for Molybdenum a cumulative pollutant loading rate below 40 kg/hectare may be appropriate to reduce the risk of copper deficiency in grazing animals. | | |

| TABLE 3 POLLUTANT CONCENTRATIONS | | | --- | --- | | Pollutant | Monthly Average Concentration (milligrams per kilogram)* | | Arsenic | 41 | | Cadmium | 39 | | Copper | 1,500 | | Lead | 300 | | Mercury | 17 | | Molybdenum⁽¹⁾ | | | Nickel | 420 | | Selenium | 100 | | Zinc | 2,800 | | *Dry weight basis Note: ⁽¹⁾The monthly average concentration is currently under study by EPA. Research suggests that a monthly average Molybdenum concentration below 40 mg/kg may be appropriate to reduce the risk of copper deficiency in grazing animals. | |

| TABLE 4 ANNUAL POLLUTANT LOADING RATES | | | | --- | --- | --- | | Pollutant | Annual Pollutant Loading Rate⁽¹⁾ (per 365-day period) | | | (kilograms per hectare) | (pounds per acre) | | | Arsenic | 2.0 | 1.8 | | Cadmium | 1.9 | 1.7 | | Copper | 75 | 67 | | Lead | 15 | 13 | | Mercury | 0.85 | 0.76 | | Molybdenum⁽²⁾ | | | | Nickel | 21 | 19 | | Selenium | 5.0 | 4.6 | | Zinc | 140 | 125 | | Notes: ⁽¹⁾Such total applications to be made on soils with the biosolids/soils mixture pH adjusted to 6.0 or greater if the biosolids cadmium content is greater than or equal to 21 mg/kg. The maximum cumulative application rate is limited for all ranges of cation exchange capacity due to soil pH in Virginia of less than 6.5 and lack of regulatory controls of soil pH adjustment after biosolids application ceases. ⁽²⁾The maximum cumulative application rate is currently under study by EPA. | | |

C. Domestic septage. The annual application rate for domestic septage applied to agricultural land, forest, or a reclamation site shall not exceed the annual application rate calculated using equation (1).

| EQUATION (1) | | --- | | AAR = N/0.0026 | | AAR = Annual application rate in gallons per acre per 365-day period. | | N = Amount of nitrogen in pounds per acre per 365-day period needed by the crop or vegetation grown on the land. |

D. Procedures to determine the annual whole sludge application rate for biosolids. 9VAC25-31-540 A 4 b requires that the product of the concentration for each pollutant listed in Table 4 of this section in biosolids sold or given away in a bag or other container for application to the land and the AWSAR for the biosolids not cause the annual pollutant loading rate for the pollutant in Table 4 to be exceeded. This section contains the procedure used to determine the AWSAR for a biosolids that does not cause the annual pollutant loading rates in Table 4 of this section to be exceeded.

1. The relationship between the APLR for a pollutant and the AWSAR for a biosolids is shown in equation (2).

| EQUATION (2) | | --- | | APLR = C x AWSAR x 0.001 | | APLR = Annual pollutant loading rate in kilograms per hectare per 365-day period | | C = Pollutant concentration in milligrams per kilogram of total solids (dry weight basis) | | AWSAR = Annual whole sludge application rate in metric tons per hectare per 365-day period (dry weight basis) | | 0.001 = A conversion factor |

2. To determine the AWSAR, equation (2) is rearranged into equation (3):

| EQUATION (3) | | --- | | AWSAR = APLR/(C x 0.001) | | AWSAR = Annual whole sludge application rate in metric tons per hectare per 365-day period (dry weight basis) | | APLR = Annual pollutant loading rate in kilograms per hectare per 365-day period | | C = Pollutant concentration in milligrams per kilogram of total solids (dry weight basis) | | 0.001 = A conversion factor |

3. The procedure used to determine the AWSAR for a biosolids is presented in this subdivision 3.

a. Analyze a sample of the biosolids to determine the concentration for each of the pollutants listed in Table 4 of this section in the biosolids.

b. Using the pollutant concentrations from Step 1 and the APLRs from Table 4 of this section, calculate an AWSAR for each pollutant using equation (3).

c. The AWSAR for the biosolids is the lowest AWSAR calculated in subdivision 3 b of this section.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-31-543 Soils monitoring

A. Soil shall be sampled and analyzed prior to biosolids application to determine site suitability and to provide background data. No sample analysis used to determine application rates shall be more than three years old at the time of biosolids land application. Soil shall be sampled and analyzed in accordance with Table 1 of this section. Reduced monitoring may also apply to one-time biosolids applications to forest or reclaimed lands. For background analysis, random composite soil samples from the zone of incorporation are required for infrequent applications and frequent applications at less than agronomic rates (total less than 15 dry tons per acre).

| TABLE 1 SOIL TEST PARAMETERS FOR LAND APPLICATION SITES¹ | | --- | | Parameter | | Soil pH (Std. Units) | | Available phosphorus (ppm)² | | Extractable potassium (ppm) | | Extractable sodium (mg/100g)³ | | Extractable calcium (mg/100g) | | Extractable magnesium (mg/100g) | | Zinc (ppm) | | Manganese (ppm) | | ¹Note: Unless otherwise stated, analyses shall be reported on a dry weight basis. ²Available P shall be analyzed using one of the following methods: Mehlich I or Mehlich III. ³Extractable sodium shall be analyzed only where biosolids known to be high in sodium will be land applied. |

B. The department reserves the right to require the permit holder to conduct additional soil monitoring including, but not limited to, additional parameters, based on site-specific history or conditions.

C. Samples shall be collected in accordance with § 10.1-104.2 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-547 Groundwater monitoring

A. Monitoring wells may be required by the department for land treatment sites, sludge lagoons, biosolids land application sites, or biosolids storage facilities to monitor groundwater quality.

B. If groundwater monitoring is required, a groundwater monitoring plan shall be submitted to the department for approval that includes at a minimum:

1. Geologic and hydrologic conditions at the site;

2. Monitoring well design, placement, and construction;

3. Sampling frequency;

4. Sampling procedures, including quality assurance and quality control; and

5. Collection of background samples.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-550 Management practices

A. All biosolids land application activities shall comply with the operational requirements of Part IX (9VAC25-32-303 et seq.) of 9VAC25-32 (Biosolids Program of the VPA Permit Regulation).

B. Bulk biosolids shall not be applied to the land if it is likely to adversely affect a threatened or endangered species listed in 9VAC25-260-320 or § 4 of the Endangered Species Act (16 USC § 1533) or if the land application is likely to adversely affect its designated critical habitat.

C. Bulk biosolids shall not be applied to agricultural land, forest, a public contact site, or a reclamation site that is flooded, frozen, or snow-covered so that the bulk biosolids enters a wetland or other surface waters except as provided in a VPDES permit or a permit issued pursuant to § 404 of the CWA.

D. Bulk biosolids shall not be applied to agricultural land, forest, or a reclamation site that is 10 meters or less from surface waters, unless otherwise specified by the department.

E. Bulk biosolids shall be applied to agricultural land, forest, a public contact site, or a reclamation site at a whole sludge application rate that is equal to or less than the agronomic rate for the bulk biosolids, unless, in the case of a reclamation site, otherwise specified by the department.

F. Either a label shall be affixed to the bag or other container in which biosolids that is sold or given away for application to the land, or an information sheet shall be provided to the person who receives biosolids sold or given away in a bag or other container for application to the land. The label or information sheet shall contain the following information:

1. The name and address of the person who prepared the biosolids that is sold or given away in a bag or other container for application to the land;

2. A statement that application of the biosolids to the land is prohibited except in accordance with the instructions on the label or information sheet; and

3. The annual whole sludge application rate for the biosolids that does not cause any of the annual pollutant loading rates in Table 4 of 9VAC25-31-540 to be exceeded.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-560 Operational standards, pathogens, and vector attraction reduction

A. Pathogens - biosolids.

1. The Class A pathogen requirements in 9VAC25-31-710 A or the Class B pathogen requirements and site restrictions in 9VAC25-31-720 B shall be met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site.

2. The Class A pathogen requirements in 9VAC25-31-710 A shall be met when bulk biosolids is applied to a lawn or a home garden.

3. The Class A pathogen requirements in 9VAC25-31-710 A shall be met when biosolids is sold or given away in a bag or other container for application to the land.

B. Pathogens - domestic septage. The requirements in 9VAC25-31-710 C shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site.

C. Vector attraction reduction - biosolids.

1. One of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 10 shall be met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site.

2. One of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8 shall be met when bulk biosolids is applied to a lawn or a home garden.

3. One of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8 shall be met when biosolids is sold or given away in a bag or other container for application to the land.

D. Vector attraction reduction - domestic septage. The vector attraction reduction requirements in 9VAC25-31-720 B 9, B 10, or B 12 shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-570 Frequency of monitoring

A. Biosolids.

1. The frequency of monitoring for the pollutants listed in Tables 1 through 4 of 9VAC25-31-540; the pathogen density requirements in 9VAC25-31-710 A and B 2 through B 4; and the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 4, B 7 and B 8 shall be the frequency in Table 1 of this section.

| TABLE 1 FREQUENCY OF MONITORING--LAND APPLICATION | | | --- | --- | | Amount of biosolids* (metric tons per 365-day period) | Frequency | | Greater than zero but less than 290 | once per year | | Equal to or greater than 290 but less than 1,500 | once per quarter (four times a year) | | Equal to or greater than 1,500 but less than 15,000 | once per 60 days (six times per year) | | Equal to or greater than 15,000 | once per month (12 times per year) | | *Either the amount of bulk biosolids applied to the land or the amount of biosolids prepared for sale or give-away in a bag or other container for application to the land (dry weight basis). | |

2. After the biosolids has been monitored for two years at the frequency in Table 1 of this section, the department may reduce the frequency of monitoring for pollutant concentrations and for the pathogen density requirements in 9VAC25-31-710 A 5 b and c.

B. Domestic septage. If either the pathogen requirements in 9VAC25-31-710 C 2 or the vector attraction reduction requirements in 9VAC25-31-720 B 12 are met when domestic septage is applied to agricultural land, forest, or a reclamation site, each container of domestic septage applied to the land shall be monitored for compliance with those requirements.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-580 Recordkeeping

A. Biosolids.

1. The person who prepares the biosolids in 9VAC25-31-510 B 1 or E shall develop the following information and shall retain the information for five years:

a. The concentration of each pollutant listed in Table 3 of 9VAC25-31-540 in the biosolids;

b. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the Class A pathogen requirements in 9VAC25-31-710 A and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

c. A description of how the Class A pathogen requirements in 9VAC25-31-710 A are met; and

d. A description of how one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8 is met.

2. The person who derives the material in 9VAC25-31-510 C 1 or in 9VAC25-31-510 F shall develop the following information and shall retain the information for five years:

a. The concentration of each pollutant listed in Table 3 of 9VAC25-31-540 in the material;

b. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the Class A pathogen requirements in 9VAC25-31-710 A and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

c. A description of how the Class A pathogen requirements in 9VAC25-31-710 A are met; and

d. A description of how one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8 is met.

3. If the pollutant concentrations in 9VAC25-31-540 B 3, the Class A pathogen requirements in 9VAC25-31-710 A, and the vector attraction reduction requirements in either 9VAC25-31-720 B 9 or B 10 are met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site:

a. The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The concentration of each pollutant listed in Table 3 of 9VAC25-31-540 in the bulk biosolids;

(2) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the pathogen requirements in 9VAC25-31-710 A was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."; and

(3) A description of how the pathogen requirements in 9VAC25-31-710 A are met.

b. The person who applies the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-31-550 and the vector attraction reduction requirement in (insert either 9VAC25-31-720 B 9 or B 10) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fine and imprisonment.";

(2) A description of how the management practices in 9VAC25-31-550 are met for each site on which bulk biosolids is applied; and

(3) A description of how the vector attraction reduction requirements in either 9VAC25-31-720 B 9 or B 10 are met for each site on which bulk biosolids is applied.

4. If the pollutant concentrations in 9VAC25-31-540 B 3 and the Class B pathogen requirements in 9VAC25-31-710 B are met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site:

a. The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The concentration of each pollutant listed in Table 3 of 9VAC25-31-540 in the bulk biosolids;

(2) The following certification statement:

"I certify under, penalty of law, that the information that will be used to determine compliance with the Class B pathogen requirements in 9VAC25-31-710 B and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8, if one of those requirements is met) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

(3) A description of how the Class B pathogen requirements in 9VAC25-31-710 B are met; and

(4) When one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8 is met, a description of how the vector attraction reduction requirement is met.

b. The person who applies the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-31-550, the site restrictions in 9VAC25-31-710 B 5, and the vector attraction reduction requirements in (insert either 9VAC25-31-720 B 9 or B 10, if one of those requirements is met) was prepared for each site on which bulk biosolids is applied under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

(2) A description of how the management practices in 9VAC25-31-550 are met for each site on which bulk biosolids is applied;

(3) A description of how the site restrictions in 9VAC25-31-710 B 5 are met for each site on which bulk biosolids is applied;

(4) When the vector attraction reduction requirement in either 9VAC25-31-720 B 9 or B 10 is met, a description of how the vector attraction reduction requirement is met; and

(5) The date bulk biosolids is applied to each site.

5. If the requirements in 9VAC25-31-540 A 2 a are met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site:

a. The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The concentration of each pollutant listed in Table 1 of 9VAC25-31-540 in the bulk biosolids;

(2) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the pathogen requirements in (insert either 9VAC25-31-710 A or B and the vector attraction reduction requirement in insert one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8, if one of those requirements is met) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

(3) A description of how the pathogen requirements in either 9VAC25-31-710 A or B are met; and

(4) When one of the vector attraction requirements in 9VAC25-31-720 B 1 through B 8 is met, a description of how the vector attraction requirement is met.

b. The person who applies the bulk biosolids shall develop the following information, retain the information in 9VAC25-31-580 A 5 b (1) through b (7) indefinitely, and retain the information in 9VAC25-31-580 A 5 b (8) through b (13) for five years:

(1) The location, by either street address or latitude and longitude, of each site on which bulk biosolids is applied;

(2) The number of hectares in each site on which bulk biosolids is applied;

(3) The date bulk biosolids is applied to each site;

(4) The cumulative amount of each pollutant (i.e., kilograms) listed in Table 2 of 9VAC25-31-540 in the bulk biosolids applied to each site, including the amount in 9VAC25-31-530 E 2 c;

(5) The amount of biosolids (i.e., metric tons) applied to each site;

(6) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the requirements to obtain information in 9VAC25-31-530 E 2 was prepared for each site on which bulk biosolids is applied under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fine and imprisonment.";

(7) A description of how the requirements to obtain information in 9VAC25-31-530 E 2 are met;

(8) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-31-550 was prepared for each site on which bulk biosolids is applied under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fine and imprisonment.";

(9) A description of how the management practices in 9VAC25-31-550 are met for each site on which bulk biosolids is applied;

(10) The following certification statement when the bulk biosolids meets the Class B pathogen requirements in 9VAC25-31-710 B:

"I certify, under penalty of law, that the information that will be used to determine compliance with the site restrictions in 9VAC25-31-710 B 5 was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fine and imprisonment.";

(11) A description of how the site restrictions in 9VAC25-31-710 B 5 are met for each site on which Class B bulk biosolids is applied;

(12) The following certification statement when the vector attraction reduction requirement in either 9VAC25-31-720 B 9 or B 10 is met:

"I certify, under penalty of law, that the information that will be used to determine compliance with the vector attraction reduction requirement in (insert either 9VAC25-31-720 B 9 or B 10) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."; and

(13) If the vector attraction reduction requirements in either 9VAC25-31-720 B 9 or B 10 are met, a description of how the requirements are met.

6. If the requirements in 9VAC25-31-540 A 4 b are met when biosolids is sold or given away in a bag or other container for application to the land, the person who prepares the biosolids that is sold or given away in a bag or other container shall develop the following information and shall retain the information for five years:

a. The annual whole sludge application rate for the biosolids that does not cause the annual pollutant loading rates in Table 4 of 9VAC25-31-540 to be exceeded;

b. The concentration of each pollutant listed in Table 4 of 9VAC25-31-540 in the biosolids;

c. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practice in 9VAC25-31-550 E, the Class A pathogen requirement in 9VAC25-31-710 A, and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

d. A description of how the Class A pathogen requirements in 9VAC25-31-710 A are met; and

e. A description of how one of the vector attraction requirements in 9VAC25-31-720 B 1 through B 8 is met.

B. Domestic septage. When domestic septage is applied to agricultural land, forest, or a reclamation site, the person who applies the domestic septage shall develop the following information and shall retain the information for five years:

1. The location, by either street address or latitude and longitude, of each site on which domestic septage is applied;

2. The number of acres in each site on which domestic septage is applied;

3. The date domestic septage is applied to each site;

4. The nitrogen and phosphorus requirement for the crop or vegetation grown on each site during a 365-day period;

5. The rate, in gallons per acre per 365-day period, at which domestic septage is applied to each site;

6. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the pathogen requirements in (insert either 9VAC25-31-710 C 1 or 2) and the vector attraction reduction requirements in (insert 9VAC25-31-720 B 9, 10, or 12) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

7. A description of how the pathogen requirements in either 9VAC25-31-710 C 1 or 2 are met; and

8. A description of how the vector attraction reduction requirements in 9VAC25-31-720 B 9, 10, or 12 are met.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-590 Reporting

A. Class I sludge management facilities, POTWs with a design flow rate equal to or greater than one million gallons per day, and POTWs that serve 10,000 people or more shall submit the following information to the department:

1. The information in 9VAC25-31-580 A, except the information in 9VAC25-31-580 A 3 b, 4 b and 5 b, for the appropriate requirements on February 19 of each year for the previous calendar year's activity; and

2. The information in 9VAC25-31-580 A 5 b (1) through (7) on February 19 of each year for the previous calendar year's activity when 90% or more of any of the cumulative pollutant loading rates in Table 2 of 9VAC25-31-540 is reached at a land application site.

B. An activity report shall be submitted (electronically or postmarked) to the department by the 15th of each month for land application activity that occurred in the previous calendar month, unless another date is specified in the permit in accordance with 9VAC25-32-80 I 4. The report shall indicate those sites where land application activities took place during the previous month. If no land application occurs under a permit during the calendar month, a report shall be submitted stating that no land application occurred.

C. Records shall be maintained documenting the required treatment and quality characteristics and the maximum allowable land application loading rates established for biosolids use. In addition, operational monitoring results shall verify that required sludge treatment has achieved the specified levels of pathogen control and vector attraction reductions (9VAC25-31-710 and 9VAC25-31-720). Adequate records of biosolids composition, treatment classification, and biosolids application rates and methods of application for each site shall be maintained by the generator and owner.

D. The generator and owner shall maintain the records for a minimum period of five years. Sites receiving frequent applications of biosolids that meet or exceed maximum cumulative constituent loadings and dedicated disposal sites should be properly referenced for future land transactions (Sludge Disposal Site Dedication Form).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 29, Issue 24, eff. September 1, 2013.

Article 3 Surface Disposal

9VAC25-31-600 Applicability

Article 3 Surface Disposal

A. This article applies to any person who prepares sewage sludge that is placed on a surface disposal site, to the owner/operator of a surface disposal site, to sewage sludge placed on a surface disposal site, and to a surface disposal site.

B. This article does not apply to sewage sludge stored on the land or to the land on which sewage sludge is stored. It also does not apply to sewage sludge that remains on the land for longer than two years when the person who prepares the sewage sludge demonstrates that the land on which the sewage sludge remains is not an active sewage sludge unit. The demonstration shall include the following information, which shall be retained by the person who prepares the sewage sludge for the period that the sewage sludge remains on the land:

1. The name and address of the person who prepares the sewage sludge;

2. The name and address of the person who either owns the land or leases the land;

3. The location, by either street address or latitude and longitude, of the land;

4. An explanation of why sewage sludge needs to remain on the land for longer than two years prior to final use or disposal; and

5. The approximate time period when the sewage sludge will be used or disposed.

C. This article does not apply to sewage sludge treated on the land or to the land on which sewage sludge is treated.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-610 [Reserved]. (Reserved)

9VAC25-31-620 General requirements

A. No person shall place sewage sludge on an active sewage sludge unit unless the requirements in this article are met.

B. An active sewage sludge unit located within 60 meters of a fault that has displacement in Holocene time; located in an unstable area; or located in a wetland, except as provided in a permit issued pursuant to the law and § 402 or 404 of the CWA, shall close by March 22, 1994, unless, in the case of an active sewage sludge unit located within 60 meters of a fault that has displacement in Holocene time, otherwise specified by the department.

C. The owner/operator of an active sewage sludge unit shall submit a written closure and post closure plan to the department 180 days prior to the date that the active sewage sludge unit closes. The plan shall describe how the sewage sludge unit will be closed and, at a minimum, shall include:

1. A discussion of how the leachate collection system will be operated and maintained for three years after the sewage sludge unit closes if the sewage sludge unit has a liner and leachate collection system;

2. A description of the system used to monitor for methane gas in the air in any structures within the surface disposal site and in the air at the property line of the surface disposal site, as required in 9VAC25-31-640 J 2; and

3. A discussion of how public access to the surface disposal site will be restricted for three years after the last sewage sludge unit in the surface disposal site closes.

D. The owner of a surface disposal site shall provide written notification to the subsequent owner of the site that sewage sludge was placed on the land.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-630 Pollutant limits (other than domestic septage)

A. Active sewage sludge unit without a liner and leachate collection system.

1. Except as provided in subdivision A 2 and subsection B of this section, the concentration of each pollutant listed in Table 1 of this section in sewage sludge placed on an active sewage sludge unit shall not exceed the concentration for the pollutant in Table 1 of this section.

| TABLE 1. POLLUTANT CONCENTRATIONS--ACTIVE SEWAGE SLUDGE UNIT WITHOUT A LINER AND LEACHATE COLLECTION | | | --- | --- | | Pollutant Concentration | Concentration (milligrams per kilogram*) | | Arsenic | 73 | | Chromium | 600 | | Nickel | 420 | | *Dry weight basis | |

2. Except as provided in subsection B of this section, the concentration of each pollutant listed in Table 1 of this section in sewage sludge placed on an active sewage sludge unit whose boundary is less than 150 meters from the property line of the surface disposal site shall not exceed the concentration determined using the following procedure.

a. The actual distance from the active sewage sludge unit boundary to the property line of the surface disposal site shall be determined.

b. The concentration of each pollutant listed in Table 2 of this section in the sewage sludge shall not exceed the concentration in Table 2 of this section that corresponds to the actual distance in subdivision 2 a of this subsection.

| TABLE 2--POLLUTANT CONCENTRATIONS ACTIVE SEWAGE SLUDGE UNIT WITHOUT A LINER AND LEACHATE COLLECTION SYSTEM THAT HAS A UNIT BOUNDARY TO PROPERTY LINE DISTANCE LESS THAN 150 METERS | | | | | --- | --- | --- | --- | | Unit boundary to property line | Pollutant concentration* | | | | Distance (meters) | Arsenic (mg/kg) | Chromium (mg/kg) | Nickel (mg/kg) | | 0 to less than 25 | 30 | 200 | 210 | | 25 to less than 50 | 34 | 220 | 240 | | 50 to less than 75 | 39 | 260 | 270 | | 75 to less than 100 | 46 | 300 | 320 | | 100 to less than 125 | 53 | 360 | 390 | | 125 to less than 150 | 62 | 450 | 420 | | *Dry weight basis | | | |

B. Active sewage sludge unit without a liner and leachate collection system - site-specific limits.

1. At the time of permit application, the owner/operator of a surface disposal site may request site-specific pollutant limits in accordance with subdivision B 2 of this section for an active sewage sludge unit without a liner and leachate collection system when the existing values for site parameters specified by the department are different from the values for those parameters used to develop the pollutant limits in Table 1 of this section and when the department determines that site-specific pollutant limits are appropriate for the active sewage sludge unit.

2. The concentration of each pollutant listed in Table 1 of this section in sewage sludge placed on an active sewage sludge unit without a liner and leachate collection system shall not exceed either the concentration for the pollutant determined during a site-specific assessment, as specified by the department, or the existing concentration of the pollutant in the sewage sludge, whichever is lower.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-640 Management practices

A. Sewage sludge shall not be placed on an active sewage sludge unit if it is likely to adversely affect a threatened or endangered species listed in 9VAC25-260-320 or § 4 of the Endangered Species Act (16 USC § 1533 et seq.) or its designated critical habitat.

B. An active sewage sludge unit shall not restrict the flow of a base flood.

C. When a surface disposal site is located in a seismic impact zone, an active sewage sludge unit shall be designed to withstand the maximum recorded horizontal ground level acceleration.

D. An active sewage sludge unit shall be located 60 meters or more from a fault that has displacement in Holocene time, unless otherwise specified by the department.

E. An active sewage sludge unit shall not be located in an unstable area.

F. An active sewage sludge unit shall not be located in a wetland, except as provided in a permit issued by the department.

G. 1. Run-off from an active sewage sludge unit shall be collected and shall be disposed in accordance with this chapter and any other applicable requirements.

2. The run-off collection system for an active sewage sludge unit shall have the capacity to handle run-off from a 24-hour, 25-year storm event.

H. The leachate collection system for an active sewage sludge unit that has a liner and leachate collection system shall be operated and maintained during the period the sewage sludge unit is active and for three years after the sewage sludge unit closes.

I. Leachate from an active sewage sludge unit that has a liner and leachate collection system shall be collected and shall be disposed in accordance with the applicable requirements during the period the sewage sludge unit is active and for three years after the sewage sludge unit closes.

J. When a cover is placed on an active sewage sludge unit, the concentration of methane gas in air in any structure within the surface disposal site shall not exceed 25% of the lower explosive limit for methane gas during the period that the sewage sludge unit is active and the concentration of methane gas in air at the property line of the surface disposal site shall not exceed the lower explosive limit for methane gas during the period that the sewage sludge unit is active.

When a final cover is placed on a sewage sludge unit at closure, the concentration of methane gas in air in any structure within the surface disposal site shall not exceed 25% of the lower explosive limit for methane gas for three years after the sewage sludge unit closes and the concentration of methane gas in air at the property line of the surface disposal site shall not exceed the lower explosive limit for methane gas for three years after the sewage sludge unit closes, unless otherwise specified by the department.

K. A food crop, a feed crop, or a fiber crop shall not be grown on an active sewage sludge unit unless the owner/operator of the surface disposal site demonstrates to the department that through management practices, public health and the environment are protected from any reasonably anticipated adverse effects of pollutants in sewage sludge when crops are grown.

L. Animals shall not be grazed on an active sewage sludge unit unless the owner/operator of the surface disposal site demonstrates to the department that through management practices, public health and the environment are protected from any reasonably anticipated adverse effects of pollutants in sewage sludge when animals are grazed.

M. Public access to a surface disposal site shall be restricted for the period that the surface disposal site contains an active sewage sludge unit and for three years after the last active sewage sludge unit in the surface disposal site closes.

N. Sewage sludge placed on an active sewage sludge unit shall not contaminate an aquifer. Results of a groundwater monitoring program developed by a qualified groundwater scientist or a certification by a qualified groundwater scientist shall be used to demonstrate that sewage sludge placed on an active sewage sludge unit does not contaminate an aquifer.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-650 Operational standards - pathogens and vector attraction reduction

A. Pathogens-sewage sludge (other than domestic septage). The Class A pathogens requirements in 9VAC25-31-710 A or one of the Class B pathogen requirements in 9VAC25-31-710 B 2 through B 4 shall be met when sewage sludge is placed on an active sewage sludge unit, unless the vector attraction reduction requirement in 9VAC25-31-720 B 11 is met.

B. Vector attraction reduction - sewage sludge (other than domestic septage). One of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 11 shall be met when sewage sludge is placed on an active sewage sludge unit.

C. Vector attraction reduction - domestic septage. One of the vector attraction reduction requirement in 9VAC25-31-720 B 9 through B 12 shall be met when domestic septage is placed on an active sewage sludge unit.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-660 Frequency of monitoring

A. Sewage sludge (other than domestic septage).

1. The frequency of monitoring for the pollutants in Tables 1 and 2 of 9VAC25-31-630; the pathogen density requirements in 9VAC25-31-710 A and in 9VAC25-31-710 B 2; and the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 4, B 7 and B 8 for sewage sludge placed on an active sewage sludge unit shall be the frequency in Table 1 of this section.

| TABLE 1 FREQUENCY OF MONITORING--SURFACE DISPOSAL | | | --- | --- | | Amount of sewage sludge* (metric tons per 365-day period) | Frequency | | Greater than zero but less than 290 | once per year | | Equal to or greater than 290 but less than 1,500 | once per quarter (four times per year) | | Equal to or greater than 1,500 but less than 15,000 | once per 60 days (six times per year) | | Equal to or greater than 15,000 | once per month (12 times per year) | | *Amount of sewage sludge placed on an active sewage sludge unit (dry weight basis). | |

2. After the sewage sludge has been monitored for two years at the frequency in Table 1 of this section, the department may reduce the frequency of monitoring for pollutant concentrations and for the pathogen density requirements in 9VAC25-31-710 A 5 b and c.

B. Domestic septage. If the vector attraction reduction requirements in 9VAC25-31-720 B 12 are met when domestic septage is placed on an active sewage sludge unit, each container of domestic septage shall be monitored for compliance with those requirements.

C. Air. Air in structures within a surface disposal site and at the property line of the surface disposal site shall be monitored continuously for methane gas during the period that the surface disposal site contains an active sewage sludge unit on which the sewage sludge is covered and for three years after a sewage sludge unit closes when a final cover is placed on the sewage sludge.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-670 Recordkeeping

A. When sewage sludge (other than domestic septage) is placed on an active sewage sludge unit:

1. The person who prepares the sewage sludge shall develop the following information and shall retain the information for five years:

a. The concentration of each pollutant listed in Table 1 of 9VAC25-31-630 in the sewage sludge when the pollutant concentrations in Table 1 of 9VAC25-31-630 are met;

b. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the pathogen requirements in (insert 9VAC25-31-710 A, B 2, B 3, or B 4 when one of those requirements is met) and the vector attraction reduction requirements in (insert one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8 when one of those requirements is met) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

c. A description of how the pathogen requirements in 9VAC25-31-710 A, B 2, B 3, or B 4 are met when one of those requirements is met; and

d. A description of how one of the vector attraction reduction requirements in 9VAC25-31-720 B 1 through B 8 is met when one of those requirements is met.

2. The owner/operator of the surface disposal site shall develop the following information and shall retain that information for five years:

a. The concentration of each pollutant listed in Table 2 of 9VAC25-31-630 in the sewage sludge when the pollutant concentrations in Table 2 of 9VAC25-31-630 are met or when site-specific pollutant limits in 9VAC25-31-630 B are met;

b. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-31-640 and the vector attraction reduction requirement in (insert one of the requirements in 9VAC25-31-720 B 9 through B 11, if one of those requirements is met) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

c. A description of how the management practices in 9VAC25-31-640 are met; and

d. A description of how the vector attraction reduction requirements in 9VAC25-31-720 B 9 through B 11 are met, if one of those requirements is met.

B. When domestic septage is placed on a surface disposal site.

1. If the vector attraction reduction requirements in 9VAC25-31-720 B 12 are met, the person who places the domestic septage on the surface disposal site shall develop the following information and shall retain the information for five years:

a. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the vector attraction reduction requirements in 9VAC25-31-720 B 12 was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment"; and

b. A description of how the vector attraction reduction requirements in 9VAC25-31-720 B 12 are met.

2. The owner/operator of the surface disposal site shall develop the following information and shall retain that information for five years:

a. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-31-640 and the vector attraction reduction requirements in (insert 9VAC25-31-720 B 9 through B 11 when one of those requirements is met) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine or imprisonment.";

b. A description of how the management practices in 9VAC25-31-640 are met; and

c. A description how the vector attraction reduction requirements in 9VAC25-31-720 B 9 through B 11 are met, if one of those requirements is met.

History

• Statutory Authority: § 62.1-44.15 (10) of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000.

9VAC25-31-680 Reporting

Class I sludge management facilities, POTWs with a design flow rate equal to or greater than one million gallons per day, and POTWs that serve 10,000 people or more shall submit the information in 9VAC25-31-670 A to the department on February 19 of each year for the previous year's activity.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

Article 4 Pathogens and Vector Attraction Reduction

9VAC25-31-690 Scope

Article 4 Pathogens and Vector Attraction Reduction

A. This article contains the requirements for biosolids to be classified either Class A or Class B with respect to pathogens.

B. This article contains the site restrictions for land on which a Class B biosolids is applied.

C. This article contains the pathogen requirements for domestic septage applied to agricultural land, forest, or a reclamation site.

D. This article contains alternative vector attraction reduction requirements for biosolids that is applied to the land or sewage sludge that is placed on a surface disposal site.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-700 [Reserved]. (Reserved)

9VAC25-31-710 Pathogens

A. Biosolids - Class A.

1. The requirement in subdivision 2 of this subsection and the requirements in either subdivision 3, 4, 5, 6, 7, or 8 of this subsection shall be met for a biosolids to be classified Class A with respect to pathogens.

2. The Class A pathogen requirements in subdivisions 3 through 8 of this subsection shall be met either prior to meeting or at the same time the vector attraction reduction requirements in 9VAC25-31-720, except the vector attraction reduction requirements in 9VAC25-31-720 B 6 through B 8, are met.

3. Class A - Alternative 1.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F.

b. The temperature of the sewage sludge that is used or disposed shall be maintained at a specific value for a period of time.

(1) When the percent solids of the sewage sludge is 7.0% or higher, the temperature of the sewage sludge shall be 50°C or higher; the time period shall be 20 minutes or longer; and the temperature and time period shall be determined using equation (1), except when small particles of sewage sludge are heated by either warmed gases or an immiscible liquid.

| EQUATION (1) | | --- | | D = 131,700,000/10^0.1400t | | D = time in days | | t = temperature in degrees Celsius |

(2) When the percent solids of the sewage sludge is 7.0% or higher and small particles of sewage sludge are heated by either warmed gases or an immiscible liquid, the temperature of the sewage sludge shall be 50°C or higher; the time period shall be 15 seconds or longer; and the temperature and time period shall be determined using equation (1).

(3) When the percent solids of the sewage sludge is less than 7.0% and the time period is at least 15 seconds, but less than 30 minutes, the temperature and time period shall be determined using equation (1).

(4) When the percent solids of the sewage sludge is less than 7.0%; the temperature of the sewage sludge is 50°C or higher; and the time period is 30 minutes or longer, the temperature and time period shall be determined using equation (2).

| EQUATION (2) | | --- | | D = 50,070,000/10^0.1400t | | D = time in days | | t = temperature in degrees Celsius |

4. Class A - Alternative 2.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F.

b. (1) The pH of the sewage sludge that is used or disposed shall be raised to above 12 and shall remain above 12 for 72 hours.

(2) The temperature of the sewage sludge shall be above 52°C for 12 hours or longer during the period that the pH of the sewage sludge is above 12.

(3) At the end of the 72-hour period during which the pH of the sewage sludge is above 12, the sewage sludge shall be air dried to achieve a percent solids in the sewage sludge greater than 50%.

5. Class A - Alternative 3.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F.

b. (1) The sewage sludge shall be analyzed prior to pathogen treatment to determine whether the sewage sludge contains enteric viruses.

(2) When the density of enteric viruses in the sewage sludge prior to pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to enteric viruses until the next monitoring episode for the sewage sludge.

(3) When the density of enteric viruses in the sewage sludge prior to pathogen treatment is equal to or greater than one Plaque-forming Unit per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to enteric viruses when the density of enteric viruses in the sewage sludge after pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the sewage sludge that meets the enteric virus density requirement are documented.

(4) After the enteric virus reduction in subdivision 5 b (3) of this subsection is demonstrated for the pathogen treatment process, the sewage sludge continues to be Class A with respect to enteric viruses when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in subdivision 5 b (3) of this subsection.

c. (1) The sewage sludge shall be analyzed prior to pathogen treatment to determine whether the sewage sludge contains viable helminth ova.

(2) When the density of viable helminth ova in the sewage sludge prior to pathogen treatment is less than one per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to viable helminth ova until the next monitoring episode for the sewage sludge.

(3) When the density of viable helminth ova in the sewage sludge prior to pathogen treatment is equal to or greater than one per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to viable helminth ova when the density of viable helminth ova in the sewage sludge after pathogen treatment is less than one per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the sewage sludge that meets the viable helminth ova density requirement are documented.

(4) After the viable helminth ova reduction in subdivision 5 c (3) of this subsection is demonstrated for the pathogen treatment process, the sewage sludge continues to be Class A with respect to viable helminth ova when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in subdivision 5 c (3) of this subsection.

6. Class A - Alternative 4.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F.

b. The density of enteric viruses in the biosolids shall be less than one Plaque-forming Unit per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F, unless otherwise specified by the department.

c. The density of viable helminth ova in the biosolids shall be less than one per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F unless otherwise specified by the department.

7. Class A - Alternative 5.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella, sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F.

b. Biosolids that is used or disposed shall be treated in one of the processes to further reduce pathogens described in subsection E of this section.

8. Class A - Alternative 6.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella, sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or give away in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the requirements in 9VAC25-31-510 B, C, E, or F.

b. Biosolids that is used or disposed shall be treated in a process that is equivalent to a process to further reduce pathogens, as determined by the department.

B. Biosolids - Class B.

1. The requirements in either subdivision 3, 4, or 5 of this subsection shall be met for a biosolids to be classified Class B with respect to pathogens.

2. The site restrictions in subdivision 6 of this subsection shall be met when biosolids that meets the Class B pathogen requirements in subdivision 3, 4, or 5 of this subsection is applied to the land.

3. Class B - Alternative 1.

a. Seven representative samples of the biosolids that is used or disposed shall be collected.

b. The geometric mean of the density of fecal coliform in the samples collected in subdivision 3 a of this subsection shall be less than either 2,000,000 Most Probable Number per gram of total solids (dry weight basis) or 2,000,000 Colony Forming Units per gram of total solids (dry weight basis).

4. Class B - Alternative 2. Biosolids that is used or disposed shall be treated in one of the processes to significantly reduce pathogens described in subsection D of this section.

5. Class B - Alternative 3. Biosolids that is used or disposed shall be treated in a process that is equivalent to a process to significantly reduce pathogens, as determined by the department.

6. Site restrictions.

a. Food crops with harvested parts that touch the biosolids/soil mixture and are totally above the land surface shall not be harvested for 14 months after application of biosolids.

b. Food crops with harvested parts below the surface of the land shall not be harvested for 20 months after application of biosolids when the biosolids remains on the land surface for four months or longer prior to incorporation into the soil.

c. Food crops with harvested parts below the surface of the land shall not be harvested for 38 months after application of biosolids when the biosolids remains on the land surface for less than four months prior to incorporation into the soil.

d. Food crops, feed crops, and fiber crops shall not be harvested for 30 days after application of biosolids.

e. Animals shall not be grazed on the land for 30 days after application of biosolids.

f. Turf grown on land where biosolids is applied shall not be harvested for one year after application of the biosolids when the harvested turf is placed on either land with a high potential for public exposure or a lawn, unless otherwise specified by the department.

g. Public access to land with a high potential for public exposure shall be restricted for one year after application of biosolids.

h. Public access to land with a low potential for public exposure shall be restricted for 30 days after application of biosolids.

C. Domestic septage: The site restrictions in subdivision B 6 of this section shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site.

D. Processes to significantly reduce pathogens (PSRP).

1. Aerobic digestion. Sewage sludge is agitated with air or oxygen to maintain aerobic conditions for a specific mean cell residence time at a specific temperature. Values for the mean cell residence time and temperature shall be between 40 days at 20°C and 60 days at 15°C.

2. Air drying. Sewage sludge is dried on sand beds or on paved or unpaved basins. The sewage sludge dries for a minimum of three months. During two of the three months, the ambient average daily temperature is above 0°C.

3. Anaerobic digestion. Sewage sludge is treated in the absence of air for a specific mean cell residence time at a specific temperature. Values for the mean cell residence time and temperature shall be between 15 days at 35°C to 55°C and 60 days at 20°C.

4. Composting. Using either the within-vessel, static aerated pile, or windrow composting methods, the temperature of the sewage sludge is raised to 40°C or higher and remains at 40°C or higher for five days. For four hours during the five days, the temperature in the compost pile exceeds 55°C.

5. Lime stabilization. Sufficient lime is added to the sewage sludge to raise the pH of the sewage sludge to 12 after two hours of contact.

E. Processes to further reduce pathogens (PFRP).

1. Composting. Using either the within-vessel composting method or the static aerated pile composting method, the temperature of the sewage sludge is maintained at 55°C or higher for three days. Using the windrow composting method, the temperature of the sewage sludge is maintained at 55°C or higher for 15 days or longer. During the period when the compost is maintained at 55°C or higher, there shall be a minimum of five turnings of the windrow.

2. Heat drying. Sewage sludge is dried by direct or indirect contact with hot gases to reduce the moisture content of the sewage sludge to 10.0% or lower. Either the temperature of the sewage sludge particles exceeds 80°C or the wet bulb temperature of the gas in contact with the sewage sludge as the sewage sludge leaves the dryer exceeds 80°C.

3. Heat treatment. Liquid sewage sludge is heated to a temperature of 180°C or higher for 30 minutes.

4. Thermophilic aerobic digestion. Liquid sewage sludge is agitated with air or oxygen to maintain aerobic conditions and the mean cell residence time of the sewage sludge is 10 days at 55°C to 60°C.

5. Beta ray irradiation. Sewage sludge is irradiated with beta rays from an accelerator at dosages of at least 1.0 megarad at room temperature (ca. 20°C).

6. Gamma ray irradiation. Sewage sludge is irradiated with gamma rays from certain isotopes, such as Cobalt 60 and Cesium 137, at dosages of at least 1.0 megarad at room temperature (ca. 20°C).

7. Pasteurization. The temperature of the sewage sludge is maintained at 70°C or higher for 30 minutes or longer.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-720 Vector attraction reduction

A. Vector attraction reduction requirements:

1. One of the vector attraction reduction requirements in subdivisions B 1 through B 10 of this section shall be met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site.

2. One of the vector attraction reduction requirements in subdivisions B 1 through B 8 of this section shall be met when bulk biosolids is applied to a lawn or a home garden.

3. One of the vector attraction reduction requirements in subdivisions B 1 through B 8 of this section shall be met when biosolids is sold or given away in a bag or other container for application to the land.

4. One of the vector attraction reduction requirements in subdivisions B 1 through B 11 of this section shall be met when sewage sludge (other than domestic septage) is placed on an active sewage sludge unit.

5. One of the vector attraction reduction requirements in subdivision B 9, B 10, or B 12 of this section shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site and one of the vector attraction reduction requirements in subdivisions B 9 through B 12 of this section shall be met when domestic septage is placed on an active sewage sludge unit.

B. Vector attraction reduction options:

1. The mass of volatile solids in the sewage sludge shall be reduced by a minimum of 38%, calculated according to the method in 9VAC25-31-490 B 8.

2. When the 38% volatile solids reduction requirement in subdivision 1 of this subsection cannot be met for an anaerobically digested sewage sludge, vector attraction reduction can be demonstrated by digesting a portion of the previously digested sewage sludge anaerobically in the laboratory in a bench-scale unit for 40 additional days at a temperature between 30°C and 37°C. When at the end of the 40 days, the volatile solids in the sewage sludge at the beginning of that period is reduced by less than 17%, vector attraction reduction is achieved.

3. When the 38% volatile solids reduction requirement in subdivision 1 of this section cannot be met for an aerobically digested sewage sludge, vector attraction reduction can be demonstrated by digesting a portion of the previously digested sewage sludge that has a percent solids of 2.0% or less aerobically in the laboratory in a bench-scale unit for 30 additional days at 20°C. When at the end of the 30 days, the volatile solids in the sewage sludge at the beginning of that period is reduced by less than 15%, vector attraction reduction is achieved.

4. The specific oxygen uptake rate (SOUR) for sewage sludge treated in an aerobic process shall be equal to or less than 1.5 milligrams of oxygen per hour per gram of total solids (dry weight basis) at a temperature of 20°C.

5. Sewage sludge shall be treated in an aerobic process for 14 days or longer. During that time, the temperature of the sewage sludge shall be higher than 40°C and the average temperature of the sewage sludge shall be higher than 45°C.

6. The pH of sewage sludge shall be raised to 12 or higher by alkaline addition and, without the addition of more alkaline material, shall remain at 12 or higher for two hours and then at 11.5 or higher for an additional 22 hours.

7. The percent solids of sewage sludge that does not contain unstabilized solids generated in a primary wastewater treatment process shall be equal to or greater than 75% based on the moisture content and total solids prior to mixing with other materials.

8. The percent solids of sewage sludge that contains unstabilized solids generated in a primary wastewater treatment process shall be equal to or greater than 90% based on the moisture content and total solids prior to mixing with other materials.

9. Sewage sludge injection requirements:

a. Sewage sludge shall be injected below the surface of the land.

b. No significant amount of the sewage sludge shall be present on the land surface within one hour after the sewage sludge is injected.

c. When the sewage sludge that is injected below the surface of the land is Class A with respect to pathogens, the sewage sludge shall be injected below the land surface within eight hours after being discharged from the pathogen treatment process.

10. Sewage sludge incorporation requirements:

a. Sewage sludge applied to the land surface or placed on an active sewage sludge unit shall be incorporated into the soil within six hours after application to or placement on the land, unless otherwise specified by the department.

b. When sewage sludge that is incorporated into the soil is Class A with respect to pathogens, the sewage sludge shall be applied to or placed on the land within eight hours after being discharged from the pathogen treatment process.

11. Sewage sludge placed on an active sewage sludge unit shall be covered with soil or other material at the end of each operating day.

12. The pH of domestic septage shall be raised to 12 or higher by alkaline addition and, without the addition of more alkaline material, shall remain at 12 or higher for 30 minutes.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 4, eff. November 9, 2022.

Part VII General Pretreatment Regulations for Existing and New Sources of Pollution

9VAC25-31-730 Purpose and applicability

A. This part establishes the responsibilities of state and local government, industry and the public to implement the national pretreatment standards and requirements to control pollutants which pass through or interfere with treatment processes in Publicly Owned Treatment Works (POTWs) or which may contaminate sewage sludge.

B. This part applies:

1. To pollutants from nondomestic sources covered by pretreatment standards which are indirectly discharged into or transported by truck or rail or otherwise introduced into POTWs;

2. To POTWs which receive wastewater from sources subject to national pretreatment standards; and

3. To any new or existing source subject to pretreatment standards. National pretreatment standards do not apply to sources which discharge to a sewer which is not connected to a POTW treatment plant.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-740 Objectives of general pretreatment regulations

By establishing the responsibilities of government and industry to implement national pretreatment standards and requirements this part fulfills three objectives:

A. To prevent the introduction of pollutants into POTWs which will interfere with the operation of a POTW, including interference with its use or disposal of municipal sludge;

B. To prevent the introduction of pollutants into POTWs which will pass through the treatment works or otherwise be incompatible with such works; and

C. To improve opportunities to recycle and reclaim municipal and industrial wastewaters and sludges.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-750 Incorporation of federal regulations

The following federal regulations are hereby incorporated into this chapter:

1. 40 CFR Part 403, Appendix B - E, and Appendix G.

2. 40 CFR Part 136, Guidelines for Establishing Test Procedures for the Analysis of Pollutants.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012.

9VAC25-31-760 Local law

Nothing in this part is intended to affect any pretreatment requirements, including any standards or prohibitions, established by local law as long as the local requirements are not less stringent than any set forth in national pretreatment standards, or any other requirements or prohibitions established under the Clean Water Act, the law, or this chapter.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-770 National pretreatment standards: prohibited discharges

A. 1. General prohibitions. A user may not introduce into any POTW any pollutant or pollutants which cause pass through, interference or violation of water quality standards. These general prohibitions and the specific prohibitions in subsection B of this section apply to each user introducing pollutants into a POTW whether or not the user is subject to other national pretreatment standards or any national, state, or local pretreatment requirements.

2. Affirmative defenses. A user shall have an affirmative defense in any action brought against it alleging a violation of the general prohibitions established in subdivision A 1 of this section and the specific prohibitions in subdivisions B 3, 4, 5, 6, and 7 of this section where the user can demonstrate that:

a. It did not know or have reason to know that its discharge, alone or in conjunction with a discharge or discharges from other sources, would cause pass through or interference; and

b. (1) A local limit designed to prevent pass through or interference or both, as the case may be, was developed in accordance with subsection C of this section for each pollutant in the user's discharge that caused pass through or interference, and the user was in compliance with each such local limit directly prior to and during the pass through or interference; or

(2) If a local limit designed to prevent pass through or interference or both, as the case may be, has not been developed in accordance with subsection C of this section for the pollutant or pollutants that caused the pass through or interference, the user's discharge directly prior to and during the pass through or interference did not change substantially in nature or constituents from the user's prior discharge activity when the POTW was regularly in compliance with the POTW's VPDES permit requirements and, in the case of interference, applicable requirements for sewage sludge use or disposal.

B. Specific prohibitions. In addition, the following pollutants shall not be introduced into a POTW:

1. Pollutants which create a fire or explosion hazard in the POTW, including, but not limited to, wastestreams with a closed cup flashpoint of less than 140°F or 60°C using the test methods specified in 40 CFR 261.21;

2. Pollutants which will cause corrosive structural damage to the POTW, but in no case discharges with pH lower than 5.0, unless the works is specifically designed to accommodate such discharges;

3. Solid or viscous pollutants in amounts which will cause obstruction to the flow in the POTW resulting in interference;

4. Any pollutant, including oxygen demanding pollutants (BOD, etc.) released in a discharge at a flow rate or pollutant concentration which will cause interference with the POTW;

5. Heat in amounts which will inhibit biological activity in the POTW resulting in interference, but in no case heat in such quantities that the temperature at the POTW treatment plant exceeds 40°C (104°F) unless the director, upon request of the POTW, approves alternate temperature limits;

6. Petroleum oil, nonbiodegradable cutting oil, or products of mineral oil origin in amounts that will cause interference or pass through;

7. Pollutants which result in the presence of toxic gases, vapors, or fumes within the POTW in a quantity that may cause acute worker health and safety problems; or

8. Any trucked or hauled pollutants, except at discharge points designated by the POTW.

C. When specific limits must be developed by POTW.

1. Each POTW developing a POTW pretreatment program pursuant to 9VAC25-31-800 shall develop and enforce specific limits to implement the prohibitions listed in subdivisions A 1 and subsection B of this section. Each POTW with an approved pretreatment program shall continue to develop these limits as necessary and effectively enforce such limits.

2. All other POTW's shall, in cases where pollutants contributed by users result in interference, pass through or water quality standards violations and such violation is likely to recur, develop and enforce specific effluent limits for industrial users, and all other users, as appropriate, which, together with appropriate changes in the POTW treatment plant's facilities or operation, are necessary to ensure renewed and continued compliance with the POTW's VPDES permit or sludge use or disposal practices.

3. Specific effluent limits shall not be developed and enforced without individual notice to persons or groups who have requested such notice and an opportunity to respond.

4. All POTWs with approved pretreatment programs shall provide a written technical evaluation of the need to revise their local limits within one year of reissuance of VPDES permits for applicable treatment works, or within one year of VPDES permit modifications resulting in significant changes in VPDES permit limitations, POTW pretreatment operations, or POTW sludge disposal methods.

5. POTWs may develop Best Management Practices (BMPs) to implement subdivisions 1 and 2 of this subsection. Such BMPs shall be considered local limits and pretreatment standards for the purposes of this Part and § 307(d) of the Act.

D. Local limits. Where specific prohibitions or limits on pollutants or pollutant parameters are developed by a POTW in accordance with subsection C of this section, such limits shall be deemed pretreatment standards for the purposes of § 307(d) of the CWA.

E. EPA and state enforcement actions under the law and § 309(f) of the CWA. If, within 30 days after notice of an interference or pass through violation has been sent by the director or EPA to the POTW, and to persons or groups who have requested such notice, the POTW fails to commence appropriate enforcement action to correct the violation, the director or EPA may take appropriate enforcement action under the authority provided by the law and in § 309(f) of the CWA.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 22, Issue 24, eff. September 6, 2006; Volume 28, Issue 10, eff. February 15, 2012.

9VAC25-31-780 National pretreatment standards: categorical standards

National pretreatment standards included in the regulations incorporated by reference in 9VAC25-31-30, unless specifically noted otherwise, shall be in addition to all applicable pretreatment standards and requirements set forth in this part.

A. Category determination request.

1. Application deadline. Within 60 days after the effective date of a pretreatment standard for a subcategory under which an industrial user may be included, the industrial user or POTW may request that the Water Management Division Director or director, as appropriate, provide written certification on whether the industrial user falls within that particular subcategory. If an existing industrial user adds or changes a process or operation which may be included in a subcategory, the existing industrial user must request this certification prior to commencing discharge from the added or changed processes or operation. A new source must request this certification prior to commencing discharge. Where a certification is submitted by a POTW, the POTW shall notify any affected industrial user of such submission. The industrial user may provide written comments on the POTW submission to the Water Management Division Director or director, as appropriate, within 30 days of notification.

2. Contents of application. Each request shall contain a statement:

a. Describing which subcategories might be applicable; and

b. Citing evidence and reasons why a particular subcategory is applicable and why others are not applicable. Any person signing the application statement submitted pursuant to this section shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

3. Deficient requests. The Water Management Division Director or director will only act on written requests for determinations that contain all of the information required. Persons who have made incomplete submissions will be notified by the Water Management Division Director or director that their requests are deficient and, unless the time period is extended, will be given 30 days to correct the deficiency. If the deficiency is not corrected within 30 days or within an extended period allowed by the Water Management Division Director or the director, the request for a determination shall be denied.

4. Final decision.

a. When the Water Management Division Director or director receives a submittal he will, after determining that it contains all of the information required by subdivision 2 of this subsection, consider the submission, any additional evidence that may have been requested, and any other available information relevant to the request. The Water Management Division Director or director will then make a written determination of the applicable subcategory and state the reasons for the determination.

b. Where the request is submitted to the director, the director shall forward the determination described in this subdivision to the Water Management Division Director who may make a final determination. If the Water Management Division Director does not modify the director's decision within 60 days after receipt thereof, or if the Water Management Division Director waives receipt of the determination, the director's decision is final.

c. Where the request is submitted by the industrial user or POTW to the Water Management Division Director or where the Water Management Division Director elects to modify the director's decision, the Water Management Division Director's decision will be final.

d. The director shall send a copy of the determination to the affected industrial user and the POTW.

5. Requests for public hearing or legal decision. Within 30 days following the date of receipt of notice of the final determination as provided for by subdivision A 4 d of this section, the requester may submit a petition to reconsider or contest the decision to the regional administrator who shall act on such petition expeditiously and state the reasons for his determination in writing.

B. Deadline for compliance with categorical standards. Compliance by existing sources with categorical pretreatment standards shall be within three years of the date the standard is effective unless a shorter compliance time is specified in the regulations incorporated by reference in 9VAC25-31-30. Direct dischargers with VPDES permits modified or reissued to provide a variance pursuant to § 301(i)(2) of the CWA shall be required to meet compliance dates set in any applicable categorical pretreatment standard. Existing sources which become industrial users subsequent to promulgation of an applicable categorical pretreatment standard shall be considered existing industrial users except where such sources meet the definition of a new source as defined in 9VAC25-31-10. New sources shall install and have in operating condition, and shall "start up" all pollution control equipment required to meet applicable pretreatment standards before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), new sources must meet all applicable pretreatment standards.

C. 1. Concentration and mass limits pollutant discharge limits in categorical pretreatment standards will be expressed either as concentration or mass limits. Wherever possible, where concentration limits are specified in standards, equivalent mass limits will be provided so that local, state or federal authorities responsible for enforcement may use either concentration or mass limits. Limits in categorical pretreatment standards shall apply to the effluent of the process regulated by the standard, or as otherwise specified by the standard.

2. When the limits in a categorical pretreatment standard are expressed only in terms of mass of pollutant per unit of production, the control authority may convert the limits to equivalent limitations expressed either as mass of pollutant discharged per day or effluent concentration for purposes of calculating effluent limitations applicable to individual industrial users.

3. A control authority calculating equivalent mass-per-day limitations under subdivision 2 of this subsection shall calculate such limitations by multiplying the limits in the standard by the industrial user's average rate of production. This average rate of production shall be based not upon the designed production capacity but rather upon a reasonable measure of the industrial user's actual long-term daily production, such as the average daily production during a representative year. For new sources, actual production shall be estimated using projected production.

4. A control authority calculating equivalent concentration limitations under subdivision 2 of this subsection shall calculate such limitations by dividing the mass limitations derived under subdivision 3 of this subsection by the average daily flow rate of the industrial user's regulated process wastewater. This average daily flow rate shall be based upon a reasonable measure of the industrial user's actual long-term average flow rate, such as the average daily flow rate during the representative year.

5. When the limits in a categorical pretreatment standard are expressed only in terms of pollutant concentrations, an industrial user may request that the control authority convert the limits to equivalent mass limits. The determination to convert concentration limits to mass limits is within the discretion of the control authority. The control authority may establish equivalent mass limits only if the industrial user meets all the following conditions in subdivisions 5 a (1) through (5) of this subsection as follows.

a. To be eligible for equivalent mass limits, the industrial user must:

(1) Employ, or demonstrate that it will employ, water conservation methods and technologies that substantially reduce water use during the term of its control mechanism;

(2) Currently use control and treatment technologies adequate to achieve compliance with the applicable categorical pretreatment standard, and not have used dilution as a substitute for treatment;

(3) Provide sufficient information to establish the facility's actual average daily flow rate for all wastestreams, based on data from a continuous effluent flow monitoring device, as well as the facility's long-term average production rate. Both the actual average daily flow rate and the long-term average production rate must be representative of current operating conditions;

(4) Not have daily flow rates, production levels, or pollutant levels that vary so significantly that equivalent mass limits are not appropriate to control the discharge; and

(5) Have consistently complied with all applicable categorical pretreatment standards during the period prior to the industrial user's request for equivalent mass limits.

b. An industrial user subject to equivalent mass limits must:

(1) Maintain and effectively operate control and treatment technologies adequate to achieve compliance with the equivalent mass limits;

(2) Continue to record the facility's flow rates through the use of a continuous effluent flow monitoring device;

(3) Continue to record the facility's production rates and notify the control authority whenever production rates are expected to vary by more than 20% from its baseline production rates determined in subdivision 5 a (3) of this subsection. Upon notification of a revised production rate, the Control Authority must reassess the equivalent mass limit and revise the limit as necessary to reflect changed conditions at the facility; and

(4) Continue to employ the same or comparable water conservation methods and technologies as those implemented pursuant to subdivision 5 a (1) of this subsection so long as it discharges under an equivalent mass limit.

c. A control authority that chooses to establish equivalent mass limits:

(1) Must calculate the equivalent mass limit by multiplying the actual average daily flow rate of the regulated process(es) of the industrial user by the concentration-based daily maximum and monthly average standard for the applicable categorical pretreatment standard and the appropriate unit conversion factor;

(2) Upon notification of a revised production rate, must reassess the equivalent mass limit and recalculate the limit as necessary to reflect changed conditions at the facility; and

(3) May retain the same equivalent mass limit in subsequent control mechanism terms if the industrial user's actual average daily flow rate was reduced solely as a result of the implementation of water conservation methods and technologies, and the actual average daily flow rates used in the original calculation of the equivalent mass limit were not based on the use of dilution as a substitute for treatment pursuant to subdivision 5 d of this subsection. The industrial user must also be in compliance with 9VAC25-31-890 (regarding the prohibition of bypass).

d. The control authority may not express limits in terms of mass for pollutants such as pH, temperature, radiation, or other pollutants which cannot appropriately be expressed as mass.

6. The control authority may convert the mass limits of the categorical pretreatment standards at 40 CFR Parts 414, 419, and 455 to concentration limits for purposes of calculating limitations applicable to individual industrial users under the following conditions: when converting such limits to concentration limits, the control authority must use the concentrations listed in the applicable subparts of 40 CFR Parts 414, 419, and 455 and document that dilution is not being substituted for treatment as prohibited by subsection D of this section.

7. Equivalent limitations calculated in accordance with subdivisions 3 4, 5 and 6 of this subsection are deemed pretreatment standards for the purposes of § 307(d) of the CWA and this part. The control authority must document how the equivalent limits were derived and make this information publicly available. Once incorporated into its control mechanism, the individual user must comply with the equivalent limitations in lieu of the promulgated categorical standards from which the equivalent limitations were derived.

8. Many categorical pretreatment standards specify one limit for calculating maximum daily discharge limitations and a second limit for calculating maximum monthly average, or four-day average, limitations. Where such standards are being applied, the same production or flow figure shall be used in calculating both the average and the maximum equivalent limitation.

9. Any industrial user operating under a control mechanism incorporating equivalent mass or concentration limits calculated from a production based standard shall notify the control authority within two business days after the user has a reasonable basis to know that the production level will significantly change within the next calendar month. Any user not notifying the control authority of such anticipated change will be required to meet the mass or concentration limits in its control mechanism that were based on the original estimate of the long term average production rate.

D. Dilution prohibited as substitute for treatment. Except where expressly authorized to do so by an applicable pretreatment standard or requirement, no industrial user shall ever increase the use of process water, or in any other way attempt to dilute a discharge as a partial or complete substitute for adequate treatment to achieve compliance with a pretreatment standard or requirement. The control authority may impose mass limitations on industrial users which are using dilution to meet applicable pretreatment standards or requirements, or in other cases where the imposition of mass limitations is appropriate.

E. Combined wastestream formula. Where process effluent is mixed prior to treatment with wastewaters other than those generated by the regulated process, fixed alternative discharge limits may be derived by the control authority, or by the industrial user with the written concurrence of the control authority. These alternative limits shall be applied to the mixed effluent. When deriving alternative categorical limits, the control authority or industrial user shall calculate both an alternative daily maximum value using the daily maximum values specified in the appropriate categorical pretreatment standard or standards and an alternative consecutive sampling day average value using the monthly average values specified in the appropriate categorical pretreatment standards. The industrial user shall comply with the alternative daily maximum and monthly average limits fixed by the control authority until the control authority modifies the limits or approves an industrial user modification request. Modification is authorized whenever there is a material or significant change in the values used in the calculation to fix alternative limits for the regulated pollutant. An industrial user must immediately report any such material or significant change to the control authority. Where appropriate new alternative categorical limits shall be calculated within 30 days.

1. Alternative limit calculation. For purposes of these formulas, the "average daily flow" means a reasonable measure of the average daily flow for a 30-day period. For new sources, flows shall be estimated using projected values. The alternative limit for a specified pollutant will be derived by the use of either of the following formulas:

a. Alternative concentration limit.

where:

C_T = the alternative concentration limit for the combined wastestream.

C_i = the categorical pretreatment standard concentration limit for a pollutant in the regulated stream i.

F_i = the average daily flow (at least a 30-day average) of stream i to the extent that it is regulated for such pollutant.

F_D = the average daily flow (at least a 30-day average) from: (i) boiler blowdown streams, noncontact cooling streams, stormwater streams, and demineralizer backwash streams; provided, however, that where such streams contain a significant amount of a pollutant, and the combination of such streams, prior to treatment, with an industrial user's regulated process wastestreams will result in a substantial reduction of that pollutant, the control authority, upon application of the industrial user, may exercise its discretion to determine whether such streams should be classified as diluted or unregulated. In its application to the control authority, the industrial user must provide engineering, production, sampling and analysis and such other information so that the control authority can make its determination; (ii) sanitary wastestreams where such streams are not regulated by a categorical pretreatment standard; or (iii) any process wastestreams which were or could have been entirely exempted from categorical pretreatment standards for one or more of the following reasons (see Appendix D of 40 CFR Part 403):

(1) The pollutants of concern are not detectable in the effluent from the industrial user;

(2) The pollutants of concern are present only in trace amounts and are neither causing nor likely to cause toxic effects;

(3) The pollutants of concern are present in amounts too small to be effectively reduced by technologies known to the administrator; or

(4) The wastestream contains only pollutants which are compatible with the POTW.

F_T = The average daily flow (at least a 30-day average) through the combined treatment facility (includes F_i, F_D and unregulated streams).

N = The total number of regulated streams.

b. Alternative mass limit.

where:

M_T = the alternative mass limit for a pollutant in the combined wastestream.

M_i = the categorical pretreatment standard mass limit for a pollutant in the regulated stream i (the categorical pretreatment mass limit multiplied by the appropriate measure of production).

F_i = the average flow (at least a 30-day average) of stream i to the extent that it is regulated for such pollutant.

F_D = the average daily flow (at least a 30-day average) from: (i) boiler blowdown streams, noncontact cooling streams, stormwater streams, and demineralizer backwash streams; provided, however, that where such streams contain a significant amount of a pollutant, and the combination of such streams, prior to treatment, with an industrial user's regulated process wastestreams will result in a substantial reduction of that pollutant, the control authority, upon application of the industrial user, may exercise its discretion to determine whether such streams should be classified as diluted or unregulated. In its application to the control authority, the industrial user must provide engineering, production, sampling and analysis and such other information so that the control authority can make its determination; (ii) sanitary wastestreams where such streams are not regulated by a categorical pretreatment standard; or (iii) any process wastestreams which were or could have been entirely exempted from categorical pretreatment standards for one or more of the following reasons (see Appendix D of 40 CFR Part 403):

(1) The pollutants of concern are not detectable in the effluent from the industrial user;

(2) The pollutants of concern are present only in trace amounts and are neither causing nor likely to cause toxic effects;

(3) The pollutants of concern are present in amounts too small to be effectively reduced by technologies known to the administrator; or

(4) The wastestream contains only pollutants which are compatible with the POTW.

F_T = The average flow (at least a 30-day average) through the combined treatment facility (includes F_i, F_D and unregulated streams).

N = The total number of regulated streams.

2. An alternative pretreatment limit may not be used if the alternative limit is below the analytical detection limit for any of the regulated pollutants.

3. Self-monitoring required to insure compliance with the alternative categorical limit shall be conducted in accordance with the requirements of 9VAC25-31-840 G.

4. Where a treated regulated process wastestream is combined prior to treatment with wastewaters other than those generated by the regulated process, the industrial user may monitor either the segregated process wastestream or the combined wastestream for the purpose of determining compliance with applicable pretreatment standards. If the industrial user chooses to monitor the segregated process wastestream, it shall apply the applicable categorical pretreatment standard. If the user chooses to monitor the combined wastestream, it shall apply an alternative discharge limit calculated using the combined wastestream formula as provided in this section. The industrial user may change monitoring points only after receiving approval from the control authority. The control authority shall ensure that any change in an industrial user's monitoring point or points will not allow the user to substitute dilution for adequate treatment to achieve compliance with applicable standards.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 22, Issue 24, eff. September 6, 2006; Volume 28, Issue 10, eff. February 15, 2012.

9VAC25-31-790 Removal credits

A. General.

1. Definitions for the purpose of this section:

"Removal" means a reduction in the amount of a pollutant in the POTW's effluent or alteration of the nature of a pollutant during treatment at the POTW. The reduction or alteration can be obtained by physical, chemical or biological means and may be the result of specifically designed POTW capabilities or may be incidental to the operation of the treatment system. Removal as used in this subpart shall not mean dilution of a pollutant in the POTW.

"Sludge requirements" means the following statutory provisions and regulations or permits issued thereunder (or more stringent Virginia or local regulations): § 405 of the CWA; the Solid Waste Disposal Act (SWDA) (42 USC § 6901 et seq.) (including Title II more commonly referred to as the Resource Conservation Recovery Act (RCRA) (42 USC § 6901 et seq.) and Virginia regulations contained in any Virginia sludge management plan prepared pursuant to Subtitle D of SWDA); the Clean Air Act (42 USC § 4701 et seq.); the Toxic Substances Control Act (15 USC § 2601 et seq.); and the Marine Protection, Research and Sanctuaries Act (33 USC § 1401 et seq.).

2. General. Any POTW receiving wastes from an industrial user to which a categorical pretreatment standards applies may, at its discretion and subject to the conditions of this section, grant removal credits to reflect removal by the POTW of pollutants specified in the categorical pretreatment standards. The POTW may grant a removal credit equal to or, at its discretion, less than its consistent removal rate. Upon being granted a removal credit, each affected industrial user shall calculate its revised discharge limits in accordance with subdivision 4 of this subsection. Removal credits may only be given for indicator or surrogate pollutants regulated in a categorical pretreatment standard if the categorical pretreatment statement so specifies.

3. Conditions for authorization to give removal credits. A POTW is authorized to give removal credits only if the following conditions are met;

a. Application. The POTW applies for, and receives, authorization from the director to give a removal credit in accordance with the requirements and procedures specified in subsection E of this section;

b. Consistent removal determination. The POTW demonstrates and continues to achieve consistent removal of the pollutant in accordance with subsection B of this section;

c. POTW local pretreatment program. The POTW has an approved pretreatment program in accordance with and to the extent required by this part; provided, however, a POTW which does not have an approved pretreatment program may, pending approval of such a program, conditionally give credits as provided in subsection D of this section;

d. Sludge requirements. The granting of removal credits will not cause the POTW to violate the local, state and federal sludge requirements which apply to the sludge management method chosen by the POTW. Alternatively, the POTW can demonstrate to the director that even though it is not presently in compliance with applicable sludge requirements, it will be in compliance when the industrial users to whom the removal credit would apply is required to meet its categorical pretreatment standards as modified by the removal credit. If granting removal credits forces a POTW to incur greater sludge management costs than would be incurred in the absence of granting removal costs, the additional sludge management costs will not be eligible for EPA grant assistance. Removal credits may be made available for the following pollutants:

(1) For any pollutant listed in Appendix G-I of the regulation incorporated by reference in 9VAC25-31-750 for the use or disposal practice employed by the POTW, when the requirements of Part VI of this chapter for that practice are met;

(2) For any pollutant listed in Appendix G-II of the regulation incorporated by reference in 9VAC25-31-750 for the use or disposal practice employed by the POTW when the concentration for a pollutant listed in Appendix G-II of the regulation incorporated by reference in 9VAC25-31-750 in the sewage sludge that is used or disposed does not exceed the concentration for the pollutant in Appendix G-II of the regulation incorporated by reference in 9VAC25-31-750; and

(3) For any pollutant in sewage sludge when the POTW disposes all of its sewage sludge in a municipal solid waste landfill that meets the criteria in the Code of Virginia and the Solid Waste Management Regulations, 9VAC20-81;

e. VPDES permit limitations. The granting of removal credits will not cause a violation of the POTW's permit limitations or conditions. Alternatively, the POTW can demonstrate to the director that even though it is not presently in compliance with applicable limitations and conditions in its VPDES permit, it will be in compliance when the industrial user or users to whom the removal credit would apply is required to meet its categorical pretreatment standard or standards, as modified by the removal credit provision.

4. Calculation of revised discharge limits. Revised discharge limits for a specific pollutant shall be derived by use of the following formula:

| y = | x | | --- | --- | | 1 - r | |

where:

x = pollutant discharge limit specified in the applicable categorical pretreatment standard

r = removal credit for that pollutant as established under subsection B of this section (percentage removal expressed as a proportion, i.e., a number between 0 and 1)

y = revised discharge limit for the specified pollutant (expressed in same units as x)

B. Establishment of removal credits; demonstration of consistent removal.

1. Definition of "consistent removal." "Consistent removal" means the average of the lowest 50% of the removal measured according to subdivision 2 of this subsection. All sample data obtained for the measured pollutant during the time period prescribed in subdivision 2 of this subsection must be reported and used in computing consistent removal. If a substance is measurable in the influent but not in the effluent, the effluent level may be assumed to be the limit of measurement, and those data may be used by the POTW at its discretion and subject to approval by the director. If the substance is not measurable in the influent, the data may not be used. Where the number of samples with concentrations equal to or above the limit of measurement is between eight and 12, the average of the lowest six removals shall be used. If there are less than eight samples with concentrations equal to or above the limit of measurement, the director may approve alternate means for demonstrating consistent removal. The term "measurement" refers to the ability of the analytical method or protocol to quantify as well as identify the presence of the substance in question.

2. Consistent removal data. Influent and effluent operational data demonstrating consistent removal or other information, as provided for in subdivision 1 of this subsection, which demonstrates consistent removal of the pollutants for which discharge limit revisions are proposed. This data shall meet the following requirements:

a. Representative data; seasonal. The data shall be representative of yearly and seasonal conditions to which the POTW is subjected for each pollutant for which a discharge limit revision is proposed;

b. Representative data; quality and quantity. The data shall be representative of the quality and quantity of normal effluent and influent flow if such data can be obtained. If such data are unobtainable, alternate data or information may be presented for approval to demonstrate consistent removal as provided for in subdivision 1 of this subsection;

c. Sampling procedures: composite.

(1) The influent and effluent operational data shall be obtained through 24-hour flow-proportional composite samples. Sampling may be done manually or automatically, and discretely or continuously. For discrete sampling, at least 12 aliquots shall be composited. Discrete sampling may be flow-proportioned either by varying the time interval between each aliquot or the volume of each aliquot. All composites must be flow proportional to each stream flow at time of collection of influent aliquot or to the total influent flow since the previous influent aliquot. Volatile pollutant aliquots must be combined in the laboratory immediately before analysis.

(2)(a) Twelve samples shall be taken at approximately equal intervals throughout one full year. Sampling must be evenly distributed over the days of the week so as to include no-workdays as well as workdays. If the director determines that this schedule will not be most representative of the actual operation of the POTW treatment plant, an alternative sampling schedule will be approved.

(b) In addition, upon the director's concurrence, a POTW may utilize an historical data base amassed prior to July 24, 1996, provide that such data otherwise meet the requirements of this paragraph. In order for the historical data base to be approved it must present a statistically valid description of daily, weekly and seasonal sewage treatment plant loadings and performance for at least one year.

(3) Effluent sample collection need not be delayed to compensate for hydraulic detention unless the POTW elects to include detention time compensation or unless the director requires detention time compensation. The director may require that each effluent sample be taken approximately one detention time later than the corresponding influent sample when failure to do so would result in an unrepresentative portrayal of actual POTW operation. The detention period is to be based on a 24-hour average daily flow value. The average daily flow used will be based upon the average of the daily flows during the same month of the previous year.

d. Sampling procedures: Grab. Where composite sampling is not an appropriate sampling technique, a grab sample or samples shall be taken to obtain influent and effluent operational data. Collection of influent grab samples should precede collection of effluent samples by approximately one detention period. The detention period is to be based on a 24-hour average daily flow value. The average daily flow used will be based upon the average of the daily flows during the same month of the previous year. Grab samples will be required, for example, where the parameters being evaluated are those, such as cyanide and phenol, which may not be held for any extended period because of biological, chemical or physical interactions which take place after sample collection and affect the results. A grab sample is an individual sample collected over a period of time not exceeding 15 minutes;

e. Analytical methods. The sampling referred to in subdivisions 2 a through d of this subsection and an analysis of these samples shall be performed in accordance with the techniques prescribed in 40 CFR Part 136 and amendments thereto. Where 40 CFR Part 136 does not contain sampling or analytical techniques for the pollutant in question, or where the administrator determines that the Part 136 sampling and analytical techniques are inappropriate for the pollutant in question, sampling and analysis shall be performed using validated analytical methods or any other applicable sampling and analytical procedures, including procedures suggested by the POTW or other parties, approved by the administrator; and

f. Calculation of removal. All data acquired under the provisions of this section must be submitted to the department. Removal for a specific pollutant shall be determined either, for each sample, by measuring the difference between the concentrations of the pollutant in the influent and effluent of the POTW and expressing the difference as a percentage of the influent concentration, or, where such data cannot be obtained, removal may be demonstrated using other data or procedures subject to concurrence by the director as provided for in subdivision 1 of this subsection.

C. Provisional credits. For pollutants which are not being discharged currently (i.e., new or modified facilities, or production changes) the POTW may apply for authorization to give removal credits prior to the initial discharge of the pollutant. Consistent removal shall be based provisionally on data from treatability studies or demonstrated removal at other treatment facilities where the quality and quantity of influent are similar. Within 18 months after the commencement of discharge of pollutants in question, consistent removal must be demonstrated pursuant to the requirements of subsection B of this section. If, within 18 months after the commencement of the discharge of the pollutant in question, the POTW cannot demonstrate consistent removal pursuant to the requirements of subsection B of this section, the authority to grant provisional removal credits shall be terminated by the director and all industrial users to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical pretreatment standards within a reasonable time, not to exceed the period of time prescribed in the applicable categorical pretreatment standards, as may be specified by the director.

D. Exception to POTW pretreatment program requirement. A POTW required to develop a local pretreatment program by 9VAC25-31-800 may conditionally give removal credits pending approval of such a program in accordance with the following terms and conditions:

1. All industrial users who are currently subject to a categorical pretreatment standard and who wish conditionally to receive a removal credit must submit to the POTW the information required in 9VAC25-31-840 B 1 through 7 (except new or modified industrial users must only submit the information required by 9VAC25-31-840 B 1 through 6), pertaining to the categorical pretreatment standard as modified by the removal credit. The industrial users shall indicate what additional technology, if any, will be needed to comply with the categorical pretreatment standard or standards as modified by the removal credit;

2. The POTW must have submitted to the department an application for pretreatment program approval meeting the requirements of 9VAC25-31-800 and 9VAC25-31-810 in a timely manner, not to exceed the time limitation set forth in a compliance schedule for development of a pretreatment program included in the POTW's VPDES permit, but in no case later than July 1, 1983, where no permit deadline exists;

3. The POTW must:

a. Compile and submit data demonstrating its consistent removal in accordance with subsection B of this section;

b. Comply with the conditions specified in subdivision A 3 of this section; and

c. Submit a complete application for removal credit authority in accordance with subsection E of this section;

4. If a POTW receives authority to grant conditional removal credits and the director subsequently makes a final determination, after appropriate notice, that the POTW failed to comply with the conditions in subdivisions 2 and 3 of this subsection, the authority to grant conditional removal credits shall be terminated by the director and all industrial users to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical pretreatment standards within a reasonable time, not to exceed the period of time prescribed in the applicable categorical pretreatment standards, as may be specified by the director;

5. If a POTW grants conditional removal credits and the POTW or the director subsequently makes a final determination, after appropriate notice, that the industrial user or users failed to comply with the conditions in subdivision 1 of this subsection, the conditional credit shall be terminated by the POTW or the director for the noncomplying industrial user or users and the industrial user or users to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical pretreatment standards within a reasonable time, not to exceed the period of time prescribed in the applicable categorical pretreatment standards, as may be specified by the director. The conditional credit shall not be terminated where a violation of the provisions of this paragraph results from causes entirely outside of the control of the industrial user or users or the industrial user or users had demonstrated subsequential compliance; and

6. The director may elect not to review an application for conditional removal credit authority upon receipt of such application, in which case the conditionally revised discharge limits will remain in effect until reviewed by the director. This review may occur at any time in accordance with the procedures of 9VAC25-31-830, but in no event later than the time of any pretreatment program approval or any VPDES permit reissuance thereunder.

E. POTW application for authorization to give removal credits and director review.

1. Who must apply. Any POTW that wants to give a removal credit must apply for authorization from the director.

2. To whom application is made. An application for authorization to give removal credits (or modify existing ones) shall be submitted by the POTW to the department.

3. When to apply. A POTW may apply for authorization to give or modify removal credits at any time.

4. Contents of the application. An application for authorization to give removal credits must be supported by the following information:

a. List of pollutants. A list of pollutants for which removal credits are proposed;

b. Consistent removal data. The data required pursuant to subsection B of this section;

c. Calculation of revised discharge limits. Proposed revised discharge limits for each affected subcategory of industrial users calculated in accordance with subdivision A 4 of this section;

d. Local pretreatment program certification. A certification that the POTW has an approved local pretreatment program or qualifies for the exception to this requirement found at subsection D of this section;

e. Sludge management certification. A specific description of the POTW's current methods of using or disposing of its sludge and a certification that the granting of removal credits will not cause a violation of the sludge requirements identified in subdivision A 3 d of this section; and

f. VPDES permit limit certification. A certification that the granting of removal credits will not cause a violation of the POTW's VPDES permit limits and conditions as required in subdivision A 3 e of this section.

5. Director review. The director shall review the POTW's application for authorization to give or modify removal credits in accordance with the procedures of 9VAC25-31-830 and shall, in no event, have more than 180 days from public notice of an application to complete review.

6. Nothing in this part precludes an industrial user or other interested party from assisting the POTW in preparing and presenting the information necessary to apply for authorization.

F. Continuation and withdrawal of authorization.

1. Effect of authorization. Once a POTW has received authorization to grant removal credits for a particular pollutant regulated in a categorical pretreatment standard it may automatically extend that removal credit to the same pollutant when it is regulated in other categorical standards, unless granting the removal credit will cause the POTW to violate the sludge requirements identified in subdivision A 3 d of this section or its VPDES permit limits and conditions as required by subdivision A 3 e of this section. If a POTW elects at a later time to extend removal credits to a certain categorical pretreatment standard, industrial subcategory or one or more industrial users that initially were not granted removal credits, it must notify the department.

2. Inclusion in POTW permit. Once authority is granted, the removal credits shall be included in the POTW's VPDES permit as soon as possible and shall become an enforceable requirement of the POTW's VPDES permit. The removal credits will remain in effect for the term of the POTW's VPDES permit, provided the POTW maintains compliance with the conditions specified in subdivision 4 of this subsection.

3. Compliance monitoring. Following authorization to give removal credits, a POTW shall continue to monitor and report on (at such intervals as may be specified by the director, but in no case less than once per year) the POTW's removal capabilities. A minimum of one representative sample per month during the reporting period is required, and all sampling data must be included in the POTW's compliance report.

4. Modification or withdrawal of removal credits.

a. Notice of POTW. The director shall notify the POTW if, on the basis of pollutant removal capability reports received pursuant to subdivision 3 of this subsection or other relevant information available to it, the director determines:

(1) That one or more of the discharge limit revisions made by the POTW, of the POTW itself, no longer meets the requirements of this section, or

(2) That such discharge limit revisions are causing a violation of any conditions or limits contained in the POTW's VPDES Permit.

b. Corrective action. If appropriate corrective action is not taken within a reasonable time, not to exceed 60 days unless the POTW or the affected industrial users demonstrate that a longer time period is reasonably necessary to undertake the appropriate corrective action, the director shall either withdraw such discharge limits or require modifications in the revised discharge limits.

c. Public notice of withdrawal or modification. The director shall not withdraw or modify revised discharge limits unless it shall first have notified the POTW and all industrial users to whom revised discharge limits have been applied, and made public, in writing, the reasons for such withdrawal or modification, and an opportunity is provided for a public hearing. Following such notice and withdrawal or modification, all industrial users to whom revised discharge limits had been applied, shall be subject to the modified discharge limits or the discharge limits prescribed in the applicable categorical pretreatment standards, as appropriate, and shall achieve compliance with such limits within a reasonable time (not to exceed the period of time prescribed in the applicable categorical pretreatment standards) as may be specified by the director.

G. Removal credits in state-run pretreatment programs. Where the director elects to implement a local pretreatment program in lieu of requiring the POTW to develop such a program the POTW will not be required to develop a pretreatment program as a precondition to obtaining authorization to give removal credits. The POTW will, however, be required to comply with the other conditions of subdivision A 3 of this section.

H. Compensation for overflow. For the purpose of this section, "overflow" means the intentional or unintentional diversion of flow from the POTW before the POTW treatment plant. POTWs which at least once annually overflow untreated wastewater to receiving waters may claim consistent removal of a pollutant only by complying with either subdivision 1 or 2 of this subsection. However, this subsection shall not apply where industrial users can demonstrate that overflow does not occur between the industrial users and the POTW treatment plant:

1. The industrial user provides containment or otherwise ceases or reduces discharges from the regulated processes which contain the pollutant for which an allowance is requested during all circumstances in which an overflow event can reasonably be expected to occur at the POTW or at a sewer to which the industrial user is connected. Discharges must cease or be reduced, or pretreatment must be increased, to the extent necessary to compensate for the removal not being provided by the POTW. Allowances under this provision will only be granted where the POTW submits to the department evidence that:

a. All industrial users to which the POTW proposes to apply this provision have demonstrated the ability to contain or otherwise cease or reduce, during circumstances in which an overflow event can reasonably be expected to occur, discharges from the regulated processes which contain pollutants for which an allowance is requested;

b. The POTW has identified circumstances in which an overflow event can reasonably be expected to occur, and has a notification or other viable plan to insure that industrial users will learn of an impending overflow in sufficient time to contain, cease or reduce discharging to prevent untreated overflows from occurring. The POTW must also demonstrate that it will monitor and verify the data required in subdivision 1 c of this subsection, to insure that industrial users are containing, ceasing or reducing operations during POTW system overflow; and

c. All industrial users to which the POTW proposes to apply this provision have demonstrated the ability and commitment to collect and make available, upon request by the POTW, the director or EPA Regional Administrator, daily flow reports or other data sufficient to demonstrate that all discharges from regulated processes containing the pollutant for which the allowance is requested were contained, reduced or otherwise ceased, as appropriate, during all circumstances in which an overflow event was reasonably expected to occur; or

2. a. The consistent removal claimed is reduced pursuant to the following equation:

| r_c = | r_m 8760 - z | | --- | --- | | 8760 | |

where:

r_m = POTW's consistent removal rate for that pollutant as established under subsections A 1 and B 2 of this section

r_c = removal corrected by the overflow factor

Z = hours per year that overflow occurred between the industrial user or users and the POTW treatment plant, the hours either to be shown in the POTW's current VPDES permit application or the hours, as demonstrated by verifiable techniques, that a particular industrial user's discharge overflows between the industrial user and the POTW treatment plant.

b. The POTW is complying with all VPDES permit requirements and any additional requirements in any order or decree, issued pursuant to the Clean Water Act affecting combined sewer outflows. These requirements include, but are not limited to, any combined sewer overflow requirements that conform to the Combined Sewer Overflow Control Policy.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 18, Issue 9, eff. February 15, 2002; Volume 22, Issue 24, eff. September 6, 2006; Volume 27, Issue 26, eff. September 28, 2011; Volume 28, Issue 10, eff. February 15, 2012.

9VAC25-31-800 Pretreatment program requirements: development and implementation by POTW

A. POTWs required to develop a pretreatment program. Any POTW (or combination of POTWs operated by the same authority) with a total design flow greater than five million gallons per day (mgd) and receiving from industrial users pollutants that pass through or interfere with the operation of the POTW or are otherwise subject to pretreatment standards will be required to establish a POTW pretreatment program unless the director exercises his or her option to assume local responsibilities. The regional administrator or director may require that a POTW with a design flow of five mgd or less develop a POTW pretreatment program if he finds that the nature or volume of the industrial influent, treatment process upsets, violations of POTW effluent limitations, contamination of municipal sludge, violations of water quality standards, or other circumstances warrant in order to prevent interference with the POTW or pass through.

B. Deadline for program approval. POTWs identified as being required to develop a POTW pretreatment program under subsection A of this section shall develop and submit such a program for approval as soon as possible, but in no case later than one year after written notification from the director of such identification. The approved program shall be in operation within two years of the effective date of the permit. The POTW pretreatment program shall meet the criteria set forth in subsection F of this section and shall be administered by the POTW to ensure compliance by industrial users with applicable pretreatment standards and requirements.

C. Incorporation of approved programs in permits. A POTW may develop an appropriate POTW pretreatment program any time before the time limit set forth in subsection B of this section. The POTW's VPDES permit will be reissued or modified to incorporate the approved program as enforceable conditions of the permit. The modification of a POTW's VPDES permit for the purposes of incorporating a POTW pretreatment program approved in accordance with the procedures in 9VAC25-31-830 shall be deemed a minor permit modification subject to the procedures in 9VAC25-31-400.

D. Incorporation of compliance schedules in permits. (Reserved.)

E. Cause for revocation and reissuance or modification of permits. Under the authority of the law and § 402 (b)(1)(C) of the CWA, the director may modify, or alternatively, revoke and reissue a POTW's permit in order to:

1. Put the POTW on a compliance schedule for the development of a POTW pretreatment program where the addition of pollutants into a POTW by an industrial user or combination of industrial users presents a substantial hazard to the functioning of the treatment works, quality of the receiving waters, human health, or the environment;

2. Coordinate the issuance of § 201 construction grant with the incorporation into a permit of a compliance schedule for POTW pretreatment program;

3. Incorporate a modification of the permit approved under § 301(h) or § 301(i) of the CWA;

4. Incorporate an approved POTW pretreatment program in the POTW permit;

5. Incorporate a compliance schedule for the development of a POTW pretreatment program in the POTW permit; or

6. Incorporate the removal credits (established under 9VAC25-31-790) in the POTW permit.

F. POTW pretreatment requirements. A POTW pretreatment program must be based on the following legal authority and include the following procedures. These authorities and procedures shall at all times be fully and effectively exercised and implemented.

1. Legal authority. The POTW shall operate pursuant to legal authority enforceable in federal, state or local courts, which authorizes or enables the POTW to apply and to enforce the requirements of §§ 307(b), (c) and (d), and 402(b)(8) of the CWA and any regulations implementing those sections. Such authority may be contained in a statute, ordinance, or series of contracts or joint powers agreements that the POTW is authorized to enact, enter into or implement, and which are authorized by state law. At a minimum, this legal authority shall enable the POTW to:

a. Deny or condition new or increased contributions of pollutants, or changes in the nature of pollutants, to the POTW by industrial users where such contributions do not meet applicable pretreatment standards and requirements or where such contributions would cause the POTW to violate its VPDES permit.

b. Require compliance with applicable pretreatment standards and requirements by industrial users.

c. Control through permit, or order the contribution to the POTW by each industrial user to ensure compliance with applicable pretreatment standards and requirements. In the case of industrial users identified as significant under 9VAC25-31-10, this control shall be achieved through individual permits or equivalent individual control mechanisms issued to each such user except as follows:

(1)(a) At the discretion of the POTW, this control may include use of general control mechanisms if the following conditions are met. All of the facilities to be covered must:

(i) Involve the same or substantially similar types of operations;

(ii) Discharge the same types of wastes;

(iii) Require the same effluent limitations;

(iv) Require the same or similar monitoring; and

(v) In the opinion of the POTW, be more appropriately controlled under a general control mechanism than under individual control mechanisms.

(b) To be covered by the general control mechanism, the significant industrial user must file a written request for coverage that identifies its contact information, production processes, the types of wastes generated, the location for monitoring all wastes covered by the general control mechanism, any requests in accordance with 9VAC25-31-840 E 2 for a monitoring waiver for a pollutant neither present nor expected to be present in the discharge, and any other information the POTW deems appropriate. A monitoring waiver for a pollutant neither present nor expected to be present in the discharge is not effective in the general control mechanism until after the POTW has provided written notice to the significant industrial user that such a waiver request has been granted in accordance with 9VAC25-31-840 E 2. The POTW must retain a copy of the general control mechanism, documentation to support the POTW's determination that a specific significant industrial user meets the criteria in subdivisions 1 c (1) (a) (i) through (v) of this subsection, and a copy of the user's written request for coverage for three years after the expiration of the general control mechanism. A POTW may not control a significant industrial user through a general control mechanism where the facility is subject to production-based categorical pretreatment standards or categorical pretreatment standards expressed as mass of pollutant discharged per day or for industrial users whose limits are based on the Combined Wastestream Formula or Net/Gross calculations (9VAC25-31-780 E and 9VAC25-31-870).

(2) Both individual and general control mechanisms must be enforceable and contain, at a minimum, the following conditions:

(a) Statement of duration (in no case more than five years);

(b) Statement of nontransferability without, at a minimum, prior notification to the POTW and provision of a copy of the existing control mechanism to the new owner or operator;

(c) Effluent limits, including Best Management Practices, based on applicable general pretreatment standards in this part, categorical pretreatment standards, local limits, and the law;

(d) Self-monitoring, sampling, reporting, notification and recordkeeping requirements, including an identification of the pollutants to be monitored (including the process for seeking a waiver for a pollutant neither present nor expected to be present in the discharge in accordance with 9VAC25-31-840 E 2, or a specific waiver pollutant in the case of an individual control mechanism), sampling location, sampling frequency, and sample type, based on the applicable general pretreatment standards in this part, categorical pretreatment standards, local limits, and the law;

(e) Statement of applicable civil and criminal penalties for violation of pretreatment standards and requirements; and any applicable compliance schedules, which may not extend beyond applicable federal deadlines.

(f) Requirements to control slug discharges, if determined by the POTW to be necessary.

d. Require:

(1) The development of a compliance schedule by each industrial user for the installation of technology required to meet applicable pretreatment standards and requirements; and

(2) The submission of all notices and self-monitoring reports from industrial users as are necessary to assess and ensure compliance by industrial users with pretreatment standards and requirements, including but not limited to the reports required in 9VAC25-31-840.

e. Carry out all inspection, surveillance and monitoring procedures necessary to determine, independent of information supplied by industrial users, compliance or noncompliance with applicable pretreatment standards and requirements by industrial users. Representatives of the POTW shall be authorized to enter any premises of any industrial user in which a discharge source or treatment system is located or in which records are required to be kept under 9VAC25-31-840 O to ensure compliance with pretreatment standards. Such authority shall be at least as extensive as the authority provided under § 308 of the CWA.

f. Obtain remedies for noncompliance by any industrial user with any pretreatment standard and requirement. All POTWs shall be able to seek injunctive relief for noncompliance by industrial users with pretreatment standards and requirements. All POTWs shall also have authority to seek or assess civil or criminal penalties in at least the amount of $1,000 a day for each violation by industrial users of pretreatment standards and requirements.

Pretreatment requirements which will be enforced through the remedies set forth in this subdivision, will include the duty to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the POTW; any requirements set forth in individual control mechanisms issued by the POTW; or any reporting requirements imposed by the POTW or this part. The POTW shall have authority and procedures (after informal notice to the discharger) to immediately and effectively halt or prevent any discharge of pollutants to the POTW which reasonably appears to present an imminent endangerment to the health or welfare of persons. The POTW shall also have authority and procedures (which shall include notice to the affected industrial users and an opportunity to respond) to halt or prevent any discharge to the POTW which presents or may present an endangerment to the environment or which threatens to interfere with the operation of the POTW. The director shall have authority to seek judicial relief and may also use administrative penalty authority when the POTW has sought a monetary penalty which the director believes to be insufficient.

g. Comply with the confidentiality requirements set forth in 9VAC25-31-860.

2. Procedures. The POTW shall develop and implement procedures to ensure compliance with the requirements of a pretreatment program. At a minimum, these procedures shall enable the POTW to:

a. Identify and locate all possible industrial users that might be subject to the POTW pretreatment program. Any compilation, index or inventory of industrial users made under this subdivision shall be made available to the regional administrator or department upon request.

b. Identify the character and volume of pollutants contributed to the POTW by the industrial users identified under subdivision 2 a of this subsection. This information shall be made available to the regional administrator or department upon request.

c. Notify industrial users identified under subdivision 2 a of this subsection, of applicable pretreatment standards and any applicable requirements under §§ 204(b) and 405 of the CWA and subtitles C and D of the Resource Conservation and Recovery Act (42 USC § 6901 et seq.). Within 30 days of approval pursuant to 9VAC25-31-800 F 6, of a list of significant industrial users, notify each significant industrial user of its status as such and of all requirements applicable to it as a result of such status.

d. Receive and analyze self-monitoring reports and other notices submitted by industrial users in accordance with the self-monitoring requirements in 9VAC25-31-840.

e. Randomly sample and analyze the effluent from industrial users and conduct surveillance activities in order to identify, independent of information supplied by industrial users, occasional and continuing noncompliance with pretreatment standards. Inspect and sample the effluent from each significant industrial user at least once a year except as otherwise specified below.

(1) Where the POTW has authorized the industrial user subject to a categorical pretreatment standard to forego sampling of a pollutant regulated by a categorical pretreatment standard in accordance with 9VAC25-31-840 E the POTW must sample for the waived pollutant at least once during the term of the categorical industrial user's control mechanism. In the event that the POTW subsequently determines that a waived pollutant is present or is expected to be present in the industrial user's wastewater based on changes that occur in the user's operations, the POTW must immediately begin at least annual effluent monitoring of the user's discharge and inspection.

(2) Where the POTW has determined that an industrial user meets the criteria for classification as a nonsignificant categorical industrial user, the POTW must evaluate, at least once per year, whether an industrial user continues to meet the criteria in 9VAC25-31-10.

(3) In the case of industrial users subject to reduced reporting requirements under 9VAC25-31-840 E, the POTW must randomly sample and analyze the effluent from industrial users and conduct inspections at least once every two years. If the industrial user no longer meets the conditions for reduced reporting in 9VAC25-31-840 E, the POTW must immediately begin sampling and inspecting the industrial user at least once a year.

f. Evaluate whether each such significant industrial user needs a plan or other action to control slug discharges. For industrial users identified as significant prior to November 14, 2005, this evaluation must have been conducted at least once by October 14, 2005; additional significant industrial users must be evaluated within one year of being designated a significant industrial user. For purposes of this subsection, a slug discharge is any discharge of a nonroutine, episodic nature, including an accidental spill or noncustomary batch discharge that has a reasonable potential to cause interference or pass through, or in any other way violate the POTWs regulating local limits or permit conditions. The results of such activities shall be available to the department upon request. Significant industrial users are required to notify the POTW immediately of any changes at its facility affecting potential for a slug discharge. If the POTW decides that a slug control plan is needed, the plan shall contain, at a minimum, the following elements:

(1) Description of discharge practices, including nonroutine batch discharges;

(2) Description of stored chemicals;

(3) Procedures for immediately notifying the POTW of slug discharges, including any discharge that would violate a prohibition under 9VAC25-31-770 B, with procedures for follow-up written notification within five days; and

(4) If necessary, procedures to prevent adverse impact from accidental spills, including inspection and maintenance of storage areas, handling and transfer of materials, loading and unloading operations, control of plant site run-off, worker training, building of containment structures or equipment, measures for containing toxic organic pollutants (including solvents), and measures and equipment necessary for emergency response.

g. Investigate instances of noncompliance with pretreatment standards and requirements, as indicated in the reports and notices required under 9VAC25-31-840, or indicated by analysis, inspection, and surveillance activities described in subdivision 2 e of this subsection. Sample taking and analysis and the collection of other information shall be performed with sufficient care to produce evidence admissible in enforcement proceedings or in judicial actions.

h. Comply with the public participation requirements of the Code of Virginia and 40 CFR Part 25 in the enforcement of national pretreatment standards. These procedures shall include provisions for at least annual public notification, in a newspaper of general circulation that provides meaningful public notice within the jurisdiction served by the POTW of industrial users which, at any time during the previous 12 months were in significant noncompliance with applicable pretreatment requirements. For the purposes of this provision, a significant industrial user (or any industrial user that violates subdivision 2 h (3), (4) or (8) of this subsection is in significant noncompliance if its violation meets one or more of the following criteria:

(1) Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all of the measurements taken during a six-month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limits, as defined by 9VAC25-31-10;

(2) Technical Review Criteria (TRC) violations, defined here as those in which 33% or more of all of the measurements for each pollutant parameter taken during a six-month period equal or exceed the product of the numeric pretreatment standard or requirement, including instantaneous limits, as defined by 9VAC25-31-10; multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for all other pollutants except pH);

(3) Any other violation of a pretreatment standard or requirement as defined by 9VAC25-31-10 (daily maximum, long-term average, instantaneous limit, or narrative standard) that the control authority POTW determines has caused, alone or in combination with other discharges, interference or pass through (including endangering the health of POTW personnel or the general public);

(4) Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment or has resulted in the POTW's exercise of its emergency authority under subdivision 1 f of this subsection to halt or prevent such a discharge;

(5) Failure to meet, within 90 days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order for starting construction, completing construction, or attaining final compliance;

(6) Failure to provide, within 45 days after the due date, required reports such as baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports, and reports on compliance with compliance schedules;

(7) Failure to accurately report noncompliance; or

(8) Any other violation or group of violations that may include a violation of Best Management Practices which the POTW determines will adversely affect the operation or implementation of the local pretreatment program.

3. Funding. The POTW shall have sufficient resources and qualified personnel to carry out the authorities and procedures described in subdivisions 1 and 2 of this subsection. In some limited circumstances, funding and personnel may be delayed where (i) the POTW has adequate legal authority and procedures to carry out the pretreatment program requirements described in this section, and (ii) a limited aspect of the program does not need to be implemented immediately (see 9VAC25-31-810 B).

4. Local limits. The POTW shall develop local limits as required in 9VAC25-31-770 C 1, using current influent, effluent and sludge data, or demonstrate that they are not necessary.

5. The POTW shall develop and implement an enforcement response plan. This plan shall contain detailed procedures indicating how a POTW will investigate and respond to instances of industrial user noncompliance. The plan shall, at a minimum:

a. Describe how the POTW will investigate instances of noncompliance;

b. Describe the types of escalating enforcement responses the POTW will take in response to all anticipated types of industrial user violations and the time periods within which responses will take place;

c. Identify (by title) the official or officials responsible for each type of response; and

d. Adequately reflect the POTW's primary responsibility to enforce all applicable pretreatment requirements and standards, as detailed in subdivisions 1 and 2 of this subsection.

6. The POTW shall prepare and maintain a list of its significant industrial users. The list shall identify the criteria in the definition of significant industrial user in Part I (9VAC25-31-10 et seq.) of this chapter which are applicable to each industrial user and, where applicable, shall also indicate whether the POTW has made a determination pursuant to subdivision 3 of that definition that such industrial user should not be considered a significant industrial user. This list shall be submitted to the department pursuant to 9VAC25-31-810 as a nonsubstantial program modification pursuant to 9VAC25-31-900 D. Modifications to the list shall be submitted to the department pursuant to 9VAC25-31-840 I 1.

G. A POTW that chooses to receive electronic documents must satisfy the requirements of 40 CFR Part 3 (electronic reporting).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 14, Issue 9, eff. March 1, 1998; Errata, 14:12 VA.R. 1937 March 2, 1998; Errata, 14:17 VA.R. 2477 May 11, 1998; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 22, Issue 24, eff. September 6, 2006; Volume 28, Issue 10, eff. February 15, 2012; Volume 37, Issue 1, eff. October 1, 2020.

9VAC25-31-805 Pretreatment requirements for testing for PFAS chemicals

A. As used in this section, "PFAS chemical" means (i) perfluorooctanoic acid (PFOA), (ii) perfluorooctane sulfonate (PFOS), (iii) hexafluoropropylene oxide dimer acid (HFPO-DA), (iv) perfluorobutane sulfonate (PFBS), or (v) any substance in a class of fluorinated organic chemicals containing at least two adjacent fluorinated carbon atoms, where one carbon atom is fully fluorinated and the other atom is at least partially fluorinated, excluding gases and volatile liquids, also referred to as perfluoroalkyl and polyfluoroalkyl substances, identified by a publicly owned treatment works in its pretreatment program for which there is a U.S. Environmental Protection Agency approved testing method.

B. Any publicly owned treatment works receiving a wastestream from an industrial user that receives and cleans, repairs, refurbishes, or processes any equipment, parts, or media used to treat any water or wastewater from any off-site manufacturing process that the industrial user knows or reasonably should know uses PFAS chemicals shall require such industrial user to test its wastestream for PFAS chemicals prior to and after cleaning, repairing, refurbishing, or processing such items. The results of such tests shall be transmitted to the receiving POTW within three days of receipt of the test results by the industrial user of the POTW.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 4, eff. November 8, 2023; Errata, 40:5 VA.R. 336 October 23, 2023.

9VAC25-31-810 POTW pretreatment programs and/or authorization to revise pretreatment standards: submission for app

A. A POTW requesting approval of a POTW pretreatment program shall develop a program description which includes the information set forth in subdivisions B 1 through B 4 of this section. This description shall be submitted to the department which will make a determination on the request for program approval in accordance with the procedures described in 9VAC25-31-830.

B. The program description must contain the following information:

1. A statement from the city solicitor or a city official acting in a comparable capacity (or the attorney for those POTWs which have independent legal counsel) that the POTW has authority adequate to carry out the programs described in 9VAC25-31-800. This statement shall:

a. Identify the provision of the legal authority under 9VAC25-31-800 F 1 which provides the basis for each procedure under 9VAC25-31-800 F 2;

b. Identify the manner in which the POTW will implement the program requirements set forth in 9VAC25-31-800, including the means by which pretreatment standards will be applied to individual industrial users (e.g., by order, permit, ordinance, etc.); and

c. Identify how the POTW intends to ensure compliance with pretreatment standards and requirements, and to enforce them in the event of noncompliance by industrial users;

2. A copy of any statutes, ordinances, regulations, agreements, or other authorities relied upon by the POTW for its administration of the program which meet the requirements of 9VAC25-31-800 F 1. This submission shall include a statement reflecting the endorsement or approval of the local boards or bodies responsible for supervising or funding the POTW pretreatment program if approved;

3. A brief description (including organization charts) of the POTW organization which will administer the pretreatment program. If more than one agency is responsible for administration of the program the responsible agencies shall be identified, their respective responsibilities delineated, and their procedures for coordination set forth in an inter-jurisdictional agreement; and

4. A description of the funding levels and full and part-time manpower available to implement the program.

C. The POTW may request conditional approval of the pretreatment program pending the acquisition of funding and personnel from certain elements of the program. The request for conditional approval must meet the requirements set forth in subsection B of this section except that the requirements of subsection B of this section may be relaxed if the submission demonstrates that:

1. A limited aspect of the program does not need to be implemented immediately;

2. The POTW had adequate legal authority and procedures to carry out those aspects of the program which will not be implemented immediately; and

3. Funding and personnel for the program aspects to be implemented at a later date will be available when needed. The POTW will describe in the submission the mechanism by which this funding will be acquired. Upon receipt of a request for conditional approval, the director will establish a fixed date for the acquisition of the needed funding and personnel. If funding is not acquired by this date, the conditional approval of the POTW pretreatment program and any removal allowances granted to the POTW may be modified or withdrawn.

D. The request for authority to revise categorical pretreatment standards must contain the information required in 9VAC25-31-790 D.

E. Any POTW requesting POTW pretreatment program approval shall submit to the department three copies of the submission described in subsection B, and if appropriate, subsection D of this section. Within 60 days after receiving the submission, the director shall make a preliminary determination of whether the submission meets the requirements of subsection B and, if appropriate, subsection D of this section. If the director makes the preliminary determination that the submission meets these requirements, the director shall:

1. Notify the POTW that the submission has been received and is under review; and

2. Commence the public notice and evaluation activities set forth in 9VAC25-31-830.

F. If, after review of the submission as provided for in subsection E of this section, the director determines that the submission does not comply with the requirements of subsections B or C of this section, and, if appropriate, subsection D, of this section, the director shall provide notice in writing to the applying POTW and each person who has requested individual notice. This notification shall identify any defects in the submission and advise the POTW and each person who has requested individual notice of the means by which the POTW can comply with the applicable requirements of subsections B, C of this section, and, if appropriate, subsection D of this section.

G. Consistency with water quality management plans.

1. In order to be approved the POTW pretreatment program shall be consistent with any approved water quality management plan developed in accordance with 40 CFR Parts 130 and 131, as revised, where such 208 plan includes management agency designations and addresses pretreatment in a manner consistent with this part. In order to assure such consistency the director shall solicit the review and comment of the appropriate 208 planning agency during the public comment period provided for in 9VAC25-31-830 B 1 b prior to approval or disapproval of the program.

2. Where no 208 plan has been approved or where a plan has been approved but lacks management agency designations or does not address pretreatment in a manner consistent with this part, the director shall nevertheless solicit the review and comment of the appropriate 208 planning agency.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012.

9VAC25-31-820 [Reserved]. (Reserved)

9VAC25-31-830 Approval procedures for POTW pretreatment programs and POTW granting of removal credits

The following procedures shall be adopted in approving or denying requests for approval of POTW pretreatment programs and applications for removal credit authorization:

A. The director shall have 90 days from the date of public notice of any submission complying with the requirements of 9VAC25-31-810 B and, where removal credit authorization is sought with 9VAC25-31-790 E and 9VAC25-31-810 D, to review the submission. The director shall review the submission to determine compliance with the requirements of 9VAC25-31-800 B and F, and, where removal credit authorization is sought, with 9VAC25-31-790. The director may have up to an additional 90 days to complete the evaluation of the submission if the public comment period provided for in subdivision B 1 b of this section is extended beyond 30 days or if a public hearing is held as provided for in subdivision B 2 of this section. In no event, however, shall the time for evaluation of the submission exceed a total of 180 days from the date of public notice of a submission meeting the requirements of 9VAC25-31-810 B and, in the case of a removal credit application, 9VAC25-31-790 E and 9VAC25-31-810 B.

B. Upon receipt of a submission, the director shall commence its review. Within 20 work days after making a determination that a submission meets the requirements of 9VAC25-31-810 B and, where removal allowance approval is sought, 9VAC25-31-790 D and 9VAC25-31-810 D, the director shall:

1. Issue a public notice of request for approval of the submission.

a. This public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the submission. Procedures for the circulation of public notice shall include:

(1) Mailing, by electronic or postal delivery, notices of the request for approval of the submission to designated CWA § 208 planning agencies, federal and state fish, shellfish, and wildlife resource agencies (unless such agencies have asked not to be sent the notices); and to any other person or group who has requested individual notice, including those on appropriate mailing lists; and

(2) Publication of a notice of request for approval of the submission in a newspaper(s) of general circulation within the jurisdiction(s) served by the POTW that provides meaningful public notice.

b. The public notice shall provide a period of not less than 30 days following the date of the public notice during which time interested persons may submit their written views on the submission.

c. All written comments submitted during the 30-day comment period shall be retained by the director and considered in the decision on whether or not to approve the submission. The period for comment may be extended at the discretion of the director.

2. Provide an opportunity for the applicant, any affected state, any interested state or federal agency, person or group of persons to request a public hearing with respect to the submission.

a. This request for public hearing shall be filed within the 30-day (or extended) comment period described in subdivision 1 b of this subsection and shall indicate the interest of the person filing such request and the reasons why a public hearing is warranted.

b. The director shall hold a public hearing if the POTW so requests. In addition, a public hearing will be held if there is a significant public interest in issues relating to whether or not the submission should be approved. Instances of doubt should be resolved in favor of holding the public hearing.

c. Public notice of a public hearing to consider a submission and sufficient to inform interested parties of the nature of the public hearing and the right to participate shall be published in the same newspaper(s) as the notice of the original request for approval of the submission under subdivision 1 a (2) of this subsection. In addition, notice of the public hearing shall be sent to those persons requesting individual notice.

C. At the end of the 30-day (or extended) comment period and within the 90-day (or extended) period provided for in subsection A of this section, the director shall approve or deny the submission based upon the evaluation in subsection A of this section and taking into consideration comments submitted during the comment period and the record of the public hearing, if held. Where the director makes a determination to deny the request, the director shall so notify the POTW and each person who has requested individual notice. This notification shall include suggested modifications and the director may allow the requestor additional time to bring the submission into compliance with applicable requirements.

D. No POTW pretreatment program or authorization to grant removal allowances shall be approved by the director if following the 30-day (or extended) evaluation period provided for in subdivision B 1 b of this section and any public hearing held pursuant to subdivision B 2 of this section, the regional administrator sets forth in writing objections to the approval of such submission and the reasons for such objections. A copy of the regional administrator's objections shall be provided to the applicant and each person who has requested individual notice. The regional administrator shall provide an opportunity for written comments and may convene a public hearing on his objections. Unless retracted, the regional administrator's objections shall constitute a final ruling to deny approval of a POTW pretreatment program or authorization to grant removal allowances 90 days after the date the objections are issued.

E. The director shall notify those persons who submitted comments and participated in the public hearing, if held, of the approval or disapproval of the submission. In addition, the director shall cause to be published a notice of approval or disapproval in the same newspapers as the original notice of request for approval of the submission was published. The director shall identify in any notice of POTW pretreatment program approval any authorization to modify categorical pretreatment standards which the POTW may make, in accordance with 9VAC25-31-790, for removal of pollutants subject to pretreatment standards.

F. The director shall ensure that the submission and any comments upon such submission are available to the public for inspection and copying.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 14, Issue 9, eff. March 1, 1998; Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-840 Reporting requirements for POTWs and industrial users

A. (Reserved.)

B. Reporting requirements for industrial users upon effective date of categorical pretreatment standard baseline report. Within 180 days after the effective date of a categorical pretreatment standard, or 180 days after the final administrative decision made upon a category determination submission under 9VAC25-31-780 A 4, whichever is later, existing industrial users subject to such categorical pretreatment standards and currently discharging to or scheduled to discharge to a POTW shall be required to submit to the control authority a report which contains the information listed in subdivisions 1 through 7 of this subsection. At least 90 days prior to commencement of discharge, new sources and sources that become industrial users subsequent to the promulgation of an applicable categorical standard shall be required to submit to the control authority a report which contains the information listed in subdivisions 1 through 5 of this subsection. New sources shall also be required to include in this report information on the method of pretreatment the source intends to use to meet applicable pretreatment standards. New sources shall give estimates of the information requested in subdivisions 4 and 5 of this subsection.

1. Identifying information. The user shall submit the name and address of the facility including the name of the operator and owners.

2. Permits. The user shall submit a list of any environmental control permits held by or for the facility.

3. Description of operations. The user shall submit a brief description of the nature, average rate of production, and standard industrial classification of the operation or operations carried out by such industrial user. This description should include a schematic process diagram which indicates points of discharge to the POTW from the regulated processes.

4. Flow measurement. The user shall submit information showing the measured average daily and maximum daily flow, in gallons per day, to the POTW from each of the following:

a. Regulated process streams; and

b. Other streams as necessary to allow use of the combined wastestream formula of 9VAC25-31-780 E. (See subdivision 5 d of this subsection.)

The control authority may allow for verifiable estimates of these flows where justified by cost or feasibility considerations.

5. Measurement of pollutants.

a. The user shall identify the pretreatment standards applicable to each regulated process;

b. In addition, the user shall submit the results of sampling and analysis identifying the nature and concentration (or mass, where required by the standard or control authority) of regulated pollutants in the discharge from each regulated process. Both daily maximum and average concentration (or mass, where required) shall be reported. The sample shall be representative of daily operations. In cases where the standard requires compliance with a Best Management Practice or pollution prevention alternative, the user shall submit documentation as required by the control authority or the applicable standards to determine compliance with the standard;

c. The user shall take a minimum of one representative sample to compile that data necessary to comply with the requirements of this subsection;

d. Samples shall be taken immediately downstream from pretreatment facilities if such exist or immediately downstream from the regulated process if no pretreatment exists. If other wastewaters are mixed with the regulated wastewater prior to pretreatment, the user shall measure the flows and concentrations necessary to allow use of the combined wastestream formula of 9VAC25-31-780 E in order to evaluate compliance with the pretreatment standards. Where an alternate concentration or mass limit has been calculated in accordance with 9VAC25-31-780 E, this adjusted limit along with supporting data shall be submitted to the control authority;

e. Sampling and analysis shall be performed in accordance with the techniques prescribed in 40 CFR Part 136 and amendments thereto. Where 40 CFR Part 136 does not contain sampling or analytical techniques for the pollutant in question, or where the administrator determines that the Part 136 sampling and analytical techniques are inappropriate for the pollutant in question, sampling and analysis shall be performed by using validated analytical methods or any other applicable sampling and analytical procedures, including procedures suggested by the POTW or other parties, approved by the administrator;

f. The control authority may allow the submission of a baseline report which utilizes only historical data so long as the data provides information sufficient to determine the need for industrial pretreatment measures; and

g. The baseline report shall indicate the time, date and place of sampling, and methods of analysis, and shall certify that such sampling and analysis is representative of normal work cycles and expected pollutant discharges to the POTW.

6. Certification. A statement, reviewed by an authorized representative of the industrial user (as defined in subsection M of this section) and certified to by a qualified professional, indicating whether pretreatment standards are being met on a consistent basis, and, if not, whether additional operation and maintenance (O and M) or additional pretreatment, or both, are required for the industrial user to meet the pretreatment standards and requirements.

7. Compliance schedule. If additional pretreatment or O and M, or both, will be required to meet the pretreatment standards, the shortest schedule by which the industrial user will provide such additional pretreatment or O and M, or both. The completion date in this schedule shall not be later than the compliance date established for the applicable pretreatment standard.

a. Where the industrial user's categorical pretreatment standard has been modified by a removal allowance (9VAC25-31-790), the combined wastestream formula (9VAC25-31-780 E), or a fundamentally different factors variance (9VAC25-31-850), or any combination of them, at the time the user submits the report required by this subsection, the information required by subdivisions 6 and 7 of this subsection shall pertain to the modified limits.

b. If the categorical pretreatment standard is modified by a removal allowance (9VAC25-31-790), the combined wastestream formula (9VAC25-31-780 E), or a fundamentally different factors variance (9VAC25-31-850), or any combination of them, after the user submits the report required by this subsection, any necessary amendments to the information requested by subdivisions 6 and 7 of this subsection shall be submitted by the user to the control authority within 60 days after the modified limit is approved.

C. Compliance schedule for meeting categorical pretreatment standards. The following conditions shall apply to the schedule required by subdivision B 7 of this section:

1. The schedule shall contain increments of progress in the form of dates for the commencement and completion of major events leading to the construction and operation of additional pretreatment required for the industrial user to meet the applicable categorical pretreatment standards (e.g., hiring an engineer, completing preliminary plans, completing final plans, executing contract for major components, commencing construction, completing construction, etc.);

2. No increment referred to in subdivision 1 of this subsection shall exceed nine months; and

3. Not later than 14 days following each date in the schedule and the final date for compliance, the industrial user shall submit a progress report to the control authority including, at a minimum, whether or not it complied with the increment of progress to be met on such date and, if not, the date on which it expects to comply with this increment of progress, the reason for delay, and the steps being taken by the industrial user to return the construction to the schedule established. In no event shall more than nine months elapse between such progress reports to the control authority.

D. Report on compliance with categorical pretreatment standard deadline. Within 90 days following the date for final compliance with applicable categorical pretreatment standards or in the case of a new source following commencement of the introduction of wastewater into the POTW, any industrial user subject to pretreatment standards and requirements shall submit to the control authority a report containing the information described in subdivisions B 4 through B 6 of this section. For industrial users subject to equivalent mass or concentration limits established by the control authority in accordance with the procedures in 9VAC25-31-780 C, this report shall contain a reasonable measure of the user's long-term production rate. For all other industrial users subject to categorical pretreatment standards expressed in terms of allowable pollutant discharge per unit of production (or other measure of operation), this report shall include the user's actual production during the appropriate sampling period.

E. Periodic reports on continued compliance.

1. Any industrial user subject to a categorical pretreatment standard, after the compliance date of such pretreatment standard, or, in the case of a new source, after commencement of the discharge into the POTW, shall submit to the control authority during the months of June and December, unless required more frequently in the pretreatment standard or by the control authority or the director, a report indicating the nature and concentration of pollutants in the effluent which are limited by such categorical pretreatment standards. In addition, this report shall include a record of measured or estimated average and maximum daily flows for the reporting period for the discharge reported in subdivision B 4 of this section except that the control authority may require more detailed reporting of flows. In cases where the pretreatment standard requires compliance with a Best Management Practice (or pollution prevention alternative), the user shall submit documentation required by the control authority or the pretreatment standard necessary to determine the compliance status of the user. At the discretion of the control authority and in consideration of such factors as local high or low flow rates, holidays, budget cycles, etc., the control authority may agree to alter the months during which the above reports are to be submitted. For industrial users for which the department is the control authority, as of the start date in Table 1 of 9VAC25-31-1020, all reports submitted in compliance with this subsection shall be submitted electronically by the industrial user to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, the industrial users for which the department is the control authority may be required to report electronically if specified by a particular control mechanism.

2. The control authority may authorize the industrial user subject to a categorical pretreatment standard to forego sampling of a pollutant regulated by a categorical pretreatment standard if the industrial user has demonstrated through sampling and other technical factors that the pollutant is neither present nor expected to be present in the discharge, or is present only at background levels from intake water and without any increase in the pollutant due to activities of the industrial user. This authorization is subject to the following conditions:

a. The control authority may authorize a waiver where a pollutant is determined to be present solely due to sanitary wastewater discharged from the facility provided that the sanitary wastewater is not regulated by an applicable categorical standard and otherwise includes no process wastewater.

b. The monitoring waiver is valid only for the duration of the effective period of the permit or other equivalent individual control mechanism, but in no case longer than five years. The user must submit a new request for the waiver before the waiver can be granted for each subsequent control mechanism.

c. In making a demonstration that a pollutant is not present, the industrial user must provide data from at least one sampling of the facility's process wastewater prior to any treatment present at the facility that is representative of all wastewater from all processes. The request for a monitoring waiver must be signed in accordance with subsection L of this subsection, and include the certification statement in 9VAC25-31-780 A 2 b. Nondetectable sample results may only be used as a demonstration that a pollutant is not present if the EPA approved method from 40 CFR Part 136 with the lowest minimum detection level for that pollutant was used in the analysis.

d. Any grant of the monitoring waiver by the control authority must be included as a condition in the user's control mechanism. The reasons supporting the waiver and any information submitted by the user in its request for the waiver must be maintained by the control authority for three years after expiration of the waiver.

e. Upon approval of the monitoring waiver and revision of the user's control mechanism by the control authority, the industrial user must certify on each report with the statement below, that there has been no increase in the pollutant in its wastestream due to activities of the industrial user:

"Based on my inquiry of the person or persons directly responsible for managing compliance with the pretreatment standard for 40 CFR [specify applicable national pretreatment standard part(s)], I certify that, to the best of my knowledge and belief, there has been no increase in the level of [list pollutant(s)] in the wastewaters due to the activities at the facility since filing of the last periodic report under 9VAC25-31-840 E 1."

f. In the event that a waived pollutant is found to be present or is expected to be present based on changes that occur in the user's operations, the user must immediately: Comply with the monitoring requirements of subdivision 1 of this subsection or other more frequent monitoring requirements imposed by the control authority, and notify the control authority.

g. This provision does not supersede certification processes and requirements established in categorical pretreatment standards, except as otherwise specified in the categorical pretreatment standard.

3. The control authority may reduce the requirement in the subdivision 1 of this subsection to a requirement to report no less frequently than once a year, unless required more frequently in the pretreatment standard or by the approval authority, where the industrial user meets all of the following conditions:

a. The industrial user's total categorical wastewater flow does not exceed any of the following:

(1) 0.01% of the design dry weather hydraulic capacity of the POTW, or 5,000 gallons per day, whichever is smaller, as measured by a continuous effluent flow monitoring device unless the industrial user discharges in batches;

(2) 0.01% of the design dry weather organic treatment capacity of the POTW; and

(3) 0.01% of the maximum allowable headworks loading for any pollutant regulated by the applicable categorical pretreatment standard for which approved local limits were developed by a POTW in accordance with 9VAC25-31-770 C and D.

b. The industrial user has not been in significant noncompliance, as defined in 9VAC25-31-800 F 2 g, for any time in the past two years;

c. The Industrial User does not have daily flow rates, production levels, or pollutant levels that vary so significantly that decreasing the reporting requirement for this Industrial User would result in data that are not representative of conditions occurring during the reporting period pursuant to subdivision G 3 of this section;

d. The industrial user must notify the control authority immediately of any changes at its facility causing it to no longer meet conditions of subdivision 3 a or b of this subsection. Upon notification, the industrial user must immediately begin complying with the minimum reporting in subdivision 1 of this subsection; and

e. The control authority must retain documentation to support the control authority's determination that a specific industrial user qualifies for reduced reporting requirements under subdivision 3 of this subsection for a period of three years after the expiration of the term of the control mechanism.

4. Where the control authority has imposed mass limitations on industrial users as provided for by 9VAC25-31-780 C, the report required by subdivision 1 of this subsection shall indicate the mass of pollutants regulated by pretreatment standards in the discharge from the industrial user.

5. For industrial users subject to equivalent mass or concentration limits established by the control authority in accordance with the procedures in 9VAC25-31-780 C, the report required by subdivision 1 of this subsection shall contain a reasonable measure of the user's long-term production rate. For all other industrial users subject to categorical pretreatment standards expressed only in terms of allowable pollutant discharge per unit of production (or other measure of operation), the report required by subdivision 1 of this subsection shall include the user's actual average production rate for the reporting period.

F. Notice of potential problems, including slug loading. All categorical and noncategorical industrial users shall notify the POTW immediately of all discharges that could cause problems to the POTW, including any slug loadings, as defined by 9VAC25-31-770 B, by the industrial user.

G. Monitoring and analysis to demonstrate continued compliance with pretreatment standards and requirements.

1. Except in the case of nonsignificant categorical users, the reports required in subsections B, D, E, and H of this section shall contain the results of sampling and analysis of the discharge, including the flow and the nature and concentration, or production and mass where requested by the control authority, of pollutants contained therein which are limited by the applicable pretreatment standards. This sampling and analysis may be performed by the control authority in lieu of the industrial user. Where the POTW performs the required sampling and analysis in lieu of the industrial user, the user will not be required to submit the compliance certification required under subdivision B 6 and subsection D of this section. In addition, where the POTW itself collects all the information required for the report, including flow data, the industrial user will not be required to submit the report.

2. If sampling performed by an industrial user indicates a violation, the user shall notify the control authority within 24 hours of becoming aware of the violation. The user shall also repeat the sampling and analysis and submit the results of the repeat analysis to the control authority within 30 days after becoming aware of the violation. Where the control authority has performed the sampling and analysis in lieu of the industrial user, the control authority must perform the repeat sampling and analysis unless it notifies the user of the violation and requires the user to perform the repeat analysis. Resampling is not required if:

a. The control authority performs sampling at the industrial user at a frequency of at least once per month; or

b. The control authority performs sampling at the user between the time when the initial sampling was conducted and the time when the user or the control authority receives the results of this sampling.

3. The reports required in subsection E of this section must be based upon data obtained through appropriate sampling and analysis performed during the period covered by the report, which data are representative of conditions occurring during the reporting period. The control authority shall require that frequency of monitoring necessary to assess and assure compliance by industrial users with applicable pretreatment standards and requirements. Grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide, and volatile organic compounds. For all other pollutants, 24-hour composite samples must be obtained through flow-proportional composite sampling techniques, unless time-proportional composite sampling or grab sampling is authorized by the control authority. Where time-proportional composite sampling or grab sampling is authorized by the control authority, the samples must be representative of the discharge and the decision to allow the alternative sampling must be documented in the industrial user file for that facility or facilities. Using protocols (including appropriate preservation) specified in 40 CFR Part 136 and appropriate EPA guidance, multiple grab samples collected during a 24-hour period may be composited prior to the analysis as follows: for cyanide, total phenols, and sulfides the samples may be composited in the laboratory or in the field; for volatile organics and oil and grease the samples may be composited in the laboratory. Composite samples for other parameters unaffected by the compositing procedures as documented in approved EPA methodologies may be authorized by the control authority, as appropriate.

4. For sampling required in support of baseline monitoring and 90-day compliance reports required in subsections B and D of this section, a minimum of four grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide and volatile organic compounds for facilities for which historical sampling data do not exist; for facilities for which historical sampling data are available, the Control Authority may authorize a lower minimum. For the reports required by subsections E and H of this section, the control authority shall require the number of grab samples necessary to assess and assure compliance by industrial users with applicable pretreatment standards and requirements.

5. All analyses shall be performed in accordance with procedures contained in 40 CFR Part 136 and amendments thereto or with any other test procedures approved by EPA, and shall be reported to the control authority. Sampling shall be performed in accordance with EPA-approved techniques. Where 40 CFR Part 136 does not include sampling or analytical techniques for the pollutants in question, or where EPA determines that the Part 136 sampling and analytical techniques are inappropriate for the pollutant in question, sampling and analyses shall be performed using validated analytical methods or any other sampling and analytical procedures, including procedures suggested by the POTW or other parties, approved by EPA.

6. If an industrial user subject to the reporting requirement in subsection E or H of this section monitors any regulated pollutant at the appropriate sampling location more frequently than required by the control authority, using the procedures prescribed in subdivision 5 of this subsection, the results of this monitoring shall be included in the report.

H. Reporting requirements for industrial users not subject to categorical pretreatment standards. The control authority must require appropriate reporting from those industrial users with discharges that are not subject to categorical pretreatment standards. Significant noncategorical industrial users must submit to the control authority at least once every six months (on dates specified by the control authority) a description of the nature, concentration, and flow of the pollutants required to be reported by the control authority. In cases where a local limit requires compliance with a Best Management Practice or pollution prevention alternative, the user must submit documentation required by the control authority to determine the compliance status of the user. These reports must be based on sampling and analysis performed in the period covered by the report, and in accordance with the techniques described in 40 CFR Part 136 and amendments thereto. This sampling and analysis may be performed by the control authority in lieu of the significant noncategorical industrial user. For industrial users for which the department is the control authority, as of the start date in Table 1 of 9VAC25-31-1020, all reports submitted in compliance with this subsection shall be submitted electronically by the industrial user to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, the industrial users for which the department is the control authority may be required to report electronically if specified by a particular control mechanism.

I. Annual POTW reports. POTWs with approved pretreatment programs shall provide the department with a report that briefly describes the POTW's program activities, including activities of all participating agencies if more than one jurisdiction is involved in the local program. The report required by this section shall be submitted no later than one year after approval of the POTW's pretreatment program, and at least annually thereafter, and shall include, at a minimum, the following:

1. An updated list of the POTW's industrial users, including their names and addresses, or a list of deletions and additions keyed to a previously submitted list. The POTW shall provide a brief explanation of each deletion. This list shall identify which industrial users are subject to categorical pretreatment standards and specify which standards are applicable to each industrial user. The list shall indicate which industrial users are subject to local standards that are more stringent than the categorical pretreatment standards. The POTW shall also list the industrial users that are subject only to local requirements. The list must also identify industrial users subject to categorical pretreatment standards that are subject to reduced reporting requirements under subdivision E 3 of this section and identify which industrial users are nonsignificant categorical industrial users;

2. A summary of the status of industrial user compliance over the reporting period;

3. A summary of compliance and enforcement activities (including inspections) conducted by the POTW during the reporting period;

4. A summary of changes to the POTW's pretreatment program that have not been previously reported to the department;

5. Any other relevant information requested by the director;

6. Any additional applicable required data in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030; and

7. As of the start date in Table 1 of 9VAC25-31-1020, all annual reports submitted in compliance with this subsection shall be submitted electronically by the POTW pretreatment program to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of this chapter, the department may also require POTW pretreatment programs to electronically submit annual reports under this section if specified by a particular permit.

J. Notification of changed discharge. All industrial users shall promptly notify the control authority (and the POTW if the POTW is not the control authority) in advance of any substantial change in the volume or character of pollutants in their discharge, including the listed or characteristic hazardous wastes for which the industrial user has submitted initial notification under the Code of Virginia and this section.

K. Compliance schedule for POTWs. The following conditions and reporting requirements shall apply to the compliance schedule for development of an approvable POTW pretreatment program required by 9VAC25-31-800:

1. The schedule shall contain increments of progress in the form of dates for the commencement and completion of major events leading to the development and implementation of a POTW pretreatment program (e.g., acquiring required authorities, developing funding mechanisms, acquiring equipment);

2. No increment referred to in subdivision 1 of this subsection shall exceed nine months; and

3. Not later than 14 days following each date in the schedule and the final date for compliance, the POTW shall submit a progress report to the department including, at a minimum, whether or not it complied with the increment of progress to be met on such date and, if not, the date on which it expects to comply with this increment of progress, the reason for delay, and the steps taken by the POTW to return to the schedule established. In no event shall more than nine months elapse between such progress reports to the department.

L. Signatory requirements for industrial user reports. The reports required by subsections B, D, and E of this section shall include the certification statement as set forth in 9VAC25-31-780 A 2 b, and shall be signed as follows:

1. By a responsible corporate officer, if the industrial user submitting the reports required by subsections B, D and E of this section is a corporation. For the purpose of this subdivision, a responsible corporate officer means (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy-making or decision-making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities, provided, the manager is authorized to make management decisions that govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiate and direct other comprehensive measures to assure long-term environmental compliance with environmental laws and regulations; can ensure that the necessary systems are established or actions taken to gather complete and accurate information for control mechanism requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

2. By a general partner or proprietor if the industrial user submitting the reports required by subsections B, D and E of this section is a partnership or sole proprietorship, respectively.

3. By a duly authorized representative of the individual designated in subdivision 1 or 2 of this subsection if:

a. The authorization is made in writing by the individual described in subdivision 1 or 2 of this subsection;

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the facility from which the industrial discharge originates, such as the position of plant manager, operator of a well, or well field superintendent, or a position of equivalent responsibility, or having overall responsibility for environmental matters for the company; and

c. The written authorization is submitted to the control authority.

4. If an authorization under subdivision 3 of this subsection is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, or overall responsibility for environmental matters for the company, a new authorization satisfying the requirements of subdivision 3 of this subsection must be submitted to the control authority prior to or together with any reports to be signed by an authorized representative.

M. Signatory requirements for POTW reports. Reports submitted to the department by the POTW in accordance with subsection I of this section must be signed by a principal executive officer, ranking elected official or other duly authorized employee. The duly authorized employee must be an individual or position having responsibility for the overall operation of the facility or the pretreatment program. This authorization must be made in writing by the principal executive officer or ranking elected official, and submitted to the approval authority prior to or together with the report being submitted.

N. Provision governing fraud and false statements. The reports and other documents required to be submitted or maintained under this section shall be subject to:

1. The provisions of 18 USC § 1001 relating to fraud and false statements;

2. The provisions of the law or § 309(c)(4) of the CWA, as amended, governing false statements, representation or certification; and

3. The provisions of § 309(c)(6) of the CWA regarding responsible corporate officers.

O. Recordkeeping requirements.

1. Any industrial user and POTW subject to the reporting requirements established in this section shall maintain records of all information resulting from any monitoring activities required by this section including documentation associated with Best Management Practices. Such records shall include for all samples:

a. The date, exact place, method, and time of sampling and the names of the person or persons taking the samples;

b. The dates analyses were performed;

c. Who performed the analyses;

d. The analytical techniques/methods used; and

e. The results of such analyses.

2. Any industrial user or POTW subject to the reporting requirements established in this section (including documentation associated with Best Management Practices) shall be required to retain for a minimum of three years any records of monitoring activities and results (whether or not such monitoring activities are required by this section) and shall make such records available for inspection and copying by the director and the regional administrator (and POTW in the case of an industrial user). This period of retention shall be extended during the course of any unresolved litigation regarding the industrial user or POTW or when requested by the director or the regional administrator.

3. Any POTW to which reports are submitted by an industrial user pursuant to subsections B, D, E, and H of this section shall retain such reports for a minimum of three years and shall make such reports available for inspection and copying by the director and the regional administrator. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the industrial user or the operation of the POTW pretreatment program or when requested by the director or the regional administrator.

P. 1. The industrial user shall notify the POTW, the EPA Regional Waste Management Division Director, and state hazardous waste authorities in writing of any discharge into the POTW of a substance, which, if otherwise disposed of, would be a hazardous waste under the Code of Virginia and 40 CFR Part 261. Such notification must include the name of the hazardous waste as set forth in the Code of Virginia and 40 CFR Part 261, the EPA hazardous waste number, and the type of discharge (continuous, batch, or other). If the industrial user discharges more than 100 kilograms of such waste per calendar month to the POTW, the notification shall also contain the following information to the extent such information is known and readily available to the industrial user: An identification of the hazardous constituents contained in the wastes, an estimation of the mass and concentration of such constituents in the wastestream discharged during that calendar month, and an estimation of the mass of constituents in the wastestream expected to be discharged during the following 12 months. All notifications must take place within 180 days of the effective date of this rule. Industrial users who commence discharging after the effective date of this rule shall provide the notification no later than 180 days after the discharge of the listed or characteristic hazardous waste. Any notification under this subsection need be submitted only once for each hazardous waste discharged. However, notifications of changed discharges must be submitted under subsection J of this section. The notification requirement in this section does not apply to pollutants already reported under self-monitoring requirements of subsections B, D, and E of this section.

2. Dischargers are exempt from the requirements of subdivision 1 of this subsection during a calendar month in which they discharge no more than 15 kilograms of hazardous wastes, unless the wastes are acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e). Discharge of more than 15 kilograms of nonacute hazardous wastes in a calendar month, or of any quantity of acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e), requires a one-time notification. Subsequent months during which the industrial user discharges more than such quantities of any hazardous waste do not require additional notification.

3. In the case of any new regulations under § 3001 of RCRA (42 USC § 6901 et seq.) identifying additional characteristics of hazardous waste or listing any additional substance as a hazardous waste, the industrial user must notify the POTW, the EPA Regional Waste Management Waste Division Director, and state hazardous waste authorities of the discharge of such substance within 90 days of the effective date of such regulations.

4. In the case of any notification made under this subsection, the industrial user shall certify that it has a program in place to reduce the volume and toxicity of hazardous wastes generated to the degree it has determined to be economically practical.

Q. Annual certification by nonsignificant categorical industrial users. A facility determined to be a nonsignificant categorical industrial user pursuant to 9VAC25-31-10 must annually submit the following certification statement, signed in accordance with the signatory requirements in subsection L of this section. This certification must accompany an alternative report required by the control authority:

"Based on my inquiry of the person or persons directly responsible for managing compliance with the categorical pretreatment standards under 40 CFR ____, I certify that, to the best of my knowledge and belief that during the period from __________, ________ to ________, ________ [months, days, year]:

1. The facility described as ____________________ [facility name] met the definition of a nonsignificant categorical industrial user as described in 9VAC25-31-10;

2. The facility complied with all applicable pretreatment standards and requirements during this reporting period; and

3. The facility never discharged more than 100 gallons of total categorical wastewater on any given day during this reporting period. This compliance certification is based upon the following information.

_____________"

R. The control authority that chooses to receive electronic documents must satisfy the requirements of 40 CFR Part 3 (Electronic reporting).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 14, Issue 9, eff. March 1, 1998; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 18, Issue 9, eff. February 15, 2002; Volume 22, Issue 24, eff. September 6, 2006; Volume 28, Issue 10, eff. February 15, 2012; Volume 33, Issue 22, eff. July 26, 2017.

9VAC25-31-850 Variances from categorical pretreatment standards for fundamentally different factors

A. The term "requester" means an industrial user or a POTW or other interested person seeking a variance from the limits specified in a categorical pretreatment standard.

B. Any interested person believing that factors relating to an industrial user are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that user and further, that the existence of those factors justifies a different discharge limit than specified in the applicable categorical pretreatment standard, may request a fundamentally different factors variance under this section.

C. Criteria.

1. General criteria. A request for a variance based upon fundamentally different factors shall be approved only if:

a. There is an applicable categorical pretreatment standard which specifically controls the pollutant for which alternative limits have been requested;

b. Factors relating to the discharge controlled by the categorical pretreatment standard are fundamentally different from the factors considered by EPA in establishing the standards; and

c. The request for a variance is made in accordance with the procedural requirements in subsections G and H of this section.

2. Criteria applicable to less stringent limits. A variance request for the establishment of limits less stringent than required by the standard shall be approved only if:

a. The alternative limit requested is no less stringent than justified by the fundamental difference;

b. The alternative limit will not result in a violation of prohibitive discharge standards prescribed by or established under 9VAC25-31-770;

c. The alternative limit will not result in a nonwater quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the pretreatment standards; and

d. Compliance with the standards (either by using the technologies upon which the standards are based or by using other control alternatives) would result in either:

(1) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or

(2) A nonwater quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.

3. Criteria applicable to more stringent limits. A variance request for the establishment of limits more stringent than required by the standards shall be approved only if:

a. The alternative limit request is no more stringent than justified by the fundamental difference; and

b. Compliance with the alternative limit would not result in either:

(1) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or

(2) A nonwater quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.

D. Factors considered fundamentally different. Factors which may be considered fundamentally different are:

1. The nature or quality of pollutants contained in the raw waste load of the user's process wastewater;

2. The volume of the user's process wastewater and effluent discharged;

3. Nonwater quality environmental impact of control and treatment of the user's raw waste load;

4. Energy requirements of the application of control and treatment technology;

5. Age, size, land availability, and configuration as they relate to the user's equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology; and

6. Cost of compliance with required control technology.

E. Factors which will not be considered fundamentally different. A variance request or portion of such a request under this section may not be granted on any of the following grounds:

1. The feasibility of installing the required waste treatment equipment within the time the CWA allows;

2. The assertion that the standards cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factors listed in subsection D of this section;

3. The user's ability to pay for the required waste treatment; or

4. The impact of a discharge on the quality of the POTW's receiving waters.

F. Local law. Nothing in this section shall be construed to impair the right of any locality under the Code of Virginia or § 510 of the CWA to impose more stringent limitations than required by federal law.

G. Application deadline.

1. Requests for a variance and supporting information must be submitted in writing to the department or to the administrator, as appropriate.

2. In order to be considered, a request for a variance must be submitted no later than 180 days after the date on which a categorical pretreatment standard is published in the Federal Register.

3. Where the user has requested a categorical determination pursuant to 9VAC25-31-780 A, the user may elect to await the results of the category determination before submitting a variance request under this section. Where the user so elects, he must submit the variance request within 30 days after a final decision has been made on the categorical determination pursuant to 9VAC25-31-780 A 4.

H. Contents submission. Written submissions for variance requests, whether made to the administrator or the department, must include:

1. The name and address of the person making the request;

2. Identification of the interest of the requester which is affected by the categorical pretreatment standard for which the variance is requested;

3. Identification of the POTW currently receiving the waste from the industrial user for which alternative discharge limits are requested;

4. Identification of the categorical pretreatment standards which are applicable to the industrial user;

5. A list of each pollutant or pollutant parameter for which an alternative discharge limit is sought;

6. The alternative discharge limits proposed by the requester for each pollutant or pollutant parameter identified in subdivision 5 of this subsection;

7. A description of the industrial user "s existing water pollution control facilities;

8. A schematic flow representation of the industrial user's water system including water supply, process wastewater systems, and points of discharge; and

9. A statement of facts clearly establishing why the variance request should be approved, including detailed support data, documentation, and evidence necessary to fully evaluate the merits of the request, e.g., technical and economic data collected by the EPA and used in developing each pollutant discharge limit in the pretreatment standard.

I. Deficient requests. The administrator or the director will only act on written requests for variances that contain all of the information required. Persons who have made incomplete submissions will be notified by the administrator or the director that their requests are deficient and unless the time period is extended, will be given up to 30 days to remedy the deficiency. If the deficiency is not corrected within the time period allowed by the administrator or the director, the request for a variance shall be denied.

J. Public notice. Upon receipt of a complete request, the administrator or the director will provide notice of receipt, opportunity to review the submission, and opportunity to comment.

1. The public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the request. Procedures for the circulation of public notice shall include mailing, by electronic or postal delivery, notices to:

a. The POTW into which the industrial user requesting the variance discharges;

b. Adjoining states whose waters may be affected; and

c. Designated 208 planning agencies, federal and state fish, shellfish and wildlife resource agencies; and to any other person or group who has requested individual notice, including those on appropriate mailing lists.

2. The public notice shall provide for a period not less than 30 days following the date of the public notice during which time interested persons may review the request and submit their written views on the request.

3. Following the comment period, the administrator or the director will make a determination on the request taking into consideration any comments received. Notice of this final decision shall be provided to the requester (and the industrial user for which the variance is requested if different), the POTW into which the industrial user discharges and all persons who submitted comments on the request.

K. Review of requests.

1. Where the director finds that fundamentally different factors do not exist, he may deny the request and notify the requester (and industrial user where they are not the same) and the POTW of the denial.

2. Where the director finds that fundamentally different factors do exist, he shall forward the request, with a recommendation that the request be approved, to the administrator.

History

• Statutory Authority: §§ 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-31-860 Confidentiality

Any information submitted to the department pursuant to this part may be claimed as secret formulae, secret processes or secret methods, other than effluent data, by the submitter. Any such claim will be considered under the conditions of 9VAC25-31-80.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-870 Net/gross calculation

A. Application. Categorical pretreatment standards may be adjusted to reflect the presence of pollutants in the industrial user's intake water in accordance with this section. Any industrial user wishing to obtain credit for intake pollutants must make application to the control authority. Upon request of the industrial user, the applicable standard will be calculated on a "net" basis (i.e., adjusted to reflect credit for pollutants in the intake water) if the requirements of subsection B of this section are met.

B. Criteria.

1. Either

a. The applicable categorical pretreatment standards contained in 40 CFR subchapter N specifically provide that they shall be applied on a net basis; or

b. The industrial user demonstrates that the control system it proposes or uses to meet applicable categorical pretreatment standards would, if properly installed and operated, meet the standards in the absence of pollutants in the intake waters.

2. Credit for generic pollutants such as biochemical oxygen demand (BOD), total suspended solids (TSS), and oil and grease should not be granted unless the industrial user demonstrates that the constituents of the generic measure in the user's effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.

3. Credit shall be granted only to the extent necessary to meet the applicable categorical pretreatment standards or standards, up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with standards adjusted under this section.

4. Credit shall be granted only if the user demonstrates that the intake water is drawn from the same body of water as that into which the POTW discharges. The control authority may waive this requirement if it finds that no environmental degradation will result.

History

• Statutory Authority: § 62.1-44.15 (10) of the Code of Virginia; § 402 of the Clean Water Act, 40 CFR Parts 122, 123, 124, 403 and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 22, Issue 24, eff. September 6, 2006.

9VAC25-31-880 Upset provision

A. For the purposes of this section, "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the industrial user. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

B. An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection C of this section are met.

C. An industrial user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

1. An upset occurred and the industrial user can identify the cause or causes of the upset;

2. The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and

3. The industrial user has submitted the following information to the POTW and control authority within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days):

a. A description of the indirect discharge and cause of noncompliance;

b. The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and

c. Steps being taken or planned, or both, to reduce, eliminate and prevent recurrence of the noncompliance.

D. In any enforcement proceeding the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.

E. In the usual exercise of prosecutorial discretion, the director should review any claims that noncompliance was caused by an upset. No determinations made in the course of the review constitute final director action subject to judicial review. Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.

F. The industrial user shall control production or all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-890 Bypass

A. Definitions. For the purpose of this section:

1. "Bypass" means the intentional diversion of wastestreams from any portion of an industrial user "s treatment facility.

2. "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

B. Bypass not violating applicable pretreatment standards or requirements. An industrial user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of subsections C and D of this section.

C. Notice.

1. If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the control authority, if possible at least 10 days before the date of the bypass.

2. An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the control authority within 24 hours from the time the industrial user becomes aware of the bypass. A written submission shall also be provided within five days of the time the industrial user becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the bypass. The control authority may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.

D. Prohibition of bypass.

1. Bypass is prohibited, and the control authority may take enforcement action against an industrial user for a bypass, unless;

a. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

b. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventative maintenance; and

c. The industrial user submitted notices as required under subsection C of this section.

2. The control authority may approve an anticipated bypass, after considering its adverse effects, if the control authority determines that it will meet the three conditions listed in subdivision 1 of this subsection.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-31-900 Modification of POTW pretreatment programs

A. Either the director or a POTW with an approved POTW pretreatment program may initiate program modification at any time to reflect changing conditions at the POTW. Program modification is necessary whenever there is a significant change in the operation of a POTW pretreatment program that differs from the information in the POTW's submission, as approved under 9VAC25-31-830.

B. Substantial modifications defined. Substantial modifications include:

1. Modifications that relax POTW legal authorities (as described in 9VAC25-31-800 F 1, except for modifications that directly reflect a revision to this part or to 40 CFR Chapter I, Subchapter N, and are reported pursuant to subsection D of this section;

2. Modifications that relax local limits, except for the modifications to local limits for pH and reallocations of the maximum allowable industrial loading of a pollutant that do not increase the total industrial loadings for the pollutant, which are reported pursuant to subsection D of this section. Maximum allowable industrial loading means the total mass of a pollutant that all industrial users of a POTW (or a subgroup of industrial users identified by the POTW) may discharge pursuant to limits developed under 9VAC25-31-770 C;

3. Changes to the POTW's control mechanism as described in 9VAC25-31-800 F 1 c;

4. A decrease in the frequency of self-monitoring or reporting required of industrial users;

5. A decrease in the frequency of industrial user inspections or sampling by the POTW;

6. Changes to the POTW's confidentiality procedures; and

7. Other modifications designated as substantial modifications by the director on the basis that the modification could have a significant impact on the operation of the POTW's pretreatment program, could result in an increase in pollutant loadings at the POTW, or could result in less stringent requirements being imposed on industrial users of the POTW.

C. Approval procedures for substantial modifications.

1. The POTW shall submit to the department a statement of the basis for the desired program modification, a modified program description (see 9VAC25-31-810 B), or such other documents the director determines to be necessary under the circumstances.

2. The director shall approve or disapprove the modification based on the requirements of 9VAC25-31-800 F and using the procedures in 9VAC25-31-830 B through F, except as provided in subdivisions C 3 and C 4 of this section. The modification shall become effective upon approval by the director.

3. The director need not publish a notice of decision under 9VAC25-31-830 E provided (i) the notice of request for approval under 9VAC25-31-830 B 1 states that the request will be approved if no comments are received by a date specified in the notice; (ii) no substantive comments are received; and (iii) the request is approved without change.

4. Notices required by 9VAC25-31-830 may be performed by the POTW provided that the director finds that the POTW notice otherwise satisfies the requirements of 9VAC25-31-830.

D. Approval procedures for nonsubstantial modifications.

1. The POTW shall notify the department of any nonsubstantial modification at least 45 days prior to implementation by the POTW in a statement similar to that provided for in subdivision C 1 of this section.

2. Within 45 days after the submission of the POTW's statement, the director shall notify the POTW of his decision to approve or disapprove the nonsubstantial modification.

3. If the director does not notify the POTW within 45 days of his decision to approve or deny the modification or to treat the modification as substantial under subdivision B 7 of this section, the POTW may implement the modification.

E. Incorporation in permit. All modifications shall be incorporated into the POTW's VPDES permit upon approval. The permit will be modified to incorporate the approved modification in accordance with 9VAC25-31-400.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 14, Issue 9, eff. March 1, 1998; Errata, 14:17 VA.R. 2477 May 11, 1998; amended, Virginia Register Volume 18, Issue 9, eff. February 15, 2002; Volume 28, Issue 10, eff. February 15, 2012.

Part VIII Enforcement

9VAC25-31-910 Enforcement

A. The department may enforce the provisions of this chapter by:

1. Issuing directives in accordance with the law;

2. Issuing special orders in accordance with the law;

3. Issuing emergency special orders in accordance with the law;

4. Seeking injunction, mandamus or other appropriate remedy as authorized by the law;

5. Seeking civil penalties under the law; or

6. Seeking remedies under the law, the CWA or under other laws including the common law.

B. The department encourages citizen participation in all its activities, including enforcement. In particular:

1. The department will investigate citizen complaints and provide written response to all signed, written complaints from citizens concerning matters within the department's purview;

2. The department will not oppose intervention in any civil enforcement action when such intervention is authorized by statute or Supreme Court rule; or in any administrative enforcement action when authorized by the board's procedural rule; and

3. At least 30 days prior to the final settlement of any civil enforcement action or the issuance of any consent special order, the department will publish public notice of such settlement or order in a newspaper of general circulation in the county, city or town in which the discharge is located, and in The Virginia Register of Regulations. This notice will identify the owner, specify the enforcement action to be taken and specify where a copy of the settlement or order can be obtained. Appeals of the enforcement action will be public noticed in accordance with Procedural Rule No. 1 (9VAC25-230-10 et seq.). A consent special order is a special order issued without a public hearing and with the written consent of the affected owner. For the purpose of this chapter, an emergency special order is not a consent special order. The department shall consider all comments received during the comment period before taking final action.

C. When a permit is amended solely to reflect a new owner, and the previous owner had been issued a consent special order that, at the time of permit amendment was still in full force and effect, a consent special order issued to the new owner does not have to go to public notice provided that:

a. The permit amendment does not have to go to public notice; and

b. The terms of the new consent order are the same as issued to the previous owner.

D. Notwithstanding subdivision B 3 of this subsection, a special order may be issued by the department without further notice when a public hearing has been scheduled to issue a special order to the affected owner, whether or not the public hearing is actually held.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-915 Local enforcement

A. In the event of a dispute concerning the existence of a violation between a permittee and a locality that has adopted a local ordinance for testing and monitoring of the land application of biosolids or industrial residuals, the activity alleged to be in violation shall be halted pending a determination by the director.

B. Upon determination by the director that there has been a violation of § 62.1-44.16, 62.1-44.19:3, 62.1-44.19:3.1, or 62.1-44.19:3.3 of the Code of Virginia; of any regulation promulgated under those sections; or of any permit or certificate issued for land application of industrial residuals, and that such violation poses an imminent threat to public health, safety, or welfare, the department shall commence appropriate action to abate the violation and immediately notify the chief administrative officer of any locality potentially affected by the violation.

C. Local governments shall promptly notify the department of all results from the testing and monitoring of the land application of biosolids or industrial residuals performed by persons employed by local governments and any violation of § 62.1-44.16, 62.1-44.19:3, 62.1-44.19:3.1, or 62.1-44.19:3.3 of the Code of Virginia or of any permit or certificate issued for land application of industrial residuals discovered by local governments.

D. Local governments receiving complaints concerning land application of biosolids or industrial residuals shall notify the department and the permit holder within 24 hours of receiving the complaint.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia
• Historical Notes: Derived from Virginia Register Volume 32, Issue 5, eff. January 1, 2016.

Part IX Miscellaneous

9VAC25-31-920 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 14, Issue 16, eff. May 27, 1998; repealed, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-31-930 Transition

Upon the effective date of this chapter the following will occur:

A. All applications received after the effective date of the new chapter will be processed in accordance with these new procedures.

B. A National Pollutant Discharge Elimination System Permit issued by the board has the same effect as a VPDES permit.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

Part X Permitting and Enforcement Authority

9VAC25-31-940 Authority of the Department of Energy for coal surface mining operations

A. For the purpose of Part X of this chapter, NPDES and VPDES permits are synonymous.

B. The Director of the Department of Energy has the authority to issue, revoke and reissue, modify, or terminate NPDES permits for the discharge of industrial wastes or other wastes other than sewage from coal surface mining operations as defined in § 45.2-1000 of the Code of Virginia. Any NPDES permit issued, modified, or revoked and reissued by the Director of the Department of Energy that meets the conditions set forth in this chapter shall be as valid and enforceable as if issued by the board.

C. Prior to issuing permits, the Director of the Department of Energy shall adhere to the following requirements:

1. That every permit issued, revoked and reissued, or modified shall conform to the requirements of this chapter, the CWA, and all pertinent regulations adopted by the board under law and those adopted under the CWA;

2. That the Director of the Department of Energy shall transmit to the department a copy of each application for a NPDES permit received by it, a copy of every draft NPDES permit prepared by it, and written notice of every action taken or contemplated to be taken by the Director of the Department of Energy with respect to such a permit; and

3. That no NPDES permit shall be issued, revoked and reissued, or modified if, within 30 days of the date of the transmittal to the department of the complete application and the draft NPDES permit to it, the board objects in writing to the issuance, revocation and reissuance, or modification of such permit. Where required, the board shall stipulate more stringent permit conditions as necessary to maintain applicable water quality standards and provisions of the law. Each such stipulation shall be accompanied by a justifying documentation to the Director of the Department of Energy. Such stipulations shall be binding upon the Director of the Department of Energy. However, nothing herein shall affect or impair any rights that the applicant may have to a public hearing before the board pursuant to the law or to judicial review of such decision pursuant to the law.

D. The Director of the Department of Energy shall enforce NPDES permits issued to coal surface mining operations for the discharge of industrial wastes and other wastes; provided, however, that the board reserves the right to assert its enforcement authority as provided in § 45.2-1029 F of the Code of Virginia and provided further that the board reserves the right to take emergency enforcement action where the Director of the Department of Energy has not taken or cannot take effective emergency enforcement action.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 27, Issue 26, eff. September 28, 2011; Volume 38, Issue 3, eff. October 27, 2021.

Part XI VPDES Electronic Reporting Requirements

9VAC25-31-950 Purpose and scope

A. This part, in conjunction with the reporting requirements specified in this chapter and 9VAC25-875, specifies the requirements for:

1. Electronic reporting of information by VPDES permittees;

2. Facilities or entities seeking coverage under VPDES general permits;

3. Facilities or entities submitting stormwater certifications or waivers from VPDES permit requirements;

4. Industrial users located in municipalities without approved local pretreatment programs; and

5. Approved pretreatment programs.

B. Proper collection, management, and sharing of the data and information listed in Appendix A of 40 CFR Part 127, as adopted by reference in 9VAC25-31-1030, ensures that there is timely, complete, accurate, and nationally consistent set of data about the NPDES program.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-31-960 Definitions

In addition to the definitions given in Part I (9VAC25-31-10 et seq.) of this chapter, the following definitions apply to this part.

"NPDES data group" means the group of related data elements identified in Table 1 in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030. These NPDES data groups have similar regulatory reporting requirements and have similar data sources.

"Minimum set of NPDES data" means the data and information listed in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030.

"Program reports" means the information reported by VPDES-regulated entities and listed in Table 1 of Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030, except NPDES Data Groups 1, 2, and 3.

"VPDES-regulated entity" means any entity regulated by the VPDES Program in accordance with this chapter or 9VAC25-875.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-31-970 Types of data to be reported electronically by VPDES permittees, facilities, and entities subject to this part

A. VPDES-regulated entities must electronically submit the minimum set of NPDES data for these reports if such reporting requirements are applicable. The following reports are the source of the minimum set of data from regulated entities:

1. Discharge Monitoring Report (9VAC25-31-190 and 9VAC25-875-1000);

2. Concentrated Animal Feeding Operation (CAFO) Annual Program Report (9VAC25-31-200);

3. Pretreatment Program Annual Report (9VAC25-31-840);

4. Sewer Overflow and Bypass Incident Event Report (9VAC25-31-190 and 9VAC25-875-1000);

5. CWA § 316(b) Annual Reports (9VAC25-31-165); and

6. Municipal Separate Storm Sewer System (MS4) Program Reports ( 9VAC25-875-970 and 9VAC25-875-1010).

B. Facilities or entities seeking coverage under or termination from general permits and facilities or entities submitting stormwater certifications or waivers from VPDES permit requirements must electronically submit the minimum set of NPDES data for the following notices, certifications, and waivers if such reporting requirements are applicable:

1. Notice of intent (NOI) to discharge by facilities seeking coverage under a general VPDES permit rather than an individual VPDES permit, as described in 9VAC25-31-170 B 2 and 9VAC25-875-980;

2. Notice of termination (NOT), as described in 9VAC25-31-410 and 9VAC25-875-1250;

3. No exposure certification (NOE), as described in 9VAC25-31-120 E 1 c; and

4. Certification in support of waiver for stormwater discharge associated with small construction activity, as described in 9VAC25-875-20.

C. Industrial users located in municipalities without approved local pretreatment programs must electronically submit the minimum set of NPDES data for the following self-monitoring reports if such reporting requirements are applicable:

1. Periodic reports on continued compliance, as described in 9VAC25-31-840 E; and

2. Reporting requirements for industrial users not subject to categorical pretreatment standards, as described in 9VAC25-31-840 H.

D. The minimum set of NPDES data for VPDES-regulated facilities is identified in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-31-980 Signature and certification standards for electronic reporting

The signatory and certification requirements identified in 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110 or 9VAC25-875-940 as appropriate, and 9VAC25-31-840 L shall also apply to electronic submissions of information by VPDES permittees, facilities, and entities subject to this part.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-31-990 Requirements regarding quality assurance and quality control

A. Responsibility for the quality of the information provided electronically in compliance with this part by the VPDES permittees, facilities, and entities subject to this part (see 9VAC25-31-950 A) rests with the owners and operators of those facilities or entities. VPDES permittees, facilities, and entities subject to this part must use quality assurance and quality control procedures to ensure the quality of the information submitted in compliance with this part.

B. VPDES permittees, facilities, and entities subject to this part must electronically submit their VPDES information in compliance with the data quality requirements specified in 9VAC25-31-1000. VPDES permittees, facilities, and entities subject to this part must electronically submit their information unless a waiver is granted in compliance with this part (see 9VAC25-31-1010).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017.

9VAC25-31-1000 Requirements regarding timeliness, accuracy, completeness, and national consistency

VPDES permittees, facilities, and entities subject to this part must comply with all requirements in this part and electronically submit the minimum set of NPDES data in the following nationally consistent manner:

1. Electronic submissions of the minimum set of NPDES data to the department must be timely.

a. Measurement data including information from discharge monitoring reports, self-monitoring data from industrial users located outside of approved local pretreatment programs, and similar self-monitoring data. The electronic submission of these data is due when that monitoring information is required to be reported in compliance with statutes, regulations, the VPDES permit, another control mechanism, or an enforcement order.

b. Program report data . The electronic submission of this data is due when that program report data is required to be reported in compliance with statutes, regulations, the VPDES permit, another control mechanism, or an enforcement order.

2. Electronic submissions of the minimum set of NPDES data must be identical to the actual measurements taken by the owner, operator, or their duly authorized representative.

3. Electronic submission of the minimum set of NPDES data must include all required data (see Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030) and these electronic submissions must be sent to the data system of the department.

4. Electronic submissions of the minimum set of NPDES data must be compliant with EPA data standards as set forth in this part and in a form, including measurement units, fully compatible with EPA's national NPDES data system.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017.

9VAC25-31-1010 Waivers from electronic reporting

A. VPDES permittees, facilities, and entities subject to this part must electronically submit the minimum set of NPDES data in compliance with this part, 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110 or 9VAC25-875-940 as appropriate, and 9VAC25-31-840 L unless a waiver is granted in compliance with this section.

B. Temporary waivers from electronic reporting may be granted by the department for programs for which the department has received authorization to implement the NPDES program, in compliance with this section, to VPDES permittees, facilities, and entities subject to this part (see 9VAC25-31-950 A).

1. Each temporary waiver must not extend beyond five years. However, VPDES-regulated entities may reapply for a temporary waiver. It is the duty of the owner, operator, or duly authorized representative of the VPDES permittee, facility, and entity subject to this part to reapply for a new temporary waiver. The department cannot grant a temporary waiver to a VPDES-regulated entity without first receiving a temporary waiver request from the VPDES-regulated entity.

2. To apply for a temporary waiver, the owner, operator, or duly authorized representative of the VPDES permittee, facility, and entity subject to this part must submit the following information to their authorized VPDES program:

a. Facility name;

b. VPDES permit number (if applicable);

c. Facility address;

d. Name, address, and contact information for the owner, operator, or duly authorized facility representative;

e. Brief written statement regarding the basis for claiming such a temporary waiver; and

f. Any other information required by the department.

3. The department will determine whether to grant a temporary waiver. The department shall provide notice to the owner, operator, or duly authorized facility representative submitting a temporary waiver request in compliance with the requirements of subsection E of this section.

4. VPDES permittees, facilities, and entities subject to this part (see 9VAC25-31-950 A) that have received a temporary waiver must continue to provide the minimum set of NPDES data (as well as other required information in compliance with statutes, regulations, the VPDES permit, another control mechanism, or an enforcement order) in hard-copy format to the department. The department shall electronically transfer these data to EPA in accordance with 40 CFR Part 127 Subpart C.

5. An approved temporary waiver is not transferrable.

C. Permanent waivers from electronic reporting may be granted by the department for programs for which the department has received authorization to implement the NPDES program, in compliance with this section, to VPDES permittees, facilities, and entities subject to this part (see 9VAC25-31-950 A).

1. Permanent waivers are only available to facilities and entities owned or operated by members of religious communities that choose not to use certain modern technologies (e.g., computers, electricity). The department cannot grant a permanent waiver to a VPDES-regulated entity without first receiving a permanent waiver request from the VPDES-regulated entity.

2. To apply for a permanent waiver, the owner, operator, or duly authorized representative of the VPDES permittee, facility, and entity subject to this part must submit the information listed in subdivision B 2 of this section to the department.

3. An approved permanent waiver is not transferrable.

4. VPDES permittees, facilities, and entities subject to this part (see 9VAC25-31-950 A) that have received a permanent waiver shall continue to provide the minimum set of NPDES data (as well as other required information in compliance with statutes, regulations, the VPDES permit, another control mechanism, or an enforcement order) in hard-copy format to the department. The department shall electronically transfer these data to EPA in accordance with 40 CFR Part 127 Subpart C.

D. Episodic waivers from electronic reporting may be granted by the department for programs for which the department has received authorization to implement the NPDES program, in compliance with this section, to VPDES permittees, facilities, and entities subject to this part (see 9VAC25-31-950 A). The following conditions apply to episodic waivers.

1. No waiver request from the VPDES permittee, facility, or entity is required to obtain an episodic waiver from electronic reporting.

2. Episodic waivers are not transferrable.

3. Episodic waivers cannot last more than 60 days.

4. The department will decide if the episodic waiver provision allows facilities and entities to delay their electronic submissions or to send hard-copy (paper) submissions. Episodic waivers are only available to facilities and entities in the following circumstances:

a. Large scale emergencies involving catastrophic circumstances beyond the control of the facilities, such as forces of nature (e.g., hurricanes, floods, fires, earthquakes) or other national disasters. The department will make the determination if an episodic waiver is warranted in this case and must receive the hard-copy (paper) submissions.

b. Prolonged electronic reporting system outages (i.e., outages longer than 96 hours). The department, will make the determination if an episodic waiver is warranted in this case and must receive the hard-copy (paper) submissions.

E. Responsibilities regarding review of waiver requests from VPDES permittees, facilities, and entities subject to this part (see 9VAC25-31-950 A).

1. Under this section, a VPDES permittee, facility, or entity subject to this part (see 9VAC25-31-950 A) may seek a waiver from electronic reporting. The department shall review the temporary or permanent waiver requests that it receives and either approve or reject these requests within 120 days.

2. The department shall provide the permittee, facility, or entity with notice of the approval or rejection of their temporary or permanent waiver request from electronic reporting.

3. The department shall electronically transfer to EPA the minimum set of NPDES data as specified in Appendix A of 40 CFR Part 127, as adopted by reference in 9VAC25-31-1030, that they receive from permittees, facilities, or entities with a waiver from electronic reporting in accordance with 40 CFR 127.23.

4. Under subsection D of this section, episodic waivers from electronic reporting may be granted by the department to VPDES permittees, facilities, and entities. The department granting an episodic waiver must provide notice, individually or through means of mass communication, regarding when such an episodic waiver is available, the facilities and entities that may use the episodic waiver, the likely duration of the episodic waiver, and any other directions regarding how facilities and entities should provide the minimum set of NPDES data, as well as other required information in compliance with statutes, regulations, the VPDES permit, another control mechanism, or an enforcement order, to the department. No waiver request from the VPDES permittee, facility, or entity is required to obtain an episodic waiver from electronic reporting. The department granting the episodic waiver will determine whether to allow facilities and entities to delay their electronic submissions for a short time (i.e., no more than 40 days) or to send hard-copy (paper) submissions.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-31-1020 Implementation of electronic reporting requirements for VPDES permittees, facilities, and entities subject to this part

A. VPDES permittees, facilities, and entities subject to this part, with the exception of those covered by waivers under 9VAC25-31-1010, must electronically submit the following VPDES information (reports, notices, waivers, and certifications) after the start dates listed in Table 1 of this subsection. This part is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of this part, the permittee may be required to report electronically if specified by a particular permit or if required to do so by state law.

| Table 1—Start Dates for Electronic Submissions of VPDES Information | | | --- | --- | | VPDES information | Start dates for electronic submissions | | General Permit Reports | | | Notices of Intent to discharge (NOIs) (9VAC25-31-170 B 2 and 9VAC25-875-980) | Start date will be provided in a schedule approved by the department. | | Notices of Termination (NOTs) (9VAC25-31-410 and 9VAC25-875-1250) | Start date will be provided in a schedule approved by the department. | | No Exposure Certifications (NOEs) (9VAC25-31-120 E 1 c) | Start date will be provided in a schedule approved by the department. | | Certifications in support of waiver for stormwater discharge associated with small construction activity ( 9VAC25-875-20) | Start date will be provided in a schedule approved by the department. | | Discharge Monitoring Reports (9VAC25-31-190 L 4 and 9VAC25-875-1000 L 4, as applicable) | | | Individual VPDES Permit - Major Facility (9VAC25-31) | January 26, 2018 | | Individual VPDES Permit - Minor Facility (9VAC25-31) | January 26, 2018 | | Watershed General VPDES Permit - Nutrient Discharges (9VAC25-820) | March 26, 2018 | | General VPDES Permit - Industrial Stormwater Discharges (9VAC25-151) | July 26, 2018 | | All Other General VPDES Permits | Start dates will be provided in a schedule approved by the department. | | Concentrated Animal Feeding Operation (CAFO) Annual Program Reports (9VAC25-31-200 E 4) | Start date will be provided in a schedule approved by the department. | | Municipal Separate Storm Sewer System (MS4) Program Reports ( 9VAC25-875-970 D 7 and 9VAC25-875-1010) | Start date will be provided in a schedule approved by the department. | | POTW Pretreatment Program Annual Reports (9VAC25-31-840 I) | Start date will be provided in a schedule approved by the department. | | Significant Industrial User Compliance Reports in Municipalities Without Approved Pretreatment Programs (9VAC25-31-840 E and H) | Start date will be provided in a schedule approved by the department. | | Sewer Overflow or Bypass Event Reports (9VAC25-31-190 L and M and 9VAC25-875-1000 M and N) | Start date will be provided in a schedule approved by the department. | | CWA 316(b) Annual Reports (9VAC25-31-165 B 6 b) | Start date will be provided in a schedule approved by the department. |

B. VPDES permittees, facilities, and entities subject to this part shall electronically submit the information listed in Table 1 of this section in compliance with this part and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110 or 9VAC25-875-940 as appropriate, and 9VAC25-31-840 L.

C. The department shall be the initial recipient as defined in 40 CFR 127.2(b) and as identified by EPA in 81 FR 62395 (September 9, 2016). VPDES permittees, facilities, and entities subject to this part shall electronically submit the information listed in Table 1 in this section to the department.

D. VPDES permittees, facilities, and entities subject to this part that have received a waiver from electronic reporting shall continue to provide the minimum set of NPDES data (as well as other required information in compliance with statutes, regulations, the VPDES permit, another control mechanism, or an enforcement order) to the department in accordance with 9VAC25-31-1010.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017; amended Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-31-1030 Adoption by reference of Appendix A to 40 CFR Part 127—Minimum Set of NPDES Data

A. Except as otherwise provided, the regulations of the U.S. Environmental Protection Agency set forth in Appendix A to 40 CFR Part 127 are hereby incorporated as part of this chapter and 9VAC25-875.

B. In all locations in this chapter and 9VAC25-875 where Appendix A to 40 CFR Part 127 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. The department shall be the initial recipient as defined in 40 CFR 127.2(b) and as identified by EPA in 81 FR 62395 (September 9, 2016). The department will be the initial recipient for all NPDES data groups except for the sewage sludge/biosolids annual program reports (40 CFR Part 503) as Virginia is not authorized for the federal biosolids NPDES program.

2. NPDES-regulated entity shall be the same as VPDES-regulated entity.

3. The authorized NPDES program shall be the department for those NPDES program components for which EPA has granted the state authorization.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 33, Issue 22, eff. July 26, 2017; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

Chapter 32 Virginia Pollution Abatement (VPA) Permit Regulation

Part I General

9VAC25-32-10 Definitions

A. The following words and terms, when used in this chapter and in VPA permits issued under this chapter, shall have the meanings defined in the State Water Control Law, unless the context clearly indicates otherwise and as follows:

"Active sewage sludge unit" means a sewage sludge unit that has not closed.

"Aerobic digestion" means the biochemical decomposition of organic matter in sewage sludge into carbon dioxide and water by microorganisms in the presence of air.

"Agricultural land" means land on which a food crop, a feed crop, or a fiber crop is grown. This includes range land and land used as pasture.

"Agricultural storm water discharge" means a precipitation-related discharge of manure, litter, or process wastewater that has been applied on land areas under the control of an animal feeding operation or under the control of an animal waste end-user in accordance with a nutrient management plan approved by the Virginia Department of Conservation and Recreation and in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater.

"Agronomic rate" means, in regard to biosolids, the whole sludge application rate (dry weight basis) designed: (i) to provide the amount of nitrogen needed by the food crop, feed crop, fiber crop, cover crop, or vegetation grown on the land and (ii) to minimize the amount of nitrogen in the biosolids that passes below the root zone of the crop or vegetation grown on the land to the groundwater.

"Anaerobic digestion" means the biochemical decomposition of organic matter in sewage sludge or biosolids into methane gas and carbon dioxide by microorganisms in the absence of air.

"Animal feeding operation" means a lot or facility where the following conditions are met:

1. Animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; and

2. Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the operation of the lot or facility.

Two or more animal feeding operations under common ownership are a single animal feeding operation for the purposes of determining the number of animals at an operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

"Animal waste" means liquid, semisolid, and solid animal manure and process wastewater, compost, or sludges associated with animal feeding operations including the final treated wastes generated by a digester or other manure treatment technologies.

"Animal waste end-user" means any recipient of transferred animal waste who stores or who utilizes the waste as fertilizer, fuel, feedstock, livestock feed, or other beneficial use for an operation under his control.

"Animal waste fact sheet" means the document that details the requirements regarding utilization, storage, and management of animal waste by end-users. The fact sheet is approved by the department.

"Annual pollutant loading rate" or "APLR" means the maximum amount of a pollutant that can be applied to a unit area of land during a 365-day period.

"Annual whole sludge application rate" or "AWSAR" means the maximum amount of biosolids (dry weight basis) that can be applied to a unit area of land during a 365-day period.

"Apply biosolids" or "biosolids applied to the land" means land application of biosolids.

"Beneficial use" means a use that is of benefit as a substitute for natural or commercial products and does not contribute to adverse effects on health or the environment.

"Best Management Practices (BMP)" means a schedule of activities, prohibition of practices, maintenance procedures and other management practices to prevent or reduce the pollution of state waters. BMPs include treatment requirements, operating and maintenance procedures, schedule of activities, prohibition of activities, and other management practices to control plant site runoff, spillage, leaks, sludge or waste disposal, or drainage from raw material storage.

"Biosolids" means a sewage sludge that has received an established treatment and is managed in a manner to meet the required pathogen control and vector attraction reduction, and contains concentrations of regulated pollutants below the ceiling limits established in 40 CFR Part 503 and 9VAC25-32-356, such that it meets the standards established for use of biosolids for land application, marketing, or distribution in accordance with this regulation. Liquid biosolids contains less than 15% dry residue by weight. Dewatered biosolids contains 15% or more dry residue by weight.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Bulk biosolids" means biosolids that are not sold or given away in a bag or other container for application to the land.

"Bypass" means intentional diversion of waste streams from any portion of a treatment works.

"Confined animal feeding operation," for the purposes of this regulation, has the same meaning as an "animal feeding operation."

"Confined poultry feeding operation" means any confined animal feeding operation with 200 or more animal units of poultry. This equates to 20,000 chickens or 11,000 turkeys regardless of animal age or sex.

"Controversial permit" means a water permitting action for which a public hearing has been granted pursuant to 9VAC25-32-170 and 9VAC25-32-175.

"Critical areas" and "critical waters" mean areas and waters in proximity to shellfish waters, a public water supply, or recreation or other waters where health or water quality concerns are identified by the Department of Health.

"Cumulative pollutant loading rate" means the maximum amount of an inorganic pollutant that can be applied to an area of land.

"Density of microorganisms" means the number of microorganisms per unit mass of total solids (dry weight) in the sewage sludge.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality, or an authorized representative.

"Discharge" means, when used without qualification, a discharge of a pollutant.

"Discharge of a pollutant" means any addition of any pollutant or combination of pollutants to state waters or waters of the contiguous zone or ocean other than discharge from a vessel or other floating craft when being used as a means of transportation.

"Domestic septage" means either liquid or solid material removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap at a restaurant.

"Domestic sewage" means waste and wastewater from humans or household operations that is discharged to or otherwise enters a treatment works.

"Draft VPA permit" means a document indicating the department's tentative decision to issue, deny, modify, revoke and reissue, terminate or reissue a VPA permit. A notice of intent to terminate a VPA permit and a notice of intent to deny a VPA permit are types of draft VPA permits. A denial of a request for modification, revocation and reissuance or termination is not a draft VPA permit.

"Dry tons" means dry weight established as representative of land applied biosolids or industrial residuals and expressed in units of English tons.

"Dry weight" means the measured weight of a sample of sewage sludge, biosolids, or industrial residuals after all moisture has been removed in accordance with the standard methods of testing and often represented as percent solids.

"Dry weight basis" means calculated on the basis of having been dried at 105°C until reaching a constant mass (i.e., essentially 100% solids content).

"Exceptional quality biosolids" means biosolids that have received an established level of treatment for pathogen control and vector attraction reduction and contain known levels of pollutants, such that they may be marketed or distributed for public use in accordance with this regulation.

"Facilities" means, in regard to biosolids, processes, equipment, storage devices and dedicated sites, located or operated separately from a treatment works, utilized for sewage sludge management including, but not limited to, handling, treatment, transport, and storage of biosolids.

"Fact sheet" means the document that details the requirements regarding utilization, storage, and management of poultry waste by poultry waste end-users and poultry waste brokers. The fact sheet is approved by the department in consultation with the Department of Conservation and Recreation.

"Feed crops" means crops produced primarily for consumption by animals.

"Fiber crops" means crops produced primarily for the manufacture of textiles, such as flax and cotton.

"Field" means an area of land within a site where land application is proposed or permitted.

"Food crops" means crops produced primarily for consumption by humans. These include, but are not limited to, fruits, vegetables, and tobacco.

"Forest" means a tract of land thick with trees and underbrush.

"General VPA permit" means a VPA permit issued as a regulation adopted by the board authorizing a category of pollutant management activities.

"Generator" means the owner of a sewage treatment works that produces sewage sludge and biosolids.

"Groundwater" means water below the land surface in the saturated zone.

"Industrial residuals" means solid or semisolid industrial waste including solids, residues, and precipitates separated or created by the unit processes of a device or system used to treat industrial wastes.

"Industrial wastes" means liquid or other wastes resulting from any process of industry, manufacture, trade, or business, or from the development of any natural resources.

"Institution of higher education" means a public institution of higher education, as that term is defined in § 23.1-100 of the Code of Virginia.

"Land application" means, in regard to sewage, biosolids, and industrial residuals, the distribution of treated wastewater, referred to as "effluent," stabilized sewage sludge, referred to as "biosolids," or industrial residuals by spreading or spraying on the surface of the land, injecting below the surface of the land, or incorporating into the soil with a uniform application rate for the purpose of fertilizing crops or vegetation or conditioning the soil. Sites approved for land application of biosolids in accordance with this regulation are not to be considered to be treatment works. Bulk disposal of stabilized sludge or industrial residuals in a confined area, such as in landfills, is not land application. For the purpose of this regulation, the use of biosolids in agricultural research and the distribution and marketing of exceptional quality biosolids are not land application.

"Land application area" means, in regard to biosolids, the area in the permitted field, excluding the setback areas, where biosolids may be applied.

"Land applier" means someone who land applies biosolids or industrial residuals pursuant to a valid permit from the department as set forth in this regulation.

"Land with a high potential for public exposure" means land that the public uses frequently. This includes, but is not limited to, a public contact site and a reclamation site located in a populated area (e.g., a construction site located in a city).

"Land with a low potential for public exposure" means land that the public uses infrequently. This includes, but is not limited to, agricultural land, forest, and a reclamation site located in an unpopulated area (e.g., a strip mine located in a rural area).

"Limitation" means any restriction imposed on quantities, rates, or concentration of pollutants that are managed by pollutant management activities.

"Liner" means soil or synthetic material that has a hydraulic conductivity of 1 X 10^-7 centimeters per second or less.

"Local monitor" means a person or persons employed by a local government to perform the duties of monitoring the operations of land appliers pursuant to a local ordinance.

"Local ordinance" means an ordinance adopted by counties, cities, or towns in accordance with § 62.1-44.16 or 62.1-44.19:3 of the Code of Virginia.

"Malodor" means an unusually strong or offensive odor associated with biosolids or sewage sludge as distinguished from odors commonly associated with biosolids or sewage sludge.

"Monitoring report" means forms supplied by the department for use in reporting of self-monitoring results of the permittee.

"Monthly average" means the arithmetic mean of all measurements taken during the month.

"Municipality" means a city, county, town, district association, or other public body (including an intermunicipal agency of two or more of the foregoing entities) created by or under state law; an Indian tribe or an authorized Indian tribal organization having jurisdiction over sewage sludge or biosolids management; or a designated and approved management agency under § 208 of the federal Clean Water Act, as amended. The definition includes a special district created under state law, such as a water district, sewer district, sanitary district, utility district, drainage district, or similar entity; or an integrated waste management facility as defined in § 201(e) of the federal Clean Water Act, as amended, that has as one of its principal responsibilities the treatment, transport, use, or disposal of sewage sludge or biosolids.

"Nonpoint source" means a source of pollution, such as a farm or forest land runoff, urban storm water runoff or mine runoff that is not collected or discharged as a point source.

"Odor sensitive receptor" means, in the context of land application of biosolids, any health care facility, such as hospitals, convalescent homes, etc. or a building or outdoor facility regularly used to host or serve large groups of people such as schools, dormitories, or athletic and other recreational facilities.

"Operate" means the act of any person who may have an impact on either the finished water quality at a waterworks or the final effluent at a sewage treatment works, such as to (i) place into or take out of service a unit process or unit processes, (ii) make or cause adjustments in the operation of a unit process or unit processes at a treatment works, or (iii) manage sewage sludge or biosolids.

"Operator" means any individual employed or appointed by any owner, and who is designated by such owner to be the person in responsible charge, such as a supervisor, a shift operator, or a substitute in charge, and whose duties include testing or evaluation to control waterworks or wastewater works operations. Not included in this definition are superintendents or directors of public works, city engineers, or other municipal or industrial officials whose duties do not include the actual operation or direct supervision of waterworks or wastewater works.

"Other container" means either an open or closed receptacle. This includes, but is not limited to, a bucket, a box, a carton, and a vehicle or trailer with a load capacity of one metric ton or less.

"Overflow" means the unintentional discharge of wastes from any portion of a treatment works.

"Owner" means the Commonwealth or any of its political subdivisions including sanitary districts, sanitation district commissions and authorities; federal agencies; any individual; any group of individuals acting individually or as a group; or any public or private institution, corporation, company, partnership, firm, or association that owns or proposes to own a sewerage system or treatment works as defined in § 62.1-44.3 of the Code of Virginia.

"Pasture" means land on which animals feed directly on feed crops such as legumes, grasses, grain stubble, or stover.

"Pathogenic organisms" means disease-causing organisms. These include, but are not limited to, certain bacteria, protozoa, viruses, and viable helminth ova.

"Permittee" means an owner or operator who has a currently effective VPA permit issued by the department or a general permit issued as a regulation adopted by the board.

"Person who prepares biosolids" means either the person that generates biosolids during the treatment of domestic sewage in a treatment works or the person that derives the material from sewage sludge.

"pH" means the logarithm of the reciprocal of the hydrogen ion concentration measured at 25°C or measured at another temperature and then converted to an equivalent value at 25°C.

"Place sewage sludge" or "sewage sludge placed" means disposal of sewage sludge on a surface disposal site.

"Point source" means any discernible, defined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agricultural land.

"Pollutant" means, in regard to wastewater, any substance, radioactive material, or heat which causes or contributes to, or may cause or contribute to, pollution. It does not mean (i) sewage from vessels; or (ii) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well is used either to facilitate production or for disposal purposes if approved by the Department of Energy unless the department determines that such injection or disposal will result in the degradation of ground or surface water resources.

"Pollutant" means, in regard to sewage sludge or biosolids, an organic substance, an inorganic substance, a combination of organic and inorganic substances, or a pathogenic organism that, after discharge and upon exposure, ingestion, inhalation, or assimilation into an organism either directly from the environment or indirectly by ingestion through the food chain, could, on the basis of information available to the department, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or physical deformations in either organisms or offspring of the organisms.

"Pollutant limit" means a numerical value that describes the amount of a pollutant allowed per unit amount of biosolids (e.g., milligrams per kilogram of total solids), the amount of a pollutant that can be applied to a unit area of land (e.g., kilograms per hectare), or the volume of a material that can be applied to a unit area of land (e.g., gallons per acre).

"Pollutant management activity" means a treatment works with a potential or actual discharge to state waters, but which does not have a point source discharge to surface waters.

"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters or soil as will, or is likely to, create a nuisance or render such waters or soil: (i) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (ii) unsuitable despite reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses. Such alteration is also deemed to be pollution, if there occurs: (a) an alteration of the physical, chemical, or biological property of state waters or soil, or a discharge or a deposit of sewage, industrial wastes, or other wastes to state waters or soil by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of, or discharge, or deposit, to state waters or soil by other owners, is sufficient to cause pollution; (b) the discharge of untreated sewage by any owner into state waters or soil; or (c) the contravention of standards of air or water quality duly established by the board.

"Poultry grower" or "grower" means any person who owns or operates a confined poultry feeding operation.

"Poultry waste" means dry poultry litter and composted dead poultry.

"Poultry waste broker" or "broker" means a person who possesses or controls poultry waste that is not generated on an animal feeding operation under his operational control and transfers or hauls poultry waste to other persons. If the entity is defined as a broker, it cannot be defined as a hauler for the purposes of this regulation.

"Poultry waste end-user" means any recipient of transferred poultry waste who stores or utilizes the waste as fertilizer, fuel, feedstock, livestock feed, or other beneficial end use for an operation under his control.

"Poultry waste hauler" or "hauler" means a person who provides transportation of transferred poultry waste from one entity to another and is not otherwise involved in the transfer or transaction of the waste nor responsible for determining the recipient of the waste. The responsibility of the recordkeeping and reporting remains with the entities to which the service was provided: grower, broker, and end-user.

"Primary sludge" means sewage sludge removed from primary settling tanks that is readily thickened by gravity thickeners.

"Privately owned treatment works (PVOTW)" means any sewage treatment works not publicly owned.

"Process" means a system, or an arrangement of equipment or other devices that remove from waste materials pollutants including, but not limited to, a treatment works or portions thereof.

"Public contact site" means land with a high potential for contact by the public. This includes, but is not limited to, public parks, ball fields, cemeteries, and golf courses.

"Publicly owned treatment works (POTW)" means any sewage treatment works that is owned by a state or municipality. Sewers, pipes, or other conveyances are included in this definition only if they convey wastewater to a POTW providing treatment.

"Public hearing" means a fact-finding proceeding held to afford interested persons an opportunity to submit factual data, views, and arguments to the department.

"Reclamation site" means drastically disturbed land that is reclaimed using biosolids. This includes, but is not limited to, strip mines and construction sites.

"Run-off" means rainwater, leachate, or other liquid that drains overland on any part of a land surface and runs off of the land surface.

"Schedule of compliance" means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with the federal Clean Water Act (33 USC 1251 et seq.), the law, and board regulations, standards and policies.

"Setback area" means the area of land between the boundary of the land application area and adjacent features where biosolids or other managed pollutants may not be land applied.

"Sewage" means the water-carried and non-water-carried human excrement, kitchen, laundry, shower, bath, or lavatory wastes, separately or together with such underground, surface, storm, and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments, or other places.

"Sewage sludge" means any solid, semisolid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and a material derived from sewage sludge. Sewage sludge does not include ash generated during the firing of sewage sludge in a sewage sludge incinerator or grit and screenings generated during preliminary treatment of domestic sewage in a treatment works.

"Sewage sludge unit" means land on which only sewage sludge is placed for final disposal. This does not include land on which sewage sludge is either stored or treated. Land does not include surface waters.

"Sewage sludge use or disposal" means the collection, storage, treatment, transportation, processing, monitoring, use, or disposal of sewage sludge.

"Site" means the area of land within a defined boundary where an activity is proposed or permitted.

"Sludge" means solids, residues, and precipitates separated from or created by the unit processes of a treatment works.

"Sludge management" means the treatment, handling, transportation, storage, use, distribution, or disposal of sewage sludge.

"Specific oxygen uptake rate" or "SOUR" means the mass of oxygen consumed per unit time per mass of total solids (dry weight basis) in the sewage sludge.

"State waters" means all water on the surface or under the ground wholly or partially within or bordering the state or within its jurisdiction.

"State Water Control Law (law)" means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.

"Store sewage sludge" or "storage of sewage sludge" means the placement of sewage sludge on land on which the sewage sludge remains for two years or less. This does not include the placement of sewage sludge on land for treatment.

"Substantial compliance" means designs and practices that do not exactly conform to the standards set forth in this chapter as contained in documents submitted pursuant to 9VAC25-32-60, but whose construction or implementation will not substantially affect health considerations or performance.

"Supernatant" means a liquid obtained from separation of suspended matter during sludge treatment or storage.

"Surface disposal site" means an area of land that contains one or more active sewage sludge units.

"Surface water" means:

1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate "wetlands";

3. All other waters such as inter/intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, "wetlands," sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a. Which are or could be used by interstate or foreign travelers for recreational or other purposes;

b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c. Which are used or could be used for industrial purposes by industries in interstate commerce;

4. All impoundments of waters otherwise defined as surface waters of the United States under this definition;

5. Tributaries of waters identified in subdivisions 1 through 4 of this definition;

6. The territorial sea; and

7. "Wetlands" adjacent to waters, other than waters that are themselves wetlands, identified in subdivisions 1 through 6 of this definition.

"Total solids" means the materials in sewage sludge that remain as residue when the sewage sludge is dried to 103°C to 105°C.

"Toxic pollutant" means any pollutant listed as toxic under § 307 (a)(1) of the CWA or, in the case of "sludge use or disposal practices," any pollutant identified in regulations implementing § 405 (d) of the CWA.

"Toxicity" means the inherent potential or capacity of a material to cause adverse effects in a living organism, including acute or chronic effects to aquatic life, detrimental effects on human health, or other adverse environmental effects.

"Treatment facility" means only those mechanical power driven devices necessary for the transmission and treatment of pollutants (e.g., pump stations, unit treatment processes).

"Treat sewage sludge" or "treatment of sewage sludge" means the preparation of sewage sludge for final use or disposal. This includes, but is not limited to, thickening, stabilization, and dewatering of sewage sludge. This does not include storage of sewage sludge.

"Treatment works" means either a federally owned, publicly owned, or privately owned device or system used to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and industrial waste of a liquid nature. Treatment works may include but are not limited to pumping, power, and other equipment and their appurtenances; septic tanks; and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for ultimate disposal of residues or effluents resulting from such treatment. "Treatment works" does not include biosolids use on privately owned agricultural land.

"Twenty-five-year, 24-hour storm event" means the maximum 24-hour precipitation event with a probable recurrence interval of once in 25 years as established by the National Weather Service or appropriate regional or state rainfall probability information.

"Unstabilized solids" means organic materials in sewage sludge that have not been treated in either an aerobic or anaerobic treatment process.

"Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit limitations because of factors beyond the permittee's reasonable control. An upset does not include noncompliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

"Use" means to manage or recycle a processed waste product in a manner so as to derive a measurable benefit as a result of such management.

"Variance" means a conditional approval based on a waiver of specific regulations to a specific owner relative to a specific situation under documented conditions for a specified period of time.

"Vector attraction" means the characteristic of biosolids or sewage sludge that attracts rodents, flies, mosquitoes, or other organisms capable of transporting infectious agents.

"Vegetated buffer" means a permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for the purposes of slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential nutrients or pollutants from leaving the field and reaching surface waters.

"Virginia Pollution Abatement (VPA) permit" means a document issued by the department, pursuant to this chapter, authorizing pollutant management activities under prescribed conditions or a general permit issued as a regulation adopted by the board in accordance with 9VAC25-32-260.

"Virginia Pollutant Discharge Elimination System (VPDES) permit" means a document issued by the department pursuant to 9VAC25-31, authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters or a general permit issued as a regulation adopted by the board in accordance with 9VAC25-31-171.

"Volatile solids" means the amount of the total solids in sewage sludge lost when the sewage sludge is combusted at 550°C in the presence of excess air.

"VPA application" means the standard form or forms approved by the department for applying for a VPA permit.

"Waste storage facility" means a (i) waste holding pond or tank used to store manure prior to land application, (ii) lagoon or treatment facility used to digest or reduce the solids or nutrients, or (iii) structure used to store manure or waste.

"300 animal units" means 300,000 pounds of live animal weight or the following numbers and types of animals:

a. 300 slaughter and feeder cattle;

b. 200 mature dairy cattle (whether milked or dry cows);

c. 750 swine each weighing over 25 kilograms (approximately 55 pounds);

d. 150 horses;

e. 3,000 sheep or lambs;

f. 16,500 turkeys;

g. 30,000 laying hens or broilers.

"Water quality standards" means the narrative statements for general requirements and numeric limits for specific requirements that describe the water quality necessary to meet and maintain reasonable and beneficial uses. Such standards are established by the board under § 62.1-44.15 (3a) of the Code of Virginia.

B. Generally used technical terms not defined in subsection A of this section or the department's latest definitions of technical terms as used to implement § 62.1-44.15 of the Code of Virginia shall be defined in accordance with "Glossary-Water and Wastewater Control Engineering" published by the American Public Health Association (APHA), American Society of Civil Engineers (ASCE), American Water Works Association (AWWA), and the Water Environment Federation (WEF).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 6, eff. December 2, 2015; Volume 32, Issue 6, eff. January 1, 2016; Volume 38, Issue 3, eff. October 27, 2021; Volume 39, Issue 5, eff. November 23, 2022; Volume 42, Issue 1, eff. September 24, 2025.

9VAC25-32-15 Permit rationale

In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, the department shall in consultation with legal counsel provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-20 Purpose

This regulation delineates the procedures and requirements to be followed in connection with VPA permits issued by the department or a general permit issued as a regulation adopted by the board pursuant to the State Water Control Law.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-25 Applicability of incorporated references based on the dates that they became effective

Except as noted, when a regulation of the U.S. Environmental Protection Agency set forth in Title 40 of the Code of Federal Regulations (CFR) is referenced and incorporated in this chapter, that regulation shall be as it exists and has been published in the July 1, 2023, update; however, references to 40 CFR Part 136 are incorporated as published in the July 1, 2024, update.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 5, eff. November 2, 2015; amended, Virginia Register Volume 40, Issue 14, eff. March 27, 2024; Volume 41, Issue 7, eff. December 18, 2024.

9VAC25-32-30 Requirements and prohibitions

A. All pollutant management activities covered under a VPA permit shall maintain no point source discharge of pollutants to surface waters except in the case of a storm event greater than the 25-year, 24-hour storm.

B. Except in compliance with a VPA permit, or another permit issued by the department or a general permit issued as a regulation adopted by the board, it shall be unlawful for any person to:

1. Discharge into, or adjacent to, state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances; or

2. Otherwise alter the physical, chemical or biological properties of such state waters and make them detrimental to the public health, or to animal or aquatic life, or to the use of such waters for domestic or industrial consumption, or for recreation, or for other uses.

C. Any person required to obtain a permit pursuant to this chapter who discharges or causes or allows a discharge of sewage, industrial waste, other wastes or any noxious or deleterious substance into or upon state waters in violation of subsection B of this section; or who discharges or causes or allows a discharge that may reasonably be expected to enter state waters in violation of subsection B of this section shall notify the department of the discharge immediately upon discovery of the discharge and, in any event, no later than 24 hours after the discovery. A written report of the unauthorized discharge shall be submitted by the owner, to the department, within five days of discovery of the discharge.

1. The written report shall contain:

a. A description of the nature of the discharge;

b. The cause of the discharge;

c. The date on which the discharge occurred;

d. The length of time that the discharge continued;

e. The volume of the discharge;

f. If the discharge is continuing, how long it is expected to continue;

g. If the discharge is continuing, what the expected total volume of the discharge will be; and

h. Any steps planned or taken to reduce, eliminate and prevent a recurrence of the present discharge or any future discharges not authorized by the permit.

2. Discharges reportable to the department under the immediate reporting requirements of other regulations are exempted from this requirement.

D. VPA permits may be utilized to authorize pollutant management activities including, but not limited to, animal feeding operations, storage or land application of sewage, sludge, biosolids, industrial waste or other waste; or the complete reuse or recycle of wastewater. Point source discharges of pollutants to surface waters may be authorized by a VPDES permit (See 9VAC25-31, VPDES Permit Regulation).

E. No VPA permit shall be issued in the following circumstances:

1. Where the terms or conditions of the VPA permit do not comply with the applicable regulations or requirements of the law;

2. For the discharge of any radiological, chemical or biological warfare agent or high level radioactive material into state waters; or

3. For any pollutant management activity that is in conflict with any area-wide or basin-wide water quality control and waste management plan or policy established by the board pursuant to the law.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-40 Exclusions

The following do not require a VPA permit:

1. The introduction of sewage, industrial waste or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with VPA permits until all discharges of pollutants to state waters are eliminated;

2. Any introduction of pollutants from nonpoint source agricultural or silvicultural activities, including runoff from orchards, cultivated crops, pastures, range lands, and forest lands, except that this exclusion shall not apply to concentrated confined animal feeding operations;

3. Return flows from irrigated agricultural land;

4. Land disposal activity, including biosolids use or sewage sludge disposal or onsite waste treatment, when this activity is otherwise authorized by the department;

5. Land disposal activity, including onsite waste treatment, when this activity is authorized by a Virginia Department of Health permit; and

6. Discharges authorized by EPA under the Safe Drinking Water Act Underground Injection Control Program (UIC), 40 CFR Part 144, and approved, in writing, by the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-50 Effect of a VPA permit

A. Compliance with a VPA permit constitutes compliance with the VPA permit requirements of the law.

B. The issuance of a VPA permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize any injury to private property or any invasion of personal rights or any infringement of federal, state or local law or regulation.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

Part II Permit Application and Issuance

9VAC25-32-60 Application for a VPA permit

A. Duty to apply. Any owner of a pollutant management activity who does not have an effective VPA permit, except persons covered by general VPA permits or excluded under 9VAC25-32-40, shall submit a complete application to the department in accordance with this section.

B. Time to apply.

1. Any owner proposing a new pollutant management activity shall submit an application for a VPA permit 180 days prior to the date planned for commencing erection, construction or expansion or employment of new processes at any site. There shall be no operation of said facilities prior to the issuance of a VPA permit.

2. Any owner with an existing pollutant management activity that has not been permitted shall submit an application within 60 days upon being requested to by the department. The department, after determining there is pollution occurring, may allow the construction of treatment works prior to permit issuance. There shall be no operation of said treatment works prior to permit issuance.

3. Owners currently managing pollutants who have effective VPA permits shall submit a new application 180 days prior to proposed facility expansions, production increases, or process modification which will:

a. Result in significantly new or substantially increased amounts of pollutants being managed or a significant change in the nature of the pollutant management activity that was not anticipated and accounted for on the application for the effective VPA permit; or

b. Violate or lead to violation of the terms and conditions of the effective VPA permit.

C. Duty to reapply. Any permittee with an effective VPA permit shall submit a new application at least 180 days before the expiration date of the effective VPA permit unless permission for a later date has been granted by the department. Permission shall not be granted to submit an application later than the expiration date of the existing VPA permit.

D. Completeness.

1. A complete VPA permit application shall be submitted by the owner of the pollutant management activity before a VPA permit can be issued. The permit application may be submitted as a hard copy or electronically with a hard copy signature page. This item does not apply where general VPA permits are applicable.

2. The department may require the submission of additional information after an application has been filed, and may suspend processing of any application until such time as the owner has supplied missing or deficient information and the department considers the application complete. Further, when the owner becomes aware that he omitted one or more relevant facts from a VPA permit application, or submitted incorrect information in a VPA permit application or in any report to the department, he shall promptly submit such facts or the correct information.

3. In accordance with § 62.1-44.19:3 A of the Code of Virginia, no application for a permit or variance to authorize the storage of biosolids shall be complete unless it contains certification from the governing body of the locality in which the biosolids is to be stored that the storage site is consistent with all applicable ordinances. The governing body shall confirm or deny consistency within 30 days of receiving a request for certification. If the governing body does not so respond, the site shall be deemed consistent.

4. No application for a permit to land apply biosolids in accordance with Part IX (9VAC25-32-303 et seq.) of this chapter shall be complete unless it includes the written consent of the landowner to apply biosolids on his property.

5. Pursuant to § 62.1-44.15:3 of the Code of Virginia, no application for a VPA permit from a privately owned treatment works serving, or designed to serve, 50 or more residences shall be considered complete unless the applicant has provided the department with notification from the State Corporation Commission that the applicant is incorporated in the Commonwealth and is in compliance with all regulations and relevant orders of the State Corporation Commission.

E. Information requirements. All applicants for VPA permits shall provide information to the department using the most current application forms provided by the department.

F. Application for the authorization to land apply biosolids. All persons applying to land apply biosolids must provide the information in this subsection to the department using an application form approved by the department. New applicants must submit all information available at the time of permit application. The information may be provided by referencing information previously submitted to the department. The department may waive any requirement of this subsection if it has access to substantially identical information. The department may also waive any requirement of this subsection that is not of material concern for a specific permit.

1. General information.

a. Legal name and address.

b. Owner contact information including:

(1) Name;

(2) Mailing address;

(3) Telephone number; and

(4) Email address.

c. A general description of the proposed activity including:

(1) Name and location of generators involved and their owners;

(2) Biosolids quality and the generator's biosolids treatment and handling processes;

(3) Generator's odor control plan, that contains at minimum:

(a) Methods used to minimize odor in producing biosolids;

(b) Methods used to identify malodorous biosolids before land application (at the generating facility);

(c) Methods used to identify and abate malodorous biosolids if delivered to the field, prior to land application; and

(d) Methods used to abate malodor from biosolids if land applied;

(4) Means of biosolids transport or conveyance;

(5) Location and volume of storage proposed;

(6) A description of field staging methods;

(7) General location of sites proposed for application, and

(8) Methods of biosolids application proposed.

d. Written permission of landowners on the most current form approved by the department and pertinent lease agreements as may be necessary for operation of the treatment works.

e. Methods for notification of local government and obtaining compliance with local government zoning and applicable ordinances.

f. A copy of a letter of approval of the nutrient management plan for the operation from the Department of Conservation and Recreation if required in subdivision 3 b of this subsection.

2. Design information.

a. Biosolids characterization. For each source of biosolids that the applicant proposes to land apply, the applicant must submit biosolids monitoring data for the pollutants for which limits in biosolids have been established in Part IX (9VAC25-32-303 et seq.) of this chapter, for the applicant's use or disposal practices on the date of permit application with the following conditions:

(1) When applying for authorization to land apply a biosolids source not previously included in a VPDES or VPA permit, the biosolids shall be sampled and analyzed for PCBs. The sample results shall be submitted with the permit application or request to add the source;

(2) The department may require sampling for additional pollutants, as appropriate, on a case-by-case basis;

(3) Applicants must provide:

(a) Biosolids analytical data from a minimum of three samples taken within four and one-half years prior to the date of the permit application. Samples must be representative of the biosolids and should be taken at least one month apart. Existing data may be used in lieu of sampling done solely for the purpose of this application. The department may reduce the number of samples collected based on site specific conditions;

(b) The total dry tons per 365-day period of biosolids subject to this subsection that is applied to the land; and

(c) A statement that the biosolids is nonhazardous; a documentation statement for treatment and quality; and a description of how treated biosolids meets other standards in accordance with this regulation;

(4) Samples shall be collected and analyzed in accordance with analytical methods specified in 40 CFR Part 503 and 40 CFR Part 136; and

(5) The monitoring data provided must include at least the following information for each parameter:

(a) Average monthly concentration for all samples (mg/kg dry weight), based upon actual sample values;

(b) Analytical method used; and

(c) Method detection level.

b. Storage facilities. Plans and specifications for storage facilities of all biosolids to be handled, including routine and on-site storage, shall be submitted for the issuance of a certificate to construct and a certificate to operate in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790) and shall depict the following information:

(1) Site layout on a recent 7.5 minute topographic quadrangle or other appropriate scaled map;

(2) Location of any required soil, geologic, and hydrologic test holes or borings;

(3) Location of the following field features within 0.25 miles of the site boundary (indicate on map) with the approximate distance from the site boundary:

(a) Water wells (operating or abandoned);

(b) Surface waters;

(c) Springs;

(d) Public water supplies;

(e) Sinkholes;

(f) Underground and surface mines;

(g) Mine pool (or other) surface water discharge points;

(h) Mining spoil piles and mine dumps;

(i) Quarries;

(j) Sand and gravel pits;

(k) Gas and oil wells;

(l) Diversion ditches;

(m) Occupied dwellings, including industrial and commercial establishments;

(n) Landfills and dumps;

(o) Other unlined impoundments;

(p) Septic tanks and drainfields; and

(q) Injection wells;

(4) Topographic map (10-foot contour preferred) of sufficient detail to clearly show the following information:

(a) Maximum and minimum percent slopes;

(b) Depressions on the site that may collect water;

(c) Drainage ways that may attribute to rainfall run-on to or runoff from the site; and

(d) Portions of the site (if any) that are located within the 100-year floodplain;

(5) Data and specifications for the liner proposed for seepage control;

(6) Scaled plan view and cross-sectional view of the facilities showing inside and outside slopes of all embankments and details of all appurtenances;

(7) Calculations justifying impoundment capacity; and

(8) Groundwater monitoring plans for facilities if required by the department. The groundwater monitoring plan shall include pertinent geohydrological data to justify upgradient and downgradient well location and depth.

c. Staging. Generic plans for staging of biosolids.

d. Land application sites:

(1) DEQ control number, if previously assigned, identifying each land application field. If a DEQ control number has not been assigned, provide the site identification code used by the permit applicant to report activities and the site's location;

(2) The site's latitude and longitude in decimal degrees to three decimal places and the method of determination;

(3) A legible topographic map and aerial photograph, including legend, of proposed application areas to scale as needed to depict the following features:

(a) Property boundaries;

(b) Surface water courses;

(c) Water supply wells and springs;

(d) Roadways;

(e) Rock outcrops;

(f) Slopes;

(g) Frequently flooded areas (National Resources Conservation Service (NRCS) designation);

(h) Occupied dwellings within 400 feet of the property boundaries and all existing dwelling and property line setback distances;

(i) Publicly accessible properties and occupied buildings within 400 feet of the property boundaries and the associated extended setback distances; and

(j) The gross acreage of the fields where biosolids will be applied;

(4) County map or other map of sufficient detail to show general location of the site and proposed transport vehicle haul routes to be utilized from the treatment plant;

(5) County tax maps labeled with Tax Parcel ID or IDs for each farm to be included in the permit, which may include multiple fields to depict properties within 400 feet of the field boundaries;

(6) A USDA soil survey map, if available, of proposed sites for land application of biosolids;

(7) The name, mailing address, and telephone number of each site owner, if different from the applicant;

(8) The name, mailing address, and telephone number of the person who applies biosolids to the site, if different from the applicant;

(9) Whether the site is agricultural land, forest, a public contact site, or a reclamation site, as such site types are defined in 9VAC25-32-10;

(10) Description of agricultural practices including a list of proposed crops to be grown;

(11) The following information for each land application site that has been identified at the time of permit application, if the applicant intends to apply bulk biosolids subject to the cumulative pollutant loading rates in 9VAC25-32-356 Table 3 to the site:

(a) Whether the applicant has contacted the permitting authority in the state where the bulk biosolids subject to 9VAC25-32-356 Table 3 will be applied, to ascertain whether bulk biosolids subject to 9VAC25-32-356 Table 3 has been applied to the site on or since July 20, 1993, and if so, the name of the permitting authority and the name and phone number of a contact person at the permitting authority; and

(b) Identification of facilities other than the applicant's facility that have sent, or are sending, biosolids subject to the cumulative pollutant loading rates in 9VAC25-32-356 Table 3 to the site since July 20, 1993, if, based on the inquiry in subdivision 2 d (11) (a) of this subsection, bulk biosolids subject to cumulative pollutant loading rates in 9VAC25-32-356 Table 3 has been applied to the site since July 20, 1993.

3. A biosolids management plan shall be provided that includes the following minimum site specific information at the time of permit application.

a. Description of operation: A comprehensive, general description of the operation as required by this section.

b. A nutrient management plan approved by the Department of Conservation and Recreation as required for application sites prior to department authorization under the following conditions:

(1) Sites operated by an owner or lessee of a confined animal feeding operation, as defined in subsection A of § 62.1-44.17:1 of the Code of Virginia, or confined poultry feeding operation, as defined in subsection A of § 62.1-44.17:1.1 of the Code of Virginia;

(2) Sites where land application more frequently than once every three years at greater than 50% of the annual agronomic rate is proposed;

(3) Mined or disturbed land sites where land application is proposed at greater than agronomic rates; or

(4) Other sites based on site-specific conditions that increase the risk that land application may adversely impact state waters.

4. Biosolids transport.

a. General description of transport vehicles to be used.

b. Procedures for biosolids offloading at the biosolids facilities and the land application site together with spill prevention, cleanup (including vehicle cleaning); field reclamation and emergency spill notification and cleanup measures.

c. Voucher system used for documentation and recordkeeping.

5. Field operations.

a. Storage.

(1) Routine storage - supernatant handling and disposal, biosolids handling and loading of transport vehicles, equipment cleaning, freeboard maintenance, and inspections for structural integrity.

(2) On-site storage - procedures for department approval and implementation.

(3) Staging - procedures to be followed including either designated site locations provided in the "Design Information" or the specific site criteria for such locations including the liner or cover requirements and the time limit assigned for such use.

(4) Reestablishment of offloading and staging areas.

b. Application methodology.

(1) Description and specifications on spreader vehicles.

(2) Procedures for calibrating equipment for various biosolids contents to ensure uniform distribution and appropriate loading rates on a day-to-day basis.

(3) Procedures used to ensure that operations address the following constraints: application of biosolids to frozen ground, pasture or hay fields, crops for direct human consumption and saturated or ice-covered or snow-covered ground; establishment of setback distances; slopes; prohibited access for beef and dairy animals, and soil pH requirements; and proper site specific biosolids loading rates on a field-by-field basis.

c. Odor control plan for land applier. Include at a minimum:

(1) Methods used to identify and abate malodorous biosolids in the field prior to land application, and

(2) Methods used to abate malodorous biosolids if land applied.

6. An applicant for a permit authorizing the land application of biosolids shall provide to the department, and to each locality in which the applicant proposes to land apply biosolids, written evidence of financial responsibility. Evidence of financial responsibility shall be provided in accordance with the requirements specified under Article 6 (9VAC25-32-770 et seq.) of Part IX of this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 34, Issue 19, eff. June 13, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-70 Signatory requirements

Any application, report, including monitoring reports, or certifications shall be signed as follows:

1. Application.

a. For a corporation: by a responsible corporate official. For purposes of this section, a responsible corporate official means (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25,000,000 (in second quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

b. For a municipality, state, federal or other public agency by either a principal executive officer or ranking elected official. (A principal executive officer of a federal, municipal, or state agency includes the chief executive officer of the agency or head executive officer having responsibility for the overall operation of a principal geographic unit of the agency.)

c. For a partnership or sole proprietorship, by a general partner or proprietor, respectively.

2. Reports. All reports required by VPA permits and other information requested by the department shall be signed by:

a. One of the persons described in subdivision 1 of this section; or

b. A duly authorized representative of that person. A person is a duly authorized representative only if:

(1) The authorization is made in writing by a person described in subdivision 1 of this section; and

(2) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, or position of equivalent responsibility. (A duly authorized representative may thus be either a named individual or any individual occupying a named position.)

(3) If an authorization is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization must be submitted to the department prior to or together with any separate information, or applications to be signed by an authorized representative.

3. Certification. Any person signing a document under subdivision 1 or 2 of this section shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations."

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-80 Conditions applicable to all VPA permits

A. Duty to comply. The permittee shall comply with all conditions of the VPA permit. Any permit noncompliance is a violation of the law, and is grounds for enforcement action, permit termination, revocation, modification, or denial of a permit renewal application.

B. Duty to halt or reduce activity. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the VPA permit.

C. Duty to mitigate. The permittee shall take all reasonable steps to minimize, correct, or prevent any pollutant management activity in violation of the VPA permit which has a reasonable likelihood of adversely affecting human health or the environment.

D. Proper operation and maintenance. The permittee shall be responsible for the proper operation and maintenance of all treatment works, systems, and controls which are installed or used to achieve compliance with permit conditions. Proper operation and maintenance includes effective plant performance, adequate funding, adequate licensed operator staffing, and adequate laboratory and process controls, including appropriate quality assurance procedures.

E. Permit action.

1. A VPA permit may be modified, revoked and reissued, or terminated as set forth in this chapter.

2. If a permittee files a request for a permit modification, revocation, or termination, or files a notification of planned changes, or anticipated noncompliance, the permit terms and conditions shall remain effective until the request is acted upon by the department. This provision shall not be used to extend the expiration date of the effective VPA permit.

3. VPA permits may be modified, revoked and reissued or terminated upon the request of the permittee or interested persons, or upon the department's initiative, to reflect the requirements of any changes in the statutes or regulations.

4. VPA permits continued under 9VAC25-32-130 remain effective and enforceable.

F. Inspection and entry. Upon presentation of credentials, any duly authorized agent of the department may, at reasonable times and under reasonable circumstances:

1. Enter upon any permittee's property, public or private, and have access to records required by the VPA permit;

2. Have access to, inspect, and copy any records that must be kept as part of VPA permit conditions;

3. Inspect any facility's equipment (including monitoring and control equipment) practices or operations regulated or required under the VPA permit; and

4. Sample or monitor any substances or parameters at any locations for the purpose of assuring VPA permit compliance or as otherwise authorized by law.

G. Duty to provide information.

1. The permittee shall furnish to the department, within a reasonable time, any information which the department may request to determine whether cause exists for modifying, revoking and reissuing, terminating the VPA permit, or to determine compliance with the VPA permit. The permittee shall also furnish to the department, upon request, copies of records required to be kept by the permittee.

2. Plans, specifications, maps, conceptual reports and other relevant information shall be submitted as requested by the department prior to commencing construction.

H. Monitoring and records.

1. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

2. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by the VPA permit, and records of all data used to complete the application for the VPA permit, for a period of at least three years or in the case of activities regulated under Part IX (9VAC25-32-303 et seq.) of this chapter, at least five years from the date of the sample, measurement, report, or application. This period may be extended by request of the department at any time.

3. Records of monitoring information shall include:

a. The date, exact place and time of sampling or measurements;

b. The name of the individuals who performed the sampling or measurements;

c. The date or dates analyses were performed;

d. The name of the individuals who performed the analyses;

e. The analytical techniques or methods supporting the information such as observations, readings, calculations and bench data used; and

f. The results of such analyses.

4. Monitoring shall be conducted according to analytical methods promulgated pursuant to § 304(h) of the Clean Water Act (33 USC § 1251 et seq.) and listed in the Code of Federal Regulations at 40 CFR Part 136. Any other acceptable test procedure not listed in 40 CFR Part 136 shall be specified in the VPA permit.

5. Records related to biosolids data and information specified in agreements between generator, owner, agents, landowners, and farmers shall be described and maintained for a minimum period of five years or the duration of the permit or subsequent revisions if longer than five years.

I. Reporting requirements.

1. The permittee shall give prompt notice to the department of any planned changes to the design or operation of the pollutant management activity.

2. If any unusual or extraordinary discharge including a bypass or upset should occur from a treatment works and the discharge enters or could be expected to enter state waters, the owner shall promptly notify, in no case later than 24 hours, the department by telephone after the discovery of the discharge. This notification shall provide all available details of the incident, including any adverse effects on aquatic life and the known number of fish killed. The permittee shall reduce the report to writing and shall submit it to the department within five days of discovery of the discharge in accordance with subdivision 6 of this subsection. Unusual and extraordinary discharges include any discharge resulting from:

a. Unusual spillage of materials resulting directly or indirectly from processing operations;

b. Breakdown of processing or accessory equipment;

c. Failure or taking out of service of some or all of the treatment works; and

d. Flooding or other acts of nature.

3. The permittee shall give at least 10 days advance notice to the department of any planned changes to the facility or activity which may result in noncompliance.

4. Monitoring results shall be reported at the intervals specified in the applicable VPA permit.

a. Monitoring results shall be reported in a format acceptable to the department.

b. If a permittee monitors the pollutant management activity, at a sampling location specified in the VPA permit, for any pollutant more frequently than required by the VPA permit using approved analytical methods, the permittee shall report the results of this monitoring on the monitoring report.

c. If the permittee monitors the pollutant management activity, at a sampling location specified in the VPA permit, for any pollutant that is not required to be monitored by the VPA permit, and uses approved analytical methods the permittee shall report the results with the monitoring report.

d. Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in the VPA permit.

5. Reports of compliance or noncompliance with or any progress report on interim and final requirements contained in any compliance schedule in the VPA permit shall be submitted no later than 14 days following each scheduled date.

6. 24-hour reporting.

a. The permittee shall report any noncompliance that may adversely affect state waters or may endanger public health. An oral report must be provided to the department as soon as possible, but in no case later than 24 hours from the time the permittee becomes aware of the circumstances. A written report shall be submitted within five days and shall contain a description of the noncompliance and its cause; the period of noncompliance including exact dates and times, and, if the noncompliance has not been corrected, how long it is expected to continue, steps planned or taken to reduce, eliminate, and prevent a recurrence of the noncompliance. The department may waive the written report requirements on a case-by-case basis if the oral report has been received within 24 hours and no adverse impact on state waters has been reported. All other noncompliance reports which may not adversely affect state waters shall be submitted with the monitoring report. Reports shall include overflows.

b. The following shall be included as information which must be reported within 24 hours under this subdivision:

(1) Any unanticipated bypass; and

(2) Any upset which causes a discharge to surface waters.

J. Bypass.

1. A bypass of the treatment works is prohibited except as provided herein.

2. If the permittee knows in advance of the need for a bypass, he shall notify the department promptly at least 10 days prior to the bypass. After considering its adverse effects, the department may approve an anticipated bypass if:

a. The bypass will be unavoidable to prevent loss of human life, personal injury, or severe property damage ("severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production); and

b. There are no feasible alternatives to bypass such as the use of auxiliary treatment facilities, retention of untreated waste, or maintenance during normal periods of equipment downtime. However, if bypass occurs during normal periods of equipment downtime or preventive maintenance and in the exercise of reasonable engineering judgment the permittee could have installed adequate backup equipment to prevent such bypass, this exclusion shall not apply as a defense.

3. If an unplanned bypass occurs, the permittee shall notify the department as soon as possible, but in no case later than 24 hours, and shall take steps to halt the bypass as early as possible. This notification will be a condition for defense to an enforcement action that an unplanned bypass met the conditions in subdivision 2 of this subsection and in light of the information reasonably available to the owner at the time of the bypass.

K. Upset. A permittee may claim an upset as an affirmative defense to an action brought for noncompliance. In any enforcement proceedings a permittee shall have the burden of proof to establish the occurrence of any upset. In order to establish an affirmative defense of upset, the permittee shall present properly signed, contemporaneous operating logs or other relevant evidence that shows:

1. That an upset occurred and that the cause can be identified;

2. That the permitted facility was at the time being operated efficiently and in compliance with proper operation and maintenance procedures;

3. That the 24-hour reporting requirements to the department were met; and

4. That the permittee took all reasonable steps to minimize or correct any adverse impact on state waters resulting from noncompliance with the VPA permit.

L. Signature requirements. All applications, reports, or information submitted to the department shall be signed and certified as required in 9VAC25-32-70.

M. Transfers. A VPA permit is not transferable to any person except after notice to the department according to 9VAC25-32-230. The department may require modification or revocation and reissuance of the VPA permit to change the name of the permittee and incorporate such other requirements as may be necessary.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 34, Issue 19, eff. June 13, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-90 Conditions applicable to publicly or privately owned sewage treatment works

A. Publicly or privately owned sewage treatment works shall provide adequate notice to the department of any substantial change in quantity or quality of pollutants being introduced into the privately or publicly owned sewage treatment works and any anticipated impact the change may have on such treatment works.

B. When the monthly average flow influent to a POTW or PVOTW reaches 95% of the design capacity authorized by the VPA permit for each month of any consecutive three-month period, the owner shall within 30 days notify the department in writing and within 90 days submit a plan of action for ensuring continued compliance with the terms of the VPA permit.

1. The plan shall include the necessary steps and a prompt schedule of implementation for controlling any current problem, or any problem which could reasonably be anticipated, resulting from high influent flows.

2. Upon receipt of the owner's plan of action, the department shall notify the owner whether the plan is approved or disapproved. If the plan is disapproved, such notification shall state the reasons and specify the actions necessary to obtain approval of the plan.

3. Failure to submit an adequate plan in a timely manner shall be deemed a violation of the VPA permit.

C. Nothing herein shall in any way impair the authority of the department to take enforcement action under § 62.1-44.15, § 62.1-44.23, or § 62.1-44.32 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-100 Establishing limitations and other VPA permit conditions

A. In addition to the conditions established in 9VAC25-32-80 and 9VAC25-32-90, each VPA permit shall include conditions meeting the following requirements where applicable.

1. Determination of limitations. VPA permit limitations and conditions shall be established based on the nature of the pollutant management activity in order to ensure compliance with technology-based limitations, water quality standards, the law and all regulations promulgated thereunder. These limitations and conditions may include, but are not limited to, duration of VPA permits, monitoring requirements, limitations to control toxic pollutants, best management practices and schedules of compliance.

2. Duration of VPA permits. VPA permits issued under this regulation shall have an effective date and an expiration date which will determine the life of the VPA permit. VPA permits shall be effective for a fixed term not to exceed 10 years as specified in the VPA permit. The term of the VPA permits shall not be extended by modification beyond the maximum duration. The VPA permit shall expire at the end of the term unless an application for a new VPA permit has been timely filed as required by this chapter and the department is unable, through no fault of the permittee, to issue a new VPA permit before the expiration date of the previous VPA permit.

B. Monitoring requirements.

1. All VPA permits may specify:

a. Requirements concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment or methods;

b. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity and including, when appropriate, continuous monitoring; and

c. Applicable reporting requirements based upon the impact of the regulated activity on water quality.

2. VPA permits may include requirements to report monitoring results with a frequency dependent on the nature and effect of the pollutant management activity.

3. In addition, the following monitoring requirements may be included in the VPA permits:

a. Mass or other measurements specified in the VPA permit for each pollutant of concern;

b. The volume of waste, wastewater, biosolids, or sludge managed by the activity; and

c. Other measurements as appropriate.

C. Best Management Practices (BMPs). The VPA permit shall require the use of BMPs to control or abate pollutants where numeric limits are infeasible, and the VPA permit may include BMPs in addition to numeric limits where BMPs are necessary to achieve limitations and standards or to carry out the purpose and intent of the law.

D. Sludge disposal. The VPA permit shall include, where appropriate, specific requirements for disposal of all sludge.

E. Biosolids land application. Where, because of site-specific conditions, including soil type, identified during the permit application review process, the department determines that special requirements are necessary to protect the environment or the health, safety or welfare of persons residing in the vicinity of a proposed land application site, the department may incorporate in the permit at the time it is issued reasonable special conditions regarding setback distances, transportation routes, slope, material source, methods of handling and application, and time of day restrictions exceeding those required by this regulation. The permit applicant shall have at least 14 days in which to review and respond to the proposed conditions.

F. Schedules of compliance. The VPA permit may specify a schedule, when appropriate, leading to compliance with the VPA permit as soon as possible. When schedules of compliance are applicable the following shall be incorporated:

1. Schedule or schedules of compliance shall require the permittee to take specific steps where necessary to achieve expeditious compliance with the VPA permit;

2. The schedule of compliance shall set forth interim time periods not more than one year apart for the submission of reports of progress toward completion of each requirement; and

3. Schedule or schedules of compliance may be modified by modification of the VPA permit for good cause beyond the control of the permittee (e.g., act of God, strike, flood, material shortage).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-110 Draft VPA permit formulation

A. Upon receipt of a complete application, the department shall make a decision to tentatively issue the VPA permit or deny the application. If a tentative decision is to issue the VPA permit then a draft VPA permit shall be prepared in advance of public notice. The following tentative determinations shall be incorporated into a draft VPA permit:

1. Conditions, limitations, standards and other requirements applicable to the VPA permit;

2. Compliance schedules where applicable; and

3. Monitoring requirements.

B. If the tentative decision is to deny the application, the department shall advise the owner of that decision and of the requirements necessary to obtain approval. The owner may withdraw the application prior to department action. If the application is not withdrawn or modified to contain conditions necessary for tentative approval to issue, the department shall provide public notice and opportunity for a public hearing prior to department action on a recommendation to deny the application.

C. This section does not apply to requests for coverage under a general VPA permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-120 Fact sheet

A. A fact sheet shall be prepared to accompany all draft VPA permits. These fact sheets shall be made available to the public upon request.

B. The fact sheet shall include:

1. A brief description of the pollutant management activity to be permitted;

2. An explanation of the statutory or regulatory provisions on which the VPA permit requirements are based;

3. Calculations or other necessary explanations of the derivation of the VPA permit conditions or limitations;

4. The location of each pollutant management activity;

5. The reasons for any requested modifications;

6. A description of the procedures and sequence of events for reaching the final decision; and

7. The name and telephone number of a person to contact for additional information.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-32-130 Continuation of expiring VPA permits

A. Expiring VPA permits are automatically continued pending issuance of a new VPA permit if:

1. The permittee has submitted a timely and complete application as required by this chapter, unless the department has given permission for a later submittal, which shall not extend beyond the expiration date of the original VPA permit; and

2. The department is unable, through no fault of the permittee, to issue a new VPA permit before the expiration date of the previous VPA permit.

B. Continued VPA permits remain effective and enforceable against the permittee.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part III Public Involvement

9VAC25-32-140 Public notice of VPA permit action and public comment period

A. Draft VPA permits.

1. Every draft VPA permit shall be given public notice, paid for by the owner, by publication once a week for two successive weeks in a newspaper of general circulation in the area affected by the pollutant management activity except for animal feeding operations as defined in 9VAC25-32-10, when the modifications are to the nutrient management plan.

2. Interested persons shall have a period of at least 30 days following the date of the initial newspaper public notice to submit written comments on the tentative decision and to request a public hearing.

3. The contents of the public notice of an application for a VPA permit shall include:

a. The name and address of the applicant. If the location of the pollutant management activity differs from the address of the applicant the notice shall also state the location of the pollutant management activity including storage and land application sites;

b. A brief description of the business or activity conducted at the facility;

c. A statement of the tentative determination to issue or deny a VPA permit;

d. A brief description of the final determination procedure;

e. The address and phone number of a specific person at the state office from whom further information may be obtained; and

f. A brief description of how to submit comments and request a hearing.

B. VPA permit application.

1. Upon receipt of an application for the issuance of a new or modified permit, the department shall notify in writing the locality wherein the pollutant management activity does or is proposed to take place. This notification shall, at a minimum, include:

a. The name of the applicant;

b. The nature of the application and proposed pollutant management activity;

c. The availability and timing of any comment period; and

d. Upon request, any other information known to, or in the possession of, the department regarding the application except as restricted by 9VAC25-32-150.

2. Whenever the department receives an application for a new permit for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage, or an application to reissue with the addition of sites increasing acreage by 50% or more of that authorized in the initial permit, the department shall establish a date for a public meeting to discuss technical issues relating to proposals for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge or stabilized septage. The department shall give notice of the date, time, and place of the public meeting and a description of the proposal by publication in a newspaper of general circulation in the city or county where the proposal is to take place. Public notice of the scheduled meeting shall occur no fewer than seven nor more than 14 days prior to the meeting. The department shall not issue the permit until the public meeting has been held and comment has been received from the local governing body or until 30 days have lapsed from the date of the public meeting.

3. Following the submission of an application for a new permit for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage, the department shall make a good faith effort to notify or cause to be notified persons residing on property bordering the sites that contain the proposed land application fields. This notification shall be in a manner selected by the department. For the purposes of this subsection, "site" means all contiguous land under common ownership, but which may contain more than one tax parcel.

4. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application.

C. Following the submission of an application to add a site that is not contiguous to sites included in an existing permit authorizing the land application of biosolids:

1. The department shall notify persons residing on property bordering such site and shall receive written comments from those persons for a period of 30 days. Based upon written comments, the department shall determine whether additional site-specific requirements should be included in the authorization for land application at the site.

2. An application for any permit amendment to increase the acreage authorized by the initial permit by 50% or more shall be considered a major modification and shall be treated as a new application for purposes of public notice and public hearings. The increase in acreage for the purpose of determining the need for the public meeting is the sum of all acreage that has been added to the permit since the last public meeting, plus that proposed to be added.

D. Before issuing any permit, if the department finds that there are localities particularly affected by the permit, the department shall:

1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed permit, which at a minimum shall include information on the specific pollutants involved and the total quantity of each which may be discharged; and

2. Mail, by electronic or postal delivery, the notice to the chief elected official and chief administrative officer and planning district commission for those localities.

Written comments shall be accepted by the department for at least 15 days after any public hearing on the permit, unless the department shortens the period. For the purposes of this section, the term "locality particularly affected" means any locality which bears any identified disproportionate material water quality impact which would not be experienced by other localities.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 25, Issue 26, eff. September 30, 2009; Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 5, eff. December 2, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-150 Public access to information

A. Any secret formulae, secret processes, or secret methods other than effluent data submitted to the department pursuant to this chapter may be claimed as confidential by the submitter pursuant to § 62.1-44.21 of the Code of Virginia. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words "secret formulae, secret processes or secret methods" on each page containing such information. If no claim is made at the time of submission, the department may make the information available to the public without further notice. If a claim is asserted, the information will be treated in accordance with the procedures in the Virginia Freedom of Information Act (§ 2.1-340 et seq. of the Code of Virginia) and § 62.1-44.21 of the Code of Virginia.

B. Claims of confidentiality for the following information will be denied:

1. The name and address of any permit applicant or permittee; and

2. Permit applications, permits, and effluent data.

C. Information required by VPDES application forms provided by the department may not be claimed confidential. This includes information submitted on the forms themselves and any attachments used to supply information required by the forms.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

9VAC25-32-160 Conditions requested by other government agencies

If during the comment period any other state agency with jurisdiction over fish, wildlife, or public health advises the department in writing that the imposition of specified conditions upon the VPA permit is necessary to avoid substantial impairment of human health or of fish, shellfish, or wildlife resources, the department shall consider the inclusion of the specified conditions in the VPA permit. If any conditions requested are not included in the VPA permit, the agency making the request shall be notified of the reasons for not including the conditions.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-170 Public comments and hearings

A. A comment period of at least 30 days following the initial date of the newspaper public notice of the formulation of a draft VPA permit shall be provided. During this period any interested persons may submit written comments on the draft VPA permit and may request a public hearing. A request for a public hearing shall be in writing and shall state the nature of the issues to be raised pursuant to 9VAC25-32-175. All comments shall be considered by the department in preparing the final VPA permit and shall be responded to in writing.

B. The department may hold a public hearing on any permit action. The department shall hold a public hearing where there is a significant degree of public interest relevant to a draft VPA permit pursuant to 9VAC25-32-175. Public notice of that hearing shall be given as specified in 9VAC25-32-180. Nothing in this subsection shall relieve the department of the requirement to hold a hearing where a hearing is required by applicable law or regulation.

C. Any hearing convened pursuant to this section will be held in the geographical area of the proposed pollutant management activity, or in another appropriate area. Related groups of VPA permit applications may be considered at any such hearing.

D. If changes are made to the VPA permit based on public comments, the permittee and all persons who commented will be notified of the changes and the reasons for the changes. No further public notice is required.

E. Any owner aggrieved by any action of the department taken without a formal hearing, or by inaction of the department, may demand in writing a formal hearing pursuant to § 62.1-44.25 of the Code of Virginia.

F. Proceedings at the public hearing will be governed by the board's Procedural Rule No. 1 - Public and Formal Hearing Procedures (9VAC25-230) or its successor, and the decision from the public hearing will be governed by 9VAC25-32-176.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-175 Criteria for requesting and granting a public hearing on an individual permit action

A. During the public comment period on a permit action in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest the action or terms and conditions of the permit.

B. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and the conditions of the permit in question, together with suggested revisions and alterations to those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Water Control Board.

C. Upon completion of the public comment period on a permit action, the director shall review all timely requests for public hearing filed during the comment period on the permit action, and within 30 calendar days following the expiration of the time period for the submission of requests, shall grant a public hearing, unless the permittee or applicant agrees to a later date, if the director finds the following:

1. That there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;

2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

3. That the action requested by the interested party is not on its face inconsistent with or in violation of the basic laws of the State Water Control Board for a water permit action, a federal law, or any regulation promulgated thereunder.

D. The director shall notify by email or mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.

E. If the request for a public hearing is granted, the director shall:

1. Schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing.

2. Cause or require the applicant to publish notice of a public hearing to be published once in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date.

F. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

G. The director may at his discretion convene a public hearing on a permit action.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-176 Controversial permits

Before rendering a final decision on a controversial permit, the department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at that time. In making its decision, the department shall consider (i) the verbal and written comments received during the comment period and the public hearing made part of the record, (ii) any commentary of the board, and (iii) the agency files.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-177 Controversial permits reporting

At each regular meeting of the board, the department shall provide an overview and update regarding any controversial permits pending before the department that are relevant. Immediately after such presentation by the department, the board shall have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-180 Public notice of hearing

A. Public notice of any hearing held pursuant to 9VAC25-32-170 shall be circulated as follows:

1. Notice shall be published once in a newspaper of general circulation in the county or city where the pollutant management activity is to occur; and

2. Notice of the hearing shall be sent to all persons and government agencies which received a copy of the notice of the VPA permit application.

B. Notice shall be effected pursuant to subsection A of this section at least 30 days in advance of the hearing.

C. The content of the public notice of any hearing held pursuant to 9VAC25-32-170 shall include at least the following:

1. Name and address of each owner whose application will be considered at the hearing and a brief description of the owner's pollutant management activities or operations;

2. A brief reference to the public notice issued for the VPA permit application, including identification number and date of issuance unless the public notice includes the hearing notice;

3. Information regarding the time and location for the hearing;

4. The purpose of the hearing;

5. A concise statement of the issues raised by the persons requesting the hearing;

6. The name of a contact person and the address at which interested persons may obtain further information, request a copy of the draft VPA permit prepared pursuant to 9VAC25-32-110, request a copy of the fact sheet prepared pursuant to 9VAC25-32-120 and inspect or arrange for receipt of copies of forms and related documents; and

7. A brief reference to the rules and procedures to be followed at the hearing.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996.

Part IV Operator Requirements

9VAC25-32-190 Operator requirements

A. The permittee shall employ or contract at least one operator who holds a current wastewater license appropriate for the permitted facility, if required by the VPA permit. The license shall be issued in accordance with Title 54.1 of the Code of Virginia and the regulations of the Board for Waterworks and Wastewater Works Operators (18VAC160-20-10 et seq.). Notwithstanding the foregoing requirement, unless the pollutant management activity is determined by the department on a case-by-case basis to be a potential contributor of pollution, no licensed operator is required for wastewater treatment works:

1. That have a design hydraulic capacity equal to or less than 0.04 million gallons per day;

2. That discharge industrial waste or other waste from coal mining operations; or

3. That do not utilize biological or physical or chemical treatment.

B. In making this case-by-case determination, the following shall be considered:

1. The location of the pollutant management activity with respect to state waters;

2. The size of the pollutant management activity;

3. The quantity and nature of pollutants reaching state waters; and

4. The treatment methods used at the treatment works.

C. The permittee shall notify the department in writing whenever the permittee is not complying or has grounds for anticipating the permittee will not comply with the requirements of subsection A of this section. The notification shall include a statement of reasons and a prompt schedule for achieving compliance.

D. Every sewage treatment works owner shall employ or contract an operator who holds a current wastewater operator license, issued in accordance with Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia, of the appropriate class for the type of facility, as determined by the department, or higher class at the owner's option. If the position of the licensed operator of the appropriate class is unexpectedly vacated due to death, extended illness, firing for cause, resignation, or similar cause, the treatment works owner shall notify the department promptly and in accordance with any specific timeframe directed by the department. The department shall temporarily waive the licensed operator requirement for the interim, provided the owner (i) informs the department in writing of the owner's designation of another licensed operator or professional engineer responsible for interim operations within five days of the vacancy, (ii) informs the department in writing within 10 days of the vacancy arising of the owner's plan to hire a replacement licensed operator of the appropriate class as soon as practicable, (iii) implements the hiring plan diligently, and (iv) provides a monthly report to the department on the implementation and progress of such hiring plan. The department may revoke the temporary waiver if the department finds that continued operation pursuant to the waiver presents a public health or water quality threat due to statutory, regulatory, or permit violations.

E. Where the facility is equipped with adequate technological capability, the department shall credit remote monitoring of the facility by a licensed operator of the appropriate class as operator attendance toward recommended licensed operator attendance hours, provided that the owner submits and the department approves a remote monitoring plan demonstrating that the facility possesses sufficient technology for the remote operator to adequately monitor the facility and manage onsite operators with a lower license class, mechanics, or other staff to operate the facility under the remote operator's direct supervision. In determining whether to approve a remote monitoring plan for multiple facilities, the department may consider the number of facilities the remote operator is monitoring simultaneously, whether the multiple facilities being monitored remotely are under common ownership, whether the remote operator is employed by the owner of the multiple facilities, and whether occasional in-person attendance is provided, among other factors. The department may cease crediting remote monitoring if the department finds that continued operation pursuant to the remote monitoring plan presents a public health or water quality threat due to statutory, regulatory, or permit violations. The department shall not credit remote monitoring by an operator without the appropriate license class who is operating the waterworks or treatment facility pursuant to a temporary waiver issued under subsection D of this section.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.19:3.5 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022; Volume 41, Issue 1, eff. September 25, 2024.

Part V Permit Modification, Revocation and Reissuance, and Termination

9VAC25-32-200 Modification, revocation and reissuance, and termination

A. VPA permits shall be modified, revoked and reissued, or terminated only as authorized by this section.

B. A VPA permit may be modified in whole or in part, revoked and reissued, or terminated.

C. VPA permit modifications shall not be used to extend the term of a VPA permit.

D. Modification, revocation and reissuance, or termination of VPA permit may be initiated by the department, interested persons, or permittee under applicable provisions of this chapter.

E. An updated VPA permit application may be required in order to modify or revoke and reissue a VPA permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-210 Causes for termination

A. The following are causes for terminating a VPA permit during its term, or for denying a VPA permit renewal application, after public notice and opportunity for a public hearing:

1. The permittee has violated any regulation of the board or order of the department, any condition of a VPA permit, any provision of the law, or any order of a court, where such violation results in a release of harmful substances into the environment or poses a substantial threat of release of harmful substances into the environment or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations which, in the opinion of the department, demonstrates the permittee's disregard for or inability to comply with applicable laws, regulations or requirements;

2. The permittee's failure to disclose fully all relevant material facts, or the permittee's misrepresentation of any relevant material facts in applying for a VPA permit, or in any other report or document required under the law or this chapter;

3. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by VPA permit modification or termination; or

4. There exists a material change in the basis on which the VPA permit was issued that requires either a temporary or a permanent reduction or elimination of any pollutant management activity controlled by the VPA permit necessary to protect human health or the environment.

B. In addition to causes for terminating a VPA permit specified in subsection A of this section, causes for terminating a VPA permit issued for land application, marketing and distribution of biosolids shall include:

1. Failure to comply with the conditions of the permit.

2. Violation of Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia or of any provisions of this regulation.

3. Change in ownership.

4. Abandonment of the facilities.

C. A VPA permit may be terminated without public notice and opportunity for a hearing when the termination is mutually agreed to by the permittee and the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-220 Causes for modification

A VPA permit may be modified, but not revoked and reissued, except when the permittee agrees or requests, when any of the following developments occur:

1. When additions or alterations have been made to the affected facility which require the application of VPA permit conditions that differ from those of the existing VPA permit or are absent from it;

2. When new information becomes available about the operation or pollutant management activity covered by the VPA permit which was not available at VPA permit issuance and would have justified the application of different VPA permit conditions at the time of VPA permit issuance;

3. When a change is made in the promulgated standards or regulations on which the VPA permit was based;

4. When it becomes necessary to change final dates in compliance schedules due to circumstances over which the permittee has little or no control such as acts of God, materials shortages, etc.; or

5. For the addition of new land application sites, new biosolids sources or routine storage facilities to the permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-32-230 Transfer of VPA permits

A. Transfer by modification. Except as provided for under automatic transfer in subsection B of this section, a VPA permit shall be transferred only if the VPA permit has been modified to reflect the transfer or has been revoked and reissued to the new owner.

B. Automatic transfer. Any VPA permit shall be automatically transferred to a new owner if:

1. The current owner notifies the department 30 days in advance of the proposed transfer of the title to the facility or property;

2. The notice to the department includes a written agreement between the existing and proposed new owner containing a specific date of transfer of VPA permit responsibility, coverage and liability between them; and

3. The department does not within the 30-day time period notify the existing owner and the proposed owner of its intent to modify or revoke and reissue the VPA permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-240 Minor modification

A. Upon request of the permittee, or upon department initiative with the consent of the permittee, minor modifications may be made in the VPA permit without following the public involvement procedures.

B. Minor modification may only:

1. Correct typographical errors;

2. Require reporting by the permittee at a frequency other than that required in the VPA permit;

3. Change an interim compliance date in a schedule of compliance to no more than 120 days from the original compliance date and provided it will not interfere with the final compliance date;

4. Allow for a change in name, ownership or operational control when the department determines that no other change in the VPA permit is necessary, provided that a written agreement containing a specific date for transfer of VPA permit responsibility, coverage and liability from the current to the new permittee has been submitted to the department;

5. Delete the listing of a land application site when the pollutant management activity is terminated and does not result in an increase of pollutants which would exceed VPA permit limitations;

6. Reduce VPA permit limitations to reflect a reduction in the permitted activity when such reduction results from a shutdown of processes or pollutant generating activities or from connection of the permitted activity to a POTW;

7. Change plans and specifications where no other changes in the VPA permit are required;

8. Authorize treatment facility expansions, production increases or process modifications which will not cause a significant change in the quantity of pollutants being managed or a significant change in the nature of the pollutant management activity; or

9. Delete VPA permit limitation or monitoring requirements for specific pollutants when the activities generating these pollutants are terminated.

C. An application for any permit amendments to increase the acreage authorized by the initial permit shall not be considered a minor modification and shall require the public involvement procedures outlined in 9VAC25-32-140 C.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 25, Issue 26, eff. September 30, 2009; Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-250 Animal feeding operations

A. All animal feeding operations shall maintain no point source discharge of pollutants to surface waters except in the case of a storm event greater than the 25-year, 24-hour storm. Animal feeding operations having 300 or more animal units utilizing a liquid manure collection and storage system or having 200 or more animal units of poultry are pollutant management activities subject to the VPA permit program. Two or more animal feeding operations under common ownership are a single animal feeding operation for the purpose of determining the number of animals at an operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

B. Case-by-case determination.

1. The department may determine that any animal feeding operation that does not otherwise qualify for coverage under the VPA general permit and has not been required to obtain a VPDES permit be required to obtain an individual VPA permit upon determining that it is a potential or actual contributor of pollution to state waters. In making this determination the following factors shall be considered:

a. The size of the operation;

b. The location of the operation relative to state waters;

c. The means of conveyance of animal wastes and process waters into state waters;

d. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process waste waters into state waters;

e. The compliance history and the ability to make corrections in order to comply with the VPA general permit conditions;

f. The means of storage, treatment, or disposal of animal wastes; and

g. Other relevant factors.

2. A VPA permit application shall not be required for an animal feeding operation subject to subdivision 1 of this subsection until the department has conducted an on-site inspection of the operation and determined that the operation shall be regulated under the VPA permit program.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 32, Issue 5, eff. December 2, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-255 Requirements for end-users of animal waste and poultry waste

A. Technical requirements for end-users of animal waste or poultry waste will be established in general permit regulations or individual permits. Technical requirements for end-users of animal waste or poultry waste shall address but not be limited to the following:

1. Proper waste storage;

2. Appropriate land application practices; and

3. Recordkeeping.

B. End-users of animal waste or poultry waste shall comply with technical requirements established as set forth by subsection A of this section.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 5, eff. December 2, 2015.

9VAC25-32-260 General VPA permits

The board may issue a general VPA permit in accordance with the following:

1. Sources. A general VPA permit may be written to regulate a category of pollutant management activities that:

a. Involve the same or similar types of operations;

b. Manage the same or similar types of wastes;

c. Require the same VPA permit limitations or operating conditions;

d. Require the same or similar monitoring; and

e. In the opinion of the board, are more appropriately controlled under a general VPA permit than under individual VPA permits.

2. Administration.

a. General VPA permits will be issued, modified, revoked and reissued, or terminated pursuant to the law and the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

b. The department may require any person operating under a general VPA permit to apply for and obtain an individual VPA permit. Interested persons may petition the department to take action under this subdivision. Cases where an individual VPA permit may be required include the following:

(1) Where the pollutant management activity is a significant contributor of pollution;

(2) Where the owner is not in compliance with the conditions of the general VPA permit;

(3) When a water quality management plan containing requirements applicable to the pollutant management activity is approved; or

(4) When a permitted activity no longer meets the general VPA permit conditions.

c. Any owner operating under a general VPA permit may request to be excluded from the coverage of the general VPA permit by applying for an individual VPA permit.

d. When an individual VPA permit is issued to an owner the applicability of the general VPA permit to the individual permittee is automatically terminated on the effective date of the individual VPA permit.

e. When a general VPA permit is issued which applies to an owner already covered by an individual VPA permit, such owner may request exclusion from the provisions of the general VPA permit and subsequent coverage under an individual VPA permit.

f. A general VPA permit may be revoked as to an individual owner for any of the reasons set forth in 9VAC25-32-210 or subdivision 2 b of this section subject to appropriate opportunity for a hearing.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-270 Control of disposal of pollutants into wells

A. No right to dispose of pollutants into wells shall exist under this regulation, except as authorized pursuant to a VPA permit issued by the department or VPA general permit issued as a regulation adopted by the board.

B. Whenever an applicant for a VPA permit proposes to dispose of pollutants into a well or wells, the proposed disposal shall be prohibited, or specific terms and conditions shall be included in the VPA permit which shall control the proposed disposal in order to prevent the pollution of and protect all beneficial uses of state waters, protect the public health and welfare, and require compliance with all applicable water quality standards.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VII Enforcement

9VAC25-32-280 Enforcement

A. The department may enforce the provisions of this regulation by:

1. Issuing directives in accordance with the law;

2. Issuing special orders in accordance with the law;

3. Issuing emergency special orders in accordance with the law;

4. Seeking injunction, mandamus or other appropriate remedy as authorized by the law;

5. Seeking civil penalties under the law;

6. Seeking remedies under the law or under other laws including the common law.

B. The department encourages citizen participation in all its activities, including enforcement. In particular:

1. The department will investigate citizen complaints and provide written response to all signed, written complaints from citizens concerning matters within the department's purview;

2. The department will not oppose intervention in any civil enforcement action when such intervention is authorized by statute or Supreme Court rule, or in any administrative enforcement action when authorized by the board's Procedural Rule; and

3. At least 30 days prior to the final settlement of any civil enforcement action or the issuance of any consent special order, the department will publish public notice of such settlement or order in a newspaper of general circulation in the county, city or town in which the pollutant management activity is located, and in the Virginia Register of Regulations. This notice will identify the owner, specify the enforcement action to be taken and specify where a copy of the settlement or order can be obtained. Appeals will be public noticed in accordance with Procedural Rule No. 1 - Public and Formal Hearing Procedures (9VAC25-230). A consent special order is a special order issued without a public hearing and with the written consent of the affected owner. For the purpose of this chapter, an emergency special order is not a consent special order. The department shall consider all comments received during the comment period before taking final action.

C. When a VPA permit is amended solely to reflect a new owner, and the previous owner had been issued a consent special order that at the time of VPA permit amendment was still in full force and effect, a consent special order issued to the new owner does not have to go to public notice provided that:

1. The VPA permit amendment does not have to go to public notice, and

2. The terms of the new consent order are the same as issued to the previous owner.

D. Notwithstanding subdivision 3 of this subsection, a special order may be issued by the department without further notice when a public hearing has been scheduled to issue a special order, to the affected owner, whether or not the public hearing is actually held.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-285 Local enforcement

A. In the event of a dispute concerning the existence of a violation between a permittee and a locality that has adopted a local ordinance for testing and monitoring of the land application of biosolids or industrial residuals, the activity alleged to be in violation shall be halted pending a determination by the director.

B. Upon determination by the director that there has been a violation of § 62.1-44.16, 62.1-44.19:3, 62.1-44.19:3.1, or 62.1-44.19:3.3 of the Code of Virginia; of any regulation promulgated under those sections; or of any permit or certificate issued for land application of industrial residuals, and that such violation poses an imminent threat to public health, safety, or welfare, the department shall commence appropriate action to abate the violation and immediately notify the chief administrative officer of any locality potentially affected by the violation.

C. Local governments shall promptly notify the department of all results from the testing and monitoring of the land application of biosolids or industrial residuals performed by persons employed by local governments and any violation of § 62.1-44.16, 62.1-44.19:3, 62.1-44.19:3.1, or 62.1-44.19:3.3 of the Code of Virginia or any permit or certificate issued for land application of industrial residuals discovered by local governments.

D. Local governments receiving complaints concerning land application of biosolids or industrial residuals shall notify the department and the permit holder within 24 hours of receiving the complaint.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 5, eff. January 1, 2016.

Part VIII Delegation of Authority; Transition

9VAC25-32-290 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-300 Transition

A. Permits issued prior to January 1, 2008, by the Department of Health under the authority of the State Board of Health shall continue in force until expired or terminated in accordance with the permit or this regulation.

B. All owners holding active biosolids use permits as of January 1, 2008, shall submit an application for a Virginia Pollution Abatement Permit in accordance with this regulation at least 180 days before the expiration date of permits issued prior to January 1, 2008, or by June 30, 2012, whichever comes first.

C. All owners of biosolids use facilities shall comply with the applicable requirements set forth in the operational regulations of Part IX (9VAC25-32-303 et seq.) of this chapter.

D. Notwithstanding the foregoing, all VDH-BUR permits shall terminate no later than December 31, 2012, or 12 months after the effective date, whichever is later, if an administratively complete VPA application for the activity authorized by the VDH-BUR permit has not been submitted to the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 12, Issue 20, eff. July 24, 1996; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 29, Issue 24, eff. September 1, 2013.

Article 1 Procedures and Requirements

9VAC25-32-303 Purpose and applicability

Article 1 Procedures and Requirements

A. This part establishes standards, which consist of general requirements, pollutant limits, management practices, and operational standards, for the final use of biosolids or disposal of sewage sludge generated during the treatment of domestic sewage in a treatment works. Standards are included in this part for biosolids applied to the land. Also included in this part are pathogen and alternative vector attraction reduction requirements for biosolids applied to the land.

B. The standards in this part also include the frequency of monitoring and recordkeeping requirements when biosolids is applied to the land.

C. Applicability.

1. This part applies to any person who prepares biosolids or applies biosolids to the land.

2. This part applies to biosolids applied to the land.

3. This part applies to land where biosolids is applied.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-305 Permits

A. No owner shall cause or allow any land application, marketing, or distribution of biosolids except in compliance with a permit issued by the department that authorizes these activities.

B. A separate biosolids use permit shall be issued for each political jurisdiction (county or city) where land application is proposed.

C. No person shall land apply Class B biosolids on any land in Virginia unless that land has been identified in an application to issue, reissue or modify a permit and approved by the department.

D. No person shall land apply, market, or distribute biosolids in Virginia unless the biosolids source has been approved by the department.

E. The permitting requirements of this chapter shall not apply to any land application of biosolids for a research project when such land is owned and operated by an institution of higher education in the Commonwealth. At least 30 days prior to commencing any land application of such biosolids, the institution of higher education shall notify the department and the owner of every adjoining property of its intent to land apply such biosolids. The institution of higher education shall comply with setback requirements in 9VAC25-32-560 and applicable recordkeeping requirements in this chapter.

F. The provisions of subsection E of this section shall expire on July 1, 2030.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended Virginia Register Volume 39, Issue 5, eff. November 23, 2022; Volume 42, Issue 1, eff. September 24, 2025.

9VAC25-32-307 Relationship to other regulations

A. Disposal of sewage sludge in a municipal solid waste landfill unit that complies with the requirements in the Virginia Solid Waste Management Regulation (9VAC20-81) constitutes compliance with § 405 (d) of the federal Clean Water Act.

B. Any person who prepares sewage sludge that is disposed in a municipal solid waste landfill unit shall ensure that the sewage sludge meets the requirements in 9VAC20-81 concerning the quality of materials disposed in a municipal solid waste landfill.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-310 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-313 General requirements

A. No person shall apply biosolids to the land except in accordance with the requirements in this article.

B. No person shall apply bulk biosolids to the land if it is likely to adversely affect a threatened or endangered species listed in 9VAC25-260-320 or § 4 of the Endangered Species Act (16 USC § 1533) or if the land application is likely to adversely affect its designated critical habitat.

C. No person shall apply bulk biosolids subject to the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 to agricultural land, forest, a public contact site, or a reclamation site if any of the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 has been reached.

D. No person shall apply domestic septage to agricultural land, forest, or a reclamation site during a 365-day period if the annual application rate in 9VAC25-32-356 D has been reached during that period.

E. The person who prepares bulk biosolids that is applied to agricultural land, forest, a public contact site, or a reclamation site shall provide the person who applies the bulk biosolids written notification of the concentration of total nitrogen and phosphorus (as N and P on a dry weight basis) in the bulk biosolids.

F. Before bulk biosolids subject to the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 is applied to the land, the person who proposes to apply the bulk biosolids shall contact the department to determine whether bulk biosolids subject to the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 has been applied to the site since July 20, 1993.

1. If bulk biosolids subject to the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 has not been applied to the site since July 20, 1993, the cumulative amount of each pollutant listed in Table 3 of 9VAC25-32-356 may be applied to the site in accordance with 9VAC25-32-356 B 2 a.

2. If bulk biosolids subject to the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 has been applied to the site since July 20, 1993, and the cumulative amount of each pollutant applied to the site in the bulk biosolids since that date is known, the cumulative amount of each pollutant applied to the site shall be used to determine the additional amount of each pollutant that can be applied to the site in accordance with 9VAC25-32-356 B 2 a.

3. If bulk biosolids subject to the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 has been applied to the site since July 20, 1993, and the cumulative amount of each pollutant applied to the site in the bulk biosolids since that date is not known, an additional amount of each pollutant shall not be applied to the site in accordance with 9VAC25-32-356 B 2 a.

G. When a person who prepares bulk biosolids provides the bulk biosolids to a person who applies the bulk biosolids to the land, the person who prepares the bulk biosolids shall provide the person who applies the biosolids notice and necessary information to comply with the requirements in this article.

H. When a person who prepares biosolids provides the biosolids to another person who prepares the biosolids, the person who provides the biosolids shall provide the person who receives the biosolids notice and necessary information to comply with the requirements in this article.

I. The person who applies bulk biosolids to the land shall provide the owner or lease holder of the land on which the bulk biosolids is applied notice and necessary information to comply with the requirements in this article.

J. Any person who prepares bulk biosolids in another state that is applied to land in Virginia shall provide written notice to the department prior to the initial application of bulk biosolids to the land application site by the applier. The notice shall include:

1. The location, by either street address or latitude and longitude, of each land application site;

2. The approximate time period bulk biosolids will be applied to the site;

3. The name, address, telephone number, and National Pollutant Discharge Elimination System permit number (if appropriate) for the person who prepares the bulk biosolids; and

4. The name, address, telephone number, and National (or Virginia) Pollutant Discharge Elimination System permit number (if appropriate) for the person who will apply the bulk biosolids.

K. Any person who applies bulk biosolids subject to the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 to the land shall provide written notice, prior to the initial application of bulk biosolids to the land application site by the applier, to the department and the department shall retain and provide access to the notice. The notice shall include:

1. The location, by either street address or latitude and longitude, of the land application site; and

2. The name, address, telephone number, and Virginia Pollution Abatement permit number (if appropriate) of the person who will apply the bulk biosolids.

L. Any person who land applies, markets, or distributes biosolids must do so in accordance with the requirements in 9VAC25-32-316.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-32-315 Additional and more stringent requirements

A. On a case-by-case basis, the department may impose requirements for the use of biosolids or the disposal of sewage sludge in addition to or more stringent than the requirements in this part when necessary to protect human health and the environment from any adverse effect of a pollutant in the biosolids or sewage sludge.

B. Nothing in this part precludes the authority of another state agency, political subdivision of Virginia, or an interstate agency with respect to the use of biosolids or disposal of sewage sludge.

C. For biosolids land application where, because of site specific conditions, including soil type, identified during the permit application review process, the department determines that special requirements are necessary to protect the environment or the health, safety, or welfare of persons residing in the vicinity of a proposed land application site, the department may incorporate in the permit at the time it is issued reasonable special conditions regarding setback distances, transportation routes, slope, material source, methods of handling and application, and time of day restrictions exceeding those required by this regulation. The permit applicant shall have at least 14 days in which to review and respond to the proposed conditions.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-316 PFAS requirements

A. In addition to the definitions given in Part I (9VAC25-32-10 et seq.) of this chapter, the following definitions apply to this section:

"PFAS" means per- and polyfluoroalkyl substances, as that term is defined in § 62.1-44.34:29 of the Code of Virginia.

"PFOA" means perfluorooctanoic acid.

"PFOS" means perfluorooctane sulfonate.

B. Beginning January 1, 2027, any owner of a treatment works land applying, marketing, or distributing biosolids in the Commonwealth shall collect representative samples of the biosolids that are intended to be land applied, marketed, or distributed and have such samples analyzed by an accredited laboratory for PFAS using U.S. Environmental Protection Agency (EPA) Method 1633, an applicable EPA revision, or another method approved by EPA that may be allowed by the department.

1. The minimum frequency of such sampling shall be monthly for the initial sampling period from January 1, 2027, through December 31, 2027, and thereafter may be reduced to not less frequently than quarterly upon the approval of the department.

2. The owner of the treatment works shall provide the concentration results for PFOS and PFOA and all other target analytes from the analysis to the department and any person land applying biosolids from the treatment works within 10 days of receipt of such results.

3. If the treatment works that is the source of the biosolids is located outside of the Commonwealth, the permit holder intending to land apply, market, or distribute the biosolids in the Commonwealth from such treatment works shall provide analyses to the department that meet all requirements of this subsection.

C. After July 1, 2027, if the analysis required under subsection B of this section finds:

1. A PFOS or PFOA concentration in the biosolids of greater than or equal to 50 micrograms per kilogram annual average on a rolling 12-month basis, the biosolids shall not be land applied, marketed, or distributed. The owner of the treatment works shall arrange for alternative treatment, use, or disposal of the biosolids until such time as the annual average on a rolling 12-month basis demonstrates a concentration of less than 50 micrograms per kilogram;

2. A PFOS or PFOA concentration in the biosolids of greater than or equal to 25 but less than 50 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder shall reduce the application rate of the biosolids to 3 dry tons per acre, not to exceed the application rate required by the nutrient management plan, or submit to the department for approval an alternative risk management strategy at least two weeks prior to land application in lieu of the reduced land application rate. Such permit holder shall reduce the application rate required in this subdivision until such time as the annual average on a 12-month basis demonstrates a concentration of less than 25 micrograms per kilogram. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations for all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

a. Notwithstanding the provisions of this subdivision 2, if any single test result exceeds 75 micrograms per kilogram for PFOS or PFOA, the owner of the treatment works shall promptly collect another sample for testing; and

b. If the result of such sample exceeds 75 micrograms per kilogram for PFOS or PFOA, the owner of the treatment works shall arrange for alternative treatment, use, or disposal of the biosolids until such time as a subsequent sample result demonstrates a concentration of less than 50 micrograms per kilogram; or

3. A PFOS and PFOA concentration in the biosolids of less than 25 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder may land apply, market, or distribute the biosolids in accordance with its permit with no additional requirements. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations of all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

D. After July 1, 2027, when biosolids from two or more treatment works are blended prior to land application, the requirements of subdivisions C 1, C 2, and C 3 of this section shall be applied to the blended biosolids without further testing, using a mass-balance calculation.

E. After July 1, 2029, if the analysis required under subsection B of this section finds:

1. A combined PFOS and PFOA concentration in the biosolids of greater than or equal to 50 micrograms per kilogram annual average on a rolling 12-month basis, the biosolids shall not be land applied, marketed, or distributed. The owner of the treatment works shall arrange for alternative treatment, use, or disposal of the biosolids until the annual average on a rolling 12-month basis demonstrates a concentration of less than 50 micrograms per kilogram;

2. A combined PFOS and PFOA concentration in the biosolids of greater than or equal to 25 but less than 50 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder shall reduce the application rate of the biosolids to three dry tons per acre, not to exceed the application rate required by the nutrient management plan, or submit to the department for approval an alternative risk management strategy at least two weeks prior to land application in lieu of the reduced land application rate. Such permit holder shall reduce the application rate required in this subdivision until such time as the annual average on a rolling 12-month basis demonstrates a concentration of less than 25 micrograms per kilogram. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations for all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

a. Notwithstanding the provisions of this subdivision 2, if any single test result exceeds a combined PFOS and PFOA concentration of 75 micrograms per kilogram, the owner of the treatment works shall promptly collect another sample for testing; and

b. If the result of such test exceeds a combined PFOS and PFOA concentration of 75 micrograms per kilogram, such owner shall arrange for the alternative treatment, use, or disposal of the biosolids until a subsequent sample result demonstrates a concentration of less than 50 micrograms per kilogram; or

3. A combined PFOS and PFOA concentration in the biosolids of less than 25 micrograms per kilogram annual average on a rolling 12-month basis, the permit holder may land apply, market, or distribute the biosolids in accordance with its permit with no additional requirements. The permit holder shall send the concentrations for PFOS and PFOA demonstrating compliance with this subdivision and the concentrations for all other target analytes from the analysis required under subsection B of this section in a reader-friendly format by email or mail to the landowner at every property at which the permit holder intends to land apply the biosolids at least two weeks prior to land application.

F. After July 1, 2029, when biosolids from two or more treatment works are blended prior to land application, the requirements of subdivisions E 1, E 2, and E 3 of this section shall be applied to the blended biosolids without further testing, using a mass-balance calculation.

History

• Statutory Authority: § 62.1-44.19:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-32-317 Exclusions

A. Treatment processes. This part does not establish requirements for processes to treat domestic sewage or for processes used to treat sewage sludge prior to final use or disposal, except as provided in 9VAC25-32-675 and 9VAC25-32-685.

B. Selection of a use or a disposal practice. This part does not dictate the selection of a specific biosolids use or sewage sludge disposal practice by the owner of the wastewater treatment works.

C. Incineration of sewage sludge. This part does not establish requirements for sewage sludge fired in a sewage sludge incinerator or co-fired in an incinerator with other wastes or for the incinerator in which sewage sludge or other waste are co-fired.

D. Hazardous sewage sludge. This part does not establish requirements for the use or disposal of sewage sludge determined to be hazardous in accordance with 40 CFR Part 261 as adopted by reference in 9VAC20-60-261 or the Code of Virginia.

E. Sewage sludge with high PCB concentration. This part does not establish requirements for the use or disposal of sewage sludge with a concentration of polychlorinated biphenyls (PCBs) equal to or greater than 50 milligrams per kilogram of total solids (dry weight basis).

F. Incinerator ash. This part does not establish requirements for the use or disposal of ash generated during the firing of sewage sludge in a sewage sludge incinerator.

G. Grit and screenings. This part does not establish requirements for the use or disposal of grit (e.g., sand, gravel, cinders, or other materials with a high specific gravity) or screenings (e.g., relatively large materials such as rags) generated during preliminary treatment of domestic sewage in a treatment works.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 34, Issue 19, eff. June 13, 2018.

9VAC25-32-320 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; repealed, Virginia Register Volume 32, Issue 5, eff. January 1, 2016.

9VAC25-32-330 Variances

A. The department may grant a variance to a procedural, design, or operational regulation by following the appropriate procedures set forth in this section.

B. Requirements for a variance. The department may grant a variance if it finds that the hardship imposed outweighs the benefits that may be received by the public and that the granting of such variance does not subject the public to unreasonable health risks or environmental pollution.

C. Application for a variance. Any owner may apply in writing for a variance. The application shall be submitted to the appropriate regional office for evaluation. The application shall include:

1. A citation of the regulation from which a variance is requested.

2. The nature and duration of variance requested.

3. A statement of the hardship to the owner and the anticipated impacts to the public health and welfare if a variance were granted.

4. Suggested conditions that might be imposed on the granting of a variance that would limit its detrimental impact on public health and welfare.

5. Other information, if any, believed to be pertinent by the applicant.

6. Such other information as may be required to make the determination in accordance with subsection B of this section.

D. Consideration of a variance.

1. The department shall act on any variance request submitted pursuant to this subsection within 90 days of receipt of request.

2. In the department's consideration of whether a biosolids use variance should be granted, the department shall consider such factors as the following:

a. The effect that such a variance would have on the adequate operation of the biosolids use facility, including public nuisance concerns;

b. The cost and other economic considerations imposed by this requirement; and

c. The effect that such a variance would have on the protection of the public health or the environment.

E. Disposition of a variance request.

1. The department may grant the variance request and if the department proposes to deny the variance it shall provide the owner an opportunity to an informal proceeding as provided in § 2.2-4019 of the Code of Virginia. Following this opportunity for an informal proceeding the department may reject any application for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision.

2. If the department proposes to grant a variance request submitted pursuant to this regulation, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, the biosolids use facility involved, and shall specify the period of time for which the variance will be effective. Such notice shall provide that the variance will be terminated when the biosolids use facility comes into compliance with the applicable regulation and may be terminated upon a finding by the department that the biosolids use facility has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the variance shall be 15 days following its issuance.

F. Posting of variances. All variances granted for the design or operation of biosolids use facility are nontransferable. Any requirements of the variance shall become part of the permit for biosolids use subsequently granted by the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-340 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-350 Procedures for obtaining a certificate to construct and certificate to operate

No owner shall cause or allow the construction, expansion, modification, or operation of facilities necessary for biosolids treatment or storage except in compliance with a certificate to construct (CTC) and a certificate to operate (CTO) issued by the department in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-355 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

Article 2 Operational and Monitoring Requirements

9VAC25-32-356 Pollutant monitoring and limits

A. Bulk biosolids or biosolids sold or given away in a bag or other container shall be monitored for the parameters identified in Table 1 of this section:

| TABLE 1 PARAMETERS for BIOSOLIDS ANALYSIS⁽¹⁾ | | --- | | Pollutant | | Percent solids (%) | | Volatile solids (%) | | pH (standard units) | | Total Kjeldahl nitrogen (%) | | Ammonia nitrogen (%) | | Nitrates (mg/kg) | | Total phosphorus (%) | | Total potassium (%) | | Alkalinity as CaCO₃ (mg/kg)⁽²⁾ | | Arsenic (mg/kg) | | Cadmium (mg/kg) | | Copper (mg/kg) | | Lead (mg/kg) | | Mercury (mg/kg) | | Molybdenum (mg/kg) | | Nickel (mg/kg) | | Selenium (mg/kg) | | Zinc (mg/kg) | | ⁽¹⁾Values reported on a dry weight basis unless indicated. ⁽²⁾Lime treated biosolids (10% or more lime by weight) shall be analyzed for percent CaCO₃. |

B. Biosolids pollutant limits.

1. Bulk biosolids or biosolids sold or given away in a bag or other container shall not be applied to the land if the concentration of any pollutant in the biosolids exceeds the ceiling concentration for the pollutant in Table 2 of this section.

2. If bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site, either:

a. The cumulative loading rate for each pollutant shall not exceed the cumulative pollutant loading rate for the pollutant in Table 3 of this section; or

b. The concentration of each pollutant in the biosolids shall not exceed the concentration for the pollutant in Table 4 of this section.

3. If bulk biosolids is applied to a lawn or a home garden, the concentration of each pollutant in the biosolids shall not exceed the concentration for the pollutant in Table 4 of this section.

4. If biosolids is sold or given away in a bag or other container for application to the land, either:

a. The concentration of each pollutant in the biosolids shall not exceed the concentration for the pollutant in Table 4 of this section; or

b. The product of the concentration of each pollutant in the biosolids and the annual whole sludge application rate for the biosolids shall not cause the annual pollutant loading rate for the pollutant in Table 5 of this section to be exceeded. The procedure used to determine the annual whole sludge application rate is presented in subsection D of this section.

5. Biosolids that are land applied, marketed, or distributed must satisfy the requirements in 9VAC25-32-316.

C. Pollutant concentrations and loading rates - biosolids.

| TABLE 2 CEILING CONCENTRATIONS | | | --- | --- | | Pollutant | Ceiling Concentration (milligrams per kilogram)* | | Arsenic | 75 | | Cadmium | 85 | | Copper | 4,300 | | Lead | 840 | | Mercury | 57 | | Molybdenum | 75 | | Nickel | 420 | | Selenium | 100 | | Zinc | 7,500 | | *Dry weight basis | |

| TABLE 3 CUMULATIVE POLLUTANT LOADING RATES⁽¹⁾ | | | | --- | --- | --- | | | Cumulative Pollutant Loading Rate | | | Pollutant | (kilograms per hectare) | (pounds per acre) | | Arsenic⁽²⁾ | 41 | 36 | | Cadmium | 39 | 35 | | Copper | 1,500 | 1,340 | | Lead | 300 | 270 | | Mercury | 17 | 16 | | Molybdenum⁽²⁾ | | | | Nickel | 420 | 375 | | Selenium | 100 | 89 | | Zinc | 2,800 | 2,500 | | Notes:⁽¹⁾Such total applications to be made on soils with the biosolids/soil mixture pH adjusted to 6.0 or greater if the biosolids cadmium content is greater than or equal to 21 mg/kg. The maximum cumulative application rate is limited for all ranges of cation exchange capacity due to soil background pH in Virginia of less than 6.5 and lack of regulatory controls of soil pH adjustment after biosolids application ceases. ⁽²⁾The maximum cumulative application is currently under study by EPA. Research suggests that for Molybdenum a cumulative pollutant loading rate below 40 kg/hectare may be appropriate to reduce the risk of copper deficiency in grazing animals. | | |

| TABLE 4 POLLUTANT CONCENTRATIONS | | | --- | --- | | Pollutant | Monthly Average Concentration (milligrams per kilogram)* | | Arsenic | 41 | | Cadmium | 39 | | Copper | 1,500 | | Lead | 300 | | Mercury | 17 | | Molybdenum⁽¹⁾ | | | Nickel | 420 | | Selenium | 100 | | Zinc | 2,800 | | *Dry weight basis Note: ⁽¹⁾ The monthly average concentration is currently under study by EPA. Research suggests that a monthly average Molybdenum concentration below 40 mg/kg may be appropriate to reduce the risk of copper deficiency in grazing animals. | |

| TABLE 5 ANNUAL POLLUTANT LOADING RATES ⁽¹⁾ | | | | --- | --- | --- | | | Annual Pollutant Loading Rate (per 365-day period) | | | Pollutant | (kilograms per hectare) | (pounds per acre) | | Arsenic ⁽²⁾ | 2.0 | 1.8 | | Cadmium | 1.9 | 1.7 | | Copper | 75 | 67 | | Lead | 15 | 13 | | Mercury | 0.85 | 0.76 | | Molybdenum⁽²⁾ | | | | Nickel | 21 | 19 | | Selenium | 5.0 | 4.6 | | Zinc | 140 | 125 | | Notes:⁽¹⁾Such total applications to be made on soils with the biosolids/soil mixture pH adjusted to 6.0 or greater if the biosolids cadmium content is greater than or equal to 21 mg/kg. The maximum cumulative application rate is limited for all ranges of cation exchange capacity due to soil background pH in Virginia of less than 6.5 and lack of regulatory controls of soil pH adjustment after biosolids application ceases. ⁽²⁾The maximum cumulative application is currently under study by EPA. | | |

D. Procedures to determine the annual whole sludge application rate (AWSAR) for biosolids. Subdivision B 4 b of this section requires that the product of the concentration for each pollutant listed in Table 4 of this section in biosolids sold or given away in a bag or other container for application to the land and the AWSAR for the biosolids not cause the annual pollutant loading rate for the pollutant in Table 5 to be exceeded. This subsection contains that procedure used to determine the AWSAR for a biosolids that does not cause the annual pollutant loading rates (APLR) in Table 5 of this section to be exceeded.

1. The relationship between the APLR for a pollutant and the AWSAR for a biosolids is shown in equation (1):

| EQUATION (1) | | --- | | APLR = C X AWSAR X 0.001 | | APLR = Annual pollutant loading rate in kilograms per hectare per 365-day period | | C = Pollutant concentration in milligrams per kilogram of total solids (dry weight basis) | | AWSAR = Annual whole sludge application rate in metric tons per hectare per 365-day period (dry weight basis) | | 0.001 = A conversion factor |

2. To determine the AWSAR, equation (1) is rearranged into equation (2):

| EQUATION (2) | | --- | | AWSAR = APLR/(C X 0.001) | | AWSAR = Annual whole sludge application rate in metric tons per hectare per 365-day period (dry weight basis) | | APLR = Annual pollutant loading rate in kilograms per hectare per 365-day period | | C = Pollutant concentration in milligrams per kilogram of total solids (dry weight basis) | | 0.001 = A conversion factor |

3. The procedure used to determine the AWSAR for a biosolids is presented in this subdivision 3:

a. Analyze a sample of the biosolids to determine the concentration for each of the pollutants listed in Table 4 of this section in the biosolids.

b. Using the pollutant concentrations from subdivision 3 a of this subsection and the APLRs from Table 5 of this section, calculate an AWSAR for each pollutant using equation (2).

c. The AWSAR for the biosolids is the lowest AWSAR calculated in subdivision 3 b of this subsection.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-32-357 Operational standards, pathogens, and vector attraction reduction

A. Biosolids shall be monitored to verify that the selected pathogen reduction treatment classification and vector attraction reduction method requirements have been met.

B. Pathogens – biosolids.

1. The Class A pathogen requirements in 9VAC25-32-675 A or the Class B pathogen requirements and site restrictions in 9VAC25-32-675 B shall be met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site.

2. The Class A pathogen requirements in 9VAC25-32-675 A shall be met when bulk biosolids is applied to a lawn or a home garden.

3. The Class A pathogen requirements in 9VAC25-32-675 A shall be met when biosolids is sold or given away in a bag or other container for application to the land.

C. Pathogens – domestic septage. The requirements in 9VAC25-32-675 C shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site.

D. Vector attraction reduction – biosolids.

1. One of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 10 shall be met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site.

2. One of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8 shall be met when bulk biosolids is applied to a lawn or a home garden.

3. One of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8 shall be met when biosolids is sold or given away in a bag or other container for application to the land.

E. Vector attraction reduction – domestic septage. The vector attraction reduction requirements in 9VAC25-32-685 B 9, B 10, or B 12 shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site.

F. Additional operational control information may be required on an individual basis by the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-358 Frequency of monitoring

A. Biosolids.

1. The frequency of monitoring for the pollutants listed in Tables 1 through 5 of 9VAC25-32-356; the pathogen density requirements in 9VAC25-32-675 A and B 2 through B 4; and the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 4, B 7, and B 8 shall be the frequency in Table 1 of this section.

| | TABLE 1 FREQUENCY OF MONITORING – LAND APPLICATION | | | --- | --- | --- | | | Amount of biosolids⁽¹⁾ (metric tons per 365-day period) | Frequency⁽²⁾ | | | Greater than zero but less than 290 | Once per year | | | Equal to or greater than 290 but less than 1,500 | Once per quarter (four times per year) | | | Equal to or greater than 1,500 but less than 15,000 | Once per 60 days (six times per year) | | | Equal to or greater than 15,000 | Once per month (12 times per year | | | Note⁽¹⁾: Either the amount of bulk biosolids applied to the land or the amount of biosolids received by a person who prepares biosolids that is sold or given away in a bag or other container for application to the land (dry weight basis). | | | | Note⁽²⁾: Sampling shall be conducted at approximately equal intervals at the listed frequencies. Biosolids programs that store biosolids and land apply only during discrete events throughout the year shall schedule sampling events to coincide with application periods. The department may require increased monitoring frequencies, if necessary, to adequately define any significant variability in biosolids quality. | |

2. After the biosolids has been monitored for two years at the frequency in Table 1 of this section, the department may reduce the frequency of monitoring for pollutant concentrations and for the pathogen density requirements in 9VAC25-32-675 A 5 b and c.

B. Domestic septage. If the vector attraction reduction requirements in 9VAC25-32-685 B 12 are met when domestic septage is applied to agricultural land, forest, or a reclamation site, each container of domestic septage applied to the land shall be monitored for compliance with those requirements.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-359 Recordkeeping

A. Biosolids.

1. If the pollutant concentrations in Table 4 of 9VAC25-32-356, the Class A pathogen requirements in 9VAC25-32-675 A, and the vector attraction reduction requirements in either 9VAC25-32-685 B 9 or B 10 are met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site:

a. The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The concentration of each pollutant listed in Table 4 of 9VAC25-32-356 in the bulk biosolids;

(2) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the pathogen requirements in 9VAC25-32-675 A was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."; and

(3) A description of how the pathogen requirements in 9VAC25-32-675 A are met.

b. The person who applies the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-32-560 and the vector attraction reduction requirement in (insert either 9VAC25-32-685 B 9 or B 10) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fine and imprisonment.";

(2) A description of how the management practices in 9VAC25-32-560 are met for each site on which bulk biosolids is applied; and

(3) A description of how the vector attraction reduction requirements in either 9VAC25-32-685 B 9 or B 10 are met for each site on which bulk biosolids is applied.

2. If the pollutant concentrations in 9VAC25-32-356 Table 4 and the Class B pathogen requirements in 9VAC25-32-675 B are met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site:

a. The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The concentration of each pollutant listed in Table 4 of 9VAC25-32-356 in the bulk biosolids;

(2) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the Class B pathogen requirements in 9VAC25-32-675 B and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8, if one of those requirements is met) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification, including the possibility of fine and imprisonment.";

(3) A description of how the Class B pathogen requirements in 9VAC25-32-675 B are met; and

(4) When one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8 is met, a description of how the vector attraction reduction requirement is met.

b. The person who applies the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-32-560, the site restrictions in 9VAC25-32-675 B 5, and the vector attraction reduction requirements in (insert either 9VAC25-32-685 B 9 or B 10, if one of those requirements is met) was prepared for each site on which bulk biosolids is applied under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

(2) A description of how the management practices in 9VAC25-32-560 are met on each site on which bulk biosolids is applied;

(3) A description of how the site restrictions in 9VAC25-32-675 B 5 are met for each site on which bulk biosolids is applied;

(4) When the vector attraction reduction requirement in either 9VAC25-32-685 B 9 or B 10 is met, a description of how the vector attraction reduction requirement is met; and

(5) The date bulk biosolids is applied to each site.

3. If the requirements in 9VAC25-32-356 B 2 are met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site:

a. The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:

(1) The concentration of each pollutant listed in Table 2 of 9VAC25-32-356 in the bulk biosolids;

(2) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the pathogen requirements in (insert either 9VAC25-32-675 A or B and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8, if one of those requirements is met)) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fines and imprisonment.";

(3) A description of how the pathogen requirements in either 9VAC25-32-675 A or B are met; and,

(4) When one of the vector attraction requirements in 9VAC25-32-685 B 1 through B 8 is met, a description of how the vector attraction reduction requirement is met.

b. The person who applies the bulk biosolids shall develop the following information, retain the information in subdivisions A 3 b (1) through A 3 b (7) indefinitely, and retain the information in subdivisions A 3 b (8) through A 3 b (13) for five years:

(1) The location, by either street address or latitude and longitude, of each site on which bulk biosolids is applied;

(2) The number of hectares in each site on which bulk biosolids is applied;

(3) The date bulk biosolids is applied to each site;

(4) The cumulative amount of each pollutant (i.e., kilograms) listed in Table 3 of 9VAC25-32-356 in the bulk biosolids applied to each site, including the amount in 9VAC25-32-313 F 2 c;

(5) The amount of biosolids (i.e., dry metric tons) applied to each site;

(6) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the requirements to obtain information in 9VAC25-32-313 F 2 was prepared for each site on which bulk biosolids is applied under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fine and imprisonment.";

(7) A description of how the requirements to obtain information in 9VAC25-32-313 F 2 are met;

(8) The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-32-313 B and 9VAC25-32-560 was prepared for each site on which bulk biosolids is applied under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fine and imprisonment.";

(9) A description of how the management practices in 9VAC25-32-560 are met for each site on which bulk biosolids is applied;

(10) The following certification statement when the bulk biosolids meet the Class B pathogen requirements in 9VAC25-32-675 B:

"I certify, under penalty of law, that the information that will be used to determine compliance with the site restrictions in 9VAC25-32-675 B 5 was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including fines and imprisonment.";

(11) A description of how the site restrictions in 9VAC25-32-675 B 5 are met for each site on which Class B bulk biosolids is applied;

(12) The following certification statement when the vector attraction reduction requirement in either 9VAC25-32-685 B 9 or B 10 is met:

"I certify, under penalty of law, that the information that will be used to determine compliance with the vector attraction reduction requirement in (insert either 9VAC25-32-685 B 9 or B 10) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."; and

(13) If the vector attraction reduction requirements in either 9VAC25-32-685 B 9 or B 10 are met, a description of how the requirements are met.

B. Domestic septage. When domestic septage is applied to agricultural land, forest, or a reclamation site, the person who applies the domestic septage shall develop the following information and shall retain the information for five years:

1. The location, by either street address or latitude and longitude, of each site on which domestic septage is applied;

2. The number of acres in each site on which domestic septage is applied;

3. The date domestic septage is applied to each site;

4. The nitrogen and phosphorus requirement for the crop or vegetation grown on each site during the 365-day period;

5. The rate, in gallons per acre per 365-day period, at which domestic septage is applied to each site;

6. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the pathogen requirements in (insert either 9VAC25-32-675 C 1 or C 2) and the vector attraction reduction requirements in (insert 9VAC25-32-685 B 9, B 10, or B 12) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

7. A description of how the pathogen requirements in either 9VAC25-32-675 C 1 or C 2 are met; and

8. A description of how the vector attraction reduction requirements in 9VAC25-32-685 B 9; B 10 and B 12 are met.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-360 Reporting

A. An activity report shall be submitted (electronically or postmarked) to the department by the 15th day of each month for land application activity that occurred in the previous calendar month, unless another date is specified in the permit in accordance with 9VAC25-32-80 I 4. The report shall indicate those sites where land application activities took place during the previous month. If no land application occurs under a permit during the calendar month, a report shall be submitted stating that no land application occurred.

B. A report shall be submitted to the department annually on February 19 of each year for the previous calendar year's activity. The report shall include at a minimum:

1. The information in 9VAC25-32-359 A, except the information in 9VAC25-32-359 A 1 b, A 2 b and A 3 b, for the appropriate requirements; and

2. The information in 9VAC25-32-359 A 3 b (1) through (7) when 90% or more of any of the cumulative pollutant loading rates in Table 3 of 9VAC25-32-356 is reached at a land application site.

C. Reports shall be maintained documenting the required treatment and quality characteristics and the maximum allowable land application loading rates established for biosolids use; in addition, operational monitoring results shall verify that required sludge treatment has achieved the specified levels of pathogen control and vector attraction reductions (9VAC25-32-675 and 9VAC25-32-685). Adequate records on biosolids composition, treatment classification, biosolids application rates, and methods of application for each site shall be maintained by the generator and owner.

D. The generator and owner shall maintain the records for a minimum period of five years. Sites receiving frequent applications of biosolids that meet or exceed maximum cumulative constituent loadings and dedicated disposal sites should be properly referenced for future land transactions (Sludge Disposal Site Dedication Form).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-370 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-380 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-390 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-400 Additional monitoring

A. The department may require that additional site specific monitoring be performed by the holder of the permit for any biosolids land application practice regardless of frequency of application or size of the application area. Such requirements may occur in situations in which groundwater contamination, surface runoff, soil toxicity, health hazards or nuisance conditions are identified as an existing problem or potential problem as a result of biosolids use operations. Additional monitoring may include, but is not limited to, groundwater, surface water, crop, and soil monitoring.

B. The department may require the owner or operator of any facility or operation to install, use, and maintain monitoring equipment for internal testing of biosolids quality, to identify and determine the causes of operational problems, and to determine the necessary corrective actions to correct such problems. If this testing is required, test results shall be recorded, compiled, and reported to the department.

C. Additional operational control information may be required on an individual basis by the department.

D. The department may require biosolids to be tested for certain toxic organic compounds prior to agricultural use. If performed and validated, these test results shall be utilized to evaluate the maximum allowable annual loading rate for the tested biosolids. If analytical test results verify that biosolids contains levels of organic chemicals exceeding concentration limits incorporated in federal regulations or standards, appropriate restrictions shall be imposed for agricultural use of those biosolids.

E. Additional parameters may be required for screening purposes such as aluminum (mg/kg), water soluble boron (mg/kg), calcium (mg/kg), manganese (mg/kg), sulfates (mg/kg), and those pollutants for which removal credits are granted.

F. Microbiological testing may be necessary to document the sludge treatment classification (9VAC25-32-675). Microbiological standards shall be verified by the log mean of the analytical results from testing of seven or more samples of the sludge source. Sampling events shall be separated by an appropriate period of time so as to be representative of the random and cyclic variations in sewage characteristics.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-410 Biosolids management plan

A. The permit holder shall maintain and implement a Biosolids Management Plan that shall consist of three components:

1. The materials, including site booklets, developed and submitted at the time of permit application or permit modification adding a farm to the permit in accordance with 9VAC25-32-60 F;

2. Nutrient management plan developed for each site, prior to biosolids application; and

3. Operations and maintenance (O&M) manual, developed and submitted to the department within 90 days of the effective date of the permit.

B. The biosolids management plan and all of its components shall be incorporated as an enforceable part of the permit.

C. Nutrient management plan:

1. A nutrient management plan approved by the Department of Conservation and Recreation shall be required for application sites prior to department authorization under specific conditions, including but not limited to:

a. Sites operated by an owner or lessee of a confined animal feeding operation as defined in subsection A of § 62.1-44.17:1 of the Code of Virginia, or confined poultry feeding operation as defined in subsection A of § 62.1-44.17:1.1 of the Code of Virginia;

b. Sites where land application more frequently than once every three years at greater than 50% of the annual agronomic rate is proposed;

c. Mined or disturbed land sites where land application is proposed at greater than agronomic rates; and

d. Other sites based on site-specific conditions that increase the risk that land application may adversely impact state waters.

2. Where conditions at the land application site change so that it meets one or more of the specific conditions identified in subdivisions 1 a through d of this subsection, an approved nutrient management plan shall be submitted prior to any future land application at the site.

3. The nutrient management plan shall be available for review by the department at the land application site during biosolids land application.

4. Within 30 days after land application at the site has commenced, the permit holder shall provide a copy of the nutrient management plan to the farm operator of the site, the Department of Conservation and Recreation and the chief executive officer or designee for the local government unless they request in writing not to receive the nutrient management plan.

5. The nutrient management plan must be approved by the Department of Conservation and Recreation prior to land application for application sites where the soil test phosphorus levels exceed the values in Table 1 of this section. For purposes of approval, permittees should submit the nutrient management plan to the Department of Conservation and Recreation at least 30 days prior to the anticipated date of land application to ensure adequate time for the approval process.

| TABLE 1 SOIL PHOSPHORUS LEVELS REQUIRING NMP APPROVAL | | | --- | --- | | Region | Soil Test P (ppm) VPI & SU Test (Mehlich I)* | | Eastern Shore and Lower Coastal Plain | 135 | | Middle and Upper Coastal Plain and Piedmont | 136 | | Ridge and Valley | 162 | | *If results are from another laboratory, the Department of Conservation and Recreation approved conversion factors must be used. | |

D. The O&M manual shall include at a minimum:

1. Equipment maintenance and calibration procedures and schedules;

2. Storage facility maintenance procedures and schedules;

3. Sampling schedules for:

a. Required monitoring; and

b. Operational control testing;

4. Sample collection, preservation, and analysis procedures, including laboratories and methods used; and

5. Instructions for recording and reporting of all monitoring activities.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-420 Operability

A. Independently operated essential equipment, or components, of biosolids use facilities and operations, including treatment works, shall be provided with sufficient capacity and routine maintenance resources so that the average quantity of biosolids used may be reliably transported, stored, treated or otherwise managed in accordance with permit requirements.

B. The need for spare parts shall be determined from operational experience and evaluation of past maintenance requirements. A spare parts inventory may be included in the operation and maintenance manual.

C. Sufficient spare parts determined as necessary to ensure continuous operability of essential unit operations and equipment shall be either located at the treatment works or at readily accessible locations. The minimum quantities of spare parts actually provided shall be in accordance with the operation and maintenance manual.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, September 1, 2013.

9VAC25-32-430 Maintenance

A regular or routine program of preventive maintenance shall be adhered to. The operations and maintenance manual shall contain a system of maintenance requirements to be accomplished. The routine, minimum preventive maintenance system shall be in accordance with the operations and maintenance manual. Such a system should provide for advanced scheduling of preventive maintenance and should be continually assessed in order to reflect increased service requirements as equipment ages or flow rates increase. Adequate records, files and inventories to assist the operator in his task should also be described in the operation and maintenance manual. Information systems provided for maintenance should describe the documentation required to verify biosolids treatment quality necessary for compliance with permits. Where certain components of the treatment process may be damaged by flooding so as to cause excessive delays in restoring the treatment process to a normal operating level, the means of protecting or removal of such components prior to flooding should be described in the operations and maintenance manual.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-32-440 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, September 1, 2013.

9VAC25-32-450 Sampling, analysis, and preservation

A. Representative samples of biosolids that is applied to the land or placed on a surface disposal site shall be collected and analyzed.

1. Raw sewage or sludge samples are to be collected prior to the treatment process unit operations.

2. Final treated samples are to be taken at a point following appropriate unit operations in the treatment process. An evaluation of biosolids treatment may require monitoring of fecal coliform levels in treated biosolids.

3. Composite samples shall be collected in accordance with the treatment works operation and maintenance manual.

B. Liquid biosolids. In the case of digesters and liquid storage holding tanks, a representative sample shall be composed of at least four grab samples obtained during daily operations at the facility or land application site. Samples of liquid biosolids obtained under pressure or vacuum should be obtained shortly after the beginning, during and at the end of the time period that the biosolids are produced at the sampling point.

C. Biosolids storage facilities. Equal volumes of biosolids shall be withdrawn from random locations across the width and throughout the length of the storage facility at the surface, mid-depth and near the bottom of the lagoon at each grab sample location. These grab samples shall be added to form a composite mix. A range of the minimum number of grab samples that should be obtained from various sizes of biosolids storage facilities in order to obtain a representative composite sample is presented in Table 1 of this section:

| TABLE 1 MINIMUM NUMBER OF GRAB SAMPLES FROM STORAGE FACILITIES | | | | --- | --- | --- | | Surface Area (Acres) | Minimum Number of Grab Samples | | | Depth less than 4 feet | Depth greater than 4 feet | | | 1 to 9.99 | 4 to 5 | 6 to 8 | | 10 or more | 6 to 8 | 9 to 11 |

D. Dewatered biosolids. Small, equally sized grab samples of the dewatered sludge stream may be taken at equally spaced intervals over the period of operation of the dewatering unit. Centrifuged biosolids samples may be taken from a belt conveyor or receiving hopper. Filter cake biosolids samples may be taken from a belt conveyor or a portion of the cake may be removed as it leaves the unit. The smaller grab samples should be combined to form a representative composite sample. A composite sample can be obtained over the daily operational period at the land application site.

E. Compost sampling. Collect composite samples composed of at least three grab samples of one kilogram or more so that a representative average level of compost characteristics can be obtained from analytical testing. This mixture should be used for analytical testing or for combination with other composites to obtain a total composite sample representing a fixed period of operation. Compost samples may be taken with a scoop or shovel and placed in flexible bags that can be thoroughly shaken to mix grab samples.

F. Biosolids samples shall be preserved and analyzed in accordance with methods listed in 40 CFR Part 136 and methods identified in 9VAC25-31-490. Calculation procedures in the methods shall be used to calculate the percent volatile solids reduction for biosolids. Any other acceptable test procedure not listed in 40 CFR Part 136 shall be specified in the VPA permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, September 1, 2013; Volume 34, Issue 19, eff. June 13, 2018.

9VAC25-32-460 Soils monitoring

A. Soil shall be sampled and analyzed prior to biosolids application. No sample analysis used to determine application rates shall be more than three years old at the time of biosolids land application. Soil shall be sampled and analyzed in accordance with Table 1 of this section. Reduced monitoring may also apply to one time biosolids applications to forest or reclaimed lands. For background analysis, random composite soil samples from the zone of incorporation is required for infrequent applications and frequent applications at less than agronomic rates (total less than 15 dry tons per acre).

| | TABLE 1 SOIL TEST PARAMETERS FOR LAND APPLICATION SITES¹ | | --- | --- | | | Parameter | | | Soil pH (Std. Units) | | | Available phosphorus (ppm)² | | | Extractable potassium (ppm) | | | Extractable sodium (mg/100g)³ | | | Extractable calcium (mg/100g) | | | Extractable magnesium (mg/100g) | | | Zinc (ppm) | | | Manganese (ppm) | | | ¹Note: Unless otherwise stated, analyses shall be reported on a dry weight basis. ²Available P shall be analyzed using one of the following methods: Mehlich I or Mehlich III. ³Extractable sodium shall be analyzed only where biosolids known to be high in sodium will be land applied. |

B. The permit applicant or permit holder may be required to conduct soil testing and analysis of additional parameters, as determined by the department, based on site-specific history or conditions.

C. Samples shall be collected in accordance with § 10.1-104.2 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, September 1, 2013.

9VAC25-32-470 Crop monitoring and reporting

Vegetation monitoring may be required by the department upon recommendation of the department once every three years on sites with frequent applications of biosolids applied at or greater than agronomic rates and when 400 pounds per acre or more of available phosphorus has been applied to the soil. Analyses of plant tissue should be conducted at the proper growth stage as recommended by either the Virginia Department of Agriculture and Consumer Services, the Virginia Department of Conservation and Recreation or Virginia Cooperative Extension Service. Routine analyses include nitrate-nitrogen, phosphorus, potassium, calcium, manganese, magnesium, iron, copper and zinc. Analysis for additional parameters may be necessary as determined on a case-by-case basis. Results shall be reported annually to the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-480 Groundwater monitoring and reporting

A. Monitoring wells may be required by the department for land treatment sites, sludge lagoons, biosolids land application sites, or biosolids storage facilities to monitor groundwater quality.

B. If groundwater monitoring is required, a groundwater monitoring plan shall be submitted to the department for approval that includes at a minimum:

1. Geologic and hydrologic conditions at the site;

2. Monitoring well design, placement, and construction;

3. Sampling frequency;

4. Sampling procedures, including quality assurance and quality control; and

5. Collection of background samples.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008, Errata, 25:15 VA.R. 2804 March 30, 2009; amended, Virginia Register Volume 29, Issue 24, September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

Article 3 Biosolids Use Standards and Practices

9VAC25-32-490 Compliance with biosolids use practices of this chapter

Guidelines set forth in 9VAC25-32-515 through 9VAC25-32-580 of this regulation specify minimum standards for biosolids use for land application, marketing and distribution, including biosolids quality and site specific management practices. Compliance with this chapter will not be required for facilities not including land application, distribution, or marketing, which have received the approval of the Commissioner of the State Department of Health and the State Water Control Board and for which operation has commenced as of January 1, 2008. Such operation of facilities is deemed to be commenced upon issuance of a certificate to operate in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790). However, the department may impose standards and requirements that are more stringent than those contained in this regulation according to the provisions of 9VAC25-32-100 E, 9VAC25-32-315, and 9VAC25-32-560 B 3. Conformance to local land use zoning and planning should be resolved between the local government and the facility owner or permit holder. Applications submitted for facilities must demonstrate that the facility and biosolids use management practices will adequately safeguard public health and will comply with the certificate and permit requirements, as appropriate. Submissions that are in substantial compliance with this regulation and comply with any additional requirements as noted above will be approved. Justification for biosolids use proposals may be required for those portions of the submitted proposal that differ from these criteria. The owner or owner's agent shall identify and justify noncompliance with specific standards or "shall" criteria that the department identifies, or the applicant, in his judgment, believes to be substantial in nature. The department may request changes in designs that are not in substantial compliance with this regulation and that are not adequately justified by the applicant. The fact that significant work was accomplished on a specific permit application prior to adoption of this regulation shall be a consideration when evaluating applications.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-500 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, September 1, 2013.

9VAC25-32-510 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, September 1, 2013.

9VAC25-32-515 Notification of land application activity

A. Written notification.

1. At least 100 days prior to commencing the first land application of biosolids at a permitted site, the permit holder shall deliver or cause to be delivered written notification to the chief executive officer or designee for the local government where the site is located. This requirement may be satisfied by the department's notice to the local government at the time of receiving the permit application if all necessary information is included in the notice or by providing a list of available permitted sites in the locality at least 100 days prior to commencing the application at any site on the list. If the site is located in more than one county, the information shall be provided to all jurisdictions where the site is located.

2. At least 14 days prior to commencing land application of biosolids at a permitted site, the permit holder shall deliver or cause to be delivered written notification to the department and the chief executive officer or designee for the local government where the site is located unless they request in writing not to receive the notice. The notice shall identify the location of the permitted site and the expected sources of the biosolids to be applied to the site.

3. Not more than 24 hours prior to commencing land application activities, including delivery of biosolids at a permitted site, the permittee shall notify in writing the department and the chief executive officer or designee for the local government where the site is located unless they request in writing not to receive the notice. This notification shall include identification of the biosolids source and shall include only sites where land application activities will commence within 24 hours or where biosolids will be staged within 24 hours.

4. The permit holder shall conduct notification in accordance with 9VAC25-32-316.

B. Posting signs.

1. At least five business days prior to delivery of biosolids for land application on any site permitted under this regulation, the permit holder shall post signs at the site that comply with this section, are visible and legible from the public right-of-way in both directions of travel, and conform to the specifications in this subsection. The sign shall remain in place for at least five business days after land application has been completed at the site. The permit holder shall not remove the signs until at least 30 days after land application has been completed at the site.

a. A sign shall be posted at or near the intersection of the public right-of-way and the main site access road or driveway to the site used by the biosolids transport vehicles.

b. If the field is located adjacent to a public right-of-way, at least one sign shall be posted along each public road frontage beside the field to be land applied.

c. The department may grant a waiver to the requirements in this section, or require alternative posting options due to extenuating circumstances or where requirements conflict with local government ordinances and other requirements regulating the use of signs.

2. Upon the posting of signs at a land application site prior to commencing land application, the permittee shall deliver or cause to be delivered written notification to the department and the chief executive officer or designee for the local government where the site is located unless they request in writing not to receive the notice. Notification shall be delivered to the department within 24 hours of the posting of signs. The notice shall include the following:

a. The name and telephone number of the permit holder, including the name of a representative knowledgeable of the permit;

b. Identification by tax map number and the DEQ control number for sites on which land application is to take place;

c. The name or title and telephone number of at least one individual designated by the permit holder to respond to questions and complaints related to the land application project if not the permit holder identified in 9VAC25-32-515 B 2 a;

d. The approximate dates on which land application is to begin and end at the site; and

e. The name, address, and telephone number of the wastewater treatment facility or facilities from which the biosolids will originate, including the name or title of a representative of the treatment facility who is knowledgeable about the land application operation.

3. The sign shall be made of weather-resistant materials and shall be sturdily mounted so as to be capable of remaining in place and legible throughout the period that the sign is required at the site. Signs required by this section shall be temporary, nonilluminated, and four square feet or more in area, and only contain the following information:

a. A statement that biosolids are being land-applied at the site;

b. The name of the permit holder;

c. The telephone number of an individual designated by the permit holder to respond to complaints and inquiries; and

d. Contact information for the department, including a telephone number for complaints and inquiries.

4. The permit holder shall make a good faith effort to replace or repair any sign that has been removed from a land application site or that has been damaged so as to render any of its required information illegible prior to five business days after completion of land application.

C. Handling of complaints.

1. Within 24 hours of receiving notification of a complaint, the permit holder shall commence investigation of said complaint and shall determine whether the complaint is substantive. The permit holder shall confirm receipt of all substantive complaints by phone, email, or facsimile to the department, the chief executive officer or designee for the local government of the jurisdiction in which the complaint originates, and the owner of the treatment facility from which the biosolids originated within 24 hours after receiving the complaint.

2. For the purposes of this section, a substantive complaint shall be deemed to be any complaint alleging a violation of these regulations, state law, or local ordinance; a release of biosolids to state waters or to a public right-of-way or to any location not authorized in the permit; or failure to comply with the nutrient management plan for the land application site.

3. Localities receiving complaints concerning land application of biosolids shall notify the department and the permit holder within 24 hours of receiving the complaint.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-32-520 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, September 1, 2013.

9VAC25-32-530 Land acquisition

A. When an application to permit land application of biosolids is submitted to the department, the permit applicant shall ensure the continued availability of the land and protection from improper concurrent use during the utilization period.

B. Land acquisition requirements.

1. Permit holders shall use a unique control number assigned by the department as an identifier for fields permitted for land application.

2. A written agreement shall be established between the landowner and permit applicant or permit holder to be submitted with the permit application, whereby the landowner shall consent to apply biosolids on his property. The landowner agreement shall include:

a. A statement certifying that the landowner is the sole owner or one of multiple owners of the property or properties identified on the landowner agreement;

b. A statement certifying that no concurrent agreements are in effect for the fields to be permitted for biosolids application;

c. An acknowledgement that the landowner shall notify the permittee when land is sold or ownership transferred;

d. An acknowledgement that the landowner shall notify the permittee if any conditions change such that any component of the landowner agreement becomes invalid;

e. Permission to allow department staff on the landowner's property to conduct inspections;

f. An acknowledgement by the landowner of any site restrictions identified in the regulation;

g. An acknowledgement that the landowner has received a biosolids fact sheet approved by the department; and

h. An acknowledgement that the landowner shall not remove notification signs placed by the permit holder.

3. New landowner agreements using the most current form provided by the department shall be submitted to the department for proposed land application sites identified in each application for issuance or reissuance of a permit or the modification to add land to an existing permit that authorizes the land application of biosolids.

4. For permits modified in order to incorporate changes to this regulation, the permit holder shall, within 60 days of the effective date of the permit modification, advise the landowner by certified letter of the requirement to provide a new landowner agreement. The letter shall include instructions to the landowner for signing and returning the new landowner agreement, and shall advise the landowner that the permit holder's receipt of such new landowner agreement is required prior to application of biosolids to the landowner's property.

5. The responsibility for obtaining and maintaining the agreements lies with the permit holder. The written agreement shall be submitted to the department with the permit application.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-540 Transport

A. Transport routes should follow primary highways, shall avoid residential areas when possible, and shall comply with all Virginia Department of Transportation requirements and standards. Transport vehicles shall be sufficiently sealed to prevent leakage and spillage of biosolids. For biosolids with a solids content of less than 15%, totally closed watertight transport vehicles with rigid tops shall be provided to prevent spillage unless adequate justification is provided to demonstrate that such controls are unnecessary. The department may also require certain dewatered biosolids exceeding 15% solids content to be handled as liquid biosolids. The minimum information for biosolids transport that shall be supplied in the biosolids management plan is listed in 9VAC25-32-60 F.

B. The permit holder shall be responsible for the prompt cleanup and removal of biosolids spilled during transport. The operations manual shall include a plan for the prevention of spills during transport and for the cleanup and removal of spills. The permit holder shall ensure that its personnel, subcontractors or the drivers of vehicles transporting biosolids for land application shall be properly trained in procedures for spill removal and cleanup.

C. The permit holder shall take appropriate steps to prevent drag-out and track-out of dirt and debris or biosolids from land application sites onto public roads. Where material is transported onto a paved or public road surface, the road surface shall be cleaned thoroughly as soon as practicable, but no later than the end of each day.

D. The permit holder shall promptly report offsite spills to the department, the chief executive officer or designee for the local government and the owner of the facility generating the biosolids. The report shall be made verbally as soon as possible, but no later than 24 hours after the discovery of the spill. After business hours notification may be provided by voicemail, facsimile or email.

E. A written report, which shall include a description of measures taken in response to the spill, shall be submitted by the permit holder to the department, the chief executive officer or designee for the local government, and the owner of the facility generating the biosolids within five working days of the spill. The report may be sent by first class mail, facsimile or email, or it may be hand delivered.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-545 Staging of biosolids for land application

A. Staging is the placement of biosolids on a permitted land application field, within the land application area, in preparation for commencing land application or during an ongoing application, at the field or an adjacent permitted field. Staging is not considered storage and shall not take the place of storage.

B. Staging requirements.

1. Staging of biosolids shall not commence unless the field meets the requirements for land application in accordance with Part IX (9VAC25-32-303 et seq.) of this regulation and field conditions are favorable for land application;

2. Biosolids may be staged for up to seven days from the first day biosolids are offloaded onto the staging area, with the following exceptions:

a. In areas of Karst topography, biosolids offloaded at a permitted land application field shall be land applied by the end of the business day;

b. In areas identified in the USDA soil survey as frequently flooded, biosolids offloaded at a permitted land application field shall be land applied by the end of the business day; or

c. Biosolids shall not be staged overnight on sites that have on-site storage;

3. If staged biosolids cannot be spread by the end of the seventh day of staging, the permittee shall take the following actions:

a. Biosolids shall be covered to prevent contact with precipitation;

b. The permittee shall notify the department in writing within 24 hours. Notification shall include the biosolids source or sources and amounts, location of the site, and reason for staging biosolids longer than seven days; and

c. Biosolids that have been staged for greater than seven days shall be spread or removed from the field as soon as field conditions become favorable for land application;

4. Staging shall be limited to the amount of biosolids specified in the nutrient management plan to be applied at the intended field;

5. Biosolids will be staged within the land application area of the field in which the biosolids will be applied or in a permitted field adjacent to the subject field, in a location selected to prevent runoff to waterways and drainage ditches;

6. Biosolids shall not be staged in the setback areas;

7. Biosolids shall not be staged overnight within 400 feet of an occupied dwelling unless reduced or waived through written consent of the occupant and landowner;

8. Biosolids shall not be staged overnight within 200 feet of a property line unless reduced or waived through written consent of the landowner;

9. Management practices, as described in the biosolids management plan, shall be utilized as appropriate to prevent pollution of state waters by staged biosolids;

10. Staged biosolids are to be inspected by the certified land applier daily. After precipitation events of 0.1 inches or greater inspections shall ensure that runoff controls are in good working order. Observed excessive slumping, erosion, or movement of biosolids is to be corrected within 24 hours. Any ponding at the site is to be corrected and any malodor shall be addressed in accordance with the odor control plan. The certified land applier shall maintain documentation of the inspections of staged biosolids; and

11. Staged biosolids shall be managed so as to prevent adverse impacts to water quality or public health.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-550 Storage facilities

A. No person shall apply to the department for a permit, a variance, or a permit modification authorizing storage of biosolids without first complying with all requirements adopted pursuant to § 62.1-44.19:3 R of the Code of Virginia.

B. Twotypes of storage may be integrated into a complete biosolids management plan:

1. On-site storage, or

2. Routine storage. Only routine storage facilities shall be considered a facility under this regulation.

C. All on-site storage and routine storage facilities shall comply with the requirements of this section by 12 months from the effective date of this regulation.

D. On-site storage. On-site storage is the short-term storage of biosolids on a constructed surface within a site approved for land application at a location preapproved by the department. These stored biosolids shall be applied only to sites under the operational control of the same owner or operator of the site where the on-site storage is located. Requirements for on-site storage include the following:

1. The certified land applier shall notify the department within the same working day whenever it is necessary to implement on-site storage. Notification shall include the source or sources, location, and amounts;

2. A surface shall be constructed with sufficient strength to support operational equipment and with a maximum permeability of 10^-7 cm/sec;

3. Storage shall be limited to the amount of biosolids specified in the nutrient management plan to be applied at sites under the operational control of the same owner or operator of the site where the on-site storage is located;

4. If malodors related to the stored biosolids are verified by the department at any occupied dwelling on surrounding property, the problem must be corrected within 48 hours. If the problem is not corrected within 48 hours, the biosolids must be removed from the storage site;

5. All biosolids stored on the on-site storage pad shall be land applied by the 45^th day from the first day of on-site storage;

6. Biosolids storage shall be located to provide minimum visibility from adjacent properties;

7. Best management practices shall be utilized as appropriate to prevent contact with storm water run on or runoff;

8. Stored biosolids are to be inspected by the certified land applier at least every seven days and after precipitation events of 0.1 inches or greater to ensure that runoff controls are in good working order. Observed excessive slumping, erosion, or movement of biosolids is to be corrected within 24 hours. Any ponding or malodor at the storage site is to be corrected. The certified land applier shall maintain documentation of inspections of stored biosolids;

9. The department may prohibit or require additional restrictions for on-site storage in areas of Karst topography and environmentally sensitive sites; and

10. Storage of biosolids shall be managed so as to prevent adverse impacts to water quality or public health.

E. Routine storage. Routine storage is the long-term storage of biosolids at a facility not located at the site of the wastewater treatment plant, preapproved by the department and constructed specifically for the storage of biosolids to be applied at any permitted site. Routine storage facilities shall be provided for all land application projects if no alternative means of management is available during nonapplication periods. No person shall apply to the department for a permit, a variance, or a permit modification authorizing storage of biosolids without first complying with all requirements adopted pursuant to § 62.1-44.19:3 A 5 of the Code of Virginia. Plans and specifications for any surface storage facilities (pits, ponds, lagoons) or aboveground facilities (tanks, pads) shall be submitted as part of the minimum information requirements. The minimum information requirements include:

1. Location.

a. The facility shall be located at an elevation that is not subject to, or is otherwise protected against, inundation produced by the 100-year flood/wave action as defined by U.S. Geological Survey or equivalent information.

b. Storage facilities should be located to provide minimum visibility.

c. All storage facilities located offsite of property owned by the generator shall be provided with a minimum 750-feet setback area. The length of the setback area considered will be the distance measured from the perimeter of the storage facility. Residential uses, high-density human activities and activities involving food preparation are prohibited within the setback area. The department may reduce the setback requirements based on site-specific factors, such as facility size, topography, prevailing wind direction, and the inclusion of an effective windbreak in the overall design.

2. Design capacity.

a. The design capacity for storage of liquid biosolids shall be sufficient to store a minimum volume equivalent to 60 days or more average production of biosolids and the incidental wastewater generated by operation of the treatment works plus sufficient capacity necessary for: (i) the 25 year-24 hour design storm (incident rainfall and any runoff as may be present); (ii) net precipitation excess during the storage period; and (iii) an additional one foot freeboard from the maximum water level (attributed to the sum of the above factors) to the top berm elevation. Storage capacity of less than that specified above will be considered on a case-by-case basis only if sufficient justification warrants such a reduction.

b. If alternative methods of management cannot be adequately verified, contractors shall provide for a minimum of 30 days of in-state routine storage capacity for the average quantity of biosolids transported into Virginia from out-of-state treatment works generating at least a Class B biosolids.

3. Facility design.

a. All drawings and specifications shall be submitted in accordance with 9VAC25-790-160.

b. The biosolids shall be stored on an engineered surface with a maximum permeability of 10^-7 cm/sec and of sufficient strength to support operational equipment.

c. Storage facilities designed to hold dewatered biosolids shall be constructed with a cover to prevent contact with precipitation.

d. Existing facilities permitted as routine storage facilities and designed to contain liquid biosolids may be used to store dewatered biosolids. The supernatant shall be managed as liquid biosolids in accordance with 9VAC25-32-550 E 5 d. Freeboard shall be maintained in accordance with 9VAC25-32-550 E 5 c. The department may require additional monitoring prior to land application.

e. Storage facilities shall be of uniform shape (round, square, rectangular) with no narrow or elongated portions.

f. The facilities shall also be designed to permit access of equipment necessary for loading and unloading biosolids, and shall be designed with receiving facilities to allow for even distribution of biosolids into the facility.

g. The design shall also provide for truck cleaning facilities.

4. Monitoring. All biosolids storage facilities shall be monitored in accordance with the requirements of this regulation. Plans and specifications shall be provided for such a monitoring program in accordance with the minimum information specified in 9VAC25-32-60 F and 9VAC25-32-410.

5. Operation.

a. Only biosolids suitable for land application (Class A or B biosolids) shall be placed into permitted routine storage facilities.

b. Storage of biosolids located offsite or remote from the wastewater treatment works during the summer months shall be avoided whenever possible so that the routine storage facility remains as empty as possible during the summer months.

c. Storage facilities shall be operated in a manner such that sufficient freeboard is provided to ensure that the maximum anticipated high water elevation due to any and all design storm inputs is not less than one foot below the top berm elevation.

d. Complete plans for supernatant disposal shall be provided in accordance with 9VAC25-32-60 F. Plans for supernatant disposal may include transport to the sewage treatment works, mixing with the biosolids for land application or land application separately. However, separate land application of supernatant will be regulated as liquid biosolids; additional testing, monitoring and treatment (disinfection) may be required.

e. The facility site shall be fenced to a minimum height of five feet; gates and locks shall be provided to control access. The fence shall be posted with signs identifying the facility. The fence shall not be constructed closer than 10 feet to the outside edge of the facility or appurtenances, to allow adequate accessibility.

f. If malodors related to the stored biosolids are verified by the department at any occupied dwelling on surrounding property, the malodor must be corrected within 48 hours.

6. Closure. An appropriate plan of closure or abandonment shall be developed by the permittee when the facility ceases to be utilized and approved by the department. Such plans may also be reviewed by the Department of Health.

7. Recordkeeping. A manifest system shall be developed, implemented and maintained and be available for inspection during operations as part of the overall daily recordkeeping for the project (9VAC25-32-60 F).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-560 Biosolids utilization methods

A. Requirements applicable to land application of biosolids.

1. All biosolids application rates, application times and other site management operations shall be restricted as specified in the biosolids management plan. The biosolids management plan shall include a nutrient management plan as required by 9VAC25-32-410 and prepared by a certified nutrient management planner as stipulated in regulations promulgated pursuant to § 10.1-104.2 of the Code of Virginia.

2. Biosolids shall be treated to meet standards for land application as required by Part IX (9VAC25-32-303 et seq.) of this chapter prior to delivery at the land application site. No person shall alter the composition of biosolids at a site approved for land application of biosolids under a Virginia Pollution Abatement Permit. Any person who engages in the alteration of such biosolids shall be subject to the penalties provided in Article 6 (§ 62.1-44.31 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia. The addition of lime or deodorants to biosolids that have been treated to meet standards for land application as required by Part IX (9VAC25-32-303 et seq.) of this chapter shall not constitute alteration of the composition of biosolids. The department may authorize public institutions of higher education to conduct scientific research on the composition of biosolids that may be applied to land.

B. Agricultural use. Agricultural use of biosolids is the land application of biosolids to cropland or pasture land to obtain agronomic benefits as a plant nutrient source and soil conditioner.

1. Biosolids treatment. As a minimum, biosolids that are applied to the land or incorporated into the soil shall be treated by a Class II pathogen treatment process and shall be treated or managed to provide an acceptable level of vector attraction reduction.

2. Site soils.

a. Depth to bedrock or restrictive layers shall be a minimum of 18 inches.

b. Biosolids application shall not be made during times when the seasonal high water table of the soil is within 18 inches of the ground surface. If Natural Resources Conservation Service soil survey information regarding depth of seasonal water table is not available, the water table depth shall be determined by soil characteristics or water table observations. If the soil survey or such evidence indicates that the seasonal water table can be less than 18 inches below the average ground surface, soil borings shall be conducted within seven days prior to land application operations during periods of high water table for the soil series present to verify the actual water table depth. The use of soil borings and water table depth verification may be required for such sites from November to May (during seasonal high water table elevations) of each year depending on soil type. Constructed channels (agricultural drainage ditches) may be utilized to remove surface water and lower the water table as necessary for crop production and site management.

c. The pH of the biosolids and soil mixture shall be 6.0 or greater at the time of each biosolids application if the biosolids cadmium concentration is greater than or equal to 21 mg/kg. The soil pH must be properly tested and recorded prior to land application operations during which a pH change of one-half unit or more may occur within the zone of incorporation (i.e., use of biosolids containing lime or other alkaline additives at 10% or more of dry solid weight).

d. When soil test pH is less than 5.5 S.U., the land shall be supplemented with lime at the recommended agronomic rate prior to or during biosolids application if the biosolids to be land applied have not been alkaline stabilized.

e. When soil test potassium levels are less than 38 parts per million (Mehlich I analytical procedure or equivalent), the land shall be supplemented with potash at the recommended agronomic rate prior to or during biosolids application.

3. Management practices.

a. Site specific application rates shall not exceed the rates established in the nutrient management plan nor result in exceedance of the cumulative trace element loading rates specified in 9VAC25-32-356 Table 3.

b. Agricultural use of stabilized septage shall be in accordance with the same requirements as biosolids.

c. Infrequent application. If biosolids are applied to a field only once in a three-year period, biosolids may be applied such that the total crop needs for nitrogen is not exceeded during a one-year crop rotation period including the production and harvesting of two crops in succession within a consecutive 12-month growing season. The infrequent application rate may be restricted (i) down to 10% of the maximum cumulative loading rate (9VAC25-32-356 Table 3) for cadmium and lead or (ii) to account for all sources of nutrients applied to the site, including existing residuals.

d. Operations.

(1) Field management. The application rate of all application equipment shall be routinely measured as described in a biosolids management plan. Liquid biosolids shall not be applied at rates exceeding 14,000 gallons per acre, per application. Sufficient drying times shall be allowed between subsequent applications. Application vehicles shall be suitable for use on agricultural land. Pasture and hay fields shall be grazed or clipped to a height of approximately six inches prior to biosolids application. Biosolids shall be applied such that uniform application is achieved. If application methods do not result in a uniform distribution of biosolids, additional operational methods shall be employed following application such as dragging with a pasture harrow, followed by clipping if required, to achieve a uniform distribution of the applied biosolids.

(2) Surface incorporation may be required on cropland by the department, or the local monitor with approval of the department, to mitigate malodors when incorporation is practicable and compatible with a soil conservation plan or contract meeting the standards and specifications of the U.S. Department of Agriculture Natural Resources Conservation Service.

(3) Slopes above 15%. Biosolids shall not be applied to site slopes exceeding 15%. This restriction may be waived by the department for the establishment and maintenance of perennial vegetation or based on site specific criteria and BMPs in place in the field.

(4) Biosolids application timing and slope restrictions shall conform to criteria contained in regulations promulgated pursuant to § 10.1-104.2 of the Code of Virginia.

(5) Snow. Biosolids may only be applied to snow-covered ground if the snow cover does not exceed one inch and the snow and biosolids are incorporated within 24 hours of application. If snow melts during biosolids application, incorporation is not necessary.

e. Setback distances.

(1) Setback distances. The land application of biosolids shall not occur within the following minimum setback distance requirements (Table 1 of this section):

| TABLE 1 MINIMUM SETBACK DISTANCE REQUIREMENTS | | | --- | --- | | Adjacent Feature | Minimum Setback Distance (Feet) to Land Application Area | | Occupied dwelling | 200^1,2,3 | | Odor sensitive receptors (without injection or same day incorporation) | 400³ | | Odor sensitive receptors (with injection or same day incorporation) | 200 | | Property lines | 100^2,4 | | Property lines of publicly accessible sites⁵ | 200 | | Water supply wells or springs | 100 | | Public water supply reservoirs | 400 | | All segments of streams and tributaries designated as a Public Water Supply under the Water Quality Standards | 100 | | Surface waters without a vegetated buffer | 100 | | Surface waters with a 35-foot vegetated buffer | 35 | | Agricultural drainage ditches | 10 | | All improved roadways | 10 | | Rock outcrops | 25 | | Open sinkholes | 100 | | Limestone rock outcrops and closed sinkholes⁶ | 50 | | ¹The setback distance to occupied dwellings may be reduced or waived upon written consent of the occupant and landowner of the dwelling. ²The department shall grant to any landowner or resident in the vicinity of a biosolids land application site an extended setback of up to 200 feet from their property line and up to 400 feet from their occupied dwelling upon request from their physician based on medical reasons. In order for an extended setback request to be granted, the request must be submitted to the department in writing on a form provided by the department. A request must be received by the department no later than 48 hours before land application commences on the field affected by the extended setback, and communicated to the permittee no later than 24 hours before land application commences on the field affected by the extended setback. The department may extend a setback distance within 48 hours of land application if requested by the Virginia Department of Health in connection with the landowner or resident's physician. ³Setback distances may be extended beyond 400 feet where an evaluation by the Virginia Department of Health determines that a setback in excess of 400 feet is necessary to prevent specific and immediate injury to the health of an individual. ⁴The setback distance to property lines may be reduced or waived upon written consent of the landowner. ⁵Publicly accessible sites are open to the general public and routinely accommodate pedestrians and include, but are not limited to, schools, churches, hospitals, parks, nature trails, businesses open to the public, and sidewalks. Temporary structures, public roads or similar thoroughfares are not considered publicly accessible. ⁶A closed sinkhole does not have an open conduit to groundwater. The setback from a closed sinkhole may be reduced or waived by the department upon evaluation by a professional soil scientist. | |

(2) In cases where more than one setback distance is involved, the most restrictive distance governs.

(3) Waivers. Waivers from adjacent property residents and landowners may only be used to reduce setback distances from occupied dwellings and property lines.

(4) Extended setback distances. The department may increase setback requirements based on site specific features, such as agricultural drainage features and site slopes.

f. Voluntary extensions of setback distances. If a permit holder negotiates a voluntary agreement with a landowner or resident to extend setback distances or add other more restrictive criteria than required by this regulation, the permit holder shall document the agreement in writing and provide the agreement to the department. Voluntary setback increases or other management criteria will not become an enforceable part of the land application permit unless the permit holder modifies the biosolids management plan to include the additional restriction.

g. Extension of setback distances with phosphorus index. If the application rate included in a nutrient management plan for a biosolids land application site is dependent upon an extended setback distance calculated using the phosphorus index, the phosphorus index calculations shall be included in the nutrient management plan. The extended setback distance shall be an enforceable part of the permit.

C. Forestland (Silviculture). Silvicultural use includes application of biosolids to timber and fiber production land, as well as federal and state forests. The forestland may be recently cleared and planted, young plantations (two-year-old to five-year-old trees), or established forest stands.

1. Biosolids standards. Refer to the standards of this article.

2. Site suitability.

a. Site suitability requirements shall conform to the requirements contained in subdivision B 2 of this section.

b. Notwithstanding the requirements of subdivision B 2 of this section the soil pH shall be managed at the natural soil pH for the types of trees proposed for growth.

c. Notwithstanding the requirements of subdivision B 2 of this section the soil test potassium level is not required to be at a minimum level at the time of biosolids application.

3. Management practices.

a. Application rates. Biosolids application rates shall be in accordance with the biosolids management plan. The biosolids management plan shall include information provided by the Virginia Department of Forestry.

b. Operations.

(1) Field management.

(a) High pressure spray shall not be utilized if public activity is occurring within 1,500 feet downwind of the application site. Public access to the site shall be controlled following application in accordance with Article 3 (9VAC25-32-490 et seq.) of this part.

(b) Biosolids application vehicles shall have adequate ground clearance to be suitable for silvicultural field use.

(c) Application scheduling included in the biosolids management plan shall take into account rainfall and periods of freezing conditions.

(d) Monitoring requirements shall be site specific and may include groundwater, surface water or soils, for frequent application sites.

(2) Setbacks. Setbacks shall conform to those for agricultural utilization. Refer to Table 1 of this section.

D. Reclamation of disturbed land.

1. Biosolids standards. Refer to the standards of this article.

2. Site suitability. Site suitability requirements shall conform to the requirements contained in subdivision B 2 of this section. Exceptions may be considered on a case-by-case basis.

3. Management practices.

a. Application rates. The biosolids application rates shall be established in the biosolids management plan in consultation with the Virginia Department of Energy, the Virginia Department of Conservation and Recreation, and the Department of Crop and Soil Environmental Sciences of the Virginia Polytechnic Institute and State University. The nutrient management plan shall be approved by the Department of Conservation and Recreation prior to permit issuance where land application is proposed at greater than agronomic rates.

b. Vegetation selection. The land shall be seeded with grass and legumes even when reforested. The biosolids management plan shall include information on the seeding mixture and a detailed seeding schedule.

c. Operations.

(1) The soil pH shall be maintained at 6.0 or above if the cadmium level in the biosolids applied is at or above 21 mg/kg. during the first year after the initial application. Soil samples should be analyzed by a qualified laboratory. The application rate shall be limited by the most restrictive cumulative trace element loading (9VAC25-32-356 Table 3).

(2) Surface material shall be turned or worked prior to the surface application of liquid biosolids.

(3) Unless the applied biosolids are determined to be Class A or have been documented as subjected to Class I treatment, crops intended for direct human consumption shall not be grown for a period of three years following the date of the last biosolids application. No animals whose products are intended for human consumption may graze the site or obtain feed from the site for a period of six months following the date of the last biosolids application.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Errata, 30:3 VA.R. 329 October 7, 2013; amended, Virginia Register Volume 38, Issue 3, eff. October 27, 2021; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-570 Distribution and marketing

A. Exceptional quality. Distribution or marketing provides for the sale or distribution of exceptional quality biosolids or mixtures of exceptional quality biosolids with other materials such that the mixture achieves the Class A pathogen control, vector attraction reduction, and pollutant control standards. Distribution or marketing of Class A biosolids that have been mixed with inert materials may be approved on a case-by-case basis. Use of such mixtures for agricultural purposes shall be evaluated through proper testing or research programs designed to assess the suitability of the material for such use. Exceptional quality biosolids marketed as fertilizers or soil conditioners must meet the following conditions:

1. The biosolids product must be registered with the Virginia Department of Agriculture and Consumer Services in accordance with the provisions of § 3.2-3607 of the Code of Virginia.

2. The biosolids product must be processed to meet Class A pathogen requirements as specified in 9VAC25-32-675 A.

3. The biosolids product must meet one of the vector attraction reduction requirements as specified in 9VAC25-32-685 B 1 through B 8.

4. The biosolids product must meet the ceiling concentrations specified in Table 2 of 9VAC25-32-356.

5. The biosolids product must meet the pollutant concentrations specified in Table 4 of 9VAC25-32-356.

6. The biosolids product must meet the requirements specified in 9VAC25-32-316.

7. Additional parameters may be required for screening purposes such as organic chemicals, aluminum (mg/kg), water soluble boron (mg/kg), calcium (mg/kg), chlorides (mg/l), manganese (mg/kg), sulfur (mg/kg), and those pollutants for which removal credits are granted.

B. Bulk distribution. Exceptional quality biosolids may be distributed and marketed in either bulk amounts (unpacked) or as a bagged product. The following requirements shall apply to distribution and marketing of biosolids products:

1. Any permit holder who distributes or markets exceptional quality biosolids shall comply with the reporting requirements of §§ 3.2-3609 and 3.2-3610 of the Code of Virginia. The records shall be maintained for five years and made available to the department upon request.

2. Bulk quantities of exceptional quality biosolids shall be land applied in accordance with a nutrient management plan prepared by a certified nutrient management planner as stipulated in regulations promulgated pursuant to § 10.1-104.2 of the Code of Virginia, except under the following conditions:

a. The percent solids of the biosolids is equal to or greater than 90% based on moisture content and total solids, or

b. A blended product derived from biosolids is utilized for a purpose other than land application at agricultural operations.

3. Within 30 days after land application at the site has commenced, the permit holder shall provide a copy of the plan to the farm operator of the site and the Department of Conservation and Recreation.

C. Approval of biosolids sources. Only exceptional quality biosolids produced from a sludge processing facility approved by the department can be distributed and marketed.

D. Information furnished to all users. Labeling requirements shall be addressed in a biosolids management plan. Either a label shall be affixed to the bag or other container in which exceptional quality biosolids is sold or given away for application to the land, or an information sheet shall be provided to the person who receives exceptional quality biosolids. The label or information sheet shall contain the following information:

1. The name and address of the person who prepared the exceptional quality biosolids;

2. A statement that application of the exceptional quality biosolids to the land is prohibited except in accordance with the instructions on the label or information sheet;

3. The annual whole sludge application rate for the biosolids that does not cause any of the annual pollutant loading rates in Table 5 of 9VAC25-32-356 to be exceeded; and

4. Information required in accordance with regulations promulgated under § 3.2-3601 of the Code of Virginia and with the labeling provisions of § 3.2-3611 of the Code of Virginia.

E. Recordkeeping.

1. The person who prepares exceptional quality biosolids shall develop the following information and shall retain the information for five years:

a. The concentration of each pollutant listed in Table 4 of 9VAC25-32-356 in the biosolids;

b. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the Class A pathogen requirements in 9VAC25-32-675 A and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

c. A description of how the Class A pathogen requirements in 9VAC25-32-675 A are met; and

d. A description of how one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8 is met.

2. The person who derives the material that meets the criteria of exceptional quality biosolids shall develop the following information and shall retain the information for five years:

a. The concentration of each pollutant listed in Table 4 of 9VAC25-32-356 in the material;

b. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the Class A pathogen requirements in 9VAC25-32-675 A and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

c. A description of how the Class A pathogen requirements in 9VAC25-32-675 A are met; and

d. A description of how one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8 is met.

3. If the requirements in 9VAC25-32-356 B 4 b are met when biosolids is sold or given away in a bag or other container for application to the land, the person who prepares the biosolids that is sold or given away in a bag or other container shall develop the following information and shall retain the information for five years:

a. The annual whole sludge application rate for the biosolids that does not cause the annual pollutant loading rates in Table 5 of 9VAC25-32-356 to be exceeded;

b. The concentration of each pollutant listed in Table 5 of 9VAC25-32-356 in the biosolids;

c. The following certification statement:

"I certify, under penalty of law, that the information that will be used to determine compliance with the management practices in 9VAC25-32-570 E and F, the Class A pathogen requirement in 9VAC25-32-675 A, and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8) was prepared under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate this information. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";

d. A description of how the Class A pathogen requirements in 9VAC25-32-675 A are met; and

e. A description of how one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8 is met.

F. An annual report shall be submitted to the department that includes the following information:

1. Total amount in dry tons of exceptional quality biosolids distributed in a bag or other container per year;

2. Total amount in dry tons of exceptional quality biosolids distributed in bulk; and

3. Total amount in dry tons of exceptional quality biosolids distributed from each approved source.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022; Volume 43, Issue 1, eff. September 23, 2026.

9VAC25-32-580 Sludge disposal

Permits for sludge disposal practices will be issued through other state and federal regulations and are not subject to this regulation. Such practices may include:

1. Incineration. Emission quality control requirements will be established in accordance with state and federal regulations. The generated ash is required to be properly managed in accordance with local, state and federal regulations. Applicable regulatory requirements in addition to this regulation may involve permits issued by the appropriate state and federal agencies. Setback distance requirements will be established on a site specific basis in accordance with the applicable regulations.

2. Landfill. Management of stabilized sludge suitable for topdressing of completed landfill areas will be subject to state and federal regulations. Codisposal of sludge within municipal solid waste landfills is subject to state and federal regulation. Codisposal requirements have included:

a. Stabilization treatment of sludges.

b. Dewatering of sludges by methods designed to achieve a suspended solids level of 20% or more, or a treated sludge sample passes the paint filter test standards for free water.

c. A nonhazardous declaration from the owner.

3. Lagooning (surface disposal). When these facilities are closed by burying the wastes in place, they may be considered to be surface disposal sites. A closure plan shall be provided to the appropriate agencies.

4. Dedicated sites. The primary purpose of surface disposal sites is to allow frequent long-term sludge application at a single location at amounts that exceed agronomic rates but not for the purpose of reclaiming disturbed soils. Sludge disposal operations on dedicated sites will be subject to local, state and federal regulations including site management practices. Permits will be issued through state and federal regulations to protect public health and the quality of state waters. Any dedicated site may be subject to local zoning requirements and may be recorded as a dedicated site in the appropriate circuit court deed book by filing a Sludge Disposal Site Dedication Form.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-590 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-600 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-610 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-620 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-630 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-640 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-650 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-660 (Repealed.)

Historical Notes

Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

Article 4 Pathogen and Vector Attraction Reduction

9VAC25-32-665 Scope

Article 4 Pathogen and Vector Attraction Reduction

A. This article contains the requirements for a biosolids to be classified either Class A or Class B with respect to pathogens.

B. This article contains the site restrictions for land on which a Class B biosolids is applied.

C. This article contains the pathogen requirements for domestic septage applied to agricultural land, forest, or a reclamation site.

D. This article contains alternative vector attraction reduction requirements for biosolids that is applied to the land or placed on a surface disposal site.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-670 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-675 Pathogens

A. Biosolids - Class A.

1. The requirement in subdivision 2 of this subsection and the requirements in either subdivision 3, 4, 5, 6, 7, or 8 of this subsection shall be met for biosolids to be classified as Class A biosolids with respect to pathogens.

2. The Class A pathogen requirements in subdivisions 3 through 8 of this subsection shall be met either prior to meeting or at the same time the vector attraction reduction requirements in 9VAC25-32-685, except the vector attraction reduction requirements in 9VAC25-32-685 B 6 through B 8, are met.

3. Class A - Alternative 1.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2, the pollutant concentrations in 9VAC25-32-356 Table 4, the Class A pathogen requirements in subsection A of this section, and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8.

b. The temperature of the sewage sludge that is used as biosolids or disposed shall be maintained at a specific value for a period of time.

(1) When the percent solids of the sewage sludge is 7.0% or higher, the temperature of the sewage sludge shall be 50°C or higher, the time period shall be 20 minutes or longer; and the temperature and time period shall be determined using equation (1), except when small particles of sewage sludge are heated by either warmed gases or an immiscible liquid.

| | EQUATION (1) | | --- | --- | | | D = 131,700,000/10^0.1400t | | | D = time in days | | | t = temperature in degrees Celsius |

(2) When the percent solids of the sewage sludge is 7.0% or higher and small particles of sewage sludge are heated by either warmed gases or an immiscible liquid, the temperature of the sewage sludge shall be 50°C or higher; the time period shall be 15 seconds or longer; and the temperature and time period shall be determined using equation (1).

(3) When the percent solids of the sewage sludge is less than 7.0% and the time period is at least 15 seconds, but less than 30 minutes, the temperature and time period shall be determined using equation (1).

(4) When the percent solids of the sewage sludge is less than 7.0%, the temperature of the sewage sludge is 50°C or higher; and the time period is 30 minutes or longer; the temperature and time period shall be determined using equation (2).

| | EQUATION (2) | | --- | --- | | | D = 50,070,000/10^0.1400t | | | D = time in days | | | t = temperature in degrees Celsius |

4. Class A - Alternative 2.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis) or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2; the pollutant concentrations in 9VAC25-32-356 Table 4; the Class A pathogen requirements in subsection A of this section, and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8.

b. The pH and temperature of the sewage sludge that is used as biosolids or disposed shall be maintained at specific values for a period of time.

(1) The pH of the sewage sludge that is used as biosolids or disposed shall be raised to above 12 and shall remain above 12 for 72 hours;

(2) The temperature of the sewage sludge shall be above 52°C for 12 hours or longer during the period that the pH of the sewage sludge is above 12; and

(3) At the end of the 72-hour period during which the pH of the sewage sludge is above 12, the sewage sludge shall be air dried to achieve a percent solids in the sewage sludge greater than 50%.

5. Class A - Alternative 3.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2; the pollutant concentrations in 9VAC25-32-356 Table 4; the Class A pathogen requirements in subsection A of this section; and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8.

b. The sewage sludge shall be analyzed prior to pathogen treatment to determine whether the sewage sludge contains enteric viruses.

(1) When the density of enteric viruses in the sewage sludge prior to pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to enteric viruses until the next monitoring episode for the sewage sludge;

(2) When the density of enteric viruses in the sewage sludge prior to pathogen treatment is equal to or greater than one Plaque-forming Unit per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to enteric viruses when the density of enteric viruses in the sewage sludge after pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the biosolids that meets the enteric virus density requirement are documented; and

(3) After the enteric virus reduction in subdivision 5 b (2) of this subsection is demonstrated for the pathogen treatment process, the biosolids continues to be Class A with respect to enteric viruses when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in subdivision 5 b (2) of this subsection.

c. The sewage sludge shall be analyzed prior to pathogen treatment to determine whether the sewage sludge contains viable helminth ova.

(1) When the density of viable helminth ova in the sewage sludge prior to pathogen treatment is less than one per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to viable helminth ova until the next monitoring episode for the sewage sludge.

(2) When the density of viable helminth ova in the sewage sludge prior to pathogen treatment is equal to or greater than one per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to viable helminth ova when the density of viable helminth ova in the sewage sludge after pathogen treatment is less than one per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the sewage sludge that meets the viable helminth ova density requirement are documented.

(3) After the viable helminth ova reduction in subdivision 5 c (2) of this subsection is demonstrated for the pathogen treatment process, the sewage sludge continues to be Class A with respect to viable helminth ova when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in subdivision 5 c (2) of this subsection.

6. Class A - Alternative 4.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2; the pollutant concentrations in 9VAC25-32-356 Table 4; the Class A pathogen requirements in subsection A of this section; and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8.

b. The density of enteric viruses in the biosolids shall be less than one Plaque-forming Unit per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2; the pollutant concentrations in 9VAC25-32-356 Table 4; the Class A pathogen requirements in subsection A of this section; and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8, unless otherwise specified by the department.

c. The density of viable helminth ova in the sewage sludge shall be less than one per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2; the pollutant concentrations in 9VAC25-32-356 Table 4; the Class A pathogen requirements in subsection A of this section, and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8, unless otherwise specified by the department.

7. Class A - Alternative 5.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2; the pollutant concentrations in 9VAC25-32-356 Table 4; the Class A pathogen requirements in subsection A of this section; and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8.

b. Biosolids that is used or disposed shall be treated in one of the processes to further reduce pathogens described in subsection E of this section.

8. Class A - Alternative 6.

a. Either the density of fecal coliform in the biosolids shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis), or the density of Salmonella sp. bacteria in the biosolids shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids is used or disposed; at the time the biosolids is prepared for sale or giveaway in a bag or other container for application to the land; or at the time the biosolids or material derived from biosolids is prepared to meet the ceiling concentrations in 9VAC25-32-356 Table 2; the pollutant concentrations in 9VAC25-32-356 Table 4; the Class A pathogen requirements in subsection A of this section; and one of the vector attraction reduction requirements in 9VAC25-32-685 B 1 through B 8.

b. Biosolids that is used or disposed shall be treated in a process that is equivalent to a process to further reduce pathogens, as determined by the department.

B. Biosolids - Class B.

1. Minimum requirements for Class B biosolids.

a. The requirements in either subdivisions 2, 3, or 4 of this subsection shall be met for a sewage sludge to be classified as Class B biosolids with respect to pathogens.

b. The site restrictions in subdivision B 5 of this section shall be met when biosolids that meets the Class B pathogen requirements in subdivision 2, 3, or 4 of this subsection is applied to the land.

2. Class B - Alternative 1.

a. Seven representative samples of the biosolids that is used or disposed shall be collected.

b. The geometric mean of the density of fecal coliform in the samples collected in subdivision 2 a of this subsection shall be less than either 2,000,000 Most Probable Number per gram of total solids (dry weight basis) or 2,000,000 Colony Forming Units per gram of total solids (dry weight basis).

3. Class B - Alternative 2. Biosolids that is used or disposed shall be treated in one of the processes to significantly reduce pathogens described in subsection D of this section.

4. Class B - Alternative 3. Biosolids that is used or disposed shall be treated in a process that is equivalent to a process to significantly reduce pathogens, as determined by the department.

5. Site restrictions.

a. Food crops with harvested parts that touch the biosolids/soil mixture and are totally above the land surface shall not be harvested for 14 months after application of biosolids.

b. Food crops with harvested parts below the surface of the land shall not be harvested for 20 months after application of biosolids when the biosolids remains on the land surface for four months or longer prior to incorporation into the soil.

c. Food crops with harvested parts below the surface of the land shall not be harvested for 38 months after application of biosolids when the biosolids remains on the land surface for less than four months prior to incorporation into the soil.

d. Food crops, feed crops, and fiber crops shall not be harvested for 30 days after application of biosolids.

e. Animals shall not be grazed on the land for 30 days after application of biosolids (60 days for lactating dairy livestock).

f. Turf grown on land where biosolids is applied shall not be harvested for one year after application of the biosolids when the harvested turf is placed on either land with a high potential for public exposure or a lawn, unless otherwise specified by the department.

g. Public access to land with a high potential for public exposure shall be restricted for one year after application of biosolids.

h. Public access to land with a low potential for public exposure shall be restricted for 30 days after application of biosolids.

| TABLE 1 TIME RESTRICTIONS FOLLOWING COMPLETION OF BIOSOLIDS APPLICATION ASSOCIATED WITH CLASS B PATHOGEN REDUCTION | | | | --- | --- | --- | | Type of Application | Surface⁽¹⁾ | Incorporated⁽²⁾ | | Control of access for high potential for public contact⁽³⁾ | 12 months | 12 months | | Time lapse required before above ground food crops with harvested parts that touch the biosolids/soil mixture can be harvested | 14 months | 14 months | | Time lapse before food crops with harvested parts below the land surface can be harvested | 20 months | 38 months | | Harvesting food crops, feed crops and fiber crops | 1 month | 1 month | | Grazing and feeding harvested crops to animals whose products are consumed by humans⁽⁴⁾ | 1 month | 1 month | | Grazing of farm animals whose products are not consumed by humans | 1 month | 1 month | | Harvesting turf for placement on land with a high potential for public exposure or a lawn⁽⁵⁾ | 12 months | 12 month | | Notes: ⁽¹⁾Remains on land surface for four months or longer prior to incorporation. ⁽²⁾Remains on land surface for less than four months prior to incorporation. ⁽³⁾Public access to agricultural sites and other sites with a low potential for direct contact with the ground surface shall be controlled for 30 days. ⁽⁴⁾The restriction for lactating dairy cows is 60 days. ⁽⁵⁾This time restriction must be met unless otherwise specified by the department. | | |

C. Domestic septage. The site restrictions in subdivision B 5 of this section shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site.

D. Processes to significantly reduce pathogens (PSRP).

1. Aerobic digestion. Sewage sludge is agitated with air or oxygen to maintain aerobic conditions for a specific mean cell residence time at a specific temperature. Values for the mean cell residence time and temperature shall be between 40 days at 20°C and 60 days at 15°C.

2. Air drying. Sewage sludge is dried on sand beds or on paved or unpaved basins. The sewage sludge dries for a minimum of three months. During two of the three months, the ambient average daily temperature is above 0°C.

3. Anaerobic digestion. Sewage sludge is treated in the absence of air for a specific mean cell residence time at a specific temperature. Values for the mean cell residence time and temperature shall be between 15 days at 35°C to 55°C and 60 days at 20°C.

4. Composting. Using either the within-vessel, static aerated pile, or windrow composting methods, the temperature of the sewage sludge is raised to 40°C or higher and remains at 40°C or higher for five days. For four hours during the five days, the temperature in the compost pile exceeds 55°C.

5. Lime stabilization. Sufficient lime is added to the sewage sludge to raise the pH of the sewage sludge to 12 after two hours of contact.

E. Processes to further reduce pathogens (PFRP).

1. Composting. Using either the within-vessel composting method or the static aerated pile composting method, the temperature of the sewage sludge is maintained at 55°C or higher for three days. Using the windrow composting method, the temperature of the sewage sludge is maintained at 55°C or higher for 15 days or longer. During the period when the compost is maintained at 55°C or higher, there shall be a minimum of five turnings of the windrow.

2. Heat drying. Sewage sludge is dried by direct or indirect contact with hot gases to reduce the moisture content of the sewage sludge to 10.0% or lower. Either the temperature of the sewage sludge particles exceeds 80°C or the wet bulb temperature of the gas in contact with the sewage sludge as the sewage sludge leaves the dryer exceeds 80°C.

3. Heat treatment. Liquid sewage sludge is heated to a temperature of 180°C or higher for 30 minutes.

4. Thermophilic aerobic digestion. Liquid sewage sludge is agitated with air or oxygen to maintain aerobic conditions and the mean cell residence time of the sewage sludge is 10 days at 55°C to 60°C.

5. Beta ray irradiation. Sewage sludge is irradiated with beta rays from an accelerator at dosages of at least 1.0 megarad at room temperature (ca. 20°C).

6. Gamma ray irradiation. Sewage sludge is irradiated with gamma rays from certain isotopes, such as Cobalt 60 and Cesium 137, at dosages of at least 1.0 megarad at room temperature (ca. 20°C).

7. Pasteurization. The temperature of the sewage sludge is maintained at 70°C or higher for 30 minutes or longer.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-32-680 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; repealed, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-685 Vector attraction reduction

A. Conditions under which vector attraction reductions are required:

1. One of the vector attraction reduction requirements in subdivisions B 1 through B 10 of this section shall be met when bulk biosolids is applied to agricultural land, forest, a public contact site, or a reclamation site;

2. One of the vector attraction reduction requirements in subdivisions B 1 through B 8 of this section shall be met when bulk biosolids is applied to a lawn or a home garden;

3. One of the vector attraction reduction requirements in subdivisions B 1 through B 8 of this section shall be met when biosolids is sold or given away in a bag or other container for application to the land;

4. One of the vector attraction reduction requirements in subdivisions B 1 through B 11 of this section shall be met when sewage sludge (other than domestic septage) is placed on an active sewage sludge unit;

5. One of the vector attraction reduction requirements in subdivision B 9, B 10, or B 12 of this section shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site; and

6. One of the vector attraction reduction requirements in subdivisions B 9 through B 12 shall be met when domestic septage is placed on an active sewage sludge unit.

B. Vector attraction reduction options:

1. The mass of volatile solids in the sewage sludge shall be reduced by a minimum of 38%, calculated according to the method in 9VAC25-32-450 F 8.

2. When the 38% volatile solids reduction requirement in subdivision 1 of this subsection cannot be met for an anaerobically digested sewage sludge, vector attraction reduction can be demonstrated by digesting a portion of the previously digested sewage sludge anaerobically in the laboratory in a bench-scale unit for 40 additional days at a temperature between 30°C and 37°C. When at the end of the 40 days, the volatile solids in the sewage sludge at the beginning of that period is reduced by less than 17%, vector attraction reduction is achieved.

3. When the 38% volatile solids reduction requirement in subdivision 1 of this section cannot be met for an aerobically digested sewage sludge, vector attraction reduction can be demonstrated by digesting a portion of the previously digested sewage sludge that has a percent solids of 2.0% or less aerobically in the laboratory in a bench-scale unit for 30 additional days at 20°C. When at the end of the 30 days, the volatile solids in the sewage sludge at the beginning of that period is reduced by less than 15%, vector attraction reduction is achieved.

4. The specific oxygen uptake rate (SOUR) for sewage sludge treated in an aerobic process shall be equal to or less than 1.5 milligrams of oxygen per hour per gram of total solids (dry weight basis) at a temperature of 20°C.

5. Sewage sludge shall be treated in an aerobic process for 14 days or longer. During that time, the temperature of the sewage sludge shall be higher than 40°C and the average temperature of the sewage sludge shall be higher than 45°C.

6. The pH of sewage sludge shall be raised to 12 or higher by alkaline addition and, without the addition of more alkaline material, shall remain at 12 or higher for two hours and then at 11.5 or higher for an additional 22 hours.

7. The percent solids of sewage sludge that does not contain unstabilized solids generated in a primary wastewater treatment process shall be equal to or greater than 75% based on the moisture content and total solids prior to mixing with other materials.

8. The percent solids of sewage sludge that contains unstabilized solids generated in a primary wastewater treatment process shall be equal to or greater than 90% based on the moisture content and total solids prior to mixing with other materials.

9. Sewage sludge injection requirements:

a. Sewage sludge shall be injected below the surface of the land.

b. No significant amount of the sewage sludge shall be present on the land surface within one hour after the sewage sludge is injected.

c. When the sewage sludge that is injected below the surface of the land is Class A with respect to pathogens, the sewage sludge shall be injected below the land surface within eight hours after being discharged from the pathogen treatment process.

10. Sewage sludge incorporation requirements:

a. Sewage sludge applied to the land surface or placed on an active sewage sludge unit shall be incorporated into the soil within six hours after application to or placement on the land unless otherwise specified by the department.

b. When the sewage sludge that is incorporated into the soil is Class A with respect to pathogens, the sewage sludge shall be applied to or placed on the land within eight hours after being discharged from the pathogen treatment process.

11. Sewage sludge placed on an active sewage sludge unit shall be covered with soil or other material at the end of each operating day.

12. The pH of domestic septage shall be raised to 12 or higher by alkaline addition and, without the addition of more alkaline material, shall remain at 12 or higher for 30 minutes.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Article 5 Certification of Land Applicators

9VAC25-32-690 Ceritificate requirements for land applicators

Article 5 Certification of Land Applicators

A. No person shall land apply biosolids pursuant to a permit issued in accordance with this regulation unless an individual holding a valid certificate of competence as specified in this regulation (certified land applicator) is onsite at all times during such land application. Certified land applicators may be considered to be onsite if they are at the site permitted for land application and, if it is necessary to leave the site, they are available within 30 minutes to return to the site to verify and ensure that land application of biosolids is in compliance with the issued permit. Certified land applicators shall possess the site-specific permit information necessary to conduct land application on the site in accordance with the issued permit and make available at the land application site proper identification, including their certificate number issued by the department. The certified land applicator shall maintain an operator field log to document at minimum, site location, arrival and departure times, inspectors or any visitors to the site, complaints received, and any unusual condition or event. The field log shall be available for inspection by the department. Monthly reports submitted in accordance with the requirements of 9VAC25-32-360 A shall bear the name and certificate number of the certified land applicators with an approved statement attesting that they were onsite at the times of the reported operations and that those operations were in compliance with the permit. The following parts of this regulation apply to any individual seeking a certificate of competence as required in § 62.1-44.19:3.1 of the Code of Virginia.

B. Certificates of competence shall be issued by the department to certified land applicators. The department may issue such certification based on specified areas of training, experience and level of knowledge as demonstrated through successful completion of examinations as acceptable to the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-700 Eligibility requirements

A. Certification may be obtained by satisfying all of the following requirements:

1. Satisfactorily completing and submitting to the department an application in the form required by the department, including a statement of any felony convictions. Such application shall be submitted to the department at least 30 days before the scheduled examination date set by the department. The application shall request information relating to the person's education, work experience, knowledge of land application of biosolids and applicable regulations, and willingness to abide by the requirements of this regulation;

2. Supplying proof of meeting one of the following:

a. A copy of a transcript or similar documentation indicating completion of a high school or higher degree or equivalent education level with work experience in an agriculturally related area including farming and three months of practical experience related to land application of biosolids acceptable to the department;

b. A combination of training acceptable to the department that may include soil science or nutrient management or farming practice related educational training and a minimum of six months of practical experience related to land application of biosolids; or

c. Evidence of prior supervisory level experience with land application of biosolids of two or more years that is acceptable to the department;

3. Obtaining a passing score on each part of the land applicators certification examination administered by the department; and

4. Submitting the required certification fee by check or money order to the department.

B. Certificates shall be valid upon notification by the department and for two years following each renewal from the established renewal date and will expire on the last day of the expiration month. Certified land applicators or applicants shall notify the department of any change in mailing address within 30 days of such change in address.

C. The department, upon review, may accept or approve land applicator certification programs of other states as satisfying partial requirements for certification.

D. Individuals certified as land application operators in other states under certification or licensing programs acceptable to the department will be eligible for certification in Virginia by complying with all requirements of these regulations except for subdivision A 2 of this section. These individuals may also substitute, for the requirements in this regulation, 9VAC25-32-720, the attainment of a passing score on a Virginia specific examination component that shall include at a minimum the elements listed in 9VAC25-32-720 C 1 and C 6.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-710 Fees

A. Fees shall be collected for certification and recertification to defray the administrative cost for the certification program.

B. A fee may be charged to supply training materials and present education and training programs, including continuing education, which support the certification program.

C. Fees are nonrefundable and shall not be prorated.

D. The certification fee of $100 for the initial certification period shall be due with the application for certification. If an applicant is unsuccessful in achieving a passing score on the examination, the applicant is eligible to retake the examination at a scheduled time as offered by the department. Applicants may retake the examination one time with no additional charge by resubmitting the application for certification. Eligibility for any additional examinations beyond the initial retaking will require the submittal of an application and appropriate fees.

E. The certificate of competence renewal fee is $100.

F. All fees collected by the department shall be used exclusively for the operation of the Land Applicator Training and Certification Program.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-32-720 Examination

A. The department may offer the land applicator certification examinations on request and will schedule an examination at least once per year. The examinations shall require a demonstration of the ability to ensure that biosolids will be land applied in compliance with the requirements of this regulation. The department may limit the number of applicants taking the examination based upon available examination space.

B. Applicants for a certificate of competence shall achieve a passing score on each part of the land applicator certification examination to become eligible for certification. If applicants receive a passing score on any part of the examination they will only be retested on the remaining parts.

C. The examinations for qualified applicants for a certificate of competence in accordance with this regulation shall address the elements listed below.

1. General understanding of biosolids treatment processes and biosolids characteristics;

2. Basic principles of soils, agriculture, and silviculture;

3. Public health protection concepts;

4. Land application concepts and site management and operations;

5. Occupational safety and health protection concepts; and

6. Land application training and certification regulatory requirements, and requirements of other land application related laws, regulations, and incentive programs.

D. An individual who is unable to take an examination at the scheduled time shall notify the department at least five days prior to the date of the examination; such individual may reapply for an examination. The department may consider accepting notice of less than five days due to individual hardship situations on a case-by-case basis. Failure to notify the department may require the individual to submit a new application and payment of fees in accordance with 9VAC25-32-710.

E. The department shall establish acceptable passing scores for the examinations based on the department's determination of the level of examination performance required to show minimal acceptable competence.

F. All applicants shall be notified of results in writing within 60 days of the completion of the examinations.

G. A certificate renewal date will be established and provided to the certified land applicator.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-32-730 Training

A. The department shall provide training sessions on the various topics essential to ensure that land application of biosolids complies with state and federal laws and regulations at least annually.

B. The department may provide a training course on concepts supporting and relating to land application of biosolids that may include biosolids use regulation; basic soil and crop science; soil fertility; environmental management; and other relevant topics.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-32-740 Certificate renewal

A. The department may not renew a certificate if a proceeding to deny certification under 9VAC25-32-760 has begun, or if the department has found that the applicant violated any requirements of this regulation. A certificate is to be renewed every two years and may be renewed on or before the expiration of a certificate by complying with all of the following requirements:

1. Submittal of a renewal application on the form the department requires;

2. Payment of the renewal fee to the department; and

3. Submittal of proof of satisfactory completion of at least four hours of continuing education course work within the past two years. The completed course work must be approved by the department as providing satisfactory training. Requests for pre-approval of continuing education courses should be received at least 60 days prior to the expected course date(s) and must include a detailed syllabus indicating time to be spent on each topic area covered. Continuing education course work must be in subject matter consistent with 9VAC25-32-720.

B. Department personnel may attend continuing education sessions to verify that the requirements are met. Proof of attendance must be verified by the course provider. The department may accept continuing education units obtained in other states if such continuing education units are specifically for the purpose of recertification in the state land application operator certification program.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-32-750 Certificate expiration

A. Certificates issued under this regulation shall expire two years from the last day of the month in which they were issued, as indicated on the certificate, if any of the requirements of 9VAC25-32-740 are not met.

B. Following the expiration of a certificate, reinstatement may be accomplished only by reapplication and compliance with all requirements of 9VAC25-32-700 A, including the examination requirements.

C. It is the responsibility of the certified land applicators to accumulate the required continuing education requirements prior to expiration of the certificate of competence they hold. The department will attempt to notify the certified land applicators of any continuing education needs and other requirements as necessary for certificate renewal 90 days or more prior to certificate expiration.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-32-760 Compliance with regulations and disciplinary action

A. If the department finds that a certified land applicator or an applicant for certification violated any applicable requirements of this regulation, including the procedural violations listed in subsection B of this section, the department may deny, suspend or revoke certification, following the informal fact-finding procedures of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. Certification procedural violations include:

1. Providing misleading, false, or fraudulent information in applying for a certificate;

2. Providing the department with any misleading, false, or fraudulent report;

3. Failing to ensure that land application of biosolids complies with permit requirements due to negligence of responsibilities by the certified land applicator;

4. Failing to promptly and accurately record observed permit noncompliance or, failure to promptly notify the permittee of observed permit noncompliance or, preventing access to inspect any land application site or, failure to provide required field records upon request, in accordance with this regulation; and

5. Conviction of a felony related in any way to the responsibilities of a certified land applicator.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 6, eff. January 1, 2008; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

Article 6 Liability Requirements for Transport, Storage, and Land Application of Biosolids

9VAC25-32-770 Definitions

Article 6 Liability Requirements for Transport, Storage, and Land Application of Biosolids

The following terms are used in the specifications for liability insurance and the financial tests liability coverage. The definitions contained in this section are intended to assist in the understanding of these regulations and are not intended to limit the meanings of terms in a way that conflicts with general insurance industry usage or with generally accepted accounting practices.

"Assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity.

"Current assets" means cash or other assets or resources commonly identified as those that are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.

"Current liabilities" means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.

"Independently audited" means an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.

"Legal defense costs" means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.

"Liabilities" means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.

"Local government" means a county, city, or town or any authority, commission, or district created by one or more counties, cities, or towns.

"Net working capital" means current assets minus current liabilities.

"Net worth" means total assets minus total liabilities and is equivalent to owner's equity.

"Substantial business relationship" means the extent of a business relationship necessary under applicable state law to make a guarantee contract issued incident to that relationship valid and enforceable. A "substantial business relationship" must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the permit holder is demonstrated to the satisfaction of the department.

"Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-780 Liability requirements

A. A permit holder or applicant must demonstrate financial responsibility for clean-up costs, personal injury, bodily injury, and property damage resulting from the transport, storage, and land application of biosolids in Virginia. The permit holder or applicant must have and maintain pollution liability and general liability coverage in the amount of $2 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.

B. The permit holder or applicant may demonstrate the required liability coverage by using one of the mechanisms specified below:

1. A pollution liability policy as well as a general liability policy that covers all activities associated with the "Transport, Storage, and Land Application" of biosolids as specified in 9VAC25-32-790;

2. Passing a corporate financial test as specified in 9VAC25-32-800 or using the corporate guarantee for liability coverage as specified in 9VAC25-32-810;

3. Passing a local government financial test as specified in 9VAC25-32-820 or using the local government guarantee for liability coverage as specified in 9VAC25-32-830;

4. Obtaining a letter of credit for liability coverage as specified in 9VAC25-32-840; or

5. Obtaining a trust fund for liability coverage as specified in 9VAC25-32-850.

C. The permit holder or applicant shall notify the department in writing within 30 days whenever:

1. A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in this section;

2. A certification of valid claim for bodily injury or property damages caused by the transport, storage, or land application of biosolids in Virginia is entered between the owner or operator and a third-party claimant for liability coverage in this section; or

3. A final court order establishing a judgment for bodily injury or property damage caused by the transport, storage, or land application of biosolids in Virginia is issued against the permit holder or applicant or an instrument that is providing financial assurance for liability coverage authorized in this section.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-790 Liability insurance

A. Each pollution and general liability insurance policy must be amended by attachment of an endorsement or evidenced by a certificate of liability insurance. The wording of the endorsement must be identical to that specified in the Biosolids Liability Endorsement form. The wording of the certificate of insurance must be identical to that specified in the Certificate of Liability Insurance form. The permit holder or applicant must submit a signed duplicate original of the endorsement or the certificate of insurance to the department. If requested by the department, the permit holder or applicant must provide a signed duplicate original of the insurance policy. An applicant for a new permit must submit the signed duplicate original of the biosolids liability endorsement or the certificate of liability insurance to the department at least 60 days before the initial application of biosolids. The insurance must be effective before the initial application of biosolids.

B. Each insurance policy must be issued by an insurer that, at a minimum, is licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in Virginia and the insurer shall be in good financial position, as demonstrated by the AM Best (A++, A+, A, A-, B++, B+), Standard and Poor's (AAA, AA, A, BBB), or Moody's (Aaa, Aa, A, Baa) financial strength ratings.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-800 Corporate financial test

A. A permit holder or applicant may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this section. To pass this test the permit holder or applicant must meet the criteria of subsection B of this section.

B. A permit holder or applicant must have:

1. Net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by this test, and a tangible net worth of at least $10 million; or

2. A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's, or Aaa, Aa, A, or Baa as issued by Moody's and a tangible net worth of at least $10 million; and a tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and assets in the United States amounting to either:

a. At least 90% of this total assets; or

b. At least six times the amount of liability coverage to be demonstrated by this test.

3. For the purposes of this section, the phrase "amount of liability coverage" refers to the annual aggregate amounts for which coverage is required under 9VAC25-32-780 A.

C. To demonstrate that he passes this test, the permit holder or applicant must submit the following three items to the department:

1. A letter signed by the permit holder or applicant's chief financial officer;

2. A copy of the independent certified public accountant's report on examination of the permit holder or applicant's financial statements for the latest completed fiscal year; and

3. A special report from the permit holder or applicant's independent certified public accountant to the permit holder or applicant stating that:

a. He has compared the data that the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

b. In connection with that procedure, no matters came to his attention that caused him to believe that the specified data should be adjusted.

D. A new permit holder or new applicant must submit the items specified in subsection C of this section at least 30 days before the date on which the biosolids are first applied.

E. After the initial submission of the items specified in subsection C of this section, the permit holder or applicant must send updated information to the department within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subsection C of this section.

F. If the permit holder or applicant no longer meets the requirements of subsection B of this section, he must obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire amount of the required liability coverage as specified in this section. Evidence of liability coverage must be submitted to the department within 90 days after the end of the fiscal year for which the year-end financial data show that the permit holder or applicant no longer meets the test requirements.

G. The department may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on an examination of the permit holder's or applicant's financial statements. An adverse opinion or a disclaimer of opinion may be cause for disallowance. The department will evaluate other qualifications on an individual basis. The permit holder or applicant must provide evidence for the entire amount of the required liability coverage as specified in this section within 30 days of notification of disallowance.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-810 Corporate guarantee

A. A permit holder or applicant may meet the requirements of this section by obtaining a written guarantee, hereafter referred to as "guarantee." The guarantor must be the direct or higher-tier parent corporation of the permit holder or the applicant; a firm whose parent corporation is also the parent corporation of the permit holder or applicant; or a firm with a substantial business relationship with the permit holder or applicant. The guarantor must meet the requirements for the permit holder or applicant as specified in 9VAC25-32-800. A certified copy of the guarantee must accompany the items sent to the department as specified in 9VAC25-32-800 C. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the permit holder or the applicant, this letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a substantial business relationship with the permit holder or applicant, this letter must describe this substantial business relationship and the value received in consideration of the guarantee.

B. If the permit holder or applicant fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by the transport, storage, or land application of biosolids in Virginia or fails to pay an amount agreed to in a settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage.

C. The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the permit holder or applicant and to the department. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the permit holder or applicant and the department, as evidenced by return receipts.

D. If a guarantee is cancelled, the permit holder or applicant shall, within 90 days following receipt of the cancellation notice by the permit holder or applicant and the department, obtain alternate financial assurance and provide evidence of that alternate financial assurance to the department. If the permit holder or applicant fails to provide evidence of alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days following the close of the guarantor's fiscal year; obtain alternate assurance acceptable to the department; and provide evidence of the alternate assurance to the department.

E. Recordkeeping and reporting.

1. The permit holder or applicant shall submit a signed original guarantee to the department along with the items required under 9VAC25-32-800 C. The guarantee shall be worded as specified on the Corporate Guarantee form.

2. The permit holder or applicant is no longer required to maintain the items specified in 9VAC25-32-800 C when:

a. The permit holder or applicant substitutes alternate financial assurance as specified in this section; or

b. The permit holder or applicant is released from the requirements of this chapter.

F. If a guarantor no longer meets the requirements specified in this section, the permit holder or applicant shall, within 90 days following close of the guarantor's fiscal year, obtain alternate financial assurance acceptable to the department and submit evidence of the alternate financial assurance to the department. If the permit holder or applicant fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-820 Local government financial test

A. A permit holder or applicant that satisfies the requirements of this section may demonstrate financial assurance using the local government financial test.

B. The permit holder or applicant shall satisfy the provisions of this section as applicable:

1. If the permit holder or applicant has outstanding, rated general obligation bonds that are not secured by insurance, a letter of credit, or other collateral or guarantee, he shall supply the department with documentation demonstrating that the permit holder or applicant has a current rating of Aaa, Aa, A, or Baa as issued by Moody's or AAA, AA, A, or BBB as issued by Standard and Poor's on all such general obligation bonds; or

2. If the permit holder or applicant does not have outstanding, rated general obligation bonds, he shall satisfy each of the following financial ratios based on the permit holder's or applicant's most recent audited annual financial statements:

a. A ratio of cash plus marketable securities to total expenditures greater than or equal to 0.05; and

b. A ratio of annual debt service to total expenditures less than or equal to 0.20.

C. The permit holder or applicant shall prepare his financial statements in conformity with generally accepted accounting principles for governments and have his financial statements audited by an independent certified public accountant or by the Auditor of Public Accounts.

D. A permit holder or applicant is not eligible to assure its obligations under this section if he:

1. Is currently in default on any outstanding general obligation bonds;

2. Has any outstanding general obligation bonds rated lower than Baa as issued by Moody's or BBB as issued by Standard and Poor's;

3. Operated at a deficit equal to 5.0% or more of total annual revenue in each of the past two fiscal years; or

4. Receives an adverse opinion, disclaimer of opinion, or other qualified opinion from the independent certified public accountant or Auditor of Public Accounts auditing his financial statements as required under subsection C of this section. However, the department may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the department deems the qualification insufficient to warrant disallowance of the test.

E. The local government permit holder or applicant must submit to the department the following items:

1. An original letter signed by the local government's chief financial officer stating that the permit holder or applicant meets the requirements of this section;

2. The local government's independently audited year-end financial statements for the latest fiscal year, including the unqualified opinion of the auditor who must be an independent, certified public accountant or an appropriate state agency that conducts equivalent comprehensive audits;

3. A report of the local government from the local government's independent certified public accountant or the Auditor of Public Accounts based on performing an agreed upon procedures engagement relative to the financial ratios required by subdivision B 2 of this section, if applicable, and the requirements of this section. The certified public accountant's or state agency's report shall state the procedures performed and the certified public accountant's or state agency's findings; and

4. A copy of the comprehensive annual financial report (CAFR) used to comply with subdivision B 2 of this section.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-830 Local government guarantee

A. A local government who is also the permit holder or applicant may meet the requirements of this section by providing a written guarantee, herein referred to as "guarantee" by a local government. The guarantor shall meet the requirements of the local government financial test in section 9VAC25-32-820 and shall comply with the terms of the written guarantee identified in subsection B of this section.

B. Terms of the written guarantee.

1. The guarantee shall be effective before the initial application of biosolids; and

2. The guarantee shall provide that:

a. If the permit holder or applicant fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by the transport, storage, or land application of biosolids in Virginia or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage;

b. The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the permit holder or applicant and to the department. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the permit holder or applicant and the department, as evidenced by return receipts; and

c. If a guarantee is cancelled, the permit holder or applicant shall within 90 days following receipt of the cancellation notice by the permit holder or the applicant and the department obtain alternate financial assurance and notify the department. If the permit holder or applicant fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days following the close of the guarantor's fiscal year; obtain alternative financial assurance acceptable to the department; and submit evidence of that alternate financial assurance to the department.

C. Recordkeeping and reporting.

1. The permit holder or applicant shall submit a signed original guarantee on the Local Government Guarantee form to the department along with the items required under 9VAC25-32-820 E before the initial application of biosolids.

2. The permit holder or applicant is no longer required to maintain the items specified in 9VAC25-32-820 E when:

a. The permit holder or applicant substitutes alternate financial assurance as specified in this section; or

b. The permit holder or applicant is released from the requirements of this section.

D. If a local government guarantor no longer meets the requirements of this section, the permit holder or applicant shall, within 90 days following the close of the guarantor's fiscal year, obtain alternate financial assurance acceptable to the department and submit evidence of that alternate financial assurance to the department. If the permit holder or applicant fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-840 Letter of credit

A. A permit holder or applicant may satisfy the requirements of this article by obtaining an irrevocable standby letter of credit that satisfies the terms of the letter of credit and by submitting the original letter of credit to the department.

B. Terms of the letter of credit.

1. The letter of credit shall be effective before the initial application of biosolids.

2. The issuing institution shall be a bank or other financial institution that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Commonwealth of Virginia, by a federal agency, or by an agency of another state.

3. The letter of credit shall be irrevocable and issued for a period of at least one year in an amount of $2 million to cover the costs for clean-up costs, personal injury, bodily injury, and property damage that may result from the transport, storage, or land application of biosolids in Virginia by the permit holder or applicant.

4. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the issuing institution decides not to extend the letter of credit beyond the current expiration date, it shall, at least 120 days before the date, notify both the permit holder or applicant and the department by certified mail of that decision. The 120-day period will begin on the date of receipt by the department as shown on the signed return receipt. Expiration cannot occur, however, while an enforcement action is pending. Within 60 days of receipt of notice from the issuing institution that it does not intend to extend the letter of credit, the permit holder or applicant shall obtain alternate financial assurance and submit evidence of the alternate financial assurance to the department.

C. In the event of failure of the permit holder or applicant to comply with the requirements of this article, the department may cash the letter of credit.

D. The permit holder or applicant may cancel the letter of credit only if alternate financial assurance acceptable to the department is substituted as specified in this article or if the permit holder or applicant is released by the department from the requirements of this chapter.

E. The department shall return the original letter of credit to the issuing institution for termination when:

1. The permit holder or applicant substitutes acceptable alternate financial assurance for clean-up costs, personal injury, bodily injury, and property damage resulting from the transport, storage, or land application of biosolids in Virginia; or

2. The department notifies the permit holder or applicant that he is no longer required by this article to maintain financial assurance for clean-up costs, personal injury, bodily injury, and property damage resulting from the transport, storage, or land application of biosolids in Virginia.

F. The permit holder or applicant shall establish a standby trust fund. The standby trust fund shall meet the requirements of 9VAC25-32-850, except the requirements for initial payments and subsequent annual payments.

G. Payments made under the terms of the letter of credit will be deposited by the issuing institution directly into the standby trust fund. Payments from the trust fund shall be approved by the department.

H. The department may cash the letter of credit if it is not replaced 30 days prior to expiration with alternate financial assurance approved by the department.

I. The wording of the letter of credit shall be identical to that specified in the Letter of Credit form.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-850 Trust fund

A. A permit holder or applicant may satisfy the requirements of this article by establishing a trust fund that conforms to the requirements of subsection B of this section and submitting an originally signed duplicate of the trust agreement to the department.

B. Trust fund requirements.

1. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by the Commonwealth of Virginia, by a federal agency, or by an agency of another state.

2. The trust fund for liability coverage must be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this section. If at any time after the trust fund is created, the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the permit holder or applicant, by the anniversary date of the establishment of the fund, must either add sufficient funds to the trust fund to cause its value to be equal to the full amount of the liability coverage to be provided, or obtain other alternate financial assurance as specified in this section to cover the difference.

3. For purpose of this section, "the full amount of liability coverage provided" means the amount of coverage for clean-up costs, personal injury, bodily injury, and personal damage resulting from the transport, storage, or land application of biosolids in Virginia.

4. The wording of the trust fund must be identical to that specified in the Trust Fund form.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

Chapter 91 Facility and Aboveground Storage Tank (AST) Regulation

Part I Program Administration

9VAC25-91-10 Definitions

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Aboveground storage tank" or "AST" means any one or combination of tanks, including pipes, used to contain an accumulation of oil at atmospheric pressure, and the volume of which, including the volume of the pipes, is more than 90% above the surface of the ground. This term does not include line pipe and breakout tanks of an interstate pipeline regulated under the federal Accountable Pipeline Safety and Partnership Act of 1996 (49 USC § 60101 et seq.).

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Containment and cleanup" means abatement, containment, removal and disposal of oil and, to the extent possible, the restoration of the environment to its existing state prior to an oil discharge.

"Corrosion professional" means a person who by reason of thorough knowledge of the physical sciences and the principles of engineering and mathematics acquired by a professional education and related practical experience is qualified to engage in the practice of corrosion control on buried or submerged metal piping systems and metal tanks. Such a person shall be accredited or certified as being qualified by the National Association of Corrosion Engineers or be a registered professional engineer who has certification or licensing that includes education and experience in corrosion control of buried or submerged metal piping systems and metal tanks.

"Department" means the Department of Environmental Quality (DEQ).

"Discharge" means any spilling, leaking, pumping, pouring, emitting, emptying, or dumping.

"Elevated tank" means an AST that is not in contact with the ground and that is raised above the surface of the ground.

"Facility" means any development or installation within the Commonwealth that deals in, stores or handles oil and includes a pipeline.

"Flow-through process tank" means (as defined in 40 CFR Part 280) a tank that forms an integral part of a production process through which there is a steady, variable, recurring, or intermittent flow of materials during the operation of the process. Flow-through process tanks do not include tanks used for the storage of materials prior to their introduction into the production process or for the storage of finished products or byproducts from the production process.

"Local building official" means the person authorized by the Commonwealth to enforce the provisions of the Uniform Statewide Building Code (USBC).

"Local director or coordinator of emergency services" means any person appointed pursuant to § 44-146.19 of the Code of Virginia.

"Major repair" means alterations that refer to operations that require cutting, additions, removal or replacement of the annular plate ring, the shell-to-bottom weld or a sizable portion of the AST shell.

"Oil" means oil of any kind and in any form, including, but not limited to, petroleum and petroleum byproducts, fuel oil, lubricating oils, sludge, oil refuse, oil mixed with other wastes, crude oils, and all other liquid hydrocarbons regardless of specific gravity.

"Operator" means any person who owns, operates, charters by demise, rents, or otherwise exercises control over or responsibility for a facility or a vehicle or a vessel.

"Person" means an individual; trust; firm; joint stock company; corporation, including a government corporation; partnership; association; any state or agency thereof; municipality; county; town; commission; political subdivision of a state; any interstate body; consortium; joint venture; commercial entity; the government of the United States or any unit or agency thereof.

"Pipes" or "piping" means a pressure-tight cylinder used to convey a fluid or to transmit a fluid pressure and is ordinarily designated "pipe" in applicable material specifications. Materials designated "tube" or "tubing" in the specifications are treated as pipe when intended for pressure service. This term includes piping and associated piping which is utilized in the operation of an AST, or emanating from or feeding ASTs or transfers oil from or to an AST (e.g., dispensing systems, including airport hydrant fueling systems, supply systems, gauging systems, auxiliary systems, etc.). This term does not include line pipe and breakout tanks of an interstate pipeline regulated under the federal Accountable Pipeline Safety and Partnership Act of 1996 (49 USC § 60101 et seq.).

"Pipeline" means all new and existing pipe, rights of way, and any equipment, facility, or building used in the transportation of oil, including, but not limited to, line pipe, valves, and other appurtenances connected to line pipe; pumping units; fabricated assemblies associated with pumping units; metering and delivery stations and fabricated assemblies therein; and breakout tanks.

"Release prevention barrier (RPB)" means a nonearthen barrier that is impermeable; is composed of material compatible with oil stored in the AST; meets proper engineering strength and elasticity standards; and functions to prevent the discharge of stored oil to state lands, waters and storm drains. It must contain and channel any leaked oil in a manner that provides for early release detection through the required daily and weekly inspections.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction.

"Storage capacity" means the total capacity of an AST or a container, whether filled in whole or in part with oil, a mixture of oil, or mixtures of oil with nonhazardous substances, or empty. An AST that has been permanently closed in accordance with this chapter has no storage capacity.

"Tank" means a device designed to contain an accumulation of oil and constructed of nonearthen materials, such as concrete, steel, or plastic, that provides structural support. This term does not include flow-through process tanks as defined in 40 CFR Part 280.

"Tank vessel" means any vessel used in the transportation of oil as bulk cargo.

"Upgrade" means an alteration of the performance, design, equipment or appurtenances of an AST or facility to meet a higher, new, or current standard.

"Vaulted tank" means any tank situated upon or above the surface of the floor in an underground area (such as an underground room, basement, cellar, mine-working, drift, shaft, tunnel or vault) providing enough space for physical inspection of the exterior of the tank.

"Vehicle" means any motor vehicle, rolling stock, or other artificial contrivance for transport whether self-propelled or otherwise, except vessels.

"Vessel" includes every description of watercraft or other contrivance used as a means of transporting on water, whether self-propelled or otherwise, and shall include barges and tugs.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1, and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-20 Applicability

A. The operator shall comply with all applicable requirements pursuant to this chapter. The operator as defined in this chapter can be more than one person and each operator shares joint responsibility for compliance.

B. The requirements of this chapter apply as follows:

1. The provisions of Part II (9VAC25-91-100 et seq., Registration, Notification and Closure Requirements) of this chapter apply to: (i) an individual AST located within the Commonwealth of Virginia with an aboveground storage capacity greater than 660 gallons of oil, unless otherwise specified within this chapter; and (ii) all facilities in the Commonwealth of Virginia with an aggregate aboveground storage capacity greater than 1,320 gallons of oil, unless otherwise specified within this chapter. Storage of oil that is excluded from regulation in 9VAC25-91-30 A is not included when calculating the aggregate aboveground storage capacity.

2. The provisions of Part III (9VAC25-91-130 et seq., Pollution Prevention Requirements) of this chapter apply to: (i) an individual AST located within the Commonwealth of Virginia with an aboveground storage capacity of 25,000 gallons or greater of oil, unless otherwise specified within this chapter; and (ii) all facilities in the Commonwealth of Virginia with an aggregate aboveground storage capacity of 25,000 gallons or greater of oil, unless otherwise specified within this chapter. Storage of oil that is excluded from regulation in 9VAC25-91-30 A is not included when calculating the aggregate aboveground storage capacity.

3. The provisions of Part IV (9VAC25-91-170, Oil Discharge Contingency Plan (ODCP) Requirements) of this chapter apply to: (i) an individual AST located within the Commonwealth of Virginia with an aboveground storage capacity of 25,000 gallons or greater of oil, unless otherwise specified within this chapter; and (ii) all facilities in the Commonwealth of Virginia with an aggregate aboveground storage capacity of 25,000 gallons or greater of oil, unless otherwise specified within this chapter. Storage of oil that is excluded from regulation in 9VAC25-91-30 A is not included when calculating the aggregate aboveground storage capacity.

4. The provisions of Part V (9VAC25-91-180 et seq., Groundwater Characterization Study (GCS) and GCS Well Monitoring Requirements) of this chapter apply to: (i) an individual AST located within the Commonwealth of Virginia with an aboveground storage capacity of one million gallons or greater of oil, unless otherwise specified within this regulation; and (ii) all facilities in the Commonwealth of Virginia with an aggregate aboveground storage capacity of one million gallons or greater of oil, unless otherwise specified within this chapter. Storage of oil that is excluded from regulation in 9VAC25-91-30 A is not included when calculating the aggregate aboveground storage capacity.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; Errata, 14:23 VA.R 3682 August 3, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015.

9VAC25-91-30 Exclusions

A. The requirements of this chapter do not apply to:

1. Vessels;

2. Licensed motor vehicles, unless used solely for the storage of oil (e.g., airport refueling trucks and mobile refueling vehicles);

3. An AST with a storage capacity of 660 gallons or less of oil;

4. An AST containing petroleum, including crude oil or any fraction thereof, which is liquid at standard temperature and pressure (60°F at 14.7 pounds per square inch absolute) subject to and specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of § 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USC § 9601 et seq.);

5. A wastewater treatment tank system that is part of a wastewater treatment facility regulated under § 402 or § 307(b) of the federal Clean Water Act (33 USC § 1251 et seq.);

6. An AST that is regulated by the Department of Energy under Chapter 16 (§ 45.2-1600 et seq.) of Title 45.2 of the Code of Virginia;

7. An AST used for the storage of products that are regulated pursuant to the federal Food, Drug, and Cosmetic Act (21 USC § 301 et seq.);

8. An AST that is used to store hazardous wastes listed or identified under Subtitle C of the Resource Conservation and Recovery Act (RCRA) (Solid Waste Disposal Act) (42 USC § 6901 et seq.), or a mixture of such hazardous wastes and other regulated substances;

9. An AST that is used to store propane gas, butane gas or other liquid petroleum gases;

10. An AST used to store nonpetroleum hydrocarbon-based animal and vegetable oils;

11. A liquid trap or associated gathering lines directly related to oil or gas production, or gathering operations;

12. A surface impoundment, pit, pond, or lagoon;

13. A stormwater or wastewater collection system;

14. Equipment or machinery that contains oil for operational purposes, including but not limited to lubricating systems, hydraulic systems, and heat transfer systems;

15. An AST that forms an integral part (cannot be readily detached or removed) of the equipment or machinery and the contents of the AST are solely used by the attached equipment or machinery (e.g., fuel tank affixed into the frame of an emergency generator);

16. An AST used to contain oil for less than 120 days when: (i) used in connection with activities related to the containment and cleanup of oil; (ii) used by a federal, state or local entity in responding to an emergency, including response related drills; or (iii) used temporarily on-site to replace permanent capacity storage;

17. Oil-filled electrical equipment, including, but not limited to, transformers, circuit breakers or capacitors;

18. A flow-through process tank;

19. Oily water separators;

20. An AST containing dredge spoils;

21. An AST located on a farm or residence used for storing motor fuel for noncommercial purposes with a storage capacity of 1,100 gallons or less; or

22. Pipes or piping beyond the first valve from the AST that connects an AST with production process tanks or production process equipment.

B. In addition to the exclusions listed in subsection A of this section, the following are excluded from the requirements contained in Part III (9VAC25-91-130 et seq., Pollution Prevention Requirements) of this chapter:

1. An AST with a capacity of 5,000 gallons or less used for storing heating oil for consumptive use on the premises where stored;

2. An AST storing asphalt and asphalt compounds which are not liquid at standard conditions of temperature and pressure (60°F at 14.7 pounds per square inch absolute); and

3. Line pipe and breakout tanks of an interstate pipeline regulated under the federal Accountable Pipeline Safety and Partnership Act of 1996 (49 USC § 60101 et seq.).

C. Asphalt and asphalt compounds that are not liquid at standard conditions of temperature and pressure (60°F at 14.7 pounds per square inch absolute) are excluded from any requirement to install groundwater monitoring wells or groundwater protection devices or to conduct groundwater characterization studies under Part IV (9VAC25-91-170, Oil Discharge Contingency Plan (ODCP) Requirements) and Part V (9VAC25-91-180 et seq., Groundwater Characterization Study (GCS) and GCS Well Monitoring Requirements) of this chapter.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1, and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 38, Issue 3, eff. October 27, 2021.

9VAC25-91-40 Compliance dates

A. Every operator shall comply with this chapter on its effective date unless a later date is otherwise specified.

B. Operators of facilities existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., facilities not engaged in the resale of oil) having an aboveground storage capacity of 25,000 gallons or greater of oil must have complied with Part III (9VAC25-91-130 et seq., Pollution Prevention Requirements) of this chapter on or before October 22, 1998, unless otherwise specified in this chapter. If compliance with Part III of this chapter necessitates extensive upgrades to the existing facility design, these exempted operators shall have submitted a proposed extended compliance schedule and supporting explanation to the department no later than September 22, 1998, or such date approved by the department.

C. Operators of ASTs and facilities existing prior to June 24, 1998, and previously registered in accordance with the requirements of § 62.1-44.34:19.1 of the Code of Virginia shall not have to resubmit the registration form until five years from the date of the initial registration unless title to that AST or facility is transferred (i.e., change of ownership) or the AST is converted or brought back into use after permanent closure, whichever occurs first.

D. Operators of facilities subject to Part IV (9VAC25-91-170, Oil Discharge Contingency Plan (ODCP) Requirements) of this chapter that were brought into use on or after June 24, 1998, shall submit a complete application meeting all applicable requirements of this chapter no later than 90 days prior to commencement of operations.

1. The operator must receive approval of the ODCP by the department prior to commencement of facility operations.

2. The operators of facilities that have previously met the provisions of § 62.1-44.34:15 of the Code of Virginia for ODCP submittal shall not be required to resubmit the ODCP until 90 days prior to the date that plan's approval expires. Ninety days prior to the expiration of approval of the ODCP, the facility operator shall submit an updated plan or certification of renewal of an existing plan according to 9VAC25-91-170 F.

E. An operator having obtained approval of the ODCP shall operate, maintain, monitor, and keep records pertaining to 9VAC25-91-170 A 18 of Part IV (9VAC25-91-170, Oil Discharge Contingency Plan (ODCP) Requirements) of this chapter and under the provisions of Part III (9VAC25-91-130 et seq., Pollution Prevention Requirements) of this chapter.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-50 Statement of purpose

The purpose of this chapter is to: (i) establish requirements for registration of facilities and individual ASTs located within the Commonwealth; (ii) provide the department with the information necessary to identify and inventory facilities with an aggregate storage capacity of greater than 1,320 gallons of oil or an individual AST with a storage capacity of greater than 660 gallons of oil; (iii) develop standards and procedures for operators of facilities with an aggregate aboveground storage capacity of 25,000 gallons or greater of oil relating to the prevention of pollution from new and existing aboveground storage tanks; (iv) provide requirements for the development of facility oil discharge contingency plans for facilities with an aggregate aboveground storage capacity of 25,000 gallons or greater of oil that will ensure that the applicant can take such steps as are necessary to protect environmentally sensitive areas, to respond to the threat of an oil discharge, and to contain, clean up and mitigate an oil discharge within the shortest feasible time, where plans must address concerns for the effect of oil discharges on the environment as well as considerations of public health and safety; and (v) provide requirements for facilities and individual ASTs with an aggregate aboveground storage capacity of one million gallons or greater of oil to conduct a groundwater characterization study (GCS) within the geographic boundaries of a facility; to submit the GCS as part of the oil discharge contingency plan; to conduct a monthly gauging and inspection of GCS monitoring wells, monitoring of well headspace and sampling and laboratory analysis of GCS monitoring wells; and to gather all observations and data maintained at the facility and compile and submit them as an annual report to the department.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-60 Administrative fees

A. Fees are assessed for review of oil discharge contingency plans (ODCP). An application for review of a contingency plan will not be accepted unless the required fee has been received by the department.

1. Fees shall be paid in United States currency by check, draft, or postal money order made payable to the Treasurer of Virginia. When the department is able to accept electronic payments, payments may be submitted electronically.

2. The fee, together with the application and oil discharge contingency plan, shall be sent to the department at the following mailing address:

Department of Environmental Quality

Office of Financial Management

P.O. Box 1104

Richmond, VA 23218

3. Notifications and correspondence for which a fee is not applicable should be mailed to the department as specified in 9VAC25-91-70.

B. ODCP application.

1. ODCP application fees are as follows:

a. For a facility with an aggregate aboveground maximum storage or handling capacity from 25,000 gallons up to and including 100,000 gallons of oil the fee is $718;

b. For a facility with an aggregate aboveground maximum storage or handling capacity greater than 100,000 gallons up to one million gallons of oil the fee is $2,155;

c. For a facility with an aggregate aboveground maximum storage or handling capacity of one million gallons or greater of oil the fee is $3,353; or

d. For a pipeline, the ODCP application fee shall be based on the average daily throughput of oil. Once that volume is determined, the ODCP application fee will be calculated per subdivisions a, b and c of this subdivision.

2. The fee for approval of a contingency plan encompassing more than one facility as described in 9VAC25-91-170 D shall be based on the aggregate aboveground storage capacity of the facilities.

3. Fees shall only be paid upon initial submittal of an oil discharge contingency plan by an operator. Renewals, additions, deletions or changes to the plan are not subject to the administrative fee.

4. Application fees are refundable upon receipt of a written request to withdraw the ODCP application provided the request is received no later than 30 days after submittal and prior to the department's review of the contingency plan.

5. Overpayments of application fees are refundable upon written request.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015.

9VAC25-91-70 Correspondence to the Department of Environmental Quality (DEQ)

A. Correspondence that contains fees must be submitted to the department as specified in 9VAC25-91-60 A.

B. All other written correspondence and notifications to the department related to the requirements of this chapter shall be addressed to the DEQ regional office servicing the facility that is the subject of the correspondence. A list of regional offices and their addresses are available from the central office at the following address:

Mailing Address:

Department of Environmental Quality

Office of Spill Response and Remediation

P.O. Box 1105

Richmond, VA 23218

Street Address:

Department of Environmental Quality

Office of Spill Response and Remediation

1111 East Main Street, Suite 1400

Richmond, VA 23219

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 34, Issue 13, eff. February 19, 2018.

9VAC25-91-80 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-90 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; repealed, Virginia Register Volume 31, Issue 26, eff. November 1, 2015.

Part II Registration, Notification and Closure Requirements

9VAC25-91-100 Registration requirements

A. Section 62.1-44.34:19.1 of the Code of Virginia requires an operator of a facility located within the Commonwealth with an aggregate aboveground storage capacity of more than 1,320 gallons of oil or an operator of an individual AST located within the Commonwealth with a storage capacity of more than 660 gallons of oil to register such facility or AST with the department and with the local director or coordinator of emergency services unless otherwise specified within this chapter.

B. Although the term "operator" includes a variety of persons who may share joint responsibility for compliance with this chapter, in fixing responsibility for compliance with the registration requirements, the department shall look first to the owner or a duly authorized representative of the facility or AST.

C. A duly authorized representative may submit the registration on the owner's behalf.

1. A person is a duly authorized representative only if:

a. The authorization is made in writing by the owner and indicates that the representative has signatory authority for the registration;

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity (e.g., the plant manager, the operator of a facility or an AST, the superintendent, or a position of equivalent responsibility), or specifies an individual or a position having overall responsibility for environmental matters for the facility or company. A duly authorized representative thus may be either a named individual or any individual occupying a named position; and

c. The written authorization is submitted to the department along with the registration form.

2. Changes to authorization. If an authorization previously submitted is no longer accurate because a different individual or position has assumed responsibility for the overall operation of the facility or for environmental matters, a new authorization satisfying the requirements shall be submitted to the department prior to or together with any reports or information signed by that duly authorized representative.

3. Certification. Any person signing a registration document shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to ensure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment for knowing violations."

D. The owner or a duly authorized representative of a new facility or AST, a converted facility or AST, a facility or AST brought back into use after permanent closure, or a facility or AST whose title is transferred (change of ownership) shall register such facility or AST with the department and local director or coordinator of emergency services within 30 days after being brought into use or when title is transferred.

E. Registration shall include the following information and other information that may be required if approved by the department:

1. Facility and AST owner and operator information (e.g., name, address, and phone numbers);

2. Facility information (e.g., name, type, address, contact person and phone numbers, and aggregate storage capacity);

3. Tank and piping information (e.g., storage capacity, product stored, type of design and construction standards);

4. Other information that may be reasonably requested by the department; and

5. Owner certification of information.

F. The owner or a duly authorized representative of the facility or AST shall renew the registration required by this section every five years or whenever title to the facility or AST is transferred (change of ownership), whichever occurs first.

G. A facility or AST installed after June 24, 1998, including an AST or facility operated by the federal government, shall not be registered without either (i) a review performed by the department of the permits, inspections, and certification of use required in accordance with the provisions of the Uniform Statewide Building Code and obtained by the owner or a duly authorized representative from the local code officials or their designee or (ii) an inspection by the department. In the case of a regulated AST operated by the Commonwealth, the Department of General Services shall function as the local code official in accordance with § 36-98.1 of the Code of Virginia.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-110 Notifications

A. An owner or a duly authorized representative of the facility or AST shall notify the department within 30 days after any AST:

1. Upgrade;

2. Major repair;

3. Replacement (i.e., relocating or repositioning of an existing AST); or

4. Change in service (i.e., change in operation, conditions of the stored product, specific gravity, corrosivity, temperature or pressure that has occurred from the original that may affect the tank's suitability for service).

B. Notifications do not require a fee.

History

• Statutory Authority: §§ 62.1-44.2, 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-120 Aboveground storage tank closure

A. After June 24, 1998, a facility or AST, including a facility or AST operated by the federal government, shall not be permanently closed without being registered and either (i) having a review performed by the department of the permits and inspections required in accordance with the provisions of the Uniform Statewide Building Code and obtained by the owner or a duly authorized representative from the local code official or his designee or (ii) being inspected by the department.

1. For inspections by the department (e.g., where a permit is not issued by the local code official or his designee), at least 14 days notice to the department is required prior to the commencement of closure operations. Notice shall be made by the owner or a duly authorized representative.

2. In the case of a regulated AST operated by the Commonwealth, the Department of General Services shall function as the local code official in accordance with § 36-98.1 of the Code of Virginia.

3. If the closure is in response to containment and cleanup actions that necessitate AST removal, the owner or a duly authorized representative of the facility or AST shall immediately notify the local code official and the department.

B. Closure operations shall be reported to the department by the owner or a duly authorized representative within 30 days after the permanent closure operation is completed.

C. Closure operations shall include the following:

1. Removal of all liquids, sludges, and vapors from the AST and associated piping. All wastes removed shall be disposed of in accordance with all applicable state and federal requirements.

2. For tanks being closed in place, the tank shall be rendered vapor free. Provisions must be made for adequate ventilation to ensure that the tank remains vapor free. Vent lines shall remain open and maintained in accordance with the applicable codes. All access openings shall be secured (normally with spacers to assist ventilation). The AST shall be secured against tampering and flooding. The name of the product last stored, the date of permanent closure and PERMANENTLY CLOSED shall be stenciled in a readily visible location on the AST. Piping shall be disconnected. All pipes being closed in place shall be vapor free and capped or blind flanged.

3. An assessment of the AST site shall be conducted prior to completion of permanent closure operations.

a. In conducting the assessment, the owner or a duly authorized representative shall sample and test for the presence of petroleum hydrocarbons at the AST site in any area where contamination is likely to have occurred. These locations shall be subject to the review of the department. Sampling and testing shall be conducted in accordance with established EPA-approved analytical methods or other methods approved by the department.

(1) The owner or a duly authorized representative shall submit copies of the laboratory results, a description of the area sampled, a photograph of the site indicating sampled areas, and a site map indicating the location of the closed AST and associated piping as attachments to the closure form.

(2) If contaminated soils, contaminated groundwater, free product as a liquid or vapor, or other evidence of a release is discovered, the owner or a duly authorized representative shall immediately notify the department and conduct the cleanup in accordance with department requirements.

b. The department may consider an alternative to the soil sampling requirements of this subsection if the owner or a duly authorized representative of the AST demonstrates to the department's satisfaction that:

(1) There is no evidence of present or past contamination by providing records of monthly leak detection monitoring for the previous 12 months; and

(2) The facility or AST has operated an approved or approvable leak detection system.

4. A closure inspection conducted by either the department or the local building official, as discussed in subsection A of this section.

D. When deemed necessary by the department, the owner or a duly authorized representative of a facility or an AST that was permanently closed prior to June 24, 1998, shall assess the site and close the AST in accordance with the requirements of this section.

E. The owner or a duly authorized representative shall maintain all records relating to compliance with this section for a period of not less than five years from the date the department receives notice of the completed closure. These records shall be made available to the department upon request.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; Errata, 14:23 VA.R 3682 August 3, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

Part III Pollution Prevention Requirements

9VAC25-91-130 Pollution prevention standards and procedures

A. Pollution prevention standards and procedures for facilities are listed in this section. Aboveground storage tanks with an aggregate capacity of one million gallons or more shall comply with the requirements of subsections B and C of this section.

B. Requirements for aboveground storage tanks at facilities for 25,000 gallons or more. Section 62.1-44.34:15.1 of the Code of Virginia provides the following requirements for existing aboveground storage tanks at a facility with an aggregate aboveground storage capacity equal to or greater than 25,000 gallons of oil or for an existing individual aboveground storage tank with a storage capacity equal to or greater than 25,000 gallons of oil, unless otherwise exempted.

1. Inventory control and testing for significant variations.

a. The following aboveground storage tanks shall not be subject to inventory control and testing for significant variations:

(1) Aboveground storage tanks totally off ground with all associated piping off ground;

(2) Aboveground storage tanks with a capacity of 5,000 gallons or less located within a building or structure designed to fully contain a discharge of oil; and

(3) Aboveground storage tanks containing No. 5 or No. 6 oil for consumption on the premises where stored.

b. Each operator shall institute inventory control procedures capable of detecting a significant variation of inventory. A significant variation shall be considered a variation in excess of 1.0% of the storage capacity of each individual AST. Reconciliations of inventory measurements shall be conducted monthly. If a significant variation persists for two consecutive reconciliation periods, the operator shall conduct an investigation to determine the cause of the variation and reconcile physical measurements to 60°F at 14.7 pounds per square inch absolute. This investigation shall be completed within five working days of the end of the second reconciliation period. If this investigation does not reveal the cause of the inventory variation, the operator shall notify the department and the local director or coordinator of emergency services and shall conduct additional testing to determine the cause of the inventory variation. The testing method, schedule, and results of this additional testing shall be submitted to the department for review. For a refinery, a significant variation of inventory shall be considered a loss in excess of 1.0% by weight of the difference between the refinery's input and output of oil.

c. Inventory records shall be kept of incoming and outgoing volumes of oil from each tank. All tanks shall be gauged no less frequently than once every 14 days and on each day of normal operation. For a refinery, the operator shall calculate the input and output of oil at the refinery on a daily basis. The operator shall reconcile daily inventory records with the inventory measurements conducted monthly.

2. Secondary containment.

a. The operator shall have and maintain secondary containment or another method approved by the department for each AST. The containment structure must be capable of containing oil and shall be constructed in accordance with 40 CFR Part 112 so that any discharge from the AST will not escape the containment before cleanup occurs. The operator shall have each secondary containment or approved method evaluated and certified to be in compliance with the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106. The operator of a facility existing on June 24, 1998, shall have had this evaluation or certification performed by a professional engineer or person approved by the department on or before June 30, 1998, and every 10 years thereafter, unless otherwise exempted.

b. If the secondary containment cannot be certified to be in compliance with the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106, the operator must upgrade, repair, or replace the secondary containment to meet the applicable requirements listed in subdivision 2 a of this subsection unless the department accepts the certification with qualifications.

c. The operator of a facility shall have the evaluation and certification performed every 10 years by a professional engineer (PE) licensed in the Commonwealth of Virginia or other state having reciprocity with Virginia or by a person approved by the department unless otherwise exempted.

d. The professional engineer shall not certify the secondary containment until all of the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106 have been met. In the event the professional engineer certifies the secondary containment with qualifications, such qualifications will be subject to review and approval by the department. If the certification contains qualifications that may impact the ability of the secondary containment to contain a discharge of oil as required by subdivision 2 a of this subsection, the deficiencies must be corrected and the secondary containment must be reevaluated and recertified by a professional engineer.

e. At a minimum, the certification statement for the secondary containment must contain the following statement: "Based on my evaluation, I hereby certify that each secondary containment structure for (insert the facility name and tank identification information) is in compliance with the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106."

f. The certification must be signed and sealed by a professional engineer licensed in the Commonwealth of Virginia or other state having reciprocity or by a person approved by the department.

g. Operators of facilities existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have had this evaluation completed on or before June 24, 2003, and every 10 years thereafter.

h. Operators of a newly installed AST shall have this evaluation completed prior to being placed into service and every 10 years thereafter.

i. Operators of an existing AST with a current engineering certification statement on November 1, 2015, may maintain their existing engineering certification statement until their next required certification, or 10 years, whichever is sooner. At such time, the certification statements must contain the statement required in 9VAC25-91-130 B 2 e.

3. Safe fill and shutdown procedures.

a. Each operator shall institute safe fill, shutdown, and transfer procedures, or equivalent measures approved by the department, that will ensure that spills resulting from tank overfills or other product transfer operations do not occur. Written safe fill, shutdown, and transfer procedures shall be maintained by the operator for use by facility personnel.

All receipts of oil shall be authorized by the operator or facility personnel trained by the operator who shall ensure the volume available in the tank is greater than the volume of oil to be transferred to the tank before the transfer operation commences. The operator shall ensure the transfer operation is monitored continually, either by manual or automatic means, until complete. The operator shall ensure that all tank fill valves not in use are secured and that only the tank designated is receiving oil.

b. All oil transfer areas where filling connections are made with vehicles shall be equipped with a spill containment system capable of containing and collecting those spills and overfills. The containment system shall be designed to hold at least the capacity as required by 40 CFR Part 112.

c. If installed, an automatic shutdown system utilized during transfer of oil shall include the capability to direct the flow of oil to another tank capable of receiving the transferred oil or the capability to shut down the pumping or transfer system. This automatic shutdown system shall be tested prior to each receipt of oil and records of testing shall be maintained at the facility.

d. All ASTs shall be equipped with a gauge that is readily visible and indicates the level of oil or quantity of oil in the tank. In addition, the storage capacity, product stored and tank identification number shall be clearly marked on the tank at the location of the gauge. These gauges shall be calibrated annually.

4. Pressure testing of piping. All piping shall be pressure tested as specified in this subsection or using an equivalent method or measure approved by the department at intervals not to exceed five years. The operator of a facility or AST existing on June 24, 1998, shall have completed the initial test on or before June 30, 1998, except operators of existing facilities or ASTs for which compliance was exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil). These excepted operators shall have completed the initial test on or before June 24, 2003. All newly installed or repaired piping shall be tested before being placed into service.

a. A pressure test may be a hydrostatic test at 150% maximum allowable working pressure (MAWP) or an inert gas test at 110% MAWP.

b. A test conducted and certified by an American Petroleum Institute (API) authorized piping inspector to be in conformity with the API 570 Piping Inspection Code is deemed an equivalent method of testing approved by the department.

c. The department may consider on a case-by-case basis requests for approval of other equivalent methods or measures which conform to industry recommended practices, standards and codes. The operator shall submit a request for approval of a proposed equivalent method or measure to the department as specified in 9VAC25-91-160.

5. Visual daily inspection and weekly inspections.

a. The operator or a duly authorized representative shall conduct a daily visual inspection for each day in which normal operation occurs, but no less frequently than once every 14 days in the areas of the facility where this chapter applies. The facility person conducting the inspection shall document completion of this inspection by making and signing an appropriate notation in the facility records. This visual inspection shall include the following:

(1) A complete walk-through of the facility property in the areas where this chapter applies to ensure that no hazardous conditions exist;

(2) An inspection of ground surface for signs of leakage, spillage, or stained or discolored soils;

(3) A check of the berm or dike area for excessive accumulation of water and to ensure the dike or berm manual drain valves are secured;

(4) A visual inspection of the exterior tank shell to look for signs of leakage or damage; and

(5) An evaluation of the condition of the aboveground storage tank and appurtenances.

b. The operator or a duly authorized representative shall conduct a weekly inspection each week in which normal operation occurs, but no less frequently than once every 14 days, of the facility in the areas where this chapter applies, using a checklist that contains at least the items found in subdivision 5 c of this subsection. The checklist is not inclusive of all safety or maintenance procedures but is intended to provide guidance to the requirements within this chapter. The weekly checklist shall be maintained at the facility and provided to the department upon request. This checklist shall be signed and dated by the facility person or persons conducting the inspection and shall become part of the facility record.

(1) The operator of a new AST/facility shall develop the checklist within 90 days after the date of installation.

(2) The operator of each facility existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have developed the checklist by September 28, 1998.

(3) Operators of facilities existing on June 24, 1998, and not exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) and who have developed a checklist by September 28, 1993, shall be deemed to be in compliance with this checklist requirement as of June 24, 1998.

c. Sample—weekly inspection checklist for aboveground storage tank systems:

____ (1) Containment dike or berm in satisfactory condition.

____ (2) Containment area free of excess standing water or oil.

____ (3) Gate valves used for emptying containment areas secured.

____ (4) Containment area/base of tank free of high grass, weeds, and debris.

____ (5) Tank shell surface, including any peeling areas, welds, rivets/bolts, seams, and foundation, visually inspected for areas of rust and other deterioration.

____ (6) Ground surface around tanks and containment structures and transfer areas checked for signs of leakage.

____ (7) Leak detection equipment in satisfactory condition.

____ (8) Separator or drainage tank in satisfactory condition.

____ (9) Tank water bottom drawoffs not in use are secured.

____ (10) Tank fill valves not in use are secured.

____ (11) Valves inspected for signs of leakage or deterioration.

____ (12) Inlet and outlet piping and flanges inspected for leakage.

____ (13) All tank gauges have been inspected and are operational.

| | | | | | | | --- | --- | --- | --- | --- | --- | | | Signature of Inspector | | Date | | Time |

d. The operator shall promptly remedy unsatisfactory facility and equipment conditions observed in the daily and weekly inspections. The operator shall make repairs, alterations, and retrofits in accordance with American Petroleum Institute (API) Standard 653, Fourth Edition (April 2009), with Addendum 1 (August 2010) and Addendum 2 (January 2012), Steel Tank Institute (STI) standard STI-SP001, Fifth Edition (September 2011), industry standards, or methods approved by the department.

6. Training of individuals. To ensure proper training of individuals conducting inspections required by subdivision 5 of this subsection, the operator of a facility shall train personnel based on the following requirements:

a. Each facility operator shall establish a training program for those facility personnel conducting the daily visual and weekly inspections of the facility. Facility records shall contain the basic information and procedures required by subdivision 6 c of this subsection. The required training may be conducted by the operator or by a third party. The training program established shall be maintained to reflect current conditions of the facility.

(1) The operator of a new facility shall establish the training program within six months after being brought into use.

(2) The operator of each facility exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have established the training program by December 24, 1998.

(3) Operators of facilities not exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) and who developed a training program by December 31, 1993, shall be deemed to be in compliance with this training program requirement as of June 24, 1998, so long as that program reflects current conditions of the facility.

b. The required training shall be conducted for facility personnel as applicable. Personnel not receiving this initial training and who will be conducting these inspections shall receive the training prior to conducting any inspection.

(1) The operator of a new facility shall conduct the personnel training within 12 months after being brought into use and prior to personnel conducting any inspection.

(2) The operator of each facility exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have conducted the personnel training by June 24, 1999.

(3) Operators of facilities not exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) and who have conducted the personnel training by June 30, 1994, shall be deemed to be in compliance with this personnel training requirement as of June 24, 1998, so long as the training provided reflects current conditions of the facility and all inspections are current.

c. Training for personnel performing daily and weekly inspections shall address at a minimum:

(1) Basic information regarding occupational safety, hazard recognition, personnel protection, and facility operations;

(2) The procedures to be followed in conducting the daily visual and weekly facility inspections;

(3) The procedures to be followed upon recognition of a hazard or the potential for a hazard; and

(4) The procedure for evaluating the condition of the aboveground storage tank and appurtenances.

d. The operator of a facility shall train facility personnel upon any changes to the contents of the initial training program or every three years and shall document this training in the facility records.

7. Leak detection. The operator shall operate, maintain, monitor and keep records of the system established for early detection of a discharge to groundwater (i.e., a method of leak detection) as required by 9VAC25-91-170 A 18 and contained in the facility's approved ODCP. These activities shall be inspected and approved by the department.

C. Requirements for aboveground storage tanks at facilities for one million gallons or more. In addition to the requirements of subsection B of this section, the following requirements apply to existing aboveground storage tanks at facilities with an aggregate aboveground storage capacity of one million gallons or more of oil or for an existing individual aboveground storage tank with a storage capacity of one million or more gallons of oil, unless otherwise exempted.

1. Formal inspections.

a. Each AST shall undergo formal external and internal tank inspections. The initial formal internal and external inspections for an AST existing on June 24, 1998, shall have been completed on or before June 30, 1998, unless otherwise specified within this chapter.

(1) All newly installed ASTs shall have initial formal inspections within five years after the date of installation.

(2) Operators of facilities existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have completed the initial formal inspections on or before June 24, 2003.

(3) An AST with a storage capacity of less than 12,000 gallons shall not be subject to the formal internal inspection unless the integrity of the AST is in question and an inspection is deemed necessary by the department.

b. Inspections shall be conducted in accordance with the provisions of American Petroleum Institute (API) Standard 653, Fourth Edition (April 2009), with Addendum 1 (August 2010) and Addendum 2 (January 2012); Steel Tank Institute (STI) standard STI-SP001, Fifth Edition (September 2011); or procedure approved by the department. If construction practices allow external access to the tank bottom, a formal external inspection utilizing accepted methods of nondestructive testing or procedure approved by the department may be allowed in lieu of the internal inspection.

c. An API Standard 653 inspection conducted between January 1, 1991, and June 24, 1998, may be accepted by the department if the operator provides supporting documentation to the department for review and approval.

d. All formal inspections and testing required by subdivisions 1 and 2 of this subsection shall be conducted by a person certified to conduct the inspection or test. This certification shall be accomplished in accordance with the provisions of API Standard 653, STI-SP001, or a procedure approved by the department. Proof of this certification shall be maintained in the facility records. The results of all tests and inspections required by subdivisions 1 and 2 of this subsection shall be maintained at the facility or at a location approved by the department for the life of the tank, but for no less than five years.

2. Formal reinspections.

a. Each AST shall undergo an external reinspection every five years. Inspections shall be conducted in accordance with the provisions of API Standard 653, STI-SP001, or other procedure accepted by the department after the initial formal external inspection has been conducted.

b. Each AST with a storage capacity of 12,000 gallons of oil or greater shall undergo an internal reinspection in accordance with the provisions of API Standard 653 or STI-SP001 every 10 years after the initial formal internal inspection has been conducted.

(1) The department may require the internal reinspection sooner than 10 years if there is an indication that the corrosion rate established by the initial internal inspection or a subsequent reinspection has increased.

(2) The internal reinspection period may be extended beyond 10 years if the operator can demonstrate to the department that an extension of the reinspection period is warranted. The operator shall provide supporting documentation to the department for review and approval at least six months prior to the date the reinspection is due.

c. An AST with a storage capacity of less than 12,000 gallons shall not be subject to the formal internal reinspection unless the integrity of the AST is in question and an inspection is deemed necessary by the department.

3. Safe fill and shutdown procedures - high level alarm. If unattended during transfer operations, the AST shall be equipped with a high level alarm or other appropriate mechanism approved by the department that will immediately alert the operator to prevent an overfill event. Activation of the high level alarm or other appropriate mechanism shall initiate an immediate and controlled emergency shutdown of the transfer, either by manual or automatic means. Each operator shall include this emergency shutdown procedure in the facility records and shall ensure that all facility personnel involved in the transfer operation are trained in this procedure. The alarm shall consist of a visual and audible device capable of alerting the operator, both by sight and hearing, to prevent an overfill situation. If the operator is in a control station, this alarm shall activate a warning light and audible signal in that station. In addition, this system shall alarm on failure, malfunction, or power loss. This high level alarm shall be tested prior to each receipt of oil. Records of testing shall be maintained at the facility.

4. Cathodic protection of piping. The requirement for cathodic protection of piping shall apply to buried piping only. Cathodic protection shall be installed and maintained in accordance with the following applicable publications: American Petroleum Institute Standard (API) 1632, Third Edition (2002), the Uniform Statewide Building Code and its referenced model codes and standards, or National Association of Corrosion Engineers (NACE) SP0285-2011. All piping above ground shall be protected from corrosion using methods and procedures referenced in the Uniform Statewide Building Code and its referenced model codes and standards, or a procedure approved by the department. Piping that passes through the wall of the containment berm or dike or under road crossings shall be protected from corrosion and damage using practices recommended in the publications listed in this subdivision.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; Errata, 14:23 VA.R. 3682 August 3, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-140 Performance standards for aboveground storage tanks newly installed, retrofitted, or brought into use

A. All ASTs shall be built in accordance with the applicable design standards adopted by Underwriters Laboratories, the American Petroleum Institute, the Steel Tank Institute or other standard approved by the department.

B. All ASTs shall be strength tested before being placed in use in accordance with the applicable code or standard under which they were built.

C. ASTs that have the tank bottom in direct contact with the soil shall have a determination made by a corrosion professional as to the type and degree of corrosion protection needed to ensure the integrity of the tank system during the use of the tank. If a survey indicates the need for corrosion protection for the new installation, corrosion protection shall be provided.

D. ASTs installed after June 30, 1993, shall have a release prevention barrier (RPB) installed either under or in the bottom of the tank. The RPB shall be capable of: (i) preventing the release of the oil and (ii) containing or channeling the oil for leak detection.

E. Existing ASTs that are retrofitted (reconstruction or bottom replacement) or brought back into use shall be brought into compliance with subsections A, B, C, and D of this section. The operator shall submit a schedule to the department of the work to be performed in order to bring the existing AST into compliance with new-built construction standards. This compliance schedule shall be submitted to the department no less than six months prior to the anticipated completion date.

F. Operators of ASTs installed, retrofitted (reconstruction or bottom replacement) or brought back into use shall also comply with 9VAC25-91-130 B and 9VAC25-91-130 C, as applicable.

G. All newly installed ASTs shall be constructed and installed in a manner consistent with the applicable standards and requirements found in the Uniform Statewide Building Code and its referenced model codes and standards or other standards approved by the department. Approval and any applicable permits shall be obtained from the local building official before construction starts.

H. Compliance dates for subsections A through G of this section.

1. Operators of a newly installed, retrofitted or brought-back-into-use facility or AST shall comply with the requirements of this section within 30 days prior to being placed into service.

2. Operators of facilities existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have complied with these requirements by October 22, 1998.

3. Operators of facilities existing on June 24, 1998, and not exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) and who have met these requirements on or before June 30, 1993, shall be deemed to be in compliance with these requirements as of the effective date of this chapter.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-145 Performance standards for certain aboveground storage tanks located in the City of Fairfax

A. The requirements of this section apply to aboveground storage tanks at facilities with an aggregate capacity of one million gallons or greater existing prior to January 29, 1992, and located in the City of Fairfax.

B. All ASTs altered as required by this section shall be strength tested before being returned to use in accordance with the applicable code or standard under which they were built.

C. All ASTs shall contain a release prevention barrier (RPB) either under or in the bottom of the tank. The RPB shall be capable of (i) preventing the release of the oil and (ii) containing or channeling the oil for leak detection. Existing elevated ASTs that are installed in containment areas meeting the requirements of an RPB or that are located within earthen containment dikes and are included in the daily and weekly inspections required by 9VAC25-91-130 B 5 shall be considered to be in compliance with the requirements of this section.

D. All ASTs altered as required by this section shall meet the applicable standards and requirements found in the Uniform Statewide Building Code or other standards approved by the department. Approval and all applicable permits shall be obtained from the local building official before altering ASTs.

E. Operators of facilities subject to this section shall meet the performance standards of this section no later than July 1, 2021.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1, and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 31, Issue 26, eff. November 1, 2015; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-150 Recordkeeping and access to facilities

A. Each operator of a facility subject to this chapter shall maintain the following records:

1. All records relating to all required measurements and inventory and reconciliation of oil at the facility;

2. All records relating to required tank/pipe testing;

3. All records relating to spill events and other discharges of oil from the facility;

4. All supporting documentation for developed contingency plans;

5. All records for implementation and monitoring of leak detection and applicable provisions of 9VAC25-91-170 A 18 of Part IV (9VAC25-91-170, Oil Discharge Contingency Plan (ODCP) Requirements) of this chapter;

6. All records relating to training of individuals;

7. All records relating to facility and tank inspections; and

8. Any records required to be kept by statute or regulation of the board.

B. These records shall be kept by the operator of a facility at the facility or at an alternate location approved by the department for a period of no less than five years unless otherwise indicated.

C. Upon request, each operator shall make these records available to the department and to the director or coordinator of emergency services for the locality in which the facility is located or to any political subdivision within one mile of the facility.

D. Operators shall maintain all records relating to compliance with this chapter for a period of no less than five years from the date the department receives notice of the closure unless otherwise indicated. These records shall be made available to the department at any time upon request.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-160 Variances to the requirements of Part III (9VAC25-91-130 et seq.) of this chapter

A. General criteria for granting a variance on a case-by-case basis.

1. The department is required by § 62.1-44.34:15.1 of the Code of Virginia to establish the criteria to grant variances of the AST pollution prevention requirements on a case-by-case basis and by regulation for categories of ASTs. Any person affected by this chapter may petition the department to grant a variance of any requirement of Part III (9VAC25-91-130 et seq.) of this chapter.

2. The department will not grant any petition for a variance related to:

a. Definitions;

b. Registration;

c. Classification of aboveground storage tanks; or

d. Oil discharge contingency plans.

3. The department may grant a variance if:

a. The applicant demonstrates to the satisfaction of the department that the alternate design or operation will result in a facility that is equally capable of preventing pollution of state water, land, and storm drains from the discharge of oil from new and existing ASTs. If the variance would extend a deadline, the petitioner shall demonstrate that a good faith effort to comply with the deadline was made;

b. Granting the variance will not result in an unreasonable risk to human health or the environment; and

c. Granting the variance will not result in a conflict with applicable local codes or ordinances.

4. In rendering a decision, the department may:

a. Deny the petition;

b. Grant the variance as requested;

c. Grant a modified variance which:

(1) Specifies additional or modified requirements;

(2) Includes a schedule for:

(a) Periodic review of the modified requirements;

(b) Implementation by the facility of such control measures as the department finds necessary in order that the variance may be granted; or

(c) Compliance, including increments of progress, by the facility with each requirement of the variance; or

(3) Specifies the termination date of the variance.

d. Grant a partial variance that:

(1) Specifies a particular part of the requirement;

(2) Specifies a particular part of the request;

(3) Includes a schedule for:

(a) Periodic review of the partial requirements;

(b) Implementation by the facility of such control measures as the department finds necessary in order that the variance may be granted; or

(4) Specifies the termination date of the variance.

5. An operator must comply with the requirements of this chapter even when a variance request is under consideration by the department. A variance request submitted but disapproved, or submitted but not yet decided, shall not constitute a defense or delay to any enforcement action undertaken by the department.

B. Administrative procedures.

1. General requirements for the submission of a petition by the owner or a duly authorized representative. All petitions submitted to the department shall include:

a. The owner's or duly authorized representative's name and address;

b. A citation of the regulatory requirement to which a variance is requested;

c. An explanation of the need or desire for the proposed action, including the reason the existing requirement is not achievable or is impractical compared to the alternative being proposed;

d. An explanation of the impact to applicable local codes and ordinances;

e. A description of the proposed action;

f. The duration of the variance, if applicable;

g. The potential impact of the variance on human health or the environment and a justification of the proposed action's ability to provide equivalent protection of human health and the environment as would compliance with the regulatory requirements;

h. Enforcement action against or pending against the petitioner;

i. Other information believed by the applicant to be pertinent; and

j. The following statements signed by the owner or a duly authorized representative:

"I certify that I have personally examined and am familiar with the information submitted in this petition and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. The petition, if granted, will not be in violation of any local codes or ordinances or pose an unreasonable risk to human health or the environment. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

2. In addition to the general information required of all petitioners under subdivision 1 of this subsection, the petitioner shall submit other information as may be required by the department.

3. All variance petitions and correspondence shall be submitted to the following address:

Mailing Address:

Department of Environmental Quality

Office of Spill Response and Remediation

P.O. Box 1105

Richmond, VA 23218

Street Address:

Department of Environmental Quality

Office of Spill Response and Remediation

1111 East Main Street, Suite 1400

Richmond, VA 23219

C. Petition processing.

1. After receiving a petition that includes the information required in subdivision B 1 of this section, the department will determine whether the information received is sufficient to render the decision. If the information is deemed to be insufficient, the department will specify additional information needed and request that it be furnished.

2. The petitioner may submit the additional information requested, may attempt to show that no reasonable basis exists for the request for additional information, or may withdraw the petition. If the department agrees that no reasonable basis exists for the request for additional information, the department will act in accordance with subdivision 3 b of this subsection. If the department continues to believe that a reasonable basis exists to require the submission of such information, the department will deny the petition.

3. After the petition is deemed complete:

a. The department will review the petition;

b. After evaluating the petition, the department will notify the applicant of the following final decision:

(1) Petition is denied;

(2) Requested variance is granted; or

(3) Modified or partial variance is granted;

c. The department shall send written notification of the variance to the chief administrative officer of the locality in which the facility is located; and

d. If the department grants a variance request, the notice to the petitioner shall provide that the variance may be terminated upon a finding by the department that the petitioner has failed to comply with any variance requirements.

D. Variance by regulation for categories of ASTs.

1. ASTs totally off ground shall not be subject to inventory control or testing for significant variation if:

a. All associated piping is off ground;

b. All associated buried piping is double walled; or

c. All associated piping meets the requirements using a combination of subdivisions 1 a and 1 b of this subsection.

2. ASTs with a capacity of 5,000 gallons or less located within a building or structure designed to fully contain a discharge of oil shall not be subject to inventory control or testing for significant variation.

3. ASTs containing No. 5 or No. 6 fuel oil for consumption on the premises where stored shall not be subject to inventory control or testing for significant variation.

4. ASTs with release prevention barriers (RPBs) and with an established corrosion rate and cathodic protection that protects the entire area of the tank bottom shall not be subject to inventory control or testing for significant variation if:

a. All associated piping is off ground;

b. All associated buried piping is double walled; or

c. All associated piping meets the requirements using a combination of subdivisions 4 a and 4 b of this subsection.

5. ASTs with release prevention barriers (RPBs) and with secondary containment that is 72 hours impermeable shall not be subject to inventory control or testing for significant variation if:

a. All associated piping is off ground;

b. All associated buried piping is double walled; or

c. All associated piping meets the requirements using a combination of subdivisions 5 a and 5 b of this subsection.

6. ASTs that meet the construction and installation standards of STI-F911, F921, or F941, or equivalent standards approved by the department shall not be subject to inventory control or testing for significant variation.

7. For refineries with a continuous leak detection monitoring system and cathodic protection of the AST and piping, a significant variation of inventory shall be considered a loss in excess of 3.0% by weight of the difference between the refinery's input and output.

8. Vaulted tanks meeting UL 2245 or an equivalent standard approved by the department shall not be subject to inventory control or testing for significant variation. The inspections for these tanks required in 9VAC25-91-130 B 5 need to be conducted no more frequently than once every 31 days. The criteria for the visual daily inspection and weekly inspection checklist shall be incorporated into a monthly checklist.

9. An AST used in the production/manufacturing process with full containment that is 72 hours impervious shall not be subject to inventory control or testing for significant variation.

10. An AST of 12,000 gallons or less with full containment that is 72 hours impervious, inside a building and used for the storage of heating oil consumed on the premises shall not be subject to inventory control or testing for significant variation.

11. A double-walled AST shall not be subject to inventory control or testing for significant variation. The inspections required in 9VAC25-91-130 B 5 need be conducted no more frequently than once every 31 days. The criteria for the visual daily inspection and weekly inspection checklist shall be incorporated into a monthly checklist.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 34, Issue 13, eff. February 19, 2018; Volume 39, Issue 5, eff. November 23, 2022.

Part IV Oil Discharge Contingency Plan (ODCP) Requirements

9VAC25-91-170 Contingency plan requirements and approval

A. Section 62.1-44.34:15 of the Code of Virginia requires that all facility oil discharge contingency plans must conform to the requirements and standards determined by the department to be necessary to ensure that the applicant can take such steps as are necessary to protect environmentally sensitive areas; to respond to the threat of an oil discharge; and to contain, cleanup, and mitigate an oil discharge within the shortest feasible time. Each such plan shall provide for the use of the best available technology (economically feasible, proven effective and reliable and compatible with the safe operation of the facility) at the time the plan is submitted for approval and, in order to be approvable, shall contain, at a minimum, the following requirements:

1. The name of the facility, geographic location and access routes from land and water if applicable;

2. The names of the operators of the facility including address and phone number;

3. A physical description of the facility consisting of a plan of the facility which identifies the applicable oil storage areas, transfer locations, control stations, above and below ground oil transfer piping within the facility boundary (and including adjacent easements and leased property), monitoring systems, leak detection systems and location of any safety protection devices;

4. A copy of the material safety data sheet (MSDS) or its equivalent for each oil or groups of oil with similar characteristics stored, transferred or handled at the facility. To be equivalent, the submission shall contain the following:

a. Generic or chemical name of the oil;

b. Hazards involved in handling the oil; and

c. A list of fire-fighting procedures and extinguishing agents effective with fires involving each oil or groups of oil demonstrating similar hazardous properties which require the same fire-fighting procedures;

5. The maximum storage or handling capacity of the facility and the individual tank capacities or, in the case of a pipeline, the average daily throughput of oil;

6. A complete listing, including 24-hour phone numbers, of all federal, state and local agencies required to be notified in the event of a discharge;

7. The position title of the individuals responsible for making the required notifications and a copy of the notification check-off list;

8. The position title, address and phone number of the individuals authorized to act on behalf of the operator to implement containment and cleanup actions. This individual shall be available on a 24-hour basis to ensure the appropriate containment and cleanup actions are initiated;

9. The position title of the individuals designated by the operator to ensure compliance during containment and cleanup of a discharge with applicable federal, state and local requirements for disposal of both solid and liquid wastes;

10. Identification and assurance by contract or other means acceptable to the department of the availability of private personnel and equipment necessary to remove to the maximum extent practicable the worst case discharge and to mitigate or prevent a substantial threat of such a discharge. This contract or agreement shall ensure a certain response within the shortest feasible time. The department will accept a letter of understanding between the operator and the response contractors which attests to this capability being readily available. Membership in a cleanup cooperative or other response organization is also acceptable. A listing of contractor or cooperative capabilities, including an inventory of the equipment and specification of the other information required by subdivision 12 of this subsection, shall be included unless these capabilities are already on file with the department;

11. Assessment of the worst case discharge, including measures to limit the outflow of oil, response strategy and operational plan. For the purpose of this chapter, the worst case discharge is the instantaneous release of the volume of the largest tank on the facility (125% of the volume of the largest tank for facilities with multiple tanks within a single containment dike) during adverse weather conditions. Facilities shall take into consideration that due to hydraulic pressure of the release, the secondary containment will not contain this volume in its entirety. The worst case discharge for a pipeline shall be based upon the volume of a discharge calculated using the maximum pressure, velocity, and elevation, and the largest pipe size and pipeline location. If facility design and operation indicates that this worst case discharge scenario does not meet the intent of this chapter, the department may require submission of other worst case scenarios on a facility-specific basis;

12. Inventory of facility containment equipment, including specification of quantity, type, location, time limits for gaining access to the equipment, and identification of facility personnel trained in its use;

13. Identification and location of natural resources at risk (including, but not limited to, surface waters as indicated on the applicable USGS quadrangle maps, groundwater, public water supplies, public and private water wells and springs, state or federal wildlife management areas, wildlife refuges, management areas, sanctuaries, property listed on the National Register of Historic Places and property listed on the National Register of Natural Landmarks), priorities for protection and means of protecting these resources;

a. In addition to the requirements set forth in this subdivision, the operator of a facility with an aggregate aboveground storage or handling capacity of one million gallons or greater of oil shall conduct a groundwater characterization study (GCS) within the geographic boundaries of the facility to be submitted as part of the contingency plan. The operator of such a facility shall utilize upgradient and downgradient GCS monitoring wells to satisfy this requirement. At the time of a discharge, the operator of such a facility shall conduct further characterization of the groundwater as required by the department;

b. For purposes of satisfying the requirement to identify and locate natural resources at risk, the operator of a pipeline shall identify surface waters as indicated on the applicable USGS quadrangle maps, public water supplies, state or federal wildlife management areas, wildlife refuges, management areas, sanctuaries, property listed on the National Register of Historic Places and property listed on the National Register of Natural Landmarks which could reasonably be expected to be impacted by the discharge. At the time of a discharge, the operator of a pipeline shall conduct a complete groundwater characterization study as required by the department and identify other natural resources at risk including public and private wells or springs which could reasonably be expected to be impacted by the discharge;

14. Identification and location of any municipal or other services (including, but not limited to, storm drains, storm water collection systems and sanitary sewer systems) at risk, notification procedures applicable and means of protection of these services. The identification and location of all municipal services shall include those services for which official records are available. The operator of a pipeline shall determine which sections of the system are located in areas that would require an immediate response by the operator to prevent hazards to the public if a discharge occurred;

15. If applicable, the facility's responsibility for responding to a discharge from a vessel moored at the facility and the identity of the sizes, types, and number of vessels that the facility can transfer oil to or from simultaneously;

16. A description of training, equipment testing, and periodic unannounced oil discharge drills conducted by the operator to mitigate or prevent the discharge or the substantial threat of a discharge;

17. The facility's oil inventory control procedures. Facilities shall ensure that this control procedure is capable of providing for the detection of a discharge of oil within the shortest feasible time in accordance with recognized engineering practices and industry measurement standards;

18. A detailed description of a system for early detection of a discharge to groundwater, utilizing upgradient and downgradient leak detection monitoring wells or other groundwater protection measures acceptable to the department (i.e., visual, interstitial, vapor and leak detection groundwater monitoring wells). The system will be operated, maintained and monitored in the manner approved and be subject to inspection by the department under the pollution prevention requirements of Part III (9VAC25-91-130 et seq., Pollution Prevention Requirements) of this chapter. Operators subject to subdivision 13 a of this subsection may utilize such GCS wells to meet this requirement when approved by the department;

19. The procedures to be followed, upon detection of a discharge of oil, for testing and inspection of all tanks, piping and all oil transfer associated equipment that could reasonably be expected to be a point source for the discharge. These procedures shall be conducted within the shortest feasible time, include a progression of written procedures from visual inspection to formal testing and be conducted in accordance with recognized engineering practices;

20. The facility's preventive maintenance procedures applicable to the critical equipment of an oil storage and transfer system as well as the maximum pressure for each oil transfer system. The term "critical equipment" shall mean equipment that affects the safe operation of an oil storage and handling system;

21. A description of the security procedures used by facility personnel to avoid intentional or unintentional damage to the facility; and

22. A post-discharge review procedure to assess the discharge response in its entirety.

B. All nonexempt facility operators shall file with the department the application form for approval of the contingency plan. This form shall be submitted with the required contingency plan and shall be completed insofar as it pertains to the facility. The operator shall sign and date the certification statement on the application form. If the operator is a corporation, the form shall be signed by an authorized corporate official; if the operator is a municipality, state, federal or other public agency, the form shall be signed by an authorized executive officer or ranking elected official; if the operator is a partnership or sole proprietorship, the form shall be signed by a general partner or the sole proprietor. All forms shall be acknowledged before a Notary Public.

C. Contingency plans shall be filed with and approved by the department. The plan shall be submitted to the department at the address specified in 9VAC25-91-60 A. A copy of the original with the facility-specific information and the approval letter shall be retained at the facility and shall be readily available for inspection.

D. An operator of multiple facilities may submit a single contingency plan encompassing more than one facility if the facilities are located within the defined boundaries of the same city or county or if the facilities are similar in design and operation. The plan shall contain site-specific information as required by subsection A of this section for each facility. The site-specific information shall be placed in appendices to the plan.

Upon renewal of an approved contingency plan submitted under this subsection, the department shall consider the individual facilities subject to all provisions of subsections E through J of this section.

E. Oil discharge contingency plans shall be reviewed, updated if necessary and resubmitted to the department for approval every 60 months from the date of approval unless significant changes occur sooner. Operators shall notify the department of significant changes and make appropriate amendments to the contingency plan within 30 days of the occurrence. For the purpose of this chapter, a significant change includes the following:

1. A change of operator of the facility;

2. An increase in the maximum storage or handling capacity of the facility that would change the measures to limit the outflow of oil, response strategy or operational plan in the event of the worst case discharge;

3. A decrease in the availability of private personnel or equipment necessary to remove to the maximum extent practicable the worst case discharge and to mitigate or prevent a substantial threat of such a discharge;

4. A change in the type of product dealt in, stored or handled by any facility covered by the plan for which a MSDS or its equivalent has not been submitted as part of the plan; or

5. A change in the method or operation utilized for the early detection of a discharge to groundwater (i.e., change in a method of leak detection).

F. Updated plans or certification for renewal of an existing plan shall be submitted to the department for review and approval not less than 90 days prior to expiration of approval of the current plan. Submittal of the certification for renewal for an existing plan shall be made in accordance with the provisions of subsection B of this section. All notifications of changes, renewals, submissions and updates of plans required by this chapter shall be directed to the respective regional office.

G. An oil discharge exercise may be required by the department to demonstrate the facility's ability to implement the contingency plan. The department will consult with the operator of the facility prior to initiating an exercise. Where appropriate, the department will ensure coordination with federal agencies prior to initiation of an exercise.

H. The department may, after notice and opportunity for a conference pursuant to § 2.2-4019 of the Code of Virginia, deny or modify its approval of an oil discharge contingency plan if it determines that:

1. The plan as submitted fails to provide sufficient information for the department to process, review and evaluate the plan or fails to ensure the applicant can take such steps as are necessary to protect environmentally sensitive areas, to respond to the threat of a discharge, and to contain and clean up an oil discharge within the shortest feasible time;

2. A significant change has occurred in the operation of the facility covered by the plan;

3. The facility's discharge experience or its inability to implement its plan in an oil spill discharge exercise demonstrates a necessity for modification; or

4. There has been a significant change in the best available technology since the plan was approved.

I. The department, after notice and opportunity for hearing, may revoke its approval of an oil discharge contingency plan if it determines that:

1. Approval was obtained by fraud or misrepresentation;

2. The plan cannot be implemented as approved;

3. A term or condition of approval of this chapter has been violated; or

4. The facility is no longer in operation.

J. A Facility Response Plan (FRP) developed pursuant to § 4202 of the federal Oil Pollution Act of 1990, Pub. L. No. 101-380, 33 USCA § 2716 (1996), may be accepted as meeting the requirements of subdivisions A 1 through A 22 of this section. The operator shall submit a copy of the FRP and a copy of the currently valid FRP approval letter for the facility for review and approval by the department. The FRP shall contain a cross reference in order to index pages for the specific requirements of the ODCP. The FRP shall also contain the satisfaction of the requirements of subdivisions A 13 a and A 18 of this section. This information shall be resubmitted in accordance with the renewal period established by federal statute or regulation but in no instance shall the renewal period exceed five years. The department shall be notified of any plan amendments within 30 days of the amendment.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; Errata, 14:23 VA.R. 3682 August 3, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

Part V Groundwater Characterization Study (GCS) and GCS Well Monitoring Requirements

9VAC25-91-180 Groundwater characterization study (GCS)

A. Section 62.1-44.34:15 of the Code of Virginia requires the operator to apply to the department for approval of an ODCP. The ODCP shall be accompanied by other relevant information required by the department (e.g., groundwater characterization study (GCS) of each facility with an aggregate aboveground storage capacity of one million gallons or greater of oil). The purpose of this GCS is to determine baseline conditions and flow of groundwater within the geographic boundaries of the facility. The operator's results of the GCS shall be subject to the review and approval of the department and shall be submitted to the department as part of the Oil Discharge Contingency Plan (ODCP) referenced in Part IV (9VAC25-91-170, Oil Discharge Contingency Plan (ODCP) Requirements) of this chapter. The GCS wells are required by 9VAC25-91-170 A 13 a in the ODCP requirements.

B. Section 62.1-44.34:15.1 of the Code of Virginia requires that the operator of a facility with an aggregate capacity of one million gallons or greater of oil conduct monthly gauging and inspection, monitoring of well headspace, and quarterly sampling and laboratory analysis of all groundwater monitoring wells located at the facility to determine the presence of petroleum or petroleum byproduct contamination.

C. Although GCS monitoring wells may be approved for use as part of a leak detection system, the GCS well monitoring requirement should not be confused with any requirement for leak detection monitoring wells required by 9VAC25-91-170 A 18.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; Errata, 14:23 VA.R. 3682 August 3, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-91-190 GCS well monitoring

A. All GCS wells required by 9VAC25-91-170 A 13 a in the ODCP requirements shall be monitored as follows:

1. Monthly gauging of GCS groundwater monitoring wells.

a. Measure and record static water levels monthly.

b. Reference all water-level measurements, including total well-depth measurements, from an established and documented point on the top of the well casing.

c. Measurements shall be correlated with mean sea level datum and measured to the nearest 0.01 foot.

2. Quarterly groundwater and vapor monitoring.

a. Quarterly vapor monitoring of all GCS wells identified in the ODCP-GCS shall be conducted prior to collecting quarterly groundwater samples.

b. Quarterly vapor monitoring consists of collecting one monitoring well headspace measurement.

c. Quarterly groundwater sampling (visual inspection) of all wells identified in the ODCP-GCS shall be conducted.

(1) Measure for free product on top of the groundwater.

(2) Collect groundwater samples for visual inspection.

d. Tabulate vapor measurements and quarterly visual groundwater monitoring results for each well sampled.

3. Annual groundwater monitoring for laboratory analysis.

a. Annual groundwater sampling of all wells identified in the ODCP groundwater characterization study (GCS) shall be conducted.

b. Annual groundwater monitoring consists of collecting groundwater samples for laboratory analysis.

c. Groundwater samples shall be collected and analyzed for BTEX and TPH for each well.

B. The GCS groundwater well monitoring should not be confused with the monitoring of groundwater wells utilized to satisfy 9VAC25-91-170 A 18 (i.e., leak detection wells).

History

• Statutory Authority: §§ 62.1-44.2, 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998.

9VAC25-91-200 Reporting; GCS well monitoring report

A. All observations and data gathered as a result of the requirements in 9VAC25-91-190 and any other data obtained from those same wells shall be maintained at the facility, compiled, and submitted to the department annually in the following format:

I. Monthly gauging of GCS groundwater monitoring wells.

1.0 Summary of measurement procedures.

2.0 Table of static water levels recorded from monitoring wells.

II. Quarterly GCS groundwater vapor monitoring.

1.0 Summary of groundwater and vapor collection procedures.

2.0 Table of vapor measurements from monitoring well headspace.

3.0 Table of groundwater monitoring well visual inspection results.

III. Annual GCS groundwater quality evaluation.

1.0 Summary of groundwater collection methods.

2.0 Summary of groundwater analytical results and interpretation.

3.0 Table of analytical methods used.

4.0 Table of analytical results.

5.0 Table of field and trip blank results.

6.0 Groundwater laboratory data including chain-of-custody forms.

7.0 Laboratory quality assurance review.

B. The annual GCS monitoring report shall include the facility name and address, operator, and consultant, if any, who prepared the report, contact person and the date the report was submitted.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015.

9VAC25-91-210 Response

Should any observations or data indicate the presence of petroleum hydrocarbons in groundwater, the results shall be immediately reported to the department and to the local director or coordinator of emergency services appointed pursuant to § 44-146.19 of the Code of Virginia.

History

• Statutory Authority: §§ 62.1-44.2, 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1, and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VI Resources Available

9VAC25-91-220 Resources available

A. This chapter (Facility and Aboveground Storage Tank (AST) Regulation (9VAC25-91)) does not contain all requirements for aboveground storage tanks in Virginia. The resources listed in this section have been included to assist with complying with requirements of this regulation. Section 36-99.6 of the Code of Virginia requires the Board of Housing and Community Development to incorporate, as part of the building code, regulations adopted and promulgated by the State Water Control Board governing the installation, repair, upgrade, and closure of aboveground storage tanks. Portions of this chapter are incorporated into the Virginia Uniform Statewide Building Code (USBC). The USBC referenced model codes and standards apply as promulgated by the Virginia Department of Housing and Community Development.

B. The following documents or portions thereof are resources referenced or provide guidance in this chapter:

1. Underwriters Laboratories Standards:

a. Specification 142, "Steel Aboveground Tanks for Flammable and Combustible Liquids," Ninth Edition;

b. Standard 2245, "Standard for Below-Grade Vaults for Flammable Liquid Storage Tanks," Second Edition, December 28, 2006;

2. American Petroleum Institute (API) Standards:

a. API 12B: Specification 12B October 2008, "Specification for Bolted Tanks for Storage of Production Liquids," Fifteenth Edition;

b. API 12D: Specification 12D, October 2008, "Specification for Field Welded Tanks for Storage of Production Liquids," Eleventh Edition;

c. API 12F: Specification 12F, October 2008, "Specification for Shop Welded Tanks for Storage of Production Liquids," Twelfth Edition;

d. API 575; May 2005, "Inspection of Existing Atmospheric and Low-pressure Storage Tanks," Second Edition, May 2005;

e. API 620: Standard 620, February 2008, "Design and Construction of Large, Welded, Low-Pressure Storage Tanks," includes Addendum 1 (2009), Addendum 2 (2010), and Addendum 3 (2012), Eleventh Edition;

f. API 650: Standard 650, June 2001, "Welded Tanks for Oil Storage," Eleventh Edition;

g. API 651: Recommended Practice 651, January 2007, "Cathodic Protection for Above Ground Petroleum Storage Tanks," Third Edition;

h. API 652: Recommended Practice 652, October 2005, "Lining of Aboveground Petroleum Storage Tank Bottoms," Third Edition;

i. API 2350: Recommended Practice 2350, January 2005, "Overfill Protection for Petroleum Storage Tanks," Third Edition;

3. Virginia Statewide Fire Prevention Code (SWFPC), (March 1, 2011); and

4. Steel Tank Institute (STI), Standards and Recommended Practices:

a. STI Standard for Diked Aboveground Storage Tanks F911;

b. STI Standard for Aboveground Tanks with Integral Secondary Containment F921, revised July 2011;

c. STI Fireguard^TM Specifications for Fireguard protected Aboveground Storage Tanks F941.

C. Standards and codes listed in subsection B of this section are specifically authorized for use by the department. Other standards and codes may be used if specifically authorized by the department.

D. This chapter refers to resources that may be used to comply with provisions of the regulations. These resources are available through the Internet; therefore, in order to assist the regulated community, the resource reference document owner's contact information, including uniform resource locator or Internet address is provided for each of the resource references listed in this section.

1. Underwriter's Laboratories, http://ulstandards.ul.com/access-standards/, Underwriter's Laboratories, 2600 NW Lake Road, Camas, WA 98607-8542.

2. American Petroleum Institute, http://api.org, American Petroleum Institute,1220 L Street, NW, Washington, DC 20005-4070.

3. National Association of Corrosion Engineers, http://nace.org, National Association of Corrosion Engineers, 1440 South Creek Drive, Houston, TX USA 77084-4906.

4. Code of Federal Regulations, http://www.gpo.gov/fdsys/.

5. Virginia Uniform Statewide Building Code, http://www.dhcd.virginia.gov/index.php/va-building-codes/building-and-fire-codes/regulations/uniform-statewide-building-code-usbc.html, Virginia Department of Housing and Community Development, Main Street Centre, 600 East Main Street, Suite 300, Richmond, VA 23219.

6. Virginia Statewide Fire Prevention Code, http://www.dhcd.virginia.gov/StateBuilding CodesandRegulations/PDFs/2009/Code%20-%20SFPC.pdf, Virginia Department of Housing and Community Development, Main Street Centre, 600 East Main Street, Suite 300, Richmond, VA 23219.

7. Steel Tank Institute, www.steeltank.com, Steel Tank Institute, 944 Donata Court, Lake Zurich, IL 60047.

History

• Statutory Authority: §§ 62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1, and 62.1-44.34:19.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; Errata, 14:23 VA.R 3682 August 3, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 39, Issue 5, eff. November 23, 2022.

Chapter 151 Virginia Pollutant Discharge Elimination System (VPDES) General Permit Regulation for Discharges of Stormwater Associated with Industrial Activity

Part III Stormwater Pollution Prevention Plan

9VAC25-151-80 Stormwater pollution prevention plans

A stormwater pollution prevention plan (SWPPP) shall be developed and implemented for the facility covered by this permit. The SWPPP is intended to document the selection, design, and installation of control measures, including BMPs, to minimize the pollutants in all stormwater discharges from the facility, and to meet applicable effluent limitations and water quality standards.

The SWPPP requirements of this general permit may be fulfilled, in part, by incorporating by reference other plans or documents (i.e., a spill prevention control and countermeasure (SPCC) plan developed for the facility under § 311 of the Clean Water Act, or best management practices (BMP) programs otherwise required for the facility ), provided that the incorporated plan meets or exceeds the plan requirements of Part III B. All plans incorporated by reference into the SWPPP become enforceable under this permit. If a plan incorporated by reference does not contain all of the required elements of the SWPPP of Part III B, the permittee shall develop the missing SWPPP elements and include them in the required plan.

A. Deadlines for SWPPP preparation and compliance.

1. Facilities that were covered under the 2019 Industrial Stormwater General Permit. Owners of facilities that were covered under the 2019 Industrial Stormwater General Permit who are continuing coverage under this general permit shall update and implement any revisions to the SWPPP within 90 days of the department granting coverage under this permit.

2. New facilities, facilities previously covered by an expiring individual permit, and existing facilities not currently covered by a VPDES permit. Owners of new facilities, facilities previously covered by an expiring individual permit, and existing facilities not currently covered by a VPDES permit who elect to be covered under this general permit shall prepare and implement the SWPPP before submitting the registration statement.

3. New owners of existing facilities. Where the owner of an existing facility that is covered by this permit changes, the new owner of the facility shall update and implement any revisions to the SWPPP within 60 days of the ownership change.

4. Extensions. Upon a showing of good cause, the director may establish a later date in writing for the preparation and compliance with the SWPPP.

B. Contents of the SWPPP. The contents of the SWPPP shall comply with the requirements listed below and those in the appropriate sectors of Part IV. These requirements are cumulative. If a facility has colocated industrial activities that are covered in more than one sector of Part IV, that facility's SWPPP shall comply with the requirements listed in all applicable sectors. The following requirements are applicable to all SWPPPs developed under this general permit. The SWPPP shall include, at a minimum, the following items:

1. Pollution prevention team. The SWPPP shall identify the staff individuals by name or title who comprise the facility's stormwater pollution prevention team. The pollution prevention team is responsible for assisting the facility or plant manager in developing, implementing, maintaining, revising, and ensuring compliance with the facility's SWPPP. Specific responsibilities of each staff individual on the team shall be identified and listed.

2. Site description. The SWPPP shall include the following:

a. A description of the industrial activities at the facility.

b. A site map identifying the following:

(1) The boundaries of the property and the size of the property in acres;

(2) The location and extent of significant structures and impervious surfaces;

(3) Locations of all stormwater conveyances, including ditches, pipes, swales, and inlets, and the directions of stormwater flow using arrows to show which direction stormwater will flow;

(4) Locations of all stormwater control measures, including BMPs;

(5) Locations of all surface water bodies, including wetlands;

(6) Locations of potential pollutant sources identified under Part III B 3;

(7) Locations where significant spills or leaks identified under Part III B 3 c have occurred;

(8) Locations of stormwater outfalls.

(a) An approximate outline of the area draining to each outfall;

(b) The drainage area of each outfall in acres;

(c) The longitude and latitude of each outfall;

(d) The location of any MS4 conveyance receiving discharge from the facility; and

(e) Each outfall shall be identified with a unique numerical identification code. For example: Outfall Number 001, Outfall Number 002, etc.;

(9) Location and description of all nonstormwater discharges;

(10) Location of any storage piles containing salt;

(11) Locations and sources of suspected run-on to the site from an adjacent property if the run-on is suspected of containing significant quantities of pollutants; and

(12) Locations of all stormwater monitoring points.

c. Receiving waters and wetlands. The name of all surface waters receiving discharges from the site, including intermittent streams, dry sloughs, and arroyos. Provide a description of wetland sites that may receive discharges from the facility. If the facility discharges through an MS4, identify the MS4 operator, and the receiving water to which the MS4 discharges.

3. Summary of potential pollutant sources. The SWPPP shall identify each separate area at the facility where industrial materials or activities are exposed to stormwater. Industrial materials or activities include material handling equipment or activities, industrial machinery, raw materials, industrial production and processes, intermediate products, byproducts, final products, and waste products. Material handling activities include the storage, loading and unloading, transportation, disposal, or conveyance of any raw material, intermediate product, final product, or waste product. For each separate area identified, the description shall include:

a. Activities in the area. A list of the industrial activities exposed to stormwater.

b. Pollutants. A list of the pollutants, pollutant constituents, or industrial chemicals associated with each industrial activity that could potentially be exposed to stormwater. The pollutant list shall include all significant materials handled, treated, stored or disposed that have been exposed to stormwater in the three years before the date this SWPPP was prepared or amended. The list shall include any hazardous substances or oil at the facility.

c. Spills and leaks. The SWPPP shall clearly identify areas where potential spills and leaks that can contribute pollutants to stormwater discharges can occur and their corresponding outfalls. The SWPPP shall include a list of significant spills and leaks of toxic or hazardous pollutants that actually occurred at exposed areas, or that drained to a stormwater conveyance during the three-year period before the date this SWPPP was prepared or amended. The list shall be updated within 60 days of the incident if significant spills or leaks occur in exposed areas of the facility during the term of the permit.

d. Sampling data. The SWPPP shall include stormwater discharge sampling data collected during the previous three years.

4. Stormwater controls.

a. Control measures shall be implemented for all the areas identified in Part III B 3 to prevent or control pollutants in stormwater discharges from the facility. Regulated stormwater discharges from the facility include stormwater run-on that commingles with stormwater discharges associated with industrial activity at the facility. The SWPPP shall describe the type, location, and implementation of all control measures for each area where industrial materials or activities are exposed to stormwater.

Selection of control measures shall take into consideration:

(1) That preventing stormwater from coming into contact with polluting materials is generally more effective, and less costly, than trying to remove pollutants from stormwater;

(2) Control measures generally shall be used in combination with each other for most effective water quality protection;

(3) Assessing the type and quantity of pollutants, including their potential to impact receiving water quality, is critical to designing effective control measures;

(4) That minimizing impervious areas at the facility can reduce runoff and improve groundwater recharge and stream base flows in local streams (however, care must be taken to avoid groundwater contamination);

(5) Flow attenuation by use of open vegetated swales and natural depressions can reduce instream impacts of erosive flows;

(6) Conservation or restoration of riparian buffers will help protect streams from stormwater runoff and improve water quality; and

(7) Treatment interceptors (e.g., swirl separators and sand filters) may be appropriate in some instances to minimize the discharge of pollutants.

b. Nonnumeric technology-based effluent limits. The permittee shall implement the following types of control measures to prevent and control pollutants in the stormwater discharges from the facility, unless it can be demonstrated and documented that the controls are not relevant to the discharges.

(1) Good housekeeping. The permittee shall keep clean all exposed areas of the facility that are potential sources of pollutants to stormwater discharges. The permittee shall perform the following good housekeeping measures to minimize pollutant discharges:

(a) The SWPPP shall include a schedule for regular pickup and disposal of waste materials, along with routine inspections for leaks and conditions of drums, tanks, and containers;

(b) As feasible, the facility shall sweep or vacuum;

(c) Store materials in containers constructed of appropriate materials;

(d) Manage all waste containers to prevent a discharge of pollutants;

(e) Minimize the potential for waste, garbage, and floatable debris to be discharged by keeping areas exposed to stormwater free of such materials or by intercepting the materials before the discharge; and

(f) Facilities that handle pre-production plastic or plastic waste shall implement BMPs to eliminate stormwater discharges of plastics.

(2) Eliminating and minimizing exposure. To the extent practicable, manufacturing, processing, and material storage areas (including loading and unloading, storage, disposal, cleaning, maintenance, and fueling operations) shall be located inside, or protected by a storm-resistant covering to prevent exposure to rain, snow, snowmelt, and runoff. Eliminating exposure at all industrial areas may make the facility eligible for the "Conditional Exclusion for No Exposure" provision of 9VAC25-31-120 E, eliminating the need to have a permit. Unless infeasible, facilities shall implement the following:

(a) Use grading, berming, or curbing to prevent runoff of contaminated flows and divert run-on away from potential sources of pollutants;

(b) Locate materials, equipment, and activities so that potential leaks and spills are contained, or able to be contained, or diverted before discharge;

(c) Clean up spills and leaks immediately, on discovery of the spills or leaks, using dry methods (e.g., absorbents) to prevent the discharge of pollutants;

(d) Store leaking vehicles and equipment indoors or, if stored outdoors, use drip pans and adsorbents;

(e) Utilize appropriate spill or overflow protections equipment;

(f) Perform all vehicle maintenance or equipment cleaning operations indoors, under cover, or in bermed areas that prevent runoff and run-on and also capture any overspray; and

(g) Drain fluids from equipment and vehicles that will be decommissioned, and for any equipment and vehicles that remain unused for extended periods of time, inspect at least monthly for leaks.

(3) Preventive maintenance. The permittee shall have a preventive maintenance program that includes regular inspection, testing, maintenance, and repairing of all industrial equipment and systems to avoid situations that could result in leaks, spills, and other releases of pollutants in stormwater discharged from the facility. This program is in addition to the specific control measure maintenance required under Part III C (Maintenance).

(4) Spill prevention and response procedures. The SWPPP shall describe the procedures that will be followed for preventing and responding to spills and leaks, including:

(a) Preventive measures, (e.g., barriers between material storage and traffic areas, secondary containment provisions, and procedures for material storage and handling);

(b) Response procedures, including notification of appropriate facility staff, emergency agencies, and regulatory agencies, and procedures for stopping, containing, and cleaning up spills. Measures for cleaning up hazardous material spills or leaks shall be consistent with applicable Resource Conservation and Recovery Act regulations at 40 CFR Part 264 and 40 CFR Part 265. Employees who may cause, detect, or respond to a spill or leak shall be trained in these procedures and have necessary spill response equipment available. If possible, one of these individuals shall be a member of the Pollution Prevention Team;

(c) Procedures for plainly labeling containers (e.g., "used oil," "spent solvents," "fertilizers and pesticides," etc.) that could be susceptible to spillage or leakage to encourage proper handling and facilitate rapid response if spills or leaks occur; and

(d) Contact information for individuals and agencies that must be notified of a spill shall be included in the SWPPP, and in other locations where it will be readily available.

(5) Salt storage piles or piles containing salt. Storage piles of salt or piles containing salt used for deicing or other commercial or industrial purposes shall be enclosed or covered to prevent exposure to precipitation. The permittee shall implement appropriate measures (e.g., good housekeeping, diversions, containment) to minimize exposure resulting from adding to or removing materials from the pile. All salt storage piles shall be located on an impervious surface. All runoff from the pile, and runoff that comes in contact with salt, including under drain systems, shall be collected and contained within a bermed basin lined with concrete or other impermeable materials, or within an underground storage tank or tanks, or within an aboveground storage tank, or disposed of through a sanitary sewer (with the permission of the owner of the treatment facility). A combination of any or all of these methods may be used. In no case shall salt contaminated stormwater be allowed to discharge directly to the ground or to surface waters.

(6) Employee training. The permittee shall implement a stormwater employee training program for the facility. The SWPPP shall include a schedule for all types of necessary training, and shall document all training sessions and the employees who received the training. Training shall be provided at least annually for all employees who work in areas where industrial materials or activities are exposed to stormwater, and for employees who are responsible for implementing activities identified in the SWPPP (e.g., inspectors, maintenance staff, etc.). The training shall cover the components and goals of the SWPPP, and include such topics as spill response, good housekeeping, material management practices, control measure operation and maintenance, etc. The SWPPP shall include a summary of any training performed.

(7) Sediment and erosion control. The SWPPP shall identify areas at the facility that, due to topography, land disturbance (e.g., construction, landscaping, site grading), or other factors, have a potential for soil erosion. The permittee shall identify and implement structural, vegetative, and stabilization control measures to prevent or control on-site and off-site erosion and sedimentation. Flow velocity dissipation devices shall be placed at discharge locations and along the length of any outfall channel if the flows would otherwise create erosive conditions.

(8) Management of runoff. The SWPPP shall describe the stormwater runoff management practices (i.e., permanent structural control measures) for the facility. These types of control measures shall be used to divert, infiltrate, reuse, or otherwise reduce pollutants in stormwater discharges from the site.

Structural control measures may require a separate permit under § 404 of the Clean Water Act and the Virginia Water Protection Permit Program Regulation (9VAC25-210) before installation begins.

(9) Dust suppression and vehicle tracking of industrial materials. The permittee shall implement control measures to minimize the generation of dust and off-site tracking of raw, final, or waste materials. Stormwater collected on-site may be used for the purposes of dust suppression or for spraying stockpiles. Potable water, well water, and uncontaminated reuse water may also be used for this purpose. There shall be no direct discharge to surface waters from dust suppression activities or as a result of spraying stockpiles.

(10) Airport deicing operations. The permittee shall minimize, and where practicable eliminate, the use of deicing or anti-icing chemicals in order to reduce the aggregate amount of deicing or anti-icing chemicals used and lessen the environmental impact. The permittee shall minimize contamination of stormwater runoff from aircraft deicing and anti-icing operations and runway deicing operations, if applicable. Where deicing and anti-icing operations occur, the SWPPP shall describe procedures and control measures to manage contaminated stormwater runoff or snow melt (from areas used to dispose contaminated snow) to minimize the amount of pollutants discharged from the site. The following control measure options or their equivalents shall be considered: covering storm sewer inlets, using booms, installing absorptive interceptors in the drain, establishing a dedicated deicing facility with a runoff collection and recovery system; using vacuum or collection trucks; storing contaminated stormwater or deicing fluids in tanks and releasing controlled amounts to a publicly owned treatment works (with permission of the treatment works); collecting contaminated runoff in a wet pond for biochemical decomposition; and directing runoff into vegetative swales or other infiltration measures. Procedures and selected control measures should at all times be consistent with considerations of flight safety.

5. Routine facility inspections. Staff who possess the knowledge and skills to assess conditions and activities that could impact stormwater quality at the facility and who can also evaluate the effectiveness of control measures shall regularly inspect all areas of the facility where industrial materials or activities are exposed to stormwater, areas where spills or leaks have occurred in the past three years, discharge points, and control measures. At least one member of the pollution prevention team shall participate in the routine facility inspections. The inspection frequency shall be specified in the SWPPP based on a consideration of the level of industrial activity at the facility, but shall be at a minimum of once per calendar quarter unless more frequent intervals are specified elsewhere in the permit or written approval is received from the department for less frequent intervals. Inspections shall be performed during operating hours. At least once each calendar year, the routine facility inspection shall be conducted during a period when a stormwater discharge is occurring. The requirement for routine facility inspections is waived for facilities that have maintained an active VEEP E3/E4 status. Certain sectors in Part IV have additional inspection requirements. If the VEEP E3/E4 waiver language is not included for the sector specific inspections, these additional inspection requirements may not be waived. Any deficiencies in the implementation of the SWPPP that are found shall be corrected as soon as practicable, but not later than within 60 days of the inspection, unless permission for a later date is granted in writing by the director. The results of the inspections shall be documented in the SWPPP and shall include at a minimum:

a. The inspection date;

b. The names of the inspectors;

c. Weather information and a description of any discharges occurring at the time of the inspection;

d. Any previously unidentified discharges of pollutants from the site;

e. Any control measures needing maintenance or repairs;

f. Any failed control measures that need replacement;

g. Any incidents of noncompliance observed; and

h. Any additional control measures needed to comply with the permit requirements.

C. Maintenance. The SWPPP shall include a description of procedures and a regular schedule for preventive maintenance of all control measures, and shall include a description of the back-up practices that are in place should a runoff event occur while a control measure is off-line. The effectiveness of nonstructural control measures shall also be maintained by appropriate means (e.g., spill response supplies available and staff trained, etc.).

All control measures identified in the SWPPP shall be maintained in effective operating condition and shall be observed at least annually when a stormwater discharge is occurring to ensure that they are functioning correctly. Where discharge locations are inaccessible, nearby downstream locations shall be observed. The observations shall be documented in the SWPPP.

If routine facility inspections required by Part III B 5 identify control measures that are not operating effectively, repairs or maintenance shall be performed before the next anticipated storm event. If maintenance before the next anticipated storm event is not possible, maintenance shall be scheduled and accomplished as soon as practicable, but not later than within 60 days of the inspection, unless permission for a later date is granted in writing by the director. In the interim, back-up measures shall be employed and documented in the SWPPP until repairs or maintenance is complete. Documentation shall be kept with the SWPPP of maintenance and repairs of control measures, including the dates of regular maintenance, dates of discovery of areas in need of repair or replacement, dates for repairs, dates that the control measures returned to full function, and the justification for any extended maintenance or repair schedules.

D. Nonstormwater discharges.

1. Discharges of certain sources of nonstormwater listed in Part I B 1 are allowable discharges under this permit. All other nonstormwater discharges are not authorized and shall be either eliminated or covered under a separate VPDES permit.

2. Annual outfall evaluation for unauthorized discharges.

a. The SWPPP shall include documentation that all stormwater outfalls associated with industrial activity have been evaluated annually for the presence of unauthorized discharges. The documentation shall include:

(1) The date of the evaluation;

(2) A description of the evaluation criteria used;

(3) A list of the outfalls or on-site drainage points that were directly observed during the evaluation;

(4) A description of the results of the evaluation for the presence of unauthorized discharges; and

(5) The actions taken to eliminate unauthorized discharges if any were identified.

b. The permittee may request in writing to the department that the facility be allowed to conduct annual outfall evaluations at 20% of the outfalls. If approved, the permittee shall evaluate at least 20% of the facility outfalls each year on a rotating basis so that all facility outfalls will be evaluated during the period of coverage under this permit.

E. Signature and SWPPP review.

1. Signature and location. The SWPPP, including revisions to the SWPPP to document any corrective actions taken as required by Part I A 6, shall be signed in accordance with Part II K, dated, and retained on-site at the facility covered by this permit in accordance with Part II B 2. All other changes to the SWPPP, and other permit compliance documentation, shall be signed and dated by the person preparing the change or documentation. For inactive and unstaffed facilities, the plan may be kept at the nearest office of the permittee.

2. Availability. The permittee shall retain a copy of the current SWPPP (hard copy or electronic) required by this permit at the facility, and it shall be immediately available to the department, EPA, or the operator of an MS4 receiving discharges from the site at the time of an on-site inspection or upon request.

3. Required modifications. The permittee shall modify the SWPPP whenever necessary to address all corrective actions required by Part I A 6 a (Data exceeding benchmark concentration values) or Part I A 6 b (Corrective actions). Changes to the SWPPP shall be made in accordance with the corrective action deadlines in Part I A 6 a and Part I A 6 b, and shall be signed and dated in accordance with Part III E 1.

The director may notify the permittee at any time that the SWPPP, control measures, or other components of the facility's stormwater program do not meet one or more of the requirements of this permit. The notification shall identify specific provisions of the permit that are not being met, and may include required modifications to the stormwater program, additional monitoring requirements, and special reporting requirements. The permittee shall make any required changes to the SWPPP within 60 days of receipt of the notification, unless permission for a later date is granted in writing by the director, and shall submit a written certification to the director that the requested changes have been made.

F. Maintaining an updated SWPPP.

1. The permittee shall review and amend the SWPPP as appropriate whenever:

a. There is construction or a change in design, operation, or maintenance at the facility that has a significant effect on the discharge, or the potential for the discharge, of pollutants from the facility;

b. Routine inspections or compliance evaluations determine that there are deficiencies in the control measures, including BMPs;

c. Inspections by local, state, or federal officials determine that modifications to the SWPPP are necessary;

d. There is a significant spill, leak, or other release at the facility;

e. There is an unauthorized discharge from the facility; or

f. The department notifies the permittee that a TMDL has been developed and applies to the permitted facility, consistent with Part I B.

2. SWPPP modifications shall be made within 60 calendar days after discovery, observation or event requiring an SWPPP modification. Implementation of new or modified control measures (distinct from regular preventive maintenance of existing control measures described in Part III C) shall be initiated before the next storm event if possible, but no later than 60 days after discovery, or as otherwise provided or approved by the director. The amount of time taken to modify a control measure or implement additional control measures shall be documented in the SWPPP.

3. If the SWPPP modification is based on a significant spill, leak, release, or unauthorized discharge, include a description and date of the incident, the circumstances leading to the incident, actions taken in response to the incident, and measures to prevent the recurrence of releases. Unauthorized discharges are subject to the reporting requirements of Part II G of this permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Errata, 31:3 VA.R. 194 October 6, 2014; amended, Virginia Register Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

Part IV Sector Specific Permit Requirements

9VAC25-151-85 Sector specific permit requirements

The permittee must only comply with the additional requirements of Part IV of this permit that apply to the sectors of industrial activity located at the facility. These sector specific requirements are in addition to the requirements specified in Parts I, II, and III of this permit. All numeric effluent limitations and benchmark monitoring concentration values reflect two significant digits, unless otherwise noted.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-90 Sector A - Timber products facilities (including mulch, wood, and bark facilities and mulch dyeing facilities)

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities generally classified under Standard Industrial Classification (SIC) Codes 2491 and 2499 that are engaged in the following activities: cutting timber and pulpwood (those that have log storage or handling areas), mills, including merchant, lath, shingle, cooperage stock, planing, plywood and veneer, and producing lumber and wood materials; wood preserving, manufacturing wood buildings or mobile homes; and manufacturing finished articles made entirely of wood or related materials, except for wood kitchen cabinet manufacturers (SIC Code 2434), and mulch, wood, and bark facilities, including mulch dyeing operations (SIC Code 24991303).

B. Special conditions.

1. Prohibition of nonstormwater discharges. Discharges of stormwater from areas where there may be contact with chemical formulations applied to provide surface protection are not authorized by this permit. Surface protection includes chemical application to control sap stain, mold, mildew, and insects. These discharges must be covered under a separate VPDES permit. Discharge of wet dye drippings from mulch dyeing operations are also prohibited.

2. Authorized nonstormwater discharges. In addition to the discharges described in Part I B 1, the following nonstormwater discharges may be authorized by this permit provided the nonstormwater component of the discharge is in compliance with subsection C of this section and the effluent limitations described in subsection D of this section: discharges from the spray down of lumber and wood product storage yards where no chemical additives are used in the spray down waters and no chemicals are applied to the wood during storage.

C. Stormwater controls. The description of stormwater management controls shall address the following areas of the site: log, lumber, and wood product storage areas; residue storage areas; loading and unloading areas; material handling areas; chemical storage areas; and equipment and vehicle maintenance, storage, and repair areas. Facilities that surface protect or preserve wood products shall address specific control measures, including any BMPs, for wood surface protection and preserving activities. Facilities that dye mulch shall address specific control measures to prevent the discharge of wet dye drippings and to prevent seepage of pollutants to groundwater.

The SWPPP shall address the following minimum components:

1. Good housekeeping. Good housekeeping measures in storage areas, loading and unloading areas, and material handling areas shall be designed to:

a. Limit the discharge of wood debris;

b. Minimize the leachate generated from decaying wood materials; and

c. Minimize the generation of dust.

2. Routine facility inspections. Inspections at processing areas, transport areas, and treated wood storage areas of facilities performing wood surface protection and preservation activities shall be performed monthly to assess the usefulness of practices in minimizing the deposit of treatment chemicals on unprotected soils and in areas that will come in contact with stormwater discharges. The requirement for routine facility inspections is waived for facilities that have maintained an active VEEP E3/E4 status.

D. Numeric effluent limitations.

The following numeric effluent limitations shall be met by existing and new facilities. Wet deck storage area runoff. Nonstormwater discharges from areas used for the storage of logs where water, without chemical additives, is intentionally sprayed or deposited on logs to deter decay or infestation by insects are required to meet the following effluent limitations: pH shall be within the range of 6.0-9.0, and there will be no discharge of debris. Chemicals are not allowed to be applied to the stored logs. The term "debris" is defined as woody material, for example, bark, twigs, branches, heartwood, or sapwood that will not pass through a 2.54 cm (1 in.) diameter round opening and is present in the discharge from a wet deck storage area. Permittees subject to these numeric limitations shall be in compliance with these limitations through the duration of permit coverage.

| Table 90-1 Sector A - Numeric Effluent Limitations | | | --- | --- | | Parameter | Effluent Limitations | | Wet Decking Discharges at Log Storage and Handling Areas (SIC Code 2411) | | | pH | 6.0 - 9.0 s.u. | | Debris,woody material (e.g., bark, twigs, branches, heartwood, or sapwood) | No discharge of debris that will not pass through a 2.54 cm (1") diameter round opening. |

E. Benchmark monitoring and reporting requirements. Wood preserving facilities; mulch, wood, and bark facilities; and mulch dyeing facilities are required to monitor their stormwater discharges for the pollutants of concern listed in the appropriate section of Table 90-2.

| Table 90-2 Sector A - Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | General Sawmills and Planing Mills (SIC Code 2421) | | | Total Suspended Solids (TSS) | 100 mg/L | | Wood Preserving Facilities (SIC Code 2491) | | | Total Recoverable Arsenic¹ | 150 μg/L | | Total Recoverable Chromium¹ | 16 μg/L | | Total Recoverable Copper¹ | 13 μg/L | | Log Storage and Handling Facilities (SIC Code 2411) | | | Total Suspended Solids (TSS) | 100 mg/L | | Hardwood Dimension and Flooring Mills; Special Products Sawmills, not elsewhere classified; Millwork, Veneer, Plywood and Structural Wood; Wood Containers; Wood Buildings and Mobile Homes; Reconstituted Wood Products; and Wood Products Facilities not elsewhere classified (SIC Codes 2426, 2429, 2431-2439 (except 2434), 2441, 2448, 2449, 2451, 2452, 2493, and 2499). | | | Total Suspended Solids (TSS) | 100 mg/L | | Mulch, Wood, and Bark Facilities (SIC Code 24991303) | | | Total Suspended Solids (TSS) | 100 mg/L | | Chemical Oxygen Demand (COD) | 120 mg/L | | Facilities with Mulch Dyeing/Coloring Operations (SIC Code 24991303): Monitor ONLY those outfalls from the facility that collect runoff from areas where mulch dyeing/coloring activities occur, including but not limited to areas where loading, transporting, and storage of dyed/colored mulch occurs.² | | | Total Suspended Solids (TSS) | 100 mg/L | | Biochemical Oxygen Demand (BOD5) | 30 mg/L | | Chemical Oxygen Demand (COD) | 120 mg/L | | Total Recoverable Aluminum | 1,100 μg/L | | Total Recoverable Arsenic | 150 μg/L | | Total Recoverable Cadmium | 1.8 μg/L | | Total Recoverable Chromium | 16 μg/L | | Total Recoverable Copper | 13 μg/L | | | | | Total Recoverable Selenium | 5.0 μg/L | | Total Recoverable Silver | 3.2 μg/L | | Total Recoverable Zinc | 120 μg/L | | Total Nitrogen | 2.2 mg/L | | Total Phosphorus | 2.0 mg/L | | ¹Monitoring for metals (arsenic, chromium and copper) is not required for wood preserving facilities using only oil-based preservatives. | | | ²Benchmark monitoring waivers are available to facilities utilizing mulch dye or colorant products that do not contain the specified parameters provided that (i) monitoring from samples collected during one monitoring period demonstrates that the specific parameter in question is below the quantitation level; (ii) a waiver request with attached laboratory certificate of analysis is submitted to and approved by the department; and (iii) a certification statement is submitted to the department annually that the facility does not use mulch dyeing products that contain any of the specifically waived parameters. Approved benchmark monitoring waivers shall be kept with the SWPPP. | |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-100 Sector B - Paper and allied products manufacturing

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities generally classified as paperboard mills, SIC Code 2631.

B. Benchmark monitoring and reporting requirements. Paperboard mills are required to monitor their stormwater discharges for the pollutant of concern listed in Table 100.

| Table 100 Sector B – Benchmark Monitoring Requirements. | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Paperboard Mills (SIC Code 2631) | | | Biochemical Oxygen Demand (BOD₅) | 30 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123 and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-110 Sector C - Chemical and allied products manufacturing

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities engaged in manufacturing the following products and generally described by the SIC code shown:

1. Industrial inorganic chemicals (including SIC Codes 2812-2819);

2. Plastic materials and synthetic resins, synthetic rubbers, and cellulosic and other synthetic fibers, except glass (including SIC Codes 2821-2824);

3. Soap and other detergents, including facilities producing glycerin from vegetable and animal fats and oils; specialty cleaning, polishing, and sanitation preparations; surface active preparations used as emulsifiers, wetting agents, and finishing agents, including sulfonated oils; and perfumes, cosmetics, and other toilet preparations (including SIC Codes 2841-2844); and

4. Nitrogenous and phosphatic basic fertilizers, mixed fertilizer, pesticides, and other agricultural chemicals (SIC Codes 2873-2879). Composting Facilities (SIC Code 2875) are included.

B. Numeric effluent limitations. The following numeric effluent limitations shall be met by existing and new discharges with phosphate fertilizer manufacturing runoff. The provisions of this subsection are applicable to stormwater discharges from the phosphate subcategory of the fertilizer manufacturing point source category (40 CFR 418.10). The term contaminated stormwater runoff shall mean precipitation runoff that during manufacturing or processing comes into contact with any raw materials, intermediate product, finished product, byproducts, or waste product. The concentration of pollutants in stormwater discharges shall not exceed the effluent limitations in Table 110-1.

| Table 110-1 Sector C – Numeric Effluent Limitations | | | | --- | --- | --- | | Parameter | Effluent Limitations | | | Daily Maximum | 30-day Average | | | Phosphate Subcategory of the Fertilizer Manufacturing Point Source Category (40 CFR 418.10) - applies to precipitation runoff that, during manufacturing or processing, comes into contact with any raw materials, intermediate product, finished product, byproducts, or waste product (SIC Code 2874) | | | | Total Phosphorus (as P) | 105 mg/L | 35 mg/L | | Fluoride | 75 mg/L | 25 mg/L |

C. Benchmark monitoring and reporting requirements. Agricultural chemical manufacturing facilities; industrial inorganic chemical facilities; soaps, detergents, cosmetics, and perfume manufacturing facilities; and plastics, synthetics, and resin manufacturing facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 110-2.

| Table 110-2 Sector C – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Agricultural Chemicals (SIC Codes 2873-2879) | | | Total Nitrogen | 2.2 mg/L | | | | | Total Recoverable Zinc | 120 μg/L | | Total Phosphorus | 2.0 mg/L | | Industrial Inorganic Chemicals (SIC Codes 2812-2819) | | | Total Recoverable Aluminum | 1,100 μg/L | | | | | Total Nitrogen | 2.2 mg/L | | Soaps, Detergents, Cosmetics, and Perfumes (SIC Codes 2841-2844) | | | Total Nitrogen | 2.2 mg/L | | Total Recoverable Zinc | 120 μg/L | | Plastics, Synthetics, and Resins (SIC Codes 2821-2824) | | | Total Recoverable Zinc | 120 μg/L | | Composting Facilities (SIC Code 2875) | | | Total Suspended Solids (TSS) | 100 mg/L | | Biochemical Oxygen Demand (BOD₅) | 30 mg/L | | Chemical Oxygen Demand (COD) | 120 mg/L | | Ammonia | 2.14 mg/L | | Total Nitrogen | 2.2 mg/L | | Total Phosphorus | 2.0 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-120 Sector D - Asphalt paving and roofing materials and lubricant manufacturers

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities engaged in the following activities: manufacturing asphalt paving and roofing materials, including those facilities commonly identified by SIC Codes 2951 and 2952; portable asphalt plants (also commonly identified by SIC Code 2951); and manufacturing miscellaneous products of petroleum and coal, including those facilities classified as SIC Code 2992 and 2999.

B. Limitations on coverage. The following stormwater discharges associated with industrial activity are not authorized by this section of the permit:

1. Stormwater discharges from petroleum refining facilities, including those that manufacture asphalt or asphalt products, that are subject to effluent limitation guidelines for the Petroleum Refining Point Source Category (40 CFR 419);

2. Stormwater discharges from oil recycling facilities; and

3. Stormwater discharges associated with fats and oils rendering.

C. Numeric effluent limitations. In addition to the numeric effluent limitations listed in Part I A c, discharges from areas where production of asphalt paving and roofing emulsions occurs may not exceed the limitations in Table 120-1.

| Table 120-1 Sector D – Numeric Effluent Limitations | | | | --- | --- | --- | | Parameter | Effluent Limitations | | | Daily Maximum | 30-day Average | | | Discharges from areas where production of asphalt paving and roofing emulsions occurs (SIC 2951, 2952) | | | | Total Suspended Solids (TSS) | 23 mg/L | 15 mg/L | | Oil and Grease | 15 mg/L | 10 mg/L | | pH | 6.0 - 9.0 s.u. | |

D. Benchmark monitoring and reporting requirements. Asphalt paving and roofing materials manufacturing facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 120-2.

| Table 120-2 Sector D – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Asphalt Paving and Roofing Materials (SIC 2951, 2952) | | | Total Suspended Solids (TSS) | 100 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014.

9VAC25-151-130 Sector E - Clay, cement, concrete, and gypsum products

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities generally classified under SIC Codes 3251-3259, 3261-3269, 3274, and 3275 that are engaged in either manufacturing the following products or performing the following activities: structural clay products including tile and brick; pottery and porcelain electrical supplies; and concrete, plaster, and gypsum products.

Concrete block and brick facilities (SIC Code 3271), concrete products facilities, except block and brick (SIC Code 3272), and ready-mixed concrete facilities (SIC Code 3273) are not covered by this permit.

B. Stormwater controls. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items:

1. Facilities shall prevent or minimize the discharge of spilled cement; aggregate (including sand or gravel); kiln dust; fly ash; settled dust; and other significant materials in stormwater from paved portions of the site that are exposed to stormwater. Measures used to minimize the presence of these materials may include regular sweeping, or other equivalent measures. The SWPPP shall indicate the frequency of sweeping or equivalent measures. The frequency shall be determined based on consideration of the amount of industrial activity occurring in the area and frequency of precipitation, but shall not be less than once per week if cement, aggregate, kiln dust, fly ash, or settled dust are being handled or processed.

2. Facilities shall prevent the exposure of fine granular solids ( e.g., cement, fly ash, and kiln dust) to stormwater. Where practicable, these materials shall be stored in enclosed silos or hoppers, buildings, or under other covering.

C. Numeric effluent limitations. The following numeric effluent limitations shall be met by facilities with cement manufacturing and material storage runoff. Any discharge composed of runoff from the storage of materials, including raw materials, intermediate products, finished products, and waste materials from the manufacture of cement, shall not exceed the limitations in Table 130-1. Runoff from the storage piles shall not be diluted with other stormwater runoff or flows to meet these limitations. Any untreated overflow from facilities designed, constructed, and operated to treat the volume of material storage pile runoff that is associated with a 10-year, 24-hour rainfall event shall not be subject to the TSS or pH limitations.

| Table 130-1 Sector E – Numeric Effluent Limitations | | | | --- | --- | --- | | Parameter | Effluent Limitations | | | Daily Maximum | 30-day Average | | | Cement Manufacturing Facility, Material Storage Runoff: Any discharge composed of runoff that derives from the storage of materials including raw materials, intermediate products, finished products, and waste materials that are used in or derived from the manufacture of cement. | | | | Total Suspended Solids (TSS) | 50 mg/L | | | pH | 6.0 - 9.0 s.u. | |

D. Benchmark monitoring and reporting requirements. Clay product manufacturers (SIC Codes 3251-3259, SIC Codes 3261-3269) and lime and gypsum product manufacturers (SIC Codes 3274, 3275) are required to monitor their stormwater discharges for the pollutants of concern listed in Table 130-2.

| Table 130-2 Sector E – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Clay Product Manufacturers (SIC Codes 3251-3259, 3261-3269) | | | Total Recoverable Aluminum | 1,100 ug/L | | Lime and Gypsum Product Manufacturers (SIC Codes 3274, 3275) | | | Total Suspended Solids (TSS) | 100 mg/L | | pH | 6.0 - 9.0 s.u. | | | |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-140 Sector F - Primary metals

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from the following types of facilities in the primary metal industry, and generally described by the SIC codes shown:

1. Steel works, blast furnaces, and rolling and finishing mills, including steel wire drawing and steel nails and spikes; cold-rolled steel sheet, strip, and bars; and steel pipes and tubes (SIC Codes 3312-3317).

2. Iron and steel foundries, including gray and ductile iron, malleable iron, steel investment, and steel foundries not elsewhere classified (SIC Codes 3321-3325).

3. Rolling, drawing, and extruding of nonferrous metals, including rolling, drawing, and extruding of copper; rolling, drawing, and extruding of nonferrous metals except copper and aluminum; and drawing and insulating of nonferrous wire (SIC Codes 3351-3357).

4. Nonferrous foundries (castings), including aluminum die-castings, nonferrous die-castings, except aluminum, aluminum foundries, copper foundries, and nonferrous foundries, except copper and aluminum (SIC Codes 3363-3369).

B. Benchmark monitoring and reporting requirements. Primary metals facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 140.

| Table 140 Sector F – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Steel Works, Blast Furnaces, and Rolling and Finishing Mills (SIC Codes 3312-3317) | | | Total Recoverable Aluminum | 1,100 μg/L | | Total Recoverable Zinc | 120 μg/L | | Iron and Steel Foundries (SIC Codes 3321-3325) | | | Total Recoverable Aluminum | 1,100 μg/L | | Total Suspended Solids (TSS) | 100 mg/L | | Total Recoverable Copper | 13 μg/L | | | | | Total Recoverable Zinc | 120 μg/L | | Rolling, Drawing, and Extruding of Nonferrous Metals (SIC Codes 3351-3357) | | | Total Recoverable Copper | 13 μg/L | | Total Recoverable Zinc | 120 μg/L | | Nonferrous Foundries (SIC Codes 3363-3369) | | | Total Recoverable Copper | 13 μg/L | | Total Recoverable Zinc | 120 μg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 21, Issue 2, eff. November 3, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-150 Sector G - Metal mining (ore mining and dressing)

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from active, temporarily inactive, and inactive metal mining and ore dressing facilities including mines abandoned on federal lands, as classified under SIC Major Group 10. Coverage is required for facilities that discharge stormwater that has come into contact with, or is contaminated by, any overburden, raw material, intermediate product, finished product, byproduct, or waste product located on the site of the operation. SIC Major Group 10 includes establishments primarily engaged in mining of ores, developing mines, or exploring for metallic minerals (ores) and also includes ore dressing and beneficiating operations, whether performed at colocated, dedicated mills or at separate mills, (e.g., custom mills). For the purposes of this section, the term "metal mining" includes any of the separate activities listed in this subsection. Covered discharges include:

1. All stormwater discharges from inactive facilities;

2. Stormwater discharges from the following areas of active and temporarily inactive metal mining facilities: waste rock and overburden piles if composed entirely of stormwater and not combining with mine drainage; topsoil piles; off-site haul and access roads; on-site haul and access roads constructed of waste rock and overburden if composed entirely of stormwater and not combining with mine drainage; on-site haul and access roads not constructed of waste rock, overburden, or spent ore except if mine drainage is used for dust control; runoff from tailings dams and dikes when not constructed of waste rock or tailings and no process fluids are present; runoff from tailings dams or dikes when constructed of waste rock or tailings and no process fluids are present if composed entirely of stormwater and not combining with mine drainage; concentration building if no contact with material piles; mill site if no contact with material piles; office or administrative building and housing if mixed with stormwater from industrial area; chemical storage area; docking facility if no excessive contact with waste product that would otherwise constitute mine drainage; explosive storage; fuel storage; vehicle and equipment maintenance area and building; parking areas (if necessary); power plant; truck wash areas if no excessive contact with waste product that would otherwise constitute mine drainage; unreclaimed, disturbed areas outside of active mining area; reclaimed areas released from reclamation bonds before December 17, 1990; and partially or inadequately reclaimed areas or areas not released from reclamation bonds;

3. Stormwater discharges from exploration and development of metal mining and ore dressing facilities; and

4. Stormwater discharges from facilities at mining sites undergoing reclamation.

B. Limitations on coverage. Stormwater discharges from active metal mining facilities that are subject to the effluent limitation guidelines for the Ore Mining and Dressing Point Source Category (40 CFR Part 440) are not authorized by this permit.

Discharges that come in contact with overburden and waste rock are subject to 40 CFR Part 440, providing: the discharges drain to a point source (either naturally or as a result of intentional diversion), and they combine with mine drainage that is otherwise regulated under 40 CFR Part 440. Discharges from overburden and waste rock can be covered under this permit if they are composed entirely of stormwater and do not combine with sources of mine drainage that are subject to 40 CFR Part 440.

C. Special Conditions. Prohibition of nonstormwater discharges. In addition to the general prohibition of nonstormwater discharges in Part I B 1, the following discharge is not covered by this permit: adit drainage. Contaminated seeps and springs discharging from waste rock dumps that do not directly result from precipitation events are also not authorized by this permit.

D. Special definitions. The following definitions are not intended to supersede the definitions of active and inactive mining facilities established by 40 CFR 122.26(b)(14)(iii), and are only for this section of the general permit:

"Active metal mining facility" means a place where work or other related activity to the extraction, removal, or recovery of metal ore is being conducted. For surface mines, this definition does not include any land where grading has returned the earth to a desired contour and reclamation has begun.

"Active phase" means activities including the extraction, removal, or recovery of metal ore. For surface mines, this definition does not include any land where grading has returned the earth to a desired contour and reclamation has begun.

"Construction phase" means the building of site access roads and removal of overburden and waste rock to expose mineable minerals. The construction phase is not considered part of "mining operations."

"Exploration phase" means exploration and land disturbance activities to determine the financial viability of a site. The exploration phase is not considered part of "mining operations."

"Final stabilization" means a site or portion of a site where all applicable federal and state reclamation requirements have been implemented.

"Inactive metal mining facility" means a site or portion of a site where metal mining or milling occurred in the past but is not an active facility as defined in this permit, and where the inactive portion is not covered by an active mining permit issued by the applicable federal or state agency. An inactive metal mining facility has an identifiable owner or operator. Sites where mining claims are being maintained before disturbances associated with the extraction, beneficiation, or processing of mined materials and sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim are not considered either active or inactive mining facilities and do not require a VPDES industrial stormwater permit.

"Mining operation" means the active and temporarily inactive phases and the reclamation phase, but excludes the exploration and construction phases.

"Reclamation phase" means activities undertaken, in compliance with applicable mined land reclamation requirements, following the cessation of the "active phase," intended to return the land to an appropriate post-mining land use in order to meet applicable federal and state reclamation requirements. The reclamation phase is considered part of "mining operations."

"Temporarily inactive metal mining facility" means a site or portion of a site where metal mining or milling occurred in the past but currently are not being actively undertaken, and the facility is covered by an active mining permit issued by the applicable federal or state agency.

E. Clearing, grading, and excavation activities. Clearing, grading, and excavation activities being conducted as part of the exploration and construction phase of mining activities are covered under this permit.

1. Management practices for clearing, grading, and excavation activities.

a. Selecting and installing control measures. A combination of erosion and sedimentation control measures are required to achieve maximum pollutant prevention and removal. All control measures shall be properly selected, installed, and maintained in accordance with any relevant manufacturer specifications and good engineering practices.

b. Good housekeeping. Litter, debris, and chemicals shall be prevented from becoming a pollutant source in stormwater discharges.

c. Retention and detention of stormwater runoff. For drainage locations serving more than one acre, sediment basins or temporary sediment traps should be used. At a minimum, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries (and for those side slope boundaries deemed appropriate as dictated by individual site conditions) of the development area unless a sediment basin providing storage for a calculated volume of runoff from a two-year, 24-hour storm or 3,600 cubic feet of storage per acre drained is provided. Sediment shall be removed from sediment traps or sedimentation ponds when the design capacity has been reduced by 50%.

d. Temporary stabilization of disturbed areas. Stabilization measures shall be initiated immediately in portions of the site where development activities have temporarily ceased, but in no case more than 14 days after the clearing, grading, and excavation activities in that portion of the site have temporarily ceased. In arid, semi-arid, and drought-stricken areas, or in areas subject to snow or freezing conditions, where initiating perennial vegetative stabilization measures is not possible within 14 days after mining, exploration, or construction activity has temporarily ceased, final temporary vegetative stabilization measures shall be initiated as soon as practicable. Until temporary vegetative stabilization is achieved, interim measures (i.e., erosion control blankets with an appropriate seed base and tackifiers) shall be used. In areas of the site where exploration or construction has permanently ceased before active mining, temporary stabilization measures shall be implemented to minimize mobilization of sediment or other pollutants until the active mining phase begins.

2. Requirements for inspection of clearing, grading, and excavation activities.

a. Inspection frequency. Inspections shall be conducted at least once every seven calendar days or at least once every 14 calendar days and within 24 hours of the end of a storm event of 0.5 inches or greater. Inspection frequency may be reduced to at least once every month if the entire site is temporarily stabilized, if runoff is unlikely due to winter (e.g., site is covered with snow or ice) or frozen conditions, or construction is occurring during seasonal dry periods in arid areas and semi-arid areas.

b. Location of inspections. Inspections shall include all areas of the site disturbed by clearing, grading, and excavation activities and areas used for storage of materials that are exposed to precipitation. Sedimentation and erosion control measures identified in the SWPPP shall be observed to ensure proper operation. Discharge locations shall be inspected to determine whether erosion control measures are effective in preventing significant impacts to surface waters, where accessible. Where discharge locations are inaccessible, nearby downstream locations shall be inspected to the extent that inspections are practicable. Locations where vehicles enter or exit the site shall be inspected for evidence of off-site sediment tracking.

c. Inspection reports. For each inspection required in this subsection, an inspection report shall be completed. At a minimum, the inspection report shall include:

(1) The inspection date;

(2) Names, titles, and qualifications of staff making the inspection;

(3) Weather information for the period since the last inspection (or note if it is the first inspection) including a best estimate of the beginning of each storm event, duration of each storm event, approximate amount of rainfall for each storm event (in inches), and whether any discharges occurred;

(4) Weather information and a description of any discharges occurring at the time of the inspection;

(5) Locations of discharges of sediment or other pollutants from the site;

(6) Locations of control measures that need to be maintained;

(7) Locations of control measures that failed to operate as designed or proved inadequate for a particular location;

(8) Locations where additional control measures are needed that did not exist at the time of inspection; and

(9) Corrective actions required, including any changes to the SWPPP necessary and implementation dates.

A record of each inspection and of any actions taken in accordance with this section shall be retained as part of the SWPPP for at least three years from the date that permit coverage expires or is terminated. The inspection reports shall identify any incidents of noncompliance with the permit conditions. Where a report does not identify any incidents of noncompliance, the report shall contain a certification that the clearing, grading, and excavation activities are in compliance with the SWPPP and this permit.

3. Requirements for cessation of clearing, grading, and excavation activities.

a. Inspections and maintenance. Inspections and maintenance of control measures, including BMPs, associated with clearing, grading, and excavation activities being conducted as part of the exploration and construction phase of a mining operation shall continue until final stabilization has been achieved on all portions of the disturbed area, or until the commencement of the active mining phase for those areas that have been temporarily stabilized as a precursor to mining.

b. Final stabilization. Stabilization measures shall be initiated immediately in portions of the site where exploration or construction activities have permanently ceased, but in no case more than 14 days after the exploration or construction activity in that portion of the site has permanently ceased. In arid, semi-arid, and drought-stricken areas, or in areas subject to snow or freezing conditions, where initiating perennial vegetative stabilization measures is not possible within 14 days after exploration or construction activity has permanently ceased, final vegetative stabilization measures shall be initiated as soon as possible. Until final stabilization is achieved temporary stabilization measures (e.g., erosion control blankets with an appropriate seed base and tackifiers) shall be used.

F. SWPPP requirements for active, inactive, and temporarily inactive metal mining facilities and sites undergoing reclamation. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Activities at the facility. A description of the mining and associated activities taking place at the site that can potentially affect stormwater discharges covered by this permit. The description shall include a general description of the location of the site relative to major transportation routes and communities.

b. Site map. The site map shall identify the locations of the following, as appropriate: mining and milling site boundaries; access and haul roads; an outline of the drainage areas of each stormwater outfall within the facility, and an indication of the types of discharges from the drainage areas; locations of all permitted discharges covered under an individual VPDES permit; outdoor equipment storage, fueling, and maintenance areas; materials handling areas; outdoor manufacturing, storage or material disposal areas; outdoor storage areas for chemicals and explosives; areas used for storage of overburden, materials, soils, or wastes; location of mine drainage (where water leaves mine) or any other process water; tailings piles and ponds, both proposed and existing; heap leach pads; points of discharge from the property for mine drainage and process water; surface waters; boundary of tributary areas that are subject to effluent limitations guidelines; and locations of reclaimed areas.

2. Summary of potential pollutant sources. For each area of the mine or mill site where stormwater discharges associated with industrial activities occur, the SWPPP shall identify the types of pollutants likely to be present in significant amounts (e.g., heavy metals, sediment). The following factors shall be considered: the mineralogy of the ore and waste rock (e.g., acid forming); toxicity and quantity of chemicals used, produced or discharged; the likelihood of contact with stormwater; vegetation of site, if any; and history of significant leaks and spills of toxic or hazardous pollutants. A summary of any existing ore or waste rock and overburden characterization data and test results for potential generation of acid rock shall also be included. If the ore or waste rock and overburden characterization data are updated due to a change in the ore type being mined, the SWPPP shall be updated with the new data.

3. Stormwater controls.

a. Routine facility inspections. Except for areas subject to clearing, grading, and excavation activities subject to subdivision E 2 of this section, sites shall be inspected at least quarterly unless adverse weather conditions make the site inaccessible. The requirement for routine facility inspections is waived for facilities that have maintained an active VEEP E3/E4 status.

b. Employee training. Employee training shall be conducted at least annually at active mining and temporarily inactive sites. All employee training shall be documented in the SWPPP.

c. Structural control measures. In addition to the control measures required by Part III B 4, each of the following control measures shall be documented in the SWPPP. The potential pollutants identified in subdivision 2 of this subsection shall determine the priority and appropriateness of the control measures selected. If control measures are implemented or planned but are not listed here (e.g., substituting a less toxic chemical for a more toxic one), descriptions of them shall be included in the SWPPP.

(1) Stormwater diversion. A description of how and where stormwater will be diverted away from potential pollutant sources to prevent stormwater contamination. Control measures shall include one or more of the following:

(a) Interceptor dikes and swales;

(b) Diversion dikes, curbs, and berms;

(c) Pipe slope drains;

(d) Subsurface drains;

(e) Drainage and stormwater conveyance systems; or

(f) Equivalent measures.

(2) Capping. When capping of a contaminant source is necessary, the source being capped and materials and procedures used to cap the contaminant source shall be identified.

(3) Treatment. If treatment of a stormwater discharge is necessary to protect water quality, include a description of the type and location of stormwater treatment that will be used. Stormwater treatments include the following: chemical or physical systems, oil and water separators, artificial wetlands, etc. The permittee is encouraged to use both passive andactive treatment of stormwater runoff. Treated runoff may be discharged as a stormwater source regulated under this permit provided the discharge is not combined with discharges subject to effluent limitation guidelines for the Ore Mining and Dressing Point Source Category (40 CFR Part 440).

(4) Certification of discharge testing. The permittee shall test or evaluate all outfalls covered under this permit for the presence of specific mining-related nonstormwater discharges (e.g., seeps or discharges subject to effluent limitations guidelines (e.g., 40 CFR Part 440), such as mine drainage or process water). The permittee may certify in the SWPPP that a particular discharge composed of commingled stormwater and nonstormwater is covered under a separate VPDES permit; and that permit subjects the nonstormwater portion to effluent limitations before any commingling. This certification shall identify the nonstormwater discharges, the applicable VPDES permits, the effluent limitations placed on the nonstormwater discharge by the permits, and the points at which the limitations are applied.

G. Termination of permit coverage.

1. Termination of permit coverage for sites reclaimed after December 17, 1990. A site or a portion of a site that has been released from applicable state or federal reclamation requirements after December 17, 1990, is no longer required to maintain coverage under this permit. If the site or portion of a site reclaimed after December 17, 1990, was not subject to reclamation requirements, the site or portion of the site is no longer required to maintain coverage under this permit if the site or portion of the site has been reclaimed as defined in subdivision 2 of this subsection.

2. Termination of permit coverage for sites reclaimed before December 17, 1990. A site or portion of a site that was released from applicable state or federal reclamation requirements before December 17, 1990, or that was otherwise reclaimed before December 17, 1990, is no longer required to maintain coverage under this permit if the site or portion of the site has been reclaimed. A site or portion of a site is considered to have been reclaimed if (i) stormwater runoff that comes into contact with raw materials, intermediate byproducts, finished products, and waste products does not have the potential to cause or contribute to violations of state water quality standards; (ii) soil-disturbing activities related to mining at the sites or portion of the site have been completed; (iii) the site or portion of the site has been stabilized to minimize soil erosion; and (iv) as appropriate depending on location, size, and the potential to contribute pollutants to stormwater discharges, the site or portion of the site has been revegetated, will be amenable to natural revegetation, or will be left in a condition consistent with the post-mining land use.

H. Inactive and unstaffed sites. Permittees in Sector G seeking to exercise a waiver from the quarterly visual monitoring and routine facility inspection requirements for inactive and unstaffed sites (including temporarily inactive sites) are conditionally exempt from the requirement to certify that "there are no industrial materials or activities exposed to stormwater" in Part I A 4.

This exemption is conditioned on the following:

1. If circumstances change and the facility becomes active or staffed, this exception no longer applies and the permittee shall immediately begin complying with the quarterly visual assessment and routine facility inspection requirements; and

2. The department retains the authority to revoke this exemption and the monitoring waiver when it is determined that the discharge causes, has a reasonable potential to cause, or contributes to an instream excursion above an applicable water quality standard, including designated uses.

Subject to the two conditions in subdivisions 1 and 2 of this subsection, if a facility is inactive and unstaffed, the permittee is waived from the requirement to conduct quarterly visual monitoring and routine facility inspections. The permittee is not waived from conducting at least one routine facility inspection per calendar year. The department encourages the permittee to inspect the site more frequently when there is reason to believe that severe weather or natural disasters may have damaged control measures.

I. Benchmark monitoring and reporting requirements. There are no benchmark monitoring requirements for inactive and unstaffed sites that have received a waiver in accordance with Part I A 4 (Inactive and unstaffed sites).

1. Copper ore mining and dressing facilities. Active copper ore mining and dressing facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 150-1.

2. Discharges from waste rock and overburden piles at active sites. Discharges from waste rock and overburden piles at active sites shall be analyzed for the parameters listed in Table 150-2. Facilities shall also monitor for the parameters listed in Table 150-3. The director may also notify the facility that additional monitoring must be performed to accurately characterize the quality and quantity of pollutants discharged from the waste rock or overburden piles.

| Table 150-1 Sector G – Benchmark Monitoring Requirements - Copper Ore Mining and Dressing Facilities | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Active Copper Ore Mining and Dressing Facilities (SIC Code 1021) | | | Total Suspended Solids (TSS) | 100 mg/L |

| Table 150-2 Sector G – Benchmark Monitoring Requirements - Discharges from Waste Rock and Overburden Piles from Active Ore Mining or Dressing Facilities | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Iron Ores; Copper Ores; Lead and Zinc Ores; Gold and Silver Ores; Ferroalloy Ores Except Vanadium; Miscellaneous Metal Ores (SIC Codes 1011, 1021, 1031, 1041, 1044, 1061, 1081, 1094, 1099) | | | Total Suspended Solids (TSS) | 100 mg/L | | Turbidity (NTUs) | 50 NTU | | pH | 6.0 - 9.0 s.u. | | Hardness (as CaCO₃) | no benchmark value | | Total Recoverable Antimony | 640 μg/L | | Total Recoverable Arsenic | 150 μg/L | | Total Recoverable Beryllium | 130 μg/L | | Total Recoverable Cadmium | 1.8 μg/L | | Total Recoverable Copper | 13 μg/L | | | | | Total Recoverable Lead | 82 μg/L | | Total Recoverable Mercury | 1.4 μg/L | | Total Recoverable Nickel | 470 μg/L | | Total Recoverable Selenium | 5.0 μg/L | | Total Recoverable Silver | 3.2 μg/L | | Total Recoverable Zinc | 120 μg/L |

| Table 150-3 Sector G – Additional Monitoring Requirements for Discharges from Waste Rock and Overburden Piles from Active Ore Mining or Dressing Facilities | | | | | --- | --- | --- | --- | | Type of Ore Mined | Pollutants of Concern | | | | TSS (mg/L) | pH | Metals, Total Recoverable | | | Tungsten Ore | X | X | Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc (H). | | Nickel Ore | X | X | Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc (H). | | Aluminum Ore | X | X | | | Mercury Ore | X | X | Nickel (H). | | Iron Ore | X | X | | | Platinum Ore | | | Cadmium (H), Copper (H), Mercury, Lead (H), Zinc (H). | | Titanium Ore | X | X | Nickel (H), Zinc (H). | | Vanadium Ore | X | X | Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc (H). | | Copper, Lead, Zinc, Gold, Silver and Molybdenum | X | X | Arsenic, Cadmium (H), Copper (H), Lead (H), Mercury, Zinc (H). | | Uranium, Radium and Vanadium | X | X | Chemical Oxygen Demand, Arsenic, Radium (Dissolved and Total Recoverable), Uranium, Zinc (H). | | Note: (H) indicates that hardness shall also be measured when this pollutant is measured. | | | |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 21, Issue 2, eff. November 3, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-160 Sector H - Coal mines and coal mining-related facilities

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from coal mining-related areas (SIC Major Group 12) if (i) they are not subject to effluent limitations guidelines under 40 CFR Part 434 or (ii) they are not subject to the standards of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 USC § 1201 et seq.) and the Virginia Department of Mines, Minerals and Energy's individual permit requirements.

The requirements of this section shall apply to stormwater discharges from coal mining-related activities exempt from SMCRA, including the public financed exemption, the 16-2/3% exemption, the private use exemption, the under 250 tons exemption, the nonincidental tipple exemption, and the exemption for coal piles and preparation plants associated with the end user. Stormwater discharges from the following portions of eligible coal mines and coal mining related facilities may be eligible for this permit: haul roads (nonpublic roads on which coal or coal refuse is conveyed), access roads (nonpublic roads providing light vehicular traffic within the facility property and to public roadways), railroad spurs, sidings, and internal haulage lines (rail lines used for hauling coal within the facility property and to off-site commercial railroad lines or loading areas); conveyor belts, chutes, and aerial tramway haulage areas (areas under and around coal or refuse conveyor areas, including transfer stations); and equipment storage and maintenance yards, coal handling buildings and structures, coal tipples, coal loading facilities, and inactive coal mines and related areas (abandoned and other inactive mines, refuse disposal sites, and other mining-related areas).

B. Special conditions. Prohibition of nonstormwater discharges. In addition to the general prohibition of nonstormwater discharges in Part I B 1, the following discharges are not covered by this permit: discharges from pollutant seeps or underground drainage from inactive coal mines and refuse disposal areas that do not result from precipitation events and discharges from floor drains in maintenance buildings and other similar drains in mining and preparation plant areas.

C. SWPPP requirements. In addition to the requirements of Part III, the SWPPP shall include at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation or surface runoff:

(1) Haul and access roads;

(2) Railroad spurs, sliding, and internal hauling lines;

(3) Conveyor belts, chutes, and aerial tramways;

(4) Equipment storage and maintenance yards;

(5) Coal handling buildings and structures;

(6) Inactive mines and related areas;

(7) Acidic spoil, refuse or unreclaimed disturbed areas; and

(8) Liquid storage tanks containing pollutants (e.g., caustics, hydraulic fluids, and lubricants).

b. Summary of potential pollutant sources. A description of the potential pollutant sources from the following activities: truck traffic on haul roads and resulting generation of sediment subject to runoff and dust generation; fuel or other liquid storage; pressure lines containing slurry, hydraulic fluid, or other potential harmful liquids; and loading or temporary storage of acidic refuse or spoil.

2. Stormwater controls.

a. Good housekeeping. As part of the facility's good housekeeping program required by Part III B 4 b (1), the permittee shall consider the following: using sweepers, covered storage, and watering of haul roads to minimize dust generation; and conservation of vegetation (where possible) to minimize erosion.

b. Preventive maintenance. The permittee shall also perform inspections of storage tanks and pressure lines for fuels, lubricants, hydraulic fluid, or slurry to prevent leaks due to deterioration or faulty connections; or other equivalent measures.

c. Routine facility inspections. Sites shall be inspected at least quarterly unless adverse weather conditions make the site inaccessible. The requirement for routine facility inspections is waived for facilities that have maintained an active VEEP E3/E4 status.

D. Inactive and unstaffed sites. Permittees in Sector H seeking to exercise a waiver from the quarterly visual monitoring and routine facility inspection requirements for inactive and unstaffed sites (including temporarily inactive sites) are conditionally exempt from the requirement to certify that "there are no industrial materials or activities exposed to stormwater" in Part I A 4.

This exemption is conditioned on the following:

1. If circumstances change and the facility becomes active or staffed, this exception no longer applies and the permittee shall immediately begin complying with the quarterly visual monitoring requirements and routine facility inspection requirements; and

2. The department retains the authority to revoke this exemption and the monitoring waiver when it is determined that the discharge causes, has a reasonable potential to cause, or contributes to an instream excursion above an applicable water quality standard, including designated uses.

Subject to the two conditions in subdivisions 1 and 2 of this subsection, if a facility is inactive and unstaffed, the permittee is waived from the requirement to conduct quarterly visual monitoring and routine facility inspections. The permittee is not waived from conducting a minimum of one annual site inspection. The department encourages the permittee to inspect the site more frequently when there is reason to believe that severe weather or natural disasters may have damaged control measures.

E. Benchmark monitoring and reporting requirements. Coal mining facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 160. There are no benchmark monitoring requirements for inactive and unstaffed sites that have received a waiver in accordance with Part I A 4 (Inactive and unstaffed sites).

| Table 160 Sector H - Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Coal Mines and Related Areas (SIC Codes 1221-1241) | | | Total Recoverable Aluminum | 1,100 μg/L | | | | | Total Suspended Solids (TSS) | 100 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 21, Issue 2, eff. November 3, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-170 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-180 Sector K - Hazardous waste treatment, storage, or disposal facilities

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities that treat, store, or dispose of hazardous wastes, including those that are operating under interim status or a permit under Subtitle C of the Resource Conservation and Recovery Act (RCRA) (Industrial Activity Code "HZ"). Disposal facilities that have been properly closed and capped, or clean closed, and have no significant materials exposed to stormwater, do not require this permit.

B. Special conditions. Prohibition of nonstormwater discharges. In addition to the general prohibition of nonstormwater discharges in Part I B 1, the following discharges are not covered by this permit: leachate, gas collection condensate, drained free liquids, contaminated groundwater, laboratory-derived wastewater and contact washwater from washing truck, equipment, and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

C. Definitions.

"Contaminated stormwater" means stormwater that comes in direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater as defined in this section. Some specific areas of a landfill that may produce contaminated stormwater include the open face of an active landfill with exposed waste (no cover added); the areas around wastewater treatment operations; trucks, equipment, or machinery that has been in direct contact with the waste; and waste dumping areas.

"Drained free liquids" means aqueous wastes drained from waste containers (e.g., drums, etc.) before landfilling.

"Landfill" means an area of land or an excavation in which wastes are placed for permanent disposal, that is not a land application or land treatment unit, surface impoundment, underground injection well, waste pile, salt dome formation, a salt bed formation, an underground mine, or a cave as these terms are defined in 40 CFR 257.2, 40 CFR 258.2 and 40 CFR 260.10.

"Landfill wastewater," as defined in 40 CFR Part 445 (Landfills Point Source Category), means all wastewater associated with, or produced by, landfilling activities except for sanitary wastewater, noncontaminated stormwater, contaminated groundwater, and wastewater from recovery pumping wells. Landfill wastewater includes leachate, gas collection condensate, drained free liquids, laboratory derived wastewater, contaminated stormwater, and contact washwater from washing truck, equipment, and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

"Leachate" means liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste.

"Noncontaminated stormwater" means stormwater that does not come into direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater as defined. Noncontaminated stormwater includes stormwater that flows off the cap, cover, intermediate cover, daily cover, or final cover of the landfill.

D. Numeric effluent limitations. As set forth at 40 CFR Part 445 Subpart A, the numeric limitations in Table 180-1 apply to contaminated stormwater discharges from hazardous waste landfills subject to the provisions of RCRA Subtitle C at 40 CFR Parts 264 (Subpart N) and 265 (Subpart N) except for any of the following facilities:

1. Landfills operated in conjunction with other industrial or commercial operations when the landfill only receives wastes generated by the industrial or commercial operation directly associated with the landfill;

2. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes generated by the industrial or commercial operation directly associated with the landfill and also receives other wastes provided the other wastes received for disposal are generated by a facility that is subject to the same provisions in 40 CFR Subchapter N as the industrial or commercial operation or the other wastes received are of similar nature to the wastes generated by the industrial or commercial operation;

3. Landfills operated in conjunction with centralized waste treatment (CWT) facilities subject to 40 CFR Part 437 so long as the CWT facility commingles the landfill wastewater with other nonlandfill wastewater for discharge. A landfill directly associated with a CWT facility is subject to this part if the CWT facility discharges landfill wastewater separately from other CWT wastewater or commingles the wastewater from its landfill only with wastewater from other landfills; or

4. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes from public service activities so long as the company owning the landfill does not receive a fee or other remuneration for the disposal service.

| Table 180-1 Sector K – Numeric Effluent Limitations | | | | --- | --- | --- | | Parameter | Effluent Limitations | | | Maximum Daily | Maximum Monthly Average | | | Hazardous Waste Treatment, Storage, or Disposal Facilities (Industrial Activity Code "HZ") Subject to the Provisions of 40 CFR Part 445 Subpart A. | | | | Biochemical Oxygen Demand (BOD₅) | 220 mg/L | 56 mg/L | | Total Suspended Solids (TSS) | 88 mg/L | 27 mg/L | | Ammonia | 10 mg/L | 4.9 mg/L | | Alpha Terpineol | 0.042 mg/L | 0.019 mg/L | | Aniline | 0.024 mg/L | 0.015 mg/L | | Benzoic Acid | 0.119 mg/L* | 0.073 mg/L | | Naphthalene | 0.059 mg/L | 0.022 mg/L | | p-Cresol | 0.024 mg/L | 0.015 mg/L | | Phenol | 0.048 mg/L | 0.029 mg/L | | Pyridine | 0.072 mg/L | 0.025 mg/L | | Arsenic (Total) | 1.1 mg/L | 0.54 mg/L | | Chromium (Total) | 1.1 mg/L | 0.46 mg/L | | Zinc (Total) | 0.535 mg/L* | 0.296 mg/L* | | pH | Within the range of 6.0 - 9.0 s.u. | | | *These effluent limitations are three significant digits for reporting purposes. | | |

E. Benchmark monitoring and reporting requirements. Permittees with hazardous waste treatment, storage, or disposal facilities (TSDFs) are required to monitor their stormwater discharges for the pollutants of concern listed in Table 180-2. These benchmark monitoring concentrations apply to stormwater discharges associated with industrial activity other than contaminated stormwater discharges from landfills subject to the numeric effluent limitations set forth in Table 180-1.

| Table 180-2 Sector K – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Hazardous Waste Treatment, Storage, or Disposal Facilities (Industrial Activity Code "HZ") | | | Total Kjeldahl Nitrogen (TKN) | 1.5 mg/L | | Total Suspended Solids (TSS) | 100 mg/L | | Total Organic Carbon (TOC) | 110 mg/L | | Total Recoverable Arsenic | 150 μg/L | | Total Recoverable Cadmium | 1.8 μg/L | | Total Cyanide | 22 μg/L | | Total Recoverable Lead | 82 μg/L | | | | | Total Recoverable Mercury | 1.4 μg/L | | Total Recoverable Selenium | 5.0 μg/L | | Total Recoverable Silver | 3.2 μg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 21, Issue 2, eff. November 3, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014 Errata 30:13 VA.R. 1761 February 24, 2014; amended, Virginia Register Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-190 Sector L - Landfills, land application sites and open dumps

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from waste disposal at landfills, land application sites, and open dumps that receive or have received industrial wastes (Industrial Activity Code "LF"), including sites subject to regulation under Subtitle D of the Resource Conservation and Recovery Act (RCRA). Landfills, land application sites, and open dumps that have stormwater discharges from other types of industrial activities (e.g., vehicle maintenance, truck washing, and recycling) may be subject to additional requirements specified elsewhere in this permit. This permit does not cover discharges from landfills that receive only municipal wastes. Landfills (including landfills in "post-closure care") that have been properly closed and capped in accordance with 9VAC20-81-160 and 9VAC20-81-170 and have no significant materials exposed to stormwater do not require this permit. Landfills closed in accordance with regulations or permits in effect before December 21, 1988, do not require this permit, unless significant materials are exposed to stormwater.

B. Special conditions. Prohibition of nonstormwater discharges. In addition to the general nonstormwater prohibition in Part I B 1, the following discharges are not covered by this permit: leachate, gas collection condensate, drained free liquids, contaminated ground water, laboratory wastewater, and contact washwater from washing truck, equipment, and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

C. Definitions.

"Contaminated stormwater" means stormwater that comes in direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater. Some areas of a landfill that may produce contaminated stormwater include the working face of an active landfill; the areas around wastewater treatment operations; trucks, equipment, or machinery that has been in direct contact with the waste; and waste dumping areas.

"Drained free liquids" means aqueous wastes drained from waste containers (e.g., drums, etc.) before landfilling.

"Landfill wastewater," as defined in 40 CFR Part 445 (Landfills Point Source Category), means all wastewater associated with, or produced by, landfilling activities except for sanitary wastewater, noncontaminated stormwater, contaminated groundwater, and wastewater from recovery pumping wells. Landfill wastewater includes leachate, gas collection condensate, drained free liquids, laboratory derived wastewater, contaminated stormwater, and contact washwater from washing truck, equipment, and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

"Leachate" means liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from the waste.

"Noncontaminated stormwater" means stormwater that does not come into direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater as defined. Noncontaminated stormwater includes stormwater that flows off the cap, intermediate cover, or final cover of the landfill.

"Open dump" means a site on which any solid waste is placed, discharged, deposited, injected, dumped, or spilled so as to present a threat of a release of harmful substances into the environment or present a hazard to human health. Such a site is subject to the open dump criteria in 9VAC20-81-45.

D. Stormwater controls. In addition to the requirements in Part III, the SWPPP shall include, at a minimum, the following items:

1. Preventive maintenance program. As part of the preventive maintenance program, the permittee shall maintain all elements of leachate collection and treatment systems to prevent commingling of leachate with stormwater and the integrity and effectiveness of any intermediate or final cover (including making repairs to the cover as necessary), to minimize the effects of settlement, sinking, and erosion.

2. Routine facility inspections.

a. Inspections of active sites. Operating landfills, open dumps, and land application sites shall be inspected at least once every seven days. Qualified staff shall inspect areas of landfills that have not yet been finally stabilized, active land application areas, areas used for storage of materials or wastes that are exposed to precipitation, stabilization and structural control measures, leachate collection and treatment systems, and locations where equipment and waste trucks enter and exit the site. Erosion and sediment control measures shall be observed to ensure they are operating correctly. For stabilized sites and areas where land application has been completed, inspections shall be conducted at least once every month.

b. Inspections of inactive sites. Inactive landfills, open dumps, and land application sites shall be inspected at least quarterly. Qualified staff shall inspect landfill (or open dump) stabilization and structural erosion control measures and leachate collection and treatment systems and all closed land application areas.

3. Recordkeeping and internal reporting procedures. Landfill and open dump owners shall provide for a tracking system for the types of wastes disposed of in each cell or trench of a landfill or open dump. Land application site owners shall track the types and quantities of wastes applied in specific areas.

4. Annual outfall evaluation for unauthorized discharges. The evaluation shall also be conducted for the presence of leachate and vehicle washwater.

5. Sediment and erosion control plan. Landfill and open dump owners shall provide for temporary stabilization of materials stockpiled for daily, intermediate, and final cover. Stabilization practices to consider include temporary seeding, mulching, and placing geotextiles on the inactive portions of the stockpiles. Landfill and open dump owners shall provide for temporary stabilization of inactive areas of the landfill or open dump that have an intermediate cover but no final cover. Landfill and open dump owners shall provide for temporary stabilization of any landfill or open dumping areas that have received a final cover until vegetation has established itself. Land application site owners shall also stabilize areas where waste application has been completed until vegetation has been established.

E. Numeric effluent limitations. As set forth at 40 CFR Part 445 Subpart B, the numeric limitations in Table 190-1 apply to contaminated stormwater discharges from municipal solid waste landfills (MSWLFs) that have not been closed in accordance with 40 CFR 258.60, and contaminated stormwater discharges from those landfills that are subject to the provisions of 40 CFR Part 257 (these include construction and debris landfills and industrial landfills) except for discharges from any of the following facilities:

1. Landfills operated in conjunction with other industrial or commercial operations when the landfill only receives wastes generated by the industrial or commercial operation directly associated with the landfill;

2. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes generated by the industrial or commercial operation directly associated with the landfill and also receives other wastes provided the other wastes received for disposal are generated by a facility that is subject to the same provisions in 40 CFR Subchapter N as the industrial or commercial operation or the other wastes received are of similar nature to the wastes generated by the industrial or commercial operation;

3. Landfills operated in conjunction with centralized waste treatment (CWT) facilities subject to 40 CFR Part 437 so long as the CWT facility commingles the landfill wastewater with other nonlandfill wastewater for discharge. A landfill directly associated with a CWT facility is subject to this part if the CWT facility discharges landfill wastewater separately from other CWT wastewater or commingles the wastewater from its landfill only with wastewater from other landfills; or

4. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes from public service activities so long as the company owning the landfill does not receive a fee or other remuneration for the disposal service.

| Table 190-1 Sector L – Numeric Effluent Limitations | | | | --- | --- | --- | | Parameter | Effluent Limitations | | | Maximum Daily | Maximum Monthly Average | | | Landfills (Industrial Activity Code "LF") that are Subject to the Requirements of 40 CFR Part 445 Subpart B. | | | | Biochemical Oxygen Demand (BOD₅) | 140 mg/L | 37 mg/L | | Total Suspended Solids (TSS) | 88 mg/L | 27 mg/L | | Ammonia | 10 mg/L | 4.9 mg/L | | Alpha Terpineol | 0.033 mg/L | 0.016 mg/L | | Benzoic Acid | 0.12 mg/L | 0.071 mg/L | | p-Cresol | 0.025 mg/L | 0.014 mg/L | | Phenol | 0.026 mg/L | 0.015 mg/L | | Zinc (Total) | 0.20 mg/L | 0.11 mg/L | | pH | Within the range of 6.0 - 9.0 s.u. | |

F. Benchmark monitoring and reporting requirements. Landfills, land application, and open dump sites are required to monitor their stormwater discharges for the pollutants of concern listed in Table 190-2. These benchmark monitoring concentrations apply to stormwater discharges associated with industrial activity other than contaminated stormwater discharges from landfills subject to the numeric effluent limitations set forth in Table 190-1.

| Table 190-2 Sector L – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Landfills, Land Application Sites and Open Dumps (Industrial Activity Code "LF"). | | | Total Suspended Solids (TSS) | 100 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 27, Issue 26, eff. September 28, 2011; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-200 Sector M - Automobile salvage yards

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities engaged in dismantling or wrecking used motor vehicles for parts recycling or resale, and for scrap (SIC Code 5015).

B. Stormwater controls. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items:

1. Spill and leak prevention procedures. All vehicles that are intended to be dismantled shall be properly drained of all fluids before being dismantled or crushed, or other equivalent means shall be taken to prevent leaks or spills of fluids upon arrival at the site, or as soon thereafter as feasible. All drained fluids shall be managed to minimize leaks or spills.

2. Inspections. Upon arrival at the site, or as soon thereafter as feasible, vehicles shall be inspected for leaks. Any equipment containing oily parts, hydraulic fluids, any other types of fluids, or mercury switches shall be inspected at least quarterly (four times per year) for signs of leaks. All vessels, containers, or tanks and areas where hazardous materials and general automotive fluids are stored, including mercury switches, brake fluid, transmission fluid, radiator water, and antifreeze, shall be inspected at least quarterly for leaks. Quarterly inspection records shall be maintained with the SWPPP.

3. Employee training. Employee training shall, at a minimum, address the following areas when applicable to a facility: proper handling (collection, storage, and disposal) of oil, used mineral spirits, antifreeze, mercury switches, and solvents.

4. Management of runoff. The permittee shall implement control measures to divert, infiltrate, reuse, contain, or otherwise reduce stormwater runoff to minimize pollutants in discharges from the facility. The following management practices shall be used to prevent or reduce the discharge of pollutants to surface waters:

a. Berms or drainage ditches on the property line used to help prevent run-on from neighboring properties;

b. Berms for uncovered outdoor storage of oily parts and engine blocks;

c. Aboveground liquid storage;

d. The installation of detention ponds, filtering devices, or oil/water separators; and

e. Another control measure used to prevent or reduce the discharge of pollutants to surface waters.

C. Benchmark monitoring and reporting requirements. Automobile salvage yards are required to monitor their stormwater discharges for the pollutants of concern listed in Table 200.

| Table 200 Sector M – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Automobile Salvage Yards (SIC Code 5015) | | | Total Suspended Solids (TSS) | 100 mg/L | | Total Recoverable Aluminum | 1,100 μg/L | | | | | Total Recoverable Lead | 82 μg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-210 Sector N - Scrap recycling and waste recycling facilities and material recovery facilities

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities typically identified as SIC code 5093 that are engaged in the processing, reclaiming, and wholesale distribution of scrap and waste materials such as ferrous and nonferrous metals, paper, plastic, cardboard, glass, animal hides, and facilities that are engaged in reclaiming and recycling liquid wastes such as used oil, antifreeze, mineral spirits, and industrial solvents. Separate permit requirements have been established for recycling facilities that only receive source-separated recyclable materials primarily from nonindustrial and residential sources (e.g., common consumer products including paper, newspaper, glass, cardboard, plastic containers, aluminum, and tin cans).

Separate permit requirements have also been established for facilities that are engaged in dismantling ships, marine salvaging, and marine wrecking–ships for scrap (SIC Code 4499, limited to those listed; for others in SIC Code 4499 not listed in this subsection, see Sector Q (9VAC25-151-240)).

B. Special conditions. Prohibition of nonstormwater discharges. Discharges from containment areas in the absence of a storm event are prohibited unless covered by a separate VPDES permit.

C. SWPPP requirements. In addition to the requirements of Part III, the following items are applicable:

1. Scrap recycling and waste recycling facilities (nonsource-separated, nonliquid recyclable materials). The following SWPPP special conditions have been established for facilities that receive, process, and do wholesale distribution of nonliquid recyclable wastes (e.g., ferrous and nonferrous metals, plastics, glass, cardboard, and paper). These facilities may receive both nonrecyclable and recyclable materials. This section is not intended for those facilities that only accept recyclable materials primarily from nonindustrial and residential sources.

a. Inbound recyclable and waste material control program. The SWPPP shall include a recyclable and waste material inspection program to minimize the likelihood of receiving materials that may be significant pollutant sources to stormwater discharges. Control measures shall include one or more of the following:

(1) Provide information and education flyers, brochures, and pamphlets to suppliers of scrap and recyclable waste materials on draining and properly disposing of residual fluids before delivery to the facility (e.g., from vehicles and equipment engines, radiators, and transmissions, oil-filled transformers, and individual containers or drums), and on removal of mercury switches before delivery to the facility;

(2) Establish procedures to minimize the potential of any residual fluids from coming in contact with precipitation or runoff;

(3) Establish procedures for accepting scrap lead-acid batteries. Additional requirements for the handling, storage and disposal or recycling of batteries are contained in the scrap lead-acid battery program provisions in subdivision 2 f of this subsection;

(4) Provide training targeted for those staff engaged in the inspection and acceptance of inbound recyclable materials; or

(5) Establish procedures to ensure that liquid wastes, including used oil, are stored in materially compatible and nonleaking containers and disposed or recycled in accordance with all requirements under the Resource Conservation and Recovery Act (RCRA), and other state or local requirements.

b. Scrap and waste material stockpiles and storage (outdoor). The SWPPP shall describe measures and controls to minimize contact of stormwater runoff with stockpiled materials, processed materials, and nonrecyclable wastes. Control measures shall include one or more of the following:

(1) Permanent or semipermanent covers;

(2) The use of sediment traps, vegetated swales and strips, catch basin filters, and sand filters to facilitate settling or filtering of pollutants;

(3) Diversion of runoff away from storage areas via dikes, berms, containment trenches, culverts, and surface grading;

(4) Silt fencing;

(5) Oil/water separators, sumps, and dry adsorbents for areas where potential sources of residual fluids are stockpiled (e.g., automotive engine storage areas); or

(6) Another control measure used to prevent or reduce the discharge of pollutants to surface waters.

c. Stockpiling of turnings exposed to cutting fluids (outdoor storage). The SWPPP shall implement measures necessary to minimize contact of surface runoff with residual cutting fluids. Control measures shall include one or more of the following:

(1) Storage of all turnings exposed to cutting fluids under some form of permanent or semipermanent cover. Stormwater discharges from these areas are permitted provided the runoff is first treated by an oil/water separator or its equivalent. Procedures to collect, handle, and dispose or recycle residual fluids that may be present shall be identified in the SWPPP; or

(2) Establish dedicated containment areas for all turnings that have been exposed to cutting fluids. Stormwater runoff from these areas can be discharged provided:

(a) The containment areas are constructed of either concrete, asphalt, or other equivalent type of impermeable material;

(b) There is a barrier around the perimeter of the containment areas to prevent contact with stormwater run-on (e.g., berms, curbing, and elevated pads);

(c) There is a drainage collection system for runoff generated from containment areas;

(d) There is a schedule to maintain the oil/water separator (or its equivalent); and

(e) Procedures are identified for the proper disposal or recycling of collected residual fluids.

d. Scrap and waste material stockpiles and storage (covered or indoor storage). The SWPPP shall address measures and controls to minimize contact of residual liquids and particulate matter from materials stored indoors or under cover from coming in contact with surface runoff. Control measures shall include one or more of the following:

(1) Good housekeeping measures, including the use of dry absorbent or wet vacuum cleanup methods, to contain, dispose, or recycle residual liquids originating from recyclable containers, or mercury spill kits from storage of mercury switches;

(2) Prohibiting the practice of allowing washwater from tipping floors or other processing areas from discharging;

(3) Disconnecting or sealing off all floor drains if necessary to prevent a discharge; or

(4) Another control measure used to prevent or reduce the discharge of pollutants to surface waters.

e. Scrap and recyclable waste processing areas. The SWPPP shall include measures and controls to minimize surface runoff from coming in contact with scrap processing equipment. In the case of processing equipment that generate visible amounts of particulate residue (e.g., shredding facilities), the SWPPP shall describe measures to minimize the contact of residual fluids and accumulated particulate matter with runoff (i.e., through good housekeeping and preventive maintenance). Control measures shall include one or more of the following:

(1) A schedule of regular inspections of equipment for leaks, spills, malfunctioning, worn, or corroded parts or equipment;

(2) A preventive maintenance program for processing equipment;

(3) Removal of mercury switches from the hood and trunk lighting units, and removal of anti-lock brake system units containing mercury switches;

(4) Use of dry-absorbents or other cleanup practices to collect and to dispose of or recycle spilled or leaking fluids, or use of mercury spill kits for spills from storage of mercury switches;

(5) Installation of low-level alarms or other equivalent protection devices on unattended hydraulic reservoirs over 150 gallons in capacity. Alternatively, provide secondary containment with sufficient volume to contain the entire volume of the reservoir;

(6) Containment or diversion structures (e.g., dikes, berms, culverts, trenches, elevated concrete pads, and grading) to minimize contact of stormwater runoff with outdoor processing equipment or stored materials;

(7) Oil/water separators or sumps;

(8) Permanent or semipermanent covers in processing areas where there are residual fluids and grease;

(9) Retention and detention basins or ponds, sediment traps, vegetated swales or strips, to facilitate pollutant settling and filtration;

(10) Catch basin filters or sand filters; or

(11) Another control measure used to prevent or reduce the discharge of pollutants to surface waters.

f. Scrap lead-acid battery program. The SWPPP shall address measures and controls for the proper handling, storage, and disposal of scrap lead-acid batteries. Control measures shall include one or more of the following:

(1) Segregate scrap lead-acid batteries from other scrap materials and store under cover;

(2) A description of procedures and measures for the proper handling, storage, and disposal of cracked or broken batteries;

(3) A description of measures to collect and dispose of leaking lead-acid battery fluid;

(4) A description of measures to minimize and, whenever possible, eliminate exposure of scrap lead-acid batteries to precipitation or runoff; or

(5) A description of employee training for the management of scrap batteries.

g. Spill prevention and response procedures. The SWPPP shall include measures to minimize stormwater contamination at loading and unloading areas, and from equipment or container failures. Control measures shall include one or more of the following:

(1) Description of spill prevention and response measures to address areas that are potential sources of fluid leaks or spills;

(2) Immediate containment and cleanup of spills and leaks. If malfunctioning equipment is responsible for the spill or leak, repairs shall also be conducted as soon as possible;

(3) Cleanup procedures shall be identified in the SWPPP, including the use of dry absorbents. Where dry absorbent cleanup methods are used, an adequate supply of dry absorbent material shall be maintained on-site. Used absorbent material shall be disposed of properly;

(4) Drums containing liquids, especially oil and lubricants, shall be stored indoors, in a bermed area, in overpack containers or spill pallets, or in similar containment devices;

(5) Overfill prevention devices shall be installed on all fuel pumps or tanks;

(6) Drip pans or equivalent measures shall be placed under any leaking piece of stationary equipment until the leak is repaired. The drip pans shall be inspected for leaks and potential overflow and all liquids properly disposed of in accordance with RCRA requirements; or

(7) An alarm or pump shut off system shall be installed on outdoor equipment with hydraulic reservoirs exceeding 150 gallons in order to prevent draining the tank contents due to a line break. Alternatively, the equipment may have a secondary containment system capable of containing the contents of the hydraulic reservoir plus adequate freeboard for precipitation. A mercury spill kit shall be used for any release of mercury from switches, anti-lock brake systems, and switch storage areas.

h. Inspection program. All designated areas of the facility and equipment identified in the SWPPP shall be inspected at least quarterly. The requirement for routine facility inspections is waived for facilities that have maintained an active VEEP E3/E4 status.

i. Supplier notification program. The SWPPP shall include a program to notify major suppliers which scrap materials will not be accepted at the facility or are only accepted under certain conditions.

2. Waste recycling facilities (liquid recyclable materials).

a. Waste material storage (indoor). The SWPPP shall include measures and controls to eliminate contact between residual liquids from waste materials stored indoors and surface runoff. The SWPPP may refer to applicable portions of other existing plans such as SPCC plans required under 40 CFR Part 112. Control measures shall include one or more of the following:

(1) Procedures for material handling (including labeling and marking);

(2) A sufficient supply of dry-absorbent materials or a wet vacuum system to collect spilled or leaked materials (spilled or leaking mercury should never be vacuumed);

(3) An appropriate containment structure, (e.g., trenches, curbing, gutters, or other equivalent measures); or

(4) A drainage system, including appurtenances (e.g., pumps or ejectors, or manually operated valves), to handle discharges from diked or bermed areas. Drainage shall be discharged to an appropriate treatment facility, sanitary sewer system, or otherwise disposed of properly. Discharges from these areas may require coverage under a separate VPDES permit or industrial user permit under the pretreatment program.

b. Waste material storage (outdoor). The SWPPP shall describe measures and controls to minimize contact between stored residual liquids and precipitation or runoff. The SWPPP may refer to applicable portions of other existing plans (e.g., SPCC plans required under 40 CFR Part 112). Discharges of precipitation from containment areas containing used oil shall also be in accordance with applicable sections of 40 CFR Part 112. Control measures shall include one or more of the following:

(1) Appropriate containment structures (e.g., dikes, berms, curbing, pits) to store the volume of the largest single tank, with sufficient extra capacity for precipitation;

(2) Drainage control and other diversionary structures;

(3) For storage tanks, provide corrosion protection, or leak detection systems; or

(4) Dry-absorbent materials or a wet vacuum system to collect spills.

c. Truck and rail car waste transfer areas. The SWPPP shall describe measures and controls to minimize pollutants in discharges from truck and rail car loading and unloading areas. The SWPPP shall also address measures to clean up minor spills and leaks resulting from the transfer of liquid wastes. Control measures shall include one or more of the following:

(1) Containment and diversionary structures to minimize contact with precipitation or runoff;

(2) Use of dry cleanup methods, wet vacuuming, roof coverings, or runoff controls; or

(3) Another control measure used to prevent or reduce the discharge of pollutants to surface waters.

d. Inspections. Inspections shall be made quarterly and shall also include all areas where waste is generated, received, stored, treated, or disposed that are exposed to either precipitation or stormwater runoff. The requirement for routine facility inspections is waived for facilities that have maintained an active VEEP E3/E4 status.

3. Recycling facilities (source separated materials). The following SWPPP special conditions have been established for facilities that receive only source-separated recyclable materials primarily from nonindustrial and residential sources.

a. Inbound recyclable material control. The SWPPP shall include an inbound materials inspection program to minimize the likelihood of receiving nonrecyclable materials (e.g., hazardous materials) that may be a significant source of pollutants in surface runoff. Control measures shall include one or more of the following:

(1) Provide information and education measures to inform suppliers of recyclable materials on the types of materials that are acceptable and those that are not acceptable;

(2) A description of training measures for drivers responsible for pickup of recyclable materials;

(3) Clearly mark public drop-off containers regarding which materials can be accepted;

(4) Rejecting nonrecyclable wastes or household hazardous wastes at the source; or

(5) Establish procedures for the handling and disposal of nonrecyclable materials.

b. Outdoor storage. The SWPPP shall include procedures to minimize the exposure of recyclable materials to surface runoff and precipitation. The SWPPP shall include good housekeeping measures to prevent the accumulation of particulate matter and fluids, particularly in high traffic areas. Control measures shall include one or more of the following:

(1) Provide totally-enclosed drop-off containers for the public;

(2) Install a sump and pump with each containment pit, and treat or discharge collected fluids to a sanitary sewer system;

(3) Provide dikes and curbs for secondary containment (e.g., around bales of recyclable waste paper);

(4) Divert surface runoff away from outside material storage areas;

(5) Provide covers over containment bins, dumpsters, roll-off boxes; or

(6) Store the equivalent one day's volume of recyclable materials indoors.

c. Indoor storage and material processing. The SWPPP shall include measures to minimize the release of pollutants from indoor storage and processing areas. Control measures shall include one or more of the following:

(1) Schedule routine good housekeeping measures for all storage and processing areas;

(2) Prohibit a practice of allowing tipping floor washwaters from draining to any portion of the storm sewer system; or

(3) Provide employee training on pollution prevention practices.

d. Vehicle and equipment maintenance. The SWPPP shall also provide for control measures in those areas where vehicle and equipment maintenance is occurring outdoors. Control measures shall include one or more of the following:

(1) Prohibit vehicle and equipment washwater discharges;

(2) Minimize or eliminate outdoor maintenance areas, wherever possible;

(3) Establish spill prevention and clean-up procedures in fueling areas;

(4) Avoid topping off fuel tanks;

(5) Divert runoff from fueling areas;

(6) Store lubricants and hydraulic fluids indoors; or

(7) Provide employee training on proper handling, storage of hydraulic fluids and lubricants.

5. Facilities engaged in dismantling ships, marine salvaging, and marine wrecking—ships for scrap. The following SWPPP special conditions have been established for facilities that are engaged in dismantling ships, marine salvaging, and marine wrecking—ships for scrap.

Vessel breaking and scrapping activities. Scrapping of vessels shall be accomplished ashore beyond the range of mean high tide, whenever practicable. If this activity must be conducted while a vessel is afloat or grounded in state waters, then the permittee shall employ control measures to reduce the amount of pollutants released. The following control measures shall be implemented during those periods when vessels (ships, barges, yachts, etc.) are brought to the facility's site for recycling, scrapping, and storage before scrapping.

a. Fixed or floating platforms sufficiently sized and constructed to catch and prevent scrap materials and pollutants from entering surface waters (or equivalent measures approved by the department) shall be used as work surfaces when working on or near the water surface. These platforms shall be cleaned as required to prevent pollutants from entering surface waters and at the end of each work shift. All scrap metals and pollutants shall be collected in a manner to prevent releases.

b. There shall be no discharge of oil or oily wastewater at the facility. Drip pans and other protective devices shall be required for all oil and oily waste transfer operations to catch incidental spillage and drips from hose nozzles, hose racks, drums, or barrels. Drip pans and other protective devices shall be inspected and maintained to prevent releases. Oil and oily waste shall be disposed at a permitted facility and adequate documentation of off-site disposition shall be retained for review by the before upon request.

c. During the storage, breaking, and scrapping period, oil containment booms shall be deployed either around the vessel being scrapped, or across the mouth of the facility's wetslip, to contain pollutants in the event of a spill. Booms shall be inspected, maintained, and repaired as needed. Oil, grease and fuel spills shall be prevented from reaching surface waters. Cleanup shall be carried out immediately after an oil, grease, or fuel spill is detected.

d. Paint and solvent spills shall be immediately, upon discovery of the spills, cleaned up to prevent pollutants from reaching storm drains, deck drains, and surface waters.

e. Contaminated bilge and ballast water shall not be discharged to surface waters. If it becomes necessary to dispose of contaminated bilge and ballast waters during a vessel breaking activity, the wastewater shall be disposed at a permitted facility and adequate documentation of off-site disposition shall be retained for review by the department upon request.

D. Benchmark monitoring and reporting requirements. Scrap recycling and waste recycling facilities (both source-separated and nonsource-separated facilities), and facilities engaged in dismantling ships, marine salvaging, and marine wrecking—ships for scrap are required to monitor their stormwater discharges for the pollutants of concern listed in Table 210.

| Table 210 Sector N – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Scrap Recycling and Waste Recycling Facilities (nonsource-separated facilities only) (SIC Code 5093) | | | Total Suspended Solids (TSS) | 100 mg/L | | Total Recoverable Aluminum | 1,100 μg/L | | Total Recoverable Cadmium | 1.8 μg/L | | Total Recoverable Chromium | 16 μg/L | | Total Recoverable Copper | 13 μg/L | | | | | Total Recoverable Lead | 82 μg/L | | Total Recoverable Zinc | 120 μg/L | | Scrap Recycling and Waste Recycling Facilities (source-separated facilities) (SIC Code 5093) | | | Total Suspended Solids (TSS) | 100 mg/L | | Total Recoverable Aluminum¹ | 1,100 μg/L | | Total Recoverable Cadmium¹ | 1.8 μg/L | | Total Recoverable Chromium¹ | 16 μg/L | | Total Recoverable Copper¹ | 13 μg/L | | | | | Total Recoverable Lead¹ | 82 μg/L | | Total Recoverable Zinc¹ | 120 μg/L | | ¹Metals monitoring is only required at source-separated facilities for the specific metals listed that are received at the facility. | | | Facilities Engaged in Dismantling Ships, Marine Salvaging, and Marine Wrecking - Ships for Scrap (SIC Code 4499, limited to list) | | | Total Recoverable Aluminum | 1,100 μg/L | | Total Recoverable Cadmium | 1.8 μg/L | | Total Recoverable Chromium | 16 μg/L | | Total Recoverable Copper | 13 μg/L | | | | | Total Recoverable Lead | 82 μg/L | | Total Recoverable Zinc | 120 μg/L | | Total Suspended Solids (TSS) | 100 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Errata 30:12 VA.R. 1706 February 10, 2014; amended, Virginia Register Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-220 Sector O - Steam electric generating facilities

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from steam electric power generating facilities using coal, natural gas, oil, nuclear energy, etc. to produce a steam source, including coal handling areas (Industrial Activity Code "SE").

Stormwater discharges from coal pile runoff subject to numeric effluent limitations are eligible for coverage under this permit, but are subject to the limitations established by Part I A 1 c (2).

Stormwater discharges from ancillary facilities (e.g., fleet centers, gas turbine stations, and substations) that are not contiguous to a steam electric power generating facility are not covered by this permit. Heat capture and heat recovery combined cycle generation facilities are also not covered by this permit; however, dual fuel co-generation facilities that generate electric power are included.

B. Stormwater controls. Good housekeeping measures.

1. Fugitive dust emissions. The permittee shall describe and implement measures that prevent or minimize fugitive dust emissions from coal and ash handling areas. The permittee shall minimize off-site tracking of coal dust and ash. Control measures to consider include installing specially designed tires, or washing vehicles in a designated area before they leave the site, and controlling the washwater.

2. Delivery vehicles. The SWPPP shall describe measures that prevent or minimize contamination of stormwater runoff from delivery vehicles arriving on the plant site. At a minimum the permittee shall consider the following:

a. Develop procedures for the inspection of delivery vehicles arriving on the plant site, and ensure overall integrity of the body or container; and

b. Develop procedures to deal with leakage and spillage from vehicles or containers.

3. Fuel oil unloading areas. The SWPPP shall describe measures that prevent or minimize contamination of precipitation or surface runoff from fuel oil unloading areas. At a minimum the permittee shall consider using the following measures, or an equivalent:

a. Use of containment curbs in unloading areas;

b. During deliveries, having station staff familiar with spill prevention and response procedures present to ensure that any leaks and spills are immediately contained and cleaned up; and

c. Use of spill and overflow protection. Drip pans, drip diapers, or other containment devices may be placed beneath fuel oil connectors to contain potential spillage during deliveries or from leaks at the connectors.

4. Chemical loading and unloading areas. The permittee shall describe and implement measures that prevent or minimize the contamination of precipitation or surface runoff from chemical loading and unloading areas. At a minimum the permittee shall consider using the following measures or their equivalents

a. Use of containment curbs at chemical loading and unloading areas to contain spills;

b. During deliveries, having station staff familiar with spill prevention and response procedures present to ensure that any leaks or spills are immediately contained and cleaned up; and

c. Covering chemical loading and unloading areas, and storing chemicals indoors.

5. Miscellaneous loading and unloading areas. The permittee shall describe and implement measures that prevent or minimize the contamination of stormwater runoff from loading and unloading areas. The permittee shall consider the following, at a minimum or their equivalents:

a. Covering the loading area;

b. Grading, berming, or curbing around the loading area to divert run-on; or

c. Locating the loading and unloading equipment and vehicles so that leaks are contained in existing containment and flow diversion systems.

6. Liquid storage tanks. The permittee shall describe and implement measures that prevent or minimize contamination of stormwater runoff from aboveground liquid storage tanks. At a minimum the permittee shall consider employing the following measures or their equivalents:

a. Use of protective guards around tanks;

b. Use of containment curbs;

c. Use of spill and overflow protection; and

d. Use of dry cleanup methods.

7. Large bulk fuel storage tanks. The permittee shall describe and implement measures that prevent or minimize contamination of stormwater runoff from large bulk fuel storage tanks. At a minimum the permittee shall consider employing containment berms (or its equivalent). The permittee shall also comply with applicable state and federal laws, including Spill Prevention Control and Countermeasures (SPCC).

8. Spill reduction measures. The permittee shall describe and implement measures to reduce the potential for an oil or chemical spill, or reference the appropriate section of their SPCC plan. The structural integrity of all aboveground tanks, pipelines, pumps, and other related equipment shall be visually inspected as part of the routine facility inspection. All repairs deemed necessary based on the findings of the inspections shall be completed immediately to reduce the incidence of spills and leaks occurring from faulty equipment.

9. Oil bearing equipment in switchyards. The permittee shall describe and implement measures to prevent or minimize contamination of surface runoff from oil bearing equipment in switchyard areas. The permittee shall consider the use of level grades and gravel surfaces to retard flows and limit the spread of spills, and the collection of stormwater runoff in perimeter ditches.

10. Residue hauling vehicles. All residue hauling vehicles shall be inspected for proper covering over the load, adequate gate sealing, and overall integrity of the container body. Vehicles without load coverings or adequate gate sealing, or with leaking containers or beds shall be repaired as soon as practicable.

11. Ash loading areas. The permittee shall describe and implement procedures to reduce or control the tracking of ash and residue from ash loading areas. Where practicable, clear the ash building floor and immediately adjacent roadways of spillage, debris, and excess water before departure of each loaded vehicle.

12. Areas adjacent to disposal ponds or landfills. The permittee shall describe and implement measures that prevent or minimize contamination of stormwater runoff from areas adjacent to disposal ponds or landfills. The permittee shall develop procedures to:

a. Reduce ash residue that may be tracked on to access roads traveled by residue trucks or residue handling vehicles; and

b. Reduce ash residue on exit roads leading into and out of residue handling areas.

13. Landfills, scrapyards, surface impoundments, open dumps, general refuse sites. The SWPPP shall address and include appropriate control measures to minimize the potential for contamination of runoff from landfills, scrapyards, surface impoundments, open dumps, and general refuse sites.

C. Numeric effluent limitations. Permittees with point sources of coal pile runoff associated with steam electric power generation shall monitor these stormwater discharges for the presence of TSS and for pH in accordance with Part I A 1 c (2).

| | | | --- | --- | | | | | | | | | |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-230 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 21, Issue 2, eff. November 3, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-240 Sector Q - Water transportation and ship and boat building and repairing yards

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with the following industrial activities:

1. Water transportation facilities identified by SIC Codes 4412-4499 (except SIC Code 4499 facilities as specified in Sector N - 9VAC25-151-210). The water transportation industry includes facilities engaged in foreign or domestic transport of freight or passengers in deep sea or inland waters, marine cargo handling operations, ferry operations, towing and tugboat services, and marinas.

2. Ship building and repairing and boat building and repairing facilities identified by SIC Codes 3731 and 3732. The U.S. Coast Guard refers to a vessel 65 feet or greater in length as a "ship" and a vessel smaller than 65 feet as a "boat."

B. Special conditions. Prohibition of nonstormwater discharges. In addition to the general nonstormwater prohibition in Part I B 1, the following discharges are not covered by this permit: bilge and ballast water, sanitary wastes, pressure washwater, and cooling water originating from vessels.

C. Stormwater controls.

1. Good housekeeping.

a. Pressure washing area. As defined by this permit, process wastewater related to hull work at facilities shall be any water used on a vessel's hull for any purpose, regardless of application pressure, including the activities of removing marine salts, sediments, marine growth and paint, or other hull, weather deck, or superstructure cleaning activities using water, (e.g., preparing those areas for inspection or work that may include cutting, welding, grinding, or coating). The discharge water shall be permitted as a process wastewater by a separate VPDES permit.

b. Blasting and painting areas. The permittee shall describe and implement measures to prevent spent abrasives, paint chips, and overspray from discharging into the receiving water or the storm sewer system. The permittee shall contain all blasting or painting activities or use other measures to prevent or minimize the discharge of contaminants (e.g., hanging plastic barriers or tarpaulins during blasting or painting operations to contain debris). Stormwater conveyances shall be regularly cleaned to remove deposits of abrasive blasting debris and paint chips. The SWPPP shall include any standard operating practices with regard to blasting and painting activities, (e.g., the prohibition of uncontained blasting or painting over open water, or the prohibition of blasting or painting during windy conditions which can render containment ineffective).

c. Material storage areas. All containerized materials shall be plainly labeled and stored in a protected, secure location away from drains. The permittee shall describe and implement measures to prevent or minimize the contamination of precipitation or surface runoff from the storage areas. The SWPPP shall specify which materials are stored indoors and consider containment or enclosure for materials that are stored outdoors. The permittee shall consider implementing an inventory control plan to limit the presence of potentially hazardous materials on-site. Where abrasive blasting is performed, the SWPPP shall specifically include a discussion on the storage and disposal of spent abrasive materials generated at the facility.

d. Engine maintenance and repair areas. The permittee shall describe and implement measures to prevent or minimize contamination of precipitation or surface runoff from all areas used for engine maintenance and repair. The permittee shall consider the following measures (or their equivalent): performing all maintenance activities indoors, maintaining an organized inventory of materials used in the shop, draining all parts of fluids before disposal, prohibiting the practice of hosing down the shop floor using dry cleanup methods, and treating or recycling stormwater runoff collected from the maintenance area.

e. Material handling areas. The permittee shall describe and implement measures to prevent or minimize contamination of precipitation or surface runoff from material handling operations and areas (e.g., fueling, paint and solvent mixing, disposal of process wastewater streams from vessels). The permittee shall consider the following measures or their equivalents: covering fueling areas; using spill and overflow protection; mixing paints and solvents in a designated area (preferably indoors or under a shed); and minimizing run-on of stormwater to material handling areas.

f. Drydock activities. The SWPPP shall address the routine maintenance and cleaning of the drydock to minimize the potential for pollutants in the stormwater runoff. The SWPPP shall describe the procedures for cleaning the accessible areas of the drydock before flooding and final cleanup after the vessel is removed and the dock is raised. Cleanup procedures for oil, grease, or fuel spills occurring on the drydock shall also be included within the SWPPP. The permittee shall consider the following measures or their equivalents: sweeping rather than hosing off debris and spent blasting material from the accessible areas of the drydock before flooding; and having absorbent materials and oil containment booms readily available to contain or cleanup any spills.

g. General yard area. The SWPPP shall include a schedule for routine yard maintenance and cleanup. Scrap metal, wood, plastic, miscellaneous trash, paper, glass, industrial scrap, insulation, welding rods, packaging, etc. shall be routinely removed from the general yard area.

(1) Preventative maintenance. As part of the facility's preventive maintenance program, stormwater management devices shall be inspected and maintained in a timely manner (e.g., oil/water separators and sediment traps cleaned to ensure that spent abrasives, paint chips, and solids are intercepted and retained before entering the storm drainage system). Facility equipment and systems shall also be inspected and tested to uncover conditions that could cause breakdowns or failures resulting in discharges of pollutants to surface waters.

(2) Routine facility inspections. The following areas shall be included in all quarterly inspections: pressure washing area; blasting, sanding, and painting areas; material storage areas; engine maintenance and repair areas; material handling areas; drydock area; and general yard area. The requirement for routine facility inspections is waived for facilities that have maintained an active VEEP E3/E4 status.

(3) Employee training. Training shall address, at a minimum, the following activities (as applicable): used oil management, spent solvent management, disposal of spent abrasives, disposal of vessel wastewaters, spill prevention and control, fueling procedures, general good housekeeping practices, painting and blasting procedures, and used battery management.

D. Benchmark monitoring and reporting requirements. These facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 240.

| Table 240 Sector Q – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Water Transportation Facilities (SIC Codes 4412-4499 except 4499 as specified in Sector N) and Ship and Boat Building or Repairing Yards (SIC Codes 3731 and 3732) | | | Total Suspended Solids (TSS) | 100 mg/L | | Total Recoverable Copper | 13 μg/L | | Total Recoverable Zinc | 120 μg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-250 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia RegisterVolume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-260 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-270 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-280 Sector U - Food and kindred products

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from food and kindred products processing facilities, including dairy products SIC Codes 2021‑2026; grain mill products SIC Codes 2041‑2048; and fats and oils SIC Codes 2074‑2079.

B. Special conditions. Prohibition of nonstormwater discharges. In addition to the general nonstormwater prohibition in Part I B 1, the following discharges are not covered by this permit: boiler blowdown, cooling tower overflow and blowdown, ammonia refrigeration purging, and vehicle washing and clean-out operations.

C. Benchmark monitoring and reporting requirements. Dairy products, grain mills and fats and oils products facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 280.

| Table 280 Sector U – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Dairy Products (SIC Codes 2021-2026) | | | Biochemical Oxygen Demand (BOD₅) | 30 mg/L | | Total Suspended Solids (TSS) | 100 mg/L | | Grain Mill Products (SIC Codes 2041-2048) | | | Total Kjeldahl Nitrogen (TKN) | 1.5 mg/L | | Total Suspended Solids (TSS) | 100 mg/L | | Fats and Oils Products (SIC Codes 2074-2079) | | | Biochemical Oxygen Demand (BOD₅) | 30 mg/L | | Total Nitrogen | 2.2 mg/L | | Total Suspended Solids (TSS) | 100 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 21, Issue 2, eff. November 3, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-290 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-300 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-310 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-320 Sector Y - Rubber, miscellaneous plastic products, and miscellaneous manufacturing industries

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from rubber and miscellaneous plastic products manufacturing facilities, SIC Codes 3011, 3021, 3052, 3053, 3061, and 3069.

B. SWPPP requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items:

1. Site description. Summary of potential pollutant sources. Rubber manufacturing facilities shall review the use of zinc at the facility and the possible pathways through which zinc may be discharged in stormwater runoff.

2. Stormwater controls.

a. Controls for rubber manufacturers. Rubber manufacturing facilities shall describe and implement specific controls to minimize the discharge of zinc in stormwater discharges from the facility. Listed are possible sources of zinc. These shall be reviewed and the accompanying control measures or their equivalents shall be documented in the SWPPP. Also, some general control measure options to consider include: using chemicals that are purchased in pre-weighed, sealed polyethylene bags; storing materials that are in use in sealable containers; ensuring an airspace between the container and the cover to minimize "puffing" losses when the container is opened; and using automatic dispensing and weighing equipment.

(1) Zinc bags. All permittees shall review the handling and storage of zinc bags at their facilities. Following are some control measure options: employee training regarding the handling and storage of zinc bags; indoor storage of zinc bags; cleanup of zinc spills without washing the zinc into the storm drain; and the use of 2,500-pound sacks of zinc rather than 50-pound to 100-pound sacks.

(2) Dumpsters. The permittee shall minimize discharges of zinc from dumpsters. Following are some control measure options: provide a cover for the dumpster; move the dumpster to an indoor location; or provide a lining for the dumpster.

(3) Dust collectors or baghouses. Permittees shall minimize contributions of zinc to stormwater from dust collectors and baghouses. Improperly operating dust collectors and baghouses shall be replaced or repaired as appropriate.

(4) Grinding operations. Permittees shall minimize contamination of stormwater as a result of dust generation from rubber grinding operations. One control measure option is to install a dust collection system.

(5) Zinc stearate coating operations. Permittees shall minimize the potential for stormwater contamination from drips and spills of zinc stearate slurry that may be released to the storm drain. One control measure option is to use alternative compounds to zinc stearate.

b. Controls for plastic products manufacturers. Plastic products manufacturing facilities shall describe and implement specific controls to minimize the discharge of plastic resin pellets in stormwater discharges from the facility. The following control measures or their equivalents shall be documented in the SWPPP: minimizing spills; cleaning up of spills immediately and thoroughly; sweeping thoroughly; pellet capturing; employee education; and disposal precautions.

C. Benchmark monitoring and reporting requirements. Rubber product manufacturing facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 320.

| Table 320 Sector Y – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Tires and Inner Tubes; Rubber Footwear; Gaskets, Packing and Sealing Devices; Rubber Hose and Belting; and Fabricated Rubber Products, Not Elsewhere Classified (SIC Codes 3011, 3021, 3052, 3053, 3061, and 3069). | | | Total Recoverable Zinc | 120 µg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-330 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-340 Sector AA - Fabricated metal products

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from the following fabricated metals industries, except for electrical related industries: fabricated metal products, except machinery and transportation equipment, SIC Codes 3411-3471, 3479, and 3482-3499; and jewelry, silverware, and plated ware, SIC Codes 3911-3915.

B. Benchmark monitoring and reporting requirements. Metal fabricating facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 340.

| Table 340 Sector AA – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Fabricated Metal Products Except Coating (SIC Codes 3411-3471, 3482-3499, 3911-3915) | | | Total Recoverable Aluminum | 1,100 µg/L | | | | | Total Recoverable Zinc | 120 µg/L | | Total Recoverable Copper | 13 μg/L | | Fabricated Metal Coating and Engraving (SIC Code 3479) | | | Total Recoverable Zinc | 120 µg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-350 Sector AB - Transportation equipment, industrial, or commercial machinery

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from transportation equipment and industrial or commercial machinery manufacturing facilities commonly described by SIC Codes 3511-3599, except SIC Codes 3571-3579.

B. SWPPP requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following item:

Site description. The site map shall identify where any of the following may be exposed to precipitation or surface runoff: vents and stacks from metal processing and similar operations.

C. Benchmark monitoring and reporting requirements. Transportation equipment manufacturing facilities are required to monitor their stormwater discharges for the pollutants of concern listed in Table 350.

| Table 350 Sector AB – Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Transportation equipment manufacturing facilities (SIC Codes 3511-3599 except SIC Codes 3571-3579) | | | Total Petroleum Hydrocarbons (TPH)* | 15.0 mg/L | | Total Suspended Solids (TSS) | 100 mg/L | | Total Recoverable Copper | 13 μg/L | | Total Recoverable Zinc | 120 μg/L | | *Total Petroleum Hydrocarbons (TPH) is the sum of individual gasoline range organics and diesel range organics (TPH-GRO and TPH-DRO) to be measured by EPA SW 846 Method 8015 for gasoline and diesel range organics, or by EPA SW 846 Methods 8260 Extended and 8270 Extended. | |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-360 (Repealed.)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123 and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

9VAC25-151-370 Sector AD - Nonclassified facilities or stormwater discharges designated by the department as requiring permits

A. Discharges covered under this section. Sector AD is used to provide permit coverage for facilities designated by the department as needing a stormwater permit under the provisions of 9VAC25-31-120 A 1 c or under 9VAC25-31-120 A 7 a (1) or (2) of the VPDES Permit Regulation. Therefore, almost any type of stormwater discharge may be covered under this sector. Permittees shall be assigned to Sector AD by the department and may not choose Sector AD as the sector describing the facility's activities.

B. Effluent limitations, benchmark monitoring and reporting requirements. The department shall establish any additional monitoring requirements for a facility before authorizing coverage under this permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 15, Issue 9, eff. June 30, 1999; amended, Virginia Register Volume 20, Issue 16, eff. July 1, 2004; Volume 25, Issue 19, eff. June 24, 2009; Volume 30, Issue 11, eff. July 1, 2014; repealed, Virginia Register Volume 35, Issue 19, eff. July 1, 2019; Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-380 Sector AE - Facilities with no analytical benchmark monitoring requirements

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities with SIC Codes 2611, 2621, 2652-2657, 2833-2836, 2851, 2861-2869, 2891-2899, 3952, 3211, 3221, 3229, 3231, 3241, 3281, 3291-3299, 3331-3339, 3398, 3399, 3341, 1311, 1321, 1381-1389, 2911, 4512-4581 (not subject to federal effluent guidelines), Treatment Works (TW), 2011-2015, 2032-2038, 2051-2053, 2061-2068, 2082-2087, 2091-2099, 2111-2141, 2211-2299, 2311-2399, 3131-3199, 2434, 2511-2599, 2711-2796, 3081-3089, 3931, 3942-3949, 3951-3955 (except 3952), 3961, 3965, 3991-3999, 3111, 3711-3799 (except 3731 and 3732 as identified in Sector Q), 3571-3579, 3612-3699, and 3812-3873.

B. No additional sector-specific requirements apply to this sector.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 35, Issue 19, eff. July 1, 2019; amended, Virginia Register Volume 40, Issue 15, eff. July 1, 2024.

9VAC25-151-390 Sector AF- Facilities limited to total suspended solids benchmark monitoring requirements

A. Discharges covered under this section. The requirements listed under this section apply to stormwater discharges associated with industrial activity from facilities with SIC Codes 4011, 4013, 4111‑4173, 4212‑4231, 4311, and 5171.

B. Benchmark monitoring and reporting requirements. Facilities or stormwater discharges included in this sector are required to monitor their stormwater discharges for the pollutants of concern listed in Table 390.

| Table 390 Sector AF- Benchmark Monitoring Requirements | | | --- | --- | | Pollutants of Concern | Benchmark Concentration | | Facilities Limited to Total Suspended Solids Benchmark Monitoring Requirements | | | Total Suspended Solids (TSS) | 100 mg/L |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Derived from Virginia Register Volume 35, Issue 19, eff. July 1, 2019.

Part V Chesapeake Bay Total Maximum Daily Load Compliance

9VAC25-151-400 Chesapeake Bay total maximum daily load compliance

A. Chesapeake Bay TMDL Compliance. EPA's Chesapeake Bay TMDL (December 29, 2010) includes wasteload allocations for VPDES permitted industrial stormwater facilities as part of the regulated stormwater aggregate load. EPA used data submitted by Virginia with the Phase I Chesapeake Bay TMDL Watershed Implementation Plan, including the number of industrial stormwater permits per county and the number of urban acres regulated by industrial stormwater permits, as part of their development of the aggregate load. Aggregate loads for industrial stormwater facilities were appropriate because actual facility loading data were not available to develop individual facility wasteload allocations.

Virginia estimated the loadings from industrial stormwater facilities using actual and estimated facility acreage information and total phosphorus (TP) and total nitrogen (TN) loading rates from the Northern Virginia Planning District Commission (NVPDC) Guidebook for Screening Urban Nonpoint Pollution Management Strategies (Annandale, VA November 1979), prepared for the Metropolitan Washington Council of Governments. The loading rates used were as follows:

TP - High (80%) imperviousness industrial; 1.5 lb/ac/yr

TN - High (80%) imperviousness industrial; 12.3 lb/ac/yr

Actual facility area information and TP and TN data collected for facilities subject to Part V of this permit will be used by the department to quantify the nutrient and sediment loads from those VPDES permitted industrial stormwater facilities.

1. Facilities that obtained coverage under the 2019 industrial stormwater general permit that demonstrated compliance with the Chesapeake Bay TMDL loading rates.

Owners shall maintain documentation of their demonstration of compliance with the Chesapeake Bay TMDL loading rates with the SWPPP and shall continue implementing any BMPs that may have been developed as part of that demonstration.

Documentation may include:

a. Calculations submitted to the department indicating that reductions were not necessary;

b. A completed TMDL Action Plan, including a description of the means and methods, such as management practices and retrofit programs that were utilized to meet the required reductions;

c. Other means accepted by the department indicating compliance with the Chesapeake Bay TMDL loading rates.

2. Facilities that obtained coverage under the 2019 industrial stormwater general permit that did not demonstrate compliance with the Chesapeake Bay TMDL loading rates shall submit a demonstration to the department.

a. Owners of facilities that submitted a Chesapeake Bay TMDL action plan during the 2019 industrial stormwater general permit term that did not achieve reductions by the end of the 2019 permit term shall update and resubmit their action plan to the department for approval no later than 60 days following coverage under this general permit. Permittees shall achieve 10% of the remaining reductions by December 31, 2024, and all remaining reductions by December 31, 2025. An annual report shall be submitted to the department by June 30 of each year describing the progress in meeting the interim and final reductions. A final report to demonstrate compliance shall be submitted to the department no later than January 10, 2026. Documentation of compliance with the Chesapeake Bay TMDL loading rates shall be maintained with the SWPPP.

b. Owners of facilities that completed four samples for each outfall for TN and TP during the 2019 industrial stormwater general permit term that did not submit calculations by the end of the 2019 permit term shall utilize the procedures in Part V D to calculate their facility stormwater loads. The permittee shall submit a copy of the calculations, and a Chesapeake Bay TMDL action plan if required under Part V E, no later than 60 days following coverage under this general permit to the DEQ regional office serving the area where the industrial facility is located on a form provided by the department. Reductions, if applicable, shall be achieved by December 31, 2025, and an annual report shall be submitted to the department by June 30 of each year describing the progress in meeting the required reductions until such time that the demonstration is completed. The demonstration shall be submitted to the department no later than January 10, 2026. Documentation of compliance with the Chesapeake Bay TMDL loading rates shall be maintained with the SWPPP.

c. Owners of facilities registered prior to July 1, 2022, that did not complete four samples for each outfall for TN and TP by the end of the 2019 industrial stormwater general permit term shall monitor their discharges for TN and TP to characterize the contributions from their facility's specific industrial sector for these parameters. Total nitrogen is the sum of total Kjeldahl nitrogen (TKN) and nitrite + nitrate and shall be derived from the results of those tests. After the facility is granted coverage under the permit, samples shall be collected during each of the first four quarters of permit coverage. Samples shall be collected and analyzed in accordance with Part V B. Monitoring results shall be reported in accordance with Part V C and Part II C, and retained in accordance with Part II B. Calculations utilizing the procedures in Part V D, and a Chesapeake Bay TMDL action plan if required under Part V E, shall be submitted no later than 60 days following the completion of the fourth quarterly monitoring period to the DEQ regional office serving the area where the industrial facility is located on a form provided by the department. Reductions, if applicable, shall be achieved by December 31, 2025, and an annual report shall be submitted to the department by June 30 of each year describing the progress in meeting the required reductions until such time that the demonstration is completed. The demonstration shall be submitted to the department no later than January 10, 2026. Documentation of compliance with the Chesapeake Bay TMDL loading rates shall be maintained with the SWPPP.

Facilities may use the applicable sampling data collected during the 2019 industrial stormwater general permit term to satisfy all or part of the four monitoring periods requirement in accordance with Part V A 2 c.

d. Owners of facilities registered after June 30, 2022, that did not complete four samples for each outfall for TN and TP by the end of the 2019 industrial stormwater general permit term shall monitor their discharges in accordance with Part V A 3.

Facilities may use the applicable sampling data collected during the 2019 industrial stormwater general permit term to satisfy all or part of the four monitoring periods requirements in accordance with Part V A 3.

3. Facilities that obtain initial coverage under the 2024 industrial stormwater general permit, but are not newly constructed facilities as identified in 9VAC25-151-60 C 13.

Owners of facilities in the Chesapeake Bay watershed that obtain initial coverage under the 2024 industrial stormwater general permit shall monitor their discharges for TN and TP to characterize the contributions from their facility's specific industrial sector for these parameters. Total nitrogen is the sum of total Kjeldahl nitrogen (TKN) and nitrite + nitrate and shall be derived from the results of those tests. After the facility is granted coverage under the permit, samples shall be collected during each of the first four quarters of permit coverage. Samples shall be collected and analyzed in accordance with Part V B. Monitoring results shall be reported in accordance with Part V C and Part II C, and retained in accordance with Part II B. Calculations utilizing the procedures in Part V D and a Chesapeake Bay TMDL action plan if required under Part V E shall be submitted no later than 60 days following the completion of the fourth quarterly monitoring period to the DEQ regional office serving the area where the industrial facility is located on a form provided by the department. Reductions, if applicable, shall be achieved by two years following the end of the fourth quarterly monitoring period, and an annual report shall be submitted to the department by June 30 of each year describing the progress in meeting the required reductions until such time that the demonstration is completed. The demonstration shall be submitted to the department no later than the 10th of the month directly following the two year period. Documentation of compliance with the Chesapeake Bay TMDL loading rates shall be maintained with the SWPPP.

B. Monitoring instructions.

1. Collection and analysis of samples. Sampling requirements shall be assessed on an outfall by outfall basis. Samples shall be collected and analyzed in accordance with the requirements of Part II A.

2. When and how to sample. A minimum of one grab sample shall be taken from the discharge associated with industrial activity resulting from a storm event that results in a discharge from the site providing the interval from the preceding storm event discharge is at least 72 hours. The 72-hour storm interval is waived if the permittee is able to document that less than a 72-hour interval is representative for local storm events during the sampling period. In the case of snowmelt, the monitoring shall be performed at a time when a measurable discharge occurs at the site. For discharges from a stormwater management structure, the monitoring shall be performed at a time when a measurable discharge occurs from the structure.

The grab sample shall be taken during the first 30 minutes of the discharge. If it is not practicable to take the sample during the first 30 minutes, the sample may be taken during the first three hours of the discharge, provided that the permittee explains why a grab sample during the first 30 minutes was impracticable. This information shall be submitted in the department's electronic discharge monitoring report (e-DMR) system and maintained with the SWPPP. If the sampled discharge commingles with process or nonprocess water, the permittee shall attempt to sample the stormwater discharge before it mixes with the nonstormwater.

3. Storm event data. For each monitoring event, except snowmelt monitoring, along with the monitoring results, the permittee shall identify the date of the storm event sampled; rainfall total (in inches) of the storm event that generated the sampled runoff; and the interval between the storm event sampled and the end of the previous storm event discharge. For snowmelt monitoring, the permittee shall identify the date of the sampling event.

4. Monitoring periods. Quarterly monitoring shall be conducted in each of the following three-month periods: January through March, April through June, July through September, and October through December.

5. Documentation explaining a facility's inability to obtain a sample (including dates and times the outfalls were viewed or sampling was attempted), of no rain event, or of deviation from the 72-hour storm interval shall be submitted with the e-DMR and maintained with the SWPPP. Acceptable documentation includes National Climatic Data Center (NCDC) weather station data, local weather station data, facility rainfall logs, and other appropriate supporting data.

6. Representative outfalls may be used in accordance with Part I A 2 f.

C. Reporting monitoring results.

1. Reporting to the department. The permittee shall follow the reporting requirements and deadlines in Table 400-1 if required by Part V A 2 or A 3:

| Table 400-1 Monitoring Reporting Requirements | | | --- | --- | | | | | Quarterly Chesapeake Bay TMDL Monitoring | Submit the results by January 10, April 10, July 10, and October 10 |

2. Permittees shall submit results for each outfall associated with industrial activity according to the requirements of Part II C.

3. Significant digits. The permittee shall report at least the same number of significant digits as a numeric effluent limitation or TMDL wasteload allocation for a given parameter; otherwise, at least two significant digits shall be reported for a given parameter. Regardless of the rounding convention used by the permittee (i.e., five always rounding up or to the nearest even number), the permittee shall use the convention consistently and shall ensure that consulting laboratories employed by the permittee use the same convention.

D. Calculation of facility loads.

Permittees required to collect nutrient and sediment data in accordance with Part V A 2 or A 3 shall analyze the data collected to determine if pollution reductions are required. The permittee shall average the data collected at the facility for each of the pollutants of concern (POC) (e.g., TP and TN) and compare the results to the loading rates for TP and TN presented in Part V A.

The following formula may be used to determine the loading rate:

L = 0.226 x P x Pj x (0.05 + (0.9 x Ia)) x C

where:

L = the POC loading rate (lb/acre/year)

P = the annual rainfall (inches/year) - The permittee may use either actual annual average rainfall data for the facility location (in inches/year), the Virginia annual average rainfall of 44.3 inches/year, or another method approved by the department.

Pj = the fraction of annual events that produce runoff - The permittee shall use 0.9 unless the department approves another rate.

Ia = the impervious fraction of the facility impervious area of industrial activity to the facility industrial activity area.

C = the POC average concentration of all facility samples (mg/L) - Facilities with multiple outfalls shall calculate a weighted average concentration for each outfall using the drainage area of each outfall.

For total phosphorus, all daily concentration data below the quantitation level (QL) for the analytical method used shall be treated as half the QL. All daily concentration data equal to or above the QL for the analytical method used shall be treated as it is reported.

For total nitrogen, if none of the daily concentration data for the respective species (i.e., TKN, nitrate, or nitrite) are equal to or above the QL for the respective analytical methods used, the daily TN concentration value reported shall equal one half of the largest QL used for the respective species. If one of the data is equal to or above the QL, the daily TN concentration value shall be treated as that data point is reported. If more than one of the data is above the QL, the daily TN concentration value shall equal the sum of the data points as reported.

Calculations shall be submitted to the department within 60 days from the end of the last monitoring period that satisfies the monitoring requirements in Part V A 2 or A 3. Calculations shall be submitted to the DEQ regional office serving the area where the industrial facility is located, on a form provided by the department, and maintained with the facility's SWPPP.

Alternative calculations may be accepted on a case by case basis by the department to accommodate facilities with outfalls that rarely discharge.

E. Chesapeake Bay TMDL action plan requirements. For permittees required to submit calculations in accordance with Part V D, if the calculated facility loading rate for TP or TN is above the loading rates for TP or TN presented in Part V A, then the permittee shall develop and submit a Chesapeake Bay TMDL action plan to the department.

The Chesapeake Bay TMDL action plan shall be submitted on a form provided by the department to the regional office serving the area where the industrial facility is located within 60 days following the completion of the fourth quarterly monitoring period. A copy of the current Chesapeake Bay TMDL action plan and all facility loading rate calculations shall be maintained with the facility's SWPPP. The Chesapeake Bay TMDL action plan shall include:

1. A determination of the total pollutant load reductions for TP and TN (as appropriate) necessary to reduce the annual loads from industrial activities. This shall be determined by multiplying the industrial average times the difference between the TMDL loading rates listed in Part V A and the actual facility loading rates calculated in accordance with Part V D. The reduction applies to the total difference calculated for each pollutant of concern; and

2. The means and methods, such as management practices and retrofit programs that will be utilized to meet the required reductions determined in Part V E 1 and a schedule to achieve those reductions by the applicable deadline set in Part V A 2 or A 3. Pollutant reductions may be achieved using a combination of the following alternatives:

a. Reductions provided by one or more of the BMPs found through the Virginia Stormwater BMP Clearinghouse at http://www.deq.virginia.gov/our-programs/water/stormwater/stormwater-construction/bmp-clearinghouse, or BMPs approved by the Chesapeake Bay Program. Any BMPs implemented to provide the required pollutant reductions shall be incorporated in the SWPPP and be permanently maintained by the permittee;

b. Implementation of site-specific BMPs followed by a minimum of four stormwater samples collected in accordance with sampling requirements in Part V B that demonstrate pollutant loadings have been reduced below those calculated under Part V D. Any BMPs implemented to provide the required pollutant reductions shall be incorporated in the SWPPP and be permanently maintained by the permittee;

c. Acquisition of nonpoint source credits certified by the board as perpetual in accordance with § 62.1-44.19:20 of the Code of Virginia: or

d. Notwithstanding the applicable deadline set in Part V A 2 or A 3, to meet the required reductions determined in Part V E 1, for calendar years 2025 and 2026, the permittee may acquire and use nutrient credits generated by point sources in accordance with the requirements of Article 4.02 (§ 62.1-4419:12 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia for compliance purposes only if:

(1) Such point source credits are generated and applied for purposes of compliance for the same calendar year;

(2) Such point source credits are acquired no later than September 1, 2026, for calendar year 2025 or June 1, 2027, for calendar year 2026;

(3) Such point source credits are generated in the same locality or tributary, except that permittees located in the Eastern Coastal Basin may also acquire credits from the Potomac and Rappahannock tributaries;

(4) Such credits are either point source nitrogen or point source phosphorus credits generated by point sources covered by the general permit issued pursuant to § 62.1-44.19:14 of the Code of Virginia; and

(5) The permittee reports evidence of having obtained such credits to the department within 30 days of the deadlines specified in Part V E 2 d (2).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
• Historical Notes: Dervied from Virginia Register Volume 40, Issue 15, eff. July 1, 2024; Errata, 40:22 VA.R. 1892 June 17, 2024; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024; Volume 42, Issue 7, eff. January 1, 2026; Volume 43, Issue 1, eff. September 23, 2026.

Chapter 210 Virginia Water Protection Permit Program Regulation

Part I VWP Permit Program Definitions, Exclusions, Prohibitions and Requirements

9VAC25-210-10 Definitions

A. Definitions specific to surface water withdrawals are in 9VAC25-210-300.

B. Unless a different meaning is required by the context, the following terms as used in this chapter shall have the following meanings:

"Adjacent" means bordering, contiguous, or neighboring wetlands separated from other surface water by man-made dikes or barriers, natural river berms, sand dunes, and the like.

"Administratively withdrawn" means a decision by the department that permanently discontinues the review or processing of a VWP permit application.

"Applicant" means a person applying for a VWP individual permit or for coverage under a VWP general permit.

"Aquatic environment" means surface waters and the habitat they provide, including both plant and animal communities.

"Avoidance" means not taking or modifying a proposed action or parts of an action so that there is no adverse impact to the aquatic environment.

"Beneficial use" means both instream and offstream uses. Instream beneficial uses include the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, and cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream beneficial uses include domestic uses (including public water supply), agricultural uses, electric power generation, commercial uses, and industrial uses.

"Best management practices" or "BMPs" means a schedule of activities, prohibition of practices, maintenance procedures, and other management practices that prevent or reduce the pollution of surface waters.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Channelization" means the alteration of a stream channel by widening, deepening, straightening, cleaning, or paving certain areas.

"Compensation" or "compensatory mitigation" means (i) the restoration (reestablishment or rehabilitation), establishment (creation), enhancement, or in certain circumstances preservation of aquatic resources or (ii) in certain circumstances an out-of-kind measure having a water quality, habitat, or other desirable benefit for the purposes of offsetting unavoidable adverse impacts to aquatic resources that remain after all appropriate and practicable avoidance and minimization has been achieved.

"Controversial permit" means a water permitting action for which a public hearing has been granted pursuant to 9VAC25-210-160 and 9VAC25-210-165.

"Construction site" means any site where land-disturbing activity is conducted or physically located for the purpose of erecting buildings, roads, or other discrete structures, including on-site or off-site areas used for dependent, support facilities, such as quarries, mines, or temporary stormwater management or erosion control structures.

"Conversion" means those impacts to surface waters that permanently change an existing wetland or aquatic resource type to a different wetland or aquatic resource type.

"Coverage" means authorization to conduct a project in accordance with a VWP general permit.

"Cowardin classification" or "Cowardin classification method," unless otherwise specified in this chapter, means the waters classification system in Classification of Wetlands and Deepwater Habitats of the United States (Cowardin, Lewis M. II, et al., U.S. Fish and Wildlife Service, December 1979, Reprinted 1992).

"Creation" means the establishment of a wetland or other aquatic resource where one did not formerly exist.

"Cross-sectional drawing" means a scaled graph or plot that represents the plane made by cutting across an object at right angles to its length. Objects may include a surface water body or a portion of it, a man-made channel, an above-ground structure, a below-ground structure, a geographical feature, or the ground surface itself.

"Department" or "DEQ" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality (DEQ) or an authorized representative.

"Discharge" means, when used without qualification, a discharge of a pollutant, or any addition of any pollutant or combination of pollutants, to state waters.

"Draft VWP permit" means a document indicating the department's tentative decision relative to a VWP permit action.

"Draining" means human-induced activities such as ditching, excavation, installation of tile drains, hydrologic modification by surface water runoff diversion, pumping water from wells, or similar activities such that the activities have the effect of artificially dewatering the wetland or altering its hydroperiod.

"Dredged material" means material that is excavated or dredged from surface waters.

"Dredging" means a form of excavation in which material is removed or relocated from beneath surface waters.

"Ecologically and environmentally preferable" means capable of providing a higher likelihood than alternative proposals of replacing existing wetland acreage and functions, stream functions, water quality, and fish and wildlife resources.

"Emergent wetland" means a class of wetlands dominated by erect, rooted, herbaceous plants growing in water or on a substrate, excluding mosses and lichens. This vegetation is present for most of the growing season in most years and is usually dominated by perennial plants.

"Enhancement" means activities conducted in existing wetlands or other portions of the aquatic environment that increase one or more aquatic functions.

"Excavate" or "excavation" means ditching, dredging, or mechanized removal of earth, soil, or rock.

"Fill" means replacing portions of surface water with upland, or raising the bottom elevation of a surface water for any purpose, by placement of any pollutant or material including rock, sand, earth, and man-made materials and debris.

"Fill material" means any pollutant that replaces portions of surface water with dry land or that raises the bottom elevation of a surface water for any purpose.

"Forested wetland" means a class of wetlands dominated by woody vegetation that is approximately 20 feet (six meters) tall or taller and three inches (7.6 centimeters) or larger in diameter at breast height (DBH). These areas typically possess an overstory of trees, an understory of trees or shrubs, and an herbaceous layer.

"Hydrologic regime" means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration.

"Impacts" means results caused by those activities specified in § 62.1-44.15:20 A of the Code of Virginia.

"Impairment" means the damage, loss, or degradation of the acreage or functions of wetlands or the functions of state waters.

"Independent utility" means a test to determine what constitutes a single and complete project. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a phased development project that depend upon other phases of the project do not have independent utility. Portions of a phased development project that would be constructed even if the other phases are not built can be considered as separate single complete projects with independent public and economic utility.

"In-lieu fee program" means a program operated by a nonprofit organization or governmental agency that receives moneys from persons impacting wetlands or streams pursuant to an authorized, permitted activity and that expends the moneys received to provide consolidated compensatory mitigation for permitted wetland or stream impacts.

"Isolated wetlands of minimal ecological value" means those wetlands that (i) do not have a surface water connection to other state waters, (ii) are less than one-tenth of an acre (0.10 acre or 4,356 square feet) in size, (iii) are not located in a Federal Emergency Management Agency designated 100-year floodplain, (iv) are not identified by the Virginia Natural Heritage Program as a rare or state significant natural community, (v) are not forested, and (vi) do not contain listed federal or state threatened or endangered species.

"Joint Permit Application" or "JPA" means an application form that is used to apply for permits from the Norfolk District Army Corps of Engineers, the Virginia Marine Resources Commission, the Virginia Department of Environmental Quality, and local wetland boards for work in waters of the United States and in surface waters of Virginia.

"Law" means the State Water Control Law of Virginia.

"Legal name" means the full legal name of an individual, business, or other organization. For an individual, legal name means the first name, middle initial, last name, and suffix. For an entity authorized to do business in Virginia, the legal name means the exact name set forth in the entity's articles of incorporation, organization or trust, or formation agreement, as applicable.

"Minimization" means lessening impacts by reducing the degree or magnitude of the proposed action and its implementation.

"Mitigation" means sequentially avoiding and minimizing impacts to the maximum extent practicable, and then compensating for remaining unavoidable impacts of a proposed action.

"Mitigation bank" means a site providing off-site, consolidated compensatory mitigation that is developed and approved in accordance with all applicable federal and state laws or regulations for the establishment, use, and operation of mitigation banks and is operating under a signed banking agreement.

"Mitigation banking" means compensating for unavoidable wetland or stream losses in advance of development actions through the sale or purchase of credits from a mitigation bank.

"Nationwide permit" means a general permit issued by the U.S. Army Corps of Engineers (USACE) under 33 CFR Part 330 and, except where suspended by individual USACE Corps Districts, applicable nationwide.

"Nontidal wetland" means those wetlands other than tidal wetlands that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the federal Clean Water Act in 40 CFR 230.3(t). Wetlands generally include swamps, marshes, bogs, and similar areas.

"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.2-300 of the Code of Virginia and any activity that is conducted as part of or in furtherance of such agricultural operation but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 USC § 1344 or any regulations promulgated pursuant thereto.

"Normal residential gardening and lawn and landscape maintenance" means ongoing noncommercial residential activities conducted by or on behalf of an individual occupant, including mowing; planting; fertilizing; mulching; tilling; vegetation removal by hand or by hand tools; and placement of decorative stone, fencing, and play equipment. Other appurtenant noncommercial activities, provided that they do not result in the conversion of a wetland to upland or to a different wetland type, may also be included.

"Normal silvicultural activities" means any silvicultural activity as defined in § 10.1-1181.1 of the Code of Virginia, and any activity that is conducted as part of or in furtherance of such silvicultural activity but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 USC § 1344 or any regulations promulgated pursuant thereto.

"Notice of project completion" means a statement submitted by the permittee or authorized agent that the authorized activities and any required compensatory mitigation have been completed.

"Open water" means an area that, during a year with normal patterns of precipitation, has standing water for sufficient duration to establish an ordinary high water mark. The term "open water" includes lakes and ponds but does not include ephemeral waters, stream beds, or wetlands.

"Ordinary high water" or "ordinary high water mark" means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.

"Out-of-kind compensatory mitigation" or "out-of-kind mitigation" means a measure that does not replace the same type of wetland or surface water as was impacted but does replace lost wetland or surface water functions or provide a water quality, habitat, or other desirable benefit.

"Perennial stream" means a well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the stream bed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permanent flooding or impounding" means a permanent increase in the duration or depth of standing water on a land surface, such as from a dam. Permanent increases in duration or depth of standing water that result from extended-detention basins and enhanced extended-detention basins, when designed, constructed, and maintained to function in accordance with Virginia Department of Conservation and Recreation (DCR) standards for such facilities (Virginia Stormwater Management Handbook, First Edition, 1999, Volume 1, Chapter 3), or when designed in accordance with local standards that, at a minimum, meet the DCR standards, are not considered to be permanent flooding and impounding.

"Permanent impacts" means those impacts to surface waters, including wetlands, that cause a permanent alteration of the physical, chemical, or biological properties of the surface waters or of the acreage or functions of a wetland.

"Permittee" means the person who holds a VWP individual or general permit.

"Permittee-responsible compensatory mitigation" or "permittee-responsible mitigation" means compensation or compensatory mitigation, as defined in this section, that is undertaken by the permittee, or an authorized agent or contractor, for which the permittee retains full responsibility.

"Person" means individual, corporation, partnership, association, governmental body, municipal corporation, or any other legal entity.

"Phased development" means more than one project proposed for a single piece of property or an assemblage of contiguous properties under consideration for development by the same person, or by related persons, that will begin and be completed at different times. Depending on the relationship between the projects, a phased development may be considered a single and complete project or each project may be considered a single and complete project if each project has independent utility, as defined in this section.

"Plan view drawing" means a scaled graph or plot that represents the view of an object as projected onto orthogonal planes. Objects may include structures, contours, or boundaries.

"Pollutant" means any substance, radioactive material, or heat that causes or contributes to or may cause or contribute to pollution.

"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (i) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (ii) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses; provided that (a) an alteration of the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of or discharge or deposit to state waters by other owners is sufficient to cause pollution; (b) the discharge of untreated sewage by any owner into state waters; and (c) contributing to the contravention of standards of water quality duly established by the board, are "pollution" for the terms and purposes of this chapter.

"Practicable" means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

"Preservation" means the protection of resources in perpetuity through the implementation of appropriate legal and physical mechanisms.

"Profile drawing" means a scaled graph or plot that represents the side view of an object. Objects may include a surface water body or a portion of it, a man-made channel, an above-ground structure, a below-ground structure, a geographical feature, or the ground surface itself.

"Public hearing" means a fact finding proceeding held to afford interested persons an opportunity to submit factual data, views, and comments to the department.

"Regional permit" means a general permit issued by the U.S. Army Corps of Engineers under 33 CFR Part 330 and applicable within a specified geographic area.

"Restoration" means the reestablishment of a wetland or other aquatic resource in an area where it previously existed. Wetland restoration means the reestablishment of wetland hydrology and vegetation in an area where a wetland previously existed. Stream restoration means the process of converting an unstable, altered, or degraded stream corridor, including adjacent areas and floodplains, to its natural conditions.

"Riprap" means a layer of nonerodible material such as stone or chunks of concrete.

"Section 401" means § 401 of the Clean Water Act, or 33 USC § 1341, as amended in 1987.

"Scrub-shrub wetland" means a class of wetlands dominated by woody vegetation, excluding woody vines, approximately three to 20 feet (one to six meters) tall. The species include true shrubs, young trees, and trees or shrubs that are small or stunted because of environmental conditions.

"Significant alteration or degradation of existing wetland acreage or function" means human-induced activities that cause either a diminution of the areal extent of the existing wetland or cause a change in wetland community type resulting in the loss or more than minimal degradation of its existing ecological functions.

"Single and complete project" means the total project proposed or accomplished by a person, which also has independent utility as defined in this section. For linear projects, the single and complete project (e.g., a single and complete crossing) will apply to each crossing of a separate surface water (e.g., a single water body) and to multiple crossings of the same water body at separate and distinct locations. Phases of a project that have independent utility may each be considered single and complete.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Stream bed" or "stream channel" means the substrate of a stream, as measured between the ordinary high water mark along each side of a stream. The substrate may consist of organic matter, bedrock, or inorganic particles that range in size from clay to boulders, or a combination of both. Areas contiguous to the stream bed, but outside of the ordinary high water mark along each side of a stream, are not considered part of the stream bed.

"Surface water" means all state waters that are not groundwater as groundwater is defined in § 62.1-255 of the Code of Virginia.

"Suspend" or "suspension" means a decision by the department that stops the review or processing of a permit application or request to modify a permit or permit coverage until such time that information requested by the department is provided, reviewed, and deemed adequate.

"Temporal loss" means the time lag between the loss of aquatic resource functions caused by the impacts and the replacement of aquatic resource functions by compensatory mitigation.

"Temporary impacts" means impacts to wetlands or other surface waters that do not cause a permanent alteration of the physical, chemical, or biological properties of surface waters or the permanent alteration or degradation of existing wetland acreage or functions. Temporary impacts include activities in which the impact area is restored to its preconstruction elevations and contours with topsoil from the impact area where practicable, such that previous wetland acreage and functions or surface water functions are restored.

"Tidal wetland" means vegetated and nonvegetated wetlands as defined in § 28.2-1300 of the Code of Virginia.

"Toxic pollutant" means any agent or material including those listed under § 307(a) of the Water Pollution Prevention and Control Act (33 USC § 1317(a)), which after discharge will, on the basis of available information, cause toxicity. Toxicity means the inherent potential or capacity of a material to cause adverse effects in a living organism, including acute or chronic effects to aquatic life, detrimental effects on human health, or other adverse environmental effects.

"Undesirable plant species" means any species that invades, naturally colonizes, or otherwise dominates a compensatory mitigation site or mitigation bank, such that it causes or contributes to the failure of the vegetative success criteria for a particular compensatory mitigation site, mitigation bank, or in-lieu fee program project, or it otherwise prohibits the restoration of the same vegetation cover type that was originally present.

"VWP general permit" means the general permit text, terms, requirements, and conditions set forth in a regulation that constitutes a VWP permit authorizing a specified category of activities.

"VWP permit" means an individual permit issued by the department or a general permit issued as a regulation adopted by the board under § 62.1-44.15:20 of the Code of Virginia that authorizes activities otherwise unlawful under § 62.1-44.5 of the Code of Virginia or otherwise serves as the Commonwealth of Virginia's § 401 certification. For any applicant to the Federal Energy Regulatory Commission for a certificate of public convenience and necessity pursuant to § 7c of the federal Natural Gas Act (15 USC § 717f(c)) to construct any natural gas transmission pipeline greater than 36 inches inside diameter, issuance of an individual VWP permit pursuant to this chapter and a certification issued pursuant to Article 2.6 (§ 62.1-44.15:80 et seq.) of the State Water Control Law shall together constitute the certification required under § 401 of the federal Clean Water Act.

"Water quality standards" means water quality standards adopted by the board and approved by the administrator of the U.S. Environmental Protection Agency under § 303 of the Clean Water Act as defined in 9VAC25-260-5.

"Watershed approach" means an analytical process for making compensatory mitigation decisions that support the sustainability or improvement of aquatic resources in a watershed and that ensures authorized impacts and mitigation have been considered on a watershed scale.

"Wetlands" means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 1.1, eff. May 20, 1992; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 24, Issue 9, eff. February 6, 2008; Volume 25, Issue 5, eff. December 10, 2008; Volume 32, Issue 21, eff. August 2, 2016; Volume 35, Issue 4, eff. November 14, 2018; Volume 35, Issue 25, eff. September 4, 2019; Errata, 36:1 VA.R. 81 September 2, 2019; Volume 37, Issue 5, eff. November 25, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-20 (Repealed.)

Historical Notes

Derived from VR680-15-02 §§ 1.2 to 1.4, eff. May 20, 1992; repealed, Virginia Register Volume 17, Issue 21, eff. August 1, 2001.

9VAC25-210-40 Permit rationale

In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, the department shall in consultation with legal counsel provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant. In determining whether to grant a permit pursuant to this chapter for an activity conducted in nontidal waters, where a permit from the Virginia Marine Resources Commission will not be issued, the department shall be guided by the factors set forth in § 28.2-1205 A of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022; amended Virginia Register Volume 40, Issue 4, eff. November 8, 2023.

9VAC25-210-45 Surface waters delineations

A. Wetlands. Each wetland delineation, including those for isolated wetlands, shall be conducted in accordance with the U.S. Army Corps of Engineers (USACE) "Wetland Delineation Manual, Technical Report Y-87-1, January 1987, Final Report" (Federal Manual) and any regional wetland supplements approved for use by USACE. These Federal Manuals shall be interpreted in a manner consistent with USACE guidance and the requirements of this chapter, and any delineation guidance adopted by the department as necessary to ensure consistency with the USACE implementation of delineation practices. USACE regulatory guidance letters or Department of Environmental Quality policy or guidance may be used to supplement preparation of wetlands delineations.

B. Other surface waters. Delineations for surface waters other than wetlands may be conducted in accordance with USACE or DEQ policy or USACE or DEQ guidance and shall take into consideration the location of an ordinary high water mark, if present.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 17, Issue 21, eff. August 1, 2001; amended, Virginia Register Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-50 Prohibitions and requirements for VWP permits

A. Except in compliance with a VWP permit, unless the activity is otherwise exempted or excluded, no person shall dredge, fill, or discharge any pollutant into, or adjacent to surface waters; withdraw surface water; otherwise alter the physical, chemical, or biological properties of state waters regulated under this chapter and make them detrimental to the public health, to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, for recreation, or for other uses; excavate in wetlands; or on or after October 1, 2001, conduct the following activities in a wetland:

1. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;

2. Filling or dumping;

3. Permanent flooding or impounding; or

4. New activities that cause significant alteration or degradation of existing wetland acreage or functions.

B. No VWP permit shall be issued:

1. Where the proposed activity or the terms or conditions of the VWP permit do not comply with state law or regulations including § 10.1-1408.5 of the Code of Virginia;

2. For the discharge of any radiological, chemical, or biological warfare agent or high level radioactive material into surface waters.

C. An individual VWP permit shall be required for impacts to state waters for the construction of any natural gas transmission pipeline greater than 36 inches inside diameter pursuant to a certificate of public convenience and necessity under § 7c of the federal Natural Gas Act (15 USC § 717f(c)). For purposes of this subsection:

1. Each wetland and stream crossing shall be considered as a single and complete project; however, only one individual VWP permit addressing all such crossings shall be required for any such pipeline. Notwithstanding the requirement for only one such individual permit addressing all such crossings, individual review of each proposed water body crossing with an upstream drainage area of five square miles or greater shall be performed.

2. All pipelines shall be constructed in a manner that minimizes temporary and permanent impacts to state waters and protects water quality to the maximum extent practicable, including by the use of applicable best management practices that the department determines to be necessary to protect water quality.

3. The department shall assess an administrative charge to any applicant for such project to cover the direct costs of services rendered associated with its responsibilities pursuant to this subsection. This administrative charge shall be in addition to any fee assessed pursuant to § 62.1-44.15:6 of the Code of Virginia and as provided in 9VAC25-20.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 1.5, eff. May 20, 1992; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 25, Issue 5, eff. December 10, 2008; Volume 32, Issue 21, eff. August 2, 2016; Volume 35, Issue 4, eff. November 14, 2018; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-55 Statewide information requirements

The department may request (i) such plans, specifications, and other pertinent information as may be necessary to determine the effect of an applicant's discharge on the quality of state waters or (ii) such other information as may be necessary to accomplish the purposes of this chapter. Any owner, permittee, or person applying for a VWP permit or general permit coverage shall provide the information requested by the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-60 Exclusions

The activities in this section do not require a VWP permit but may require other permits under state and federal law. Upon request by the department, any person claiming one of these exclusions shall demonstrate to the satisfaction of the department that he qualifies for the exclusion. Exclusions pertaining to surface water withdrawals are established in 9VAC25-210-310.

1. Discharges of dredged or fill material into state waters, except wetlands, which are addressed under a USACE Regional, General, or Nationwide Permit, and for which no § 401 Water Quality Certificate is required.

2. Any discharge of stormwater from municipal separate storm sewer systems or land-disturbing activities authorized by 9VAC25-875, or the discharge of sewage, industrial wastes, or other wastes or any noxious or deleterious substances into surface waters that is authorized by a Virginia Pollutant Discharge Elimination System (VPDES) permit in accordance with 9VAC25-31 or a Virginia Pollution Abatement (VPA) permit in accordance with 9VAC25-32.

3. Any activity governed under Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, unless state certification is required by § 401 of the Clean Water Act. State certification is waived if the activity meets the provisions of subdivision 10 a of this section. The activity does not require a VWP permit pursuant to § 62.1-44.15:21 G of the Code of Virginia.

4. Normal residential gardening and lawn and landscape maintenance in a wetland, or other similar activity, that is incidental to an occupant's ongoing residential use of property and is of minimal ecological impact. The criteria governing this exclusion are set forth in the definition of "normal residential gardening and lawn and landscape maintenance" in 9VAC25-210-10.

5. Maintenance of currently serviceable structures, such as purpose-built stormwater and utility structures, transportation structures, dikes, groins, levees, dams, riprap breakwaters, causeways, or bridge abutments or approaches. Maintenance includes the emergency reconstruction of recently damaged parts but does not include modifications that change the character, scope, or size of the original design. If the original design is not available, the permittee shall submit the best available information on the design for consideration and approval by the department. In order to quality for this exclusion, emergency reconstruction shall occur as soon as practicable after damage occurs.

6. Impacts to open waters that do not have a detrimental effect on public health, animal life, or aquatic life or to the uses of such waters for domestic or industrial consumption, recreation, or other uses.

7. Flooding or back-flooding impacts to surface waters resulting from the construction of temporary sedimentation basins on a construction site when such structures are necessary for erosion and sediment control or stormwater management purposes.

8. Normal agriculture and silviculture activities in a wetland such as plowing; seeding; cultivating; minor drainage and harvesting for the production of food, fiber, and forest products; or upland soil and water conservation practices.

a. To fall under this exclusion, the activities specified in this subdivision 8 must be part of an established (i.e., ongoing) agriculture or silviculture operation, and must be in accordance with applicable best management practices set forth in either Forestry Best Management Practices for Water Quality in Virginia Technical Guide (Fourth Edition, July 2002) or Virginia Agricultural BMP Manual (2000), which facilitate compliance with the § 404(b)(1) Guidelines (40 CFR Part 230). Activities on areas lying fallow as part of a conventional, rotational cycle are part of an established operation.

b. Activities which bring a new area into agricultural or silvicultural use are not part of an established operation. An operation ceases to be established when the area in which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operation. If the activity takes place outside surface waters, it does not need a VWP permit, whether or not it is part of an established agriculture or silviculture operation.

c. For the purposes of this subdivision 8, cultivating, harvesting, minor drainage, plowing, and seeding are defined as follows:

(1) "Cultivating" means physical methods of soil treatment employed within established agriculture and silviculture lands on farm or forest crops to aid and improve their growth, quality, or yield.

(2) "Harvesting" means physical measures employed directly upon farm, forest, or crops within established agricultural and silviculture lands to bring about their removal from farm or forest land, but does not include the construction of farm or forest roads.

(3) "Minor drainage" means:

(a) The discharge of dredged or fill material incidental to connecting upland drainage facilities to surface waters, adequate to effect the removal of excess soil moisture from upland croplands. Construction and maintenance of upland (dryland) facilities, such as ditching and tiling, incidental to the planting, cultivating, protecting, or harvesting of crops;

(b) The discharge of dredged or fill material for the purpose of installing ditching or other water control facilities incidental to planting, cultivating, protecting, or harvesting of rice, or other wetland crop species, where these activities and the discharge occur in surface waters which are in established use for such agricultural and silviculture wetland crop production;

(c) The discharge of dredged or fill material for the purpose of manipulating the water levels of, or regulating the flow or distribution of water within, existing impoundments that have been constructed in accordance with applicable requirements of the Clean Water Act, and that are in established use for the production of rice, or other wetland crop species;

(d) The discharge of dredged or fill material incidental to the emergency removal of sandbars, gravel bars, or other similar blockages which are formed during flood flows or other events, where such blockages close or constrict previously existing drainageways and, if not promptly removed, would result in damage to or loss of existing crops or would impair or prevent the plowing, seeding, harvesting, or cultivating of crops on land in established use for crop production. Such removal does not include enlarging or extending the dimensions of, or changing the bottom elevations of, the affected drainageway as it existed prior to the formation of the blockage. Removal must be accomplished within one year after such blockages are discovered in order to be eligible for exclusion; and

(e) Minor drainage in surface waters is limited to drainage within areas that are part of an established agriculture or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a nonwetland (for example, wetland species to upland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another (for example, silviculture to agriculture). In addition, minor drainage does not include the construction of any canal, ditch, dike, or other waterway or structure which drains or otherwise significantly modifies a stream, lake, swamp, bog, or any other wetland or aquatic area constituting surface water. Any discharge of dredged or fill material into surface water incidental to the construction of any such structure or waterway requires a VWP permit, unless otherwise excluded or exempted by this chapter.

(4) "Plowing" means all forms of primary tillage, including moldboard, chisel, or wide-blade plowing, discing, harrowing, and similar physical means used on farm or forest land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. Plowing does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of surface water to dry land. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing. Rock crushing activities which result in the loss of natural drainage characteristics, the reduction of water storage and recharge capabilities, or the overburden of natural water filtration capacities does not constitute plowing. Plowing as described above will never involve a discharge of dredged or fill material.

(5) "Seeding" means the sowing of seed and placement of seedlings to produce farm or forest crops and includes the placement of soil beds for seeds or seedlings on established farm and forest lands.

9. Discharges of dredged or fill material into wetlands when addressed under a U.S. Army Corps of Engineers Regional, General, or Nationwide Permit and that meet the provisions of subdivision 10 a of this section.

10. Construction or maintenance of farm ponds or impoundments, stock ponds or impoundments, or irrigation ditches, or the maintenance (but not construction) of drainage ditches.

a. The exclusion for the construction and maintenance of farm or stock ponds and farm or stock impoundments applies to those structures that are operated for normal agricultural or silvicultural purposes, and are less than 25 feet in height or create a maximum impoundment capacity smaller than 100 acre-feet.

b. The exclusion for the construction and maintenance of farm or stock ponds and farm or stock impoundments does not include the impacts associated with the withdrawal of surface water from, within, or behind such structures. A VWP permit may be required for the surface water withdrawal.

c. Discharge associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exclusion.

d. The maintenance dredging of existing ditches is included in this exclusion provided that the final dimensions of the maintained ditch do not exceed the average dimensions of the original ditch. This exclusion does not apply to the construction of new ditches or to the channelization of streams.

11. Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained in accordance with applicable best management practices (BMPs) set forth in either Forestry Best Management Practices for Water Quality in Virginia, Technical Guide, Fourth Edition, July 2002, or Virginia Agricultural BMP Manual, 2000, to ensure that flow and circulation patterns and chemical and biological characteristics of surface waters are not impaired, that the reach of such waters is not reduced, and that any adverse effect on the aquatic environment will otherwise be minimized. The BMPs which must be applied to satisfy this provision include the following baseline provisions:

a. Permanent roads (for agriculture or forestry activities), temporary access roads (for mining, forestry, or farm purposes), and skid trails (for logging) in surface waters shall be held to the minimum feasible number, width, and total length consistent with the purpose of specific agriculture, silviculture or mining operations, and local topographic and climatic conditions;

b. All roads, temporary or permanent, shall be located sufficiently far from streams or other water bodies (except for portions of such roads which must cross water bodies) to minimize discharges of dredged or fill material into surface waters;

c. The road fill shall be bridged, piped, culverted, or otherwise designed to prevent the restriction of expected flood flows;

d. The fill shall be properly stabilized and maintained to prevent erosion during and following construction;

e. Discharges of dredged or fill material into surface waters to construct road fill shall be made in a manner which minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within state waters (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself;

f. In designing, constructing, and maintaining roads, vegetative disturbance in surface waters shall be kept to a minimum;

g. The design, construction, and maintenance of the road crossing shall not disrupt the migration or other movement of those species of aquatic life inhabiting the water body;

h. Borrow material shall be taken from upland sources whenever feasible;

i. The discharge shall not take, or jeopardize the continued existence of a state-listed or federally-listed threatened or endangered species as defined under the Endangered Species Act (16 USC § 1531 et seq.), in § 29.1-566 of the Code of Virginia and in 4VAC15-20-130 B and C, except as provided in § 29.1-568 of the Code of Virginia, or adversely modify or destroy the critical habitat of such species;

j. Discharges into the nesting and breeding areas for migratory waterfowl, spawning areas, and wetlands shall be avoided if practical on-site or off-site alternatives exist;

k. The discharge shall not be located in proximity of a public water supply or intake;

l. The discharge shall not occur in areas of concentrated shellfish production;

m. The discharge shall not occur in a component to the National Wild and Scenic River System;

n. The discharge material shall consist of suitable material free from toxic pollutants in toxic amounts; and

o. All temporary fills shall be removed in their entirety and the area restored to its original elevation.

12. Wetland and open water impacts to a stormwater management facility that was created on dry land for the purpose of conveying, treating, or storing stormwater.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 1.6, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 24, Issue 9, eff. February 6, 2008; Volume 25, Issue 5, eff. December 10, 2008; Volume 32, Issue 21, eff. August 2, 2016; Volume 35, Issue 4, eff. November 14, 2018; Volume 39, Issue 4, eff. November 9, 2022; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-210-65 Administrative continuance

A. Administrative continuance provisions shall apply to all VWP permits.

B. When the permittee has submitted a timely and complete application for reissuance of an existing VWP individual permit, but through no fault of the permittee, the department does not reissue or reissue with conditions a VWP individual permit or the department does not provide notice of its tentative decision to deny the application before an existing VWP individual permit expires, the conditions of the expiring VWP individual permit shall be administratively continued in full force and effect until the effective date of a reissued permit or the date on which the department denies the application. Complete application requirements for a VWP individual permit are located in 9VAC25-210-80 and 9VAC25-210-340. Timely application shall be a minimum of 180 days for an individual permit or a minimum of 270 days for an individual permit for a surface water withdrawal, unless otherwise specified in the existing permit.

C. Administrative continuance of a specific VWP general permit shall be in accordance with the corresponding VWP general permit regulation.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-70 Effect of a VWP permit

A. As to the permitted activity, compliance with a VWP permit constitutes compliance with the VWP permit requirements of the Law and regulations.

B. The issuance of a VWP permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize injury to private property or any invasion of personal rights or any infringement of federal, state, or local laws or regulations.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 1.7, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 32, Issue 21, eff. August 2, 2016.

Part II VWP Permit Application and Development

9VAC25-210-75 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. July 25, 2007; repealed, Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

9VAC25-210-80 Application for a VWP permit

A. Application for a VWP Permit. Any person who is required to obtain a VWP permit, except those persons applying for an emergency VWP permit for a public water supply emergency, shall submit a complete VWP permit application to the Department of Environmental Quality through the most current Joint Permit Application procedures established within each type of Joint Permit Application. The Virginia Department of Transportation (VDOT) may use its Interagency Coordination Meeting (IACM) process for submitting JPAs. There shall be no commencement of any activity subject to this chapter prior to the issuance of a VWP permit or granting VWP general permit coverage.

B. Informational requirements for all VWP individual permit applications are identified in this subsection with the exception of applications for emergency VWP permits to address a public water supply emergency, for which the information required in 9VAC25-210-340 C shall be submitted. In addition to the information in this subsection, applications involving a surface water withdrawal or a Federal Energy Regulatory Commission (FERC) license or relicense associated with a surface water withdrawal shall also submit the information required in 9VAC25-210-340 B.

1. A complete application for a VWP individual permit, at a minimum, consists of the following information, if applicable to the project:

a. The applicant's legal name, mailing address, telephone number, and if applicable, electronic mail address and fax number.

b. If different from applicant, legal name, mailing address, telephone number, and if applicable, electronic mail address and fax number of property owner.

c. If applicable, the authorized agent's name, mailing address, telephone number, and if applicable, fax number and electronic mail address.

d. Project name and proposed project schedule. This schedule will be used to determine the VWP permit term.

e. The following information for the project site location, and any related permittee-responsible compensatory mitigation site:

(1) The physical street address, nearest street, or nearest route number; city or county; zip code; and if applicable, parcel number of the site or sites.

(2) Name of the impacted water body or water bodies, or receiving waters, as applicable, at the site or sites.

(3) The latitude and longitude to the nearest second at the center of the site or sites.

(4) The fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, for the site or sites.

(5) A detailed map depicting the location of the site or sites, including the project boundary and existing preservation areas on the site or sites. The map (e.g., a U.S. Geologic Survey topographic quadrangle map) should be of sufficient detail to easily locate the site or sites for inspection.

f. A narrative description of the project, including project purpose and need.

g. An alternatives analysis for the proposed project detailing the specific on-site and off-site measures taken during project design and development to first avoid and then minimize impacts to surface waters to the maximum extent practicable in accordance with the Guidelines for Specification of Disposal Sites for Dredged or Fill Material, 40 CFR Part 230. Avoidance and minimization includes, but is not limited to, the specific on-site and off-site measures taken to reduce the size, scope, configuration, or density of the proposed project, including review of alternative sites where required for the project, which would avoid or result in less adverse impact to surface waters, and documentation demonstrating the reason the applicant determined less damaging alternatives are not practicable. The analysis shall demonstrate to the satisfaction of the department that avoidance and minimization opportunities have been identified and measures have been applied to the proposed activity such that the proposed activity in terms of impacts to state waters and fish and wildlife resources is the least environmentally damaging practicable alternative.

h. A narrative description of all impacts proposed to surface waters, including the type of activity to be conducted in surface waters and any physical alteration to surface waters. Surface water impacts shall be identified as follows:

(1) Wetland impacts identified according to their Cowardin classification (i.e., emergent, scrub-shrub, or forested); and for each classification, the individual impacts quantified in square feet to the nearest whole number, cumulatively summed in square feet, and then the sum converted to acres and rounded to two decimal places using commonly accepted arithmetic principles of rounding.

(2) Individual stream impacts (i) quantified by length in linear feet to the nearest whole number and by average width in feet to the nearest whole number; (ii) quantified in square feet to the nearest whole number; and (iii) when compensatory mitigation is required, the impacts identified according to the assessed type using the Unified Stream Methodology.

(3) Open water impacts identified according to type; and for each type, the individual impacts quantified in square feet to the nearest whole number, cumulatively summed in square feet, and then the sum converted to acres and rounded to two decimal places using commonly accepted arithmetic principles of rounding.

(4) A copy of the approved jurisdictional determination when available, or when unavailable, (i) the preliminary jurisdictional determination from the U.S. Army Corps of Engineers (USACE), U.S. Department of Agriculture Natural Resources Conservation Service (NRCS), or DEQ or (ii) other correspondence from the USACE, NRCS, or DEQ indicating approval of the boundary of applicable jurisdictional surface waters, including wetlands data sheets if applicable.

(5) A delineation map that (i) depicts the geographic area or areas of all surface water boundaries delineated in accordance with 9VAC25-210-45 and confirmed in accordance with the jurisdictional determination process; (ii) identifies such areas in accordance with subdivisions 1 h (1), 1 h (2), and 1 h (3) of this subsection; and (iii) quantifies and identifies any other surface waters according to their Cowardin classification (i.e., emergent, scrub-shrub, or forested) or similar terminology.

i. Plan view drawing or drawings of the project site sufficient to assess the project, including at a minimum the following:

(1) North arrow, graphic scale, and existing and proposed topographic or bathymetric contours.

(2) Limits of proposed impacts to surface waters.

(3) Location of all existing and proposed structures.

(4) All delineated wetlands and all jurisdictional surface waters on the site, including the Cowardin classification (i.e., emergent, scrub-shrub, or forested) for those surface waters and waterway name, if designated; ebb and flood or direction of flow; ordinary high water mark in nontidal areas; tidal wetlands boundary; and mean low water and mean high water lines in tidal areas.

(5) The limits of Chesapeake Bay Resource Protection Areas (RPAs) as field-verified by the applicant, and if available, the limits as approved by the locality in which the project site is located, unless the proposed use is exempt from the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830).

(6) The limits of any areas that are under a deed restriction, conservation easement, restrictive covenant, or other land use protective instrument (i.e., protected areas).

j. Cross-sectional and profile drawing or drawings. Cross-sectional drawing or drawings of each proposed impact area includes at a minimum a graphic scale, existing structures, existing and proposed elevations, limits of surface water areas, ebb and flood or direction of flow (if applicable), ordinary high water mark in nontidal areas, tidal wetland boundary, mean low water and mean high water lines in tidal areas, impact limits, and location of all existing and proposed structures. Profile drawing or drawings with this information may be required on a case-by-case basis to demonstrate minimization of impacts. Any application that proposes piping or culverting stream flows shall provide a longitudinal profile of the pipe or culvert position and stream bed thalweg, or shall provide spot elevations of the stream thalweg at the beginning and end of the pipe or culvert, extending to a minimum of 10 feet beyond the limits of the proposed impact.

k. Materials assessment. Upon request by the department, the applicant shall provide evidence or certification that the material is free from toxic contaminants prior to disposal or that the dredging activity will not cause or contribute to a violation of water quality standards during dredging. The applicant may be required to conduct grain size and composition analyses, tests for specific parameters or chemical constituents, or elutriate tests on the dredge material.

l. An assessment of potential impacts to federal and state listed threatened or endangered species, including any correspondence or documentation from federal or state resource agencies addressing potential impacts to listed species.

m. A compensatory mitigation plan to achieve no net loss of wetland acreage and functions or stream functions and water quality benefits.

(1) If permittee-responsible compensation is proposed for wetland impacts, a conceptual wetland compensatory mitigation plan shall be submitted in order for an application to be deemed complete and shall include at a minimum (i) the goals and objectives in terms of replacement of wetland acreage and functions; (ii) a detailed location map including latitude and longitude to the nearest second and the fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, at the center of the site; (iii) a description of the surrounding land use; (iv) a hydrologic analysis including a draft water budget for nontidal areas based on expected monthly inputs and outputs that will project water level elevations for a typical year, a dry year, and a wet year; (v) groundwater elevation data, if available, or the proposed location of groundwater monitoring wells to collect these data; (vi) wetland delineation confirmation, data sheets, and maps for existing surface water areas on the proposed site or sites; (vii) a conceptual grading plan; (viii) a conceptual planting scheme including suggested plant species and zonation of each vegetation type proposed; (ix) a description of existing soils including general information on both topsoil and subsoil conditions, permeability, and the need for soil amendments; (x) a draft design of water control structures; (xi) inclusion of buffer areas; (xii) a description of any structures and features necessary for the success of the site; (xiii) the schedule for compensatory mitigation site construction; and (xiv) measures for the control of undesirable species.

(2) If permittee-responsible compensation is proposed for stream impacts, a conceptual stream compensatory mitigation plan shall be submitted in order for an application to be deemed complete and shall include at a minimum (i) the goals and objectives in terms of water quality benefits and replacement of stream functions; (ii) a detailed location map including the latitude and longitude to the nearest second and the fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, at the center of the site; (iii) a description of the surrounding land use; (iv) the proposed stream segment restoration locations including plan view and cross-section drawings; (v) the stream deficiencies that need to be addressed; (vi) data obtained from a DEQ-approved, stream impact assessment methodology such as the Unified Stream Methodology; (vii) the proposed restoration measures to be employed including channel measurements, proposed design flows, types of instream structures, and conceptual planting scheme; (viii) reference stream data, if available; (ix) inclusion of buffer areas; (x) schedule for restoration activities; and (xi) measures for the control of undesirable species.

(3) For any permittee-responsible compensatory mitigation, the conceptual compensatory mitigation plan shall also include a draft of the intended protective mechanism or mechanisms, in accordance with 9VAC25-210-116 B 2, such as, but not limited to, a conservation easement held by a third party in accordance with the Virginia Conservation Easement Act (§ 10.1-1009 et seq. of the Code of Virginia) or the Virginia Open-Space Land Act (§ 10.1-1700 et seq. of the Code of Virginia), a duly recorded declaration of restrictive covenants, or other protective instrument. The draft intended protective mechanism shall contain the information in subdivisions (a), (b), and (c) of this subdivision B 1 m (3) or in lieu thereof shall describe the intended protective mechanism or mechanisms that contain or contains the information required as follows:

(a) A provision for access to the site;

(b) The following minimum restrictions: no ditching, land clearing, or discharge of dredge or fill material, and no activity in the area designated as compensatory mitigation area with the exception of maintenance; corrective action measures; or DEQ-approved activities described in the approved final compensatory mitigation plan or long-term management plan; and

(c) A long-term management plan that identifies a long-term steward and adequate financial assurances for long-term management in accordance with the current standard for mitigation banks and in-lieu fee program sites, except that financial assurances will not be necessary for permittee-responsible compensation provided by government agencies on government property. If approved by DEQ, permittee-responsible compensation on government property and long-term protection may be provided through federal facility management plans, integrated natural resources management plans, or other alternate management plans submitted by a government agency or public authority.

(4) Any compensatory mitigation plan proposing the purchase of mitigation bank or in-lieu fee program credits shall include the number and type of credits proposed to be purchased, documentation from the approved bank or in-lieu fee program sponsor of the availability of credits at the time of application, and all information required by § 62.2-44.15:23 of the Code of Virginia.

n. A written description and a graphical depiction identifying all upland areas including buffers, wetlands, open water, other surface waters, and compensatory mitigation areas located within the proposed project boundary or permittee-responsible compensatory mitigation areas, that are under a deed restriction, conservation easement, restrictive covenant, or other land use protective instrument (i.e., protected areas). Such description and a graphical depiction shall include the nature of the prohibited activities within the protected areas and the limits of Chesapeake Bay Resource Protection Areas (RPAs) as field-verified by the applicant, and if available, the limits as approved by the locality in which the project site is located, unless the proposed use is exempt from the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830), as additional state or local requirements may apply if the project is located within an RPA.

o. Signature page that has been signed, dated, and certified by the applicant in accordance with 9VAC25-210-100. If the applicant is a business or other organization, the signature must be made by an individual with the authority to bind the business or organization, and the title of the signatory must be provided. The application signature page, either on the copy submitted to the Virginia Marine Resources Commission or to DEQ, must have an original signature. Electronic submittals containing the original signature page, such as that contained in a scanned document file, are acceptable.

p. Permit application fee. The applicant will be notified by the department as to the appropriate fee for the project in accordance with 9VAC25-20. The department will continue to process the application, but the fee must be received prior to release of a draft VWP permit.

2. Reserved.

C. An analysis of the functions of wetlands proposed to be impacted may be required by DEQ. When required, the method selected for the analysis shall assess water quality or habitat metrics and shall be coordinated with DEQ in advance of conducting the analysis.

1. No analysis shall be required when:

a. Wetland impacts per each single and complete project total 1.00 acre or less; or

b. The proposed compensatory mitigation consists of purchasing mitigation bank or in-lieu fee program credits at standard mitigation ratios of 2:1 for forest, 1.5:1 for scrub-shrub, and 1:1 for emergent, or higher.

2. Analysis shall be required when wetland impacts per each single and complete project total 1.01 acres or more, and when any of the following applies:

a. The proposed compensatory mitigation consists of permittee-responsible compensatory mitigation, including water quality enhancements as replacement for wetlands; or

b. The proposed compensatory mitigation consists of purchasing mitigation bank or in-lieu fee program credits at less than the standard mitigation ratios of 2:1 for forest, 1.5:1 for scrub-shrub, and 1:1 for emergent.

D. Incomplete application.

1. Where an application for an individual permit or general permit coverage is not accepted as complete by the department within 15 days of receipt, the department shall require the submission of additional information from the applicant and may suspend processing of any application until such time as the applicant has supplied the requested information and the department considers the application complete. Where the applicant becomes aware that he omitted one or more relevant facts from a VWP permit application or submitted incorrect information in a VWP permit application or in any report to the department, the applicant shall immediately submit such facts or the correct information. A revised application with new information shall be deemed a new application for purpose of review but shall not require an additional notice or an additional permit application fee.

2. An incomplete application for an individual permit or general permit coverage may be administratively withdrawn from processing by the department for failure to provide the required information after 60 days from the date of the latest written information request made by the department. The department shall provide (i) notice to the applicant and (ii) an opportunity for an informal fact-finding proceeding when administratively withdrawing an incomplete application. Resubmittal of an application for the same or similar project, after such time that the original permit application was administratively withdrawn, shall require submittal of an additional permit application fee and may be subject to additional noticing requirements.

3. An applicant may request a suspension of application review by the department. A submission by the applicant making such a request shall not preclude the department from administratively withdrawing an incomplete application.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 2.1, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 37, Issue 5, eff. November 25, 2020; Volume 38, Issue 1, eff. September 29, 2021; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-90 Conditions applicable to all VWP permits

A. Duty to comply. The permittee shall comply with all conditions and limitations of the VWP permit. Nothing in this chapter shall be construed to relieve the permittee of the duty to comply with all applicable federal and state statutes, regulations, toxic standards, and prohibitions. Any VWP permit violation or noncompliance is a violation of the Clean Water Act and State Water Control Law and is grounds for enforcement action, VWP permit termination, VWP permit revocation, VWP permit modification, or denial of an application for a VWP permit extension or reissuance.

B. Duty to cease or confine activity. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the activity for which a VWP permit has been granted in order to maintain compliance with the conditions of the VWP permit.

C. Duty to mitigate. The permittee shall take all reasonable steps to minimize or prevent any impacts in violation of the VWP permit that may have a reasonable likelihood of adversely affecting human health or the environment.

D. Inspection and entry. Upon presentation of credentials, the permittee shall allow the department or any duly authorized agent of the department, at reasonable times and under reasonable circumstances, to conduct the actions listed in this section. For the purpose of this section, the time for inspection shall be deemed reasonable during regular business hours. Nothing contained herein shall make an inspection time unreasonable during an emergency.

1. Enter upon permittee's property, public or private, and have access to, inspect and copy any records that must be kept as part of the VWP permit conditions;

2. Inspect any facilities, operations or practices (including monitoring and control equipment) regulated or required under the VWP permit; and

3. Sample or monitor any substance, parameter, or activity for the purpose of ensuring compliance with the conditions of the VWP permit or as otherwise authorized by law.

E. Duty to provide information. Plans, maps, conceptual reports, and other relevant information shall be submitted as required by the department prior to commencing construction.

F. Monitoring and records requirements.

1. Monitoring of parameters, other than pollutants, shall be conducted according to approved analytical methods as specified in the VWP permit. Analysis of pollutants will be conducted according to 40 CFR Part 136 as published in the 40 CFR July 1, 2024, update.

2. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

3. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart or electronic recordings for continuous monitoring instrumentation, copies of all reports required by the VWP permit, and records of all data used to complete the application for the VWP permit, for a period of at least three years from the date of permit expiration. This period may be extended by request of the department at any time.

4. Records of monitoring information shall include as appropriate:

a. The date, exact place and time of sampling or measurements;

b. The name of the individuals who performed the sampling or measurements;

c. The date and time the analyses were performed;

d. The name of the individuals who performed the analyses;

e. The analytical techniques or methods supporting the information such as observations, readings, calculations, and bench data used;

f. The results of such analyses; and

g. Chain of custody documentation.

G. Duty to reapply. Any permittee desiring to continue a previously permitted activity after the expiration date of the VWP permit shall apply for and obtain a new permit or, if applicable, shall request an extension in accordance with 9VAC25-210-180.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 2.2, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 34, Issue 19, eff. June 13, 2018; Volume 39, Issue 4, eff. November 9, 2022; Volume 40, Issue 14, eff. March 27, 2024; Volume 41, Issue 7, eff. December 18, 2024.

9VAC25-210-100 Signatory requirements

A. Application. Any application for a VWP permit under this chapter shall bear the applicant's signature or the signature of a person acting in the applicant's behalf, with the authority to bind the applicant. Electronic submittals containing the original signature page, such as that contained in a scanned document file, are acceptable.

B. Reports. All reports required by VWP permits and other information requested by the department shall be signed by:

1. One of the persons described in subsection A of this section; or

2. A duly authorized representative of that person. A person is a duly authorized representative only if:

a. The authorization is made in writing by a person described in subsection A of this section; and

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position.

c. If an authorization is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization must be submitted to the department prior to or together with any separate information, or applications to be signed by an authorized representative.

C. Certification of application and reports. Any person signing a document under subsection A or B of this section shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations."

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 2.3, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-110 Establishing applicable standards, limitations, or other VWP permit conditions

A. In addition to the conditions established in 9VAC25-210-90 and 9VAC25-210-100, and for surface water withdrawals in 9VAC25-210-370, each VWP permit shall include conditions meeting the requirements established in this section where applicable.

B. Water quality standards and state requirements. The VWP permit shall include requirements to comply with all appropriate provisions of state laws and regulations.

C. Toxic pollutants.

1. Where the department finds that appropriate limitations may not ensure compliance with the law or state water quality standards the department shall require the permittee to follow a program of biological or chemical toxics monitoring. The requirement may include a VWP permit reopener to allow the imposition of toxicity reduction or elimination measures determined to be necessary as a result of the department's evaluation of the results of the toxic monitoring and other available information. Based upon this determination, appropriate limitations will be included in the VWP permit to ensure the reduction or elimination of toxic pollutants and allow the department to ensure that the proposed project will comply with water quality standards and other appropriate requirements of the law.

2. Limitations will be included in the VWP permit to control all toxic pollutants which the department determines (based on information reported in a VWP permit application or a notification or on other information) are or may be discharged at a level which would adversely affect the beneficial use of the receiving waters.

D. Monitoring requirements as conditions of VWP permits may include but are not limited to:

1. Requirements concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate) when required as a condition of the VWP permit;

2. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity and including, when appropriate, continuous monitoring and composite samples;

3. Applicable reporting requirements based upon the impact of the regulated activity on water quality; and

4. Requirements to report monitoring results with a frequency dependent on the nature and effect of the regulated activity.

E. Best management practices (BMPs). The VWP permit may require the use of BMPs to control or abate the discharge of pollutants.

F. Reissued VWP permits. When a VWP permit is renewed or reissued, limitations, standards, or conditions must be in conformance with current limitations, standards, or conditions.

G. Reopening VWP permits. Each VWP permit shall have a condition allowing the reopening of the VWP permit for the purpose of modifying the conditions of the VWP permit to meet new regulatory standards duly adopted by the board. Cause for reopening VWP permits includes, but is not limited to when the circumstances on which the previous VWP permit was based have materially and substantially changed, or special studies conducted by the department or the permittee show material and substantial change, since the time the VWP permit was issued and thereby constitute cause for VWP permit modification or revocation and reissuance.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 2.4, eff. May 20, 1992; amended, Virginia Register Volume 16, Issue 25, eff. September 27, 2000; Errata, 17:3 VA.R. 433 October 23, 2000; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-115 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 17, Issue 21, eff. August 1, 2001; amended, Virginia Register Volume 23, Issue 21, eff. July 25, 2007; repealed, Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

9VAC25-210-116 Compensation

A. No net loss. Compensatory mitigation for project impacts shall be sufficient to achieve no net loss of existing wetland acreage and no net loss of functions in all surface waters. Compensatory mitigation ratios appropriate for the type of aquatic resource impacted and the type of compensation provided shall be applied to permitted impacts to help meet this requirement. Credit may be given for preservation of upland buffers already protected under other ordinances to the extent that additional protection and water quality and fish and wildlife resource benefits are provided.

B. Practicable and ecologically and environmentally preferable compensation alternatives.

1. An analysis shall be required to justify that permittee-responsible compensatory mitigation is ecologically and environmentally preferable to the purchase of mitigation bank credits or in-lieu fee program credits with a primary service area that covers the impact site if such credits are available in sufficient quantity for the project at the projected time of need. The analysis shall address the ability of the permittee-responsible compensatory mitigation sites to replace lost wetland acreage and functions or lost stream functions and water quality benefits. The analysis comparing the impacted and compensation sites may use a method that assesses water quality or habitat metrics, such as that required by 9VAC25-210-80 C, or a method that assesses such criteria as water quality benefits, distance from impacts, hydrologic source and regime, watershed, vegetation type, soils, constructability, timing of compensation versus impact, property acquisition, and cost.

2. The applicant shall demonstrate that permittee-responsible compensatory mitigation can be protected in perpetuity through a protective mechanism approved by the Department of Environmental Quality, such as, but not limited to, a conservation easement held by a third party in accordance with the Virginia Conservation Easement Act (§ 10.1-1009 et seq. of the Code of Virginia) or the Virginia Open-Space Act (§ 10.1-1700 et seq. of the Code of Virginia), a duly recorded declaration of restrictive covenants, or other protective instrument.

C. Compensatory mitigation proposals shall be evaluated as follows:

1. The purchase of mitigation bank credits and in-lieu fee program credits with a primary service area that covers the impact site when available shall in most cases be deemed the ecologically and environmentally preferable form of compensation for project impacts. However, permittee-responsible compensatory mitigation may be considered when the applicant satisfactorily demonstrates that permittee-responsible compensatory mitigation is ecologically and environmentally preferable in accordance with subdivision B 1 of this section.

2. Compensatory mitigation for unavoidable wetland impacts may be met through the following options, which are preferred in the following sequence: mitigation banking, in-lieu fee program, and permittee-responsible compensatory mitigation. However, the department shall evaluate the appropriate compensatory mitigation option on a case-by-case basis with consideration for which option is practicable and ecologically and environmentally preferable, including, in terms of replacement of acreage and functions, which option offers the greatest likelihood of success and avoidance of temporal loss of acreage and function. This evaluation shall be consistent with the U.S. Army Corps of Engineers Compensatory Mitigation for Losses of Aquatic Resources as provided in 33 CFR Part 332. When considering options for providing the required compensatory mitigation, DEQ shall consider the type and location options in the following order:

a. Mitigation bank credits;

b. In-lieu fee program credits;

c. Permittee-responsible mitigation under a watershed approach;

d. Permittee-responsible mitigation through on-site and in-kind mitigation;

e. Permittee-responsible mitigation through off-site or out-of-kind mitigation;

f. Restoration, enhancement, or preservation of upland buffers adjacent to wetlands when utilized in conjunction with subdivision 2 a, 2 b, 2 c, 2 d, or 2 e of this subsection and when consistent with subsection A of this section; and

g. Preservation of wetlands when utilized in conjunction with subdivision 2 a, 2 b, 2 c, 2 d, or 2 e of this subsection and when consistent with subsection A of this section.

3. Compensatory mitigation for unavoidable stream impacts may be met through the following options, which are preferred in the following sequence: mitigation banking, in-lieu fee program, and permittee-responsible mitigation. However, the department shall evaluate the appropriate compensatory mitigation option on a case-by-case basis with consideration for which option is practicable and ecologically and environmentally preferable, including, in terms of replacement of acreage and functions, which option offers the greatest likelihood of success and avoidance of temporal loss of acreage and function. This evaluation shall be consistent with the U.S. Army Corps of Engineers Compensatory Mitigation for Losses of Aquatic Resources as provided in 33 CFR Part 332. One factor in determining the required compensation shall be an analysis of stream impacts utilizing a stream impact assessment methodology approved by the department. When considering options for providing the required compensatory mitigation, DEQ shall consider the type and location options in the following order:

a. Mitigation bank stream credits;

b. In-lieu fee program credits;

c. Permittee-responsible mitigation under a watershed approach;

d. Permittee-responsible mitigation through on-site and in-kind mitigation;

e. Permittee-responsible mitigation through off-site or out-of-kind mitigation;

f. Restoration, enhancement, or preservation of upland buffers adjacent to streams when utilized in conjunction with subdivision 3 a, 3 b, 3 c, 3 d, or 3 e of this subsection and when consistent with subsection A of this section; and

g. Preservation of stream channels and adjacent riparian buffers when utilized in conjunction with subdivision 3 a, 3 b, 3 c, 3 d, or 3 e of this subsection and when consistent with subsection A of this section.

4. Compensatory mitigation for open water impacts may be required to protect state waters and fish and wildlife resources from significant impairment, as appropriate. Compensation shall not be required for permanent or temporary impacts to open waters that are identified as palustrine by the Cowardin classification method, but compensation may be required when such open waters are located in areas of karst topography in Virginia and are formed by the natural solution of limestone.

D. In-lieu fee program approval.

1. The department may approve the use of a program by issuing a VWP permit for a specific project or by taking an enforcement action and following applicable public notice and comment requirements, or by granting approval of a program after publishing a notice of its intent in the Virginia Register of Regulations and accepting public comments on its approval for a minimum of 30 days.

2. Where a program is mandated by the Code of Virginia to be implemented and such program is approved by the U.S. Army Corps of Engineers, the program may be used as deemed appropriate for any VWP permit or enforcement action.

3. An approved program must meet the following criteria:

a. Demonstration of a no net loss policy in terms of wetland acreage and functions or stream functions and water quality benefits by adoption of operational goals or objectives for restoration, creation, enhancement, or preservation;

b. DEQ approval of each site for inclusion in the program;

c. A commitment to provide annual reports to the department detailing contributions received and acreage and type of wetlands or streams preserved, created, or restored in each watershed with those contributions, as well as the compensatory mitigation credits contributed for each watershed of project impact;

d. A mechanism to establish fee amounts that will ensure each contribution will be adequate to compensate for the wetland acreage and functions or stream functions and water quality benefits lost in the impacted watershed; and

e. Such terms and conditions as the department deems necessary to ensure a no net loss of wetland acreage and functions or stream functions and water quality benefits from permitted projects providing compensatory mitigation.

4. Approval may be granted for up to 10 years and may be renewed by the department upon a demonstration that the program has met the criteria in subdivision 3 of this subsection.

E. Use of mitigation banks. The use of mitigation banks for compensating project impacts shall be deemed appropriate if the following criteria are met:

1. The bank meets the criteria and conditions found in § 62.1-44.15:23 of the Code of Virginia;

2. The bank is ecologically and environmentally preferable to practicable on-site and off-site individual compensatory mitigation options;

3. The banking instrument, if approved after July 1, 1996, has been approved by a process that involved public review and comment in accordance with federal guidelines; and

4. The applicant provides verification to DEQ of purchase of the required amount of credits.

F. For permittee-responsible mitigation, the final compensatory mitigation plan shall include complete information on all components of the conceptual compensatory mitigation plan detailed in 9VAC25-210-80 B 1 m and:

1. For wetlands, the final compensation plan for review and approval by DEQ shall also include a summary of the type and acreage of existing wetland impacts anticipated during the construction of the compensation site and the proposed compensation for these impacts; a site access plan; a monitoring plan, including proposed success criteria, monitoring goals, and the location of photo-monitoring stations, monitoring wells, vegetation sampling points, and reference wetlands or streams if available; an abatement and control plan for undesirable plant species; an erosion and sedimentation control plan; a construction schedule; and the final protective mechanism for the compensation site or sites, including all surface waters and buffer areas within its boundaries. The approved protective mechanism shall be recorded in the chain of title to the property, or an equivalent instrument for government-owned lands, and proof of recordation shall be submitted to DEQ prior to commencing impacts in surface waters.

2. For streams, the final compensation plan for review and approval by DEQ shall also include a site access plan; an erosion and sedimentation control plan, if appropriate; an abatement and control plan for undesirable plant species; a monitoring plan, including a monitoring and reporting schedule, monitoring design, and methodologies for success; proposed success criteria; location of photo-monitoring stations, vegetation sampling points, survey points, bank pins, scour chains, and reference streams; a plan view drawing depicting the pattern and all compensation measures being employed; a profile drawing; cross-sectional drawing or drawings of the proposed compensation stream; and the final protective mechanism for the compensation site or sites, including all surface waters and buffer areas within its boundaries. The approved protective mechanism shall be recorded in the chain of title to the property, or an equivalent instrument for government-owned lands, and proof of recordation shall be submitted to DEQ prior to commencing impacts in surface waters.

G. Notwithstanding any provision of this section restricting the location of the source of credits, the department may, for tidal wetland impacts, authorize the use of, including without the application of § 62.1-44.15:23 C of the Code of Virginia, a tidal wetland mitigation bank located in an adjacent river watershed when such bank contains the same plant community type and salinity regime as the impacted wetlands, which shall be the preferred form of compensation. This subsection shall apply only (i) to tidal wetland mitigation banks with a polyhaline salinity regime located in subbasins 02080102, 02080107, 02080108, and 02080208 and (ii) when a tidal wetland mitigation bank with the same plant community type and salinity regime as the impacted wetlands is not available in the same river watershed as the impacted wetland.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. July 25, 2007; amended, Virginia Register Volume 24, Issue 9, eff. February 6, 2008; Volume 32, Issue 21, eff. August 2, 2016; Volume 35, Issue 25, eff. September 4, 2019; Errata, 36:1 VA.R. 81 September 2, 2019; Volume 38, Issue 1, eff. September 29, 2021; Volume 39, Issue 4, eff. November 9, 2022; Volume 40, Issue 4, eff. November 8, 2023.

9VAC25-210-120 Draft VWP permit formulation

A. After evaluation of a complete application, the department shall make a decision to tentatively issue or deny the VWP permit pursuant to this section.

B. If the tentative decision is to issue the VWP permit then a draft VWP permit shall be prepared in advance of public notice. The following tentative determinations shall be incorporated into a draft VWP permit:

1. Conditions, discharge limitations, standards and other requirements applicable to the VWP permit;

2. Monitoring requirements; and

3. Requirements for mitigation of adverse environmental impacts.

C. If the tentative decision is to deny the application, the department shall do so in accordance with 9VAC25-210-230.

D. Should a decision be made to waive the requirement for a VWP permit, the department shall do so in accordance with 9VAC25-210-220.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 2.5, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-130 VWP general permits

A. The board may issue VWP general permits by regulation for certain specified categories of activities as it deems appropriate, except as limited by subdivision D 2 of § 62.1-44.15:21 of the State Water Control Law.

B. When the department determines on a case-by-case basis that concerns for water quality and the aquatic environment so indicate, the department may require individual applications and VWP individual permits rather than approving coverage under a VWP general permit regulation. Cases where an individual VWP permit may be required include the following:

1. Where the activity may be a significant contributor to pollution;

2. Where the applicant or permittee is not in compliance with the conditions of the VWP general permit regulation or coverage;

3. When an applicant or permittee no longer qualifies for coverage under the VWP general permit; and

4. When a permittee operating under VWP general permit coverage requests to be excluded from coverage by applying for a VWP individual permit.

C. When a VWP individual permit is issued to a permittee, the applicability of the VWP general permit coverage to the individual permittee is automatically terminated on the effective date of the VWP individual permit.

D. When a VWP general permit regulation is issued, which applies to a permittee that is already covered by a VWP individual permit, such person may request exclusion from the provisions of the VWP general permit regulation and subsequent coverage under a VWP individual permit.

E. VWP general permit coverage may be revoked from an individual permittee for any of the reasons set forth in 9VAC25-210-180 subject to appropriate opportunity for a hearing.

F. The permittee shall be required to submit a written notice of project completion and request a permit termination by consent within 30 days following the completion of all activities in all permitted impact areas in accordance with subsection 90 A of the applicable VWP general permit regulation.

G. Activities authorized under a VWP general permit and general permit regulation shall be authorized for the fixed term stated in the applicable VWP general permit and VWP general permit regulation.

H. Unless prohibited from coverage under a VWP general permit, the department may certify or certify with conditions a general, regional, or nationwide permit proposed by the U.S. Army Corps of Engineers (USACE) in accordance with § 401 of the federal Clean Water Act as meeting the requirements of this chapter and a VWP general permit, provided that the nationwide or regional permit and the certification conditions:

1. Require that wetland or stream impacts be avoided and minimized to the maximum extent practicable;

2. Prohibit impacts that cause or contribute to a significant impairment of state waters or fish and wildlife resources;

3. Require compensatory mitigation sufficient to achieve no net loss of existing wetland acreage and functions or stream functions and water quality benefits;

4. Require that compensatory mitigation for unavoidable wetland impacts be provided in accordance with § 62.1-44.15:23 of the Code of Virginia and 9VAC25-210-116; and

5. Require that compensatory mitigation for unavoidable stream impacts be provided in accordance with § 62.1-44.15:23 of the Code of Virginia and 9VAC25-210-116, including an analysis of stream impacts utilizing a stream impact assessment methodology approved by the department.

I. The certifications allowed by subsection H of this section may be provided only after the department has advertised and accepted public comment on its intent to provide certification for at least 30 days.

J. Coverage under a general, regional, or nationwide permit promulgated by the USACE and certified by the department in accordance with this section shall be deemed coverage under a VWP general permit regulation upon submission of proof of coverage under the general, regional, or nationwide permit and any other information required by the department through the certification process. Notwithstanding the provisions of 9VAC25-20, no fee shall be required from applicants seeking coverage under this subsection.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 2.6, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 24, Issue 9, eff. February 6, 2008; Volume 25, Issue 5, eff. December 10, 2008; Errata, 25:9 VA.R. 1826 January 5, 2009; amended, Virginia Register Volume 32, Issue 21, eff. August 2, 2016; Volume 35, Issue 4, eff. November 14, 2018; Volume 38, Issue 1, eff. September 29, 2021; Volume 39, Issue 4, eff. November 9, 2022.

Part III Public Involvement

9VAC25-210-140 Public notice of VWP individual permit actions and public comment periods

A. Every draft VWP individual permit, with the exception of a VWP Emergency Virginia Water Protection Permit, shall be given public notice paid for by the applicant, by publication once in a newspaper of general circulation in the area affected by the proposed activity. The public notice must be published within 14 days of the applicant's receipt of a draft VWP permit, or the 120-day VWP permit processing timeframe will be suspended until such publication.

B. The department shall provide a comment period of at least 30 days following the date of the public notice for interested persons to submit written comments on the tentative decision and to request a public hearing on the VWP permit. All written comments submitted during the comment period shall be retained by the department and considered during its final decision on the VWP permit.

C. The contents of the public notice for a VWP permit application or proposed VWP permit action shall include:

1. Name and mailing address of the applicant;

2. The permit application number;

3. Project location. If the location of the activity differs from the address of the applicant the notice shall also state the location in sufficient detail such that the specific location may be easily identified;

4. Brief description of the business or activity to be conducted at the site of the proposed activity;

5. Description of the area affected. Information on the number of acres of wetlands and the number of linear feet of streams affected, as well as the name of the receiving waterway and the name of the affected watershed should be included;

6. Description of what the applicant plans to do to compensate for the affected area;

7. A statement of the tentative determination to issue or deny a VWP permit;

8. A brief description of the final determination procedure;

9. The address, email address and phone number of a specific person or persons at the state office from whom further information may be obtained; and

10. A brief description on how to submit comments and request a public hearing.

D. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application.

E. When a VWP permit is denied, the department shall do so in accordance with 9VAC25-210-230.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 3.1, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-150 Public access to information

All information (i) pertaining to VWP permit or VWP general permit coverage processing or (ii) in reference to any activity requiring a VWP permit or VWP general permit coverage under this chapter shall be available to the public, unless prohibited by § 62.1-44.21 of the Code of Virginia. All information claimed confidential must be identified as such at the time of submission to the department and the Virginia Marine Resources Commission.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 3.2, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-160 Public comments and hearing

A. The department shall consider all written comments and requests for a public hearing received during the VWP individual permit comment period and shall make a determination on the necessity of a public hearing in accordance with 9VAC25-210-165. All proceedings, public hearings and decisions from it will be in accordance with 9VAC25-210-165.

B. Should the department determine to dispense with the public hearing, it may grant the VWP individual permit.

C. Any applicant or permittee aggrieved by an action of the board taken without a public hearing, or inaction of the department, may request in writing a hearing pursuant to 9VAC25-210-165.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 3.3, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-165 Criteria for requesting and granting a public hearing on an individual permit action

A. During the public comment period on a permit action in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest the action or terms and conditions of the permit.

B. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and the conditions of the permit in question, together with suggested revisions and alterations to those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Water Control Board.

C. Upon completion of the public comment period on a permit action, the director shall review all timely requests for public hearing filed during the comment period on the permit action, and within 30 calendar days following the expiration of the time period for the submission of requests shall grant a public hearing, unless the permittee or applicant agrees to a later date if the director finds the following:

1. That there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;

2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

3. That the action requested by the interested party is not on its face inconsistent with or in violation of the basic laws of the State Water Control Board for a water permit action, a federal law, or any regulation promulgated thereunder.

D. The director of DEQ shall notify by email or postal mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.

E. If the request for a public hearing is granted, the director shall:

1. Schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing.

2. Cause or require the applicant to publish notice of a public hearing to be published once in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date.

F. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

G. The director may, at his discretion, convene a public hearing on a permit action.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-170 Public notice of hearing

A. Public notice of any public hearing held pursuant to 9VAC25-210-160 and 9VAC25-210-165 shall be circulated as follows:

1. Notice shall be published once in a newspaper of general circulation in the county or city where the activity is to occur; and

2. Notice of the public hearing shall be sent to all persons and government agencies that received a copy of the notice of VWP permit application and to those persons requesting a public hearing or having commented in response to the public notice.

B. Notice shall be effected pursuant to subdivisions A 1 and 2 of this section at least 30 days in advance of the public hearing.

C. The content of the public notice of any public hearing held pursuant to 9VAC25-210-160 and 9VAC25-210-165 shall include at least the following:

1. Name and mailing address of each person whose application will be considered at the public hearing and a brief description of the person's activities or operations including information on the number of acres of wetlands and the number of linear feet of streams affected, a description of the nature of the withdrawal and the amount of the withdrawal; as well as the name of the receiving waterway and the name of the affected watershed;

2. The precise location of the proposed activity and the surface waters that will, or may, be affected including, where possible, reference to route numbers, road intersections, map coordinates or similar information;

3. Description of what the applicant plans to do to compensate for the affected area;

4. A brief reference to the public notice issued for the VWP permit application or permit action, including the permit application number and date of issuance, unless the public notice includes the public hearing notice;

5. Information regarding the time and location for the public hearing;

6. The purpose of the public hearing;

7. A concise statement of the relevant water quality, or fish and wildlife resource issues raised by the persons requesting the public hearing;

8. Contact person and the mailing address, email address, name of the Department of Environmental Quality regional office and phone number of the DEQ office at which the interested persons may obtain further information or request a copy of the draft VWP permit prepared pursuant to 9VAC25-210-120; and

9. A brief reference to the rules and procedures to be followed at the public hearing.

D. Public notice of any hearing held pursuant to 9VAC25-210-160 C shall be in accordance with this section.

E. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 3.1, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-172 Controversial permits

Before rendering a final decision on a controversial permit, the department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at that time. In making its decision, the department shall consider (i) the verbal and written comments received during the comment period and the public hearing made part of the record, (ii) any commentary of the board, and (iii) the agency files.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-174 Controversial permits reporting

At each regular meeting of the board, the department shall provide an overview and update regarding any controversial permits pending before the department that are relevant. Immediately after such presentation by the department, the board shall have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

Part IV VWP Permit Modification, Revocation and Reissuance, Transfer, Termination and Denial

9VAC25-210-175 (Repealed.)

History

• Statutory Authority: Historical Notes
• Historical Notes: Derived from Virginia Register Volume 23, Issue 21, eff. July 25, 2007; repealed, Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

9VAC25-210-180 Rules for modification, revocation and reissuance, extension, transfer, and termination of VWP individual permits

A. VWP individual permits may be modified in whole or in part, revoked and reissued, extended, transferred, or terminated only as authorized by this section.

B. VWP permits may be modified upon the request of the permittee or upon department initiative when any of the following developments occur:

1. When new information becomes available about the project or activity covered by the VWP permit, including project additions or alterations, that was not available at VWP permit issuance and would have justified the application of different VWP permit conditions at the time of VWP permit issuance;

2. When a change is made in the promulgated standards or regulations on which the VWP permit was based;

3. When changes occur that are subject to "reopener clauses" in the VWP permit; or

4. When developments applicable to surface water withdrawals as specified in 9VAC25-210-380 occur.

C. A request for a modification, except those addressed in subsection E of this section, shall include the applicable informational requirements of 9VAC25-210-80 B, updated to reflect the proposed changes to the project. The department may request additional information as necessary to review and prepare a draft permit. If the department tentatively decides to modify a permit, it shall prepare a draft permit incorporating the proposed changes in accordance with 9VAC25-210-120 and process the draft permit in accordance with 9VAC25-210-140 through 9VAC25-210-170.

D. During the drafting and authorization of a permit modification under this section, only those conditions to be modified shall be addressed with preparing a draft modified permit. VWP permit terms and conditions of the existing permit shall remain in full force and effect during the modification of the permit.

E. Upon request of the permittee, or upon department initiative with the consent of the permittee, minor modifications may be made in the VWP permit without following the public involvement procedures contained in 9VAC25-210-140, 9VAC25-210-160, or 9VAC25-210-170. Any request for a minor modification shall be in writing and shall contain the facts or reasons supporting the request. The department may request additional information as necessary to review a request for minor modification. The department, at its discretion, may require that the changes proposed under a minor modification to be processed as a modification in accordance with subsections B and C of this section. For VWP permits, a minor modification may only be processed to:

1. Correct typographical errors.

2. Require monitoring and reporting by the permittee at a different frequency than required in the VWP permit, based on new information justifying the change in conditions.

3. Change a compliance date provided it will not result in a net loss of wetland acreage or of functions in all surface waters.

4. Allow for a change in permittee provided that a written agreement containing a specific date for transfer of VWP permit responsibility, authorization, and liability from the current to the new permittee has been submitted to the department. A VWP permit shall be transferred only if the VWP permit has been modified to reflect the transfer, has been revoked and reissued to the new permittee, or has been automatically transferred. Any individual VWP permit shall be automatically transferred to a new permittee if the current permittee:

a. Notifies the department of the proposed transfer of the permit and provides a written agreement between the current and proposed permittees containing the date of transfer of VWP permit responsibility, authorization, and liability to the new permittee; and

b. The department does not within 15 days notify the current and new permittees of its intent to modify the VWP permit.

5. Change project plans or uses that do not result in a change to permitted project impacts other than allowable by subdivisions 6 and 7 of this subsection.

6. Reduce wetland or stream impacts. Compensatory mitigation requirements may be modified in relation to the adjusted impacts, provided that the adjusted compensatory mitigation meets the initial compensatory mitigation goals. The Department of Environmental Quality shall not be responsible for ensuring refunds for mitigation bank credit purchases or in-lieu fee program credit purchases.

7. Authorize additional impacts to surface waters that are proposed prior to impacting the additional areas. Proposed additional impacts shall meet the following requirements:

a. The proposed additional impacts are located within the project boundary as depicted in the application for permit issuance, or are located in areas of directly related off-site work.

b. The permittee has provided sufficient documentation that the department may reasonably determine that the additional impacts will not impact federal or state listed threatened or endangered species or designated critical habitat, or result in a taking of threatened or endangered species. The department recommends that the permittee verify that the project will not impact any proposed threatened or endangered species or proposed critical habitat.

c. The cumulative, additional permanent wetland or open water impacts for one or more minor modifications do not exceed one-quarter of an acre (0.25 acre or 10,890 square feet).

d. The cumulative, additional permanent stream impacts for one or more minor modifications do not exceed 100 linear feet.

e. Documentation is provided demonstrating that the proposed surface water impacts have been avoided to the maximum extent practicable in accordance with the informational requirements of 9VAC25-210-80 B 1 g.

f. Compensatory mitigation for the proposed impacts, if required, meets the requirements of § 62.1-44.15:23 of the Code of Virginia, 9VAC25-210-80 B 1 m, and 9VAC25-210-116. Prior to a minor modification approval, DEQ may require submission of a compensatory mitigation plan for the additional impacts.

g. Where such additional impacts are temporary, and prior to initiating the impacts, the permittee provides a written statement to the department that the area to be temporarily impacted will be restored to its preconstruction elevations and contours with topsoil from the impact area where practicable, such that the previous acreage and functions are restored. The proposed temporary impacts shall be deemed approved if DEQ does not respond within 10 days of receipt of the request for authorization to temporarily impact additional surface waters.

8. Substitute a specific, DEQ-approved mitigation bank or in-lieu fee program with another DEQ-approved mitigation bank or in-lieu fee program, or substitute all or a portion of the prior authorized permittee-responsible compensatory mitigation with a purchase of mitigation credits in accordance with § 62.1-44.15:23 of the Code of Virginia and 9VAC25-210-116 C from a DEQ-approved mitigation bank or in-lieu fee program. The amount of credits proposed to be purchased shall be sufficient to meet the compensatory mitigation requirement for which the compensatory mitigation is proposed to replace.

9. Allow for extension of the expiration date of the VWP permit. Any permittee with an effective VWP permit for an activity that is expected to continue after the expiration date of the VWP permit, without any change in the activity authorized by the VWP permit other than as may be allowed under this section, shall submit written notification requesting an extension. The permittee must file the request 90 days prior to the expiration date of the VWP permit. VWP permit modifications shall not be used to extend the term of a VWP permit beyond 15 years from the date of original issuance.

10. Activities or development applicable to surface water withdrawals as specified in 9VAC25-210-380 B.

F. After notice and opportunity for a formal hearing pursuant to § 2.2-4020 of the Code of Virginia, a VWP permit can be terminated for cause. Reasons for termination for cause are as follows:

1. Noncompliance by the permittee with any condition of the VWP permit;

2. The permittee's failure in the application or during the VWP permit process to disclose fully all relevant facts or the permittee's misrepresentation of any relevant facts at any time;

3. The permittee's violation of a special or judicial order;

4. A determination by the department that the permitted activity endangers human health or the environment and can be regulated to acceptable levels by VWP permit modification or termination;

5. A change in any condition that requires either a temporary or permanent reduction or elimination of any activity controlled by the VWP permit; or

6. A determination that the permitted activity has ceased and that the compensation for unavoidable adverse impacts has been successfully completed.

G. The department may terminate the permit without cause when the permittee is no longer a legal entity due to death, dissolution, or when a company is no longer authorized to conduct business in the Commonwealth. The termination shall be effective 30 days after notice of the proposed termination is sent to the last known address of the permittee or registered agent, unless the permittee objects within that time. If the permittee does object during that period, the department shall follow the applicable procedures for termination under § 62.1-44.15:25 of the Code of Virginia and 9VAC25-230.

H. A VWP permit may be terminated by consent, as initiated by the permittee. The permittee shall submit a request for termination by consent within 30 days of completing or canceling all permitted activities and all required compensatory mitigation requirements. When submitted for project completion, the request for termination by consent shall constitute a notice of project completion. The director may accept this termination on behalf of the department. The permittee shall submit the following information:

1. Name, mailing address, and telephone number;

2. Name and location of the activity;

3. The VWP permit number; and

4. One of the following certifications:

a. For project completion: "I certify under penalty of law that all activities and any required compensatory mitigation authorized by a VWP permit have been completed. I understand that by submitting this notice of termination that I am no longer authorized to perform activities in surface waters in accordance with the VWP permit, and that performing activities in surface waters is unlawful where the activity is not authorized by a VWP permit, unless otherwise excluded from obtaining a permit. I also understand that the submittal of this notice does not release me from liability for any violations of this VWP permit."

b. For project cancellation: "I certify under penalty of law that the activities and any required compensatory mitigation authorized by this VWP permit will not occur. I understand that by submitting this notice of termination that I am no longer authorized to perform activities in surface waters in accordance with the VWP permit, and that performing activities in surface waters is unlawful where the activity is not authorized by a VWP permit, unless otherwise excluded from obtaining a permit. I also understand that the submittal of this notice does not release me from liability for any violations of this VWP permit, nor does it allow me to resume the permitted activities without reapplication and issuance of another permit."

c. For events beyond permittee control, the permittee shall provide a detailed explanation of the events, to be approved by DEQ, and the following certification statement: "I certify under penalty of law that the activities or the required compensatory mitigation authorized by this VWP permit have changed as the result of events beyond my control (see attached). I understand that by submitting this notice of termination that I am no longer authorized to perform activities in surface waters in accordance with the VWP permit, and that performing activities in surface waters is unlawful where the activity is not authorized by a VWP permit, unless otherwise excluded from obtaining a permit. I also understand that the submittal of this notice does not release me from liability for any violations of this VWP permit, nor does it allow me to resume the permitted activities without reapplication and issuance of another permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 4.1, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 38, Issue 1, eff. September 29, 2021; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-185 Duration of VWP individual permits

VWP permits issued under this chapter shall have an effective date and expiration date specified in the permit. The permit term shall be based upon the projected duration of the project, the length of any required monitoring, or other project operations or VWP permit conditions; however, the term shall not exceed 15 years, unless administratively continued. When a permit term, other than that of an Emergency Virginia Water Protection Permit, is less than 15 years, an extension of the permit terms and conditions may be granted in accordance with 9VAC25-210-180. Emergency Virginia Water Protection Permits shall not exceed a duration of one year or shall expire upon the issuance of a regular Virginia Water Protection Permit, whichever comes first.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 17, Issue 21, eff. August 1, 2001; amended, Virginia Register Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016.

9VAC25-210-190 (Repealed.)

History

• Historical Notes: Derived from VR680-15-02 § 4.2, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; repealed, Virginia Register Volume 23, Issue 21, eff. July 27, 2007.

9VAC25-210-200 (Repealed.)

History

• Historical Notes: Derived from VR680-15-02 § 4.3, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; repealed, Virginia Register Volume 23, Issue 21, eff. July 25, 2007.

9VAC25-210-210 (Repealed.)

History

• Historical Notes: Derived from VR680-15-02 § 4.4, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; repealed, Virginia Register Volume 23, Issue 21, eff. July 25, 2007.

9VAC25-210-220 Waiver of VWP permit or § 401 certification

A. The department may waive permitting requirements when the department determines that a proposed project impacts an isolated wetland that is of minimal ecological value as defined in 9VAC25-210-10. Upon request by the department, any person claiming this waiver shall demonstrate to the satisfaction of the department that he qualifies for the waiver.

B. The department may waive the requirement for a VWP individual permit when the proposed activity qualifies for a permit issued by the U.S. Army Corps of Engineers and receives a permit from the Virginia Marine Resources Commission or wetlands boards, pursuant to Chapter 12 (§ 28.2-1200 et seq.) or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, and the activity does not impact instream flows.

C. The department shall not require coverage under a VWP general permit or a VWP individual permit when the proposed activity meets the exclusion set forth in subdivision 10 a of 9VAC25-210-60 regardless of the issuance of a permit by the U.S. Army Corps of Engineers.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 4.5, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 25, Issue 5, eff. December 10, 2008; Volume 32, Issue 21, eff. August 2, 2016; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-230 Denial of the VWP permit or variance request

A. The department shall make a decision to tentatively deny the VWP permit or variance request if the requirements of this chapter are not met. Basis for denial include, but are not limited to, the following:

1. The project will result in violations of water quality standards or will impair the beneficial uses of state waters.

2. As a result of project implementation, shellfish waters would be condemned in accordance with 9VAC25-260.

3. The project that the applicant proposed fails to adequately avoid and minimize impacts to state waters to the maximum extent practicable.

4. The proposed compensatory mitigation plan is insufficient or unsatisfactory for the proposed impacts and fails to achieve no net loss of existing wetland acreage and function and no net loss of functions in all surface waters.

5. The Department of Wildlife Resources indicates that natural or stockable trout waters would be permanently and negatively impacted by the proposed activity.

6. The proposed activity is prohibited by 9VAC25-210-50.

7. The effect of project impacts, together with other existing or proposed impacts to wetlands, will cause or contribute to a significant impairment of state waters or fish and wildlife resources.

8. Failure to submit the required permit fee in accordance with 9VAC25-210-80 B 1 g or 9VAC25-210-340 C 1 g.

9. The department determines that the applicant for an Emergency Virginia Water Protection Permit has not demonstrated that there is a substantial threat to public health and safety, and that normal Virginia Water Protection Permit procedures, including public comment provisions, should be followed.

B. The applicant shall be notified by letter of the department's preliminary decision to tentatively deny the VWP permit requested.

C. Should the applicant withdraw his application, no VWP permit or variance will be issued.

D. Should the applicant elect to proceed as originally proposed, the department may deny the application and advise the applicant pursuant to 9VAC25-210-160 and 9VAC25-210-165 of his right to a public hearing to consider the denial.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from VR680-15-02 § 4.6, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 32, Issue 21, eff. August 2, 2016; Volume 37, Issue 5, eff. November 25, 2020; Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-240 (Repealed.)

History

• Historical Notes: Derived from VR680-15-02 § 5.1, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; repealed, Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

9VAC25-210-250 (Repealed.)

History

• Historical Notes: Derived from VR680-15-02 § 6.1, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; repealed, Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

9VAC25-210-260 (Repealed.)

History

• Historical Notes: Derived from VR680-15-02 § 6.2, eff. May 20, 1992; amended, Virginia Register Volume 17, Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; repealed, Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

Part V Surface Water Withdrawals

9VAC25-210-300 Definitions for surface water withdrawals

The following words and terms when used in this part shall have the following meanings:

"Affected stream reach" means the portion of a surface water body beginning at the location of a withdrawal and ending at a point where effects of the withdrawal are not reasonably expected to adversely affect beneficial uses.

"Agricultural surface water withdrawal" means a withdrawal of surface water in Virginia or from the Potomac River for the purpose of agricultural, silvicultural, horticultural, or aquacultural operations. Agricultural surface water withdrawals include withdrawals for turf farm operations, but do not include withdrawals for landscaping activities or turf installment and maintenance associated with landscaping activities.

"Consumptive use" means any use of water withdrawn from a surface water other than a nonconsumptive use.

"Drought" means the declaration of a drought stage by the Virginia Drought Coordinator or the Governor of Virginia for a particular area or locality within Virginia. Drought stage declarations include watch, warning, and emergency, depending upon severity, as defined by the Virginia Drought Assessment and Response Plan dated March 28, 2003.

"Drought of record" means the time period during which the most severe drought conditions occurred for a particular area or location, as indicated by the available hydrologic and meteorologic data.

"Emergency Virginia Water Protection Permit" means a Virginia Water Protection Permit issued pursuant to § 62.1-44.15:22 C of the Code of Virginia authorizing a new or increased surface water withdrawal to address insufficient public drinking water supplies that are caused by a drought and may result in a substantial threat to human health or public safety.

"Human consumption" means the use of water to support human survival and health, including drinking, bathing, showering, cooking, dishwashing, and maintaining hygiene.

"Instream flow" means the existing volume of water flowing in a stream or water body, including any seasonal variations of water levels and flow.

"Intake structure" means any portion of a surface water withdrawal system used to withdraw surface water that is located within the surface water, such as, but not limited to, a pipe, culvert, hose, tube, or screen.

"Major river basin" means the Potomac-Shenandoah River Basin, the Rappahannock River Basin, the York River Basin, the James River Basin, the Chowan River Basin, the Roanoke River Basin, the New River Basin, or the Tennessee-Big Sandy River Basin.

"Nonconsumptive use" means the use of water withdrawn from a surface water in such a manner that it is returned to the surface water without substantial diminution in quantity at or near the point from which it was taken and would not result in or exacerbate low flow conditions.

"Potomac River Low Flow Allocation Agreement" means the agreement among the United States of America, the State of Maryland, the Commonwealth of Virginia, the District of Columbia, the Washington Suburban Sanitation Commission, and the Fairfax County Water Authority dated January 11, 1978, consented to by the United States Congress in § 181 of the Water Resources Development Act of 1976, Public Law 94-587, as modified on April 22, 1986.

"Public water supply" means a withdrawal of surface water in Virginia or from the Potomac River for the production of drinking water, distributed to the general public for the purpose of, but not limited to, domestic use.

"Public water supply emergency" means a substantial threat to public health or safety due to insufficient public drinking water supplies caused by drought.

"Section for Cooperative Water Supply Operations on the Potomac" means a section of the Interstate Commission on the Potomac River Basin designated by the Water Supply Coordination Agreement as responsible for coordination of water resources during times of low flow in the Potomac River.

"Surface water withdrawal" means a removal or diversion of surface water in Virginia or from the Potomac River for consumptive or nonconsumptive use thereby altering the instream flow or hydrologic regime of the surface water. Projects that do not alter the instream flow or that alter the instream flow but whose sole purpose is flood control or stormwater management are not included in this definition.

"Surface water withdrawal system" means any device or combination of devices used to withdraw surface water such as, but not limited to, a machine, pump, culvert, hose, tube, screen, or fabricated concrete or metal structure.

"Variance" means a mechanism that allows temporary waiver of the generally applicable withdrawal limitation requirements or instream flow conditions of a VWP permit during a drought.

"Water loss" means the difference between the estimated or measured volume of water withdrawn and the estimated or measured volume applied to the beneficial use.

"Water loss audit" means the review of records and data that traces the flow of water from its withdrawal through distribution and application to the beneficial use.

"Water Supply Coordination Agreement" means the agreement among the United States of America, the Fairfax County Water Authority, the Washington Suburban Sanitary Commission, the District of Columbia, and the Interstate Commission on the Potomac River Basin, dated July 22, 1982, which establishes agreement among the suppliers to operate their respective water supply systems in a coordinated manner and which outlines operating rules and procedures for reducing impacts of severe droughts in the Potomac River Basin.

"Water supply plan" means a document developed in compliance with 9VAC25-780.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 41, Issue 24, eff. August 13, 2025.

9VAC25-210-310 Exclusions from permits for surface water withdrawals

A. The following surface water withdrawals are excluded from VWP permit requirements. Activities other than the surface water withdrawal that are contained in 9VAC25-210-50 and are associated with the construction and operation of the surface water withdrawal are subject to VWP permit requirements, unless excluded by 9VAC25-210-60. Other permits under state and federal law may be required.

1. Any surface water withdrawal in existence on July 1, 1989; however, a permit shall be required if a new § 401 certification is required to increase a withdrawal. To qualify for this exclusion, the surface water withdrawal shall be deemed to be in existence on July 1, 1989, if there was an actual withdrawal on or before that date and the withdrawal has not been abandoned.

a. Abandonment of a surface water withdrawal. A surface water withdrawal shall be deemed to be abandoned if the owner of the surface water withdrawal system (i) notifies the Department of Environmental Quality in writing that the withdrawal has been abandoned or (ii) removes or disables the surface water withdrawal system with the intent to permanently cease such withdrawal. Transfer of ownership or operational control of the surface water withdrawal system, a change in use of the water, or temporary cessation of the withdrawal shall not be deemed evidence of abandonment. The notification shall be signed by the owner of record or shall include evidence satisfactory to DEQ that the signatory is authorized to submit the notice on behalf of the owner of record. Evidence may include, but shall not be limited to, a resolution of the governing body of the owner or corporate minutes.

b. Information to be furnished to DEQ. Each owner or operator of a permanent surface water withdrawal system engaging in a withdrawal that is subject to this exclusion shall provide DEQ the estimated maximum capacity of the intake structure, the location of the existing intake structure, and any other information that may be required by the department. Each owner or operator of a temporary surface water withdrawal system engaging in a withdrawal that is subject to this exclusion, where the purpose of the withdrawal is for agriculture, shall provide to DEQ the maximum annual surface water withdrawal over the last 10 years. The information shall be provided within one year of the date that notice of such request is received from DEQ and shall be updated when the maximum capacity of the existing intake structure changes. The information provided to DEQ shall not constitute a limit on the exempted withdrawal. Such information shall be utilized by DEQ to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

2. Any surface water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal received a § 401 certification before January 1, 1989, that authorized the installation of any necessary withdrawal structures to make such withdrawal. However, a permit shall be required before any such withdrawal is increased beyond the amount authorized by the certification.

3. Any existing lawful unpermitted surface water withdrawal initiated between July 1, 1989, and July 25, 2007, that has complied with the Water Withdrawal Reporting regulations (9VAC25-200) and that is not subject to other exclusions contained in this section. Any increase in that withdrawal above the limited amount identified in subdivision a of this subdivision A 3 shall require an application for a permit for the surface water withdrawal system.

a. The largest 12-consecutive month surface water withdrawal that occurred in the 10 years prior to July 25, 2007, shall constitute a limit on the withdrawal that is excluded from permit requirements. For agricultural surface water withdrawals that did not report annually as required by the Water Withdrawal Reporting regulations (9VAC25-200) prior to July 25, 2007, the limit excluded from permit requirements was established for the operations that were in existence during the 10 years prior to July 25, 2007, by estimating the largest 12-consecutive month withdrawal based upon the following information associated with that timeframe: the area irrigated, depth of irrigation, and annual number of irrigations; pumping capacity and annual pumping time; annual energy consumption for pumps; number and type of livestock watered annually; and number and type of livestock where water is used for cooling purposes.

b. All owners and operators of surface water withdrawals excluded from permit requirements by this section shall annually report withdrawals as required by the Water Withdrawal Reporting regulations (9VAC25-200). Failure to file annual reports either reporting actual withdrawals or the fact that withdrawals did not occur may result in the owner or operator being required to cease withdrawals, file an application, and receive a permit prior to resuming any withdrawal. Information regarding excluded withdrawal amounts shall be utilized by DEQ to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

4. Agricultural surface water withdrawals that total less than:

a. One million gallons in a single month from nontidal waters.

b. 60 million gallons in a single month from tidal waters.

5. Surface water withdrawals from tidal waters for nonconsumptive uses.

6. Surface water withdrawals from nontidal or tidal waters, regardless of the volume withdrawn, for the following uses:

a. Firefighting or for the training activities related to firefighting, such as dry hydrants and emergency surface water withdrawals.

b. Hydrostatic pressure testing of water tight containers, pipelines, and vessels.

c. Normal single-family home residential gardening and lawn and landscape maintenance.

7. Surface water withdrawals placed into portable containers by persons owning property on or holding easements to riparian lands.

8. Surface water withdrawals that return withdrawn water to the stream of origin; do not divert more than half of the instantaneous flow of the stream; have the withdrawal point and the return point not separated by more than 1,000 feet of stream channel; and have both banks of the affected stream segment located within one property boundary.

9. Surface water withdrawals from quarry pits that do not alter the physical, biological, or chemical properties of surface waters connected to the quarry pit.

10. Surface water withdrawals from a privately owned agriculture pond, emergency water storage facility, or other water retention facility, provided that such pond or facility is not placed in the bed of a perennial or intermittent stream or wetland. Surface water withdrawals from such facilities constructed in beds of ephemeral streams are excluded from permit requirements.

11. Surface water withdrawals for all other purposes not otherwise excluded by subdivisions 4 through 10 of this subsection that total less than:

a. 10,000 gallons per day from nontidal waters.

b. Two million gallons per day from tidal waters.

B. DEQ may require any owner or operator of a surface water withdrawal system excluded from permit requirements by subdivisions A 3 through A 11 of this section to cease withdrawals and file an application and receive a permit prior to resuming any withdrawal when the department's assessment indicates that a withdrawal, whether individually or in combination with other existing or proposed projects:

1. Causes or contributes to, or may reasonably be expected to cause or contribute to, a significant impairment of the state waters or fish and wildlife resources;

2. Adversely impacts other existing beneficial uses; or

3. Will cause or contribute to a violation of water quality standards.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-315 Use of data in permit decision for surface water withdrawals

The department is authorized to utilize and incorporate comprehensive groundwater, surface water, and aquifer data in permit decisions. Such data may include information relating to water levels, flow rates, and water quality.

History

• Statutory Authority: § 62.1-44.15:22 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-210-320 Preapplication procedures for new or expanded surface water withdrawals

A. Preapplication review panel. At the request of a potential applicant for a surface water withdrawal proposing to the Department of Environmental Quality to withdraw 90 million gallons a month or greater, a preapplication review panel shall be convened prior to submission of a VWP application. The preapplication review panel shall assist potential applicants that are proposing surface water withdrawals with the early identification of issues related to the protection of beneficial instream and offstream uses of state waters and the identification of the affected stream reach. DEQ shall notify the Virginia Marine Resources Commission, the Virginia Institute of Marine Science, the Virginia Department of Wildlife Resources, the Virginia Department of Conservation and Recreation, the Virginia Department of Health, the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the U.S. Environmental Protection Agency, and other appropriate local, state, and federal agencies of the preapplication review panel request. These agencies shall participate to the extent practicable in the preapplication review panel by providing information and guidance on the potential natural resource impacts and regulatory implications of the options being considered by the applicant and shall provide comments within 60 days of the initial meeting of the preapplication panel.

B. Preapplication public notice. For new or expanded surface water withdrawals requiring an individual VWP permit and proposing to withdraw 90 million gallons a month or greater, a potential applicant shall provide information on the project, shall provide an opportunity for public comment on the proposed project, and shall assist in identifying public concerns or issues prior to filing a VWP individual permit application.

1. Except as provided in this subsection, the potential applicant shall provide for publication of notice once a week for two consecutive weeks in a newspaper of general circulation serving the locality where the surface water withdrawal is proposed to be located.

2. If requested by any person, the potential applicant shall hold at least one public information meeting. Notice of any public information meeting held pursuant to this subsection shall be provided at least 14 days prior to the public information meeting date and shall be published in the same manner as required in subdivision 1 of this subsection. A potential applicant shall submit the notice to DEQ for posting on the DEQ website. At a minimum, any notice required by this subsection shall include:

a. A statement of the potential applicant's intent to apply for a VWP permit for a surface water withdrawal;

b. The proposed location of the surface water withdrawal;

c. Information on how the public may request a public information meeting or, in the alternative, the date, time, and location of the public information meeting;

d. The name, address, and telephone number of the potential applicant, or an authorized representative who can answer questions or receive comments on the proposed surface water withdrawal; and

e. A statement of how oral or written public comments will be used.

3. In accordance with the provisions of 9VAC25-780-50 C 11 and 9VAC25-780-150, a potential applicant shall not be required to publish public notice or provide an opportunity for a public information meeting if a public meeting has been held within two years prior to the submittal of an application for a VWP permit on a local or regional water supply plan, which includes the proposed project.

4. The potential applicant shall maintain a list of persons making comment and their addresses and shall make a good faith effort to notify commenters at the address provided by the commenter when the public notice for the draft VWP individual permit is available.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended Virginia Register Volume 37, Issue 5, eff. November 25, 2020.

9VAC25-210-330 Coordinated review with the Virginia Marine Resources Commission on applications for surface water withdrawals

A. The Department of Environmental Quality shall coordinate the review of an application for surface water withdrawals that also requires a Virginia Marine Resources Commission (VMRC) permit under Chapter 12 (§ 28.2-1200 et seq.) of Title 28.2 of the Code of Virginia with the VMRC in accordance with § 62.1-44.15:5.01 of the Code of Virginia.

B. The initial application for surface water withdrawals that requires both an individual Virginia Water Protection Permit and a VMRC permit shall be advertised concurrently by DEQ and VMRC. When appropriate, such advertisement may be in the form of a joint public notice of the application, prepared by VMRC with the assistance of DEQ, published once in a newspaper of general circulation in the area affected by the proposed activity in accordance with VMRC regulations and policy. Such advertising shall be paid for by the applicant.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

9VAC25-210-340 Application requirements for surface water withdrawals

A. Persons proposing to initiate a new or expanded surface water withdrawal not excluded from requirements of this chapter by 9VAC25-210-310, proposing to reapply for a current permitted withdrawal, or a Federal Energy Regulatory Commission (FERC) license or relicense associated with a surface water withdrawal, shall apply for a VWP permit.

B. In addition to informational requirements of 9VAC25-210-80 B and if applicable, 9VAC25-210-80 C, applications for surface water withdrawals or a FERC license or relicense associated with a surface water withdrawal shall include:

1. As part of identifying the project purpose, a narrative describing the water supply issues that form the basis of the proposed project purpose.

2. The drainage area, the average annual flow and the median monthly flows at the withdrawal point, and historical low flows if available.

3. The average daily withdrawal; the maximum daily, monthly, annual, and instantaneous withdrawals; and information on the variability of the demand by season. If the project has multiple intake structures, provide for each individual intake structure and the cumulative volumes for the entire surface water withdrawal system.

4. The monthly consumptive use volume in million gallons and the average daily return flow in million gallons per day of the proposed project and the location of the return flow, including the latitude and longitude and the drainage area in square miles at the discharge point.

5. Information on flow dependent beneficial uses along the affected stream reach. For projects that propose a transfer of water resources from a major river basin to another major river basin, this analysis should include both the source and receiving basins.

a. Evaluation of the flow dependent instream and offstream beneficial uses. Instream beneficial uses include the protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. Offstream beneficial uses include domestic (including public water supply), agricultural, electric power generation, and commercial and industrial uses.

b. The aquatic life, including species and habitat requirements.

c. How the proposed withdrawal will alter flows.

6. Information on the proposed use of and need for the surface water and information on how demand for surface water was determined (e.g., per capita use, population growth rates, new uses, changes to service areas, and if applicable, acreage irrigated and evapotranspiration effects). If during the water supply planning process, the need for the withdrawal was established, the applicant may submit the planning process information, provided that the submittal addresses all requirements of 9VAC25-210-360. The department shall deem such a submittal as meeting the requirements of this subsection. For surface water withdrawals for public water supply, see also 9VAC25-780-100 and 9VAC25-780-130.

7. Information describing the intake structure, to include intake screen mesh size and intake velocity.

8. For withdrawals proposed from an impoundment, the following:

a. Description of the flow or release control structures, including the minimum rate of flow, in cubic feet per second, size and capacity of the structure, and the mechanism to control the release.

b. Surface area in acres, maximum depth in feet, normal pool elevation, total storage capacity, and unusable storage volume in acre-feet.

c. The stage-storage relationship. For example, the volume of water in the impoundment at varying stages of water depth.

9. Whether the proposed surface water withdrawal is addressed in the water supply plan that covers the area in which the withdrawal is proposed to be located. If the proposed withdrawal is included, provide a discussion as to how the proposed withdrawal is addressed in the water supply plan, specifically in terms of projected demand, analysis of alternatives, and water conservation measures. If all or a portion of the withdrawn water will be transferred to an area not covered by the plan, the discussion shall also include the water supply plan for the area of the receiving watershed.

10. An alternatives analysis for the proposed surface water withdrawal, including at a minimum the criteria in 9VAC25-210-360.

11. For new or expanded surface water withdrawals proposing to withdraw 90 million gallons a month or greater, a summary of the steps taken to seek public input as required by 9VAC25-210-320 and an identification of the issues raised during the course of the public information meeting process.

12. For new or expanded surface water withdrawals that involve a transfer of water between major river basins that may impact a river basin in another state, a plan describing procedures to notify potentially affected persons, both in and outside of Virginia, of the proposed project.

13. For surface water withdrawals, other than for public water supply, information to demonstrate that alternate sources of water supply are available to support the operation of the facility during times of reduced instream flow.

14. For surface water withdrawals for public water supply, a water auditing plan for an annual water loss audit in accordance with the American Water Works Association (AWWA) methodology for water loss auditing using the most recent version of the AWWA Water Audit Software or another methodology approved by the department that estimates water loss.

a. A water loss audit using an approved methodology shall be conducted annually. The requirement to conduct an annual water loss audit shall begin upon permit issuance. By the end of the first year of the permit term, the permittee shall submit documentation to the department that the water loss audit has been initiated. This documentation shall include activities completed during the first year of the permit term.

b. The applicant shall report the results of the annual water loss audits in a report submitted at a minimum of every three years.

15. For surface water withdrawals for public water supply, a leak detection and repair plan shall be submitted. The leak detection and repair plan shall indicate how its implementation will be informed by the results of the annual water loss audit process and shall be updated during each new permit term. The plan shall include:

a. A description of how the water loss audit results are expected to inform prioritization of actions to address water loss;

b. Where practicable, a process for the identification of equipment needs to quantify and reduce water loss;

c. Where practicable, a schedule for inspection of equipment and distribution systems for actual water losses; and

d. In the report required by subdivision B 14 b of this section, a description of the plan's effectiveness in addressing water loss, including revisions to those elements of the leak detection and repair plan that can be improved over the short term and long term.

16. For surface water withdrawals for commercial and industrial users, a water auditing plan for a water loss audit to be conducted beginning in the first three years of the permit term. The plan shall include a description of the methodology used to determine the water loss for the operation and the quantity of water used throughout the facility.

a. A water audit using this methodology shall be conducted once every three years. The requirement to conduct a water loss audit shall begin upon permit issuance. The permittee shall submit documentation to include activities completed during the first three years of the permit term.

b. The applicant shall conduct a water loss audit and report the results of the water loss audits in a report submitted every three years.

17. For surface water withdrawals for commercial and industrial users, a leak detection and repair plan shall be submitted. The leak detection and repair plan shall indicate how its implementation will be informed by the results of the water loss audit process and shall be updated during each new permit term. The plan shall include:

a. A description of how the water audit results are expected to inform prioritization of actions to address water loss;

b. Where practicable, a process for the identification of equipment needs to quantify and reduce water loss;

c. Where practicable, a schedule for inspection of equipment and piping systems for actual water losses; and

d. In the report required by subdivision B 16 b of this section, a description of the leak detection and repair plan's effectiveness in addressing water loss, including revisions to those elements of the leak detection and repair plan that can be improved over the short term and long term.

18. For surface water withdrawals for agricultural users, a water auditing plan for an annual water loss audit that shall be conducted annually or periodically based on agricultural management plans or irrigation management plans, including the anticipated crop rotation schedule or livestock growth stages. The water auditing plan shall include an estimate of water loss for the agricultural operation and a description of the methodology used to determine the quantity of water used throughout the agricultural operation.

a. A water audit using this methodology shall be conducted. The requirement to conduct a water loss audit shall begin upon permit issuance. By the end of the first year of the permit term, the permittee shall submit documentation to the department that the water loss audit has been initiated. This documentation shall include activities completed during the first year of the permit term.

b. The applicant shall report the results of the water loss audit in a report submitted at a minimum every three years.

19. For surface water withdrawals for agricultural users, a leak detection and repair plan shall be submitted. The leak detection and repair plan shall indicate how its implementation will be informed by the results of the water loss audit process and shall be updated during each new permit term. The plan shall include:

a. A description of how the water audit results are expected to inform prioritization of actions to address water loss;

b. Where practicable, a schedule for inspection of equipment and distribution systems for actual water losses; and

c. In the report required by subdivision B 18 b of this section, a description of the leak detection and repair plan's effectiveness in addressing water loss, including revisions to those elements of the leak detection and repair plan that can be improved over the short term and long term.

C. Applications for an Emergency Virginia Water Protection Permit.

1. Applications for an Emergency Virginia Water Protection Permit to address a public water supply emergency shall include the information noted in subdivisions 1 a through 1 o of this subsection. The JPA may be used for emergency application purposes, provided that all of the information in subdivisions 1 a through 1 o of this subsection is included:

a. The applicant's legal name, mailing address, telephone number, and if applicable, fax number and email address;

b. If different from applicant, name, mailing address, telephone number, and if applicable, fax number and email address of property owner;

c. If applicable, authorized agent's name, mailing address, telephone number, and if applicable, fax number and email address;

d. Name of water body or water bodies, or receiving waters, as applicable;

e. Name of the city or county where the project occurs;

f. Signed and dated signature page (electronic submittals containing the original signature page, such as that contained in a scanned document file are acceptable);

g. Permit application fee in accordance with 9VAC25-20;

h. The drainage area, the average annual flow and the median monthly flows at the withdrawal point, and historical low flows if available;

i. Information on the aquatic life along the affected stream reach, including species and habitat requirements;

j. Recent and current water use, including monthly water use in the previous calendar year and weekly water use in the six months prior to the application. The application shall identify the sources of such water and also identify any water purchased from other water suppliers;

k. A description of the severity of the public water supply emergency, including (i) for reservoirs, an estimate of days of remaining supply at current rates of use and replenishment; (ii) for wells, current production; and (iii) for intakes, current streamflow;

l. A description of mandatory water conservation measures taken or imposed by the applicant and the dates when the measures were implemented; for the purposes of obtaining an Emergency Virginia Water Protection Permit, mandatory water conservation measures shall include the prohibition of lawn and landscape watering, vehicle washing, watering of recreation fields, refilling of swimming pools, and washing of paved surfaces;

m. An estimate of water savings realized by implementing mandatory water conservation measures;

n. Documentation that the applicant has exhausted all management actions that would minimize the threat to public welfare, safety, and health and will avoid the need to obtain an emergency permit and that are consistent with existing permit limitations; and

o. Any other information that demonstrates that the condition is a substantial threat to public health or safety.

2. Within 14 days after the issuance of an Emergency Virginia Water Protection Permit, the permit holder shall apply for a VWP permit under the other provisions of this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022; Volume 41, Issue 24, eff. August 13, 2025.

9VAC25-210-350 Duty to reapply for a permit for a continuation of a surface water withdrawal

A. Any permittee with an effective permit for a surface water withdrawal shall submit a new permit application at least 270 days before the expiration date of an effective permit, unless permission for a later date has been granted by the department. The Department of Environmental Quality may administratively continue an expiring permit in accordance with 9VAC25-210-65.

B. The applicant shall provide all information described in 9VAC25-210-340 and applicable portions of 9VAC25-210-80 for any reapplication. The information may be provided by referencing information previously submitted to the department that remains accurate and relevant to the permit application. The department may waive any requirement of 9VAC25-210-340 and the applicable portions of 9VAC25-210-80 B, if it has access to substantially identical information.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-360 Evaluation of project alternatives for surface water withdrawals

The applicant shall demonstrate to the satisfaction of the department that the project meets an established need for water to meet the project purpose. In establishing need, the applicant shall provide the following information:

1. Existing supply sources, yields, and demands, including:

a. Peak day and average daily withdrawal;

b. The public water supply safe yield and lowest daily flow of record;

c. Types of water uses; and

d. Existing water conservation measures and drought response plan, including what conditions trigger their implementation.

2. Projected demands over a minimum 30-year planning period, including the following:

a. Projected demand contained in the local or regional water supply plan developed in accordance with 9VAC25-780 or for the project service area, if such area is smaller than the planning area; if applicable or

b. Statistical population (growth) trends; if applicable, projected demands by use type; projected demand without water conservation measures; and projected demands with long-term water conservation measures.

3. Any alternatives analysis conducted specifically for withdrawals for public water supply shall include:

a. The range of alternatives to be analyzed by the applicant as follows:

(1) All applicable alternatives contained in the local or regional water supply plan developed in accordance with 9VAC25-780;

(2) Alternatives that are practicable or feasible from both a technical and economic standpoint that had not been identified in the local or regional water supply plan developed in accordance with 9VAC25-780;

(3) Alternatives that are available to the applicant but not necessarily under the current jurisdiction of the applicant; and

(4) Water conservation measures that could be considered as a means to reduce demand for each alternative considered by the applicant.

b. The applicant shall provide a narrative description that outlines the opportunities and status of regionalization efforts undertaken by the applicant.

c. The criteria used to evaluate each alternative for the purpose of establishing the least environmentally damaging practicable alternative, which includes but is not limited to:

(1) Demonstration that the proposed alternative meets the project purpose and project demonstrated need as documented pursuant to this section;

(2) Availability of the alternative to the applicant;

(3) Evaluation of interconnectivity of water supply systems, both existing and proposed;

(4) Evaluation of the cost of the alternative on an equivalent basis;

(5) Evaluation of alternative public water supply safe yields;

(6) Presence and potential impact of alternative on state and federally listed threatened and endangered species;

(7) Presence and potential impact of alternative on wetlands and streams (based on maps and aerial photos for all alternatives, field delineation required for preferred alternative);

(8) Evaluation of effects on instream flow; and

(9) Water quality considerations, including:

(a) Land use within a watershed where the type of land use may impact the water quality of the source;

(b) The presence of impaired streams and the type of impairment;

(c) The location of point source discharges; and

(d) Potential threats to water quality other than those listed in this subdivision 3 c (9).

4. Any alternatives analysis conducted for surface water withdrawals other than for public water supply shall include the following items of subdivision 3 of this section: subdivisions 3 a (3), 3 a (4), and 3 c. The analysis shall also include applicable items of subdivisions 3 a (1), 3 a (2), and 3 b.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-370 VWP permit conditions applicable to surface water withdrawal permits

A. In addition to the conditions established in 9VAC25-210-90 and 9VAC25-210-100, each VWP permit shall include conditions meeting the requirements established in this section, where applicable.

B. Instream flow conditions. Subject to the provisions of Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia, and subject to the authority of the State Corporation Commission over hydroelectric facilities contained in Chapter 7 (§ 62.1-80 et seq.) of Title 62.1 of the Code of Virginia, instream flow conditions may include, but are not limited to, conditions that limit the volume and rate at which surface water may be withdrawn at certain times, the public water supply safe yield, and conditions that require water conservation and reductions in water use.

1. In the development of conditions that limit the volume and rate at which surface water may be withdrawn, consideration shall be given to the seasonal needs of water users and the seasonal availability of surface water flow.

2. Consideration shall also be given to the affected stream reach and the amount of water that is put to a consumptive use in the process.

3. In the development of instream flow conditions for new withdrawals, the department shall take into consideration the combined effect on the hydrologic regime of the surface water within an affected stream reach due to consumptive water uses associated with:

a. All existing permitted withdrawals;

b. The total amount of withdrawals excluded from VWP permit requirements; and

c. Any other existing lawful withdrawals.

4. VWP permits for surface water withdrawals, other than for public water supply, shall identify how alternate sources of water supply will be made available to support the operation of the permitted facility during times when surface water withdrawals will be curtailed due to instream flow requirements or shall provide for modification of the operation of the facility to ensure compliance with permit conditions. Such modifications may include, but are not limited to, termination or reduction of activities at the facility that are dependent on the permitted withdrawal, increase capacity to capture and store higher flows, or implementation of other potential management options.

C. VWP permits issued for surface water withdrawals from the Potomac River between the Shenandoah River confluence and Little Falls shall contain a condition that requires the permittee to reduce withdrawals when the restriction or emergency stage is declared in the Washington Metropolitan Area under the provisions of the Potomac River Low Flow Allocation Agreement or when the operating rules outlined by the Drought-Related Operations Manual for the Washington Metropolitan Area Water Suppliers, an attachment to the Water Supply Coordination Agreement, are in effect. The department, after consultation with the Section for Cooperative Water Supply Operations on the Potomac (CO-OP), shall direct the permittee as to when, by what quantity, and for what duration withdrawals shall be reduced.

D. The department may issue permits for new or expanded surface water withdrawals that are not excluded from the requirements of this chapter by 9VAC25-210-310 based on the following criteria:

1. The amount of the surface water withdrawal is limited to the amount of water that can be put to beneficial use.

2. Based on the size and location of the surface water withdrawal, the withdrawal is not likely to have a detrimental impact on existing instream or offstream uses.

3. Based on an assessment by the department, this withdrawal, whether individually or in combination with other existing or proposed projects, does not cause or contribute to, or may not reasonably be expected to cause or contribute to:

a. A significant impairment of the state waters or fish and wildlife resources;

b. Adverse impacts on other existing beneficial uses; or

c. A violation of water quality standards.

4. In cases where the department's assessment indicates that criteria contained in subdivisions 2 and 3 of this subsection are not met, the department may issue a permit with special conditions necessary to assure these criteria are met.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-380 Modifications to surface water withdrawal permits

A. In addition to the requirements of 9VAC25-210-180 B, VWP permits for surface water withdrawals may be modified when any of the following developments occur:

1. When the department determines that minimum instream flow levels resulting directly from the permittee's withdrawal of surface water are detrimental to the instream beneficial use, existing at the time of permit issuance, and the withdrawal of surface water should be subject to further net limitations or when an area is declared a surface water management area pursuant to §§ 62.1-242 through 62.1-253 of the Code of Virginia, during the term of the VWP permit.

2. Significant changes to the location of the surface water withdrawal system are proposed such that the Department of Environmental Quality determines a new review is warranted due to the potential effect of the surface water withdrawal to existing beneficial uses of the new location.

3. Changes to the permitted project or the surface water withdrawal, including increasing the storage capacity for the surface water withdrawal, that propose an increase in the maximum permitted withdrawal volumes or rate of withdrawal or that cause more than a minimal change to the instream flow requirements with potential to result in a detrimental effect to existing beneficial uses.

4. A revision to the purpose of the surface water withdrawal that proposes to include a new use or uses that were not identified in the permit application or a modification of the existing authorized use or uses such that the use description in the permit application and permit is no longer applicable. Examples of uses include, but are not limited to agricultural irrigation, golf course irrigation, public water supply, manufacturing, and electricity generation.

B. Minor modifications may be made in the VWP permit for surface water withdrawals without following the public involvement requirements of 9VAC 25-210-140, 9VAC 25-210-160, or 9VAC 25-210-170. Any request for a minor modification shall be in writing and shall contain the facts or reasons supporting the request. The department may request additional information as necessary to review a request for a minor modification. Minor modifications may only occur in accordance with 9VAC25-210-180 E and the following items specific to surface water withdrawals:

1. Minor changes to the location of the surface water withdrawal system, as determined by DEQ, and thus not warranting a new review of the effect of the surface water withdrawal to existing beneficial uses.

2. Allow for temporary changes to instream flow requirements or operational permit requirements to address situations such as surface water withdrawal system improvements, environmental studies, or as otherwise determined appropriate by DEQ.

3. Changes to the permitted project, including increasing the storage capacity for the surface water withdrawal, that do not cause more than a minimal change to the instream flow requirements and do not have the potential to result in a detrimental effect to existing beneficial uses.

4. Changes to the monitoring methods or locations of monitoring sites for instream flow requirements or surface water withdrawal requirements.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-390 Variance from surface water withdrawal permit conditions

A. For public water supplies. The department may grant a temporary variance to any condition of a VWP permit for a surface water withdrawal for a public water supply to address a public water supply emergency during a drought. A permittee requesting such variance must provide all information required in the application for an Emergency Virginia Water Protection Permit identified in 9VAC25-210-340 C.

B. For all other water supplies. The department may grant a temporary variance to any condition of a VWP permit for a surface water withdrawal during a drought. A permittee requesting such variance must affirmatively demonstrate:

1. Public health and safety interests are served by the issuance of such variance; and

2. All management actions consistent with existing permits have been exhausted.

C. As a condition of any variance granted, the permittee shall:

1. Modify operations or facilities to comply with existing VWP permit conditions as soon as practicable; or

2. Provide new information to the department that alternate permit conditions are appropriate and either apply for a new VWP permit or a modification to its existing VWP permit. The department shall review any such application consistent with other sections of this chapter.

D. In addition, the department may require the permittee to take any other appropriate action to minimize adverse impacts to other beneficial uses.

E. Any variances issued by the department shall be of the shortest duration necessary for the permittee to gain compliance with existing permit conditions, apply for a new VWP permit, or request modification of existing permit conditions.

F. Public notice of any variance issued by the department shall be given as required for draft permits in 9VAC25-210-140 A, B, and C. Such notice shall be given concurrently with the issuance of any variance and the department may modify such variances based on public comment. Publication costs of all public notices shall be the responsibility of the permittee.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

Part VI Enforcement

9VAC25-210-500 Enforcement

The department may enforce the provisions of this chapter utilizing all applicable procedures under the law and § 10.1-1186 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; amended, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

Part VII Miscellaneous

9VAC25-210-600 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016; repealed, Virginia Register Volume 39, Issue 4, eff. November 9, 2022.

9VAC25-210-610 Transition

A. All applications received on or after August 2, 2016, will be processed in accordance with these new procedures.

B. VWP individual permits issued prior to August 2, 2016, will remain in full force and effect until such permits expire, are revoked, or are terminated and during any period of administrative continuance in accordance with 9VAC25-210-65.

C. Section 401 Water Quality Certificates issued prior to December 31, 1989, have the same effect as a VWP permit. Water Quality Certificates issued after this date will remain in effect until reissued as Virginia Water Protection Permits.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 401 of the Clean Water Act (33 USC § 1251 et seq.).
• Historical Notes: Derived from Virginia Register Volume 32, Issue 21, eff. August 2, 2016.

Chapter 220 Surface Water Management Area Regulation

Part I General

9VAC25-220-10 Definitions

Unless a different meaning is required by the context, the following terms, as used in this chapter, shall have the following meanings:

"Beneficial use" means both instream and offstream uses. Instream beneficial uses include but are not limited to protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. Offstream beneficial uses include but are not limited to domestic (including public water supply), agricultural, electric power generation, commercial, and industrial uses. Domestic and other existing beneficial uses shall be considered the highest priority beneficial uses.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Controversial permit" means a water permitting action for which a public hearing has been granted pursuant to 9VAC25-220-170 and 9VAC25-220-175.

"Department" means the Department of Environmental Quality.

"Existing beneficial consumptive user" means a person who is currently withdrawing water from a stream for a beneficial use and not returning that water to the stream near the point from which it was taken.

"Investor-owned water company" means a water supplier owned by private investors which operates independently of the local government and is regulated by the Department of Health.

"Nonconsumptive use" means the use of water withdrawn from a stream in such a manner that it is returned to the stream without substantial diminution in quantity at or near the point from which it was taken and would not result in or exacerbate low flow conditions.

"Public hearing" means a fact-finding proceeding held to afford interested persons an opportunity to submit factual data, views, and arguments to the department.

"Serious harm" means man induced reduction to the flow of a surface water resource that results in impairment of one or more beneficial uses.

"Surface water" means any water in the Commonwealth, except groundwater as defined in § 62.1-255 of the Code of Virginia.

"Surface water management area" means a geographically defined surface water area in which the board deemed the levels or supply of surface water to be potentially adverse to public welfare, health, and safety.

"Surface water withdrawal certificate" means a document issued by the department as found in subsection D of § 62.1-243 of the Code of Virginia.

"Surface water withdrawal permit" means a document issued by the department evidencing the right to withdraw surface water.

"Water conservation program" means a program incorporating measures or practices which will result in the alteration of water uses resulting in reduction of water losses as contemplated by subsection B of § 62.1-243 of the Code of Virginia.

"Water management program" means a program incorporating measures or practices which will result in the alteration of water uses resulting in reduction of water losses as contemplated by subsection C of § 62.1-243 of the Code of Virginia.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 1.1, eff. June 3, 1992; amended, Virginia Register Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-15 Permit rationale

In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-20 Purpose

This chapter delineates the procedures and requirements to be followed in connection with establishment of surface water management areas, the issuance of surface water withdrawal permits and the issuance of surface water withdrawal certificates by the department pursuant to the Code of Virginia. The establishment of surface water management areas, the issuance of surface water withdrawal permits and surface water withdrawal certificates provide for the protection of beneficial uses during periods of low stream flow.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 1.2, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-30 Authority for chapter

The authority for this chapter is found in Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.

History

• Statutory Authority: Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 1.3, eff. June 3, 1992.

9VAC25-220-40 Initiate surface water management area proceeding

A. The board upon its own motion or, in its discretion, upon receipt of a petition by any county, city or town within the surface water management area in question, or any state agency, may initiate a surface water management area proceeding whenever in its judgment there is evidence to indicate that:

1. A stream has substantial instream values as indicated by evidence of fishery, recreation, habitat, cultural or aesthetic properties;

2. Historical records or current conditions indicate that a low flow condition could occur which would threaten important instream uses; and

3. Current or potential offstream uses contribute to or are likely to exacerbate natural low flow conditions to the detriment of instream values.

B. If the board finds that the conditions required in subsection A of this section exist and further finds that the public welfare, health and safety require that regulatory efforts be initiated, the board shall, by regulation, declare the area in question to be a surface water management area.

C. In its proceeding to declare an area to be a surface water management area, the board shall, by regulation, determine when the level of flow is such that permit conditions in a surface water management area are in force. This flow level will be determined for each regulation establishing a surface water management area and included in it.

D. The board shall include in its decision a definition of the boundaries of the surface water management area.

E. The regulations may provide that the department, or the director may by order, declare that the level of flow is such that permit conditions are applicable for all or part of a surface water management area.

F. The board shall follow its Public Participation Guidelines (9VAC25-11) for all hearings contemplated under this section. If after a public hearing held pursuant to § 2.2-4007.01 of the Virginia Administrative Process Act, or at the request of an affected person or on the board motion, a hearing shall be held under § 2.2-4009 of the Virginia Administrative Process Act.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 1.1, eff. June 3, 1992; amended, Virginia Register Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-50 Notice of surface water management area

A. The department shall cause notice of the declaration of a surface water management area to be published in a newspaper of general circulation throughout the area covered by the declaration.

B. The department shall mail, by electronic or postal delivery, a copy of its decision on the proposed declaration of a surface water management area to the mayor or chairman of the governing body of each county, city or town within which any part of the area lies, or which is known by the department to make offstream use of water from the area, and to the chief administrative officer of any federal facility known by the department to be using water from within the area.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 1.5, eff. June 3, 1992; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-60 Agreements

A. The department shall encourage, promote and recognize voluntary agreements among persons withdrawing surface water in the same surface water management area.

B. When the department finds that any such agreement, executed in writing and filed with the department, is consistent with the intent, purposes and requirements of this chapter, the department shall approve the agreement following a public hearing.

C. The department shall provide at least 60 days' notice of the public hearing to the public in general and individually to those persons withdrawing surface water in the surface water management area who are not parties to the agreement and shall make a good faith effort to so notify recreational user groups, conservation organizations and fisheries management agencies. The department shall be a party to the agreement.

D. The agreement, until terminated, shall control in lieu of a formal order, rule, or permit issued by the department or a regulation adopted by the board under the provisions of this chapter and shall be deemed to be a case decision under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Permits issued in accordance with this chapter shall incorporate the terms of this agreement.

E. Any agreement shall specify the amount of water affected by it.

F. Any agreement approved by the department may include conditions that can result in its amendment or termination by the department following a public hearing if the department finds that it or its effect is inconsistent with the intent, purposes and requirements of this chapter. Such conditions include the following:

1. A determination by the department that the agreement originally approved by the department will not further the purposes of this chapter;

2. A determination by the department that circumstances have changed such that the agreement originally approved by the department will no longer further the purposes of this chapter; or

3. One or more of the parties to the agreement is not fulfilling its commitments under the agreement.

The department shall provide at least 60 days' notice of the public hearing to the public and individually to those persons withdrawing surface water in the surface water management area who are not parties to the agreement and shall make a good faith effort to so notify recreational user groups, conservation organizations and fisheries management agencies.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 1.6, eff. June 3, 1992; amended, Virginia Register Volume 16, Issue 15, eff. May 10, 2000; Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.

Part II Permit Requirements, Application and Issuance

9VAC25-220-70 Application for a permit

A. Duty to apply. Any person who withdraws surface water or proposes to withdraw surface water in a surface water management area must have a surface water withdrawal permit, except persons excluded under subsection B of this section or exempted under subsection C of this section, or withdrawals made pursuant to a voluntary agreement approved by the department pursuant to 9VAC25-220-60. A complete application shall be submitted to the department in accordance with this section.

B. Exclusions. The following do not require a surface water withdrawal permit but may require other permits under state and federal law:

1. Any nonconsumptive use;

2. Any water withdrawal of less than 300,000 gallons in any single month;

3. Any water withdrawal from a farm pond collecting diffuse surface water and not situated on a perennial stream as defined in the United States Geological Survey 7.5-minute series topographic maps;

4. Any withdrawal in any area which has not been declared a surface water management area; and

5. Any withdrawal from a wastewater treatment system permitted by the Department of Environmental Quality or the Department of Energy.

C. Exemptions. The following do not require a surface water withdrawal permit but may require other permits under state and federal law. However, the following do require a surface water withdrawal certificate containing details of a department approved water conservation or management plan as found in subdivision 2 of 9VAC25-220-100 and Part V (9VAC25-220-250 et seq.) of this chapter. It is not the intent or purpose of this certification program to affect the withdrawal of water approved by the department.

1. No political subdivision or investor-owned water company permitted by the Department of Health shall be required to obtain a surface water withdrawal permit for:

a. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989.

b. Any withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal has received, by that date, a § 401 certification from the State Water Control Board pursuant to the requirements of the Clean Water Act to install any necessary withdrawal structures and make such withdrawal; however, a permit shall be required in any surface water management area before any such withdrawal is increased beyond the amount authorized by the said certification.

c. Any withdrawal in existence on July 1, 1989, from an instream impoundment of water used for public water supply purposes; however, during periods when permit conditions in a water management area are in force pursuant to subsection G of 9VAC25-220-80 and 9VAC25-220-190, and when the rate of flow of natural surface water into the impoundment is equal to or less than the average flow of natural surface water at that location, the department may require release of water from the impoundment at a rate not exceeding the existing rate of flow of natural surface water into the impoundment. Withdrawals by a political subdivision or investor-owned water company permitted by the Department of Health shall be affected by this subdivision only at the option of that political subdivision or investor-owned water company.

2. No existing beneficial consumptive user shall be required to obtain a surface water withdrawal permit for:

a. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989; and

b. Any withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal has received, by that date, a § 401 certification from the State Water Control Board pursuant to the requirements of the Clean Water Act to install any necessary withdrawal structures and make such withdrawals; however, a permit shall be required in any surface water management area before any such withdrawal is increased beyond the amount authorized by the said certification.

D. Duty to reapply.

1. Any permittee with an effective permit shall submit a new permit application at least 180 days before the expiration date of an effective permit unless permission for a later date has been granted by the department.

2. Owners or persons who have effective permits shall submit a new application 180 days prior to any proposed modification to their activity which will:

a. Result in a significantly new or substantially increased water withdrawal; or

b. Violate or lead to the violation of the terms and conditions of the permit.

E. Complete application required.

1. Any person proposing to withdraw water shall submit a complete application and secure a permit prior to the date planned for commencement of the activity resulting in the withdrawal. There shall be no water withdrawal prior to the issuance of a permit.

2. Any person reapplying to withdraw water shall submit a complete application.

3. A complete surface water withdrawal permit application to the department shall, as a minimum, consist of the following:

a. The location of the water withdrawal, including the name of the waterbody from which the withdrawal is being made;

b. The average daily withdrawal, the maximum proposed withdrawal, and any variations of the withdrawal by season including amounts and times of the day or year during which withdrawals may occur;

c. The use for the withdrawal, including the importance of the need for this use;

d. Any alternative water supplies or water storage; and

e. If it is determined that special studies are needed to develop a proper instream flow requirement, then additional information may be necessary.

4. Where an application is considered incomplete, the department may require the submission of additional information after an application has been filed and may suspend processing of any application until such time as the applicant has supplied missing or deficient information and the department considers the application complete. Further, where the applicant becomes aware that he omitted one or more relevant facts from a permit application, or submitted incorrect information in a permit application or in any report to the department, he shall immediately submit such facts or the correct information.

5. Any person proposing to withdraw water shall submit an application for a permit 180 days prior to the date planned for commencement of the activity resulting in the withdrawal. There shall be no water withdrawal prior to the issuance of a permit.

6. Any person with an existing unpermitted water withdrawal operation shall submit an application immediately upon discovery by the owner or within 30 days upon being requested to by the department whichever comes first.

F. Informational requirements. All applicants for a surface water withdrawal permit shall provide all such information consistent with this chapter as the department deems necessary. All applicants for a permit must submit a complete permit application in accordance with subsection A of this section.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 1.6, eff. June 3, 1992; amended, Virginia Register Volume 16, Issue 15, eff. May 10, 2000; Volume 32, Issue 10, eff. February 25, 2016; Volume 38, Issue 3, eff. October 27, 2021; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-80 Conditions applicable to all permits

A. Duty to comply. The permittee shall comply with all conditions of the permit. Nothing in this chapter shall be construed to relieve the surface water withdrawal permit holder of the duty to comply with all applicable federal and state statutes, regulations, standards and prohibitions. Any permit noncompliance is a violation of the law and is grounds for enforcement action, permit suspension, cancellation, revocation, modification or denial of a permit renewal application.

B. Duty to mitigate. The permittee shall take all reasonable steps to (i) avoid all adverse environmental impact which could result from the activity, (ii) where avoidance is impractical, minimize the adverse environmental impact, and (iii) where impacts cannot be avoided, provide mitigation of the adverse impact on an in-kind basis.

C. Permit action.

1. A permit may be modified, revoked, suspended, cancelled, reissued, or terminated as set forth in this chapter.

2. If a permittee files a request for permit modification, suspension or cancellation, or files a notification of planned changes, or anticipated noncompliance, the permit terms and conditions shall remain effective until the request is acted upon by the department. This provision shall not be used to extend the expiration date of the effective permit.

3. Permits may be modified, revoked and reissued or terminated upon the request of the permittee, or upon department initiative to reflect the requirements of any changes in the statutes or regulations.

D. Inspection and entry. Upon presentation of credentials and upon consent of the owner or custodian, any duly authorized agent of the department may, at reasonable times and under reasonable circumstances:

1. Enter upon any permittee's property, public or private, and have access to, inspect and copy any records that must be kept as part of the permit conditions;

2. Inspect any facilities, operations or practices including monitoring and control equipment regulated or required under the permit.

E. Duty to provide information. The permittee shall furnish to the department, within a reasonable time, any information which the department may request to determine whether cause exists for modifying, reissuing, suspending and cancelling the permit, or to determine compliance with the permit. The permittee shall also furnish to the department, upon request, copies of records required to be kept by the permittee. This information shall be furnished to the department pursuant to § 62.1-244 of the Code of Virginia.

F. Monitoring and records requirements.

1. Monitoring shall be conducted according to approved methods as specified in the permit or as approved by the department.

2. Measurements taken for the purpose of monitoring shall be representative of the monitored activity.

3. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart or electronic recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three years from the date of the expiration of a granted permit. This period may be extended by request of the department at any time.

4. Records of monitoring information shall include:

a. The date, exact place and time of measurements;

b. The name of the individuals who performed the measurements;

c. The date the measurements were compiled;

d. The name of the individuals who compiled the measurements;

e. The techniques or methods supporting the information such as observations, readings, calculations and bench data used; and

f. The results of such techniques or methods.

G. Permit conditions become applicable.

1. Permit conditions become applicable in a surface water management area upon notice by the department to each permittee by mail, by electronic or postal delivery, or cause notice of that to be published in a newspaper of general circulation throughout the area.

2. The department shall notify each permittee by mail or cause notice of that to be published in a newspaper of general circulation throughout the surface water management area when the declaration of water shortage is rescinded.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.2, eff. June 3, 1992; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-90 Signatory requirements

Any application, report, or certification shall be signed as follows:

1. Application.

a. For a corporation: by a responsible corporate official. For purposes of this section, a responsible corporate official means (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25,000,000 in second-quarter 1980 dollars, if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

b. For a municipality, state, federal or other public agency by either a principal executive officer or ranking elected official. A principal executive officer of a federal, municipal, or state agency includes the chief executive officer of the agency or head executive officer having responsibility for the overall operation of a principal geographic unit of the agency.

c. For a partnership or sole proprietorship, by a general partner or proprietor respectively.

d. Any application for a permit under this regulation must bear the signatures of the responsible party and any agent acting on the responsible party's behalf.

2. Reports. All reports required by permits and other information requested by the department shall be signed by:

a. One of the persons described in subdivision a, b or c of this section; or

b. A duly authorized representative of that person. A person is a duly authorized representative only if:

(1) The authorization is made in writing by a person described in subdivision a, b, or c of this section; and

(2) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position.

(3) If an authorization is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization shall be submitted to the department prior to or together with any separate information, or applications to be signed by an authorized representative.

3. Certification of application and reports. Any person signing a document under subdivision 1 or 2 of this section shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete."

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.3, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-100 Establishing applicable limitations or other permit conditions

In addition to the conditions established in 9VAC25-220-80, each permit shall include conditions meeting the following requirements where applicable:

1. Instream flow conditions.

a. Subject to the provisions of § 62.1-242 et seq. of the Code of Virginia and subject to the authority of the State Corporation Commission over hydroelectric facilities contained in § 62.1-80 et seq. of the Code of Virginia instream flow conditions may include but are not limited to conditions that limit the volume and rate at which water may be withdrawn at certain times and conditions that require water conservation and reductions in water use.

b. This flow requirement shall be appropriate for the protection of beneficial uses.

c. In determining the level of flow in need of protection of beneficial uses, the department shall consider, among other things, recreation and aesthetic factors and the potential for substantial and long-term adverse impact on fish and wildlife found in that particular surface water management area. Should this determination indicate a need to restrict water withdrawal, the department shall consider, among other things, the availability of alternative water supplies, the feasibility of water storage or other mitigating measures, and the socioeconomic impacts of such restriction on the potentially affected water users and on the citizens of the Commonwealth in general.

2. Water conservation or management plans.

a. Subject to the provisions of § 62.1-242 et seq. of the Code of Virginia permit conditions may include voluntary and mandatory conservation measures.

b. Political subdivisions and investor-owned water companies shall have water conservation plans which shall include, but not be limited to, the following:

(1) Use of water saving plumbing fixtures in new and renovated plumbing as provided under the Uniform Statewide Building Code, Chapter 6 (§ 36-97 et seq.) of Title 36 of the Code of Virginia;

(2) A water loss reduction program;

(3) A water use education program; and

(4) Ordinances prohibiting waste of water generally and providing for mandatory water use restrictions, with penalties during water shortage emergencies.

c. Beneficial consumptive users shall have water management plans which shall include, but not be limited to, the following:

(1) Use of water saving plumbing;

(2) A water loss reduction program;

(3) A water use education program; and

(4) Mandatory reductions during water shortage emergencies. However, these reductions shall be on an equitable basis with other uses exempted under subsection C of 9VAC25-220-70.

3. Compliance requirements. The permit shall include requirements to comply with all appropriate provisions of state laws and regulations.

4. Duration of permits. Surface water withdrawal permits issued under this chapter shall have an effective duration of not more than 10 years. The term of these permits shall not be extended by modification beyond the maximum duration. Extension of permits for the same activity beyond the maximum duration specified in the original permit will require reapplication and reissuance of a new permit.

5. Monitoring requirements as conditions of permits.

a. All permits shall specify:

(1) Requirements concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment or methods when required as a condition of the permit; and

(2) Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity and including, when appropriate, continuous monitoring.

b. All permits shall include requirements to report monitoring results with a frequency dependent on the nature and effect of the water withdrawal, but in no case less than once per year.

6. Reissued permits. When a permit is renewed or reissued, limitations or conditions must be in conformance with current limitations or conditions.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.4, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-110 Draft permit formulation

A. Upon receipt of a complete application, pursuant to subsection A of 9VAC25-220-70, the department shall review the application and make a tentative determination to issue the permit or deny the application. In considering whether to issue or deny a permit under this section, the department shall consider:

1. The number of persons using a stream and the object, extent and necessity of their representative withdrawal uses;

2. The nature and size of the stream;

3. The type of businesses or activities to which the various uses are related;

4. The importance and necessity of the uses claimed by permit applicants, or of the water uses of the area and the extent of any injury or detriment caused or expected to be caused to instream or offstream uses;

5. The effects on beneficial uses; and

6. Any other relevant factors.

B. If a tentative decision is to issue the permit then a draft permit shall be prepared in advance of public notice. The following tentative determinations shall be incorporated into a draft permit:

1. The level of flow that activates the permit conditions, water withdrawal limitations, and other requirements applicable to the permit;

2. Monitoring requirements;

3. Instream flow requirements; and

4. Water conservation or management requirements.

C. If the tentative decision is to deny the application, the department shall do so in accordance with 9VAC25-220-240.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.5, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-120 Permit issuance

A. Upon completion of all public involvement and consideration of all comments, the director may grant the permit.

B. Permits issued by priority system.

1. For the purposes of this chapter, the following water-use classification system based on beneficial uses, instream and offstream, shall be used by the department when issuing permits:

a. Class I uses are domestic (including public water supply). Class I uses are all existing uses as of July 1, 1989. Included among existing uses shall be any projected use which has been relied upon in the development of an industrial project and for which a permit has been obtained by January 1, 1989, pursuant to § 404 of the Clean Water Act;

b. Class II uses are new uses, not existing on July 1, 1989. These uses include both instream uses, protection of fish and wildlife habitat, maintenance of waste assimilation and offstream uses, agriculture, electric power generation, commercial and industrial; and

c. Class III uses are new uses not existing on July 1, 1989. They include, but are not limited to, recreation, navigation, and cultural and aesthetic values.

2. Class I uses shall be given the highest priority in the issuance of permits for other beneficial uses. Class II and Class III uses are of decreasing priority respectively.

3. The department may impose restrictions on one or more classes of beneficial uses as may be necessary to protect the surface water resources of the area from serious harm.

4. In its permit decision, the department shall attempt to balance offstream and instream uses so that the welfare of the citizens of the Commonwealth is maximized without imposing unreasonable burdens on any individual water user or water-user group. The decision to implement this balance may consist of approval of withdrawal without restriction, approval subject to conditions designed to protect instream uses from unacceptable adverse effects, or disapproval of the withdrawal.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.6, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-130 Effect of a permit

A. Compliance with a surface water withdrawal permit constitutes compliance with the surface water withdrawal permit requirements of §§ 62.1-242 through 62.1-253 of the Code of Virginia.

B. Nothing contained in this chapter shall be construed as an expressed or implied waiver of other permit requirements, state or federal, including the Virginia water protection permit and Water Withdrawal Reporting (9VAC25-200-10 et seq.) of the Regulations of the State Water Control Board.

C. The issuance of a permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize injury to private property or any invasion of personal rights or any infringement of federal, state or local law or regulation.

D. Nothing in this chapter shall be construed as altering, or authorizing any alteration of, any existing riparian rights except as set forth in permits issued pursuant to this chapter. The conditions in such permits shall be in force only in those times when low stream flow, or the potential therefor, result in a declaration as provided for in subsection C of 9VAC25-220-40.

History

• Statutory Authority: Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.7, eff. June 3, 1992.

9VAC25-220-140 Variances and alternative measures

A. Variances may be applied for, and alternative measures may be used to:

1. Prevent undue hardship; and

2. Ensure equitable distribution of water resources.

B. Alternative measures may include, but are not limited to, the following:

1. Alternative or secondary water source;

2. Water storage during times of minimum use and high stream flow;

3. Ponds, pits, ditches and basins when the sole source of water is storm water run-off; and

4. Vary water withdrawal based on time of day, the season or the stream flow.

C. The department must approve all variances and use of alternative measures.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.8, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part III Public Involvement in Permit Process

9VAC25-220-150 Public notice of permit action and public comment period

A. Every draft permit shall be given public notice paid for by the owner, by publication once in a newspaper of general circulation in the area affected by the withdrawal.

B. The department shall allow a period of at least 30 days following the date of the public notice for interested persons to submit written comments on the tentative decision and to request a public hearing.

C. The contents of the public notice of an application for a permit, or proposed permit action shall include:

1. Name and address of the applicant. If the location of the activity resulting in the withdrawal of water differs from the address of the applicant the notice shall also state the location of the withdrawal in sufficient detail such that the specific location may be easily identified;

2. Brief description of the business or activity to be conducted at the withdrawal site;

3. The name of the affected waterway;

4. A statement of the tentative determination to issue or deny a permit;

5. A brief description of the final determination procedure;

6. The address and phone number of a specific person at the state office from whom further information may be obtained; and

7. A brief description on how to submit comments and request a public hearing.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 3.1, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-160 Public access to information

All information pertaining to permit processing or in reference to any source of water withdrawal shall be available to the public.

History

• Statutory Authority: Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 3.2, eff. June 3, 1992.

9VAC25-220-170 Public comments and hearing

A. The department shall provide a comment period of at least 30 days following the date of public notice of the formulation of a draft permit during which interested persons may submit written comments and requests for an informal hearing on the proposed permit. All written comments submitted during the comment period shall be retained by the department and considered during its final decision process.

B. The director shall consider all written comments and requests for an informal hearing received during the comment period, and shall make a determination on the necessity of an informal hearing in accordance with 9VAC25-220-175.

C. Should the director, in accordance with 9VAC25-220-175, determine to dispense with the informal hearing, the director may grant the permit.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 3.3, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-175 Criteria for requesting and granting a public hearing in a permit action

A. During the public comment period on a permit action in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest the action or terms and conditions of the permit.

B. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and extent of the interest of the requester or the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations to those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Water Control Board.

C. Upon completion of the public comment period on a permit action, the director shall review all timely requests for public hearing filed during the comment period on the permit action and, within 30 calendar days following the expiration of the time period for the submission of requests, shall grant a public hearing, unless the permittee or applicant agrees to a later date if the director finds the following:

1. That there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;

2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

3. That the action requested by the interested party is not on its face inconsistent with or in violation of the basic laws of the State Water Control Board for a water permit action, a federal law, or any regulation promulgated thereunder.

D. The director of DEQ shall notify by email or postal mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.

E. If the request for a public hearing is granted, the director shall:

1. Schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing.

2. Cause or require the applicant to publish notice of a public hearing to be published once, in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date.

F. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

G. The director may, at the director's discretion, convene a public hearing in a permit action.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-180 Public notice of hearing

A. Public notice of any informal hearing held pursuant to 9VAC25-220-170 and 9VAC25-220-175 shall be circulated as follows:

1. Notice shall be published once in a newspaper of general circulation in the county or city where the activity is to occur; and

2. Notice of the informal hearing shall be sent to all persons and government agencies which received a copy of the notice of proposed regulation or permit application and to those persons requesting an informal hearing or having commented in response to the public notice.

B. Notice shall be effected pursuant to subdivisions A 1 and 2 above at least 30 days in advance of the informal hearing.

C. The content of the public notice of any hearing held pursuant to 9VAC25-220-170 and 9VAC25-220-175 shall include at least the following:

1. Name and address of each person whose application will be considered at the informal hearing and a brief description of the person's activities or operations;

2. The precise location of such activity and the state surface waters that will or may be affected. The location should be described, where possible, with reference to route numbers, road intersections, map coordinates or similar information;

3. A brief reference to the public notice issued for the permit application, including identification number and date of issuance of the permit application unless the public notice includes the informal hearing notice;

4. Information regarding the time and location for the informal hearing;

5. The purpose of the informal hearing;

6. A concise statement of the relevant water withdrawal issues raised by the persons requesting the informal hearing;

7. Contact person and the address of the Department of Environmental Quality office at which the interested persons may obtain further information, request a copy of the draft permit prepared pursuant to 9VAC25-220-110; and

8. A brief reference to the rules and procedures to be followed at the informal hearing.

D. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 3.4, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-185 Controversial permits

Before rendering a final decision on a controversial permit, the department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at that time. In making its decision, the department shall consider (i) the verbal and written comments received during the comment period and the public hearing made part of the record, (ii) any commentary of the broad, and (iii) the agency files.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-187 Controversial permits reporting

At each regular meeting of the board, the department shall provide an overview and update regarding any controversial permits pending before the department that are relevant. Immediately after such presentation by the department, the board shall have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-190 Public notice that permit conditions are in force

A. When permit conditions become applicable in a surface water management area, the department shall notify each permittee by mail, electronic or postal delivery, or cause notice of it to be published in a newspaper of general circulation throughout the area.

B. The department shall notify each permittee by mail, electronic or postal delivery, or cause notice of it to be published in a newspaper of general circulation throughout the surface water management area when the declaration of water shortage is rescinded.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 2.2, eff. June 3, 1992; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.

Part IV Permit Modification, Revocation and Reissuance, Suspension, Cancellation and Denial

9VAC25-220-200 Rules for modification, revocation and reissuance, suspension, cancellation and denial

Permits shall be modified, revoked and reissued, suspended, or cancelled only as authorized by this section as follows:

1. A permit may be modified in whole or in part, revoked and reissued, suspended, or cancelled.

2. Permit modifications shall not be used to extend the term of a permit.

3. Modification, revocation and reissuance, suspension, or cancellation may be initiated by the department, permittee, or other person, under applicable laws or the provisions of this chapter.

4. After public notice and opportunity for a formal hearing pursuant to 9VAC25-230-100, a permit can be suspended or cancelled whenever the department finds that the holder of a permit is willfully violating any provision of such permit or any other provision of § 62.1-242 et seq. of the Code of Virginia. Whenever a permit is suspended the conditions to lift the suspension will be included in the department's decision. The determination to suspend, cancel or impose conditions on its future use in order to prevent future violations shall be based on the seriousness of the offense, the permittee's past record, the effect on beneficial uses, the effect on other users in the area and any other relevant factors. The causes for suspension or cancellation are as follows:

a. Willful noncompliance by the permittee with any condition of the permit;

b. The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts or the permittee's misrepresentation of any relevant facts at any time;

c. The permittee's violation of a special or judicial order; and

d. A determination that the permitted activity endangers human health or the environment and can be regulated to acceptable levels by permit modification or cancellation.

5. In considering whether to modify, revoke and reissue, or deny a permit under this section, the department shall consider:

a. The number of persons using a stream and the object, extent and necessity of their representative withdrawal uses;

b. The nature and size of the stream;

c. The type of businesses or activities to which the various uses are related;

d. The importance and necessity of the uses claimed by permit applicants, or of the water uses of the area and the extent of any injury or detriment caused or expected to be caused to instream or offstream uses;

e. The effects on beneficial uses; and

f. Any other relevant factors.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 4.1, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-210 Causes for modification

A permit may be modified, but not revoked and reissued, except when the permittee agrees or requests, when any of the following developments occur:

1. When additions or alterations have been made to the affected facility or activity which require the application of permit conditions that differ from those of the existing permit or are absent from it;

2. When new information becomes available about the operation or withdrawal covered by the permit which was not available at permit issuance and would have justified the application of different permit conditions at the time of permit issuance;

3. When a change is made in the methodology or regulations on which the permit was based;

4. When it becomes necessary to change final dates in schedules due to circumstances over which the permittee has little or no control such as acts of God, materials shortages, etc. However, in no case may a compliance schedule be modified to extend beyond any applicable statutory deadline of the Act;

5. When the department determines that minimum instream flow levels resulting from the permittee's withdrawal of water is detrimental to the instream beneficial use and that the withdrawal of water should be subject to further net limitations; and

6. When other states were not notified of the change in the permit and their waters may be affected by the withdrawal.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 4.2, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-220 Transferability of permits

A. Transfer by modification. Except as provided for under automatic transfer in subsection B of this section, a permit shall be transferred only if the permit has been modified to reflect the transfer or has been revoked and reissued to the new owner.

B. Automatic transfer. Any permit shall be automatically transferred to a new user if:

1. The current user notifies the department 30 days in advance of the proposed transfer of the permit to the facility or property;

2. The notice to the department includes a written agreement between the existing and proposed new user containing a specific date of transfer of permit responsibility, coverage and liability between them; and

3. The department does not within the 30-day time period notify the existing user and the proposed user of its intent to modify or revoke and reissue the permit.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 4.3, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-230 Minor modification

A. Upon request of the permittee, or upon department initiative with the consent of the permittee, minor modifications may be made in the permit without following the public involvement procedures.

B. For surface water withdrawal permits, minor modification may only:

1. Correct typographical errors;

2. Require reporting by the permittee at a greater frequency than required in the permit; and

3. Allow for a change in ownership or operational control when the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage and liability from the current to the new permittee has been submitted to the department.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 4.4, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-240 Denial of a permit

A. The applicant shall be notified by letter of the staff's decision to recommend to the department denial of the permit requested.

B. The staff shall provide sufficient information to the applicant regarding the rationale for denial, such that the applicant may at his option: (i) modify the application in order to achieve a favorable recommendation; (ii) withdraw his application; or (iii) proceed with the processing on the original application.

C. Should the applicant withdraw his application, no permit will be issued.

D. Should the applicant elect to proceed with the original project, the staff shall make its recommendation of denial to the director for determination of the need for public notice as provided for in accordance with Part III of this chapter (9VAC25-220-150 et seq.).

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 4.5, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part V Issuance of Certificates

9VAC25-220-250 Duty to apply

A. No political subdivision, investor-owned water company or existing beneficial consumptive user withdrawing water in a declared surface water management area and exempted under subsection C of 9VAC25-220-70 from needing a surface water withdrawal permit shall continue to withdraw water in the surface water management area except as authorized by a surface water withdrawal certificate.

B. If an area has been declared a surface water management area, any person exempted under subsection C of 9VAC25-220-70 shall apply for a certificate within 90 days of the declaration.

History

• Statutory Authority: Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 5.1, eff. June 3, 1992.

9VAC25-220-260 Duration of certificates

Surface water withdrawal certificates shall have an effective duration of not more than 10 years.

History

• Statutory Authority: Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 5.2, eff. June 3, 1992.

9VAC25-220-270 Duty to re-apply

Any person who has an effective surface water withdrawal certificate must apply for a new certification at least 180 days before the expiration date of an effective certificate unless permission for a later date has been granted by the department.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 5.3, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-280 Complete application required

A. A complete Surface Water Withdrawal Certificate application to the Department of Environmental Quality shall, as a minimum, consist of the following:

1. General requirements.

a. The location of the water withdrawal, including the name of the waterbody from which the withdrawal is being made;

b. The average daily withdrawal, the maximum withdrawal, and any variations of the withdrawal by season including amounts and times of the day or year during which withdrawals may occur;

c. The use of the withdrawal, including the importance for the need for this use; and

d. Any alternative water supplies or water storage.

2. Specific requirements. Water conservation or management plans as found in subdivision 2 of 9VAC25-220-100.

B. Where an application is considered incomplete the department may require the submission of additional information after an application has been filed, and may suspend processing of any application until such time as the applicant has supplied missing or deficient information and the department considers the application complete. Further, where the applicant becomes aware that he omitted one or more relevant facts from a certificate application, or submitted incorrect information in a certificate application or in any report to the department, he shall immediately submit such facts or the correct information.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 5.4, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-290 Information requirements

All applicants for a Surface Water Withdrawal Certificate shall provide all such information consistent with this chapter as the department deems necessary. All applicants for a certificate must submit a complete application in accordance with 9VAC25-220-280.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 5.5, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-300 Additional requirements

In addition to the requirements found in this section, the requirements in subsections A and G of 9VAC25-220-80, 9VAC25-220-90, subdivisions B 1 and 4 of 9VAC25-220-110, subsection A of 9VAC25-220-120, 9VAC25-220-130, Part III and Part IV of this chapter (9VAC25-220-150 et seq. and 9VAC25-220-200 et seq.) also apply to certificate holders and certificate applicants as necessary.

History

• Statutory Authority: Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 5.6, eff. June 3, 1992.

Part VI Enforcement

9VAC25-220-310 Enforcement

The department may enforce the provisions of this chapter utilizing all applicable procedures under the law.

History

• Statutory Authority: § 62.1-249 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 6.1, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VII Miscellaneous

9VAC25-220-320 (Repealed.)

History

• Historical Notes: Derived from VR680-15-03 § 7.1, eff. June 3, 1992; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-330 Transition

A. No surface water management area shall be designated by regulation sooner than six months following final adoption of this chapter.

B. If a surface water user holds more than one permit for water withdrawal, in any areas of conflict or disagreement among the permits, the surface water withdrawal permit shall hold priority.

History

• Statutory Authority: Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-15-03 § 7.2, eff. June 3, 1992.

Chapter 260 Water Quality Standards

Part I Surface Water Standards with General, Statewide Application

9VAC25-260-5 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Algicides" means chemical substances, most commonly copper-based, used as a treatment method to control algae growths.

"Board" means State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Chesapeake Bay and its tidal tributaries" means all tidally influenced waters of the Chesapeake Bay; western and eastern coastal embayments and tributaries; James, York, Rappahannock and Potomac Rivers and all their tidal tributaries to the end of tidal waters in each tributary (in larger rivers this is the fall line); and includes subdivisions 1, 2, 3, 4, 5, and 6 of 9VAC25-260-390, subdivisions 1, 1b, 1d, 1f and 1o of 9VAC25-260-410, subdivisions 5 and 5a of 9VAC25-260-415, subdivisions 1 and 1a of 9VAC25-260-440, subdivisions 2, 3, 3a, 3b and 3e of 9VAC25-260-520, and subdivision 1 of 9VAC25-260-530. This definition does not include free flowing sections of these waters.

"Criteria" means elements of the board's water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use. When criteria are met, water quality will generally protect the designated use.

"Department" or "DEQ" means the Virginia Department of Environmental Quality.

"Designated uses" means those uses specified in water quality standards for each waterbody or segment whether or not they are being attained.

"Drifting organisms" means planktonic organisms that are dependent on the current of the water for movement.

"Epilimnion" means the upper layer of nearly uniform temperature in a thermally stratified man-made lake or reservoir listed in 9VAC25-260-187 B.

"Existing uses" means those uses actually attained in the waterbody on or after November 28, 1975, whether or not they are included in the water quality standards.

"Lacustrine" means the zone within a lake or reservoir that corresponds to nonflowing lake-like conditions such as those near the dam. The other two zones within a reservoir are riverine (flowing, river-like conditions) and transitional (transition from river to lake conditions).

"Man-made lake or reservoir" means a constructed impoundment.

"Mixing zone" means a limited area or volume of water where initial dilution of a discharge takes place and where numeric water quality criteria can be exceeded but designated uses in the waterbody on the whole are maintained and lethality is prevented.

"Natural lake" means an impoundment that is natural in origin. There are two natural lakes in Virginia: Mountain Lake in Giles County and Lake Drummond located within the boundaries of Chesapeake and Suffolk in the Great Dismal Swamp.

"Passing organisms" means free swimming organisms that move with a mean velocity at least equal to the ambient current in any direction.

"Primary contact recreation" means any water-based form of recreation, the practice of which has a high probability for total body immersion or ingestion of water (examples include but are not limited to swimming, water skiing, canoeing and kayaking).

"Pycnocline" means the portion of the water column where density changes rapidly because of salinity and/or temperature. In an estuary the pycnocline is the zone separating deep, cooler more saline waters from the less saline, warmer surface waters. The upper and lower boundaries of a pycnocline are measured as a change in density per unit of depth that is greater than twice the change of the overall average for the total water column.

"Secondary contact recreation" means a water-based form of recreation, the practice of which has a low probability for total body immersion or ingestion of waters (examples include but are not limited to wading, boating and fishing).

"Swamp waters" means waters with naturally occurring low pH and low dissolved oxygen caused by (i) low flow velocity that prevents mixing and reaeration of stagnant, shallow waters and (ii) decomposition of vegetation that lowers dissolved oxygen concentrations and causes tannic acids to color the water and lower the pH.

"Use attainability analysis" means a structured scientific assessment of the factors affecting the attainment of the use which may include physical, chemical, biological, and economic factors as described in 9VAC25-260-10 H.

"Water quality standards" means provisions of state or federal law which consist of a designated use or uses for the waters of the Commonwealth and water quality criteria for such waters based upon such uses. Water quality standards are to protect the public health or welfare, enhance the quality of water and serve the purposes of the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia) and the federal Clean Water Act (33 USC § 1251 et seq.).

"Wetlands" means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from Virginia Register Volume 14, Issue 4, eff. December 10, 1997; amended, Virginia Register Volume 19, Issue 7, eff. January 15, 2003; Volume 20, Issue 9, eff. February 12, 2004; Errata 20:11 VA.R. 1387 February 9, 2004; amended, Virginia Register Volume 21, Issue 23, eff. June 24, 2005; Volume 24, Issue 4, eff. August 14, 2007; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-260-10 Designation of uses

A. All state waters, including wetlands, are designated for the following uses: recreational uses, e.g., swimming and boating; the propagation and growth of a balanced, indigenous population of aquatic life, including game fish, which might reasonably be expected to inhabit them; wildlife; and the production of edible and marketable natural resources, e.g., fish and shellfish.

B. Subcategories of the propagation and growth of a balanced indigenous population of aquatic life, including game fish designated use for waters in the Chesapeake Bay and its tidal tributaries are listed in this subsection.

1. Migratory Fish Spawning and Nursery Designated Use: waters in the Chesapeake Bay and its tidal tributaries that protect the survival, growth and propagation of the early life stages of a balanced, indigenous population of anadromous, semi-anadromous, catadromous and tidal-fresh resident fish species inhabiting spawning and nursery grounds. This designated use extends from the end of tidal waters to the downriver end of spawning and nursery habitats that have been determined through a composite of all targeted anadromous and semi-anadromous fish species' spawning and nursery habitats (see boundaries in U.S. Environmental Protection Agency, 2004, Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability 2004 Addendum, Chesapeake Bay Program Office, Annapolis, Maryland). This designated use extends horizontally from the shoreline of the body of water to the adjacent shoreline, and extends down through the water column to the bottom water-sediment interface. This use applies February 1 through May 31 and applies in addition to the open-water use described in this subsection.

2. Shallow-water Submerged Aquatic Vegetation Designated Use: waters in the Chesapeake Bay and its tidal tributaries that support the survival, growth and propagation of submerged aquatic vegetation (rooted, underwater bay grasses). This use applies April 1 through October 31 in tidal-fresh, oligohaline and mesohaline Chesapeake Bay Program segments, and March 1 through November 30 in polyhaline Chesapeake Bay Program segments and applies in addition to the open-water use described in this subsection.

3. Open Water Aquatic Life Designated Use: waters in the Chesapeake Bay and its tidal tributaries that protect the survival, growth and propagation of a balanced, indigenous population of aquatic life inhabiting open-water habitats. This designated use applies year-round but the vertical boundaries change seasonally. October 1 through May 31, the open water aquatic life use extends horizontally from the shoreline at mean low water, to the adjacent shoreline, and extending through the water column to the bottom water-sediment interface. June 1 through September 30, if a pycnocline is present and, in combination with bottom bathymetry and water column circulation patterns, presents a barrier to oxygen replenishment of deeper waters, this designated use extends down into the water column only as far as the upper boundary of the pycnocline. June 1 through September 30, if a pycnocline is present but other physical circulation patterns (such as influx of oxygen rich oceanic bottom waters) provide for oxygen replenishment of deeper waters, the open-water aquatic life designated use extends down into the bottom water-sediment interface (see boundaries in U.S. Environmental Protection Agency, 2004 Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability 2004 Addendum, Chesapeake Bay Program Office, Annapolis, Maryland). This designated use includes the migratory fish spawning and nursery and shallow-water submerged aquatic vegetation uses.

4. Deep Water Aquatic Life Designated Use: waters in the Chesapeake Bay and its tidal tributaries that protect the survival and growth of a balanced, indigenous population of aquatic life inhabiting deep-water habitats. This designated use extends to the tidally influenced waters located between the upper and lower boundaries of the pycnocline where, in combination with bottom bathymetry and water circulation patterns, a pycnocline is present and presents a barrier to oxygen replenishment of deeper waters. In some areas, the deep-water designated use extends from the upper boundary of the pycnocline down to the bottom water-sediment interface (see boundaries in U.S. Environmental Protection Agency, 2004 Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability 2004 Addendum, Chesapeake Bay Program Office, Annapolis, Maryland). This use applies June 1 through September 30.

5. Deep Channel Seasonal Refuge Designated Use: waters in the Chesapeake Bay and its tidal tributaries that protect the survival of a balanced, indigenous population of benthic infauna and epifauna inhabiting deep-channel habitats. This designated use extends to the tidally influenced waters at depths greater than the lower boundary of the pycnocline in areas where, in combination with bottom bathymetry and water circulation patterns, the pycnocline presents a barrier to oxygen replenishment of deeper waters (see boundaries in U.S. Environmental Protection Agency, 2004 Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability 2004 Addendum, Chesapeake Bay Program Office, Annapolis, Maryland). This use applies June 1 through September 30.

C. In designating uses of a water body and the appropriate criteria for those uses, the board shall take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.

D. The board may adopt subcategories of a use and set the appropriate criteria to reflect varying needs of such subcategories of uses, for instance, to differentiate between cold water (trout streams) and warm water fisheries.

E. At a minimum, uses are deemed attainable if they can be achieved by the imposition of effluent limits required under §§ 301(b)(1)(A) and (B) and 306 of the Clean Water Act and cost-effective and reasonable best management practices for nonpoint source control.

F. Prior to adding or removing any use, or establishing subcategories of a use, the board shall provide notice and an opportunity for a public hearing under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

G. The board may adopt seasonal uses as an alternative to reclassifying a water body or segment thereof to uses requiring less stringent water quality criteria. If seasonal uses are adopted, water quality criteria should be adjusted to reflect the seasonal uses; however, such criteria shall not preclude the attainment and maintenance of a more protective use in another season.

H. The board may remove a designated use which is not an existing use, or establish subcategories of a use, if the board can demonstrate that attaining the designated use is not feasible because:

1. Naturally occurring pollutant concentrations prevent the attainment of the use;

2. Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating state water conservation requirements to enable uses to be met;

3. Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place;

4. Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the use;

5. Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or

6. Controls more stringent than those required by §§ 301(b) and 306 of the Clean Water Act would result in substantial and widespread economic and social impact.

I. The board may not remove designated uses if:

1. They are existing uses, unless a use requiring more stringent criteria is added; or

2. Such uses will be attained by implementing effluent limits required under §§ 301(b)(1)(A) and (B) and 306 of the Clean Water Act and by implementing cost-effective and reasonable best management practices for nonpoint source control.

J. Where existing water quality standards specify designated uses less than those which are presently being attained, the board shall revise its standards to reflect the uses actually being attained.

K. The board must conduct a use attainability analysis whenever:

1. The board designates or has designated uses that do not include the uses specified in § 101(a)(2) of the Clean Water Act; or

2. The board wishes to remove a designated use that is specified in § 101(a)(2) of the Clean Water Act or to adopt subcategories of uses specified in § 101(a)(2) of the Clean Water Act which require less stringent criteria.

L. The board is not required to conduct a use attainability analysis under this chapter whenever designating uses which include those specified in subsection A of this section.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-01.1, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 21, Issue 23, eff. June 24, 2005; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-20 General criteria

A. State waters, including wetlands, shall be free from substances attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful to human, animal, plant, or aquatic life.

Specific substances to be controlled include, but are not limited to: floating debris, oil, scum, and other floating materials; toxic substances (including those which bioaccumulate); substances that produce color, tastes, turbidity, odors, or settle to form sludge deposits; and substances which nourish undesirable or nuisance aquatic plant life. Effluents which tend to raise the temperature of the receiving water will also be controlled. Conditions within mixing zones established according to 9VAC25-260-20 B do not violate the provisions of this subsection.

B. The board may use mixing zone concepts in evaluating limitations for Virginia Pollutant Discharge Elimination System permits.

1. Mixing zones evaluated or established by the board in fresh water shall not:

a. Prevent movement of or cause lethality to passing and drifting aquatic organisms through the water body in question;

b. Constitute more than one half of the width of the receiving watercourse nor constitute more than one third of the area of any cross section of the receiving watercourse;

c. Extend downstream at any time a distance more than five times the width of the receiving watercourse at the point of discharge.

2. Mixing zones evaluated or established by the board in open ocean, estuarine and transition zone waters (see 9VAC25-260-140 C) shall not:

a. Prevent movement of or cause lethality to passing and drifting aquatic organisms through the water body in question;

b. Extend more than five times in any direction the average depth along a line extending 1/3 of the way across the receiving water from the discharge point to the opposite shore.

3. A subsurface diffuser shall be required for any new or expanded freshwater discharge greater than or equal to 0.5 MGD to open ocean, estuarine and transition zone waters (see 9VAC25-260-140 C) and the acute and chronic criteria shall be met at the edge of the zone of initial mixing. The zone of initial mixing is the area where mixing of ambient water and effluent is driven by the jet effect and/or momentum of the effluent. Beyond this zone the mixing is driven by ambient turbulence.

4. Mixing zones shall not be allowed by the board for effluents discharged to wetlands, swamps, marshes, lakes or ponds.

5. An allocated impact zone may be allowed within a mixing zone. This zone is the area of initial dilution of the effluent with the receiving water where the concentration of the effluent will be its greatest in the water column. Mixing within these allocated impact zones shall be as quick as practical and shall be sized to prevent lethality to passing and drifting aquatic organisms. The acute aquatic life criteria are not required to be attained in the allocated impact zone.

6. Mixing zones shall be evaluated or established such that acute criteria are met outside the allocated impact zone and chronic criteria are met at the edge of the mixing zone.

7. No mixing zone shall be used for, or considered as, a substitute for minimum treatment technology required by the Clean Water Act and other applicable state and federal laws.

8. The board shall not approve a mixing zone that violates the federal Endangered Species Act of 1973 (16 USCA §§ 1531-1543) or the Virginia Endangered Species Act, Article 6 (§ 29.1-563 et seq.) of Chapter 5 of Title 29.1 of the Code of Virginia.

9. Mixing zones shall not be allowed for the bacteria criteria in 9VAC25-260-170.

10. The board may waive the requirements of subdivisions 1 b and c, 2 b, 3 and 4 of this subsection on a case-by-case basis if:

a. The board determines that a complete mix assumption is appropriate; or

b. A discharger provides an acceptable demonstration of:

(1) Information defining the actual boundaries of the mixing zone in question; and

(2) Information and data demonstrating no violation of subdivisions B 1 a, 2 a and B 7 of this subsection by the mixing zone in question.

11. The size of a thermal mixing zone shall be determined on a case-by-case basis. This determination shall be based upon a sound rationale and be supported by substantial biological, chemical, physical, and engineering evidence and analysis. Any such determination shall show to the board's satisfaction that no adverse changes in the protection and propagation of balanced indigenous populations of fish, aquatic life, and wildlife may reasonably be expected to occur. A satisfactory showing made in conformance with § 316(a) of the Clean Water Act shall be deemed as compliance with the requirements of this section.

12. Notwithstanding the above, no new or expanded mixing zone shall:

a. Be allowed in waters listed in 9VAC25-260-30 A 3 c;

b. Be allowed in waters defined in 9VAC25-260-30 A 2 for new or existing discharges unless the requirements outlined in 9VAC25-260-30 A 2 are satisfied.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-01.2, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-30 Antidegradation policy

A. All surface waters of the Commonwealth shall be provided one of the following three levels, or tiers, of antidegradation protection. This antidegradation policy shall be applied whenever any activity is proposed that has the potential to affect existing surface water quality.

1. As a minimum, existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.

2. Where the quality of the waters exceed water quality standards, that quality shall be maintained and protected unless the board finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the Commonwealth's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the board shall assure water quality adequate to protect existing uses fully. Further, the board shall assure that there shall be achieved the highest statutory and regulatory requirements applicable to all new or existing point source discharges of effluent and all cost-effective and reasonable best management practices for nonpoint source control.

3. Surface waters, or portions of these, which provide exceptional environmental settings and exceptional aquatic communities or exceptional recreational opportunities may be designated and protected as described in subdivisions 3 a, b and c of this subsection.

a. Designation procedures.

(1) Designations shall be adopted in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and the board's public participation guidelines.

(2) Upon receiving a nomination of a waterway or segment of a waterway for designation as an exceptional state water pursuant to the board's antidegradation policy, as required by 40 CFR 131.12, the board shall notify each locality in which the waterway or segment lies and shall make a good faith effort to provide notice to impacted riparian property owners. The written notice shall include, at a minimum: (i) a description of the location of the waterway or segment; (ii) the procedures and criteria for designation as well as the impact of the designation; (iii) the name of the person making the nomination; and (iv) the name of a contact person at the Department of Environmental Quality who is knowledgeable about the nomination and the waterway or segment. Notice to property owners shall be based on names and addresses taken from local tax rolls. Such names and addresses shall be provided by the Commissioners of the Revenue or the tax assessor's office of the affected jurisdiction upon request by the board. After receipt of the notice of the nomination, localities shall be provided 60 days to comment on the consistency of the nomination with the locality's comprehensive plan. The comment period established by subdivision 3 a (2) of this subsection shall in no way impact a locality's ability to comment during any additional comment periods established by the board.

b. Implementation procedures.

(1) The quality of waters designated in subdivision 3 c of this subsection shall be maintained and protected to prevent permanent or long-term degradation or impairment.

(2) No new, additional, or increased discharge of sewage, industrial wastes or other pollution into waters designated in subdivision 3 c of this subsection shall be allowed.

(3) Activities causing temporary sources of pollution may be allowed in waters designated in subdivision 3 c of this subsection even if degradation may be expected to temporarily occur provided that after a minimal period of time the waters are returned or restored to conditions equal to or better than those existing just prior to the temporary source of pollution.

c. Surface waters designated under this subdivision are as follows:

(1) Little Stony Creek in Giles County from the first footbridge above the Cascades picnic area, upstream to the 3,300-foot elevation.

(2) Bottom Creek in Montgomery County and Roanoke County from Route 669 (Patterson Drive) downstream to the last property boundary of the Nature Conservancy on the southern side of the creek.

(3) Lake Drummond, located on U.S. Fish and Wildlife Service property, in its entirety within the cities of Chesapeake and Suffolk excluding any ditches and/or tributaries.

(4) North Creek in Botetourt County from the first bridge above the United States Forest Service North Creek Camping Area to its headwaters.

(5) Brown Mountain Creek, located on U.S. Forest Service land in Amherst County, from the City of Lynchburg property boundary upstream to the first crossing with the national forest property boundary.

(6) Laurel Fork, located on U.S. Forest Service land in Highland County, from the national forest property boundary below Route 642 downstream to the Virginia/West Virginia state line.

(7) North Fork of the Buffalo River, located on U.S. Forest Service land in Amherst County, from its confluence with Rocky Branch upstream to its headwaters.

(8) Pedlar River, located on U.S. Forest Service land in Amherst County, from where the river crosses FR 39 upstream to the first crossing with the national forest property boundary.

(9) Ramseys Draft, located on U.S. Forest Service land in Augusta County, from its headwaters (which includes Right and Left Prong Ramseys Draft) downstream to the Wilderness Area boundary.

(10) Whitetop Laurel Creek, located on U.S. Forest Service land in Washington County, from the national forest boundary immediately upstream from the second railroad trestle crossing the creek above Taylors Valley upstream to the confluence of Green Cove Creek.

(11) Ragged Island Creek in Isle of Wight County from its confluence with the James River at a line drawn across the creek mouth at N36°56.306'/W76°29.136' to N36°55.469'/W76°29.802' upstream to a line drawn across the main stem of the creek at N36°57.094'/W76°30.473' to N36°57.113'/W76°30.434', excluding wetlands and impounded areas and including only those tributaries completely contained within the Ragged Island Creek Wildlife Management Area on the northeastern side of the creek.

(12) Big Run in Rockingham County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of Big Run within the confines of Shenandoah National Park.

(13) Doyles River in Albemarle County from its headwaters to the first crossing with the Shenandoah National Park boundary and Jones Falls Run from its headwaters to its confluence with Doyles River and all tributaries to these segments of Doyles River and Jones Fall Run within the confines of Shenandoah National Park.

(14) East Hawksbill Creek in Page County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of East Hawksbill Creek within the confines of Shenandoah National Park.

(15) Jeremys Run in Page County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of Jeremys Run within the confines of Shenandoah National Park.

(16) East Branch Naked Creek in Page County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of East Branch Naked Creek within the confines of Shenandoah National Park.

(17) Piney River in Rappahannock County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of the Piney River within the confines of Shenandoah National Park.

(18) North Fork Thornton River in Rappahannock County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of the North Fork Thornton River within the confines of Shenandoah National Park.

(19) Blue Suck Branch from its headwaters downstream to the first crossing with the George Washington National Forest boundary.

(20) Downy Branch from its headwaters downstream to the first crossing with the George Washington National Forest boundary.

(21) North Branch Simpson Creek (Brushy Run) from its headwaters downstream to its confluence with Simpson Creek.

(22) Roberts Creek from its confluence with the Pedlar River upstream to its first crossing with the National Forest boundary.

(23) Shady Mountain Creek from its headwaters downstream to its confluence with the Pedlar River.

(24) Cove Creek from its headwaters downstream to the National Forest boundary.

(25) Little Cove Creek and its tributaries from the headwaters downstream to the National Forest boundary.

(26) Rocky Branch from its headwaters downstream to its confluence with the North Fork of the Buffalo River.

(27) North Fork of the Buffalo River from its confluence with Rocky Branch downstream to the National Forest Boundary.

(28) The Hazel River in Rappahannock County from its headwaters to the first downstream crossing with the Shenandoah National Park boundary and all tributaries within this segment within the confines of Shenandoah National Park.

(29) Little Stony Creek in Scott County from Bark Camp Lake dam to its confluence with Bakers Branch.

(30) North River in Augusta County from the Staunton Reservoir dam to the first crossing with National Forest lands boundary (near Girl Scout Camp May Flather).

B. Any determinations concerning thermal discharge limitations made under § 316(a) of the Clean Water Act will be considered to be in compliance with the antidegradation policy.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-01.3, eff. May 20, 1992; amended, Virginia Register Volume 13, Issue 11, eff. March 19, 1997; Volume 13, Issue 14, eff. April 30, 1997; Volume 14, Issue 4, eff. December 10, 1997; Volume 14, Issue 9, eff. February 18, 1998; Volume 20, Issue 9, eff. February 12, 2004; Volume 21, Issue 22, eff. August 10, 2005; Volume 22, Issue 10, eff. December 29, 2005; Volume 24, Issue 2, eff. September 11, 2007; Volume 24, Issue 26, eff. August 12, 2008; Volume 25, Issue 5, eff. October 22, 2008; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-40 Stream flow

Man-made alterations in stream flow shall not contravene designated uses including protection of the propagation and growth of aquatic life.

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-01.4, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997.

9VAC25-260-50 Numerical criteria for dissolved oxygen, pH, and maximum temperature***

| CLASS | DESCRIPTION OF WATERS | DISSOLVED OXYGEN (mg/l)**** | pH**** | Max. Temp. (°C) | | | --- | --- | --- | --- | --- | --- | | Min. | Daily Avg. | | | | | | I | Open Ocean | 5.0 | -- | 6.0-9.0 | -- | | II | Tidal Waters in the Chowan Basin and the Atlantic Ocean Basin | 4.0 | 5.0 | 6.0-9.0 | -- | | II | Tidal Waters in the Chesapeake Bay and its tidal tributaries | see 9VAC25-260-185 | 6.0-9.0 | | | | III | Nontidal Waters (Coastal and Piedmont Zones) | 4.0 | 5.0 | 6.0-9.0 | 32 | | IV | Mountainous Zones Waters | 4.0 | 5.0 | 6.0-9.0 | 31 | | V | Stockable Trout Waters | 5.0 | 6.0 | 6.0-9.0 | 21 | | VI | Natural Trout Waters | 6.0 | 7.0 | 6.0-9.0 | 20 | | VII | Swamp Waters | * | * | 3.7-8.0* | ** |

*This classification recognizes that the natural quality of these waters may fluctuate outside of the values for D.O. and pH set forth above as water quality criteria in Class I through VI waters. The natural quality of these waters is the water quality found or expected in the absence of human-induced pollution. Water quality standards will not be considered violated when conditions are determined by the board to be natural and not due to human-induced sources. The board may develop site specific criteria for Class VII waters that reflect the natural quality of the waterbody when the evidence is sufficient to demonstrate that the site specific criteria rather than narrative criterion will fully protect aquatic life uses. Virginia Pollutant Discharge Elimination System limitations in Class VII waters shall not cause significant changes to the naturally occurring dissolved oxygen and pH fluctuations in these waters.

**Maximum temperature will be the same as that for Classes I through VI waters as appropriate.

***The water quality criteria in this section do not apply below the lowest flow averaged (arithmetic mean) over a period of seven consecutive days that can be statistically expected to occur once every 10 climatic years (a climatic year begins April 1 and ends March 31). See 9VAC25-260-310 and 9VAC25-260-380 through 9VAC25-260-540 for site specific adjustments to these criteria.

****For a thermally stratified man-made lake or reservoir in Class III, IV, V, or VI waters that are listed in 9VAC25-260-187, these dissolved oxygen and pH criteria apply only to the epilimnion of the waterbody. When these waters are not stratified, the dissolved oxygen and pH criteria apply throughout the water column.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-01.5, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 17, Issue 16 and Volume 18, Issue 17, eff. June 5, 2002; Volume 20, Issue 9, eff. February 12, 2004; Volume 21, Issue 23, eff. June 24, 2005; Volume 23, Issue 26, eff. August 14, 2007; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-55 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 17, Issue 16 and Volume 18, Issue 17, eff. June 5, 2002; repealed, Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-60 Rise above natural temperature

Any rise above natural temperature shall not exceed 3°C except in the case of Class VI waters (natural trout waters), where it shall not exceed 1°C. However, the board can, on a case-by-case basis, impose a more stringent limit on the rise above natural temperature. Natural temperature is defined as that temperature of a body of water (measured as the arithmetic average over one hour) due solely to natural conditions without the influence of any point-source discharge.

History

• Statutory Authority: §§ 62.1-44.15(3) and (10) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-01.6, eff. May 20, 1992.

9VAC25-260-70 Maximum hourly temperature change

The maximum hourly temperature change shall not exceed 2°C, except in the case of Class VI waters (natural trout waters) where it shall not exceed 0.5°C. These criteria shall apply beyond the boundaries of mixing zones and are in addition to temperature changes caused by natural conditions.

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-01.7, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997.

9VAC25-260-80 Thermal discharges into lakes and impoundments

In lakes and impoundments receiving thermal discharges, the temperature of the epilimnion, or surface water when there is no stratification, shall not be raised more than 3°C above that which existed before the addition of heat of artificial origin. The board may, on a case-by-case basis, impose a more stringent limit on temperature rise. The increase shall be based on the monthly average of the maximum daily temperature. The temperature of releases from these lakes and impoundments shall be consistent with standards established for the receiving waters. When an applicant for a permit proposes either a discharge of heated effluent into the hypolimnion or the pumping of water from the hypolimnion for return back into the same body of water, such practice shall not be approved unless a special study shows that the practice will not produce adverse effects.

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-01.8, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997.

9VAC25-260-90 Thermal variances

The temperature limits set forth in 9VAC25-260-50 through 9VAC25-260-80 may be superseded in certain locations where a thermal variance demonstration is performed in accordance with § 316(a) of the Clean Water Act.

A successful demonstration accepted by the board concerning thermal discharge limits carried out under § 316(a) of the Clean Water Act shall constitute compliance with the temperature requirements of these standards. A successful demonstration must assure the protection and propagation of a balanced indigenous population of aquatic species and wildlife in or on the water into which the discharge is made. When making a determination concerning thermal discharge limits under § 316(a) of the Clean Water Act, the board shall provide notice and opportunity for a public hearing.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-01.9, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-100 [Deleted]

Historical Notes

Derived from VR680-21-01, eff. May 20, 1992.

9VAC25-260-110 Halogen ban

A. Chlorine or other halogen compounds Bromine, bromine chloride, hypochlorite and chlorine dioxide. shall not be used for disinfection purposes or other treatment purposes including biocide applications for any treatment facility with a permitted flow of 20,000 gallons per day or more discharging to waters containing endangered or threatened species listed in subsection C of this section or to waters listed as i and ii in the River Basin Section Tables, 9VAC25-260-390 et seq. except for dischargers who intermittently chlorinate. Dischargers of less than 20,000 gallons per day shall dechlorinate to the requirements of the numerical chlorine criteria in 9VAC25-260-140 B or to a nondetectable chlorine residual. Dischargers who intermittently chlorinate (not more than two hours in any eight-hour period) shall be required to install equipment or employ procedures, or both, to ensure dechlorination to a chlorine residual that meets the numerical chlorine criteria in 9VAC25-260-140 B, and to apply effective best management practices for chlorine. Dischargers who intermittently chlorinate shall, in order to address a possible malfunction of the dechlorination system, either have storage sufficient to contain the chlorinated water until it can be dechlorinated prior to discharge or have an online redundant and operational back-up dechlorination system.

B. Variance to this requirement shall not be made unless it has been affirmatively demonstrated that the existing uses of the water will be maintained and that either a change is justifiable to provide necessary economic or social development or the degree of waste treatment necessary to preserve the existing quality cannot be economically or socially justified.

C. TENNESSEE AND BIG SANDY RIVER BASINS

CLINCH RIVER SUBBASIN

Powell River from river mile 136 (south of Jonesville) downstream to the Tennessee/Virginia line (river mile 115.8—total 20.2 miles).

Endangered Species:

| | Appalachian monkeyface pearly mussel | Quadrula sparsa | | --- | --- | --- | | | Birdwing pearly mussel | Conradilla caelata | | | Cumberland monkeyface pearly mussel | Quadrula intermedia | | | Dromedary pearly mussel | Dromus dromas | | | Fine-rayed pigtoe pearly mussel | Fusconaia cuneolus | | | Shiny pigtoe pearly mussel | Fusconaia edgariana |

Threatened Species:

| | Slender chub | Hybopsis cahni | | --- | --- | --- | | | Yellowfin madtom | Noturus flavipinnis |

Clinch River from river mile 323 (Richlands) downstream to the Tennessee/Virginia line (river mile 202.1).

Endangered Species:

| | Appalachian monkeyface pearly mussel | Quadrula sparsa | | --- | --- | --- | | | Birdwing pearly mussel | Conradilla caelata | | | Fine-rayed pigtoe pearly mussel | Fusconaia cuneolus | | | Green blossom pearly mussel | Dysnomia torulosa gubernaculum | | | Pink mucket pearly mussel | Lampsilis orbiculata | | | Shiny pigtoe pearly mussel | Fusconaia edgariana |

Clinch River from the Scott/Russell County line (at Bangor—river mile 244.2) downstream to the Tennessee boundary (river mile 202.1).

Threatened Species:

| | Slender chub | Hybopsis cahni | | --- | --- | --- |

Copper Creek from 2 miles above its confluence with the Clinch River (river mile 211.6).

Endangered Species:

| | Fine-rayed pigtoe pearly mussel | Fusconaia cuneolus | | --- | --- | --- | | | Shiny pigtoe pearly mussel | Fusconaia edgariana |

Copper Creek from Dickensville (river mile 56) in Russell County downstream to its confluence with the Clinch River.

Threatened Species:

| | Yellowfin madtom | Noturus flavipinnis | | --- | --- | --- |

HOLSTON RIVER SUBBASIN

North Fork Holston River from river mile 93.3 (near Broadford) downstream to the Smyth/Washington County line (river mile 82.1).

Endangered Species:

| | Shiny pigtoe pearly mussel | Fusconaia edgariana | | --- | --- | --- |

North Fork Holston River from the Smyth/Washington County line (river mile 82.1) to the Tennessee/Virginia boundary (river mile 5).

Threatened Species:

| | Spotfin chub | Hybopsis monacha | | --- | --- | --- |

Middle Fork Holston River from river mile 43 (in Marion) downstream to river mile 18.4.

Endangered Species:

| | Tan riffle shell mussel | Dysnomia walkeri | | --- | --- | --- |

Middle Fork Holston River from river mile 6.5 to river mile 3.2 near Osceola.

Threatened Species:

| | Spotfin chub | Hybopsis monacha | | --- | --- | --- |

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-01.11, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998.

9VAC25-260-120 (Repealed.)

Historical Notes

Derived from VR680-21-01.12 and VR680-21-01.13, eff. May 20, 1992; repealed, Virginia Register Volume 14, Issue 4, eff. December 10, 1997.

9VAC25-260-140 Criteria for surface water

A. Instream water quality conditions shall not be acutely¹ or chronically² toxic except as allowed in 9VAC25-260-20 B (mixing zones). The following are definitions of acute and chronic toxicity conditions:

"Acute toxicity" means an adverse effect that usually occurs shortly after exposure to a pollutant. Lethality to an organism is the usual measure of acute toxicity. Where death is not easily detected, immobilization is considered equivalent to death.

"Chronic toxicity" means an adverse effect that is irreversible or progressive or occurs because the rate of injury is greater than the rate of repair during prolonged exposure to a pollutant. This includes low level, long-term effects such as reduction in growth or reproduction.

B. The following table is a list of numerical water quality criteria for specific parameters.

| Table of Parameters^{6, 7} | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | PARAMETER CAS Number | USE DESIGNATION | | | | | | | AQUATIC LIFE | HUMAN HEALTH | | | | | | | FRESHWATER | SALTWATER | Public Water Supply³ | All Other Surface Waters⁴ | | | | | Acute¹ | Chronic² | Acute¹ | Chronic² | | | | | Acenapthene (µg/l) 83329 | | | | | 70 | 90 | | Acrolein (µg/l) 107028 | 3.0 | 3.0 | | | 3 | 400 | | Acrylonitrile (µg/l) 107131 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.61 | 70 | | Aldrin (µg/l) 309002 Known or suspected carcinogen; human health criteria at risk level 10^-5. | 3.0 | | 1.3 | | 0.0000077 | 0.0000077 | | Aluminum (µg/l) 7429905 Acute and chronic freshwater aluminum criteria values for a site shall be calculated using the 2018 Aluminum Criteria Calculator (Aluminum Criteria Calculator V.2.0.xlsx), or a calculator in R or other software package using the same 1985 Guidelines calculation approach and underlying model equations as in the Aluminum Criteria Calculator V.2.0.xlsx, as defined in EPA's Final Aquatic Life Ambient Water Quality Criteria for Aluminum. (EPA-822-R-18-001, 2018) Values displayed in the table are examples of criteria calculated by the model using the indicated input parameters for pH, hardness, and Dissolved Organic Carbon (DOC). Freshwater criteria expressed as total recoverable. | 1,300 pH= 7.0 Total hardness (CaCO3) = 25 mg/l DOC = 5.0 mg/l | 500 pH= 7.0 Total hardness (CaCO3) = 25 mg/l DOC = 5.0 mg/l | | | | | | Ammonia (µg/l) 7664417 Chronic criterion is a 30-day average concentration not to be exceeded more than once every three years on the average.(see 9VAC25-260-155) | | | | | | | | Anthracene (µg/l) 120127 | | | | | 300 | 400 | | Antimony (µg/l) 7440360 | | | | | 5.3 | 580 | | Arsenic (µg/l)⁵ 7440382 | 340 | 150 | 69 | 36 | 10 | | | Bacteria (see 9VAC25-260-160 and 9VAC25-260-170) | | | | | | | | Barium (µg/l) 7440393 | | | | | 2,000 | | | Benzene (µg/l) 71432 Known or suspected carcinogen; human health criteria at risk level 10^-5 | | | | | 5.8 | 160 | | Benzidine (µg/l) 92875 Known or suspected carcinogen; human health criteria at risk level 10^-5 | | | | | 0.0014 | 0.11 | | Benzo (a) anthracene (µg/l) 56553 Known or suspected carcinogen; human health criteria at risk level 10^-5 | | | | | 0.012 | 0.013 | | Benzo (b) fluoranthene (µg/l) 205992 Known or suspected carcinogen; human health criteria at risk level 10^-5 | | | | | 0.012 | 0.013 | | Benzo (k) fluoranthene (µg/l) 207089 Known or suspected carcinogen; human health criteria at risk level 10^-5 | | | | | 0.12 | 0.13 | | Benzo (a) pyrene (µg/l) 50328 Known or suspected carcinogen; human health criteria at risk level 10^-5 | | | | | 0.0012 | 0.0013 | | Bis2-Chloroethyl Ether (µg/l) 111444 Known or suspected carcinogen; human health criteria at risk level 10^-5 | | | | | 0.30 | 22 | | | | | | | | | | 2,2'-Oxybis(1-Chloropropane) (µg/l) 108601 | | | | | 200 | 4,000 | | Bis2-Ethylhexyl Phthalate (µg/l) 117817 Known or suspected carcinogen; human health criteria at risk level 10^-5. Synonym = Di-2-Ethylhexyl Phthalate. | | | | | 3.2 | 3.7 | | Bromoform (µg/l) 75252 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 70 | 1,200 | | Butyl benzyl phthalate (µg/l) 85687 | | | | | 1.0 | 1.0 | | Cadmium (µg/l)⁵ 7440439 Freshwater values are a function of total hardness as calcium carbonate (CaCO₃) mg/l and the WER. The minimum hardness allowed for use in the equation below shall be 25 and the maximum hardness shall be 400 even when the actual ambient hardness is less than 25 or greater than 400. Freshwater acute criterion (µg/l) WER e ^{(0.9789[ln(hardness)]-3.866)} (CF_a) Freshwater chronic criterion (µg/l) WER e ^{(0.7977[ln(hardness)]-3.909)}(CF_c) WER = Water Effect Ratio = 1 unless determined otherwise under 9VAC25-260-140 F e = natural antilogarithm ln = natural logarithm CF = conversion factor a (acute) or c (chronic) CF_a = 1.136672-[(ln hardness)(0.041838)] CF_c = 1.101672-[(ln hardness)(0.041838)] | 1.8 CaCO₃ = 100 | 0.72 CaCO₃ = 100 | 33 X WER | 7.9 X WER | 5 | | | Carbon tetrachloride (µg/l) 56235 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 4.0 | 50 | | Carbaryl (µg/l) 63252 | 2.1 | 2.1 | 1.6 | | | | | Chlordane (µg/l) 57749 Known or suspected carcinogen; human health criteria at risk level 10^-5. | 2.4 | 0.0043 | 0.09 | 0.0040 | 0.0031 | 0.0032 | | Chloride (µg/l) 16887006 Human health criterion to maintain acceptable taste and aesthetic quality and applies at the drinking water intake. Chloride criteria do not apply in Class II transition zones (see subsection C of this section). | 860,000 | 230,000 | | | 250,000 | | | Chlorine, Total Residual (µg/l) 7782505 In DWR class i and ii trout waters (9VAC25-260-390 through 9VAC25-260-540) or waters with threatened or endangered species are subject to the halogen ban (9VAC25-260-110). | 19 See 9VAC25-260-110 | 11 See 9VAC25-260-110 | | | | | | Chlorine Produced Oxidant (µg/l) 7782505 | | | 13 | 7.5 | | | | Chlorobenzene (µg/l) 108907 | | | | | 100 | 800 | | Chlorodibromomethane (µg/l) 124481 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 8.0 | 210 | | Chloroform (µg/l) 67663 | | | | | 60 | 2,000 | | 2-Chloronaphthalene (µg/l) 91587 | | | | | 800 | 1,000 | | 2-Chlorophenol (µg/l) 95578 | | | | | 30 | 800 | | Chlorpyrifos (µg/l) 2921882 | 0.083 | 0.041 | 0.011 | 0.0056 | | | | Chromium III (µg/l)⁵ 16065831 Freshwater values are a function of total hardness as calcium carbonate CaCO₃ mg/l and the WER. The minimum hardness allowed for use in the equation below shall be 25 and the maximum hardness shall be 400 even when the actual ambient hardness is less than 25 or greater than 400. Freshwater acute criterion µg/l WER [e^{{0.8190[ln(hardness)]+3.7256}}] (CF_a) Freshwater chronic criterion µg/l WER [e^{{0.8190[ln(hardness)]+0.6848}}] (CF_c) WER = Water Effect Ratio = 1 unless determined otherwise under 9VAC25-260-140.F e = natural antilogarithm ln = natural logarithm CF = conversion factor a (acute) or c (chronic) CF_a= 0.316 CF_c=0.860 | 570 (CaCO₃ = 100) | 74 (CaCO₃ = 100) | | | 100 (total Cr) | | | Chromium VI (µg/l)⁵ 18540299 | 16 | 11 | 1,100 | 50 | | | | Chrysene (µg/l) 218019 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 1.2 | 1.3 | | Copper (µg/l)⁵ 7440508 Freshwater values are a function of total hardness as calcium carbonate CaCO₃mg/l and the WER. The minimum hardness allowed for use in the equation below shall be 25 and the maximum hardness shall be 400 even when the actual ambient hardness is less than 25 or greater than 400. Freshwater acute criterion (µg/l) WER [e^{{0.9422[ln(hardness)]-1.700}}] (CF_a) Freshwater chronic criterion (µg/l) WER [e ^{{0.8545[ln(hardness)]-1.702}}] (CF_c) WER = Water Effect Ratio = 1 unless determined otherwise under 9VAC25-260-140 F. e = natural antilogarithm ln = natural logarithm CF = conversion factor a (acute) or c (chronic) CF_a = 0.960 CF_c = 0.960 Alternate copper criteria in freshwater: the freshwater criteria for copper can also be calculated using the EPA 2007 Biotic Ligand Model (See 9VAC25-260-140 G). Acute saltwater criterion is a 24-hour average not to be exceeded more than once every three years on the average. | 13 CaCO₃ = 100 | 9.0 CaCO₃ = 100 | 9.3 X WER | 6.0 X WER | 1,300 | | | Cyanide, Free (µg/l) 57125 | 22 | 5.2 | 1.0 | 1.0 | 4 | 400 | | DDD (µg/l) 72548 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.0012 | 0.0012 | | DDE (µg/l) 72559 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.00018 | 0.00018 | | DDT (µg/l) 50293 Known or suspected carcinogen; human health criteria at risk level 10^-5. Total concentration of DDT and metabolites shall not exceed aquatic life criteria. | 1.1 | 0.0010 | 0.13 | 0.0010 | 0.00030 | 0.00030 | | Demeton (µg/l) 8065483 | | 0.1 | | 0.1 | | | | Diazinon (µg/l) 333415 | 0.17 | 0.17 | 0.82 | 0.82 | | | | Dibenz (a, h) anthracene (µg/l) 53703 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.0012 | 0.0013 | | 1,2-Dichlorobenzene (µg/l) 95501 | | | | | 1,000 | 3,000 | | 1,3-Dichlorobenzene (µg/l) 541731 | | | | | 7 | 10 | | 1,4 Dichlorobenzene (µg/l) 106467 | | | | | 300 | 900 | | 3,3 Dichlorobenzidine (µg/l) 91941 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.49 | 1.5 | | Dichlorobromomethane (µg/l) 75274 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 9.5 | 270 | | 1,2 Dichloroethane (µg/l) 107062 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 99 | 6,500 | | 1,1 Dichloroethylene (µg/l) 75354 | | | | | 300 | 20,000 | | 1,2-trans-dichloroethylene (µg/l) 156605 | | | | | 100 | 4,000 | | 2,4 Dichlorophenol (µg/l) 120832 | | | | | 10 | 60 | | 2,4 Dichlorophenoxy acetic acid (Chlorophenoxy Herbicide) (2,4-D) (µg/l) 94757 | | | | | 1,300 | 12,000 | | 1,2-Dichloropropane (µg/l) 78875 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 9.0 | 310 | | 1,3-Dichloropropene (µg/l) 542756 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 2.7 | 120 | | Dieldrin (µg/l) 60571 Known or suspected carcinogen; human health criteria at risk level 10^-5. | 0.24 | 0.056 | 0.71 | 0.0019 | 0.000012 | 0.000012 | | Diethyl Phthalate (µg/l) 84662 | | | | | 600 | 600 | | 2,4 Dimethylphenol (µg/l) 105679 | | | | | 100 | 3,000 | | Dimethyl Phthalate (µg/l) 131113 | | | | | 2,000 | 2,000 | | Di-n-Butyl Phthalate (µg/l) 84742 | | | | | 20 | 30 | | 2,4 Dinitrophenol (µg/l) 51285 | | | | | 10 | 300 | | Dinitrophenols (µg/l) 25550587 | | | | | 10 | 1,000 | | 2-Methyl-4,6-Dinitrophenol (µg/l) 534521 | | | | | 2 | 30 | | 2,4 Dinitrotoluene (µg/l) 121142 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.49 | 17 | | Dioxin 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (µg/l) 1746016 | | | | | 4.6 E-8 | 4.7 E-8 | | 1,2-Diphenylhydrazine (µg/l) 122667 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.3 | 2.0 | | Dissolved Oxygen (µg/l) (See 9VAC25-260-50) | | | | | | | | Alpha-Endosulfan (µg/l) 959988 Total concentration alpha and beta-endosulfan shall not exceed aquatic life criteria. | 0.22 | 0.056 | 0.034 | 0.0087 | 20 | 30 | | Beta-Endosulfan (µg/l) 33213659 Total concentration alpha and beta-endosulfan shall not exceed aquatic life criteria. | 0.22 | 0.056 | 0.034 | 0.0087 | 20 | 40 | | Endosulfan Sulfate (µg/l) 1031078 | | | | | 20 | 40 | | Endrin (µg/l) 72208 | 0.086 | 0.036 | 0.037 | 0.0023 | 0.03 | 0.03 | | Endrin Aldehyde (µg/l) 7421934 | | | | | 1 | 1 | | Ethylbenzene (µg/l) 100414 | | | | | 68 | 130 | | Fecal Coliform (see 9VAC25-260-160) | | | | | | | | Fluoranthene (µg/l) 206440 | | | | | 20 | 20 | | Fluorene (µg/l) 86737 | | | | | 50 | 70 | | Foaming Agents (µg/l) Criterion measured as methylene blue active substances. Criterion to maintain acceptable taste, odor, or aesthetic quality of drinking water and applies at the drinking water intake. | | | | | 500 | | | Guthion (µg/l) 86500 | | 0.01 | | 0.01 | | | | Heptachlor (µg/l) 76448 Known or suspected carcinogen; human health criteria at risk level 10^-5. | 0.52 | 0.0038 | 0.053 | 0.0036 | 0.000059 | 0.000059 | | Heptachlor Epoxide (µg/l) 1024573 Known or suspected carcinogen; human health criteria at risk level 10^-5. | 0.52 | 0.0038 | 0.053 | 0.0036 | 0.00032 | 0.00032 | | Hexachlorobenzene (µg/l) 118741 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.00079 | 0.00079 | | Hexachlorobutadiene (µg/l) 87683 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.1 | 0.1 | | Hexachlorocyclohexane Alpha-BHC (µg/l) 319846 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.0036 | 0.0039 | | Hexachlorocyclohexane Beta-BHC (µg/l) 319857 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.080 | 0.14 | | Hexachlorocyclohexane (µg/l) (Lindane) Gamma-BHC 58899 | 0.95 | | 0.16 | | 4.2 | 4.4 | | Hexachlorocyclohexane (HCH)-Technical (µg/l) 608731 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.066 | 0.1 | | Hexachlorocyclopentadiene (µg/l) 77474 | | | | | 4 | 4 | | Hexachloroethane (µg/l) 67721 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 1 | 1 | | Hydrogen sulfide (µg/l) 7783064 | | 2.0 | | 2.0 | | | | Indeno (1,2,3,-cd) pyrene (µg/l) 193395 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.012 | 0.013 | | Iron (µg/l) 7439896 Criterion to maintain acceptable taste, odor, or aesthetic quality of drinking water and applies at the drinking water intake. | | | | | 300 | | | Isophorone (µg/l) 78591 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 340 | 18,000 | | Kepone (µg/l) 143500 | | zero | | zero | | | | Lead (µg/l)⁵ 7439921 Freshwater values are a function of total hardness as calcium carbonate CaCO₃ mg/l and the water effect ratio. The minimum hardness allowed for use in the equation below shall be 25 and the maximum hardness shall be 400 even when the actual ambient hardness is less than 25 or greater than 400. Freshwater acute criterion (µg/l) WER e ^{{1.273[ln(hardness)]-1.084}} Freshwater chronic criterion (µg/l) WER [e ^{{1.273[ln(hardness)]-3.259}}] (CF_c) WER = Water Effect Ratio = 1 unless determined otherwise under 9VAC25-260-140 F e = natural antilogarithm ln = natural logarithm CF = conversion factor a (acute) or c (chronic) CF_a= 1.46203-[(ln hardness)(0.145712)] CF_c = 1.46203-[(ln hardness)(0.145712)] | 94 CaCO₃ = 100 | 11 CaCO₃ = 100 | 230 X WER | 8.8 X WER | 15 | | | Malathion (µg/l) 121755 | | 0.1 | | 0.1 | | | | Mercury (µg/l) 5 7439976 | 1.4 | 0.77 | 1.8 | 0.94 | | | | Methyl Bromide (µg/l) 74839 | | | | | 100 | 10,000 | | 3-Methyl-4-Chlorophenol 59507 | | | | | 500 | 2,000 | | Methyl Mercury (Fish Tissue Criterion mg/kg) 8 22967926 | | | | | 0.30 | 0.30 | | Methylene Chloride (µg/l) 75092 Known or suspected carcinogen; human health criteria at risk level 10^-5.Synonym = Dichloromethane | | | | | 20 | 1,000 | | Methoxychlor (µg/l) 72435 | | 0.03 | | 0.03 | 0.02 | 0.02 | | Mirex (µg/l) 2385855 | | zero | | zero | | | | Nickel (µg/l)⁵ 7440020 Freshwater values are a function of total hardness as calcium carbonate CaCO₃ mg/l and the WER. The minimum hardness allowed for use in the equation below shall be 25 and the maximum hardness shall be 400 even when the actual ambient hardness is less than 25 or greater than 400. Freshwater acute criterion (µg/l) WER [e ^{{0.8460[ln(hardness)] + 1.312}}] (CF_a) Freshwater chronic criterion (µg/l) WER [e ^{{0.8460[ln(hardness)] - 0.8840}}] (CF_c) WER = Water Effect Ratio = 1 unless determined otherwise under 9VAC25-260-140 F e = natural antilogarithm ln = natural logarithm CF = conversion factor a (acute) or c (chronic) CF_a = 0.998 CF_c = 0.997 | 180 CaCO₃ = 100 | 20 CaCO₃ = 100 | 74 X WER | 8.2 X WER | 470 | 1,500 | | Nitrate as N (µg/l) 14797558 | | | | | 10,000 | | | Nitrobenzene (µg/l) 98953 | | | | | 10 | 600 | | N-Nitrosodimethylamine (µg/l) 62759 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.0065 | 27 | | N-Nitrosodiphenylamine (µg/l) 86306 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 30 | 55 | | N-Nitrosodi-n-propylamine (µg/l) 621647 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.047 | 4.6 | | Nonylphenol (µg/l) 84852153 | 28 | 6.6 | 7.0 | 1.7 | | | | Parathion (µg/l) 56382 | 0.065 | 0.013 | | | | | | PCB Total (µg/l) 1336363 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | 0.014 | | 0.030 | 0.00058 | 0.00058 | | Pentachlorobenzene (µg/l) 608935 | | | | | 0.1 | 0.1 | | Pentachlorophenol (µg/l) 87865 Known or suspected carcinogen; human health criteria risk level at 10^-5. Freshwater acute criterion (µg/l) e ^{(1.005(pH)-4.869)} Freshwater chronic criterion (µg/l) e ^{(1.005(pH)-5.134)} | 8.7 pH = 7.0 | 6.7 pH = 7.0 | 13 | 7.9 | 0.3 | 0.4 | | pH See 9VAC25-260-50 | | | | | | | | Phenol (µg/l) 108952 | | | | | 4,000 | 300,000 | | Phosphorus Elemental (µg/l) 7723140 | | | | 0.10 | | | | Pyrene (µg/l) 129000 | | | | | 20 | 30 | | Radionuclides | | | | | | | | Gross Alpha Particle Activity (pCi/L) | | | | | 15 | | | Beta Particle & Photon Activity (mrem/yr) (formerly man-made radionuclides) | | | | | 4 | | | Combined Radium 226 and 228 (pCi/L) | | | | | 5 | | | Uranium (µg/L) 7440611 | | | | | 30 | | | Selenium (µg/l)⁵ 7782492 WER shall not be used for freshwater acute and chronic criteria. Freshwater criteria expressed as total recoverable. | 20 | 5.0 | 290 X WER | 71 X WER | 160 | 3,800 | | Silver (µg/l)⁵ 7440224 Freshwater values are a function of total hardness as calcium carbonate (CaCO₃) mg/l and the WER. The minimum hardness allowed for use in the equation below shall be 25 and the maximum hardness shall be 400 even when the actual ambient hardness is less than 25 or greater than 400. Freshwater acute criterion (µg/l) WER [e^{{1.72[ln(hardness)]-6.52}}] (CF_a) WER = Water Effect Ratio = 1 unless determined otherwise under 9VAC25-260-140 F e = natural antilogarithm ln = natural logarithm CF = conversion factor a (acute) or c (chronic) CF_a = 0.85 | 3.4; CaCO₃ = 100 | | 1.9 X WER | | | | | Sulfate (µg/l) Criterion to maintain acceptable taste, odor, or aesthetic quality of drinking water and applies at the drinking water intake. | | | | | 250,000 | | | Temperature See 9VAC25-260-50 | | | | | | | | 1,2,4,5-Tetrachlorobenzene 95943 | | | | | 0.03 | 0.03 | | 1,1,2,2-Tetrachloroethane (µg/l) 79345 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 2.0 | 30 | | Tetrachloroethylene (µg/l) 127184 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 100 | 290 | | Thallium (µg/l) 7440280 | | | | | 0.22 | 0.43 | | Toluene (µg/l) 108883 | | | | | 57 | 520 | | Total Dissolved Solids (µg/l) Criterion to maintain acceptable taste, odor or aesthetic quality of drinking water and applies at the drinking water intake. | | | | | 500,000 | | | Toxaphene (µg/l) 8001352 Known or suspected carcinogen; human health criteria at risk level 10^-5. | 0.73 | 0.0002 | 0.21 | 0.0002 | 0.0070 | 0.0071 | | Tributyltin (µg/l) E1790678 | 0.46 | 0.072 | 0.42 | 0.0074 | | | | 1, 2, 4 Trichlorobenzene (µg/l) 120821 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.71 | 0.76 | | 1,1,1-Trichloroethane 71556 | | | | | 10,000 | 200,000 | | 1,1,2-Trichloroethane (µg/l) 79005 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 5.5 | 89 | | Trichloroethylene (µg/l) 79016 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 6.0 | 70 | | 2, 4, 5 –Trichlorophenol 95954 | | | | | 300 | 600 | | 2, 4, 6-Trichlorophenol (µg/l) 88062 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 15 | 28 | | 2-(2, 4, 5-Trichlorophenoxy) propionic acid (Silvex) (µg/l) 93721 | | | | | 100 | 400 | | Vinyl Chloride (µg/l) 75014 Known or suspected carcinogen; human health criteria at risk level 10^-5. | | | | | 0.22 | 16 | | Zinc (µg/l)⁵ 7440666 Freshwater values are a function of total hardness as calcium carbonate (CaCO₃) mg/l and the WER. The minimum hardness allowed for use in the equation below shall be 25 and the maximum, hardness shall be 400 even when the actual ambient hardness is less than 25 or greater than 400. Freshwater acute criterion (µg/l) WER e ^{{0.8473[ln(hardness)]+0.884}} Freshwater chronic criterion (µg/l) WER [e^{{0.8473[ln(hardness)]+0.884}}] (CF_c) WER = Water Effect Ratio = 1 unless determined otherwise under 9VAC25-260-140 F e = natural antilogarithm ln = natural logarithm CF = conversion factor a (acute) or c (chronic) CF_a = 0.978 CF_c = 0.986 | 120 CaCO₃ = 100 | 120 CaCO₃ = 100 | 90 X WER | 81 X WER | 7,000 | 23,000 | | ¹One hour average concentration not to be exceeded more than once every 3 years on the average, unless otherwise noted. ²Four-day average concentration not to be exceeded more than once every 3 years on the average, unless otherwise noted. ³Criteria have been calculated to protect human health from toxic effects through drinking water and fish consumption, unless otherwise noted and apply in segments designated as PWS in 9VAC25-260-390 through 9VAC25-260-540. Human health criteria are based on the assumption of average amount of exposure on a long-term basis. ⁴Criteria have been calculated to protect human health from toxic effects through fish consumption, unless otherwise noted and apply in all other surface waters not designated as PWS in 9VAC25-260-390 through 9VAC25-260-540. Human health criteria are based on the assumption of average amount of exposure on a long-term basis. ⁵Acute and chronic saltwater and freshwater aquatic life criteria apply to the biologically available form of the metal and apply as a function of the pollutant's water effect ratio (WER) as defined in 9VAC25-260-140 F (WER X criterion). Metals measured as dissolved shall be considered to be biologically available, or, because local receiving water characteristics may otherwise affect the biological availability of the metal, the biologically available equivalent measurement of the metal can be further defined by determining a water effect ratio (WER) and multiplying the numerical value shown in 9VAC25-260-140 B by the WER. Refer to 9VAC25-260-140 F. Values displayed above in the table are examples and correspond to a WER of 1.0. Metals criteria have been adjusted to convert the total recoverable fraction to dissolved fraction using a conversion factor. Criteria that change with hardness have the conversion factor listed in the table above. ⁶The flows listed below are default design flows for calculating steady state wasteload allocations unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria. | Aquatic Life: | | | --- | --- | | Acute criteria | 1Q10 | | Chronic criteria | 7Q10 | | Chronic criteria (ammonia) | 30Q10 | | Human Health: | | | Noncarcinogens | 30Q5 | | Carcinogens | Harmonic mean | The following are defined for this section: "1Q10" means the lowest flow averaged over a period of 1 day which on a statistical basis can be expected to occur once every 10 climatic years. "7Q10" means the lowest flow averaged over a period of 7 consecutive days that can be statistically expected to occur once every 10 climatic years. "30Q5" means the lowest flow averaged over a period of 30 consecutive days that can be statistically expected to occur once every 5 climatic years. "30Q10" means the lowest flow averaged over a period of 30 consecutive days that can be statistically expected to occur once every 10 climatic years. "Averaged" means an arithmetic mean. "Climatic year" means a year beginning on April 1 and ending on March 31. ⁷The criteria listed in this table are two significant digits. For other criteria that are referenced to other sections of this regulation in this table, all numbers listed as criteria values are significant. ⁸The fish tissue criterion for methylmercury applies to a concentration of 0.30 mg/kg as wet weight in edible tissue for species of fish and shellfish resident in a waterbody that are commonly eaten in the area and have commercial, recreational, or subsistence value. | | | | | | |

C. Application of freshwater and saltwater numerical criteria. The numerical water quality criteria listed in subsection B of this section (excluding dissolved oxygen, pH, temperature) shall be applied according to the following classes of waters (see 9VAC25-260-50) and boundary designations:

| CLASS OF WATERS | NUMERICAL CRITERIA | | --- | --- | | I and II (Estuarine Waters) | Saltwater criteria apply | | II (Transition Zone) | More stringent of either the freshwater or saltwater criteria apply | | II (Tidal Freshwater), III, IV, V, VI and VII | Freshwater criteria apply |

The following describes the boundary designations for Class II, (estuarine, transition zone and tidal freshwater waters) by river basin:

1. Rappahannock Basin. Tidal freshwater is from the fall line of the Rappahannock River to the upstream boundary of the transition zone including all tidal tributaries that enter the tidal freshwater Rappahannock River.

Transition zone upstream boundary – N38° 4' 56.59"/W76° 58' 47.93" (430 feet east of Hutchinson Swamp) to N38° 5' 23.33"/W76° 58' 24.39" (0.7 miles upstream of Peedee Creek).

Transition zone downstream boundary – N37° 58' 45.80"/W76° 55' 28.75" (1,000 feet downstream of Jenkins Landing) to N37° 59' 20.07/W76° 53' 45.09" (0.33 miles upstream of Mulberry Point). All tidal waters that enter the transition zone are themselves transition zone waters.

Estuarine waters are from the downstream boundary of the transition zone to the mouth of the Rappahannock River (Buoy 6), including all tidal tributaries that enter the estuarine waters of the Rappahannock River.

2. York Basin. Tidal freshwater is from the fall line of the Mattaponi River at N37° 47' 20.03"/W77° 6' 15.16" (800 feet upstream of the Route 360 bridge in Aylett) to the upstream boundary of the Mattaponi River transition zone, and from the fall line of the Pamunkey River at N37° 41' 22.64"/W77° 12' 50.83" (2,000 feet upstream of Totopotomy Creek) to the upstream boundary of the Pamunkey River transition zone, including all tidal tributaries that enter the tidal freshwaters of the Mattaponi and Pamunkey Rivers.

Mattaponi River transition zone upstream boundary – N37° 39' 29.65"/W76° 52' 53.29" (1,000 feet upstream of Mitchell Hill Creek) to N37° 39' 24.20"/W76° 52' 55.87" (across from Courthouse Landing).

Mattaponi River transition zone downstream boundary – N37° 32' 19.76"/W76° 47' 29.41" (old Lord Delaware Bridge, west side) to N37° 32' 13.25"/W76° 47' 10.30" (old Lord Delaware Bridge, east side).

Pamunkey River transition zone upstream boundary – N37° 32' 36.63"/W76° 58' 29.88" (Cohoke Marsh, 0.9 miles upstream of Turkey Creek) to N37° 32' 36.51"/W76° 58' 36.48" (0.75 miles upstream of creek at Cook Landing).

Pamunkey River transition zone downstream boundary – N37° 31' 57.90"/W76° 48' 38.22" (old Eltham Bridge, west side) to N37° 32' 6.25"/W76° 48' 18.82" (old Eltham Bridge, east side).

All tidal tributaries that enter the transition zones of the Mattaponi and Pamunkey Rivers are themselves in the transition zone.

Estuarine waters are from the downstream boundary of the transition zones of the Mattaponi and Pamunkey Rivers to the mouth of the York River (Tue Marsh Light) including all tidal tributaries that enter the estuarine waters of the York River.

3. James Basin. Tidal freshwater is from the fall line of the James River in the City of Richmond upstream of Mayo Bridge to the upstream boundary of the transition zone, including all tidal tributaries that enter the tidal freshwater James River.

James River transition zone upstream boundary – N37° 14' 28.25"/W76° 56' 44.47" (at Tettington) to N37° 13' 38.56"/W76° 56' 47.13" (0.3 miles downstream of Sloop Point).

Chickahominy River transition zone upstream boundary – N37° 25' 44.79"/W77° 1' 41.76" (Holly Landing).

Transition zone downstream boundary – N37° 12' 7.23"/W76° 37' 34.70" (near Carters Grove Home, 1.25 miles downstream of Grove Creek) to N37° 9' 17.23"/W76° 40' 13.45" (0.7 miles upstream of Hunnicutt Creek). All tidal waters that enter the transition zone are themselves transition zone waters.

Estuarine waters are from the downstream transition zone boundary to the mouth of the James River (Buoy 25) including all tidal tributaries that enter the estuarine waters of the James River.

4. Potomac Basin. Tidal freshwater includes all tidal tributaries that enter the Potomac River from its fall line at the Chain Bridge (N38° 55' 46.28"/W77° 6' 59.23") to the upstream transition zone boundary near Quantico, Virginia.

Transition zone includes all tidal tributaries that enter the Potomac River from N38° 31' 27.05"/W77° 17' 7.06" (midway between Shipping Point and Quantico Pier) to N38° 23' 22.78"/W77° 1' 45.50" (one mile southeast of Mathias Point).

Estuarine waters includes all tidal tributaries that enter the Potomac River from the downstream transition zone boundary to the mouth of the Potomac River (Buoy 44B).

5. Chesapeake Bay, Atlantic Ocean, and small coastal basins. Estuarine waters include the Atlantic Ocean tidal tributaries, and the Chesapeake Bay and its small coastal basins from the Virginia state line to the mouth of the bay (a line from Cape Henry drawn through Buoys 3 and 8 to Fishermans Island), and its tidal tributaries, excluding the Potomac tributaries and those tributaries listed in subdivisions 1 through 4 of this subsection.

6. Chowan River Basin. Tidal freshwater includes the Northwest River and its tidal tributaries from the Virginia-North Carolina state line to the free flowing portion, the Blackwater River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately state route 611 at river mile 20.90, the Nottoway River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately Route 674, and the North Landing River and its tidal tributaries from the Virginia-North Carolina state line to the Great Bridge Lock.

Transition zone includes Back Bay and its tributaries in the City of Virginia Beach to the Virginia-North Carolina state line.

D. Site-specific modifications to numerical water quality criteria.

1. The board may consider site-specific modifications to numerical water quality criteria in subsection B of this section where the applicant or permittee demonstrates that the alternate numerical water quality criteria are sufficient to protect all designated uses (see 9VAC25-260-10) of that particular surface water segment or body.

2. Any demonstration for site-specific human health criteria shall be restricted to a reevaluation of the bioconcentration or bioaccumulation properties of the pollutant. The exceptions to this restriction are for site-specific criteria for taste, odor, and aesthetic compounds noted by double asterisks in subsection B of this section and nitrates.

3. Procedures for promulgation and review of site-specific modifications to numerical water quality criteria resulting from subdivisions 1 and 2 of this subsection.

a. Proposals describing the details of the site-specific study shall be submitted to the board's staff for approval prior to commencing the study.

b. Any site-specific modification shall be promulgated as a regulation in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). All site-specific modifications shall be listed in 9VAC25-260-310 (Special standards and requirements).

E. Variances to water quality standards.

1. A variance from numeric criteria may be granted to a discharger if it can be demonstrated that one or more of the conditions in 9VAC25-260-10 H limit the attainment of one or more specific designated uses.

a. Variances shall apply only to the discharger to whom they are granted and shall be reevaluated and either continued, modified, or revoked at the time of permit issuance. At that time the permittee shall make a showing that the conditions for granting the variance still apply.

b. Variances shall be described in the public notice published for the permit. The decision to approve a variance shall be subject to the public participation requirements of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation, 9VAC25-31.

c. Variances shall not prevent the maintenance and protection of existing uses or exempt the discharger or regulated activity from compliance with other appropriate technology or water quality-based limits or best management practices.

d. Variances granted under this section shall not apply to new discharges.

e. Variances shall be submitted by the department's Division of Scientific Research or its successors to the U.S. Environmental Protection Agency for review and approval or disapproval.

f. A list of variances granted shall be maintained by the department's Division of Scientific Research or its successors.

2. None of the variances in this subsection shall apply to the halogen ban section (9VAC25-260-110) or temperature criteria in 9VAC25-260-50 if superseded by § 316(a) of the Clean Water Act requirements. No variances in this subsection shall apply to the criteria that are designed to protect human health from carcinogenic and noncarcinogenic toxic effects (subsection B of this section) with the exception of the metals, and the taste, odor, and aesthetic compounds noted by double asterisks and nitrates, listed in subsection B of this section.

F. Water effect ratio.

1. A water effects ratio (WER) shall be determined by measuring the effect of receiving water (as it is or will be affected by any discharges) on the bioavailability or toxicity of a metal by using standard test organisms and a metal to conduct toxicity tests simultaneously in receiving water and laboratory water. The ratio of toxicities of the metals in the two waters is the WER (toxicity in receiving water divided by toxicity in laboratory water equals WER). Once an acceptable WER for a metal is established, the numerical value for the metal in subsection B of this section is multiplied by the WER to produce an instream concentration that will protect designated uses. This instream concentration shall be utilized in permitting decisions.

2. The WER shall be assigned a value of 1.0 unless the applicant or permittee demonstrates to the department's satisfaction in a permit proceeding that another value is appropriate, or unless available data allow the department to compute a WER for the receiving waters. The applicant or permittee is responsible for proposing and conducting the study to develop a WER. The study may require multiple testing over several seasons. The applicant or permittee shall obtain the department's Division of Scientific Research or its successor approval of the study protocol and the final WER.

3. 9VAC25-31-230 C requires that permit limits for metals be expressed as total recoverable measurements. To that end, the study used to establish the WER may be based on total recoverable measurements of the metals.

4. The WER is established in a permit proceeding, shall be described in the public notice associated with the permit proceeding, and applies only to the applicant or permittee in that proceeding. The department's action to approve or disapprove a WER is a case decision, not an amendment to the present regulation.

The decision to approve or disapprove a WER shall be subject to the public participation requirements of Virginia Pollutant Discharge Elimination System (VPDES) Regulation, Part IV (9VAC25-31-260 et seq.). A list of final WERs will be maintained by the department's Division of Scientific Research or its successor.

5. A WER shall not be used for the freshwater and saltwater chronic mercury criteria or the freshwater acute and chronic selenium criteria.

G. Biotic Ligand Model for copper. On a case-by-case basis, EPA's 2007 copper criteria (EPA-822-F-07-001) biotic ligand model (BLM) for copper may be used to determine alternate copper criteria for freshwater sites. The BLM is a bioavailability model that uses receiving water characteristics to develop site-specific criteria. Site-specific data for 10 parameters are needed to use the BLM. These parameters are temperature, pH, dissolved organic carbon, calcium, magnesium, sodium, potassium, sulfate, chloride, and alkalinity. If sufficient data for these parameters are available, the BLM can be used to calculate alternate criteria values for the copper criteria. The BLM would be used instead of the hardness-based criteria and takes the place of the hardness adjustment and the WER. A WER will not be applicable with the BLM.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-01.14B, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Virginia Register Volume 19, Issue 23, eff. August 27, 2003; Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 26, Issue 12, eff. February 1, 2010; Errata, 26:12 VA.R. 2065 February 15, 2010; Volume 32, Issue 26, eff. July 27, 2017; amended Virginia Register Volume 36, Issue 6, eff. October 21, 2019; Errata,36:14 VA.R. 2053 March 2, 2020; amended Virginia Register Volume 39, Issue 9, eff. April 18, 2023; Volume 40, Issue 24, eff. June 26, 2024.

9VAC25-260-150 (Repealed.)

Historical Notes

Derived from VR680-21-01.15, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; repealed, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-260-155 Ammonia surface water quality criteria

A. The Department of Environmental Quality, after consultation with the Virginia Department of Wildlife Resources and the U.S. Fish and Wildlife Service, has determined that the majority of Virginia freshwaters are likely to contain, or have contained in the past, freshwater mussel species in the family Unionidae and contain early life stages of fish during most times of the year. Therefore, the ammonia criteria presented in subsections B and C of this section are designed to provide protection to these species and life stages. In an instance where it can be adequately demonstrated that either freshwater mussels or early life stages of fish are not present in a specific waterbody, potential options for alternate, site-specific criteria are presented in subsection D of this section. Acute criteria are a one-hour average concentration not to be exceeded more than once every three years¹ on the average, and chronic criteria are 30-day average concentrations not to be exceeded more than once every three years on the average.² In addition, the four-day average concentration of total ammonia nitrogen (in mg N/L) shall not exceed 2.5 times the chronic criterion within a 30-day period more than once every three years on the average.

¹The default design flow for calculating steady state wasteload allocations for the acute ammonia criterion for freshwater is the 1Q10 (see 9VAC25-260-140 B footnote 6) unless statistically valid methods are employed that demonstrate compliance with the duration and return frequency of the water quality criteria.

²The default design flow for calculating steady state wasteload allocations for the chronic ammonia criterion for freshwater is the 30Q10 (see 9VAC25-260-140 B footnote 6) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

B. The acute criteria for total ammonia (in mg N/L) for freshwaters with trout absent or present are in the following tables:

| Acute Ammonia Freshwater Criteria Total Ammonia Nitrogen (mg N/L) TROUT ABSENT | | | | | | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Temperature (°C) | | | | | | | | | | | | | | | | | | | | | | | pH | 0-10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | | 6.5 | 51 | 48 | 44 | 41 | 37 | 34 | 32 | 29 | 27 | 25 | 23 | 21 | 19 | 18 | 16 | 15 | 14 | 13 | 12 | 11 | 9.9 | | 6.6 | 49 | 46 | 42 | 39 | 36 | 33 | 30 | 28 | 26 | 24 | 22 | 20 | 18 | 17 | 16 | 14 | 13 | 12 | 11 | 10 | 9.5 | | 6.7 | 46 | 44 | 40 | 37 | 34 | 31 | 29 | 27 | 24 | 22 | 21 | 19 | 18 | 16 | 15 | 14 | 13 | 12 | 11 | 9.8 | 9.0 | | 6.8 | 44 | 41 | 38 | 35 | 32 | 30 | 27 | 25 | 23 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.2 | 8.5 | | 6.9 | 41 | 38 | 35 | 32 | 30 | 28 | 25 | 23 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.4 | 8.6 | 7.9 | | 7.0 | 38 | 35 | 33 | 30 | 28 | 25 | 23 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.4 | 8.6 | 7.9 | 7.3 | | 7.1 | 34 | 32 | 30 | 27 | 25 | 23 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.3 | 8.5 | 7.9 | 7.2 | 6.7 | | 7.2 | 31 | 29 | 27 | 25 | 23 | 21 | 19 | 18 | 16 | 15 | 14 | 13 | 12 | 11 | 9.8 | 9.1 | 8.3 | 7.7 | 7.1 | 6.5 | 6.0 | | 7.3 | 27 | 26 | 24 | 22 | 20 | 18 | 17 | 16 | 14 | 13 | 12 | 11 | 10 | 9.5 | 8.7 | 8.0 | 7.4 | 6.8 | 6.3 | 5.8 | 5.3 | | 7.4 | 24 | 22 | 21 | 19 | 18 | 16 | 15 | 14 | 13 | 12 | 11 | 9.8 | 9.0 | 8.3 | 7.7 | 7.0 | 6.5 | 6.0 | 5.5 | 5.1 | 4.7 | | 7.5 | 21 | 19 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.2 | 8.5 | 7.8 | 7.2 | 6.6 | 6.1 | 5.6 | 5.2 | 4.8 | 4.4 | 4.0 | | 7.6 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.3 | 8.6 | 7.9 | 7.3 | 6.7 | 6.2 | 5.7 | 5.2 | 4.8 | 4.4 | 4.1 | 3.8 | 3.5 | | 7.7 | 15 | 14 | 13 | 12 | 11 | 10 | 9.3 | 8.6 | 7.9 | 7.3 | 6.7 | 6.2 | 5.7 | 5.2 | 4.8 | 4.4 | 4.1 | 3.8 | 3.5 | 3.2 | 2.9 | | 7.8 | 13 | 12 | 11 | 10 | 9.3 | 8.5 | 7.9 | 7.2 | 6.7 | 6.1 | 5.6 | 5.2 | 4.8 | 4.4 | 4.0 | 3.7 | 3.4 | 3.2 | 2.9 | 2.7 | 2.5 | | 7.9 | 11 | 9.9 | 9.1 | 8.4 | 7.7 | 7.1 | 6.6 | 3.0 | 5.6 | 5.1 | 4.7 | 4.3 | 4.0 | 3.7 | 3.4 | 3.1 | 2.9 | 2.6 | 2.4 | 2.2 | 2.1 | | 8.0 | 8.8 | 8.2 | 7.6 | 7.0 | 6.4 | 5.9 | 5.4 | 5.0 | 4.6 | 4.2 | 3.9 | 3.6 | 3.3 | 3.0 | 2.8 | 2.6 | 2.4 | 2.2 | 2.0 | 1.9 | 1.7 | | 8.1 | 7.2 | 6.8 | 6.3 | 5.8 | 5.3 | 4.9 | 4.5 | 4.1 | 3.8 | 3.5 | 3.2 | 3.0 | 2.7 | 2.5 | 2.3 | 2.1 | 2.0 | 1.8 | 1.7 | 1.5 | 1.4 | | 8.2 | 6.0 | 5.6 | 5.2 | 4.8 | 4.4 | 4.0 | 3.7 | 3.4 | 3.1 | 2.9 | 2.7 | 2.4 | 2.3 | 2.1 | 1.9 | 1.8 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | | 8.3 | 4.9 | 4.6 | 4.3 | 3.9 | 3.6 | 3.3 | 3.1 | 2.8 | 2.6 | 2.4 | 2.2 | 2.0 | 1.9 | 1.7 | 1.6 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.96 | | 8.4 | 4.1 | 3.8 | 3.5 | 3.2 | 3.0 | 2.7 | 2.5 | 2.3 | 2.1 | 2.0 | 1.8 | 1.7 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.93 | 0.86 | 0.79 | | 8.5 | 3.3 | 3.1 | 2.9 | 2.7 | 2.4 | 2.3 | 2.1 | 1.9 | 1.8 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 0.98 | 0.90 | 0.83 | 0.77 | 0.71 | 0.65 | | 8.6 | 2.8 | 2.6 | 2.4 | 2.2 | 2.0 | 1.9 | 1.7 | 1.6 | 1.5 | 1.3 | 1.2 | 1.1 | 1.0 | 0.96 | 0.88 | 0.81 | 0.75 | 0.69 | 0.63 | 0.58 | 0.54 | | 8.7 | 2.3 | 2.2 | 2.0 | 1.8 | 1.7 | 1.6 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.94 | 0.87 | 0.80 | 0.74 | 0.68 | 0.62 | 0.57 | 0.53 | 0.49 | 0.45 | | 8.8 | 1.9 | 1.8 | 1.7 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.93 | 0.86 | 0.79 | 0.73 | 0.67 | 0.62 | 0.57 | 0.52 | 0.48 | 0.44 | 0.41 | 0.37 | | 8.9 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.93 | 0.85 | 0.79 | 0.72 | 0.67 | 0.61 | 0.56 | 0.52 | 0.48 | 0.44 | 0.40 | 0.37 | 0.34 | 0.32 | | 9.0 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.93 | 0.86 | 0.79 | 0.73 | 0.67 | 0.62 | 0.57 | 0.52 | 0.48 | 0.44 | 0.41 | 0.37 | 0.34 | 0.32 | 0.29 | 0.27 |

| Acute Ammonia Freshwater Criteria Total Ammonia Nitrogen (mg N/L) TROUT PRESENT | | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Temperature (°C) | | | | | | | | | | | | | | | | | | | pH | 0-14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | | 6.5 | 33 | 33 | 32 | 29 | 27 | 25 | 23 | 21 | 19 | 18 | 16 | 15 | 14 | 13 | 12 | 11 | 9.9 | | 6.6 | 31 | 31 | 30 | 28 | 26 | 24 | 22 | 20 | 18 | 17 | 16 | 14 | 13 | 12 | 11 | 10 | 9.5 | | 6.7 | 30 | 30 | 29 | 27 | 24 | 22 | 21 | 19 | 18 | 16 | 15 | 14 | 13 | 12 | 11 | 9.8 | 9.0 | | 6.8 | 28 | 28 | 27 | 25 | 23 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.2 | 8.5 | | 6.9 | 26 | 26 | 25 | 23 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.4 | 8.6 | 7.9 | | 7.0 | 24 | 24 | 23 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.4 | 8.6 | 8.0 | 7.3 | | 7.1 | 22 | 22 | 21 | 20 | 18 | 17 | 15 | 14 | 13 | 12 | 11 | 10 | 9.3 | 8.5 | 7.9 | 7.2 | 6.7 | | 7.2 | 20 | 20 | 19 | 18 | 16 | 15 | 14 | 13 | 12 | 11 | 9.8 | 9.1 | 8.3 | 7.7 | 7.1 | 6.5 | 6.0 | | 7.3 | 18 | 18 | 17 | 16 | 14 | 13 | 12 | 11 | 10 | 9.5 | 8.7 | 8.0 | 7.4 | 6.8 | 6.3 | 5.8 | 5.3 | | 7.4 | 15 | 15 | 15 | 14 | 13 | 12 | 11 | 9.8 | 9.0 | 8.3 | 7.7 | 7.0 | 6.5 | 6.0 | 5.5 | 5.1 | 4.7 | | 7.5 | 13 | 13 | 13 | 12 | 11 | 10 | 9.2 | 8.5 | 7.8 | 7.2 | 6.6 | 6.1 | 5.6 | 5.2 | 4.8 | 4.4 | 4.0 | | 7.6 | 11 | 11 | 11 | 10 | 9.3 | 8.6 | 7.9 | 7.3 | 6.7 | 6.2 | 5.7 | 5.2 | 4.8 | 4.4 | 4.1 | 3.8 | 3.5 | | 7.7 | 9.6 | 9.6 | 9.3 | 8.6 | 7.9 | 7.3 | 6.7 | 6.2 | 5.7 | 5.2 | 4.8 | 4.4 | 4.1 | 3.8 | 3.5 | 3.2 | 3.0 | | 7.8 | 8.1 | 8.1 | 7.9 | 7.2 | 6.7 | 6.1 | 5.6 | 5.2 | 4.8 | 4.4 | 4.0 | 3.7 | 3.4 | 3.2 | 2.9 | 2.7 | 2.5 | | 7.9 | 6.8 | 6.8 | 6.6 | 6.0 | 5.6 | 5.1 | 4.7 | 4.3 | 4.0 | 3.7 | 3.4 | 3.1 | 2.9 | 2.6 | 2.4 | 2.2 | 2.1 | | 8.0 | 5.6 | 5.6 | 5.4 | 5.0 | 4.6 | 4.2 | 3.9 | 3.6 | 3.3 | 3.0 | 2.8 | 2.6 | 2.4 | 2.2 | 2.0 | 1.9 | 1.7 | | 8.1 | 4.6 | 4.6 | 4.5 | 4.1 | 3.8 | 3.5 | 3.2 | 3.0 | 2.7 | 2.5 | 2.3 | 2.1 | 2.0 | 1.8 | 1.7 | 1.5 | 1.4 | | 8.2 | 3.8 | 3.8 | 3.7 | 3.5 | 3.1 | 2.9 | 2.7 | 2.4 | 2.3 | 2.1 | 1.9 | 1.8 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | | 8.3 | 3.1 | 3.1 | 3.1 | 2.8 | 2.6 | 2.4 | 2.2 | 2.0 | 1.9 | 1.7 | 1.6 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.96 | | 8.4 | 2.6 | 2.6 | 2.5 | 2.3 | 2.1 | 2.0 | 1.8 | 1.7 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.93 | 0.86 | 0.79 | | 8.5 | 2.1 | 2.1 | 2.1 | 1.9 | 1.8 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 0.98 | 0.90 | 0.83 | 0.77 | 0.71 | 0.65 | | 8.6 | 1.8 | 1.8 | 1.7 | 1.6 | 1.5 | 1.3 | 1.2 | 1.1 | 1.0 | 0.96 | 0.88 | 0.81 | 0.75 | 0.69 | 0.63 | 0.59 | 0.54 | | 8.7 | 1.5 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.0 | 0.94 | 0.87 | 0.80 | 0.74 | 0.68 | 0.62 | 0.57 | 0.53 | 0.49 | 0.45 | | 8.8 | 1.2 | 1.2 | 1.2 | 1.1 | 1.0 | 0.93 | 0.86 | 0.79 | 0.73 | 0.67 | 0.62 | 0.57 | 0.52 | 0.48 | 0.44 | 0.41 | 0.37 | | 8.9 | 1.0 | 1.0 | 1.0 | 0.93 | 0.85 | 0.79 | 0.72 | 0.67 | 0.61 | 0.56 | 0.52 | 0.48 | 0.44 | 0.40 | 0.37 | 0.34 | 0.32 | | 9.0 | 0.88 | 0.88 | 0.86 | 0.79 | 0.73 | 0.67 | 0.62 | 0.57 | 0.52 | 0.48 | 0.44 | 0.41 | 0.37 | 0.34 | 0.32 | 0.29 | 0.27 |

The acute criteria for trout present shall apply to all Class V-Stockable Trout Waters and Class VI-Natural Trout Waters as listed in 9VAC25-260-390 through 9VAC25-260-540. The acute criteria for trout absent apply to all other fresh waters.

To calculate total ammonia nitrogen acute criteria values in freshwater at different pH values than those listed in this subsection, use the following equations and round the result to two significant digits:

Where trout are absent:

Acute Criterion Concentration (mg N/L) =

| | 0.7249 X ( | 0.0114 | + | 1.6181 | ) X MIN | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.204-pH | 1 + 10^pH-7.204 | | | |

Where MIN = 51.93 or 23.12 X 10^{0.036 X (20 – T)}, whichever is less

T = Temperature in ^oC

Or where trout are present, whichever of the following calculation results is less:

Acute Criterion Concentration (mg N/L) =

| | ( | 0.275 | + | 39.0 | ) | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.204-pH | 1 + 10^pH-7.204 | | | |

or

| | 0.7249 X ( | 0.0114 | + | 1.6181 | ) X (23.12 X 10^{0.036X(20 – T)}) | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.204-pH | 1 + 10^pH-7.204 | | | |

T = Temperature in ^oC

C. The chronic criteria for total ammonia nitrogen (in mg N/L) where freshwater mussels and early life stages of fish are present in freshwater are in the following table:

| Chronic Ammonia Freshwater Criteria Mussels and Early Life Stages of Fish Present Total Ammonia Nitrogen (mg N/L) | | | | | | | | | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Temperature (°C) | | | | | | | | | | | | | | | | | | | | | | | | | | pH | 0-7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | | 6.5 | 4.9 | 4.6 | 4.3 | 4.1 | 3.8 | 3.6 | 3.3 | 3.1 | 2.9 | 2.8 | 2.6 | 2.4 | 2.3 | 2.1 | 2.0 | 1.9 | 1.8 | 1.6 | 1.5 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | | 6.6 | 4.8 | 4.5 | 4.3 | 4.0 | 3.8 | 3.5 | 3.3 | 3.1 | 2.9 | 2.7 | 2.5 | 2.4 | 2.2 | 2.1 | 2.0 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.3 | 1.2 | 1.1 | | 6.7 | 4.8 | 4.5 | 4.2 | 3.9 | 3.7 | 3.5 | 3.2 | 3.0 | 2.8 | 2.7 | 2.5 | 2.3 | 2.2 | 2.1 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.2 | 1.1 | | 6.8 | 4.6 | 4.4 | 4.1 | 3.8 | 3.6 | 3.4 | 3.2 | 3.0 | 2.8 | 2.6 | 2.4 | 2.3 | 2.1 | 2.0 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.1 | | 6.9 | 4.5 | 4.2 | 4.0 | 3.7 | 3.5 | 3.3 | 3.1 | 2.9 | 2.7 | 2.5 | 2.4 | 2.2 | 2.1 | 2.0 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.2 | 1.1 | 1.0 | | 7.0 | 4.4 | 4.1 | 3.8 | 3.6 | 3.4 | 3.2 | 3.0 | 2.8 | 2.6 | 2.4 | 2.3 | 2.2 | 2.0 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.1 | 0.99 | | 7.1 | 4.2 | 3.9 | 3.7 | 3.5 | 3.2 | 3.0 | 2.8 | 2.7 | 2.5 | 2.3 | 2.2 | 2.1 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.2 | 1.1 | 1.0 | 0.95 | | 7.2 | 4.0 | 3.7 | 3.5 | 3.3 | 3.1 | 2.9 | 2.7 | 2.5 | 2.4 | 2.2 | 2.1 | 2.0 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.3 | 1.2 | 1.1 | 1.0 | 0.96 | 0.90 | | 7.3 | 3.8 | 3.5 | 3.3 | 3.1 | 2.9 | 2.7 | 2.6 | 2.4 | 2.2 | 2.1 | 2.0 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.3 | 1.2 | 1.1 | 1.0 | 0.97 | 0.91 | 0.85 | | 7.4 | 3.5 | 3.3 | 3.1 | 2.9 | 2.7 | 2.5 | 2.4 | 2.2 | 2.1 | 2.0 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.3 | 1.2 | 1.1 | 1.0 | 0.96 | 0.90 | 0.85 | 0.79 | | 7.5 | 3.2 | 3.0 | 2.8 | 2.7 | 2.5 | 2.3 | 2.2 | 2.1 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.2 | 1.1 | 1.0 | 0.95 | 0.89 | 0.83 | 0.78 | 0.73 | | 7.6 | 2.9 | 2.8 | 2.6 | 2.4 | 2.3 | 2.1 | 2.0 | 1.9 | 1.8 | 1.6 | 1.5 | 1.4 | 1.4 | 1.3 | 1.2 | 1.1 | 1.1 | 0.98 | 0.92 | 0.86 | 0.81 | 0.76 | 0.71 | 0.67 | | 7.7 | 2.6 | 2.4 | 2.3 | 2.2 | 2.0 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.1 | 1.0 | 0.94 | 0.88 | 0.83 | 0.78 | 0.73 | 0.68 | 0.64 | 0.60 | | 7.8 | 2.3 | 2.2 | 2.1 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.2 | 1.1 | 1.0 | 0.95 | 0.89 | 0.84 | 0.79 | 0.74 | 0.69 | 0.65 | 0.61 | 0.57 | 0.53 | | 7.9 | 2.1 | 1.9 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.2 | 1.1 | 1.0 | 0.95 | 0.89 | 0.84 | 0.79 | 0.74 | 0.69 | 0.65 | 0.61 | 0.57 | 0.53 | 0.50 | 0.47 | | 8.0 | 1.8 | 1.7 | 1.6 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.1 | 1.0 | 0.94 | 0.88 | 0.83 | 0.78 | 0.73 | 0.68 | 0.64 | 0.60 | 0.56 | 0.53 | 0.50 | 0.44 | 0.44 | 0.41 | | 8.1 | 1.5 | 1.5 | 1.4 | 1.3 | 1.2 | 1.1 | 1.1 | 0.99 | 0.92 | 0.87 | 0.81 | 0.76 | 0.71 | 0.67 | 0.63 | 0.59 | 0.55 | 0.52 | 0.49 | 0.46 | 0.43 | 0.40 | 0.38 | 0.35 | | 8.2 | 1.3 | 1.2 | 1.2 | 1.1 | 1.0 | 0.96 | 0.90 | 0.84 | 0.79 | 0.74 | 0.70 | 0.65 | 0.61 | 0.57 | 0.54 | 0.50 | 0.47 | 0.44 | 0.42 | 0.39 | 0.37 | 0.34 | 0.32 | 0.30 | | 8.3 | 1.1 | 1.1 | 0.99 | 0.93 | 0.87 | 0.82 | 0.76 | 0.72 | 0.67 | 0.63 | 0.59 | 0.55 | 0.52 | 0.49 | 0.46 | 0.43 | 0.40 | 0.38 | 0.35 | 0.33 | 0.31 | 0.29 | 0.27 | 0.26 | | 8.4 | 0.95 | 0.89 | 0.84 | 0.79 | 0.74 | 0.69 | 0.65 | 0.61 | 0.57 | 0.53 | 0.50 | 0.47 | 0.44 | 0.41 | 0.39 | 0.36 | 0.34 | 0.32 | 0.30 | 0.28 | 0.26 | 0.25 | 0.23 | 0.22 | | 8.5 | 0.80 | 0.75 | 0.71 | 0.67 | 0.62 | 0.58 | 0.55 | 0.51 | 0.48 | 0.45 | 0.42 | 0.40 | 0.37 | 0.35 | 0.33 | 0.31 | 0.29 | 0.27 | 0.25 | 0.24 | 0.22 | 0.21 | 0.20 | 0.18 | | 8.6 | 0.68 | 0.64 | 0.60 | 0.56 | 0.53 | 0.49 | 0.46 | 0.43 | 0.41 | 0.38 | 0.36 | 0.33 | 0.31 | 0.29 | 0.28 | 0.26 | 0.24 | 0.23 | 0.21 | 0.20 | 0.19 | 0.18 | 0.16 | 0.15 | | 8.7 | 0.57 | 0.54 | 0.51 | 0.47 | 0.44 | 0.42 | 0.39 | 0.37 | 0.34 | 0.32 | 0.30 | 0.28 | 0.27 | 0.25 | 0.23 | 0.22 | 0.21 | 0.19 | 0.18 | 0.17 | 0.16 | 0.15 | 0.14 | 0.13 | | 8.8 | 0.49 | 0.46 | 0.43 | 0.40 | 0.38 | 0.35 | 0.33 | 0.31 | 0.29 | 0.27 | 0.26 | 0.24 | 0.23 | 0.21 | 0.20 | 0.19 | 0.17 | 0.16 | 0.15 | 0.14 | 0.13 | 0.13 | 0.12 | 0.11 | | 8.9 | 0.42 | 0.39 | 0.37 | 0.34 | 0.32 | 0.30 | 0.28 | 0.27 | 0.25 | 0.23 | 0.22 | 0.21 | 0.19 | 0.18 | 0.17 | 0.16 | 0.15 | 0.14 | 0.13 | 0.12 | 0.12 | 0.11 | 0.10 | 0.09 | | 9.0 | 0.36 | 0.34 | 0.32 | 0.30 | 0.28 | 0.26 | 0.24 | 0.23 | 0.21 | 0.20 | 0.19 | 0.18 | 0.17 | 0.16 | 0.15 | 0.14 | 0.13 | 0.12 | 0.11 | 0.11 | 0.10 | 0.09 | 0.09 | 0.08 |

To calculate total ammonia nitrogen chronic criteria values in freshwater when freshwater mussels and early life stages of fish are present at different pH and temperature values than those listed in this subsection, use the following equation and round the result to two significant digits:

Chronic Criteria Concentration =

| | 0.8876 X ( | 0.0278 | + | 1.1994 | ) X (2.126 X 10^{0.028 X (20 - MAX(T,7))}) | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.688-pH | 1 + 10^pH-7.688 | | | |

Where MAX = 7 or temperature in degrees Celsius, whichever is greater

T = temperature in °C

D. Site-specific considerations and alternate criteria. If it can be adequately demonstrated that freshwater mussels or early life stages of fish are not present at a site, then alternate site-specific criteria can be considered using the information provided in this subsection. Recalculated site-specific criteria shall provide for the attainment and maintenance of the water quality standards of downstream waters.

1. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of freshwater mussels or early life stages of fish shall be conducted in accordance with the procedures contained in this subdivision. Because the department presumes that most state waterbodies have freshwater mussels and early life stages of fish present during most times of the year, the criteria shall be calculated assuming freshwater mussels and early life stages of fish are present using subsections B and C of this section unless the following demonstration that freshwater mussels or early life stages of fish are absent is successfully completed. Determination of the absence of freshwater mussels requires special field survey methods. This determination must be made after an adequate survey of the waterbody is conducted by an individual certified by the Virginia Department of Wildlife Resources for freshwater mussel identification and surveys. Determination of absence of freshwater mussels will be done in consultation with the Department of Wildlife Resources. Early life stages of fish are defined in subdivision 2 of this subsection. Modifications to the ambient water quality criteria for ammonia based on the presence or absence of early life stages of fish shall only apply at temperatures below 15°C.

a. During the review of any new or existing activity that has a potential to discharge ammonia in amounts that may cause or contribute to a violation of the ammonia criteria contained in subsection B of this section, the department may examine data from the following approved sources in subdivisions 1 a (1) through (5) of this subsection or may require the gathering of data in accordance with subdivisions 1 a (1) through (5) on the presence or absence of early life stages of fish in the affected waterbody.

(1) Species and distribution data contained in the Virginia Department of Wildlife Resources Wildlife Information System database.

(2) Species and distribution data contained in Freshwater Fishes of Virginia, 1994.

(3) Data and fish species distribution maps contained in Handbook for Fishery Biology, Volume 3, 1997.

(4) Field data collected in accordance with U.S. EPA's Rapid Bioassessment Protocols for Use in Streams and Wadeable Rivers, Second Edition, EPA 841-B-99-002. Field data must comply with all quality assurance and quality control criteria.

(5) The American Society for Testing and Materials (ASTM) Standard E-1241-88, Standard Guide for Conducting Early Life-Stage Toxicity Tests with Fishes.

b. If data or information from sources other than subdivisions 1 a (1) through (5) of this subsection are considered, then any resulting site-specific criteria modifications shall be reviewed and adopted in accordance with the site-specific criteria provisions in 9VAC25-260-140 D and submitted to EPA for review and approval.

c. If the department determines that the data and information obtained from subdivisions 1 a (1) through (5) of this subsection demonstrate that there are periods of each year when no early life stages are expected to be present for any species of fish that occur at the site, the department shall issue a notice to the public and make available for public comment the supporting data and analysis along with the department's preliminary decision to authorize the site-specific modification to the ammonia criteria. Such information shall include, at a minimum:

(1) Sources of data and information.

(2) List of fish species that occur at the site as defined in subdivision 3 of this subsection.

(3) Definition of the site. Definition of a "site" can vary in geographic size from a stream segment to a watershed to an entire eco-region.

(4) Duration of early life stage for each species in subdivision 1 c (2) of this subsection.

(5) Dates when early life stages of fish are expected to be present for each species in subdivision 1 c (2) of this subsection.

(6) Based on subdivision 1 c (5) of this subsection, identify the dates (beginning date, ending date), if any, where no early life stages are expected to be present for any of the species identified in subdivision 1 c (2) of this subsection.

d. If, after reviewing the public comments received in subdivision 1 c of this subsection and supporting data and information, the department determines that there are times of the year when no early life stages are expected to be present for any fish species that occur at the site, then the applicable ambient water quality criteria for ammonia for those time periods shall be calculated using the table in this subsection, or the formula for calculating the chronic criterion concentration for ammonia when early life stages of fish are absent.

e. The department shall maintain a comprehensive list of all sites where the department has determined that early life stages of fish are absent. For each site the list will identify the waterbodies affected and the corresponding times of the year that early life stages of fish are absent. This list is available either upon request from the Office of Water Quality Programs at 1111 East Main Street, Suite 1400 Richmond, VA 23219, or from the department website at https://www.deq.virginia.gov/water/water-quality/standards.

2. The duration of the "early life stages" extends from the beginning of spawning through the end of the early life stages. The early life stages include the prehatch embryonic period, the post-hatch free embryo or yolk-sac fry, and the larval period, during which the organism feeds. Juvenile fish, which are anatomically similar to adults, are not considered an early life stage. The duration of early life stages can vary according to fish species. The department considers the sources of information in subdivisions 1 a (1) through (5) of this subsection to be the only acceptable sources of information for determining the duration of early life stages of fish under this procedure.

3. "Occur at the site" includes the species, genera, families, orders, classes, and phyla that are usually present at the site; are present at the site only seasonally due to migration; are present intermittently because they periodically return to or extend their ranges into the site; or were present at the site in the past or are present in nearby bodies of water, but are not currently present at the site due to degraded conditions, and are expected to return to the site when conditions improve. "Occur at the site" does not include taxa that were once present at the site but cannot exist at the site now due to permanent physical alteration of the habitat at the site.

4. Any modifications to ambient water quality criteria for ammonia in subdivision 1 of this subsection shall not likely jeopardize the continued existence of any federal or state listed, threatened, or endangered species or result in the destruction or adverse modification of such species' critical habitats.

5. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of freshwater mussels shall be conducted in accordance with the procedures contained in this subsection. Because the department presumes that most state waterbodies have freshwater mussel species, the criteria shall be calculated assuming mussels are present using subsections B and C of this section unless the demonstration that freshwater mussels are absent is successfully completed and accepted by DEQ and the Department of Wildlife Resources.

6. Equations for calculating ammonia criteria for four different site-specific scenarios are provided in subdivisions 6 a through d of this subsection as follows: (i) acute criteria when mussels are absent but trout are present, (ii) acute criteria when mussels and trout are absent, (iii) chronic criteria when mussels are absent and early life stages of fish are present, and (iv) chronic criteria when mussels and early life stages of fish are absent. Additional information regarding site-specific criteria can be reviewed in appendix N (pages 225-242) of the EPA Aquatic Life Ambient Water Quality Criteria to Ammonia--Freshwater 2013 (EPA 822-R-13-001).

a. Acute criteria: freshwater mussels absent and trout present. To calculate total ammonia nitrogen acute criteria values (in mg N/L) in freshwater with freshwater mussels absent (procedures for making this determination are in subdivisions 1 through 5 of this subsection) and trout present, use the following equations. The acute criterion is the lesser of the following calculation results. Round the result to two significant digits.

| | ( | 0.275 | + | 39 | ) | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.204-pH | 1 + 10^pH-7.204 | | | |

or

| | 0.7249 X ( | 0.0114 | + | 1.6181 | ) X (62.15 X 10^{0.036X(20 – T)}) | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.204-pH | 1 + 10^pH-7.204 | | | |

b. Acute criteria: freshwater mussels absent and trout absent. To calculate total ammonia nitrogen acute criteria values (in mg N/L) in freshwater where freshwater mussels are absent and trout are absent, use the following equation. Round the result to two significant digits.

| | 0.7249 X ( | 0.0114 | + | 1.6181 | ) X MIN | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.204-pH | 1 + 10^pH-7.204 | | | |

Where MIN = 51.93 or 62.15 X 10^{0.036 X (20 – T)}, whichever is less

T = Temperature in ^oC

c. Chronic criteria: freshwater mussels absent and early life stages of fish present. The chronic criteria for total ammonia nitrogen (in mg N/L) where freshwater mussels are absent (procedures for making this determination are in subdivisions 1 through 5 of this subsection) in freshwater shall not exceed concentration values calculated using the following equation. Round the result to two significant digits.

| | 0.9405 X ( | 0.0278 | + | 1.1994 | ) X MIN | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.688-pH | 1 + 10^pH-7.688 | | | |

Where MIN = 6.920 or 7.547 X 10^{0.028 x (20 – T)}whichever is less

T = temperature in °C

d. Chronic criteria: freshwater mussels absent and early life stages of fish absent. The chronic criteria for total ammonia nitrogen (in mg N/L) where freshwater mussels are absent and early life stages of fish are absent (procedures for making this determination are in subdivisions 1 through 5 of this subsection) in freshwater shall not exceed concentration values calculated using the following equation. Round the result to two significant digits.

| | 0.9405 X ( | 0.0278 | + | 1.1994 | ) X(7.547 X 10^{0.028 X (20 - MAX(T,7))}) | | --- | --- | --- | --- | --- | --- | | | 1 + 10^7.688-pH | 1 + 10^pH-7.688 | | | |

Where MAX = 7 or temperature in degrees Celsius, whichever is greater

T = temperature in °C

E. The one-hour average concentration of total ammonia nitrogen (in mg N/L) in saltwater shall not exceed, more than once every three years on the average, the acute criteria in the following table:

| Acute Ammonia Saltwater Criteria Total Ammonia Nitrogen (mg N/L) Salinity = 10 g/kg | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | Temperature °C | | | | | | | | | | | | | | | | | pH | 0 | 5 | 10 | 15 | 20 | 25 | 30 | 35 | | | | | | | | | | 7.00 | 231.9 | 159.8 | 110.1 | 75.88 | 52.31 | 36.08 | 24.91 | 17.21 | | | | | | | | | | 7.20 | 146.4 | 100.9 | 69.54 | 47.95 | 33.08 | 22.84 | 15.79 | 10.93 | | | | | | | | | | 7.40 | 92.45 | 63.73 | 43.94 | 30.32 | 20.94 | 14.48 | 10.03 | 6.97 | | | | | | | | | | 7.60 | 58.40 | 40.28 | 27.80 | 19.20 | 13.28 | 9.21 | 6.40 | 4.47 | | | | | | | | | | 7.80 | 36.92 | 25.48 | 17.61 | 12.19 | 8.45 | 5.88 | 4.11 | 2.89 | | | | | | | | | | 8.00 | 23.37 | 16.15 | 11.18 | 7.76 | 5.40 | 3.78 | 2.66 | 1.89 | | | | | | | | | | 8.20 | 14.81 | 10.26 | 7.13 | 4.97 | 3.48 | 2.46 | 1.75 | 1.27 | | | | | | | | | | 8.40 | 9.42 | 6.54 | 4.57 | 3.20 | 2.27 | 1.62 | 1.18 | 0.87 | | | | | | | | | | 8.60 | 6.01 | 4.20 | 2.95 | 2.09 | 1.50 | 1.09 | 0.81 | 0.62 | | | | | | | | | | 8.80 | 3.86 | 2.72 | 1.93 | 1.39 | 1.02 | 0.76 | 0.58 | 0.46 | | | | | | | | | | 9.00 | 2.51 | 1.79 | 1.29 | 0.95 | 0.71 | 0.55 | 0.44 | 0.36 | | | | | | | | | | Salinity = 20 g/kg | | | | | | | | | | | | | | | | | | | Temperature °C | | | | | | | | | | | | | | | | | pH | 0 | 5 | 10 | 15 | 20 | 25 | 30 | 35 | | | | | | | | | | 7.00 | 247.6 | 170.5 | 117.5 | 80.98 | 55.83 | 38.51 | 26.58 | 18.36 | | | | | | | | | | 7.20 | 156.3 | 107.7 | 74.21 | 51.17 | 35.30 | 24.37 | 16.84 | 11.66 | | | | | | | | | | 7.40 | 98.67 | 68.01 | 46.90 | 32.35 | 22.34 | 15.44 | 10.70 | 7.43 | | | | | | | | | | 7.60 | 62.33 | 42.98 | 29.66 | 20.48 | 14.17 | 9.82 | 6.82 | 4.76 | | | | | | | | | | 7.80 | 39.40 | 27.19 | 18.78 | 13.00 | 9.01 | 6.26 | 4.37 | 3.07 | | | | | | | | | | 8.00 | 24.93 | 17.23 | 11.92 | 8.27 | 5.76 | 4.02 | 2.83 | 2.01 | | | | | | | | | | 8.20 | 15.80 | 10.94 | 7.59 | 5.29 | 3.70 | 2.61 | 1.86 | 1.34 | | | | | | | | | | 8.40 | 10.04 | 6.97 | 4.86 | 3.41 | 2.41 | 1.72 | 1.24 | 0.91 | | | | | | | | | | 8.60 | 6.41 | 4.47 | 3.14 | 2.22 | 1.59 | 1.15 | 0.85 | 0.65 | | | | | | | | | | 8.80 | 4.11 | 2.89 | 2.05 | 1.47 | 1.07 | 0.80 | 0.61 | 0.48 | | | | | | | | | | 9.00 | 2.67 | 1.90 | 1.36 | 1.00 | 0.75 | 0.57 | 0.46 | 0.37 | | | | | | | | | | Salinity = 30 g/kg | | | | | | | | | | | | | | | | | | | Temperature °C | | | | | | | | | | | | | | | | | pH | 0 | 5 | 10 | 15 | 20 | 25 | 30 | 35 | | | | | | | | | | 7.00 | 264.6 | 182.3 | 125.6 | 86.55 | 59.66 | 41.15 | 28.39 | 19.61 | | | | | | | | | | 7.20 | 167.0 | 115.1 | 79.31 | 54.68 | 37.71 | 26.03 | 17.99 | 12.45 | | | | | | | | | | 7.40 | 105.5 | 72.68 | 50.11 | 34.57 | 23.87 | 16.50 | 11.42 | 7.92 | | | | | | | | | | 7.60 | 66.61 | 45.93 | 31.69 | 21.88 | 15.13 | 10.48 | 7.28 | 5.07 | | | | | | | | | | 7.80 | 42.10 | 29.05 | 20.07 | 13.88 | 9.62 | 6.68 | 4.66 | 3.27 | | | | | | | | | | 8.00 | 26.63 | 18.40 | 12.73 | 8.83 | 6.14 | 4.29 | 3.01 | 2.13 | | | | | | | | | | 8.20 | 16.88 | 11.68 | 8.10 | 5.64 | 3.94 | 2.78 | 1.97 | 1.42 | | | | | | | | | | 8.40 | 10.72 | 7.44 | 5.18 | 3.63 | 2.56 | 1.82 | 1.31 | 0.96 | | | | | | | | | | 8.60 | 6.83 | 4.77 | 3.34 | 2.36 | 1.69 | 1.22 | 0.90 | 0.68 | | | | | | | | | | 8.80 | 4.38 | 3.08 | 2.18 | 1.56 | 1.13 | 0.84 | 0.64 | 0.50 | | | | | | | | | | 9.00 | 2.84 | 2.01 | 1.45 | 1.06 | 0.79 | 0.60 | 0.47 | 0.39 | | | | | | | | | | | | | | | | | | | | | | | | | | |

To calculate total ammonia nitrogen acute criteria values in saltwater at different pH and temperature values than those listed in this subsection, use the following formulas:

| I = | 19.9273S | | --- | --- | | (1000 - 1.005109S) | |

Where I = molal ionic strength of water

S = Salinity ppt (g/kg)

The regression model used to relate I to pKa (negative log of the ionization constant) is

pKa = 9.245 + 0.138(I)

pKa as defined by these equations is at 298 degrees Kelvin (25°C).

T °Kelvin = °C + 273

To correct for other temperatures:

pKa^S_T = pKa^S₂₉₈ + 0.0324(298 - T °Kelvin)

The unionized ammonia fraction (UIA) is given by:

| UIA = | 1 | | --- | --- | | _{1 + 10}(pKa^S_T-pH) | |

The acute ammonia criterion in saltwater is given by:

| Acute = | 0.233 | | --- | --- | | UIA | |

Multiply the acute value by 0.822 to get the ammonia-N acute criterion.

F. The 30-day average concentration of total ammonia nitrogen (in mg N/L) in saltwater shall not exceed, more than once every three years on the average, the chronic criteria in the following table:

| Chronic Ammonia Saltwater Criteria Total Ammonia Nitrogen (mg N/L) Salinity = 10 g/kg | | | | | | | | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | Temperature °C | | | | | | | | | | | | | | | | | | | | | | | | pH | 0 | 5 | 10 | 15 | 20 | 25 | 30 | 35 | | | | | | | | | | | | | | | | | 7.00 | 34.84 | 24.00 | 16.54 | 11.40 | 7.86 | 5.42 | 3.74 | 2.59 | | | | | | | | | | | | | | | | | 7.20 | 21.99 | 15.15 | 10.45 | 7.20 | 4.97 | 3.43 | 2.37 | 1.64 | | | | | | | | | | | | | | | | | 7.40 | 13.89 | 9.57 | 6.60 | 4.55 | 3.15 | 2.18 | 1.51 | 1.05 | | | | | | | | | | | | | | | | | 7.60 | 8.77 | 6.05 | 4.18 | 2.88 | 2.00 | 1.38 | 0.96 | 0.67 | | | | | | | | | | | | | | | | | 7.80 | 5.55 | 3.83 | 2.65 | 1.83 | 1.27 | 0.88 | 0.62 | 0.43 | | | | | | | | | | | | | | | | | 8.00 | 3.51 | 2.43 | 1.68 | 1.17 | 0.81 | 0.57 | 0.40 | 0.28 | | | | | | | | | | | | | | | | | 8.20 | 2.23 | 1.54 | 1.07 | 0.75 | 0.52 | 0.37 | 0.26 | 0.19 | | | | | | | | | | | | | | | | | 8.40 | 1.41 | 0.98 | 0.69 | 0.48 | 0.34 | 0.24 | 0.18 | 0.13 | | | | | | | | | | | | | | | | | 8.60 | 0.90 | 0.63 | 0.44 | 0.31 | 0.23 | 0.16 | 0.12 | 0.09 | | | | | | | | | | | | | | | | | 8.80 | 0.58 | 0.41 | 0.29 | 0.21 | 0.15 | 0.11 | 0.09 | 0.07 | | | | | | | | | | | | | | | | | 9.00 | 0.38 | 0.27 | 0.19 | 0.14 | 0.11 | 0.08 | 0.07 | 0.05 | | | | | | | | | | | | | | | | | Salinity = 20 g/kg | | | | | | | | | | | | | | | | | | | | | | | | | | Temperature °C | | | | | | | | | | | | | | | | | | | | | | | | pH | 0 | 5 | 10 | 15 | 20 | 25 | 30 | 35 | | | | | | | | | | | | | | | | | 7.00 | 37.19 | 25.62 | 17.65 | 12.16 | 8.39 | 5.78 | 3.99 | 2.76 | | | | | | | | | | | | | | | | | 7.20 | 23.47 | 16.17 | 11.15 | 7.69 | 5.30 | 3.66 | 2.53 | 1.75 | | | | | | | | | | | | | | | | | 7.40 | 14.82 | 10.22 | 7.04 | 4.86 | 3.36 | 2.32 | 1.61 | 1.12 | | | | | | | | | | | | | | | | | 7.60 | 9.36 | 6.46 | 4.46 | 3.08 | 2.13 | 1.47 | 1.02 | 0.71 | | | | | | | | | | | | | | | | | 7.80 | 5.92 | 4.08 | 2.82 | 1.95 | 1.35 | 0.94 | 0.66 | 0.46 | | | | | | | | | | | | | | | | | 8.00 | 3.74 | 2.59 | 1.79 | 1.24 | 0.86 | 0.60 | 0.43 | 0.30 | | | | | | | | | | | | | | | | | 8.20 | 2.37 | 1.64 | 1.14 | 0.79 | 0.56 | 0.39 | 0.28 | 0.20 | | | | | | | | | | | | | | | | | 8.40 | 1.51 | 1.05 | 0.73 | 0.51 | 0.36 | 0.26 | 0.19 | 0.14 | | | | | | | | | | | | | | | | | 8.60 | 0.96 | 0.67 | 0.47 | 0.33 | 0.24 | 0.17 | 0.13 | 0.10 | | | | | | | | | | | | | | | | | 8.80 | 0.62 | 0.43 | 0.31 | 0.22 | 0.16 | 0.12 | 0.09 | 0.07 | | | | | | | | | | | | | | | | | 9.00 | 0.40 | 0.28 | 0.20 | 0.15 | 0.11 | 0.09 | 0.07 | 0.06 | | | | | | | | | | | | | | | | | Salinity = 30 g/kg | | | | | | | | | | | | | | | | | | | | | | | | | | Temperature °C | | | | | | | | | | | | | | | | | | | | | | | | pH | 0 | 5 | 10 | 15 | 20 | 25 | 30 | 35 | | | | | | | | | | | | | | | | | 7.00 | 39.75 | 27.38 | 18.87 | 13.00 | 8.96 | 6.18 | 4.27 | 2.95 | | | | | | | | | | | | | | | | | 7.20 | 25.09 | 17.29 | 11.91 | 8.21 | 5.67 | 3.91 | 2.70 | 1.87 | | | | | | | | | | | | | | | | | 7.40 | 15.84 | 10.92 | 7.53 | 5.19 | 3.59 | 2.48 | 1.72 | 1.19 | | | | | | | | | | | | | | | | | 7.60 | 10.01 | 6.90 | 4.76 | 3.29 | 2.27 | 1.57 | 1.09 | 0.76 | | | | | | | | | | | | | | | | | 7.80 | 6.32 | 4.36 | 3.01 | 2.08 | 1.44 | 1.00 | 0.70 | 0.49 | | | | | | | | | | | | | | | | | 8.00 | 4.00 | 2.76 | 1.91 | 1.33 | 0.92 | 0.64 | 0.45 | 0.32 | | | | | | | | | | | | | | | | | 8.20 | 2.53 | 1.75 | 1.22 | 0.85 | 0.59 | 0.42 | 0.30 | 0.21 | | | | | | | | | | | | | | | | | 8.40 | 1.61 | 1.12 | 0.78 | 0.55 | 0.38 | 0.27 | 0.20 | 0.14 | | | | | | | | | | | | | | | | | 8.60 | 1.03 | 0.72 | 0.50 | 0.35 | 0.25 | 0.18 | 0.14 | 0.10 | | | | | | | | | | | | | | | | | 8.80 | 0.66 | 0.46 | 0.33 | 0.23 | 0.17 | 0.13 | 0.10 | 0.08 | | | | | | | | | | | | | | | | | 9.00 | 0.43 | 0.30 | 0.22 | 0.16 | 0.12 | 0.09 | 0.07 | 0.06 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

To calculate total ammonia nitrogen chronic criteria values in saltwater at different pH and temperature values than those listed in this subsection, use the following formulas:

| I = | 19.9273S | | --- | --- | | (1000 - 1.005109S) | |

Where I = molal ionic strength of water

S = Salinity ppt (g/kg)

The regression model used to relate I to pKa (negative log of the ionization constant) is

pKa = 9.245 + 0.138(I)

pKa as defined by these equations is at 298 degrees Kelvin (25°C).

T °Kelvin = °C + 273

To correct for other temperatures:

pKa^S_T = pKa^S₂₉₈ + 0.0324(298 - T °Kelvin)

The unionized ammonia fraction (UIA) is given by:

| UIA = | 1 | | --- | --- | | _{1 + 10}(pKa^S_T-pH) | |

The chronic ammonia criterion in saltwater is given by:

| Chronic = | 0.035 | | --- | --- | | UIA | |

Multiply the chronic value by 0.822 to get the ammonia-N chronic criterion.

G. Implementation of freshwater ammonia water quality criteria in subsections B and C of this section through VPDES permits issued pursuant to Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31).

1. The criteria in subsections B and C of this section shall be implemented in VPDES permits that are being reissued to facilities in accordance with the following schedule:

a. Major municipal facilities with design flows greater than or equal to five million gallons per day and major industrial facilities - 12 months following the Water Quality Standards effective date.

b. Municipal facilities with design flows greater than or equal to 500,000 gallons per day and less than five million gallons per day and all minor industrial facilities - 24 months following the Water Quality Standards effective date.

c. Minor municipal facilities with design flows that are less than 500,000 gallons per day - 36 months following the Water Quality Standards effective date.

2. VPDES permits shall not be revoked and reissued to avoid or delay being subject to the freshwater ammonia water quality criteria in subsections B and C of this section in accordance with the schedule in subdivision G 1 of this section.

3. The provisions of 9VAC25-31-250 A 3 notwithstanding, a permittee may request and the board may authorize, as appropriate, an extended schedule of compliance, which exceeds the term of the VPDES permit and may include multiple permit cycles to achieve effluent limits based on the freshwater ammonia water quality criteria in subsections B and C of this section.

a. Any extended schedule of compliance necessary for the implementation of the freshwater ammonia water quality criteria shall require compliance as soon as possible in accordance with 9VAC25-31-250 A 1. The board may consider the following factors on a case-by-case basis, relying on information provided by the permittee, in making a determination of the timeframe that meets the standard of "as soon as possible":

(1) The relative priority of freshwater ammonia water quality criteria and other water quality and water infrastructure needs of the local community or permittee;

(2) Availability of grant funding pursuant to § 10.1-2131 of the Code of Virginia and other treatment facility expansion and upgrade plans;

(3) Whether an extended schedule of compliance is appropriate for facilities or classes of facilities; and

(4) Appropriate mechanisms to address affordability limitations and financial hardship situations remaining notwithstanding subdivisions G 1 a, G 1 b, and G 1 c of this section.

b. Any request by the permittee for an extended schedule of compliance shall include at the time of permit application at a minimum the following information:

(1) Documentation of other water quality and water infrastructure projects that are in the planning, design, or construction process and the relative priority of the projects in relation to compliance with the freshwater ammonia water quality criteria.

(2) A preliminary engineering analysis of treatment facility upgrade or source reduction alternatives necessary to meet the freshwater ammonia criteria. The analysis may include any additional upgrade or expansion plans currently under consideration. The analysis shall be prepared by a professional engineer registered in Virginia and shall include an estimation of the capital and operations and maintenance costs.

(3) An assessment of project affordability and identification of all potential sources of funding for enhanced ammonia treatment. In the case of publicly owned treatment works, include an evaluation of the required sewer use fees versus median household income.

(4) Documentation that demonstrates the minimum estimated time required and schedule to design, fund, and construct the selected treatment or source reduction alternative.

(5) An evaluation prepared by a professional engineer registered in Virginia of the highest achievable condition (HAC) regarding nitrification capabilities of the existing treatment facility under the influent loading conditions expected during the term of the VPDES permit as well as under design loading conditions.

c. Any VPDES permit that authorizes an extended schedule of compliance for meeting the freshwater ammonia water quality criteria that exceeds the permit term shall include interim effluent limitations based on the HAC attainable during the term of the permit, final effluent limitations, and a final compliance date.

d. New dischargers defined in 9VAC25-31 are not eligible for extended schedules of compliance under this section; however, they remain eligible for schedules of compliance consistent with 9VAC25-31-250.

A permittee may seek a site-specific modification or variance to the freshwater ammonia water quality criteria under 9VAC25-260-140 D or E as applicable.

History

• Statutory Authority: § 62.1-44.15 the Code of Virginia; Clean Water Act (33 USC §1251 et seq.); 40 CFR 131.
• Historical Notes: Derived from Virginia Register Volume 19, Issue 23, eff. August 27, 2003; amended, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Volume 28, Issue 18, eff. June 6, 2012; Volume 32, Issue 26, eff. July 27, 2017; Volume 36, Issue 22, eff. October 13, 2020; Volume 40, Issue 19, eff. May 6, 2024; Volume 42, Issue 6, eff. November 3, 2025.

Part II Standards with More Specific Application

9VAC25-260-160 Fecal coliform bacteria; shellfish waters

In all open ocean or estuarine waters capable of propagating shellfish or in specific areas where public or leased private shellfish beds are present, and including those waters on which condemnation are established by the State Department of Health, the following criteria for fecal coliform bacteria shall apply:

The geometric mean fecal coliform value for a sampling station shall not exceed an MPN (most probable number) or MF (membrane filtration using mTEC culture media) of 14 per 100 milliliters (ml). The estimated 90th percentile shall not exceed an MPN of 43 per 100 ml for a 5-tube decimal dilution test or an MPN of 49 per 100 ml for a 3-tube decimal dilution test or MF test of 31 CFU (colony forming units) per 100 ml.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-02.1, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 19, Issue 7, eff. January 15, 2003; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-170 Bacteria; other recreational waters

A. The following bacteria criteria (counts/100ml) shall apply to protect primary contact recreational uses in surface waters, except waters identified in subsection B of this section:

In freshwater, E. coli bacteria shall not exceed a geometric mean of 126 counts/100ml and shall not have greater than a 10% excursion frequency of a statistical threshold value (STV) of 410 counts/100 ml, both in an assessment period of up to 90 days.

In transition and saltwater, Enterococci bacteria shall not exceed a geometric mean of 35 counts/100ml and shall not have greater than a 10% excursion frequency of a statistical threshold value (STV) of 130 counts/100ml, both in an assessment period of up to 90 days.

1. See 9VAC25-260-140 C for boundary delineations for freshwater, transition, and saltwater.

2. In VPDES discharges to freshwater, bacteria in effluent requiring disinfection shall not exceed a monthly geometric mean of E. coli bacteria of 126 counts/100ml. Alternative performance standards may be established where an approved long term control plan establishes an alternative level of disinfection for a combined sewer system.

In VPDES discharges to transition and saltwater, bacteria in effluent requiring disinfection shall not exceed a monthly geometric mean of enterococci bacteria of 35 counts/100ml.

B. The following bacteria criteria per 100 ml (CFU/100 ml) of water shall apply:

E. coli bacteria shall not exceed a monthly geometric mean of 630 CFU/100 ml in freshwater.

Enterococci bacteria shall not exceed a monthly geometric mean of 175 CFU/100 ml in transition and saltwater.

1. See 9VAC25-260-140 C for boundary delineations for freshwater, transition, and saltwater.

2. Geometric means shall be calculated using all data collected during any calendar month with a minimum of four weekly samples.

3. If there is insufficient data to calculate monthly geometric means in freshwater, no more than 10% of the total samples in the assessment period shall exceed 1173 E. coli CFU/100 ml.

4. If there is insufficient data to calculate monthly geometric means in transition and saltwater, no more than 10% of the total samples in the assessment period shall exceed 519 enterococci CFU/100 ml.

5. Where the existing water quality for bacteria is below the geometric mean criteria in a water body designated for secondary contact in subdivision 6 of this subsection that higher water quality will be maintained in accordance with 9VAC25-260-30 A 2.

6. Surface waters designated under this subsection are as follows:

a. (Reserved)

b. (Reserved)

c. (Reserved)

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-02.2, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 19, Issue 7, eff. January 15, 2003; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; amended Virginia Register Volume 36, Issue 6, eff. October 21, 2019.

9VAC25-260-180 [Deleted]

Historical Notes

Derived from VR680-21-02.3, eff. May 20, 1992.

9VAC25-260-185 Criteria to protect designated uses from the impacts of nutrients and suspended sediment in the Chesapeake Bay and its tidal tributaries

A. Dissolved oxygen. The dissolved oxygen criteria in the following table apply to all Chesapeake Bay waters according to their specified designated use and supersede the dissolved oxygen criteria in 9VAC25-260-50.

| Designated Use | Criteria Concentration/Duration | Temporal Application | | --- | --- | --- | | Migratory fish spawning and nursery | 7-day mean ≥ 6 mg/l (tidal habitats with 0-0.5 ppt salinity) | February 1 - May 31 | | Instantaneous minimum ≥ 5 mg/l | | | | Open water¹ | 30-day mean ≥ 5.5 mg/l (tidal habitats with 0-0.5 ppt salinity) | year-round² | | 30-day mean ≥ 5 mg/l (tidal habitats with > 0.5 ppt salinity) | | | | 7-day mean ≥ 4 mg/l | | | | Instantaneous minimum ≥ 3.2 mg/l at temperatures < 29°C Instantaneous minimum ≥ 4.3 mg/lat temperatures ≥ 29°C | | | | Deep water | 30-day mean ≥ 3 mg/l | June 1 - September 30 | | 1-day mean ≥ 2.3 mg/l | | | | Instantaneous minimum ≥ 1.7 mg/l | | | | Deep channel | Instantaneous minimum ≥ 1 mg/l | June 1 - September 30 | | ¹In applying this open water instantaneous criterion to the Chesapeake Bay and its tidal tributaries where the existing water quality for dissolved oxygen exceeds an instantaneous minimum of 3.2 mg/l, that higher water quality for dissolved oxygen shall be provided antidegradation protection in accordance with 9VAC25-260-30 A 2. ²Open-water dissolved oxygen criteria attainment is assessed separately over two time periods: summer (June 1- September 30) and nonsummer (October 1-May 31) months. | | |

B. Submerged aquatic vegetation (SAV) and water clarity. Attainment of the shallow-water submerged aquatic vegetation designated use shall be determined using any one of the following criteria:

| Designated Use | Chesapeake Bay Program Segment | SAV Acres¹ | Percent Light-Through-Water² | Water Clarity Acres¹ | Temporal Application | | --- | --- | --- | --- | --- | --- | | Shallow water submerged aquatic vegetation use | CB5MH | 7,633 | 22% | 14,514 | April 1 - October 31 | | CB6PH | 1,267 | 22% | 3,168 | March 1 - November 30 | | | CB7PH | 15,107 | 22% | 34,085 | March 1 - November 30 | | | CB8PH | 11 | 22% | 28 | March 1 - November 30 | | | POTTF | 2,093 | 13% | 5,233 | April 1 - October 31 | | | POTOH | 1,503 | 13% | 3,758 | April 1 - October 31 | | | POTMH | 4,250 | 22% | 10,625 | April 1 - October 31 | | | RPPTF | 66 | 13% | 165 | April 1 - October 31 | | | RPPOH | 4 | 13% | 10 | April 1 - October 31 | | | RPPMH | 5,380 | 22% | 13,450 | April 1 - October 31 | | | CRRMH | 768 | 22% | 1,920 | April 1 - October 31 | | | PIAMH | 3,479 | 22% | 8,014 | April 1 - October 31 | | | MPNTF | 85 | 13% | 213 | April 1 - October 31 | | | MPNOH | - | - | - | - | | | PMKTF | 187 | 13% | 468 | April 1 - October 31 | | | PMKOH | - | - | - | - | | | YRKMH | 239 | 22% | 598 | April 1 - October 31 | | | YRKPH | 2,793 | 22% | 6,982 | March 1 - November 30 | | | MOBPH | 15,901 | 22% | 33,990 | March 1 - November 30 | | | JMSTF2 | 266 | 13% | 665 | April 1 - October 31 | | | JMSTF1 | 1,333 | 13% | 3,332 | April 1 - October 31 | | | APPTF | 379 | 13% | 948 | April 1 - October 31 | | | JMSOH | 15 | 13% | 38 | April 1 - October 31 | | | CHKOH | 535 | 13% | 1,338 | April 1 - October 31 | | | JMSMH | 531 | 22% | 1,328 | April 1 - October 31 | | | JMSPH | 604 | 22% | 1,510 | March 1 - November 30 | | | WBEMH | - | - | - | - | | | SBEMH | - | - | - | - | | | EBEMH | - | - | - | - | | | ELIPH | - | - | - | - | | | LYNPH | 107 | 22% | 268 | March 1 - November 30 | | | POCOH | - | - | - | - | | | POCMH | 4,066 | 22% | 9,368 | April 1 - October 31 | | | TANMH | 13,579 | 22% | 22,064 | April 1 - October 31 | | | ¹The assessment period for SAV and water clarity acres shall be the single best year in the most recent three consecutive years. When three consecutive years of data are not available, a minimum of three years within the data assessment window shall be used. | | | | | | | ²Percent light-through-water = 100e^(-KdZ) where K_d is water column light attenuation coefficient and can be measured directly or converted from a measured secchi depth where K_d = 1.45/secchi depth. Z = depth at location of measurement of K_d. | | | | | |

C. Chlorophyll a.

| Designated Use | Chlorophyll a Narrative Criterion | Temporal Application | | --- | --- | --- | | Open water | Concentrations of chlorophyll a in free-floating microscopic aquatic plants (algae) shall not exceed levels that result in undesirable or nuisance aquatic plant life or render tidal waters unsuitable for the propagation and growth of a balanced, indigenous population of aquatic life or otherwise result in ecologically undesirable water quality conditions such as reduced water clarity, low dissolved oxygen, food supply imbalances, proliferation of species deemed potentially harmful to aquatic life or humans, or aesthetically objectionable conditions. | March 1 - September 30 | | See 9VAC25-260-310 special standard bb for numerical chlorophyll criteria for the tidal James River. | | |

D. Implementation.

1. Chesapeake Bay program segmentation scheme as described in Chesapeake Bay Program, 2004 Chesapeake Bay Program Analytical Segmentation Scheme-Revisions, Decisions and Rationales: 1983–2003, CBP/TRS 268/04, EPA 903-R-04-008, Chesapeake Bay Program, Annapolis, Maryland, and the Chesapeake Bay Program published 2005 addendum (CBP/TRS 278-06; EPA 903-R-05-004) is listed in the following table and shall be used as the spatial assessment unit to determine attainment of the criteria in this section for each designated use.

| Chesapeake Bay Segment Description | Segment Name¹ | Chesapeake Bay Segment Description | Segment Name¹ | | --- | --- | --- | --- | | Lower Central Chesapeake Bay | CB5MH | Mobjack Bay | MOBPH | | Western Lower Chesapeake Bay | CB6PH | Upper Tidal Fresh James River | JMSTF2 | | Eastern Lower Chesapeake Bay | CB7PH | Lower Tidal Fresh James River | JMSTF1 | | Mouth of the Chesapeake Bay | CB8PH | Appomattox River | APPTF | | Upper Potomac River | POTTF | Middle James River | JMSOH | | Middle Potomac River | POTOH | Chickahominy River | CHKOH | | Lower Potomac River | POTMH | Lower James River | JMSMH | | Upper Rappahannock River | RPPTF | Mouth of the James River | JMSPH | | Middle Rappahannock River | RPPOH | Western Branch Elizabeth River | WBEMH | | Lower Rappahannock River | RPPMH | Southern Branch Elizabeth River | SBEMH | | Corrotoman River | CRRMH | Eastern Branch Elizabeth River | EBEMH | | Piankatank River | PIAMH | Lafayette River | LAFMH | | Upper Mattaponi River | MPNTF | Mouth of the Elizabeth River | ELIPH | | Lower Mattaponi River | MPNOH | Lynnhaven River | LYNPH | | Upper Pamunkey River | PMKTF | Middle Pocomoke River | POCOH | | Lower Pamunkey River | PMKOH | Lower Pocomoke River | POCMH | | Middle York River | YRKMH | Tangier Sound | TANMH | | Lower York River | YRKPH | | | | ¹First three letters of segment name represent Chesapeake Bay segment description, letters four and five represent the salinity regime of that segment (TF = Tidal Fresh, OH = Oligohaline, MH = Mesohaline, and PH = Polyhaline) and a sixth space is reserved for subdivisions of that segment. | | | |

2. The assessment period shall be the most recent three consecutive years. When three consecutive years of data are not available, a minimum of three years within the data assessment window shall be used.

3. Attainment of these criteria shall be assessed through comparison of the generated cumulative frequency distribution of the monitoring data to the applicable criteria reference curve for each designated use. If the monitoring data cumulative frequency curve is completely contained inside the reference curve, then the segment is in attainment of the designated use. The reference curves and procedures to be followed are published in the USEPA, Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries, EPA 903-R-03-002, April 2003 and the 2004 (EPA 903-R-03-002 October 2004), 2007 (CBP/TRS 285/07, EPA 903-R-07-003), 2007 (CBP/TRS 288/07, EPA 903-R-07-005), 2008 (CBP/TRS 290-08, EPA 903-R-08-001), 2010 (CBP/TRS 301-10, EPA 903-R-10-002), and 2017 (CBP/TRS 320-17, EPA 903-R-17-002) addenda. An exception to this requirement is in measuring attainment of the SAV and water clarity acres, which are compared directly to the criteria.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 23, eff. June 24, 2005; amended, Volume 26, Issue 12, eff. February 1, 2010; Volume 27, Issue 6, eff. January 6, 2011; Volume 32, Issue 26, eff. June 27, 2017; Volume 35, Issue 7, eff. January 10, 2019; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-186 Virginia Pollutant Discharge Elimination System permits and schedules of compliance

A. As deemed necessary to meet the requirements of 9VAC25-260-185, the board shall issue or modify Virginia Pollutant Discharge Elimination System permits for point source dischargers located throughout the tidal and nontidal sections of the following river basins: Potomac (9VAC25-260-390 and 9VAC25-260-400), James (9VAC25-260-410, 9VAC25-260-415, 9VAC25-260-420 and 9VAC25-260-430), Rappahannock (9VAC25-260-440), York (9VAC25-260-530) and Chesapeake Bay/Small Coastal Basins (subdivisions 2 through 3g of 9VAC25-260-520).

B. National Pollutant Discharge Elimination System permits issued by permitting authorities with the Chesapeake Bay watershed may include a compliance schedule in accordance with implementing regulations requiring compliance as soon as possible with nutrient load limitations assigned to individual dischargers.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 21, Issue 23, eff. June 24, 2005.

9VAC25-260-187 Criteria for man-made lakes and reservoirs to protect aquatic life and recreational designated uses from the impacts of nutrients

A. The criteria in subsection B of this section apply to the man-made lakes and reservoirs listed in this section. Additional man-made lakes and reservoirs may be added as new reservoirs are constructed or monitoring data become available from outside groups or future agency monitoring.

B. Whether or not algicide treatments are used, the chlorophyll a criteria apply to all waters on the list. The total phosphorus criteria apply only if a specific man-made lake or reservoir received algicide treatment during the monitoring and assessment period of April 1 through October 31.

The 90th percentile of the chlorophyll a data collected at one meter or less within the lacustrine portion of the man-made lake or reservoir between April 1 and October 31 shall not exceed the chlorophyll a criterion for that waterbody in each of the two most recent monitoring years that chlorophyll a data are available. For a waterbody that received algicide treatment, the median of the total phosphorus data collected at one meter or less within the lacustrine portion of the man-made lake or reservoir between April 1 and October 31 shall not exceed the total phosphorus criterion in each of the two most recent monitoring years that total phosphorus data are available.

Monitoring data used for assessment shall be from sampling locations within the lacustrine portion where observations are evenly distributed over the seven months from April 1 through October 31 and are in locations that are representative, either individually or collectively, of the condition of the man-made lake or reservoir.

| Man-made Lake or Reservoir Name | Location | Chlorophyll a (μg/L) | Total Phosphorus (μg/L) | | --- | --- | --- | --- | | Abel Lake | Stafford County | 35 | 40 | | Airfield Pond | Sussex County | 35 | 40 | | Amelia Lake | Amelia County | 35 | 40 | | Aquia Reservoir (Smith Lake) | Stafford County | 35 | 40 | | Bark Camp Lake (Corder Bottom Lake, Lee/Scott/Wise Lake) | Scott County | 35 | 40 | | Beaver Creek Reservoir | Albemarle County | 35 | 40 | | Beaverdam Creek Reservoir (Beaverdam Reservoir) | Bedford County | 35 | 40 | | Beaverdam Reservoir | Loudoun County | 35 | 40 | | Bedford Reservoir (Stony Creek Reservoir) | Bedford County | 35 | 40 | | Big Cherry Lake | Wise County | 35 | 40 | | Breckenridge Reservoir | Prince William County | 35 | 40 | | Briery Creek Lake | Prince Edward County | 35 | 40 | | Brunswick Lake (County Pond) | Brunswick County | 35 | 40 | | Burke Lake | Fairfax County | 60 | 40 | | Carvin Cove Reservoir | Botetourt County | 35 | 40 | | Cherrystone Reservoir | Pittsylvania County | 35 | 40 | | Chickahominy Lake | Charles City County | 35 | 40 | | Chris Green Lake | Albemarle County | 35 | 40 | | Claytor Lake | Pulaski County | 25 | 20 | | Clifton Forge Reservoir (Smith Creek Reservoir) | Alleghany County | 35 | 20 | | Coles Run Reservoir | Augusta County | 10 | 10 | | Curtis Lake | Stafford County | 60 | 40 | | Diascund Creek Reservoir | New Kent County | 35 | 40 | | Douthat Lake | Bath County | 25 | 20 | | Elkhorn Lake | Augusta County | 10 | 10 | | Emporia Lake (Meherrin Reservoir) | Greensville County | 35 | 40 | | Fairystone Lake | Henry County | 35 | 40 | | Falling Creek Reservoir | Chesterfield County | 35 | 40 | | Fluvanna Ruritan Lake | Fluvanna County | 60 | 40 | | Fort Pickett Reservoir | Nottoway/Brunswick County | 35 | 40 | | Gatewood Reservoir | Pulaski County | 35 | 40 | | Georges Creek Reservoir | Pittsylvania County | 35 | 40 | | Goose Creek Reservoir | Loudoun County | 35 | 40 | | Graham Creek Reservoir | Amherst County | 35 | 40 | | Great Creek Reservoir | Lawrenceville | 35 | 40 | | Harrison Lake | Charles City County | 35 | 40 | | Harwood Mills Reservoir | York County | 60 | 40 | | Hidden Valley Lake | Washington County | 35 | 40 | | Hogan Lake | Pulaski County | 35 | 40 | | Holiday Lake | Appomattox County | 35 | 40 | | Hungry Mother Lake | Smyth County | 35 | 40 | | Hunting Run Reservoir | Spotsylvania County | 35 | 40 | | J. W. Flannagan Reservoir | Dickenson County | 25 | 20 | | Kerr Reservoir, Virginia portion (Buggs Island Lake) | Halifax County | 25 | 30 | | Keysville Reservoir | Charlotte County | 35 | 40 | | Lake Albemarle | Albemarle County | 35 | 40 | | Lake Anna | Louisa , Spotsylvania, Orange Counties | 25 | 30 | | Lake Arrowhead | Page County | 35 | 40 | | Lake Burnt Mills | Isle of Wight County | 60 | 40 | | Lake Chesdin | Chesterfield County | 35 | 40 | | Lake Cohoon | Suffolk City | 60 | 40 | | Lake Conner | Halifax County | 35 | 40 | | Lake Frederick | Frederick County | 35 | 40 | | Lake Gaston, (Virginia portion) | Brunswick County | 25 | 30 | | Lake Gordon | Mecklenburg County | 35 | 40 | | Lake Keokee | Lee County | 35 | 40 | | Lake Kilby | Suffolk City | 60 | 40 | | Lake Lawson | Virginia Beach City | 60 | 40 | | Lake Manassas | Prince William County | 35 | 40 | | Lake Meade | Suffolk City | 60 | 40 | | Lake Moomaw | Bath County | 10 | 10 | | Lake Mooney | Stafford County | 25 | 40 | | Lake Nelson | Nelson County | 60 | 40 | | Lake Nottoway (Lee Lake, Nottoway Lake) | Nottoway County | 35 | 40 | | Lake Orange | Orange County | 60 | 40 | | Lake Pelham | Culpeper County | 35 | 40 | | Lake Prince | Suffolk City | 60 | 40 | | Lake Robertson | Rockbridge County | 35 | 40 | | Lake Smith | Virginia Beach City | 60 | 40 | | Lake Whitehurst | Norfolk City | 60 | 40 | | Lake Wright | Norfolk City | 60 | 40 | | Lakeview Reservoir | Chesterfield County | 35 | 40 | | Laurel Bed Lake | Russell County | 35 | 40 | | Lee Hall Reservoir (Newport News Reservoir) | Newport News City | 60 | 40 | | Leesville Reservoir | Bedford County | 25 | 30 | | Little Creek Reservoir | Virginia Beach City | 60 | 40 | | Little Creek Reservoir | James City County | 25 | 30 | | Little River Reservoir | Montgomery County | 35 | 40 | | Lone Star Lake F (Crystal Lake) | Suffolk City | 60 | 40 | | Lone Star Lake G (Crane Lake) | Suffolk City | 60 | 40 | | Lone Star Lake I (Butler Lake) | Suffolk City | 60 | 40 | | Lunga Reservoir | Prince William County | 35 | 40 | | Lunenburg Beach Lake (Victoria Lake) | Town of Victoria | 35 | 40 | | Martinsville Reservoir (Beaver Creek Reservoir) | Henry County | 35 | 40 | | Mill Creek Reservoir | Amherst County | 35 | 40 | | Modest Creek Reservoir | Town of Victoria | 35 | 40 | | Motts Run Reservoir | Spotsylvania County | 25 | 30 | | Mount Jackson Reservoir | Shenandoah County | 35 | 40 | | Mountain Run Lake | Culpeper County | 35 | 40 | | Ni Reservoir | Spotsylvania County | 35 | 40 | | North Fork Pound Reservoir | Wise County | 35 | 40 | | Northeast Creek Reservoir | Louisa County | 35 | 40 | | Occoquan Reservoir | Fairfax County | 35 | 40 | | Pedlar Lake | Amherst County | 25 | 20 | | Philpott Reservoir | Henry County | 25 | 30 | | Phelps Creek Reservoir (Brookneal Reservoir) | Campbell County | 35 | 40 | | Powhatan Lakes (Upper and Lower) | Powhatan County | 35 | 40 | | Ragged Mountain Reservoir | Albemarle County | 35 | 40 | | Rivanna Reservoir (South Fork Rivanna Reservoir) | Albemarle County | 35 | 40 | | Roaring Fork | Pittsylvania County | 35 | 40 | | Rural Retreat Lake | Wythe County | 35 | 40 | | Sandy River Reservoir | Prince Edward County | 35 | 40 | | Shenandoah Lake | Rockingham County | 35 | 40 | | Silver Lake | Rockingham County | 35 | 40 | | Smith Mountain Lake | Bedford County | 25 | 30 | | South Holston Reservoir | Washington County | 25 | 20 | | Speights Run Lake | Suffolk City | 60 | 40 | | Spring Hollow Reservoir | Roanoke County | 25 | 20 | | Staunton Dam Lake | Augusta County | 35 | 40 | | Stonehouse Creek Reservoir | Amherst County | 60 | 40 | | Strasburg Reservoir | Shenandoah County | 35 | 40 | | Stumpy Lake | Virginia Beach | 60 | 40 | | Sugar Hollow Reservoir | Albemarle County | 25 | 20 | | Swift Creek Lake | Chesterfield County | 35 | 40 | | Swift Creek Reservoir | Chesterfield County | 35 | 40 | | Switzer Lake | Rockingham County | 10 | 10 | | Talbott Reservoir | Patrick County | 35 | 40 | | Thrashers Creek Reservoir | Amherst County | 35 | 40 | | Totier Creek Reservoir | Albemarle County | 35 | 40 | | Townes Reservoir | Patrick County | 25 | 20 | | Troublesome Creek Reservoir | Buckingham County | 35 | 40 | | Waller Mill Reservoir | York County | 25 | 30 | | Western Branch Reservoir | Suffolk City | 25 | 20 | | Wise Reservoir | Wise County | 25 | 20 |

C. When the board determines that the applicable criteria in subsection B of this section for a specific man-made lake or reservoir are exceeded, the board shall consult with the Department of Wildlife Resources regarding the status of the fishery in determining whether or not the designated use for that waterbody is being attained. If the designated use of the subject waterbody is not being attained, the board shall assess the waterbody as impaired in accordance with § 62.1-44.19:5 of the Code of Virginia. If the designated use is being attained, the board shall assess the waterbody as impaired in accordance with § 62.1-44.19:5 of the Code of Virginia until site-specific criteria are adopted and become effective for that waterbody.

D. If the nutrient criteria specified for a man-made lake or reservoir in subsection B of this section do not provide for the attainment and maintenance of the water quality standards of downstream waters as required in 9VAC25-260-10 C, the nutrient criteria herein may be modified on a site-specific basis to protect the water quality standards of downstream waters.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 4, eff. August 14, 2007; amended, Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 9, eff. April 18, 2023.

Part V Water Quality Criteria for Groundwater [Repealed]

9VAC25-260-230 (Repealed.)

Historical Notes

Derived from VR680-21-05.1 to VR680-21-05.2, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; repealed, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Part VI Procedural Requirements

9VAC25-260-250 Procedural requirements for variances due to natural conditions, temperature and §316(a) thermal variances

A. The standards in this chapter notwithstanding, as a result of natural conditions, water quality may from time to time vary from established limits as a result of natural conditions.

B. When the maximum temperature of stockable trout waters exceeds, solely due to natural conditions, the maximum allowable temperature criterion specified in 9VAC25-260-50, the board, on a case-by-case basis, may grant a variance to the maximum temperature criterion and will use the naturally occurring maximum temperature in setting effluent limits in permits. The public notice for any permit proposed to be issued or reissued by the board will contain reference to any proposed granting of such a variance.

C. Variances under § 316(a) of the Clean Water Act and under subsection B of this section are site-specific case decisions that do not require a standards amendment.

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-06.1, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997.

9VAC25-260-260 Modification, amendment, and cancellation of standards

A. Under the authority of § 62.1-44.15(3)(b) of the State Water Control Law, the board reserves the right at any time to modify, amend, or cancel any of the rules, policies, or standards set forth here. Such modification, amendment, or cancellation shall be consistent with requirements of § 303 of the Clean Water Act, as amended, and regulations promulgated under it.

B. Within three years after December 10, 1997, the department shall perform an analysis on this chapter and provide the board with a report on the results. The analysis shall include (i) the purpose and need for the chapter; (ii) alternatives which would achieve the stated purpose of this chapter in a less burdensome and less intrusive manner; (iii) an assessment of the effectiveness of this chapter; (iv) the results of a review of current state and federal statutory and regulatory requirements, including identification and justification of requirements of this chapter which are more stringent than federal requirements; and (v) the results of a review as to whether this chapter is clearly written and easily understandable by affected entities.

Upon review of the department's analysis, the board shall confirm the need to (i) continue this chapter without amendment; (ii) repeal this chapter; or (iii) amend this chapter. If the board's decision is to repeal or amend this chapter, the board shall authorize the department to initiate the applicable regulatory process to carry out the decision of the board.

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-06.2, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997.

9VAC25-260-270 Shellfish buffer zones; public hearing

Before acting on any proposal for a project that, while not contravening established numeric criteria for shellfish waters, would result in condemnation by the State Health Department of shellfish beds, the board shall convene a public hearing to determine the socio-economic effect of the proposal. Such proposals include discharge of treated waste or proposals to otherwise alter the biological, chemical or physical properties of state waters. If the Marine Resources Commission or the Virginia Institute of Marine Science certify that the project would have no effect on the shellfish use now and in the foreseeable future, the board may dispense with such hearing.

When the board finds that the proposed project will result in shellfish bed condemnation and if the condemnation will violate the general standard, it shall disapprove the proposal.

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-06.3, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997.

9VAC25-260-275 Protection of Eastern Shore tidal waters for clams and oysters

A. This section applies to applications for individual Virginia Pollutant Discharge Elimination System (VPDES) permits authorizing new or expanded discharges to or otherwise affecting Eastern Shore tidal waters, which include all tidal rivers and creeks on the Eastern Shore (Accomack and Northampton counties) including the tidal waters within the barrier islands on the eastern seaside of the Eastern Shore (does not include Atlantic Ocean waters) and all tidal rivers and creeks on the western bayside and including the Chesapeake Bay to a point one mile offshore from any point of land on the Eastern Shore.

B. When such application proposes a new or expanded discharge that would not be denied pursuant to 9VAC25-260-270 but would result in shellfish water condemnation, then the application shall be amended to contain an analysis of wastewater management alternatives to the proposed discharge. An application shall be deemed incomplete until this analysis is provided to the department.

C. For purposes of this part, condemnation shall mean a reclassification of shellfish waters by the state Department of Health to prohibited or restricted (as defined by the U.S. Food and Drug Administration, National Shellfish Sanitation Program, Guide for the Control of Molluscan Shellfish, 2007, Section II, Model Ordinance, Definitions, and Chapter 4, Classification of Shellfish Growing Areas) thereby signifying that shellfish from such waters are unfit for market.

D. The alternatives analysis shall first identify and describe the technical feasibility of each wastewater management alternative to the proposed new or expanded discharge. If the analysis demonstrates that any of the identified alternatives are technically feasible, then the analysis shall further describe the environmental, social and economic impacts and opportunities to mitigate any adverse impacts for those alternatives.

E. If the alternatives analysis demonstrates that the proposed new or expanded discharge is the only technically feasible alternative or produces the least environmental impact of all the technically feasible alternatives, the application will be processed in accordance with 9VAC25-31 (VPDES Permit Regulation). If the analysis demonstrates that a technically feasible alternative produces less of an environmental impact than that associated with the proposed new or expanded discharge but results in significant adverse social and economic impacts to beneficial uses and to the locality and its citizens, the application shall be processed in accordance with 9VAC25-31 . If the analysis demonstrates that a technically feasible alternative produces less of an environmental impact than that associated with the proposed new or expanded discharge and does not result in significant adverse social and economic impacts to beneficial uses and to the locality and its citizens, then processing of the VPDES application shall be suspended while the applicant makes a good faith effort to obtain approval from the appropriate regulatory authorities for the alternative. Processing of the application shall be resumed only if the alternative form of wastewater management is disapproved by the appropriate regulatory authorities.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq.; 40 CFR Part 131.
• Historical Notes: Derived from Virginia Register Volume 25, Issue 23, eff. August 20, 2009.

9VAC25-260-280 Analytical procedures

Analytical testing should be done in accordance with accepted procedures in 40 CFR 136, as amended or other board/EPA recognized and approved methods.

History

• Statutory Authority: §§ 62.1-44.15(3) and (10) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-06.4, eff. May 20, 1992.

9VAC25-260-290 (Repealed.)

History

• Historical Notes: Derived from VR680-21-06.5, eff. May 20, 1992; repealed, Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-300 Classification of tributary streams

Any tributary stream which is not named in a specific section description in Part IX (River Basin Section Tables), shall carry the same classification and standards of quality assigned to the stream or section to which it is tributary, except in the case of trout streams. Streams classified as trout waters are specifically named.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from VR680-21-06.6, eff. May 20, 1992; amended, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Part VII Special Standards and Scenic Rivers Listings

9VAC25-260-310 Special standards and requirements

The special standards are shown in small letters to correspond to lettering in the basin tables. The special standards are as follows:

a. Shellfish waters. In all open ocean or estuarine waters capable of propagating shellfish or in specific areas where public or leased private shellfish beds are present, including those waters on which condemnation classifications are established by the Virginia Department of Health, the following criteria for fecal coliform bacteria will apply:

The geometric mean fecal coliform value for a sampling station shall not exceed an MPN (most probable number) or MF (membrane filtration using mTEC culture media) of 14 per 100 milliliters (ml) of sample and the estimated 90th percentile shall not exceed an MPN of 43 per 100 ml for a 5-tube decimal dilution test or an MPN of 49 per 100 ml for a 3-tube decimal dilution test or MF test of 31 CFU (colony forming units) per 100 ml.

The shellfish area is not to be so contaminated by radionuclides, pesticides, herbicides, or fecal material that the consumption of shellfish might be hazardous.

b. Policy for the Potomac Embayments. At its meeting on September 12, 1996, the board adopted a policy (9VAC25-415. Policy for the Potomac Embayments) to control point source discharges of conventional pollutants into the Virginia embayment waters of the Potomac River, and their tributaries, from the fall line at Chain Bridge in Arlington County to the Route 301 bridge in King George County. The policy sets effluent limits for BOD₅, total suspended solids, phosphorus, and ammonia, to protect the water quality of these high profile waterbodies.

c. Canceled.

d. Canceled.

e. Canceled.

f. Canceled.

g. Occoquan watershed policy. At its meeting on July 26, 1971 (Minute 10), the board adopted a comprehensive pollution abatement and water quality management policy for the Occoquan watershed. The policy set stringent treatment and discharge requirements in order to improve and protect water quality, particularly since the waters are an important water supply for Northern Virginia. Following a public hearing on November 20, 1980, the board, at its December 10-12, 1980, meeting, adopted as of February 1, 1981, revisions to this policy (Minute 20). These revisions became effective March 4, 1981. Additional amendments were made following a public hearing on August 22, 1990, and adopted by the board at its September 24, 1990, meeting (Minute 24) and became effective on December 5, 1990. Copies are available upon request from the Department of Environmental Quality.

h. Canceled.

i. Canceled.

j. Canceled.

k. Canceled.

l. Canceled.

m. The following effluent limitations apply to wastewater treatment facilities treating an organic nutrient source in the entire Chickahominy watershed above Walker's Dam (this excludes discharges consisting solely of stormwater):

| CONSTITUENT | CONCENTRATION | | --- | --- | | 1. Biochemical oxygen demand 5-day | 6 mg/l monthly average, with not more than 5% of individual samples to exceed 8 mg/l. | | 2. Settleable solids | Not to exceed 0.1 ml/l monthly average. | | 3. Suspended solids | 5.0 mg/l monthly average, with not more than 5% of individual samples to exceed 7.5 mg/l. | | 4. Ammonia nitrogen | Not to exceed 2.0 mg/l monthly average as N. | | 5. Total phosphorus | Not to exceed 0.10 mg/l monthly average for all discharges with the exception of Tyson Foods, Inc., which shall meet 0.30 mg/l monthly average and 0.50 mg/l daily maximum. | | 6. Other physical and chemical constituents | Other physical or chemical constituents not specifically mentioned will be covered by additional specifications as conditions detrimental to the stream arise. The specific mention of items 1 through 5 does not necessarily mean that the addition of other physical or chemical constituents will be condoned. |

n. No sewage discharges, regardless of degree of treatment, should be allowed into the James River between Bosher and Williams Island Dams.

o. The concentration and total amount of impurities in Tuckahoe Creek and its tributaries of sewage origin shall be limited to those amounts from sewage, industrial wastes, and other wastes that are now present in the stream from natural sources and from existing discharges in the watershed.

p. Canceled.

q. Canceled.

r. Canceled.

s. Canceled.

t. Canceled.

u. Maximum temperature for the New River Basin from the Virginia-West Virginia state line upstream to the Giles-Montgomery County line:

The maximum temperature shall be 27°C (81°F) unless caused by natural conditions; the maximum rise above natural temperatures shall not exceed 2.8°C (5°F).

This maximum temperature limit of 81°F was established in the 1970 water quality standards amendments so that Virginia temperature criteria for the New River would be consistent with those of West Virginia, since the stream flows into that state.

v. The maximum temperature of the New River and its tributaries (except trout waters) from the Montgomery-Giles County line upstream to the Virginia-North Carolina state line shall be 29°C (84°F).

w. Canceled.

x. Clinch River from the confluence of Dumps Creek at river mile 268 at Carbo downstream to river mile 255.4. The special water quality criteria for copper (measured as total recoverable) in this section of the Clinch River are 12.4 µg/l for protection from chronic effects and 19.5 µg/l for protection from acute effects. These site-specific criteria are needed to provide protection to several endangered species of freshwater mussels.

y. Canceled.

z. A site specific dissolved copper aquatic life criterion of 16.3 µg/l for protection from acute effects and 10.5 µg/l for protection from chronic effects applies in the following area:

Little Creek to the Route 60 (Shore Drive) bridge including Little Channel, Desert Cove, Fishermans Cove, and Little Creek Cove.

Hampton Roads Harbor including the waters within the boundary lines formed by I-664 (Monitor-Merrimac Memorial Bridge Tunnel) and I-64 (Hampton Roads Bridge Tunnel), Willoughby Bay, and the Elizabeth River and its tidal tributaries.

This criterion reflects the acute and chronic copper aquatic life criterion for saltwater in 9VAC25-260-140 B X a water effect ratio. The water effect ratio was derived in accordance with 9VAC25-260-140 F.

aa. The following site-specific dissolved oxygen criteria apply to the tidal Mattaponi and Pamunkey Rivers and their tidal tributaries because of seasonal lower dissolved oxygen concentration due to the natural oxygen depleting processes present in the extensive surrounding tidal wetlands. These criteria apply June 1 through September 30 to Chesapeake Bay segments MPNTF, MPNOH, PMKTF, PMKOH and are implemented in accordance with subsection D of 9VAC25-260-185. These criteria supersede the open water criteria listed in subsection A of 9VAC25-260-185.

| Designated use | Criteria Concentration/Duration | Temporal Application | | --- | --- | --- | | Open water | 30 day mean is greater than or equal to 4.0 mg/l | June 1 - September 30 | | Instantaneous minimum is greater than or equal to 3.2 mg/l at temperatures less than 29°C Instantaneous minimum is greater than or equal to 4.3 mg/lat temperatures greater than or equal to 29°C | | |

A site-specific pH criterion of 5.0-8.0 applies to the tidal freshwater Mattaponi Chesapeake Bay segment MPNTF to reflect natural conditions.

bb. The following site-specific seasonal mean criteria should not be exceeded in the specified tidal James River segment more than twice in six years. Should consecutive exceedances of the same seasonal mean criterion occur in a waterbody segment after the effective date, January 9, 2020, of these chlorophyll a criteria, the department will examine additional lines of evidence, including the occurrence of harmful algae blooms, physicochemical monitoring and phytoplankton datasets, and fish kill reports in the evaluation of the appropriate assessment category for the waterbody segment. The department will develop guidance for inclusion in the Water Quality Assessment Guidance Manual to address evaluating the appropriate assessment category when consecutive exceedances of the same seasonal mean criterion occur. The department will determine if additional monitoring for harmful algal blooms is warranted.

| Designated Use | Chlorophyll a µ/l | Chesapeake Bay Program Segment | Temporal Application | | --- | --- | --- | --- | | Open water | 8 | JMSTF2 | March 1 - May 31 (spring) | | 10 | JMSTF1 | | | | 13 | JMSOH | | | | 7 | JMSMH | | | | 8 | JMSPH | | | | 21 | JMSTF2 | July 1 - September 30 (summer) | | | 24 | JMSTF1 | | | | 11 | JMSOH | | | | 7 | JMSMH | | | | 7 | JMSPH | | |

The following site-specific chlorophyll a concentrations at the specified duration should not be exceeded more than 10% of the time over six summer seasons in the specified area of the tidal James River. These criteria protect against aquatic life effects due to harmful algal blooms. Such effects have not been documented in the upper portion of JMSTF2 or in JMSOH.

| Chlorophyll a µg/l | Chesapeake Bay Program Segment | Spatial Application | Duration | | --- | --- | --- | --- | | -- | JMSTF2 | Upstream boundary of JMSTF2 to river mile 95 | -- | | 52 | JMSTF2 | River mile 95 to downstream boundary of JMSTF2 | 1-month median | | 52 | JMSTF1 | Upstream boundary of JMSTF1 to river mile 67 | 1-month median | | 34 | JMSTF1 | River mile 67 to downstream boundary of JMSTF1 | 1-month median | | -- | JMSOH | Entire segment | -- | | 59 | JMSMH | Entire segment | 1-day median | | 20 | JMSPH | Entire segment | 1-day median |

(1) The site-specific numerical chlorophyll a criteria apply to the tidal James River segments (excludes tributaries) JMSTF2, JMSTF1, JMSOH, JMSMH, and JMSPH, the boundaries of which are described in EPA 903-R-05-004.

(2) For segments JMSOH, JMSMH, and JMSPH, the median of same-day samples collected one meter or less in a segment should be calculated to represent the chlorophyll a expression of a segment over that day, and the median of same-month chlorophyll a values should be calculated to represent the chlorophyll a expression of a segment over that month. The seasonal geometric mean shall be calculated from the monthly chlorophyll a values for a segment.

(3) For segment JMSTF2, chlorophyll a data collected in the "upper zone" (from the upstream boundary at the fall line to approximately river mile 95 (N37° 23' 15.27" / W77° 18' 45.05" to N37° 23' 19.31" / W77° 18' 54.03")) should be pooled, in the manner described in subdivision bb (2) of this section, separately from chlorophyll a data collected in the "lower zone" (from river mile 95 to the downstream boundary of JMSTF2). The seasonal geometric mean for each of these zones should be calculated from their respective monthly chlorophyll a values. To calculate the seasonal segment-wide geometric mean, an area-weighted average of the zonal geometric means should be calculated using the following equation:

Upper Zone Geometric Mean x 0.41 + Lower Zone Geometric Mean x 0.59

(4) For segment JMSTF1, chlorophyll a data collected in the "upper zone" (from the upstream boundary of JMSTF1 to approximately river mile 67 (N37° 17' 46.21" / W77° 7' 9.55" to N37° 18' 58.94" / W77° 6' 57.14")) should be pooled, in the manner described in subdivision bb (2) of this section, separately from chlorophyll a data collected in the "lower zone" (between river mile 67 to the downstream boundary of JMSTF1). The seasonal geometric mean for each of these zones should be calculated from their respective monthly chlorophyll a values. To calculate the seasonal segment-wide geometric mean, an area-weighted average of the zonal geometric means should be calculated using the following equation:

Upper Zone Geometric Mean x 0.49 + Lower Zone Geometric Mean x 0.51

cc. For Mountain Lake in Giles County, chlorophyll a shall not exceed 6 µg/L at a depth of six meters and orthophosphate-P shall not exceed 8 µg/L at a depth of one meter or less.

dd. For Lake Drummond, located within the boundaries of Chesapeake and Suffolk in the Great Dismal Swamp, chlorophyll a shall not exceed 35 µg/L and total phosphorus shall not exceed 40 µg/L at a depth of one meter or less.

ee. Maximum temperature for these seasonally stockable trout waters is 26°C and applies May 1 through October 31.

ff. Maximum temperature for these seasonally stockable trout waters is 28°C and applies May 1 through October 31.

gg. Little Calfpasture River from the Goshen Dam to 0.76 miles above its confluence with the Calfpasture River has a stream condition index (A Stream Condition Index for Virginia Non-Coastal Streams, September 2003, Tetra Tech, Inc.) of at least 20.5 to protect the subcategory of aquatic life that exists in this river section as a result of the hydrologic modification. From 0.76 miles to 0.02 miles above its confluence with the Calfpasture River, aquatic life conditions are expected to gradually recover and meet the general aquatic life uses at 0.02 miles above its confluence with the Calfpasture River.

hh. Maximum temperature for these seasonally stockable trout waters is 31°C and applies May 1 through October 31.

ii. In the wadeable portions of the mainstem sections of the Shenandoah River, North Fork Shenandoah River, and South Fork Shenandoah River listed in the table in this subdivision, a determination of persistent nuisance filamentous algae impeding the recreation use should be made when exceedances of either of the specified benthic chlorophyll-a concentration thresholds occur in more than one recreation season (May 1 to October 31) in three years. "Wadeable" constitutes a stream that can be crossed and sampled safely during a given sampling event occurring within the recreation season.

| Segment | Two-Month Median (mg/m²) | Seasonal Median (mg/m²) | | --- | --- | --- | | Shenandoah River from its confluence of the North Fork and South Fork Shenandoah Rivers downstream to the Virginia-West Virginia state line | 150 | 100 | | North Fork Shenandoah River from its confluence with Fort Run downstream to its confluence with the South Fork Shenandoah River | 150 | 100 | | South Fork Shenandoah River from its confluence with the North and South Rivers downstream to its confluence with the North Fork Shenandoah River | 150 | 100 |

jj. The selenium chronic criteria for the protection of freshwater aquatic life apply in the following waters:

Knox Creek watershed in Buchanan County:

(1) Race Fork and tributaries.

(2) Pounding Mill Creek and tributaries.

(3) Right Fork of Lester Fork and tributaries.

(4) Abners Fork and tributaries.

| Media Type | Fish Tissue¹ | Water Column⁴ | | | | --- | --- | --- | --- | --- | | Criterion Element | Egg-ovary² | Fish Whole-body or Muscle³ | Monthly Average Exposure | Intermittent Exposure⁵ | | Magnitude | 15.1 mg/kg dw | 8.5 mg/kg dw whole-body or 11.3 mg/kg dw muscle (skinless, boneless filet) | 1.5 µg/L in lentic aquatic systems 3.1 µg/L in lotic aquatic systems | WQC_int = (WQC_30-day - C_bkgrnd(1-f_int))/ f_int | | Duration | Instantaneous measurement⁶ | Instantaneous measurement⁶ | 30 days | Number of days/month with an elevated concentration | | Frequency | Not to be exceeded | Not to be exceeded | Not more than once in three years on average | Not more than once in three years on average | | mg/kg dw = milligrams per kilogram dry weight | | | | | | 1. Fish tissue elements are expressed as steady state. 2. Egg-ovary supersedes any whole-body, muscle, or water column element when fish egg-ovary concentrations are measured , except as noted in footnote 4. 3. Fish whole-body or muscle tissue supersedes water column element when both fish tissue and water concentrations are measured , except as noted in footnote 4. 4. Water column values are based on dissolved total selenium in water and are derived from fish tissue values via bioaccumulation modeling. When selenium inputs are increasing, water column values are the applicable criterion element in the absence of steady-state condition fish tissue data. In fishless waters, compliance may be assessed using methods consistent with Aquatic Life Ambient Water Quality Criterion for Selenium – Freshwater, EPA-822-R-21-006. 5. Where WQC_30-day is the water column monthly element for either lentic (still) or lotic (flowing) waters; C_bkgrnd is the average background selenium concentration; and f_intis the fraction of any 30-day period during which elevated selenium concentrations occur, with f_intassigned a value greater than or equal to 0.033 (corresponding to one day). 6. Fish tissue data provide instantaneous point measurements that reflect integrative accumulation of selenium over time and space in fish populations at a given site. | | | | |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq.; 40 CFR 131.
• Historical Notes: Derived from VR680-21-07.1, eff. May 20, 1992; amended July 1, 1992; amended, Virginia Register Volume 13, Issue 12, eff. April 2, 1997; Volume 14, Issue 4, eff. December 10, 1997; Volume 19, Issue 23, eff. August 27, 2003; Volume 20, Issue 9, eff. February 12, 2004; Volume 22, Issue 11, eff. January 12, 2006; Volume 24, Issue 4, eff. August 14, 2007; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 36, Issue 11, eff. January 9, 2020; Errata, 36:22 VA.R. 2411 June 22, 2020; Volume 39, Issue 9, eff. April 18, 2023; Volume 41, Issue 23, eff. September 25, 2025; Errata, 42:3 VA.R. 473 September 22, 2025.

9VAC25-260-320 (Repealed.)

History

• Historical Notes: Derived from VR680-21-07.2, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; repealed, Volume 26, Issue 12, eff. February 1, 2010.

Part VIII Nutrient Enriched Waters

9VAC25-260-330 Purpose

The board recognizes that nutrients are contributing to undesirable growths of aquatic plant life in surface waters of the Commonwealth. This standard establishes a designation of "nutrient enriched waters". Designations of surface waters of the Commonwealth as "nutrient enriched waters" are determined by the board based upon an evaluation of the historical water quality data for one or more of the following indicators of nutrient enrichment: chlorophyll "a" concentrations, dissolved oxygen fluctuations, and concentrations of total phosphorus.

History

• Statutory Authority: §§ 62.1-44.15(3) and (10) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-07.3-1, eff. May 20, 1992.

9VAC25-260-340 (Repealed.)

Historical Notes

Derived from VR680-21-07.3-2, eff. May 20, 1992; repealed, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-260-350 Designation of nutrient enriched waters

A. The following state waters are hereby designated as "nutrient enriched waters":

1. Smith Mountain Lake and all tributaries* of the impoundment upstream to their headwaters;

2. (Repealed.)

3. (Repealed.)

4. New River and its tributaries, except Peak Creek above Interstate 81, from Claytor Dam upstream to Big Reed Island Creek (Claytor Lake).

5. Peak Creek from its headwaters to its mouth (confluence with Claytor Lake), including all tributaries to their headwaters;

6. through 20. (Repealed.)

7. Tidal freshwater Blackwater River from the Norfolk and Western railway bridge at Burdette, Virginia, and tidal freshwater Nottoway River from the Norfolk and Western railway bridge at Courtland, Virginia, to the state line, including all tributaries to their headwaters that enter the tidal freshwater portions of the Blackwater River and the Nottoway River; and

8. (Repealed.)

B. Whenever any water body is designated as "nutrient enriched waters," the board shall modify the VPDES permits of point source dischargers into the "nutrient enriched waters" as provided in the board's Policy for Nutrient Enriched Waters (9VAC25-40).

*When the word "tributaries" is used in this standard, it does not refer to the mainstem of the water body that has been named.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-07.3-3, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Virginia Register Volume 16, Issue 17, eff. June 7, 2000; Volume 21, Issue 23, eff. June 24, 2005; Volume 26, Issue 12, eff. February 1, 2010.

Part IX River Basin Section Tables

9VAC25-260-360 Section number and description columns

A. Basin descriptions. The tables that follow divide the state's surface waters into 10 river basins, some with subbasins: Potomac River Basin (Potomac and Shenandoah Subbasins), James River Basin (Appomattox River Subbasin), Rappahannock River Basin, Roanoke River Basin, Yadkin River Basin, Chowan and Dismal Swamp Basin (Chowan and Albemarle Sound Subbasins), Tennessee and Big Sandy Basins (Big Sandy, Clinch and Holston Subbasins), Chesapeake Bay, Atlantic Ocean and Small Coastal Basin, York River Basin and New River Basin. (See Figure 2.)

Figure 2.

Each basin is further divided into sections. Each section is assigned a class, represented by Roman Numerals I through VII, based on its geographic location or, in the case of trout waters, on its use. Descriptions of these classes are found in 9VAC25-260-50.

B. Potomac water supplies (raw water intakes). The Leesburg and County of Fairfax intakes in the Potomac are in Maryland waters and the board cannot adopt the public water supply criteria in 9VAC25-260-140 B to apply at the raw water intake points. However, applications to discharge into, or otherwise alter the physical, chemical, or biological properties of Virginia waters within an area five miles upstream of the intake will be reviewed on a case-by-case basis to ensure that they will protect the water supply. Basin sections where this would be applicable are shown with an asterisk (*) in the basin and section description columns.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.1, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-370 Classification column

A. DO, pH and temperature criteria. The classification column defines the class of waters to which the basin section belongs in accordance with the class descriptions given in 9VAC25-260-50. 9VAC25-260-50 defines the state's seven classes (I through VII) and the dissolved oxygen (DO), pH and maximum temperature that apply to each class. By finding the class of waters for a basin section in the classification column and referring to 9VAC25-260-50, the DO, pH and maximum temperature criteria can be found for each basin section.

B. DGIF trout waters. The Department of Game and Inland Fisheries (DGIF) has established a classification system for trout waters based on aesthetics, productivity, resident fish population and stream structure. Classes i through iv rate wild trout habitat; Classes v through viii rate cold water habitat not suitable for wild trout but adequate for year-round hold-over of stocked trout. The DGIF classification system is included in this publication with the board's trout water classes (Class V—Stockable trout waters and Class VI—Natural trout waters) in the class column of the River Basin Section Tables 9VAC25-260-390 et seq.

DGIF trout water classifications which are not consistent with board classifications for stockable trout waters or natural trout waters are shown with a double asterisk () in the class column of the River Basin Section Tables 9VAC25-260-390 et seq. These trout waters have been identified for reevaluation by the DGIF. Those trout waters which have no DGIF classification are shown with a triple asterisk (*). The DGIF classes are described below. Inclusion of these DGIF classes provides additional information about specific streams for permit writers and other interested persons. Trout waters classified as classes i or ii by the DGIF are also recognized in 9VAC25-260-110.

DGIF STREAM CLASS DESCRIPTIONS.

Wild natural trout streams.

Class i. Stream of outstanding natural beauty possessing wilderness or at least remote characteristics, an abundance of large deep pools, and excellent fish cover. Substrate is variable with an abundance of coarse gravel and rubble. Stream contains a good population of wild trout or has the potential for such. Would be considered an exceptional wild trout stream.

Class ii. Stream contains a good wild trout population or the potential for one but is lacking in aesthetic quality, productivity, and/or in some structural characteristic. Stream maintains good water quality and temperature, maintains at least a fair summer flow, and adjacent land is not extensively developed. Stream would be considered a good wild trout stream and would represent a major portion of Virginia's wild trout waters.

Class iii. Stream which contains a fair population of wild trout with carrying capacity depressed by natural factors or more commonly man-related landuse practices. Land use activities may result in heavy siltation of the stream, destruction of banks and fish cover, water quality degradation, increased water temperature, etc. Most streams would be considered to be in the active state of degradation or recovery from degradation. Alteration in landuse practices would generally improve carrying capacity of the stream.

Class iv. Stream which contains an adequately reproducing wild trout population but has severely reduced summer flow characteristics. Fish are trapped in isolated pools where they are highly susceptible to predators and fishermen. Such streams could quickly be over-exploited and, therefore, provide difficult management problems.

Stockable trout streams.

Class v. Stream does not contain an adequately reproducing wild trout population nor does it have the potential for such. However, water quality is adequate, water temperature is good, and invertebrate productivity is exceptional. Pools are abundant with good size and depth and fish cover is excellent. Stream would be good for stocked trout but may offer more potential for a fingerling stocking program.

Class vi. Stream does not contain a significant number of trout nor a significant population of warmwater gamefish. Water quality is adequate and water temperature good for summer carryover of stocked trout. Summer flow remains fair and adjacent land is not extensively developed. All streams in this class would be considered good trout stocking water.

Class vii. Stream does not contain a significant number of trout nor a significant population of warmwater gamefish. Water quality and temperature are adequate for trout survival but productivity is marginal as are structural characteristics. Streams in this class could be included in a stocking program but they would be considered marginal and generally would not be recommended for stocking.

Class viii. Stream does not contain a significant number of trout nor a significant population of warmwater gamefish. Water quality and temperature are adequate for trout but summer flows are very poor (less than 30% of channel). Streams in this class can provide good trout fishing during spring and early summer but would not be recommended for summer or fall stocking.

Other. Remaining streams would be considered unsuitable for any type of trout fishery. Streams would be considered unsuitable under any of the following conditions:

(a) summer temperatures unsuitable for trout survival;

(b) stream contains a significant population of warmwater gamefish;

(c) insufficient flow; or

(d) intolerable water quality.

History

• Statutory Authority: § 62.1-44.15(3a) of the Code of Virginia.
• Historical Notes: Derived from VR680-21-08.2, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998.

9VAC25-260-380 Special standards column

A. Bacteria criteria. All surface waters have criteria for fecal coliform bacteria. The bacteria criteria for shellfish waters are set forth in 9VAC25-260-160; the criteria applying to recreational waters are found in 9VAC25-260-170. The letter "a" in the special standards column next to a river basin section indicates that there are shellfish waters somewhere within that section and the bacteria criteria for shellfish waters applies to those shellfish waters. (It should be noted that even though the column contains the letter "a" the entire section may not be shellfish waters.)

B. Natural variation. In some cases natural water quality does not fall within the criteria set by these standards. (For example streams in some areas of the state may naturally exceed the usual pH range of 6.0 to 9.0.) In these instances the board may have set more appropriate criteria that reflect natural quality, and this special limit is shown in the special standards column.

C. Additional requirements. In other cases the basic water quality parameters of DO, pH, temperature, and bacteria have not been sufficient to protect water quality in certain areas, and effluent limits or treatment requirements have been established for these areas. This fact is also indicated in the special standards column. If the applicable standard was too long to print in its entirety in that column, the column contains only a lower case letter, and the standard itself will be found in the special standards 9VAC25-260-310 under that letter.

D. Other special standards or designations.

1. Public water supplies (PWS). Sections that are public water supplies are indicated in the special standards column with a PWS. This designation indicates that additional criteria are applicable in this section. See 9VAC25-260-140 B for applicable criteria. Taste and odor criteria to maintain acceptable taste, odor or aesthetic quality of drinking water apply at the drinking water intake.

2. Nutrient enriched waters (NEW). If a section contains a waterbody that has been designated as nutrient enriched in 9VAC25-260-350, the special standards column indicates this with the letters "NEW-" followed by a number. The appropriate waterway can be found listed in 9VAC25-260-350. The entire section is not necessarily nutrient enriched, only that portion specifically listed in 9VAC25-260-350.

3. Exceptional state waters (ESW). If a section contains a waterbody that has been designated as exceptional state waters in 9VAC25-260-30 A 3 the special standard column indicates this with ESW followed by a number. The appropriate waterway can be found listed in 9VAC25-260-30 A 3 c. The entire section within the basin table is not necessarily designated as exceptional state waters, only that portion specifically listed in 9VAC25-260-30 A 3 c.

4. If a section contains a waterbody that has been assigned a special standard (indicated by lower case letters in the special standards column), the appropriate waterway can be found listed in 9VAC25-260-310. The special standard does not necessarily apply to the entire section, only that portion specifically listed in 9VAC25-260-310.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.3, eff. May 20, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-390 Potomac River Basin (Potomac River Subbasin)

Potomac River Subbasin

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | II | a | Tidal tributaries of the Potomac River from Smith Point to Upper Machodoc Creek (Baber Point). | | 1a | III | | All free flowing portions of tributaries to the Potomac River from Smith Point to the Route 301 Bridge in King George County unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 1a | | | | | Mattox Creek and its tributaries from the head of tidal waters to their headwaters. | | | | | Monroe Creek and tributaries from the head of tidal waters at Route 658 to their headwaters. | | | | | Pine Hill Creek and its tributaries from the confluence with Rosier Creek to their headwaters. | | | | | Popes Creek and Canal Swamp (a tributary to the tidal portion of Popes Creek) and their tributaries from the head of tidal waters to their respective headwaters. | | 1b | III | b | All free flowing portions of tributaries to the Potomac River from the Route 301 Bridge in King George County to, and including, Potomac Creek, unless otherwise designated in this chapter. | | 1c | III | PWS,b | Potomac Creek and its tributaries from the Stafford County water supply dam (Abel Lake Reservoir) to their headwaters. | | 2 | II | a | Tidal Upper Machodoc Creek and the tidal portions of its tributaries. | | 2a | III | | Free flowing portions of Upper Machodoc Creek and its tributaries. | | 3 | II | b | Tidal portions of the tributaries to the Potomac River from the Route 301 Bridge in King George County to Marlboro Point. | | 4 | II | b | Tidal portions of the tributaries to the Potomac River from Marlboro Point to Brent Point (to include Aquia Creek and its tributaries). | | 4a | III | b | Free flowing portions of tributaries to the Potomac River in Section 4 up to the Aquia Sanitary District Water Impoundment. | | 4b | III | PWS,b | Aquia Creek from the Aquia Sanitary District Water Impoundment, and other tributaries into the impoundment, including Beaverdam Run and the Lunga Reservoir upstream to their headwaters. | | 5 | II | b | Tidal portions of tributaries to the Potomac River from Brent Point to Shipping Point, including tidal portions of Chopawamsic Creek and its tidal tributaries. | | 5a | III | b | Free flowing portions of Chopawamsic Creek and its tributaries upstream to Quantico Marine Base water supply dam. | | 5b | III | PWS,b | Chopawamsic Creek and its tributaries above the Quantico Marine Base water supply intakes at the Gray and Breckenridge Reservoirs to their headwaters. | | 6 | II | b | Tidal portions of tributaries to the Potomac River from Shipping Point to Chain Bridge. | | 7 | III | b | Free flowing portions of tributaries to the Potomac River from Shipping Point to Chain Bridge, unless otherwise designated in this chapter. | | 7a | III | g | Occoquan River and its tributaries to their headwaters above Fairfax County Water Authority's water supply impoundment, unless otherwise designated in this chapter. | | 7b | III | PWS,g | The impounded waters of Occoquan River above the water supply dam of the Fairfax County Water Authority to backwater of the impoundment on Bull Run and Occoquan River, and the tributaries of Occoquan above the dam to points 5 miles above the dam. | | 7c | III | PWS,g | Broad Run and its tributaries above the water supply dam of the City of Manassas upstream to points 5 miles above the dam. | | 7d | | | (Deleted) | | 7e | III | PWS,g | Cedar Run and its tributaries from the Town of Warrenton's raw water intake to points 5 miles upstream (Fauquier County). | | 7f | III | PWS,g | The Quantico Marine Base Camp Upshur and its tributaries' raw water intake on Cedar Run (located approximately 0.2 mile above its confluence with Lucky Run) to points 5 miles upstream. | | 7g | III | PWS,g | The proposed impounded waters of Licking Run above the multiple purpose impoundment structure in Licking Run near Midland (Fauquier County) upstream to points 5 miles above the proposed impoundment. | | 7h | III | PWS,g | The proposed impounded waters of Cedar Run above the proposed multiple purpose impoundment structure on the main stem of Cedar Run near Auburn (Fauquier County), to points 5 miles above the impoundment. | | 8 | III | PWS | Tributaries to the Potomac River in Virginia between Chain Bridge and the Monacacy River from their confluence with the Potomac upstream 5 miles, to include Goose Creek to the City of Fairfax's raw water intake, unless otherwise designated in this chapter. | | 8a | VI | PWS | Big Spring Creek and its tributaries in Loudoun County, from its confluence with the Potomac River upstream to their headwaters. (The temperature standard for natural trout water may be exceeded in the area above Big Spring and Little Spring at Routes 15 and 740 due to natural conditions). This section was given a PWS designation due to the Town of Leesburg's intake on the Potomac as referenced in Section 8b. | | | iii | | Big Spring Creek from its confluence with the Potomac River upstream to Big Spring. | | 8b | III | PWS | Those portions of Virginia tributaries into the Potomac River that are within a 5 mile distance upstream of the Town of Leesburg's intake on the Potomac River, unless otherwise designated in this chapter.* | | 8c | III | PWS | Those portions of Virginia tributaries into the Potomac River that are within a 5 mile distance upstream of the County of Fairfax's intake on the Potomac River.* | | 9 | III | | Broad Run, Sugarland Run, Difficult Run, Tuscarora Creek, Sycolin Creek, and other streams tributary to streams in Section 8 from a point 5 miles above their confluence with the Potomac River to their headwaters, unless otherwise designated in this chapter. | | 9a | III | PWS | All the impounded water of Goose Creek from the City of Fairfax's water supply dam upstream to backwater, and its tributaries above the dam to points 5 miles above the dam. | | 9b | III | PWS | The Town of Round Hill's (inactive-early 1980s) raw water intake at the Round Hill Reservoir, and including the two spring impoundments located northwest of the town on the eastern slope of the Blue Ridge Mountains. | | 9c | III | PWS | Unnamed tributary to Goose Creek, from Camp Highroad's (inactive-late 1980s) raw water intake (Loudoun County) located in an old quarry to its headwaters. | | 9d | III | PWS | Sleeter Lake (Loudoun County). | | 10 | III | | Tributaries of the Potomac River from the Monacacy River to the West Virginia-Virginia state line in Loudoun County, from their confluence with the Potomac River upstream to their headwaters, unless otherwise designated in this chapter. | | 10a | III | PWS | North Fork Catoctin Creek and its tributaries from Purcellville's raw water intake to their headwaters. | | 10b | III | | South Fork Catoctin Creek and its tributaries from its confluence with the North Fork Catoctin Creek to its headwaters. | | 11 | IV | pH-6.5-9.5 | Tributaries of the Potomac River in Frederick and Clarke Counties, Virginia, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 11 | | | *** | pH-6.5-9.5 | Back Creek (upper) from Rock Enon 4 miles upstream. | | | *** | pH-6.5-9.5 | Back Creek (lower) from Route 600 to the mouth of Hogue Creek - 2 miles. | | | *** | hh | Hogue Creek from Route 679 upstream 6 miles to the Forks below Route 612. | | | vi | pH-6.5-9.5 | Opequon Creek (in Frederick County) from its confluence with Hoge Run upstream to the point at which Route 620 first crosses the stream. | | | vi | pH-6.5-9.6 | Turkey Run (Frederick County) from its confluence with Opequon Creek 3.6 miles upstream. | | | VI | | Natural Trout Waters in Section 11 | | | ii | pH-6.5-9.5 | Bear Garden Run from its confluence with Sleepy Creek 3.1 miles upstream. | | | iii | pH-6.5-9.5 | Redbud Run from its confluence with Opequon Creek 4.4 miles upstream. | | 11a | IV | pH-6.5-9.5 | Hot Run and its tributaries from its confluence with Opequon Creek to its headwaters. | | | V | | Stockable Trout Waters in Section 11a | | | vi | pH-6.5-9.5 | Clearbrook Run from its confluence with Hot Run 2.1 miles upstream. | | 12 | IV | ESW-6 | South Branch Potomac River and its tributaries, such as Strait Creek, and the North Fork River and its tributaries from the Virginia-West Virginia state line to their headwaters. | | | V | | Stockable Trout Waters in Section 12 | | | vi | | Frank Run from its confluence with the South Branch Potomac River 0.8 mile upstream. | | | vii | pH-6.5-9.5 | South Branch Potomac River (in Highland County) from 69.2 miles above its confluence with the Potomac River 4.9 miles upstream. | | | VI | | Natural Trout Waters in Section 12 | | | ii | | Blights Run from its confluence with Laurel Fork (Highland County) upstream including all named and unnamed tributaries. | | | ii | | Buck Run (Highland County) from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | ii | | Collins Run from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | ii | | Laurel Fork (Highland County) from 1.9 miles above its confluence with the North Fork South Branch Potomac River upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Laurel Run (Highland County) from its confluence with Strait Creek upstream including all named and unnamed tributaries. | | | ii | | Locust Spring Run from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | ii | | Lost Run from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | ii | | Mullenax Run from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | ii | | Newman Run from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | ii | | Slabcamp Run from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Strait Creek (Highland County) from its confluence with the South Branch Potomac River upstream to the confluence of West Strait Creek. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.4, eff. May 20, 1992; amended, Virginia Register Volume 13, Issue 12, eff. April 2, 1997; Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Virginia Register Volume 19, Issue 23, eff. August 27, 2003; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-400 Potomac River Basin (Shenandoah River Subbasin)

Shenandoah River Subbasin

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | IV | pH-6.5-9.5, ii | Shenandoah River and its tributaries in Clarke County, Virginia, from the Virginia-West Virginia state line to Lockes Landing, unless otherwise designated in this chapter. | | 1a | IV | PWS pH-6.5-9.5, ii | Shenandoah River and its tributaries from river mile 24.66 (latitude 39°16'19"; longitude 77°54'33") approximately 0.7 mile downstream of the confluence of the Shenandoah River and Dog Run to 5 miles above Berryville's raw water intake, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 1a | | | vi | pH-6.5-9.5 | Chapel Run (Clarke County) from its confluence with the Shenandoah River 5.7 miles upstream. | | | vi | pH-6.5-9.5 | Spout Run (Clarke County) from its confluence with the Shenandoah River (in the vicinity of the Ebenezer Church at Route 604) to its headwaters. | | 1b | | | (Deleted) | | 1c | IV | pH-6.5-9.5, ii | Shenandoah River and its tributaries from a point 5 miles above Berryville's raw water intake to the confluence of the North and South Forks of the Shenandoah River. | | | VI | | Natural Trout Waters in Section 1c | | | iii | pH-6.5-9.5 | Page Brook from its confluence with Spout Run, 1 mile upstream. | | | *** | pH-6.5-9.5 | Roseville Run (Clarke County) from its confluence with Spout Run upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Spout Run (Clarke County) from its confluence with the Shenandoah River (in the vicinity of Calmes Neck at Routes 651 and 621), 3.9 miles upstream. | | | *** | pH-6.5-9.5 | Westbrook Run (Clarke County) from its confluence with Spout Run upstream including all named and unnamed tributaries. | | 1d | | | (Note: Moved to Section 2b). | | 2 | IV | ESW-14, 15, ii | South Fork Shenandoah River from its confluence with the North Fork Shenandoah River, upstream to a point 5 miles above the Town of Shenandoah's raw water intake and its tributaries to their headwaters in this section, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 2 | | | vii | pH-6.5-9.5 | Bear Lithia Spring from its confluence with the South Fork Shenandoah River 0.8 miles upstream. | | | vi | pH-6.5-9.5 | Flint Run from its confluence with the South Fork Shenandoah River 4 miles upstream. | | | *** | pH-6.5-9.5 | Gooney Run from the mouth to its confluence with Broad Run above Browntown (in the vicinity of Route 632). | | | *** | pH-6.5-9.5, hh | Hawksbill Creek from Route 675 in Luray to 1 mile above Route 631. | | | VI | | Natural Trout Waters in Section 2 | | | ii | pH-6.5-9.5 | Big Creek (Page County) from its confluence with the East Branch Naked Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Big Ugly Run from its confluence with the South Branch Naked Creek upstream including all named and unnamed tributaries. | | | ii | | Boone Run from 4.6 miles above its confluence with the South Fork Shenandoah River (in the vicinity of Route 637) upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Browns Run from its confluence with Big Run upstream including all named and unnamed tributaries. | | | ii | | Cub Run (Page County) from Pitt Spring Run upstream including all named and unnamed tributaries. | | | *** | pH-6.5-9.5 | Cub Run from its mouth to Pitt Spring Run. | | | i | pH-6.5-9.5 | East Branch Naked Creek from its confluence with Naked Creek at Route 759 upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Fultz Run from the Park boundary (river mile 1.8) upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Gooney Run (Warren County) from 6.6 miles above its confluence with the South Fork Shenandoah River 3.9 miles upstream. | | | ii | pH-6.5-9.5 | Hawksbill Creek in the vicinity of Pine Grove at Route 624 (river mile 17.7) 1.5 miles upstream. | | | ii | pH-6.5-9.5 | Jeremys Run from the Shenandoah National Park boundary upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Lands Run from its confluence with Gooney Run upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Little Creek (Page County) from its confluence with Big Creek upstream including all named and unnamed tributaries. | | | i | pH-6.5-9.5 | Little Hawksbill Creek from Route 626 upstream including all named and unnamed tributaries. | | | ii | | Morgan Run (Page County) from its confluence with Cub Run upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Overall Run from its confluence with the South Fork Shenandoah River 4.8 miles upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Pass Run (Page County) from its confluence with Hawksbill Creek upstream including all named and unnamed tributaries. | | | ii | | Pitt Spring Run from its confluence with Cub Run upstream including all named and unnamed tributaries. | | | ii | | Roaring Run from its confluence with Cub Run upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | South Branch Naked Creek from 1.7 miles above its confluence with Naked Creek (in the vicinity of Route 607) upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Stony Run (Page County) from 1.6 miles above its confluence with Naked Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | West Branch Naked Creek from 2.1 miles above its confluence with Naked Creek upstream including all named and unnamed tributaries. | | 2a | IV | PWS, pH-6.5-9.5 | Happy Creek and Sloan Creek from Front Royal's raw water intake to its headwaters. | | 2b | IV | PWS, ii | The South Fork Shenandoah River and its tributaries from the Town of Front Royal's raw water intake (at the State Route 619 bridge at Front Royal) to points 5 miles upstream. | | 2c | | | (Deleted) | | 2d | | | (Deleted) | | | V | | Stockable Trout Waters in Section 2d | | | VI | | Natural Trout Waters in Section 2d | | 3 | IV | pH-6.5-9.5, ESW-12,16, ii | South Fork Shenandoah River from 5 miles above the Town of Shenandoah's raw water intake to its confluence with the North and South Rivers and its tributaries to their headwaters in this section, and the South River and its tributaries from its confluence with the South Fork Shenandoah River to their headwaters, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 3 | | | vi | pH-6.5-9.5 | Hawksbill Creek (Rockingham County) from 0.8 mile above its confluence with the South Fork Shenandoah River 6.6 miles upstream. | | | vi | pH-6.5-9.5 | Mills Creek (Augusta County) from 1.8 miles above its confluence with Back Creek 2 miles upstream. | | | vi | pH-6.5-9.5 | North Fork Back Creek (Augusta County) from its confluence with Back Creek 2.6 miles upstream, unless otherwise designated in this chapter. | | | VI | | Natural Trout Waters in Section 3 | | | i | pH-6.5-9.5 | Bearwallow Run from its confluence with Onemile Run upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Big Run (Rockingham County) from 3.3 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Cold Spring Branch (Augusta County) from Sengers Mountain Lake (Rhema Lake) upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Cool Springs Hollow (Augusta County) from Route 612 upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Deep Run (Rockingham County) from 1.8 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | East Fork Back Creek from its confluence with the South Fork Back Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Gap Run from 1.7 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | iii | | Inch Branch (Augusta County) from the dam upstream including all named and unnamed tributaries. | | | ii | | Johns Run (Augusta County) from its confluence with the South River upstream including all named and unnamed tributaries. | | | iv | | Jones Hollow (Augusta County) from 1.1 miles above its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | | Kennedy Creek from its confluence with the South River upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Lee Run from 0.6 mile above its confluence with Elk Run 3.3 miles upstream. | | | iii | pH-6.5-9.5 | Loves Run (Augusta County) from 2.7 miles above its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Lower Lewis Run (Rockingham County) from 1.7 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Madison Run (Rockingham County) from 2.9 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Meadow Run (Augusta County) from its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | North Fork Back Creek (Augusta County) from river mile 2.6 (in the vicinity of its confluence with Williams Creek) upstream including all named and unnamed tributaries. | | | i | pH-6.5-9.5 | Onemile Run (Rockingham County) from 1.5 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | iv | | Orebank Creek from its confluence with Back Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Paine Run (Augusta County) from 1.7 miles above its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | | Robinson Hollow (Augusta County) from the dam upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Rocky Mountain Run from its confluence with Big Run upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Sawmill Run from 2.5 miles above its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | South Fork Back Creek from its confluence with Back Creek at Route 814 (river mile 2.1) upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Stony Run (Augusta County) from 3.5 miles above its confluence with the South River upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Stony Run (Rockingham County) from 4.1 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | iii | | Toms Branch (Augusta County) from 1.1 miles above its confluence with Back Creek upstream including all named and unnamed tributaries. | | | i | pH-6.5-9.5 | Twomile Run from 1.4 miles above its confluence with the South Fork Shenandoah River upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Upper Lewis Run from 0.5 mile above its confluence with Lower Lewis Run upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | West Swift Run (Rockingham County) from the Route 33 crossing upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Whiteoak Run from its confluence with Madison Run upstream including all named and unnamed tributaries. | | 3a | IV | pH-6.5-9.5 | South River from the former location of the dam above Waynesboro . | | 3b | IV | PWS | Coles Run and Mills Creek from South River Sanitary District's raw water intake to their headwaters. | | | VI | PWS | Natural Trout Waters in Section 3b | | | ii | | Coles Run (Augusta County) from 3.9 miles above its confluence with the South River Sanitary District's raw water intake (Coles Run Dam) upstream including all named and unnamed tributaries. | | | ii | | Mills Creek (Augusta County) from the South River Sanitary District's raw water intake (river mile 3.8) upstream including all named and unnamed tributaries. | | 3c | IV | PWS pH-6.5-9.5 | A tributary to Coles Run from Stuarts Draft raw water intake approximately 0.5 mile south of Stuarts Draft and just off Route 610, to its headwaters. | | 3d | IV | PWS | South Fork Shenandoah River and its tributaries from the City of Harrisonburg water supply intake near the confluence of Big Run to points 5 miles upstream. | | 4 | IV | pH-6.5-9.5 | Middle River and its tributaries from the confluence with the North River upstream to its headwaters, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 4 | | | v | pH-6.5-9.5 | Barterbrook Branch from its confluence with Christians Creek 2.8 miles upstream. | | | *** | pH-6.5-9.5 | East Dry Branch from its confluence with the Buffalo Branch to its confluence with Mountain Run. | | | vi | pH-6.5-9.5 | Folly Mills Creek from 2.4 miles above its confluence with Christians Creek (in the vicinity of Route 81) 4.5 miles upstream. | | | VI | | Natural Trout Waters in Section 4 | | | iv | | Buffalo Branch from Route 703 upstream including all named and unnamed tributaries. | | | ii | | Cabin Mill Run (Augusta County) from the Camp Shenandoah Boy Scout Lake upstream including all named and unnamed tributaries. | | | iv | | East Dry Branch (Augusta County) from the confluence of Mountain Run upstream including all named and unnamed tributaries. | | | iv | | Jennings Branch (Augusta County) from the confluence of White Oak Draft upstream including all named and unnamed tributaries. | | 4a | IV | PWS pH-6.5-9.5 | Middle River and its tributaries from Staunton's raw water intake at Gardner Spring to points 5 miles upstream. | | 5 | IV | pH-6.5-9.5 | North River and its tributaries from its confluence with the South River upstream to its headwaters, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 5 | | | v | pH-6.5-9.5 | Beaver Creek (Rockingham County) from its confluence with Briery Branch to the spring at a point 2.75 miles upstream. | | | v | pH-6.5-9.5 | Naked Creek (Augusta County) from 3.7 miles above its confluence with the North River at Route 696, 2 miles upstream. | | | VI | | Natural Trout Waters in Section 5 | | | iv | | Big Run (Augusta County) from 0.9 mile above its confluence with Little River upstream including all named and unnamed tributaries. | | | ii | | Black Run (Rockingham County) from its mouth upstream including all named and unnamed tributaries. | | | iii | | Briery Branch (Rockingham County) from river mile 6.9 upstream including all named and unnamed tributaries. | | | iv | | Gum Run from its mouth upstream including all named and unnamed tributaries. | | | iii | | Hone Quarry Run from its confluence with Briery Branch upstream including all named and unnamed tributaries. | | | iv | | Little River from its confluence with the North River at Route 718 upstream including all named and unnamed tributaries. | | | iv | | Maple Spring Run from its mouth upstream including all named and unnamed tributaries. | | | iv | | Mines Run from its confluence with Briery Branch upstream including all named and unnamed tributaries. | | | iv | | Rocky Run (which is tributary to Briery Branch in Rockingham County) from its mouth upstream including all named and unnamed tributaries. | | | iii | | Rocky Run (which is tributary to Dry River in Rockingham County) from its mouth upstream including all named and unnamed tributaries. | | | ii | | Union Springs Run from 3 miles above its confluence with Beaver Creek upstream including all named and unnamed tributaries. | | | iv | | Wolf Run (Augusta County) from its confluence with Briery Branch upstream including all named and unnamed tributaries. | | 5a | IV | PWS pH-6.5-9.5 | Silver Lake | | 5b | IV | PWS pH-6.5-9.5 | North River and its tributaries from Harrisonburg's raw water intake at Bridgewater to points 5 miles above Bridgewater's raw water intake to include Dry River and Muddy Creek. | | | V | PWS | Stockable Trout Waters in Section 5b | | | v | pH-6.5-9.5 | Mossy Creek from its confluence with the North River 7.1 miles upstream. | | | v | pH-6.5-9.5 | Spring Creek (Rockingham County) from its confluence with the North River 2 miles upstream. | | 5c | IV | PWS | Dry River (Rockingham County) from Harrisonburg's raw water intake (approximately 11.7 miles above its confluence with the North River) to a point 5 miles upstream, including Skidmore Fork upstream to the headwaters of Switzer Lake, unless otherwise designated in this chapter. | | | V | PWS | Stockable Trout Waters in Section 5c | | | viii | | Raccoon Run (Rockingham County) from its confluence with Dry River to its headwaters. | | | VI | PWS | Natural Trout Waters in Section 5c | | | iv | | Dry River (Rockingham County) from Harrisonburg's raw water intake (approximately 11.7 miles above its confluence with the North River) to a point 5 miles upstream. | | | iv | | Dry Run (Rockingham County) from its confluence with Dry River upstream including all named and unnamed tributaries. | | | iv | | Hopkins Hollow from its confluence with Peach Run upstream including all named and unnamed tributaries. | | | iv | | Kephart Run from its confluence with Dry River upstream including all named and unnamed tributaries. | | 5d | VI | | Dry River and its tributaries from 5 miles above Harrisonburg's raw water intake to its headwaters. | | | V | | Stockable Trout Waters in Section 5d. | | | viii | | Switzer Lake from its dam upstream to the impoundment headwaters. | | | VI | | Natural Trout Waters in Section 5d | | | iv | | Dry River (Rockingham County) from 5 miles above Harrisonburg's raw water intake upstream including all named and unnamed tributaries. | | | ii | | Laurel Run (Rockingham County) from its confluence with Dry River upstream including all named and unnamed tributaries. | | | ii | | Little Laurel Run from its confluence with Dry River upstream including all named and unnamed tributaries. | | | ii | | Low Place Run from its confluence with Dry River upstream including all named and unnamed tributaries. | | | iv | | Miller Spring Run from its confluence with Dry River upstream including all named and unnamed tributaries. | | | iii | | Sand Run from its confluence with Dry River upstream including all named and unnamed tributaries. | | | iv | | Skidmore Fork from its confluence with Dry River upstream including all named and unnamed tributaries. This does not include Switzer Lake, which is Class V Stockable Trout Waters. | | 5e | VI | PWS | North River and its tributaries from Staunton Dam to their headwaters unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 5e | | | iii | ee | Elkhorn Lake from the dam upstream to the impoundment headwaters. | | | VI | | Natural Trout Waters in Section 5e | | | iv | | North River from the headwaters of Elkhorn Lake upstream including all named and unnamed tributaries. | | 6 | IV | pH-6.5-9.5, ii | North Fork Shenandoah River from its confluence with the Shenandoah River to its headwaters, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 6 | | | vi | pH-6.5-9.5 | Bear Run from its confluence with Foltz Creek to its headwaters. | | | vi | pH-6.5-9.5 | Bull Run (Shenandoah County) from its confluence with Foltz Creek to its headwaters. | | | vi | pH-6.5-9.5 | Falls Run from its confluence with Stony Creek to its headwaters. | | | vi | pH-6.5-9.5 | Foltz Creek from its confluence with Stony Creek to its headwaters. | | | vi | pH-6.5-9.5 | Little Passage Creek from its confluence with Passage Creek to the Strasburg Reservoir Dam. | | | *** | pH-6.5-9.5, hh | Mill Creek from Mount Jackson to Route 720 - 3.5 miles. | | | vi | pH-6.5-9.5 | Mountain Run from its mouth at Passage Creek to its headwaters. | | | *** | pH-6.5-9.5 | Passage Creek from the U.S. Forest Service line (in the vicinity of Blue Hole and Buzzard Rock) 4 miles upstream. | | | vi | pH-6.5-9.5 | Passage Creek from 29.6 miles above its confluence with the North Fork Shenandoah River to its headwaters. | | | vi | pH-6.5-9.5 | Peters Mill Run from the mouth to its headwaters. | | | *** | pH-6.5-9.5 | Shoemaker River from 612 at Hebron Church to its junction with Route 817 at its confluence with Slate Lick Branch. | | | v | pH-6.5-9.5 | Stony Creek from its confluence with the North Fork Shenandoah River to Route 682. | | | *** | pH-6.5-9.5 | Stony Creek from Route 682 above Edinburg upstream to Basye. | | | VI | | Natural Trout Waters in Section 6 | | | ii | pH-6.5-9.5 | Anderson Run (Shenandoah County) from 1.1 miles above its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | iv | | Beech Lick Run from its confluence with the German River upstream including all named and unnamed tributaries. | | | iii | | Bible Run from its confluence with Little Dry River upstream including all named and unnamed tributaries. | | | ii | | Camp Rader Run from its confluence with the German River upstream including all named and unnamed tributaries. | | | iv | | Carr Run from its confluence with Little Dry River upstream including all named and unnamed tributaries. | | | iv | | Clay Lick Hollow from its confluence with Carr Run upstream including all named and unnamed tributaries. | | | iv | | Gate Run from its confluence with Little Dry River upstream including all named and unnamed tributaries. | | | iv | | German River (Rockingham County) from its confluence with the North Fork Shenandoah River at Route 820 upstream including all named and unnamed tributaries. | | | ii | | Laurel Run (Shenandoah County) from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Little Stony Creek from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | iv | | Marshall Run (Rockingham County) from 1.2 miles above its confluence with the North Fork Shenandoah River upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Mine Run (Shenandoah County) from its confluence with Passage Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Poplar Run (Shenandoah County) from its confluence with Little Stony Creek upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Rattlesnake Run (Rockingham County) from its confluence with Spruce Run upstream including all named and unnamed tributaries. | | | iv | | Root Run from its confluence with Marshall Run upstream including all named and unnamed tributaries. | | | iv | | Seventy Buck Lick Run from its confluence with Carr Run upstream including all named and unnamed tributaries. | | | iv | | Sirks Run (Spring Run) from 1.3 miles above its confluence with Crab Run upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Spruce Run (Rockingham County) from its confluence with Capon Run upstream including all named and unnamed tributaries. | | | iv | pH-6.5-9.5 | Sumac Run from its confluence with the German River upstream including all named and unnamed tributaries. | | 6a | V | PWS pH-6.5-9.5 | Little Passage Creek from the Strasburg Reservoir Dam upstream to its headwaters, unless otherwise designated in this chapter. | | | V | PWS | Stockable Trout Waters in Section 6a | | | vi | pH-6.5-9.5 | Little Passage Creek from the Strasburg Reservoir Dam upstream to its headwaters. | | 6b | IV | PWS pH-6.5-9.5 | North Fork Shenandoah River and its tributaries from the Winchester raw water intake to points 5 miles upstream (to include Cedar Creek and its tributaries to their headwaters). | | | V | PWS | Stockable Trout Waters in Section 6b | | | *** | pH-6.5-9.5 | Cedar Creek (Shenandoah County) from Route 55 (river mile 23.56) to the U.S. Forest Service Boundary (river mile 32.0) - approximately 7 miles. | | | v | PWS pH-6.5-9.5 | Meadow Brook (Frederick County) from its confluence with Cedar Creek 5 miles upstream. | | | VI | PWS | Natural Trout Waters in Section 6b | | | iii | pH-6.5-9.5 | Cedar Creek (Shenandoah County) from the U.S. Forest Service boundary (river mile 32.0) near Route 600 upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Duck Run from its confluence with Cedar Creek upstream including all named and unnamed tributaries. | | | | | Paddy Run (Frederick County) from the mouth upstream including all named and unnamed tributaries. | | | *** | | Paddy Run (Frederick County) from its mouth (0.0) to river mile 1.8. | | | vi** | | Paddy Run (Frederick County) from river mile 1.8 to river mile 8.1-6.3 miles. | | | iii | pH-6.5-9.5 | Sulphur Springs Gap (Shenandoah County) from its confluence with Cedar Creek 1.9 miles upstream. | | 6c | IV | PWS pH-6.5-9.5 | North Fork Shenandoah River and its tributaries from Strasburg's raw water intake to points 5 miles upstream. | | 6d | IV | PWS pH-6.5-9.5 | North Fork Shenandoah River and its tributaries from Woodstock's raw water intake (approximately 0.25 mile upstream of State Route 609 bridge near Woodstock) to points 5 miles upstream. | | 6e | IV | PWS pH-6.5-9.5 | Smith Creek and its tributaries from New Market's raw water intake to their headwaters. | | | | | Natural Trout Waters in Section 6e | | | iv | pH-6.5-9.5 | Mountain Run (Fridley Branch, Rockingham County) from Route 722 upstream including all named and unnamed tributaries. | | 6f | IV | PWS pH-6.5-9.5 | North Fork Shenandoah River and its tributaries from the Food Processors Water Coop, Inc. dam at Timberville and the Town of Broadway's intakes on Linville Creek and the North Fork Shenandoah to points 5 miles upstream. | | 6g | IV | | Shoemaker River and its tributaries from Slate Lick Run, and including Slate Lick Run, to its headwaters. | | | V | | Stockable Trout Waters in Section 6g | | | *** | | Slate Lick Run from its confluence with the Shoemaker River upstream to the 1500 foot elevation. | | | VI | | Natural Trout Waters in Section 6g | | | iv | | Long Run (Rockingham County) from its confluence with the Shoemaker River upstream including all named and unnamed tributaries. | | | iv | | Slate Lick Run from the 1500 foot elevation upstream including all named and unnamed tributaries. | | 6h | IV | PWS pH-6.5-9.5 | Unnamed tributary of North Fork Shenandoah River (on the western slope of Short Mountain opposite Mt. Jackson) from the Town of Mt. Jackson's (inactive mid-1992) raw water intake (north and east dams) to its headwaters. | | 6i | IV | PWS pH-6.5-9.5 | Little Sulfur Creek, Dan's Hollow and Horns Gully (tributaries of the North Fork Shenandoah River on the western slope of Short Mountain opposite Mt. Jackson) which served as a water supply for the Town of Edinburg until March 31, 1992, from the Edinburg intakes upstream to their headwaters. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.5, eff. December 5, 1990; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Volume 16, Issue 17, eff. June 7, 2000; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-410 James River Basin (Lower)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | II | a,z, bb, ESW-11 | James River and its tidal tributaries from Old Point Comfort - Fort Wool to the end of tidal waters (fall line, Mayo's Bridge, 14th Street, Richmond), except prohibited or spoil areas, unless otherwise designated in this chapter. | | 1a | III | | Free flowing or nontidal portions of streams in Section 1, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 1a | | | | | Gunns Run and its tributaries from the head of tide at river mile 2.64 to its headwaters. | | 1b | II | a,z | Eastern and Western Branches of the Elizabeth River and tidal portions of their tributaries from their confluence with the Elizabeth River to the end of tidal waters. | | 1c | III | | Free flowing portions of the Eastern Branch of the Elizabeth River and its tributaries. Includes Salem Canal up to its intersection with Timberlake Road at N36°48'35.67"/W76°08'31.70". | | 1d | II | a,z | Southern Branch of the Elizabeth River from its confluence with the Elizabeth River to the lock at Great Bridge. | | 1e | III | | Free flowing portions of the Western Branch of the Elizabeth River and of the Southern Branch of the Elizabeth River from their confluence with the Elizabeth River to the lock at Great Bridge. | | 1f | II | a | Nansemond River and its tributaries from its confluence with the James River to Suffolk (dam at Lake Meade), unless otherwise designated in this chapter. | | 1g | | | (Deleted) | | | VII | | Swamp waters in Section 1f Shingle Creek and its tributaries from the head of tide (approximately 500 feet downstream of Route 13/337) to their headwaters. | | 1h | III | PWS | Lake Prince, Lake Burnt Mills and Western Branch impoundments for Norfolk raw water supply and Lake Kilby - Cahoon Pond, Lake Meade and Lake Speight impoundments for Portsmouth raw water supply and including all tributaries to these impoundments. | | | VII | | Swamp waters in Section 1h | | | | | Eley Swamp and its tributaries from Route 736 upstream to their headwaters. | | 1i | III | | Free flowing portions of the Pagan River and its free flowing tributaries. | | 1j | | | (Deleted) | | 1k | III | PWS | Skiffes Creek Reservoir (Newport News water impoundment). | | 1l | III | PWS | The Lone Star lakes and impoundments in the City of Suffolk, Chuckatuck Creek watershed which serve as a water source for the City of Suffolk. | | 1m | III | PWS | The Lee Hall Reservoir system, near Skiffes Creek and the Warwick River, in the City of Newport News. | | 1n | III | PWS | Chuckatuck Creek and its tributaries from Suffolk's raw water intake (at Godwin's Millpond) to a point 5 miles upstream. | | 1o | II | PWS, bb | James River from City Point (Hopewell) to a point 5 miles upstream. | | 1p | III | PWS | Free flowing tributaries to section 1o. | | 2 | III | | Free flowing tributaries of the Chickahominy River to Walkers Dam, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 2 | | | | | Morris Creek and its tributaries from the head of tide at river mile 5.97 upstream to its headwaters. | | 2a | III | PWS | Diascund Creek and its tributaries from Newport News's raw water intake dam to its headwaters. | | 2b | III | PWS | Little Creek Reservoir and its tributaries from the City of Newport News impoundment dam to 5 miles upstream of the raw water intake. | | 3 | III | m | Chickahominy River and its tributaries from Walkers Dam to Bottoms Bridge (Route 60 bridge), unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 3 | | | | m | Chickahominy River from its confluence with Toe Ink Swamp at river mile 43.07 upstream to Bottoms Bridge (Route 60). | | | | m | Rumley Marsh and tributaries from the confluence of an unnamed tributary at river mile 2.61, upstream to the confluence with Beus Swamp. Beus Swamp, Piney Branch, and Pelham Swamp above the confluence of Beus Swamp are excluded. | | | | m | White Oak Swamp and its tributaries from its confluence with the Chickahominy River to their headwaters. | | 3a | III | PWS,m | Chickahominy River and its tributaries from Walkers Dam to points 5 miles upstream. | | 4 | III | m | Chickahominy River and its tributaries, unless otherwise designated in this chapter, from Bottoms Bridge (Route 60 bridge) to its headwaters. | | | VII | | Swamp waters in Section 4 | | | | m | Chickahominy River from Bottoms Bridge (Route 60) upstream to its confluence with Stony Run at rivermile 71.03. | | | | m | Stony Run and tributaries from the confluence with Chickahominy River to their headwaters. | | 4a | III | | Free flowing tributaries to the James River from Brandon to the fall line at Richmond, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 4a | | | | | Fourmile Creek and its tributaries to their headwaters. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.6, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 22, Issue 11, eff. January 12, 2006; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-415 James River Basin (Lower) (Appomattox River Subbasin)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 5 | II | | Appomattox River and its tidal tributaries from its confluence with the James River to the end of tidal waters. | | 5a | II | PWS | Appomattox River and its tidal tributaries from its mouth to 5 miles upstream of the Virginia-American Water Company's raw water intake. | | 5b | III | PWS | Free flowing tributaries to Section 5a. | | 5c | III | | Appomattox River from the head of tidal waters, and free flowing tributaries to the Appomattox River, to their headwaters, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 5c | | | | | Skinquarter Creek from its confluence with the Appomattox River upstream to river mile 5.27. | | | | | Deep Creek from the confluence with Winningham Creek downstream to the confluence of Little Creek, a distance of 5.4 river miles. Winticomack Creek from its confluence with the Appomattox River to its headwaters including unnamed tributaries at river miles 1.92, 3.15, 8.77, and 11.16. | | 5d | III | | Swift Creek and its tributaries from the dam at Pocahontas State Park upstream to Chesterfield County's raw water impoundment dam. | | 5e | III | PWS | Swift Creek and its tributaries from Chesterfield County's raw water impoundment dam to points 5 miles upstream. | | 5f | III | PWS | Appomattox River and its tributaries from Appomattox River Water Authority's raw water intake located at the dam at Lake Chesdin to the headwaters of the lake. | | | VII | | Swamp waters in Section 5f | | | | | Winterpock Creek and its tributaries (excluding Surline Branch) from its confluence with Lake Chesdin upstream to river mile 8.47. | | 5g | III | PWS | The Appomattox River and its tributaries from Farmville's raw water intake (approximately 2.5 miles above the Route 15/45 bridge) to points 5 miles upstream. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017.

9VAC25-260-420 James River Basin (Middle)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 6 | III | | James River and its tributaries from the fall line at Richmond (Mayo's Bridge, 14th Street) to the Rockfish River unless otherwise designated in this chapter. | | 7 | | | (Deleted) | | 7a | | | (Deleted) | | 8 | III | | James River and its tributaries from the low water dam above 14th Street Bridge to Richmond's raw water intake at Williams Island Dam. | | 9 | III | PWS,n | James River and its tributaries, unless otherwise designated in this chapter, from Richmond's raw water intake at Douglasdale Road, inclusive of the Williams Island Dam intake, the Henrico County raw water intake and the Benedictine Society's raw water intake to river mile 127.26 (at latitude 37°35'24"; longitude 77°42'33") near public landing site. | | 9a | III | PWS,o | Tuckahoe Creek and its tributaries from its confluence with the James River to its headwaters. | | | VII | | Swamp waters in Section 9a | | | | | Tuckahoe Creek from its confluence with Little Tuckahoe Creek to the confluence with the James River. | | 10 | III | | James River and its tributaries from a point at latitude 37°40'32"; longitude 77°54'08" to, and including the Rockfish River, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 10 | | | vii | | Lynch River from the upper Route 810 crossing near the intersection of Route 628 2.9 miles upstream (to Ivy Creek). | | | *** | | Rockfish Creek from its confluence with the South Fork Rockfish River to its headwaters. | | | VI | | Natural Trout Waters in Section 10 | | | ii | | Doyles River from 6.4 miles above its confluence with Moormans River above Browns Cove at Route 629 including all named and unnamed tributaries. | | | iii | | Fork Hollow from its confluence with Ivy Creek upstream including all named and unnamed tributaries. | | | iii | | Ivy Creek (Greene County) from its confluence with the Lynch River upstream including all named and unnamed tributaries. | | | ii | | Jones Falls Run from its confluence with Doyles River upstream including all named and unnamed tributaries. | | | ii | | Little Stony Creek (Nelson County) from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | iv | | Mill Creek (Nelson County) from its confluence with Goodwin Creek upstream including all named and unnamed tributaries. | | | ii | | Mutton Hollow from its confluence with Swift Run upstream including all named and unnamed tributaries. | | | iv | | Pauls Creek (Nelson County) from 1.3 miles above its confluence with the North Fork Rockfish River upstream including all named and unnamed tributaries. | | | iv | | Rodes Creek from its confluence with Goodwin Creek upstream including all named and unnamed tributaries. | | | ii | | South Fork Rockfish River from 8 miles above its confluence with the Rockfish River upstream including all named and unnamed tributaries. | | | ii | | Spruce Creek (Nelson County) from 1.5 miles above its confluence with the South Fork Rockfish River upstream including all named and unnamed tributaries. | | | ii | | Stony Creek (Nelson County) from 1 mile above its confluence with the South Fork Rockfish River upstream including all named and unnamed tributaries. | | | ii | | Swift Run from 14.5 miles above its confluence with the North Fork Rivanna River upstream including all named and unnamed tributaries. | | 10a | III | PWS | James River at river mile 127.26 near the public landing site and its tributaries from, and including, Little River to 5 miles above State Farm's raw water intake, including Beaverdam and Courthouse Creeks, to their headwaters. | | 10b | | | (Deleted.) | | 10c | III | | Willis River and its tributaries within Cumberland State Forest. | | 10d | III | PWS | Johnson Creek above the Schuyler (Nelson County Service Authority) raw water intake to its headwaters. | | 10e | III | PWS | Totier Creek and its tributaries from the Scottsville (Rivanna Water and Sewer Authority) raw water intake to their headwaters (including the Reservoir). | | 10f | III | | Powell Creek and its tributaries from its confluence with the Rivanna River upstream to their headwaters. | | 10g | III | PWS | Beaver Creek and its tributaries from the Crozet (Rivanna Water and Sewer Authority) raw water intake upstream to their headwaters (including the reservoir). | | 10h | III | PWS | Mechums River and its tributaries from the Rivanna Water and Sewer Authority's raw water intake to points 5 miles upstream. | | 10i | III | PWS | Moormans River and its tributaries from the Rivanna Water and Sewer Authority's raw water intake to points 5 miles upstream (including Sugar Hollow Reservoir). | | | VI | | Natural Trout Waters in Section 10i | | | ii | | North Fork Moormans River from its confluence with Moormans River upstream including all named and unnamed tributaries. | | | ii | | Pond Ridge Branch from its confluence with the North Fork Moormans River upstream including all named and unnamed tributaries. | | | iii | | South Fork Moormans River from its confluence with Moormans River upstream including all named and unnamed tributaries. | | 10j | III | PWS | South Fork Rivanna River and its tributaries to their headwaters; except Ivy Creek, from the Rivanna Water and Sewer Authority's South Fork Rivanna River Dam to its confluence with the Moormans River, and Ivy Creek to a point 5 miles above the dam. | | 10k | III | PWS | James River and its tributaries from Fork Union Sanitary District's raw water intake (just below the Route 15 bridge) to points 5 miles upstream, including the Slate River to a point 5 miles above the intake. | | 10l | III | | Lake Monticello in Fluvanna County. | | 10m | III | PWS | Rivanna River and its tributaries from the raw water intake for Lake Monticello (about 2.76 miles above the Route 600 bridge in Fluvanna County) to points 5 miles upstream. | | 10n | III | PWS | Ragged Mountain Reservoir (intake for the Rivanna Water and Sewer Authority) including its tributaries to their headwaters. | | 10o | III | PWS | The North Fork Rivanna River and its tributaries from the Rivanna Water and Sewer Authority's raw water intake (approximately 1/4 mile upstream of the U. S. Route 29 bridge north of Charlottesville) to points 5 miles upstream. | | 10p | III | PWS | Troublesome Creek in Buckingham County from Buckingham County's raw water intake point at a flood control dam south of the Route 631 bridge to a point 5 miles upstream. | | 10q | III | PWS | Allen Creek and its tributaries from the Wintergreen Mountain Village's primary raw water intake at Lake Monocan to a point upstream at latitude 37°53'59"; longitude 78°53'14". | | 10r | III | PWS | Stony Creek from the diversion structure at latitude 37°54'00"; longitude 78°53'47" to its headwaters inclusive of the Stony Creek raw water intake just upstream of the Peggy's Pinch booster pump station. | | 10s | III | PWS | Mechunk Creek and its tributaries from the Department of Corrections raw water intake (at the US Route 250 bridge ) to points 5 miles upstream. | | 10t | III | PWS | Cobbs Creek (Cumberland County) and its tributaries from the public water supply intake on Cobbs Creek Reservoir upstream to their headwaters. | | 11 | III | ESW-7, 8, 22, 23, 24, 25, 26, 27 | James River and its tributaries from, but not including, the Rockfish River to Balcony Falls, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 11 | | | vi | | Dancing Creek from the junction of Routes 610 and 641 to its headwaters. | | | vi | | North Fork Buffalo River from its confluence with the Buffalo River 1.8 miles upstream. | | | vi | | Pedlar River from the confluence of Enchanted Creek to Lynchburg's raw water intake. | | | vi | | Terrapin Creek from its confluence with Otter Creek to its headwaters. | | | *** | | Tye River from Tyro upstream to its confluence with the South and North Fork Tye Rivers. | | | VI | | Natural Trout Waters in Section 11 | | | ii | | Big Branch from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | ii | | Bluff Creek from its confluence with Enchanted Creek upstream including all named and unnamed tributaries. | | | ii | | Browns Creek from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | ii | | Campbell Creek (Nelson County) from its confluence with the Tye River upstream including all named and unnamed tributaries. | | | ii | | Cove Creek from its confluence with the North Fork Buffalo River upstream including all named and unnamed tributaries. | | | ii | | Coxs Creek from its confluence with the Tye River upstream including all named and unnamed tributaries. | | | ii | | Crabtree Creek (Nelson County) from its confluence with the South Fork Tye River upstream including all named and unnamed tributaries. | | | ii | | Crawleys Creek from its confluence with the Piney River upstream including all named and unnamed tributaries. | | | ii | | Cub Creek (Nelson County) from 1.4 miles above its confluence with the Tye River (in the vicinity of Route 699), upstream including all named and unnamed tributaries. | | | ii | | Davis Mill Creek from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | ii | | Durham Run from its confluence with the North Fork Tye River upstream including all named and unnamed tributaries. | | | ii | | Elk Pond Branch from its confluence with the North Fork Piney River upstream including all named and unnamed tributaries. | | | ii | | Enchanted Creek from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | ii | | Georges Creek from its confluence with the Little Piney River upstream including all named and unnamed tributaries. | | | ii | | Greasy Spring Branch from its confluence with the South Fork Piney River upstream including all named and unnamed tributaries. | | | ii | | Harpers Creek from its confluence with the Tye River upstream including all named and unnamed tributaries. | | | ii | | King Creek from its confluence with the Little Piney River upstream including all named and unnamed tributaries. | | | ii | | Lady Slipper Run from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | ii | | Little Cove Creek from its confluence with the North Fork Buffalo River upstream including all named and unnamed tributaries. | | | iii | | Little Irish Creek from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | ii | | Little Piney River from its confluence with the Piney River upstream including all named and unnamed tributaries. | | | i | | Louisa Spring Branch from its confluence with the North Fork Piney River 1.6 miles upstream. | | | ii | | Maidenhead Branch from its confluence with the South Fork Tye River upstream including all named and unnamed tributaries. | | | ii | | Meadow Creek (Nelson County) from its confluence with the South Fork Tye River upstream including all named and unnamed tributaries. | | | ii | | Mill Creek (Nelson County) from its confluence with the North Fork Tye River upstream including all named and unnamed tributaries. | | | ii | | Mill Creek (Nelson County) from its confluence with the South Fork Tye River upstream including all named and unnamed tributaries. | | | ii | | Nicholson Run from its confluence with Lady Slipper Run upstream including all named and unnamed tributaries. | | | ii | | North Fork Buffalo River from 1.8 miles above its confluence with the Buffalo River upstream including all named and unnamed tributaries. | | | i | | North Fork Piney River from its confluence with the Piney River upstream including all named and unnamed tributaries. | | | iii | | North Fork Thrashers Creek from its confluence with Thrashers Creek upstream including all named and unnamed tributaries. | | | | | North Fork Tye River from its confluence with the Tye River upstream including all named and unnamed tributaries. | | | iii | | (North Fork Tye River from its confluence with the Tye River 1.6 miles upstream.) | | | ii | | (North Fork Tye River from 1.6 miles above its confluence with the Tye River 8.3 miles upstream.) | | | iii | | Pedlar River from 5 miles above Lynchburg's raw water intake upstream including all named and unnamed tributaries. | | | ii | | Piney River from river mile 13.3 upstream including all named and unnamed tributaries. | | | ii | | Pompey Creek from its confluence with the Little Piney River upstream including all named and unnamed tributaries. | | | ii | | Reed Creek from the junction of Routes 764 and 638 upstream including all named and unnamed tributaries. | | | ii | | Rocky Branch from its confluence with the North Fork Buffalo River upstream including all named and unnamed tributaries. | | | ii | | Rocky Run (Nelson County) from 1.6 miles above its confluence with the Tye River upstream including all named and unnamed tributaries. | | | i | | Shoe Creek (Nelson County) from its confluence with Piney River upstream including all named and unnamed tributaries. | | | iii | | Silver Creek from its confluence with the Tye River upstream including all named and unnamed tributaries. | | | ii | | South Fork Piney River from its confluence with the Piney River upstream including all named and unnamed tributaries. | | | ii | | South Fork Tye River from its confluence with the Tye River upstream including all named and unnamed tributaries. | | | ii | | Statons Creek from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | iii | | Wheelers Run from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | ii | | White Rock Creek (Nelson County) from its confluence with the North Fork Tye River upstream including all named and unnamed tributaries. | | | ii | | Wiggins Branch from its confluence with Statons Creek upstream including all named and unnamed tributaries. | | 11a | III | PWS | Unnamed tributary to Williams Creek from Sweet Briar College's (inactive) raw water intake to its headwaters. | | 11b | III | PWS | Buffalo River and its tributaries from Amherst's raw water intake to points 5 miles upstream. | | 11c | III | PWS | Black Creek and its tributaries from the Nelson County Service Authority intake (approximately 1,000 feet downstream of the Route 56 bridge) upstream to their headwaters (including the reservoir). | | 11d | III | | James River and its tributaries from a point 0.25 mile above the confluence of the Tye River to Six Mile Bridge. | | 11e | III | | James River and its tributaries, excluding Blackwater Creek, from Six Mile Bridge to the 5th Street Bridge in Lynchburg. | | 11f | | | (Deleted) | | 11g | III | PWS | James River and its tributaries from the Business Route 29 bridge in Lynchburg to Reusens Dam to include the City of Lynchburg's alternate raw water intake at the Route 29 bridge and the Amherst County Service Authority's intake on Harris and Graham Creeks. | | 11h | III | PWS | James River and its tributaries, excluding the Pedlar River, from Reusens Dam to Coleman Dam, including the Eagle Eyrie raw water intake on an unnamed tributary to Judith Creek 1.0 mile from the confluence with Judith Creek, to its headwaters, and also the City of Lynchburg's raw water intake on the James River at Abert. | | 11i | III | PWS,ESW-5, 8, 2, 23 | Pedlar River and its tributaries from Lynchburg's raw water intake to points 5 miles upstream. | | | V | | Stockable Trout Waters in Section 11i | | | vi | | Pedlar River from Lynchburg's raw water intake to a point 5 miles upstream. | | | VI | | Natural Trout Waters in Section 11i | | | ii | | Brown Mountain Creek from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | | iii | | Roberts Creek from its confluence with the Pedlar River upstream including all named and unnamed tributaries. | | 11j | III | | James River and its tributaries from the Owens-Illinois raw water intake near Big Island to Balcony Falls. | | | V | | Stockable Trout Waters in Section 11j | | | vi | | Battery Creek from its confluence with the James River to its headwaters. | | | vi | | Cashaw Creek from its confluence with the James River to its headwaters. | | | vi | | Otter Creek from its confluence with the James River to a point 4.9 miles upstream. | | | vi | | Rocky Row Run from its confluence with the James River to its headwaters. | | | VI | | Natural Trout Waters in Section 11j | | | iii | | Falling Rock Creek from its confluence with Peters Creek upstream including all named and unnamed tributaries. | | | ii | | Hunting Creek from a point 3.7 miles from its confluence with the James River upstream including all named and unnamed tributaries. | | | iii | | Otter Creek from 4.9 miles above its confluence with the James River upstream including all named and unnamed tributaries. | | | ii | | Peters Creek from a point 0.2 mile above its confluence with the James River upstream including all named and unnamed tributaries. | | 11k | | | (Deleted) |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.7, eff. July 1, 1992; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-430 James River Basin (Upper)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 12 | IV | ESW-4,9,19,20, 21,gg | James River and its tributaries from Balcony Falls to their headwaters, unless otherwise designated in this chapter. (The Maury River between its confluence with the James River upstream to its headwaters (the confluence of the Calfpasture and Little Calfpasture Rivers) and the tributaries within this section to their headwaters have a special pH standard of 6.5-9.5 due to natural conditions.) | | | V | | Stockable Trout Waters in Section 12 | | | vi | | Alum Creek from its confluence with Brattons Creek 1.7 miles upstream. | | | vi | | Back Creek (Highland County) from 37.1 miles above its confluence with the Jackson River 3.2 miles upstream. | | | vi | | Back Run from its confluence with the James River 2.1 miles upstream. | | | vi | | Borden Creek from its confluence with Catawba Creek to a point 1.7 miles upstream. | | | v | pH-6.5-9.5 | Buffalo Creek (Rockbridge County) from the confluence with Colliers Creek 3 miles upstream. | | | v | | Bullpasture River from the junction of the Cowpasture River and Route 678 to its headwaters. | | | vi | | Cowpasture River (Highland County) from 75.4 miles above its confluence with the James River 2.7 miles upstream. | | | vi | | Craig Creek from the confluence of Muddy Branch to its headwaters. | | | vi | | Crush Run from its confluence with Catawba Creek to a point 2.8 miles upstream. | | | vi | | Elk Creek from its mouth to 0.6 mile upstream. | | | vi | | Elk Creek from 1.9 miles above its confluence with the James River 1.2 miles upstream. | | | vi | | Ellis Run from its confluence with Back Creek in Botetourt County to a point 1.6 miles upstream. | | | v | | Falling Spring Creek from its confluence with the Jackson River to its headwaters. | | | v | | Jackson River from 1.8 miles above Route 39 (river mile 65.4) 12.2 miles upstream. | | | vi | | Jackson River from 77.6 miles above its confluence with the James River to river mile 85.4. | | | *** | | Jackson River from river mile 89.2 to headwaters. | | | vi | | Jennings Creek from the Norfolk and Western Railroad to the confluence of Yellowstone Branch. | | | viii | | Jerrys Run from its confluence with Dunlap Creek to the C&O Railroad crossing. | | | *** | | Johns Creek (Craig County) from the junction of Routes 632 and 658 to Eliber Springs Branch. | | | vi | | Lees Creek from its confluence with Catawba Creek to a point 2 miles upstream. | | | vi | | McFalls Creek from its confluence with Jennings Creek to its headwaters. | | | vi | | Mill Creek (Bath County) from 2.2 miles above its confluence with the Calfpasture River to its headwaters. | | | vi | | Mill Creek from its confluence with Craig Creek to a point 2.1 miles upstream (Craig County). | | | vi | | Miller Branch from its confluence with Tygers Creek to its headwaters. | | | vi | pH-6.5-9.5 | North Buffalo Creek from its confluence with Buffalo Creek 2.8 miles upstream. | | | viii | | Pads Creek from river mile 2.2 - 8.2 (6 miles), unless otherwise designated in this chapter. | | | vi | | Pheasanty Run (Spring Run) from its confluence with the Cowpasture River 0.7 mile upstream. | | | v | | Potts Creek from the junction of Route 614 upstream to Boiling Spring. | | | *** | | Potts Creek from the Craig County line to its headwaters. | | | v | | Roaring Run from Route 615 to its headwaters. | | | vi | | South Fork Pads Creek from its confluence with Pads Creek approximately to its headwaters. | | | vi | | Spreading Spring Branch from its confluence with the James River to the intersection of Routes 635 and 630. | | | v | | Sweet Springs Creek from its confluence with Dunlap Creek to the West Virginia state line. | | | vi | | Trout Creek and all of its tributaries (except Pickles Branch) from its confluence with Craig Creek to their headwaters (including the tributaries' headwaters). | | | vii | | Tygers Creek from its confluence with Dunlap Creek to its headwaters. | | | VI | | Natural Trout Waters in Section 12 | | | iv | | Als Run from its confluence with Jerrys Run upstream including all named and unnamed tributaries. | | | ii | | Back Creek from its confluence with the James River near Buchanan upstream including all named and unnamed tributaries. | | | ii | | Barbours Creek from its confluence with Craig Creek upstream including all named and unnamed tributaries. | | | ii | | Barney Run from its confluence with Mare Run upstream including all named and unnamed tributaries. | | | ii | | Bear Hole Run from its confluence with Dry Run upstream including all named and unnamed tributaries. | | | ii | | Bear Loop Branch from its confluence with Wilson Creek upstream including all named and unnamed tributaries. | | | ii | | Beaver Run (Bath County) from its confluence with Back Creek upstream including all named and unnamed tributaries. | | | ii | | Bennetts Run (Rockbridge County) from its confluence with the Maury River upstream including all named and unnamed tributaries. | | | iv | | Benson Run from its confluence with the Cowpasture River upstream including all named and unnamed tributaries. | | | iii | | Biggs Run from its confluence with Craig Creek upstream including all named and unnamed tributaries. | | | ii | | Big Laurel Branch from its confluence with Johns Creek upstream including all named and unnamed tributaries. | | | ii | | Big Lick Run from its confluence with Little Back Creek upstream including all named and unnamed tributaries. | | | iii | | Big Run from its confluence with Little Back Creek upstream including all named and unnamed tributaries. | | | iv | | Black Run (Augusta County) from its confluence with Smith Creek upstream including all named and unnamed tributaries. | | | ii | | Blue Spring Run from its confluence with Potts Creek upstream including all named and unnamed tributaries. | | | iii | | Blue Suck Branch from its confluence with Simpson Creek upstream including all named and unnamed tributaries. | | | iii | | Bolar Run from its confluence with the Jackson River to Bolar Spring. | | | ii | | Brattons Run from the confluence of Alum Creek upstream including all named and unnamed tributaries. | | | *** | | Broad Run from its junction with Routes 311 and 618 upstream including all named and unnamed tributaries. | | | ii | | Cascades Creek from its confluence with Cedar Creek (Bath County) upstream including all named and unnamed tributaries. | | | ii | | Castle Run from its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Cast Steel Run from its confluence with Potts Creek upstream including all named and unnamed tributaries. | | | *** | | Cedar Creek from its confluence with the Jackson River upstream to a spring on the west bank located downstream of Route 605. | | | ii | | Cedar Creek (Rockbridge County) from 6.4 miles above its confluence with the James River upstream including all named and unnamed tributaries. | | | ii | | Chestnut Run from its confluence with Jennings Creek upstream including all named and unnamed tributaries. | | | iii | | Christleys Run from its confluence with Kempers Run upstream including all named and unnamed tributaries. | | | ii | | Clayton Mill Creek from its confluence with the Calfpasture River upstream including all named and unnamed tributaries. | | | ii | | Cornelius Creek from its confluence with North Creek upstream including all named and unnamed tributaries. | | | ii | | Cove Branch from its confluence with Barbours Creek upstream including all named and unnamed tributaries. | | | ii | | Cowardin Run from its confluence with Rowan Run upstream including all named and unnamed tributaries. | | | ii | | Crab Run from its confluence with the Bullpasture River upstream including all named and unnamed tributaries. | | | ii | | Crow Run from its confluence with Dunlap Creek upstream including all named and unnamed tributaries. | | | ii | | Cub Run (Bath County) from its confluence with Dry Run upstream including all named and unnamed tributaries. | | | iv | | Davidson Run (Rockbridge County) from Route 501 upstream including all named and unnamed tributaries. | | | ii | | Davis Run from Route 678 upstream including all named and unnamed tributaries. | | | iii | | Downey Branch from its confluence with Blue Suck Branch upstream including all named and unnamed tributaries. | | | iv | | Dry Run (Allegheny County) from the Covington City limits upstream including all named and unnamed tributaries. | | | ii | | Dry Run (Bath County) from 1.5 miles above its confluence with the Cowpasture River upstream including all named and unnamed tributaries. | | | ii | | Duffs Run from its confluence with the Bullpasture River upstream 1.0 miles. | | | ii | | East Fork Elk Creek from 0.8 mile above its confluence with Elk Creek upstream including all named and unnamed tributaries. | | | ii | | Eliber Springs Branch from its confluence with Johns Creek upstream including all named and unnamed tributaries. | | | ii | | Ewin Run from its confluence with Potts Creek to the West Virginia state line. | | | ii | | Falling Springs Creek from its confluence with the Jackson River to Route 220. | | | ii | | Fallingwater Creek from its confluence with Jennings Creek upstream including all named and unnamed tributaries. | | | iv | | Ferrol Creek from its confluence with the Little Calfpasture River upstream including all named and unnamed tributaries. | | | ii | | Ford Run (Bath County) from its confluence with Back Creek upstream including all named and unnamed tributaries. | | | *** | | Fridleys Branch from its confluence with the Calfpasture River upstream including all named and unnamed tributaries. | | | iii | | Furnace Branch from its confluence with Craig Creek upstream including all named and unnamed tributaries. | | | ii | | Glover Run from its confluence with Allen Run upstream including all named and unnamed tributaries. | | | ii | | Gochenour Branch from its confluence with Brattons Run upstream including all named and unnamed tributaries. | | | ii | | Grannys Creek from its confluence with Johns Creek upstream including all named and unnamed tributaries. | | | *** | | Guys Run (Bath County) from its confluence with the Cowpasture River upstream including all named and unnamed tributaries. | | | ii | | Guys Run (Rockbridge County) from its confluence with the Calfpasture River (at Camp Virginia, Route 39) upstream including all named and unnamed tributaries. | | | iii | | Hays Creek from its confluence with Potts Creek upstream including all named and unnamed tributaries. | | | ii | | Hidden Valley Spring from its confluence with the Jackson River 1.1 miles upstream. | | | ii | | Hipes Branch from its confluence with Craig Creek upstream including all named and unnamed tributaries. | | | iv | | Hite Hollow (Augusta County) from 0.8 miles above its mouth upstream including all named and unnamed tributaries. | | | *** | | Hypes Creek from Route 696 upstream including all named and unnamed tributaries. | | | iii | | Indian Draft from its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Jackson River from 5 miles above the City of Covington's raw water intake to the Gathright Dam. | | | ii | | Jackson River from river mile 85.4 to river mile 89.2. | | | ii | | Jennings Creek from the confluence of Yellowstone Branch upstream including all named and unnamed tributaries. | | | iv | | Jerkemtight Branch from its confluence with the Calfpasture River upstream including all named and unnamed tributaries. | | | iv | | Jerrys Run (Allegheny County) from the C&O railroad upstream including all named and unnamed tributaries. | | | iv | | Jerrys Run (Augusta County) from its confluence with Ramseys Draft upstream including all named and unnamed tributaries. | | | ii | | Johns Creek from the confluence of Eliber Springs Branch upstream including all named and unnamed tributaries. | | | ii | | Jordan Run (Bath County) from its confluence with Thompson Creek upstream including all named and unnamed tributaries. | | | ii | | Karnes Creek from a point 1.4 miles upstream of its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Kelly Run (Bath County) from its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Kelso Spring Branch from its confluence with the Little Calfpasture River 1.3 miles upstream. | | | ii | | Laurel Run (Bath County) from its confluence with Dry Run upstream including all named and unnamed tributaries. | | | iv | | Left Prong Ramseys Draft from its confluence with Ramseys Draft upstream including all named and unnamed tributaries. | | | ii | | Left Prong Wilson Creek from its confluence with Wilson Creek upstream including all named and unnamed tributaries. | | | ii | | Lick Block Run from its confluence with the Left Prong Wilson Creek upstream including all named and unnamed tributaries. | | | *** | | Lick Branch from its confluence with Craig Creek upstream including all named and unnamed tributaries. | | | ii | | Lick Run (Bath County) from 3.3 miles above its confluence with Stuart Run 3.3 miles upstream. | | | ii | | Little Back Creek (Bath County) from Route 600 upstream including all named and unnamed tributaries. | | | iv | | Little Calfpasture River from 17.2 miles above its confluence with the Maury River upstream including all named and unnamed tributaries. | | | ii | | Little Crow Run from its confluence with Crow Run upstream including all named and unnamed tributaries. | | | ii | | Little Mill Creek (Bath County) from its confluence with Mill Creek upstream including all named and unnamed tributaries. | | | ii | | Little Wilson Creek (from 1 mile above its confluence with Mill Creek) upstream including all named and unnamed tributaries. | | | ii | | Long Spring Run from its confluence with Little Back Creek upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Lowry Run from 0.2 mile above its confluence with the Maury River upstream including all named and unnamed tributaries. | | | ii | | Madison Creek from Route 682 upstream including all named and unnamed tributaries. | | | ii | | Mare Run from its junction with Route 39 at Bath Alum upstream including all named and unnamed tributaries. | | | ii | | Meadow Creek from its confluence with Craig Creek upstream including all named and unnamed tributaries. | | | iii | | Middle Creek from its confluence with Jennings Creek upstream including all named and unnamed tributaries. | | | ii | | Mill Branch from its confluence with Potts Creek upstream including all named and unnamed tributaries. | | | i | | Mill Creek (Bath County) from its confluence with the Cowpasture River 3.2 miles upstream. | | | iii | | Mill Creek from Rebecca Furnace upstream including all named and unnamed tributaries. | | | ii | | Mill Creek from its confluence with Craig Creek near Webbs Mill in Craig County upstream including all named and unnamed tributaries. | | | ii | | Mill Creek (Bath County) from its confluence with the Jackson River (Lake Moomaw) upstream including all named and unnamed tributaries. | | | ii | | Mill Run (Highland County) from its confluence with the Bullpasture River 0.5 mile upstream. | | | ii | | Muddy Run (Bath County) from its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Nelse Branch from its confluence with Mill Branch upstream including all named and unnamed tributaries. | | | ii | | North Branch Simpson Creek from its confluence with Simpson Creek upstream including all named and unnamed tributaries. | | | ii | | North Creek from its confluence with Jennings Creek upstream including all named and unnamed tributaries. | | | ii | | Paint Bank Branch from its confluence with Potts Creek upstream including all named and unnamed tributaries. | | | ii | | Panther Run from its confluence with Mare Run upstream including all named and unnamed tributaries. | | | ii | | Paxton Branch from its confluence with Johns Creek upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Pedlar Gap Run from 1 mile above its confluence with the Maury River upstream including all named and unnamed tributaries. | | | ii | | Pickles Branch (a tributary to Trout Creek) from its mouth upstream including all named and unnamed tributaries. | | | ii | | Piney Branch (Rockbridge County) from its confluence with Guys Run upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Poplar Cove Run from its confluence with Lowry Run upstream including all named and unnamed tributaries. | | | iii | | Porters Mill Creek from its confluence with Mill Creek upstream including all named and unnamed tributaries. | | | ii | | Pounding Mill Creek from its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Purgatory Creek from its confluence with the James River upstream including all named and unnamed tributaries. | | | iv | | Ramseys Draft from its confluence with the Calfpasture River upstream including all named and unnamed tributaries. | | | ii | | Reservoir Hollow from 0.7 mile above its confluence with Indian Gap Run upstream including all named and unnamed tributaries. | | | iv | | Right Prong Ramseys Draft from its confluence with Ramseys Draft upstream including all named and unnamed tributaries. | | | ii | | Rocky Creek from its confluence with Ramseys Draft upstream including all named and unnamed tributaries. | | | ii | | Rocky Run (Bath County) from its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Rowan Run from its confluence with the Jackson River to the confluence with Cowardin Run. | | | ii | | Sawmill Run (Bath County) from its confluence with Back Creek upstream including all named and unnamed tributaries. | | | ii | | Shawvers Run from its confluence with Potts Creek upstream including all named and unnamed tributaries. | | | ii | | Simpson Creek from the junction of Route 776 and U. S. Route 60 upstream including all named and unnamed tributaries. | | | ii | | Sinking Creek from Route 697 upstream including all named and unnamed tributaries. | | | iii | | Smith Branch from its confluence with Mill Creek upstream including all named and unnamed tributaries. | | | iii | | Smith Creek (Alleghany-Clifton Forge City) from Interstate 64, 2.4 miles upstream. | | | ii | | Snake Run from its confluence with Dunlap Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | South Buffalo Creek from its confluence with Buffalo Creek upstream including all named and unnamed tributaries. | | | ii | | Spring Branch (Bath County) from its confluence with Mill Creek 0.8 mile upstream. | | | ii | | Spring Run (Bath County) from its confluence with Back Creek upstream including all named and unnamed tributaries. | | | iv | | Still Run from its confluence with the Calfpasture River upstream including all named and unnamed tributaries. | | | iii | | Stony Run from its confluence with Craig Creek upstream including all named and unnamed tributaries. | | | ii | | Stony Run (Highland County) from its confluence with the Jackson River upstream including all named and unnamed tributaries. | | | ii | | Sugar Run (Allegheny County) from its confluence with Potts Creek upstream 0.75 miles. | | | iii | | Thompson Creek from the Route 39 crossing upstream to the confluence of Mares and Jordan Runs. | | | ii | | Trout Run from its confluence with Sinking Creek upstream including all named and unnamed tributaries. | | | ii | | Unnamed tributary to Brattons Run 0.7 mile above the confluence of Gochenour Branch from its mouth upstream including all named and unnamed tributaries. | | | ii | | Valley Branch from its confluence with Potts Creek upstream including all named and unnamed tributaries. | | | ii | | Vinegar Run from its confluence with the Jackson River upstream 0.4 miles. | | | iii | | Wildcat Hollow from its confluence with Little Back Creek upstream including all named and unnamed tributaries. | | | ii | | Wilson Creek (Bath County) within Douthat State Park Lake upstream including all named and unnamed tributaries. | | 12a | IV | pH-6.5-9.5 | Maury River and its tributaries, unless otherwise designated in this chapter, from U.S. Route 60 upstream bridge to its headwaters (the confluence of the Calfpasture and Little Calfpasture Rivers). | | | V | | Stockable Trout Waters in Section 12a | | | *** | hh | Hays Creek from its confluence with the Maury River to Brownsburg (9.5 miles). | | | *** | | Irish Creek from its confluence with the South River to river mile 8.9. | | | v | pH-6.5-9.5 | Marlbrook Creek from its confluence with the South River 2.2 miles upstream. | | | VI | | Natural Trout Waters in Section 12a | | | iv | | Big Bend Creek from its confluence with Irish Creek upstream including all named and unnamed tributaries. | | | ii | | Big Marys Creek from its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Chimney Branch from its confluence with Saint Marys River upstream including all named and unnamed tributaries. | | | ii | | Hogback Creek from its confluence with Saint Marys River upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Irish Creek from river mile 8.9 upstream including all named and unnamed tributaries. | | | i | pH-6.5-9.5 | Laurel Run from its confluence with the Maury River upstream including all named and unnamed tributaries. | | | ii | | Little Marys Creek from its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | | Mine Bank Creek from its confluence with Saint Marys River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Nettle Creek from its confluence with Irish Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Nettle Spring Branch from its confluence with Nettle Creek upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Otts Creek from its confluence with Hayes Creek upstream to Route 726. | | | iv | | Rock Branch from its confluence with Irish Creek upstream including all named and unnamed tributaries. | | | | | Saint Marys River from its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Saint Marys River from its confluence with the South River 3.6 miles upstream. | | | i | | Saint Marys River from 3.6 miles above its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | | Spy Run from its confluence with the South River upstream including all named and unnamed tributaries. | | | ii | | Sugartree Branch from its confluence with Saint Marys River upstream including all named and unnamed tributaries. | | | ii | | Wigwam Creek from its confluence with Nettle Creek upstream including all named and unnamed tributaries. | | 12b | IV | PWS pH-6.5-9.5 | Maury River and its tributaries from Lexington's raw water intake to a point 5 miles upstream. | | 12c | IV | PWS | Black Run from Craigsville's raw water intake to its headwaters. | | 12d | IV | PWS | Moores Creek located on Brushy Mountain. | | 12e | IV | | Cowpasture River from the Alleghany-Botetourt County line upstream to U.S. Route 60 bridge. | | 12f | IV | PWS | Smith Creek and Clifton Forge Reservoir from Clifton Forge's raw water intake to their headwaters. | | | VI | PWS | Natural Trout Waters in Section 12f | | | ii | | Piney Branch from its confluence with Smith Creek upstream including all named and unnamed tributaries. | | | ii | | Smith Creek (Alleghany County) from 4 miles north of Clifton Forge near Route 606 (at the stream gage upstream of the filtration plant) upstream including all named and unnamed tributaries. | | 12g | IV | PWS | Mill Branch and its tributaries located on Horse Mountain. | | 12h | IV | PWS | Potts Creek and its tributaries from Hercules, Inc.'s raw water intake to points 5 miles upstream. | | 12i | IV | PWS | Dunlap Creek and its tributaries from the Covington Boys Home raw water intake to points 5 miles upstream. | | 12j | IV | PWS | Jackson River and its tributaries from Covington's raw water intake to points 5 miles upstream. | | | VI | | Natural Trout Waters in Section 12j | | | ii | | Jackson River from Covington's raw water intake to a point 5 miles upstream. | | 12k | IV | PWS | Roaring Run above Clearwater Park's raw water intake to its headwaters. | | 12l | IV | PWS | Catawba Creek and its tributaries from the City of Roanoke's raw water intake 0.1 mile upstream from its confluence with Buchanan Branch to points 5 miles upstream. | | 12m | IV | PWS | Unnamed tributary to Catawba Creek from the Catawba State Hospital's raw water intake (approximately 1,000 feet north of the Hospital's main building), upstream to its headwaters. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.8, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 15, Issue 21, eff. August 4, 1999; Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 26, Issue 12, eff. February 1, 2010; Errata, 26:12 VA.R. 2065 February 15, 2010.

9VAC25-260-440 Rappahannock River Basin

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | II | a | Rappahannock River and the tidal portions of its tributaries from Stingray and Windmill Points to Route 1 Alternate Bridge at Fredericksburg. | | 1a | II | | Hoskins Creek from the confluence with the Rappahannock River to its tidal headwaters. | | 2 | III | | Free flowing tributaries of the Rappahannock from Stingray and Windmill Points upstream to Blandfield Point, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 2 | | | | | Cat Point Creek and its tributaries, from their headwaters to the head of tide at river mile 10.54. | | | | | Hoskins Creek and its nontidal tributaries from the head of tidal waters to their headwaters. Mount Landing Creek and its tributaries from the end of tidal waters at river mile 4.4 to their headwaters. | | | | | Piscataway Creek and its tributaries from the confluence of Sturgeon Swamp to their headwaters. | | 3 | III | | The Rappahannock River from the Route 1 Alternate Bridge at Fredericksburg upstream to its headwaters, unless otherwise designated in this chapter. | | 3a | III | PWS | The Rappahannock River and its tributaries from Spotsylvania County's raw water intake near Golin Run to points 5 miles upstream of the Rocky Pen Run Reservoir (Lake Mooney) pump and store intake (excluding Motts Run and tributaries, which is in Section 4c). | | 3b | III | PWS | The Rappahannock River and its tributaries from the low dam water intake at Waterloo (Fauquier County) to points 5 miles upstream. | | 4 | III | ESW 17,18, 28 | Free flowing tributaries of the Rappahannock from Blandfield Point to its headwaters, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 4 Goldenvale Creek from the head of tidal waters near the confluence with the Rappahannock River to its headwaters. | | | | | Occupacia Creek and its tributaries from the end of tidal waters at river mile 8.89 on Occupacia Creek to their headwaters. | | | V | | Stockable Trout Waters in Section 4 | | | *** | | Hughes River (Madison County) from Route 231 upstream to the upper crossing of Route 707 near the confluence of Rocky Run. | | | *** | | Robinson River from Route 231 to river mile 26.7. | | | *** | | Rose River from its confluence with the Robinson River 2.6 miles upstream. | | | *** | | South River from 5 miles above its confluence with the Rapidan River 3.9 miles upstream. | | | VI | | Natural Trout Waters in Section 4 | | | ii | | Berry Hollow from its confluence with the Robinson River upstream including all named and unnamed tributaries. | | | ii | | Bolton Branch from 1.7 miles above its confluence with Hittles Mill Stream upstream including all named and unnamed tributaries. | | | ii | | Broad Hollow Run from its confluence with Hazel River upstream including all named and unnamed tributaries. | | | i | | Brokenback Run from its confluence with the Hughes River upstream including all named and unnamed tributaries. | | | i | | Bush Mountain Stream from its confluence with the Conway River upstream including all named and unnamed tributaries. | | | i | | Cedar Run (Madison County) from 0.8 mile above its confluence with the Robinson River upstream including all named and unnamed tributaries. | | | i | | Conway River (Greene County) from the Town of Fletcher upstream including all named and unnamed tributaries. | | | ii | | Dark Hollow from its confluence with the Rose River upstream including all named and unnamed tributaries. | | | i | | Devils Ditch from its confluence with the Conway River upstream including all named and unnamed tributaries. | | | iii | | Entry Run from its confluence with the South River upstream including all named and unnamed tributaries. | | | iii | | Garth Run from 1.9 miles above its confluence with the Rapidan River at the Route 665 crossing upstream including all named and unnamed tributaries. | | | ii | | Hannah Run from its confluence with the Hughes River upstream including all named and unnamed tributaries. | | | ii | | Hazel River (Rappahannock County) from the Route 707 bridge upstream including all named and unnamed tributaries. | | | ii | | Hogcamp Branch from its confluence with the Rose River upstream including all named and unnamed tributaries. | | | i | | Hughes River (Madison County) from the upper crossing of Route 707 near the confluence of Rocky Run upstream including all named and unnamed tributaries. | | | iii | | Indian Run (Rappahannock County) from 3.4 miles above its confluence with the Hittles Mill Stream upstream including all named and unnamed tributaries. | | | ii | | Jordan River (Rappahannock County) from 10.9 miles above its confluence with the Rappahannock River upstream including all named and unnamed tributaries. | | | iii | | Kinsey Run from its confluence with the Rapidan River upstream including all named and unnamed tributaries. | | | ii | | Laurel Prong from its confluence with the Rapidan River upstream including all named and unnamed tributaries. | | | ii | | Mill Prong from its confluence with the Rapidan River upstream including all named and unnamed tributaries. | | | ii | | Negro Run (Madison County) from its confluence with the Robinson River upstream including all named and unnamed tributaries. | | | ii | | North Fork Thornton River from 3.2 miles above its confluence with the Thornton River upstream including all named and unnamed tributaries. | | | ii | | Piney River (Rappahannock County) from 0.8 mile above its confluence with the North Fork Thornton River upstream including all named and unnamed tributaries. | | | ii | | Pocosin Hollow from its confluence with the Conway River upstream including all named and unnamed tributaries. | | | ii | | Ragged Run from 0.6 mile above its confluence with Popham Run upstream including all named and unnamed tributaries. | | | i | | Rapidan River from Graves Mill (Route 615) upstream including all named and unnamed tributaries. | | | ii | | Robinson River (Madison County) from river mile 26.7 to river mile 29.7. | | | i | | Robinson River (Madison County) from river mile 29.7 upstream including all named and unnamed tributaries. | | | i | | Rose River from river mile 2.6 upstream including all named and unnamed tributaries. | | | iv | | Rush River (Rappahannock County) from the confluence of Big Devil Stairs (approximate river mile 10.2) upstream including all named and unnamed tributaries. | | | ii | | Sams Run from its confluence with the Hazel River upstream including all named and unnamed tributaries. | | | ii | | South River from 8.9 miles above its confluence with the Rapidan River upstream including all named and unnamed tributaries. | | | ii | | Sprucepine Branch from its confluence with Bearwallow Creek upstream including all named and unnamed tributaries. | | | i | | Staunton River (Madison County) from its confluence with the Rapidan River upstream including all named and unnamed tributaries. | | | ii | | Strother Run from its confluence with the Rose River upstream including all named and unnamed tributaries. | | | iii | | Thornton River (Rappahannock County) from 25.7 miles above its confluence with the Hazel River upstream including all named and unnamed tributaries. | | | ii | | Wilson Run from its confluence with the Staunton River upstream including all named and unnamed tributaries. | | 4a | | | (Deleted) | | 4b | III | PWS | The Rappahannock River and its tributaries, to include the VEPCO Canal, from Fredericksburg's (inactive May 2000) raw water intake to points 5 miles upstream. | | 4c | III | PWS | Motts Run and its tributaries. | | 4d | III | | Horsepen Run and its tributaries. | | 4e | III | PWS | Hunting Run and its tributaries. | | 4f | III | | Wilderness Run and its tributaries. | | 4g | III | | Deep Run and its tributaries (Stafford and Fauquier Counties). | | 4h | | | (Deleted) | | 4i | III | PWS | Mountain Run and its tributaries from Culpeper's raw water intake to points 5 miles upstream. | | 4j | III | PWS | White Oak Run and its tributaries from the Town of Madison's raw water intake to points 5 miles upstream. | | 4k | III | PWS | Rapidan River and its tributaries from Orange's raw water intake near Poplar Run to points 5 miles upstream. | | 4l | III | PWS | Rapidan River and its tributaries from the Rapidan Service Authority's raw water intake (just upstream of the Route 29 bridge) upstream to points 5 miles above the intake. | | 4m | III | PWS | Rapidan River and its tributaries from the Wilderness Shores raw water intake (Orange County - Rapidan Service Authority) to points 5 miles upstream. | | 4n | III | PWS | From the dam of the White Run pumped storage reservoir on an unnamed tributary to White Run upstream to its headwaters. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.9, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-450 Roanoke River Basin

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | III | PWS | Lake Gaston and the John Kerr Reservoir in Virginia and their tributaries in Virginia, unless otherwise designated in this chapter (not including the Roanoke or the Dan Rivers). The Roanoke River Service Authority's water supply intake is in this section. | | 1a | III | | Dockery Creek and its tributaries to their headwaters. | | 2 | III | | Dan River and its tributaries from the John Kerr Reservoir to the Virginia-North Carolina state line just east of the Pittsylvania-Halifax County line, unless otherwise designated in this chapter. | | 2a | III | PWS | Dan River and its tributaries from South Boston's raw water intake to points 5 miles upstream. | | 2b | III | PWS | Banister River and its tributaries from Burlington Industries' inactive raw water intake (about 2000 feet downstream of Route 360) inclusive of the Town of Halifax intake at the Banister Lake dam upstream to the Pittsylvania-Halifax County line (designation for main stem and tributaries ends at the county line). | | 2c | | | (Deleted) | | 2d | III | PWS | Cherrystone Creek and its tributaries from Chatham's raw water intake upstream to their headwaters. | | 2e | III | PWS | Georges Creek from Gretna's raw water intake upstream to its headwaters. | | 2f | III | PWS | Banister River and its tributaries from point below its confluence with Bearskin Creek (at latitude 36°46'15"; longitude 79°27'08") just east of Route 703, upstream to their headwaters. | | 2g | III | PWS | Whitethorn Creek and its tributaries from its confluence with Georges Creek upstream to their headwaters. | | 3 | III | | Dan River and its tributaries from the Virginia-North Carolina state line just east of the Pittsylvania-Halifax County line upstream to the state line just east of Draper, North Carolina, unless otherwise designated in this chapter. | | | III | PWS | Dan River and its tributaries from the Virginia-North Carolina state line just south of Danville to points 1.34 miles upstream and the first unnamed tributary to Hogans Creek from the Virginia-North Carolina state line to a point 0.45 mile upstream. | | 3a | III | PWS | Dan River and its tributaries from the Schoolfield Dam including the City of Danville's main water intake located just upstream of the Schoolfield Dam, upstream to the Virginia-North Carolina state line. | | 3b | IV | PWS | Cascade Creek and its tributaries. | | 3c | IV | PWS | Smith River and its tributaries from the Virginia-North Carolina state line to, but not including, Home Creek. | | 3d | VI | PWS | Smith River from DuPont's (inactive) raw water intake upstream to the Philpott Dam, unless otherwise designated in this chapter. | | | VI | PWS | Natural Trout Waters in Section 3d | | | ii | | Smith River from DuPont's (inactive) raw water intake upstream to the Philpott Dam, unless otherwise designated in this chapter. | | 3e | IV | | Philpott Reservoir, Fairystone Lake and their tributaries. | | | V | | Stockable Trout Waters in Section 3e | | | v | | Otter Creek from its confluence with Rennet Bag Creek (Philpott Reservoir) to its headwaters. | | | v | | Smith River (Philpott Reservoir portion) from the Philpott Dam (river mile 46.80) to river mile 61.14, just above the confluence with Small Creek. | | | v | | Rennet Bag Creek from its confluence with the Smith River to the confluence of Long Branch Creek. | | | VI | | Natural Trout Waters in Section 3e | | | ii | | Brogan Branch from its confluence with Rennet Bag Creek upstream including all named and unnamed tributaries. | | | ii | | Rennet Bag Creek from the confluence of Long Branch Creek upstream including all named and unnamed tributaries. | | | ii | | Roaring Run from its confluence with Rennet Bag Creek upstream including all named and unnamed tributaries. | | 3f | IV | PWS | North Mayo River and South Mayo River and their tributaries from the Virginia-North Carolina state line to points 5 miles upstream. | | 3g | IV | | Interstate streams in the Dan River watershed above the point where the Dan crosses the Virginia-North Carolina state line just east of Draper, North Carolina, (including the Mayo and the Smith watersheds), unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 3g | | | vi | | Dan River from the Virginia-North Carolina state line upstream to the Pinnacles Power House. | | | *** | | Little Dan River from its confluence with the Dan River 7.8 miles upstream. | | | v | | Smith River from river mile 61.14 (just below the confluence of Small Creek), to Route 704 (river mile 69.20). | | | VI | | Natural Trout Waters in Section 3g | | | ii | | Dan River from Pinnacles Power House to Townes Dam. | | | ii | | Dan River from headwaters of Townes Reservoir to Talbott Dam. | | | iii | | Little Dan River from 7.8 miles above its confluence with the Dan River upstream including all named and unnamed tributaries. | | | i | | North Prong of the North Fork Smith River from its confluence with the North Fork Smith River upstream including all named and unnamed tributaries. | | | ii | | North Fork Smith River from its confluence with the Smith River upstream including all named and unnamed tributaries. | | | iii | | Smith River from Route 704 (river mile 69.20) to Route 8 (river mile 77.55). | | | ii | | Smith River from Route 8 (approximate river mile 77.55) upstream including all named and unnamed tributaries. | | | ii | | South Mayo River from river mile 38.8 upstream including all named and unnamed tributaries. | | 3h | IV | PWS | South Mayo River and its tributaries from the Town of Stuart's raw water intake 0.4 mile upstream of its confluence with the North Fork Mayo River to points 5 miles upstream. | | | VI | | Natural Trout Waters in Section 3h | | | iii | | Brushy Fork from its confluence with the South Mayo River upstream including all named and unnamed tributaries. | | | iii | | Lily Cove Branch from its confluence with Rye Cove Creek upstream including all named and unnamed tributaries. | | | iii | | Rye Cove Creek from its confluence with the South Mayo River upstream including all named and unnamed tributaries. | | | iii | | South Mayo River from river mile 33.8 upstream including all named and unnamed tributaries. | | 3i | IV | PWS | Hale Creek and its tributaries from the Fairy Stone State Park's raw water intake 1.7 miles from its confluence with Fairy Stone Lake upstream to its headwaters. | | 3j | VI | PWS | Smith River and its tributaries from the Henry County Public Service Authority's raw water intake about 0.2 mile upstream of its confluence with Town Creek to points 5 miles upstream. | | 4 | III | | Intrastate tributaries to the Dan River above the Virginia-North Carolina state line just east of Draper, North Carolina, to their headwaters, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 4 | | | vi | | Browns Dan River from the intersection of Routes 647 and 646 to its headwaters. | | | vi | | Little Spencer Creek from its confluence with Spencer Creek to its headwaters. | | | vi | | Poorhouse Creek from its confluence with North Fork South Mayo River upstream to Route 817. | | | *** | | Rock Castle Creek from its confluence with the Smith River upstream to Route 40. | | | VI | | Natural Trout Waters in Section 4 | | | ii | | Barnard Creek from its confluence with the Dan River upstream including all named and unnamed tributaries. | | | ii | | Big Cherry Creek from its confluence with Ivy Creek upstream including all named and unnamed tributaries. | | | iii | | Ivy Creek from its confluence with the Dan River upstream including all named and unnamed tributaries. | | | iii | | Camp Branch from its confluence with Ivy Creek upstream including all named and unnamed tributaries. | | | iii | | Haunted Branch from its confluence with Barnard Creek upstream including all named and unnamed tributaries. | | | ii | | Hookers Creek from its confluence with the Little Dan River upstream including all named and unnamed tributaries. | | | iii | | Ivy Creek from Coleman's Mill Pond upstream to Route 58 (approximately 2.5 miles). | | | iii | | Little Ivy Creek from its confluence with Ivy Creek upstream including all named and unnamed tributaries. | | | iii | | Little Rock Castle Creek from its confluence with Rock Castle Creek upstream including all named and unnamed tributaries. | | | ii | | Maple Swamp Branch from its confluence with Round Meadow Creek upstream including all named and unnamed tributaries. | | | iii | | Mayberry Creek from its confluence with Round Meadow Creek upstream including all named and unnamed tributaries. | | | ii | | Mill Creek from its confluence with the Dan River upstream including all named and unnamed tributaries. | | | iii | | North Fork South Mayo River from its confluence with the South Mayo River upstream including all named and unnamed tributaries. | | | vi** | | Patrick Springs Branch from its confluence with Laurel Branch upstream including all named and unnamed tributaries. | | | iii | | Polebridge Creek from Route 692 upstream including all named and unnamed tributaries. | | | ii | | Poorhouse Creek from Route 817 upstream including all named and unnamed tributaries. | | | ii | | Rhody Creek from its confluence with the South Mayo River upstream including all named and unnamed tributaries. | | | iii | | Rich Creek from Route 58 upstream including all named and unnamed tributaries. | | | ii | | Roaring Creek from its confluence with the Dan River upstream including all named and unnamed tributaries. | | | i | | Rock Castle Creek from Route 40 upstream including all named and unnamed tributaries. | | | iii | | Round Meadow Creek from its confluence with the Dan River upstream including all named and unnamed tributaries. | | | ii | | Sawpit Branch from its confluence with Round Meadow Creek upstream including all named and unnamed tributaries. | | | ii | | Shooting Creek from its confluence with the Smith River upstream including all named and unnamed tributaries. | | | vi** | | Spencer Creek from Route 692 upstream including all named and unnamed tributaries. | | | iii | | Squall Creek from its confluence with the Dan River upstream including all named and unnamed tributaries. | | | ii | | Tuggle Creek from its confluence with the Dan River upstream including all named and unnamed tributaries. | | | ii | | Widgeon Creek from its confluence with the Smith River upstream including all named and unnamed tributaries. | | 4a | III | PWS | Intrastate tributaries (includes Beaver Creek, Little Beaver Creek, and Jones Creek, for the City of Martinsville) to the Smith River from DuPont's (inactive) raw water intake to points 5 miles upstream from Fieldcrest Cannon's raw water intake. | | 4b | III | PWS | Marrowbone Creek and its tributaries from the Henry County Public Service Authority's raw water intake (about 0.25 mile upstream from Route 220) to their headwaters. | | 4c | III | PWS | Leatherwood Creek and its tributaries from the Henry County Public Service Authority's raw water intake 8 miles upstream of its confluence with the Smith River to points 5 miles upstream. | | 5 | IV | PWS | Roanoke Staunton River from the headwaters of the John Kerr Reservoir to Leesville Dam unless otherwise designated in this chapter. | | 5a | III | PWS | Tributaries to the Roanoke Staunton River from the headwaters of the John Kerr Reservoir to Leesville Dam, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 5a | | | vi | | Day Creek from Route 741 to its headwaters. | | | VI | | Natural Trout Waters in Section 5a | | | iii | | Gunstock Creek from its confluence with Overstreet Creek upstream including all named and unnamed tributaries. | | | ii | | Overstreet Creek from its confluence with North Otter Creek upstream including all named and unnamed tributaries. | | 5b | III | PWS | Spring Creek from Keysville's raw water intake upstream to its headwaters. | | 5c | III | PWS | Falling River and its tributaries from a point just upstream from State Route 40 (the raw water source for Dan River, Inc.) to points 5 miles upstream and including the entire Phelps Creek watershed which contains the Brookneal Reservoir. | | 5d | III | | Falling River and its tributaries from 5 miles above Dan River, Inc. raw water intake to its headwaters. | | 5e | III | PWS | Reed Creek and its tributaries from Altavista's raw water intake upstream to their headwaters. | | 5f | III | PWS | Big Otter River and its tributaries from Bedford's raw water intake to points 5 miles upstream, and Stony Creek and Little Stony Creek upstream to their headwaters. | | | VI | PWS | Natural Trout Waters in Section 5f | | | ii | | Little Stony Creek from 1 mile above its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Stony Creek from the Bedford Reservoir upstream including all named and unnamed tributaries. | | 5g | III | | Big Otter River and its tributaries from 5 miles above Bedford's raw water intake upstream to their headwaters. | | 5h | III | | Ash Camp Creek and that portion of Little Roanoke Creek from its confluence with Ash Camp Creek to the Route 47 bridge. | | 5i | III | PWS | The Roanoke River and its tributaries from the Town of Altavista's raw water intake, 0.1 mile upstream from the confluence of Sycamore Creek, to points 5 miles upstream. | | 5j | III | PWS | Big Otter River and its tributaries from the Campbell County Utilities and Service Authority's raw water intake to points 5 miles upstream. | | 6 | IV | pH-6.5-9.5 | Roanoke River from a point (at latitude 37°15'53"; longitude 79°54'00") 5 miles above the headwaters of Smith Mountain Lake upstream to Salem's #1 raw water intake. | | | V | | Stockable Trout Waters in Section 6 | | | *** | pH-6.5-9.5, ff | Roanoke River from its junction from Routes 11 and 419 to Salem's #1 raw water intake. | | 6a | III | NEW-1 | Tributaries of the Roanoke River from Leesville Dam to Niagra Reservoir, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 6a | | | vi | | Gourd Creek from 1.3 miles above its confluence with Snow Creek to its headwaters. | | | vi | | Maggodee Creek from Boones Mill upstream to Route 862 (approximately 3.8 miles). | | | vii | | South Fork Blackwater River from its confluence with the Blackwater River upstream to Roaring Run. | | | vi | | South Prong Pigg River from its confluence with the Pigg River to its headwaters. | | | VI | | Natural Trout Waters in Section 6a | | | iii | | Daniels Branch from its confluence with the South Fork Blackwater River upstream including all named and unnamed tributaries. | | | ii | | Green Creek from Roaring Run upstream including all named and unnamed tributaries. | | | ii | | Pigg River from 1 mile above the confluence of the South Prong Pigg River upstream including all named and unnamed tributaries. | | | ii | | Roaring Run from its confluence with the South Fork Blackwater River upstream including all named and unnamed tributaries. | | 6b | | | (Deleted) | | 6c | III | PWS | Falling Creek Reservoir and Beaverdam Reservoir. | | 6d | IV | | Tributaries of the Roanoke River from Niagra Reservoir to Salem's #1 raw water intake, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 6d | | | vii | ee | Tinker Creek from its confluence with the Roanoke River north to Routes 11 and 220. | | | VI | | Natural Trout Waters in Section 6d | | | iii | | Glade Creek from its junction with Berkley Road NE to the confluence of Coyner Branch. | | 6e | IV | PWS | Carvin Cove Reservoir and its tributaries to their headwaters. | | 6f | IV | PWS, NEW-1 | Blackwater River and its tributaries from the Town of Rocky Mount's raw water intake (just upstream of State Route 220) to points 5 miles upstream. | | 6g | IV | PWS | Tinker Creek and its tributaries from the City of Roanoke's raw water intake (about 0.4 mile downstream from Glebe Mills) to points 5 miles upstream. | | 6h | IV | PWS | Roanoke River from Leesville Dam to Smith Mountain Dam (Gap of Smith Mountain), excluding all tributaries to Leesville Lake. | | 6i | IV | PWS, NEW-1 | Roanoke River from Smith Mountain Dam (Gap of Smith Mountain) upstream to a point (at latitude 37°15'53"; longitude 79°54'00" and its tributaries to points 5 miles above the 795.0 foot contour (normal pool elevation) of Smith Mountain Lake. | | 7 | IV | pH-6.5-9.5, ESW-2 | Roanoke River and its tributaries, unless otherwise designated in this chapter, from Salem's #1 raw water intake to their headwaters. | | | V | | Stockable Trout Waters in Section 7 | | | vi | pH-6.5-9.5 | Elliott Creek from the confluence of Rocky Branch to its headwaters. | | | vi | pH-6.5-9.5 | Goose Creek from its confluence with the South Fork Roanoke River to its headwaters. | | | vi | pH-6.5-9.5 | Mill Creek from its confluence with Bottom Creek to its headwaters. | | | *** | pH-6.5-9.5 | Roanoke River from 5 miles above Salem's #2 raw water intake to the Spring Hollow Reservoir intake (see Section 7b). | | | vi | pH-6.5-9.5 | Smith Creek from its confluence with Elliott Creek to its headwaters. | | | vi | pH-6.5-9.5 | South Fork Roanoke River from 5 miles above the Spring Hollow Reservoir intake (see Section 7b) to the mouth of Bottom Creek (river mile 17.1). | | | VI | | Natural Trout Waters in Section 7 | | | ii | pH-6.5-9.5 | Big Laurel Creek from its confluence with Bottom Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Bottom Creek from its confluence with the South Fork Roanoke River upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Lick Fork (Floyd County) from its confluence with Goose Creek upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Mill Creek from its confluence with the North Fork Roanoke River upstream including all named and unnamed tributaries. | | | iii | pH-6.5-9.5 | Purgatory Creek from Camp Alta Mons upstream including all named and unnamed tributaries. | | | ii | pH-6.5-9.5 | Spring Branch from its confluence with the South Fork Roanoke River upstream including all named and unnamed tributaries. | | 7a | IV | PWS pH-6.5-9.5 | Roanoke River and its tributaries from Salem's #1 raw water intake to points 5 miles upstream from Salem's #2 raw water intake. | | | V | PWS | Stockable Trout Waters in Section 7a | | | *** | pH-6.5-9.5, ff | Roanoke River from Salem's #1 raw water intake to a point 5 miles upstream from Salem's #2 raw water intake. | | 7b | IV | PWS pH-6.5-9.5 | Roanoke River and its tributaries from the Spring Hollow Reservoir intake upstream to points 5 miles upstream. | | | V | PWS | Stockable Trout Waters in Section 7b | | | *** | pH-6.5-9.5, ff | Roanoke River from the Spring Hollow Reservoir intake to the Floyd-Montgomery County line. | | | vi | pH-6.5-9.5 | South Fork Roanoke River from its confluence with the Roanoke River to 5 miles above the Spring Hollow Reservoir intake. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.10, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; amended, Virginia Register Volume 30, Issue 18, eff. April 23, 2014; Volume 32, Issue 26, eff. June 27, 2017.

9VAC25-260-460 Yadkin River Basin

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | IV | PWS | Yadkin River Basin in Virginia including Ararat River, Johnson Creek, Little Fisher River, Lovills Creek, Pauls Creek and Stewarts Creek - the entire reach of these streams from the Virginia-North Carolina state line to their headwaters. | | | V | PWS | Stockable Trout Waters in Section 1 | | | *** | | Ararat River from Route 823 upstream to Route 671. | | | vi | | Halls Branch from its confluence with Lovills Creek 4.5 miles upstream. | | | vi | | Johnson Creek from the Virginia-North Carolina state line to its headwaters. | | | vii | | Lovills Creek from the Virginia-North Carolina state line 1.8 miles upstream (to the Natural Resource Conservation Service dam). | | | vii | | Pauls Creek (at the Carroll County line at Route 690) from 6.7 miles above its confluence with Stewarts Creek 4.2 miles upstream. | | | VI | PWS | Natural Trout Waters in Section 1 | | | iii | | Ararat River from Route 671 upstream including all named and unnamed tributaries. | | | iii | | East Fork Johnson Creek from its confluence with Johnson Creek upstream including all named and unnamed tributaries. | | | iii | | Elk Spur Branch from its confluence with Lovills Creek upstream including all named and unnamed tributaries. | | | i | | Little Fisher Creek from the Virginia-North Carolina state line upstream including all named and unnamed tributaries. | | | ii | | Little Pauls Creek in the vicinity of Route 692 (4 miles above its confluence with Pauls Creek) upstream including all named and unnamed tributaries. | | | iii | | Lovills Creek and its tributaries from the headwaters of the impoundment formed by the Natural Resource Conservation Service dam to their headwaters. | | | ii | | North Fork Stewarts Creek from its confluence with Stewarts Creek upstream including all named and unnamed tributaries. | | | ii | | Pauls Creek (Carroll County) from 10.9 miles above its confluence with Stewarts Creek upstream including all named and unnamed tributaries. | | | i | | South Fork Stewarts Creek from its confluence with Stewarts Creek upstream including all named and unnamed tributaries. | | | iii | | Stewarts Creek below Lambsburg in the vicinity of Route 696 (10.4 miles above its confluence with the Ararat River) to the confluence of the North and South Forks of Stewarts Creek. | | | iii | | Sun Run from its confluence with the Ararat River upstream including all named and unnamed tributaries. | | | iii | | Thompson Creek from its confluence with the Ararat River upstream including all named and unnamed tributaries. | | | ii | | Turkey Creek from its confluence with Stewarts Creek upstream including all named and unnamed tributaries. | | | ii | | Waterfall Branch from its confluence with Lovills Creek upstream including all named and unnamed tributaries. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.11, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. January 24, 2018.

9VAC25-260-470 Chowan and Dismal Swamp (Chowan River Subbasin)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | II | NEW-21 | Blackwater River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately State Route 611 at river mile 20.90; Nottoway River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately Route 674. | | 2 | VII | NEW-21 | Blackwater River from the end of tidal waters to its headwaters and its free flowing tributaries in Virginia, unless otherwise designated in this chapter. | | 2a | VII | PWS | Blackwater River and its tributaries from Norfolk's auxiliary raw water intake near Burdette, Virginia, to points 5 miles above the raw water intake, to include Corrowaugh Swamp to a point 5 miles above the raw water intake. | | 2b | III | | Nottoway River from the end of tidal waters to its headwaters and its free flowing tributaries in Virginia, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 2b | | | | | Assamoosick Swamp and its tributaries from river mile 2.50 to its headwaters. | | | | | Black Branch Swamp from its confluence with the Nottoway River to its headwaters. | | | | | Butterwood Creek from river mile 4.65 (near Route 622) upstream to river mile 14.59 (near Route 643). | | | | | Cabin Point Swamp and its tributaries from its confluence with the Nottoway River to its headwaters. | | | | | Cooks Branch from its confluence with Butterwood Creek to river mile 1.08 | | | | | Gosee Swamp and its tributaries from its confluence with the Nottoway River to river mile 6.88. | | | | | Gravelly Run and its tributaries from its confluence with Rowanty Creek to river mile 8.56. | | | | | Harris Swamp and its tributaries from its confluence with the Nottoway River to river mile 8.72. | | | | | Hatcher Run and its tributaries from its confluence with Rowanty Creek to river mile 19.27 excluding Picture Branch. | | | | | Hunting Quarter Swamp and its tributaries from its confluence with the Nottoway River to its headwaters. | | | | | Moores and Jones Holes Swamp and tributaries from their confluence with the Nottoway River to its headwaters. | | | | | Nebletts Mill Run and its tributaries from its confluence with the Nottoway River to its headwaters. | | | | | Raccoon Creek and its tributaries from its confluence with the Nottoway River to its headwaters. | | | | | Rowanty Creek and its tributaries from its confluence with the Nottoway River to Gravelly Run. | | | | | Southwest Swamp and its tributaries from its confluence with Stony Creek to river mile 8.55. | | | | | Three Creek and its tributaries from its confluence with the Nottoway River upstream to its headwaters at Slagles Lake. | | 2c | III | PWS | Nottoway River and its tributaries from Norfolk's auxiliary raw water intake near Courtland, Virginia, to points 5 miles upstream unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 2c | | | | | Assamoosick Swamp and its tributaries from its confluence with the Nottoway River to river mile 2.50. | | 2d | | | (Deleted) | | 2e | III | PWS | Nottoway River and its tributaries from the Georgia-Pacific and the Town of Jarratt's raw water intakes near Jarratt, Virginia, to points 5 miles above the intakes. | | 2f | III | PWS | Nottoway River and its tributaries from the Town of Blackstone's raw water intake to points 5 miles upstream. | | 2g | III | PWS | Lazaretto Creek and its tributaries from Crewe's raw water intake to points 5 miles upstream. | | 2h | III | PWS | Modest Creek and its tributaries from Victoria's raw water intake to their headwaters. | | 2i | III | PWS | Nottoway River and its tributaries from the Town of Victoria's raw water intake at the Falls (about 200 feet upstream from State Route 49) to points 5 miles upstream. | | 2j | III | PWS | Big Hounds Creek from the Town of Victoria's auxiliary raw water intake (on Lunenburg Lake) to its headwaters. | | 3 | III | | Meherrin River and its tributaries in Virginia from the Virginia-North Carolina state line to its headwaters, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 3 | | | | | Cattail Creek and its tributaries from its confluence with Fontaine Creek to their headwaters. Tarrara Creek and its tributaries from its confluence with the Meherrin River to its headwaters. | | | | | Fontaine Creek and its tributaries from its confluence with the Meherrin River to Route 301. | | 3a | III | PWS | Meherrin River and its tributaries from Emporia's water supply dam to points 5 miles upstream. | | 3b | III | PWS | Great Creek from Lawrenceville's raw water intake to a point 7.6 miles upstream. | | 3c | III | PWS | Meherrin River and its tributaries from Lawrenceville's raw water intake to points 5 miles upstream. | | 3d | III | PWS | Flat Rock Creek from Kenbridge's raw water intake upstream to its headwaters. | | 3e | III | PWS | Meherrin River and its tributaries from South Hill's raw water intake to points 5 miles upstream. | | 3f | III | | Couches Creek from a point 1.6 miles downstream from the Industrial Development Authority discharge to its headwaters. | | 4 | III | | Free flowing tributaries to the Chowan River in Virginia unless otherwise designated in this section. | | | VII | | Swamp waters in Section 4 | | | | | Unnamed tributary to Buckhorn Creek from its headwaters to the Virginia-North Carolina state line. | | | | | Somerton Creek and its tributaries from the Virginia-North Carolina state line at river mile 0.00 upstream to river mile 13.78. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.12, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-480 Chowan and Dismal Swamp (Albemarle Sound Subbasin)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | II | | Back Bay and its tributaries in the City of Virginia Beach to the Virginia-North Carolina state line and the Northwest River and its tidal tributaries from the Virginia-North Carolina state line to the free flowing portion, unless otherwise designated in this chapter and North Landing River and its tidal tributaries from the Virginia-North Carolina state line to the Great Bridge Lock of the Intracoastal Waterway and Salem Canal up to its intersection with Timberlake Road at N36°48'35.67"/W76°08'31.70". Includes West Neck Creek to the Dam Neck Road bridge at N36°47'20.00"/W76°04'12.10". | | 1a | III | | The free flowing portions of streams in Section 1 and tributaries of Stumpy Lake. | | 1b | III | PWS | Stumpy Lake (raw water supply for the City of Norfolk) and feeder streams to points 5 miles upstream. | | 1c | II | PWS | Northwest River and its tributaries from the City of Chesapeake's raw water intake to points 5 miles upstream and points 5 miles downstream. | | 2 | III | | Intracoastal Waterway (portions not described in Section 1). | | | VII | | Swamp Waters in Section 2 | | | | | Dismal Swamp Canal and tributaries from the Deep Creek Locks downstream to the Virginia/North Carolina state line. | | 3 | III | dd, ESW-3 | Lake Drummond, including feeder ditches, and all interstate tributaries of the Dismal Swamp between Virginia and North Carolina. | | | VII | | Swamp Waters in Section 3 | | | | | Feeder Ditch to Lake Drummond and tributaries. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.13, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 23, Issue 26, eff. August 14, 2007; Volume 26, Issue 12, eff. February 1, 2010.

9VAC25-260-490 Tennessee and Big Sandy River Basins (Big Sandy River Subbasin)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | IV | | All tributaries of Tug Fork in Virginia. | | 2 | IV | | All tributaries of Jacobs Fork and Dry Fork in Virginia. | | 2a | IV | PWS | Crockett Cove, a tributary to Jacobs Fork, from Bishop's raw water intake to its headwaters. | | 3 | IV | jj | Levisa Fork and its tributaries and Knox Creek and its tributaries, unless otherwise designated in this chapter, from the Virginia-Kentucky state line upstream to their headwaters. | | | V | | Stockable Trout Waters in Section 3 | | | vi | | Dismal Creek from its mouth to its headwaters. | | 4 | IV | | Russell Fork and its tributaries, unless otherwise designated in this chapter, from the Virginia-Kentucky state line upstream to their headwaters. | | | V | | Stockable Trout Waters in Section 4 | | | *** | | Caney Creek from Long Branch Creek upstream 5.5 miles. | | | vi | | Frying Pan Creek from 1.3 miles above its confluence with Russell Fork 8.6 miles upstream (in vicinity of Bucu). | | | vi | | North Fork Pound River from the town limits of Pound upstream to the water supply dam. | | | *** | | Russell Fork from the confluence of Pound River to the Virginia-Kentucky state line. | | | VI | | Natural Trout Waters in Section 4 | | | iii | | Pound River from its confluence with Russell Fork upstream to the John W. Flannagan Dam. | | 4a | IV | PWS | Pound River and its tributaries from the John W. Flannagan Dam, including the Cranes Nest River and its tributaries to points five miles above the John W. Flannagan Water Authority's raw water intake. | | 4b | IV | PWS | North Fork Pound River and its tributaries from North Fork Pound River Dam and the Town of Pound's raw water intake upstream to their headwaters, unless otherwise designated in this chapter. | | 4c | | | (Deleted) | | 4d | IV | | Phillips Creek from its mouth to its headwaters and the North Fork Pound River from Wise County's swimming area around the mouth of Phillips Creek to a point 1/2 mile upstream. | | 4e | IV | PWS | Russell Fork River and its tributaries from the Kentucky state line 2.2 miles upstream (Elkhorn City, Kentucky raw water intake including Grassy Creek from its confluence with Russell Fork northeast to the Kentucky state line, Hunts Creek from its confluence with Grassy Creek to one mile upstream, Laurel Branch to its headwaters, including Laurel Lake (Breaks Interstate Park raw water intake). | | | V | | Stockable Trout Waters in Section 4e | | | *** | PWS | Russell Fork from the Kentucky state line 2.2 miles upstream. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.14, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 41, Issue 23, eff. September 25, 2025.

9VAC25-260-500 Tennessee and Big Sandy River Basins (Clinch River Subbasin)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | IV | | Powell River and its tributaries from the Virginia-Tennessee state line to their headwaters; Indian Creek and Martin Creek in Virginia, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 1 | | | vi | | Batie Creek from its confluence with the Powell River 0.8 mile upstream. | | | vi | | Dry Creek from its confluence with Hardy Creek to its headwaters. | | | vi | | Hardy Creek and its tributaries to their headwaters. | | | vi | | Lick Branch from its confluence with Indian Creek 1.4 miles upstream. | | | vi | | Martin Creek (Lee County) from the Virginia-Tennessee state line to its headwaters. | | | vii | | North Fork Powell River from the confluence of Straight Creek upstream to the Keokee Lake dam. | | | vi | | Poor Valley Branch from its confluence with Martin Creek 1.4 miles upstream. | | | vi | | Sims Creek from its confluence with the Powell River 1.1 miles upstream to Sims Spring. | | | vi | | Station Creek at the boundary of the Cumberland Gap National Historical Park (river mile 2.2) 2.6 miles upstream. | | | vi | | Wallen Creek above its confluence with the Powell River (at Rasnic Hollow) to its headwaters. | | | vi | | White Branch from its confluence with Poor Valley Branch 0.7 mile upstream (to the Falls at Falling Water Gap). | | 1a | IV | PWS | Powell River and its tributaries from Pennington Gap's raw water intake to 5 miles upstream. | | 1b | IV | PWS | Bens Branch from Appalachia's raw water intake to its headwaters. | | 1c | IV | PWS | South Fork Powell River from Big Stone Gap's raw water intake to its headwaters. | | 1d | IV | PWS | Benges Branch from Norton's raw water intake to its headwaters. | | 1e | IV | PWS | Robinette Branch from Norton's raw water intake to its headwaters. | | 1f | IV | PWS | Fleenortown Creek and its tributaries from the Winn #1 and Barker Springs intakes (which provide raw water to the Town of Jonesville WTP) to points 5 miles upstream. | | 2 | IV | | Clinch River and its tributaries from the Virginia-Tennessee state line to their headwaters; North Fork Clinch River and its tributaries, Blackwater Creek and its tributaries, and Little Creek in Virginia, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 2 | | | vi | | Amos Branch from its confluence with Copper Creek 3.3 miles upstream. | | | *** | | Big Cedar Creek from its confluence with Little Cedar Creek to the mouths of Elk Garden Creek and Loop Creek. | | | viii | | Burns Creek from its confluence with the Guest River to its headwaters. | | | viii | | Clear Creek (Wise County) from 1/2 mile above its confluence with the Guest River to its headwaters. | | | vi | | Copper Creek (Russell County) from Route 678 below Parsonage - river mile 52.5 - 4.3 miles upstream. | | | vi | | Cove Creek from river mile 6.5 (above Stanleytown) 5.5 miles upstream. | | | vi | | Cowan Creek from its confluence with Sinking Creek 2.7 miles upstream. | | | vi | | Devil Fork from its confluence with Straight Fork 3.2 miles upstream. | | | vi | | Fall Creek from its confluence with the Clinch River 4.6 miles upstream. | | | vi | | Gillinswater Branch from its confluence with Obeys Creek 2.8 miles upstream. | | | vi | | Gray Branch from its confluence with Mill Creek (Scott County) 1.6 miles upstream. | | | vi | | Jessee Branch from its confluence with Copper Creek at Thompson Ford 2 miles upstream. | | | vi | | Lark Creek from its confluence with Copper Creek 3 miles upstream. | | | viii | | Laurel Fork (Scott County) from its confluence with Stock Creek 4 miles upstream. | | | vi | | Liberty Creek from its confluence with Little River 1.6 miles upstream. | | | vi | | Little Stony Creek from the intersection of the stream and Route 72 upstream to its headwaters. | | | vi | | Mill Creek (Scott County) from its confluence with the Clinch River at Grays Ford 1.6 miles upstream. | | | vi | | Obeys Creek from 2.5 miles above its confluence with Copper Creek 6 miles upstream. | | | vi | | Palmer Branch from its confluence with the Clinch River 1.8 miles upstream. | | | vi | | Powers Branch from its confluence with the Clinch River 2.4 miles upstream. | | | vi | | Stock Creek from 0.25 mile north of Sunbright to 1.5 miles north of Mabe. | | | | | Stony Creek from Fort Blackmore upstream to its headwaters. | | | *** | | (Stony Creek from Fort Blackmore (river mile 0.56) 5.5 miles upstream.) | | | vi | | (Stony Creek from 5.5 miles above its confluence with the Clinch River (in the vicinity of Greens Chapel) 7.2 miles upstream.) | | | vi | | Straight Fork (Scott County) from its confluence with Stony Creek 5.1 miles upstream. | | | vi | | Valley Creek from 1.1 miles above its confluence with Copper Creek 6.8 miles upstream. | | | viii | | Wolf Creek (Scott County) from its confluence with Laurel Fork 1.8 miles upstream. | | | VI | | Natural Trout Waters in Section 2 | | | iii | | Maiden Spring Creek from 15 miles above its confluence with Little River at Route 602 above Benbow 5.3 miles upstream. | | | iii | | Mill Creek (Russell County) from its confluence with the Clinch River 2.7 miles upstream. | | 2a | IV | PWS, x | Clinch River and its tributaries to their headwaters from the Wise County Public Service Authority's raw water intakes to 5 miles upstream from St. Paul's raw water intake. | | 2b | IV | PWS | Clinch River and its tributaries to their headwaters from Raven-Doran's raw water intake to a point 5 miles upstream of the Richland's raw water intake. | | 2c | IV | PWS | Clinch River and its tributaries from Tazewell's raw water intake to their headwaters. | | 2d | IV | PWS | North Fork Clinch River and its tributaries, including Spurlock Branch, from Duffield Development Authority's raw water intake at the confluence with Spurlock Branch and the intake on Spurlock Branch to 5 miles upstream. | | 2e | IV | PWS | Bear Creek from Wise's raw water intake to its headwaters. | | 2f | IV | PWS | Toms Creek from Coeburn's raw water intake to its headwaters. | | 2g | IV | PWS | Little River and its tributaries from the Tazewell County Water and Sewer Authority's (Claypool Hill Water Treatment Plant) raw water intake to points 5 miles upstream. | | 2h | IV | PWS | Unnamed tributary to the North Fork Clinch River from the Divides raw water intake upstream to its headwaters. | | 2i | IV | PWS | Big Cedar Creek and its tributaries from Lebanon's raw water intake to points 5 miles upstream. | | 2j | IV | PWS | Cavitts Creek from the proposed Baptist Valley raw water intake to its headwaters. | | 2k | IV | PWS | Unnamed tributary to Big Creek (Tazewell County) from the Tazewell County Water and Sewer Authority's Jewell Ridge raw water intake upstream to its headwaters. | | 2l | | | (moved to 1f) |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.15, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 39, Issue 9, eff. April 18, 2023.

9VAC25-260-510 Tennessee and Big Sandy River Basins (Holston River Subbasin)

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | IV | | North Fork Holston River and its tributaries, unless otherwise designated in this chapter, from the Virginia-Tennessee state line to their headwaters, and those sections of Timbertree Branch and Boozy Creek in Virginia. | | | V | | Stockable Trout Waters in Section 1 | | | vi | | Greendale Creek from its confluence with the North Fork Holston River 4.1 miles upstream. | | | v | | Laurel Bed Creek from its confluence with Tumbling Creek 1.8 miles upstream. | | | vi | | Laurel Creek within the Thomas Jefferson National Forest boundaries. | | | *** | | Laurel Creek from Route 16 to its confluence with Roaring Fork. | | | vi | | Lick Creek (Bland County) from 5.5 miles above its confluence with the North Fork Holston River 10.9 miles upstream. | | | vi | | Little Tumbling Creek from Tannersville upstream to where the powerline crosses the stream. | | | vi | | Lynn Camp Creek from its confluence with Lick Creek 3.9 miles upstream. | | | vi | | Punch and Judy Creek from its confluence with Laurel Creek 3.2 miles upstream. | | | v | | Tumbling Creek from its confluence with the North Fork Holston River upstream including all named and unnamed tributaries. | | | VI | | Natural Trout Waters in Section 1 | | | ii | | Barkcamp Branch from its confluence with Roaring Fork upstream including all named and unnamed tributaries. | | | ii | | Beartown Branch from its confluence with Sprouts Creek upstream including all named and unnamed tributaries. | | | ii | | Beaver Creek (Smyth County) from its confluence with the North Fork Holston River 2.8 miles upstream. | | | ii | | Brier Cove from its confluence with Tumbling Creek upstream including all named and unnamed tributaries. | | | | | Brumley Creek from its confluence with the North Fork Holston River upstream to the Hidden Valley Lake dam including all named and unnamed tributaries. | | | *** | | Brumley Creek from its confluence with the North Fork Holston River (at Duncanville) 4 miles upstream. | | | iii | | Brumley Creek from 4 miles above its confluence with the North Fork Holston River (at Duncanville) 6.9 miles upstream. | | | iii | | Campbell Creek (Smyth County) from its confluence with the North Fork Holston River at Ellendale Ford 1 mile upstream. | | | ii | | Coon Branch from its confluence with Barkcamp upstream including all named and unnamed tributaries. | | | ii | | Cove Branch from its confluence with Roaring Fork upstream including all named and unnamed tributaries. | | | ii | | Henshaw Branch from its confluence with Lick Creek upstream including all named and unnamed tributaries. | | | ii | | Little Sprouts Creek from its confluence with Sprouts Creek upstream including all named and unnamed tributaries. | | | ii | | Little Tumbling Creek from the powerline crossing upstream including all named and unnamed tributaries. | | | v** | | Red Creek from its confluence with Tumbling Creek upstream including all named and unnamed tributaries. | | | ii | | Roaring Fork (Tazewell County) from its confluence with Laurel Creek upstream including all named and unnamed tributaries. | | | ii | | Sprouts Creek from its confluence with the North Fork Holston River upstream including all named and unnamed tributaries. | | | ii | | Toole Creek from its confluence with the North Fork Holston River 5.9 miles upstream. | | 1a | IV | | North Fork Holston River from the Olin Corporation downstream to the Virginia-Tennessee state line. | | 1b | IV | PWS | Big Moccasin Creek and its tributaries from Weber City's raw water intake to points 5 miles upstream from Gate City's raw water intake. | | 1c | | | (Deleted) | | 1d | IV | PWS | Unnamed tributary to the North Fork Holston River from Hilton's Community No. 2 public water supply raw water intake to its headwaters. | | 2 | IV | PWS | South Holston Lake in Virginia and South Holston Lake and its tributaries from the Bristol Virginia Utilities Board's raw water intake to points 5 miles upstream. | | 3 | IV | | Tributaries of the South Holston Lake, and Sinking Creek and Nicely Branch in Virginia, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 3 | | | vi | | Berry Creek from its confluence with Fifteenmile Creek (Washington County) 2 miles upstream. | | | vi | | Spring Creek from its confluence with the South Holston Lake to its headwaters. | | | VI | | Natural Trout Waters in Section 3 | | | ii | | Cox Mill Creek from its confluence with the South Fork Holston River upstream including all named and unnamed tributaries. | | 3a | | | (Deleted) | | 4 | IV | | Steel Creek and Beaver Creek and their tributaries in Virginia. | | | V | | Stockable Trout Waters in Section 4 | | | vi | | Beaver Creek (Washington County) and its tributaries from the flood control dam (near Route 11) to their headwaters. | | | vi | | Sinking Creek (tributary to Paperville Creek-Washington County) from the Virginia-Tennessee state line at Bristol 3.4 miles upstream. | | 5 | IV | | Middle Fork Holston River and its tributaries, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 5 | | | vi | | Dry Run from its confluence with the Middle Fork Holston River 1.6 miles upstream. | | | vi | | Dutton Branch from its confluence with the Middle Fork Holston River 2 miles upstream. | | | vi | | Laurel Springs Creek from its confluence with the Middle Fork Holston River 2 miles upstream. | | | vi | | Middle Fork Holston River from 5 miles above Marion's raw water intake (river mile 45.83) to the headwaters. | | | vi | | Preston Hollow from 0.5 mile above its confluence with the Middle Fork Holston River 1.5 miles upstream. | | | vi | | Staley Creek from its confluence with the Middle Fork Holston River 1 mile upstream. | | | VI | | Natural Trout Waters in Section 5 | | | iii | | East Fork Nicks Creek from its confluence with Nicks Creek upstream including all named and unnamed tributaries. | | | iii | | Nicks Creek within the Jefferson National Forest boundary (river mile 1.6) upstream including all named and unnamed tributaries. | | | iii | | Staley Creek from 1 mile above its confluence with the Middle Fork Holston River upstream including all named and unnamed tributaries. | | 5a | IV | | Middle Fork Holston River and its tributaries from Edmondson Dam upstream to the Route 91 bridge. | | 5b | IV | | Hungry Mother Creek from the dam upstream including all named and unnamed tributaries. | | 5c | IV | PWS | Middle Fork Holston River and its tributaries from Marion's raw water intake to points 5 miles upstream, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 5c | | | vi | | Middle Fork Holston River from Marion's raw water intake at Mt. Carmel at river mile 45.83 to a point 5 miles upstream (river mile 50.83). | | 5d | IV | PWS | Middle Fork Holston River and its tributaries from Washington County Service Authority's raw water intake to points 5 miles upstream. | | 6 | IV | ESW-10 | South Fork Holston River and its tributaries in Virginia, unless otherwise designated in this chapter. | | | V | | Stockable Trout Waters in Section 6 | | | vi | | Grosses Creek from its confluence with the South Fork Holston River 3.4 miles upstream. | | | vi | | Rush Creek (Washington County) from its confluence with the South Fork Holston River 2.2 miles upstream. | | | vi | | Straight Branch from its confluence with Whitetop Laurel Creek 2.5 miles upstream. | | | VI | | Natural Trout Waters in Section 6 | | | iii | | Barkcamp Branch from its confluence with Rowland Creek upstream including all named and unnamed tributaries. | | | iii | | Beaverdam Creek (Washington County) from its confluence with Laurel Creek to the Virginia-Tennessee state line 2 miles upstream. | | | iii | | Bell Hollow from its confluence with Dickey Creek upstream including all named and unnamed tributaries. | | | iii | | Big Branch from its confluence with Big Laurel Creek upstream including all named and unnamed tributaries. | | | | | Big Laurel Creek (Smyth County) from its confluence with Whitetop Laurel Creek upstream including all named and unnamed tributaries. | | | iii | | Big Laurel Creek (Smyth County) from its confluence with Whitetop Laurel Creek 2.6 miles upstream. | | | ii | | Big Laurel Creek (Smyth County) from 2.6 miles above its confluence with Whitetop Laurel Creek (at Laurel Valley Church) upstream including all named and unnamed tributaries. | | | iii | | Brush Creek from its confluence with Rush Creek upstream including all named and unnamed tributaries. | | | iii | | Buckeye Branch from its confluence with Green Cove Creek upstream including all named and unnamed tributaries. | | | ii | | Charlies Branch from its confluence with Big Laurel Creek upstream including all named and unnamed tributaries. | | | iii | | Cold Branch from its confluence with Jerrys Creek upstream including all named and unnamed tributaries. | | | iv | | Comers Creek from its confluence with the South Fork Holston River upstream including all named and unnamed tributaries. | | | ii | | Cressy Creek from 1.7 miles above its confluence with the South Fork Holston River at Route 16 upstream including all named and unnamed tributaries. | | | ii | | Daves Branch from its confluence with Big Laurel Creek upstream including all named and unnamed tributaries. | | | iii | | Dickey Creek from 0.6 mile above its confluence with the South Fork Holston River upstream including all named and unnamed tributaries. | | | ii | | Dry Fork from 1.2 miles above its confluence with St. Clair Creek upstream including all named and unnamed tributaries. | | | ii | | Feathercamp Branch from its confluence with Straight Branch upstream including all named and unnamed tributaries. | | | ii | | Grassy Branch from its confluence with Big Laurel Creek upstream including all named and unnamed tributaries. | | | ii | | Green Cove Creek from its confluence with Whitetop Laurel Creek upstream including all named and unnamed tributaries. | | | ii | | Grindstone Branch from its confluence with Big Laurel Creek upstream including all named and unnamed tributaries. | | | iii | | High Trestle Branch from its confluence with Buckeye Branch upstream including all named and unnamed tributaries. | | | iii | | Hopkins Branch from its confluence with the South Fork Holston River upstream including all named and unnamed tributaries. | | | iii | | Houndshell Branch from its confluence with Cressy Creek upstream including all named and unnamed tributaries. | | | ii | | Hurricane Creek (Smyth County) from its confluence with Comers Creek upstream including all named and unnamed tributaries. | | | iii | | Hutton Branch from its confluence with Dickey Creek upstream including all named and unnamed tributaries. | | | iii | | Jerrys Creek (Smyth County) from 1.5 miles above its confluence with Rowland Creek upstream including all named and unnamed tributaries. | | | ii | | Little Laurel Creek (Smyth County) from its confluence with Whitetop Laurel Creek upstream including all named and unnamed tributaries. | | | *** | | Laurel Creek from its confluence with Beaverdam Creek (Washington County) to the Virginia-North Carolina state line. | | | ii | | London Bridge Branch from its confluence with Beaverdam Creek (Washington County) 0.6 mile upstream. | | | iii | | Long Branch from its confluence with Jerrys Creek upstream including all named and unnamed tributaries. | | | ii | | Mill Creek (Washington County) from its confluence with the South Fork Holston River upstream including all named and unnamed tributaries. | | | iii | | Parks Creek from its confluence with Cressy Creek upstream including all named and unnamed tributaries. | | | ii | | Pennington Branch from its confluence with Whitetop Laurel Creek upstream including all named and unnamed tributaries. | | | iii | | Quarter Branch from 1.1 miles above its confluence with Cressy Creek upstream including all named and unnamed tributaries. | | | iii | | Raccoon Branch from its confluence with Dickey Creek upstream including all named and unnamed tributaries. | | | ii | | Rowland Creek from 2.5 miles above its confluence with the South Fork Holston River upstream including all named and unnamed tributaries. | | | ii | | Rush Creek (Washington County) from 2.2 miles above its confluence with the South Fork Holston River upstream including all named and unnamed tributaries. | | | iii | | Scott Branch from its confluence with Dickey Creek upstream including all named and unnamed tributaries. | | | iii | | Slemp Creek from 2 miles above its confluence with Cressy Creek upstream including all named and unnamed tributaries. | | | ii | | South Fork Holston River from 101.8 miles above its confluence with the Holston River to the Thomas Bridge Water Corporation's raw water intake (see Section 6a). | | | ii | | South Fork Holston River from 5 miles above the Thomas Bridge Water Corporation's raw water intake to a point 12.9 miles upstream (see Section 6a). | | | ii | | Star Hill Branch from its confluence with Green Cove Creek upstream including all named and unnamed tributaries. | | | ii | | St. Clair Creek from 3.3 miles above its confluence with the South Fork Holston River (at Route 600) above Horseshoe Bend upstream including all named and unnamed tributaries. | | | ii | | Sturgill Branch from its confluence with Whitetop Laurel Creek upstream including all named and unnamed tributaries. | | | iii | | Valley Creek (Washington County) from its confluence with Whitetop Laurel Creek upstream including all named and unnamed tributaries. | | | | | Whitetop Laurel Creek from its confluence with Laurel Creek upstream including all named and unnamed tributaries. | | | ii | | Whitetop Laurel Creek from its confluence with Laurel Creek 8.1 miles upstream. | | | i | | Whitetop Laurel Creek from 8.1 miles above its confluence with Laurel Creek 4.4 miles upstream. | | | iii | | Whitetop Laurel Creek from 12.5 miles above its confluence with Laurel Creek 3.8 miles upstream. | | 6a | IV | PWS | South Fork Holston River and its tributaries from Thomas Bridge Water Corporation's raw water intake between Route 658 and Route 656 to points 5 miles upstream. | | | VI | | Natural Trout Waters in Section 6a | | | ii | | South Fork Holston River from Thomas Bridge Water Corporation's raw water intake to a point 5 miles upstream. | | 6b | IV | PWS | South Fork Holston River and its tributaries from Washington County Service Authority intake near the confluence of the Middle Fork and South Fork Holston Rivers to points 5 miles upstream. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.16, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017; Volume 37, Issue 21, eff. November 24, 2021.

9VAC25-260-520 Chesapeake Bay, Atlantic Ocean and small coastal basins

| SEC. | CLASS | SP. STDS. | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | I | a | The Atlantic Ocean from Cape Henry Light (Latitude 36°55'06" North; Longitude 76°00'04" West) east to the three mile limit and south to the Virginia-North Carolina state line. The Atlantic Ocean from Cape Henry Light to Thimble Shoal Channel (Latitude 36°57'30" North; Longitude 76°02'30" West) from Thimble Shoal Channel to Smith Island (Latitude 37°07'04" North; Longitude 75°54'04" West) and north to the Virginia-Maryland state line. | | 1a | III | | All free flowing portions of the streams, creeks and coves in Section 1 east of the east-west divide boundary on the Eastern Shore of Virginia. | | 1b | II | a | Tidal portions of streams, creeks and coves in Section 1 east of the east-west divide boundary on the Eastern Shore of Virginia. | | 2 | II | a | Chesapeake Bay and its tidal tributaries from Old Point Comfort Tower (Latitude 37°00'00" North; Longitude 76°18'08" West) to Thimble Shoal Light (Latitude 37°00'09" North; Longitude 76°14'04" West) to and along the south side of Thimble Shoal Channel to its eastern end (Latitude 36°57'03" North; Longitude 76°02'03" West) to Smith Island (Latitude 37°07'04" North; Longitude 75°54'04" West) north to the Virginia-Maryland state line following the east-west divide boundary on the Eastern Shore of Virginia, west along the Virginia-Maryland state line, to the Virginia Coast, (Latitude 37°53'23" North; Longitude 76°14'25" West) and south following the Virginia Coast to Old Point Comfort Tower (previously described), unless otherwise designated in this chapter. | | 2a | III | | Free flowing portions of streams lying on the Eastern Shore of Virginia west of the east-west divide boundary unless otherwise designated in this chapter. | | 2b | III | | Drummonds Millpond including Coards Branch. | | 2c | III | | The Virginia Department of Agriculture experimental station pond and its tributaries. | | 2d | III | | The free flowing streams tributary to the western portion of the Chesapeake Bay lying between the Virginia-Maryland state line and Old Point Comfort. | | | VII | | Swamp waters in Section 2d Briery Swamp and tributaries from the confluence with Dragon Swamp to their headwaters. Contrary Swamp from the confluence with Dragon Swamp to its headwaters. Crany Creek from its confluence with Fox Mill Run to its headwaters. Dragon Run and its tributaries from the confluence with Dragon Swamp to their headwaters. Dragon Swamp and tributaries from the head of tidal waters at river mile 4.60 to their headwaters. Exol Swamp and tributaries from the confluence with Dragon Swamp to their headwaters. Fox Mill Run from the head of tidal waters to its headwaters. Holmes Swamp and its tributaries from the confluence with Exol Swamp to their headwaters. Northwest Branch Severn River from the head of tidal waters near Severn Hall Lane to its headwaters. Timber Branch Swamp and its tributaries from the confluence with Dragon Swamp to their headwaters. Yorkers Swamp and its tributaries from the confluence with Dragon Swamp to their headwaters. White Marsh and its tributaries from the confluence with Dragon Swamp to their headwaters. | | 2e | III | PWS | Harwood's Mill Reservoir (in Poquoson River's headwaters - a source of water for the City of Newport News) and its tributaries. | | 2f | III | PWS | Brick Kiln Creek and its tributaries from Fort Monroe's raw water intake (at the Big Bethel Reservoir) to points 5 miles upstream. | | 2g | III | PWS | Beaverdam Swamp and its tributaries (including Beaverdam Swamp Reservoir) from the Gloucester County Water System raw water intake to its headwaters. | | 3 | II | a | Chesapeake Bay from Old Point Comfort Tower (Latitude 37°00'00" North; Longitude 76°18'08" West) to Thimble Shoal Light (Latitude 37°00'09" North; Longitude 76°14'04" West) along the south side of Thimble Shoal Channel to Cape Henry Light (Latitude 36°55'06" North; Longitude 76°00'04" West). | | 3a | II | a,z | Little Creek from its confluence with Chesapeake Bay (Lynnhaven Roads) to end of navigable waters. | | 3b | II | a | Tidal portions of Lynnhaven watershed from its confluence with the Chesapeake Bay (Lynnhaven Roads) to and including Lynnhaven Bay, Western Branch Lynnhaven River, Eastern Branch Lynnhaven River, Long Creek, Broad Bay and Linkhorn Bay, Thalia Creek and its tributaries to the end of tidal waters. Great Neck Creek and Little Neck Creek from their confluence with Linkhorn Bay and their tidal tributaries. Rainey Gut and Crystal Lake from their confluence with Linkhorn Bay. | | 3c | III | | Free flowing portions of streams in Section 3b, unless otherwise designated in this chapter. | | 3d | III | PWS | The impoundments on the Little Creek watershed including Little Creek Reservoir, Lake Smith, Lake Whitehurst, Lake Lawson, and Lake Wright. | | 3e | II | | London Bridge Creek from its confluence with the Eastern Branch of Lynnhaven River to the end of tidal waters. Wolfsnare Creek from its confluence with the Eastern Branch Lynnhaven River to the fall line. | | 3f | III | | Free flowing portions of London Bridge Creek and Wolfsnare Creek to the Dam Neck Road Bridge at N36°47'20.00"/W76°04'12.10" (West Neck Creek) and their free flowing tributaries. | | 3g | III | | Lake Joyce and Lake Bradford. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.17, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017.

9VAC25-260-530 York River Basin

| SEC. | CLASS | SP. STDS | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | II | a,aa | York River and the tidal portions of its tributaries from Goodwin Neck and Sandy Point upstream to Thorofare Creek and Little Salem Creek near West Point; Mattaponi River and the tidal portions of its tributaries from Little Salem Creek to the end of tidal waters; Pamunkey River and the tidal portions of its tributaries from Thorofare Creek near West Point to the end of tidal waters. | | 2 | III | | Free flowing tributaries of the York River, free flowing tributaries of the Mattaponi River to Clifton and the Pamunkey River to Romancoke, unless otherwise designated in this chapter. | | 2a | III | PWS | Waller Mill Reservoir and its drainage area above Waller Mill dam which serves as a raw water supply for the City of Williamsburg. | | 2b | III | PWS | Jones Pond (a tributary of Queen Creek near Williamsburg which serves as the raw water supply for Cheatham Annex Naval Station) and its tributaries to points 5 miles upstream. | | 3 | III | | Free flowing portions of the Mattaponi and Pamunkey Rivers, free flowing tributaries of the Mattaponi above Clifton, and free flowing tributaries of the Pamunkey above Romancoke, unless otherwise designated in this chapter. | | | VII | | Swamp waters in Section 3. | | | | | Garnetts Creek and tributaries from the head of tidal waters upstream to include Dickeys Swamp and its tributaries. Herring Creek from its headwaters at river mile 17.2 downstream to the confluence with the Mattaponi River and three named tributaries: Dorrell Creek, Fork Bridge Creek and Millpond Creek from their headwaters to their confluence with Herring Creek. Hornquarter Creek from its confluence with the Pamunkey River to its headwaters. Jacks Creek and tributaries from the head of tidal waters to their headwaters. Matadequin Creek and its tributaries, from below an unnamed tributary to Matadequin Creek at river mile 9.93 (between Route 350 and Sandy Valley Creek) downstream to its confluence with the Pamunkey River. Mattaponi River from its confluence with Maracossic Creek at river mile 57.17 to the head of tidal waters. | | | | | Mechumps Creek from the confluence with Slayden Creek to the Pamunkey River, Slayden Creek and its tributaries to their headwaters, and Campbell Creek from the unnamed tributary at river mile 3.86 downstream to the confluence with Mechumps Creek. Monquin (Moncuin) Creek and its tributaries from the head of tidal waters to their headwaters. | | | | | Reedy Creek from its headwaters to its confluence with Reedy Millpond at river mile 1.06. Totopotomoy Creek from its confluence with the Pamunkey River to its headwaters. | | 3a | III | PWS | South Anna River and its tributaries from Ashland's raw water intake to a point 5 miles upstream. | | 3b | III | PWS | Northeast Creek and its tributaries from the Louisa County Water Authority's impoundment dam (approximately 0.125 mile upstream of Route 33) to their headwaters. | | 3c | III | | South Anna River from Route 15 upstream to a point 1.5 miles below the effluent from the Gordonsville Sewage Treatment Plant. | | 3d | III | PWS | Ni River and its tributaries from Spotsylvania's raw water intake near Route 627 to their headwaters. | | 3e | III | PWS | The North Anna River and its tributaries from Hanover County's raw water intake near Doswell (approximately 0.5 mile upstream from State Route 30) to points 5 miles upstream. | | 3f | III | PWS | Stevens Mill Run from the Lake Caroline water impoundment and other tributaries into the impoundment upstream to their headwaters. |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.18, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Volume 20, Issue 9, eff. February 12, 2004; Volume 22, Issue 11, eff. January 12, 2006; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017.

9VAC25-260-540 New River Basin

| SEC. | CLASS | SP. STDS | SECTION DESCRIPTION | | --- | --- | --- | --- | | 1 | IV | u | New River and its tributaries, unless otherwise designated in this chapter, from the Virginia-West Virginia state line to the Montgomery-Giles County line. | | | V | | Stockable Trout Waters in Section 1 | | | *** | | Laurel Creek (a tributary to Wolf Creek in Bland County) from Rocky Gap to the Route 613 bridge one mile west of the junction of Routes 613 and 21. | | | viii | | Laurel Creek (Bland County) from its confluence with Hunting Camp Creek 3.2 miles upstream. | | | viii | | Little Wolf Creek (Bland County) from its confluence with Laurel Creek 2.6 miles upstream. | | | v | | Sinking Creek from 5.1 miles above its confluence with the New River 10.8 miles upstream (near the Route 778 crossing). | | | vi | | Sinking Creek from the Route 778 crossing to the Route 628 crossing. | | | vi | | Spur Branch from its confluence with Little Walker Creek to its headwaters. | | | v | | Walker Creek from the Route 52 bridge to its headwaters. | | | *** | | Wolf Creek (Bland County) from Grapefield to its headwaters. | | | VI | | Natural Trout Waters in Section 1 | | | ii | | Bear Spring Branch from its confluence with the New River upstream including all named and unnamed tributaries. | | | iii | | Clear Fork (Bland County) from river mile 8.5 upstream including all named and unnamed tributaries. | | | ii | | Cove Creek (Tazewell County) from its confluence with Clear Fork upstream including all named and unnamed tributaries. | | | ii | | Cox Branch from its confluence with Clear Fork to Tazewell's raw water intake (river mile 1.6). | | | iii | | Ding Branch from its confluence with Nobusiness Creek upstream including all named and unnamed tributaries. | | | ii | | Dry Fork (Bland County) from 4.8 miles above its confluence with Laurel Creek upstream including all named and unnamed tributaries. | | | ii | | East Fork Cove Creek (Tazewell County) from its confluence with Cove Creek upstream including all named and unnamed tributaries. | | | | | Hunting Camp Creek from its confluence with Wolf Creek upstream including all named and unnamed tributaries. | | | *** | | Hunting Camp Creek from its confluence with Wolf Creek 8.9 miles upstream. | | | iii | | Hunting Camp Creek from 8.9 miles above its confluence with Wolf Creek 3 miles upstream. | | | ii | | Laurel Creek (tributary to Wolf Creek in Bland County) from Camp Laurel in the vicinity of Laurel Fork Church, upstream including all named and unnamed tributaries. | | | ii | | Laurel Creek from a point 0.7 mile from its confluence with Sinking Creek upstream including all named and unnamed tributaries. | | | ii | | Little Creek (Tazewell County) from 1.5 miles above its confluence with Wolf Creek above the Tazewell County Sportsmen's Club Lake upstream including all named and unnamed tributaries. | | | ii | | Mercy Branch from its confluence with Mill Creek upstream including all named and unnamed tributaries. | | | ii | | Mill Creek from the Narrows Town line upstream including all named and unnamed tributaries. | | | ii | | Mudley Branch from its confluence with the West Fork Cove Creek upstream including all named and unnamed tributaries. | | | | | Nobusiness Creek from its confluence with Kimberling Creek upstream including all named and unnamed tributaries. | | | *** | | Nobusiness Creek from its confluence with Kimberling Creek 4.7 miles upstream. | | | iii | | Nobusiness Creek from 4.7 miles above its confluence with Kimberling Creek upstream including all named and unnamed tributaries. | | | ii | | Oneida Branch from its confluence with the West Fork Cove Creek upstream including all named and unnamed tributaries. | | | iii | | Panther Den Branch from its confluence with Nobusiness Creek upstream including all named and unnamed tributaries. | | | ii | | Piney Creek from its confluence with the New River upstream including all named and unnamed tributaries. | | | ii | | Wabash Creek from its confluence with Walker Creek upstream including all named and unnamed tributaries. | | | ii | | West Fork Cove Creek from its confluence with Cove Creek upstream including all named and unnamed tributaries. | | 1a | | | (Deleted) | | 1b | IV | u | Wolf Creek and its tributaries in Virginia from its confluence with Mill Creek upstream to the Giles-Bland County line. | | 1c | | | (Deleted) | | 1d | IV | u | Stony Creek and its tributaries, unless otherwise designated in this chapter, from its confluence with the New River upstream to its headwaters, and Little Stony Creek and its tributaries from its confluence with the New River to its headwaters. | | | V | | Stockable Trout Waters in Section 1d | | | vi | | Stony Creek (Giles County) from its confluence with the New River to its confluence with Laurel Branch. | | | VI | | Natural Trout Waters in Section 1d | | | iii | | Dismal Branch from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Dixon Branch from its confluence with North Fork Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Hemlock Branch from its confluence with Little Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Laurel Branch from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Laurel Creek from its confluence with Little Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Little Stony Creek from its confluence with the New River upstream including all named and unnamed tributaries. | | | ii | | Maple Flats Branch from its confluence with Little Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Meredith Branch from its confluence with Little Stony Creek upstream including all named and unnamed tributaries. | | | iii | | Nettle Hollow from its confluence with Little Stony Creek upstream including all named and unnamed tributaries. | | | ii | | North Fork Stony Creek from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | iii | | Pine Swamp Branch from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Pond Drain from its confluence with Little Stony Creek upstream including all named and unnamed tributaries. | | | iii | | Stony Creek (Giles County) from the confluence of Laurel Branch at Olean upstream including all named and unnamed tributaries. | | | ii | | White Rock Branch from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | | ii | | Wildcat Hollow from its confluence with Stony Creek upstream including all named and unnamed tributaries. | | 1e | IV | PWS,u | Kimberling Creek and its tributaries from Bland Correctional Farm's raw water intake to points 5 miles upstream. | | | VI | PWS | Natural Trout Waters in Section 1e | | | iii | | Dismal Creek from its confluence with Kimberling Creek upstream including all named and unnamed tributaries. | | | iii | | Pearis Thompson Branch from its confluence with Dismal Creek upstream including all named and unnamed tributaries. | | | iii | | Standrock Branch from its confluence with Dismal Creek upstream including all named and unnamed tributaries. | | 1f | | | (Deleted) | | 1g | IV | u | Bluestone River and its tributaries, unless otherwise designated in this chapter, from the Virginia-West Virginia state line upstream to their headwaters. | | 1h | IV | PWS,u | Bluestone River and its tributaries from Bluefield's raw water intake upstream to its headwaters. | | | VI | PWS | Natural Trout Waters in Section 1h | | | iii | | Bluestone River from a point adjacent to the Route 650/460 intersection to a point 5.7 miles upstream. | | 1i | IV | PWS | Big Spring Branch from the Town of Pocahontas's intake, from the Virginia-West Virginia state line, including the entire watershed in Abbs Valley (the Town of Pocahontas's intake is located in West Virginia near the intersection of West Virginia State Route 102 and Rye Road. | | 1j | | | (Deleted) | | 1k | IV | PWS | Walker Creek and its tributaries from the Wythe-Bland Water and Sewer Authority's raw water intake (for Bland) to points 5 miles upstream. | | 1l | VI ii | PWS | Cox Branch and its tributaries from Tazewell's raw water intake at the Tazewell Reservoir (river mile 1.6) to headwaters. | | 2 | IV | v, NEW-5 | New River and its tributaries, unless otherwise designated in this chapter, from the Montgomery-Giles County line upstream to the Virginia-North Carolina state line (to include Peach Bottom Creek from its confluence with the New River to the mouth of Little Peach Bottom Creek). | | | V | | Stockable Trout Waters in Section 2 | | | v | | Beaverdam Creek from its confluence with the Little River to its headwaters. | | | v | | Big Indian Creek from its confluence with the Little River to a point 7.4 miles upstream. | | | vi | | Boyd Spring Run from its confluence with the New River to its headwaters. | | | *** | | Brush Creek from the first bridge on Route 617 south of the junction of Routes 617 and 601 to the Floyd County line. | | | vi | | Camp Creek from its confluence with the Little River to its headwaters. | | | vi | | Cove Creek (Wythe County) from Route 77, 8.1 miles above its confluence with Reed Creek, 10.5 miles upstream. | | | | | Dodd Creek from its confluence with the West Fork Little River to its headwaters. | | | *** | | Dodd Creek from its confluence with the West Fork Little River 4 miles upstream. | | | vi | | Dodd Creek from 4 miles above its confluence with the West Fork Little River to its headwaters. | | | vi | | East Fork Stony Fork from its confluence with Stony Fork 4 miles upstream. | | | *** | | Elk Creek from its confluence with Knob Fork Creek to the junction of State Routes 611 and 662. | | | vi | | Gullion Fork from its confluence with Reed Creek 3.3 miles upstream. | | | vi | | Little Brush Creek from its confluence with Brush Creek 1.9 miles upstream. | | | vi | | Lost Bent Creek from its confluence with the Little River to its headwaters. | | | vi | | Middle Creek from its confluence with Little River to its headwaters. | | | vi | | Middle Fox Creek from its confluence with Fox Creek 4.1 miles upstream. | | | vi | | Mill Creek (Wythe County) from its confluence with the New River 3.7 miles upstream. | | | v | | North Fork Greasy Creek from its confluence with Greasy Creek to its headwaters. | | | vi | | Oldfield Creek from its confluence with the Little River to its headwaters. | | | vi | | Peach Bottom Creek from the mouth of Little Peach Bottom Creek to its headwaters. | | | vi | | Pine Branch from its confluence with the Little River to its headwaters. | | | vi | | Pine Creek (Carroll County) from its confluence with Big Reed Island Creek to its headwaters. | | | vi | | Piney Fork from its confluence with Greasy Creek to its headwaters. | | | vi | | Poor Branch from its confluence with the New River to its headwaters. | | | vi | | Poverty Creek (Montgomery County) from its confluence with Toms Creek to its headwaters. | | | vi | | Reed Creek (Wythe County) within the Jefferson National Forest from 57 miles above its confluence with the New River 6.8 miles upstream, unless otherwise designated in this chapter. | | | vi | | Shady Branch from its confluence with Greasy Creek to its headwaters. | | | vi | | Shorts Creek from 6.2 miles above its confluence with the New River in the vicinity of Route 747, 3 miles upstream. | | | vi | | South Fork Reed Creek from river mile 6.8 (at Route 666 below Groseclose) 11.9 miles upstream. | | | vi | | St. Lukes Fork from its confluence with Cove Creek 1.4 miles upstream. | | | vi | | Stony Fork (Wythe County) from 1.9 miles above its confluence with Reed Creek at the intersection of Routes 600, 682, and 21/52 at Favonia 5.7 miles upstream. | | | *** | | Toms Creek from its confluence with the New River to its headwaters. | | | vi | | West Fork Big Indian Creek from its confluence with Big Indian Creek to its headwaters. | | | vi | | Wolf Branch from its confluence with Poor Branch 1.2 miles upstream. | | | VI | | Natural Trout Waters in Section 2 | | | ii | | Baker Branch from its confluence with Cabin Creek upstream including all named and unnamed tributaries. | | | ii | | Baldwin Branch from 0.2 mile above its confluence with Big Horse Creek at the Virginia-North Carolina state line upstream including all named and unnamed tributaries. | | | ii | | Bear Creek (Carroll County) from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | iii | | Beaver Creek from its confluence with the Little River upstream including all named and unnamed tributaries. | | | iii | | Beaverdam Creek (Carroll County) from its confluence with Crooked Creek upstream including all named and unnamed tributaries. | | | ii | | Big Branch from its confluence with Greasy Creek upstream including all named and unnamed tributaries. | | | iii | | Big Horse Creek from 12.8 miles above its confluence with the North Fork New River (above the Virginia-North Carolina state line below Whitetop) upstream including all named and unnamed tributaries. | | | ii | | Big Indian Creek from a point 7.4 miles upstream of its confluence with the Little River upstream including all named and unnamed tributaries. | | | ii | | Big Laurel Creek from its confluence with the Little River upstream including all named and unnamed tributaries. | | | iii | | Big Laurel Creek from its confluence with Pine Creek upstream including all named and unnamed tributaries. | | | iii | | Big Reed Island Creek from Route 221 upstream including all named and unnamed tributaries. | | | iii | | Big Run from its confluence with the Little River upstream including all named and unnamed tributaries. | | | | | Big Wilson Creek from its confluence with the New River upstream including all named and unnamed tributaries. | | | *** | | Big Wilson Creek from its confluence with the New River 8.8 miles upstream. | | | ii | | Big Wilson Creek from 8.8 miles above its confluence with the New River 6.6 miles upstream. | | | iii | | Blue Spring Creek from its confluence with Cripple Creek upstream including all named and unnamed tributaries. | | | ii | | Boothe Creek from its confluence with the Little River upstream including all named and unnamed tributaries. | | | ii | | Bournes Branch from its confluence with Brush Creek upstream including all named and unnamed tributaries. | | | iii | | Brannon Branch from its confluence with Burks Fork upstream including all named and unnamed tributaries. | | | ii | | Brier Run from its confluence with Big Wilson Creek upstream including all named and unnamed tributaries. | | | ii | | Buffalo Branch from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | iii | | Burgess Creek from its confluence with Big Horse Creek upstream including all named and unnamed tributaries. | | | iii | | Burks Fork from the Floyd-Carroll County line upstream including all named and unnamed tributaries. | | | ii | | Byars Creek from its confluence with Whitetop Creek upstream including all named and unnamed tributaries. | | | | | Cabin Creek from its confluence with Helton Creek upstream including all named and unnamed tributaries. | | | ii | | Cabin Creek from its confluence with Helton Creek 3.2 miles upstream. | | | i | | Cabin Creek from 3.2 miles above its confluence with Helton Creek upstream including all named and unnamed tributaries. | | | ii | | Cherry Creek from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | ii | | Chisholm Creek from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | iv | | Crigger Creek from its confluence with Cripple Creek upstream including all named and unnamed tributaries. | | | *** | | Cripple Creek from the junction of the stream and U.S. Route 21 in Wythe County upstream including all named and unnamed tributaries. | | | iii | | Crooked Creek (Carroll County) from Route 707 to Route 620. | | | ii | | Crooked Creek from Route 620 upstream including all named and unnamed tributaries. | | | iii | | Daniel Branch from its confluence with Crooked Creek upstream including all named and unnamed tributaries. | | | iii | | Dobbins Creek from its confluence with the West Fork Little River upstream including all named and unnamed tributaries. | | | iv | | Dry Creek from 1.9 miles above its confluence with Blue Spring Creek upstream including all named and unnamed tributaries. | | | iii | | Dry Run (Wythe County) from its confluence with Cripple Creek upstream including all named and unnamed tributaries. | | | iii | | Earls Branch from its confluence with Beaver Creek upstream including all named and unnamed tributaries. | | | iii | | East Fork Crooked Creek from its confluence with Crooked Creek upstream including all named and unnamed tributaries. | | | ii | | East Fork Dry Run from its confluence with Dry Run upstream including all named and unnamed tributaries. | | | ii | | East Prong Furnace Creek from its confluence with Furnace Creek upstream including all named and unnamed tributaries. | | | ii | | Elkhorn Creek from its confluence with Crooked Creek upstream including all named and unnamed tributaries. | | | ii | | Fox Creek from its junction with Route 734 upstream including all named and unnamed tributaries. | | | iii | | Francis Mill Creek from its confluence with Cripple Creek upstream including all named and unnamed tributaries. | | | ii | | Furnace Creek from its confluence with the West Fork Little River upstream including all named and unnamed tributaries. | | | *** | | Glade Creek (Carroll County) from its confluence with Crooked Creek upstream including all named and unnamed tributaries. | | | iii | | Grassy Creek (Carroll County) from its confluence with Big Reed Island Creek at Route 641, upstream including all named and unnamed tributaries. | | | vi** | | Grassy Creek (Carroll County) from its confluence with Little Reed Island Creek at Route 769, upstream including all named and unnamed tributaries. | | | iii | | Greasy Creek from the Floyd-Carroll County line upstream including all named and unnamed tributaries. | | | iii | | Greens Creek from its confluence with Stone Mountain Creek upstream including all named and unnamed tributaries. | | | iii | | Guffey Creek from its confluence with Fox Creek upstream including all named and unnamed tributaries. | | | ii | | Helton Creek from the Virginia-North Carolina state line upstream including all named and unnamed tributaries. | | | ii | | Howell Creek from its confluence with the West Fork Little River upstream including all named and unnamed tributaries. | | | ii | | Jerry Creek (Grayson County) from its confluence with Middle Fox Creek upstream including all named and unnamed tributaries. | | | iii | | Jones Creek (Wythe County) from its confluence with Kinser Creek upstream including all named and unnamed tributaries. | | | ii | | Killinger Creek from its confluence with Cripple Creek and White Rock Creek upstream including all named and unnamed tributaries. | | | iii | | Kinser Creek from 0.4 mile above its confluence with Crigger Creek above the Mount Rogers National Recreation Area Boundary at Groseclose Chapel upstream including all named and unnamed tributaries. | | | iii | | Laurel Branch (Carroll County) from its confluence with Staunton Branch upstream including all named and unnamed tributaries. | | | iii | | Laurel Creek (Grayson County) from its confluence with Fox Creek upstream including all named and unnamed tributaries. | | | ii | | Laurel Fork from the Floyd-Carroll County line upstream including all named and unnamed tributaries. | | | iii | | Laurel Fork (Carroll County) from its confluence with Big Reed Island Creek to the Floyd-Carroll County line. | | | i | | Lewis Fork from its confluence with Fox Creek upstream including all named and unnamed tributaries. | | | iii | | Little Cranberry Creek from its confluence with Crooked Creek upstream including all named and unnamed tributaries. | | | ii | | Little Helton Creek from the Virginia-North Carolina state line upstream including all named and unnamed tributaries. | | | *** | | Little Reed Island Creek from its junction with State Routes 782 and 772 upstream including all named and unnamed tributaries, unless otherwise designated in this chapter. | | | *** | | Little River from its junction with Route 706 upstream including all named and unnamed tributaries. | | | ii | | Little Snake Creek from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | ii | | Little Wilson Creek from its confluence with Wilson Creek (at Route 16 at Volney) upstream including all named and unnamed tributaries. | | | ii | | Long Mountain Creek from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | iii | | Meadow Creek (Floyd County) from its confluence with the Little River upstream including all named and unnamed tributaries. | | | iii | | Meadow View Run from its confluence with Burks Fork upstream including all named and unnamed tributaries. | | | iii | | Middle Creek from its confluence with Crigger Creek upstream including all named and unnamed tributaries. | | | ii | | Middle Fork Helton Creek from its confluence with Helton Creek 2.2 miles upstream. | | | i | | Middle Fork Helton Creek from 2.2 miles above its confluence with Helton Creek upstream including all named and unnamed tributaries. | | | iii | | Middle Fox Creek from 4.1 miles above its confluence with Fox Creek upstream including all named and unnamed tributaries. | | | iii | | Mill Creek (Carroll County) from its confluence with Little Reed Island Creek upstream including all named and unnamed tributaries. | | | ii | | Mill Creek (Grayson County) from its confluence with Fox Creek upstream including all named and unnamed tributaries. | | | iii | | Mira Fork from its confluence with Greasy Creek upstream including all named and unnamed tributaries. | | | ii | | North Branch Elk Creek from its confluence with Elk Creek upstream including all named and unnamed tributaries. | | | iii | | North Prong Buckhorn Creek from its confluence with Buckhorn Creek upstream including all named and unnamed tributaries. | | | ii | | Oldfield Creek from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | ii | | Opossum Creek from its confluence with Fox Creek upstream including all named and unnamed tributaries. | | | iii | | Payne Creek from its confluence with the Little River upstream including all named and unnamed tributaries. | | | iii | | Peak Creek from 19 miles above its confluence with the New River above the Gatewood Reservoir upstream including all named and unnamed tributaries. | | | iii | | Pine Creek (Carroll County) from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | iii | | Pine Creek (Floyd County) from its confluence with Little River upstream including all named and unnamed tributaries. | | | iii | | Pipestem Branch from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | i | | Quebec Branch from its confluence with Big Wilson Creek upstream including all named and unnamed tributaries. | | | iv | | Raccoon Branch from its confluence with White Rock Creek upstream including all named and unnamed tributaries. | | | *** | | Reed Creek (Wythe County) from 5 miles above Wytheville's raw water intake upstream including all named and unnamed tributaries. | | | ii | | Ripshin Creek from its confluence with Laurel Creek upstream including all named and unnamed tributaries. | | | iii | | Road Creek (Carroll County) from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | ii | | Road Creek (Carroll County) from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | iv | | Rock Creek from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | iii | | Silverleaf Branch from its confluence with the Little River upstream including all named and unnamed tributaries. | | | iii | | Snake Creek from Route 670 (3.2 miles above its confluence with Big Reed Island Creek) upstream including all named and unnamed tributaries. | | | ii | | Solomon Branch from its confluence with Fox Creek upstream including all named and unnamed tributaries. | | | vi** | | South Branch Elk Creek from its confluence with Elk Creek upstream including all named and unnamed tributaries. | | | iii | | Spurlock Creek from its confluence with the West Fork Little River upstream including all named and unnamed tributaries. | | | iii | | Staunton Branch from its confluence with Crooked Creek upstream including all named and unnamed tributaries. | | | iii | | Stone Mountain Creek from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | iii | | Straight Branch (Carroll County) from its confluence with Greens Creek upstream including all named and unnamed tributaries. | | | ii | | Sulphur Spring Branch from its confluence with Big Reed Island Creek upstream including all named and unnamed tributaries. | | | iii | | Tory Creek from its confluence with Laurel Fork upstream including all named and unnamed tributaries. | | | iii | | Tract Fork from the confluence of Fortnerfield Branch upstream including all named and unnamed tributaries. | | | ii | | Trout Branch from its confluence with Little Reed Island creek upstream including all named and unnamed tributaries. | | | iii | | Turkey Fork from 2.6 miles above its confluence with Elk Creek upstream including all named and unnamed tributaries. | | | ii | | Venrick Run from its confluence with Reed Creek upstream including all named and unnamed tributaries. | | | iii | | West Fork Comers Rock Branch from its confluence with Comers Rock Branch upstream including all named and unnamed tributaries. | | | iii | | West Fork Dodd Creek from its confluence with Dodd Creek upstream including all named and unnamed tributaries. | | | iii | | West Fork Dry Run from its confluence with Dry Run 2 miles upstream. | | | iii | | West Fork Little Reed Island Creek (Carroll County) from its confluence with Little Reed Island Creek upstream including all named and unnamed tributaries. | | | *** | | West Fork Little River from its confluence with Little River upstream including all named and unnamed tributaries. | | | iii | | West Prong Furnace Creek from its confluence with Furnace Creek upstream including all named and unnamed tributaries. | | | | | White Rock Creek from its confluence with Cripple Creek upstream including all named and unnamed tributaries. | | | *** | | White Rock Creek from its confluence with Cripple Creek 1.9 miles upstream. | | | iv | | White Rock Creek from 1.9 miles above its confluence with Cripple Creek upstream including all named and unnamed tributaries. | | | ii | | Whitetop Creek from its confluence with Big Horse Creek upstream including all named and unnamed tributaries. | | | i | | Wilburn Branch from its confluence with Big Wilson Creek upstream including all named and unnamed tributaries. | | 2a | IV | PWS,v | New River from Radford Army Ammunition Plant's raw water intake (that intake which is the further downstream), upstream to a point 5 miles above the NRV Regional Water Authority's raw water intake and including tributaries in this area to points 5 miles above the respective raw water intakes. | | 2b | IV | PWS,v | New River from Radford's raw water intake upstream to Claytor Dam and including tributaries to points 5 miles above the intake. | | 2c | IV | v, NEW-4 | New River and its tributaries, except Peak Creek above Interstate Route 81, from Claytor Dam to Big Reed Island Creek (Claytor Lake). | | | V | | Stockable Trout Waters in Section 2c | | | vi | | Chimney Branch from its confluence with Big Macks Creek to its headwaters. | | | vi | | White Oak Camp Branch from its confluence with Chimney Branch to its headwaters. | | | VI | | Natural Trout Waters in Section 2c | | | ii | | Bark Camp Branch from its confluence with Big Macks Creek upstream including all named and unnamed tributaries. | | | ii | | Big Macks Creek from Powhatan Camp upstream including all named and unnamed tributaries. | | | iii | | Little Macks Creek from its confluence with Big Macks Creek upstream including all named and unnamed tributaries. | | | ii | | Puncheoncamp Branch from its confluence with Big Macks Creek upstream including all named and unnamed tributaries. | | 2d | IV | PWS,v,NEW-5 | Peak Creek and its tributaries from Pulaski's raw water intake upstream, including Hogan Branch to its headwaters and Gatewood Reservoir. | | | V | | Stockable Trout Waters in Section 2d | | | *** | | (West Fork) Peak Creek from the Forest Service Boundary to its headwaters. | | 2e | | | (Deleted) | | 2f | IV | PWS,v | Little Reed Island Creek and its tributaries from Hillsville's upstream raw water intake near Cranberry Creek to points 5 miles above Hillsville's upstream raw water intake, including the entire watershed of the East Fork Little Reed Island Creek. | | | VI | PWS | Natural Trout Waters in Section 2f | | | iii | | East Fork Little Reed Island Creek from its confluence with West Fork Little Reed Island Creek upstream including all named and unnamed tributaries. | | | *** | | Little Reed Island Creek from Hillsville's upstream raw water intake to a point 5 miles upstream. | | | Iii | | Mine Branch from its confluence with the East Fork Little Reed Island Creek 2 miles upstream. | | 2g | IV | PWS,v | Reed Creek and its tributaries from Wytheville's raw water intake to points 5 miles upstream. | | | VI | PWS,v | Natural Trout Waters in Section 2g | | | *** | | Reed Creek from the western town limits of Wytheville to 5 miles upstream. | | 2h | IV | PWS,v | Chestnut Creek and its tributaries from Galax's raw water intake upstream to their headwaters or to the Virginia-North Carolina state line. | | | VI | PWS | Natural Trout Waters in Section 2h | | | *** | | Coal Creek from its confluence with Chestnut Creek upstream including all named and unnamed tributaries. | | | ii | | East Fork Chestnut Creek (Grayson County) from its confluence with Chestnut Creek upstream including all named and unnamed tributaries. | | | iii | | Hanks Branch from its confluence with the East Fork Chestnut Creek upstream including all named and unnamed tributaries. | | | iii | | Linard Creek from its confluence with Hanks Branch upstream including all named and unnamed tributaries. | | 2i | IV | | Fries Reservoir section of the New River from river mile 141.36 to river mile 144.29. | | 2j | IV | PWS | Eagle Bottom Creek from Fries's raw water intake upstream to its headwaters. | | 2k | IV | | New River from Stuart Dam at N36°36'08"/W81°18'40" upstream 2.29 miles. | | 2l | IV | PWS | New River and its tributaries inclusive of the Wythe County Water Department's Austinville intake near the Route 636 bridge, and the Wythe County Water Department's Ivanhoe intake on Powder Mill Branch just upstream of the Wythe-Carroll County line to points 5 miles above the intakes. | | | V | PWS | Stockable Trout Waters in Section 2l | | | vi | | Powder Mill Branch (from 0.6 mile above its confluence with the New River) 2.1 miles upstream. | | 2m | IV | PWS, NEW-4,5 | New River (Claytor Lake) from the Klopman Mills raw water intake to the Pulaski County Public Service Authority's raw water intake and tributaries to points 5 miles upstream of each intake. | | 2n | | | (Deleted) |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.
• Historical Notes: Derived from VR680-21-08.19, eff. May 25, 1988; amended, Virginia Register Volume 14, Issue 4, eff. December 10, 1997; Errata, 14:12 VA.R. 1937 March 2, 1998; amended, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Volume 26, Issue 12, eff. February 1, 2010; Volume 32, Issue 26, eff. June 27, 2017.

Part X Designations of Authority [Repealed]

9VAC25-260-550 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 14, Issue 4, eff. December 10, 1997; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Chapter 580 Underground Storage Tanks: Technical Standards and Corrective Action Requirements

Part I Definitions, Applicability, and Installation Requirements for Partially Excluded UST Systems

9VAC25-580-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Aboveground release" means any release to the surface of the land or to surface water. This includes releases from the aboveground portion of a UST system and aboveground releases associated with overfills and transfer operations as the regulated substance moves to or from a UST system.

"Airport hydrant fuel distribution system" or "airport hydrant system" means an UST system that fuels aircraft and operates under high pressure with large diameter piping that typically terminates into one or more hydrants (fill stands). The airport hydrant system begins where fuel enters one or more tanks from an external source such as a pipeline, barge, rail car, or other motor fuel carrier.

"Ancillary equipment" means any devices including such devices as piping, fittings, flanges, valves, and pumps used to distribute, meter, or control the flow of regulated substances to and from an UST.

"Belowground release" means any release to the subsurface of the land and to groundwater. This includes releases from the belowground portions of an underground storage tank system and belowground releases associated with overfills and transfer operations as the regulated substance moves to or from an underground storage tank.

"Beneath the surface of the ground" means beneath the ground surface or otherwise covered with earthen materials.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Building official" means the executive official of the local government building department empowered by § 36-105 of the Code of Virginia to enforce and administer the Virginia Uniform Statewide Building Code (USBC) (§ 36-97 et seq. of the Code of Virginia).

"Cathodic protection" is a technique to prevent corrosion of a metal surface by making that surface the cathode of an electrochemical cell. For example, a tank system can be cathodically protected through the application of either galvanic anodes or impressed current.

"Cathodic protection tester" means a person who can demonstrate an understanding of the principles and measurements of all common types of cathodic protection systems as applied to buried or submerged metal piping and tank systems. At a minimum, such persons must have education and experience in soil resistivity, stray current, structure-to-soil potential, and component electrical isolation measurements of buried metal piping and tank systems.

"CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 USC § 9601 et seq.).

"Compatible" means the ability of two or more substances to maintain their respective physical and chemical properties upon contact with one another for the design life of the tank system under conditions likely to be encountered in the UST.

"Connected piping" means all underground piping including valves, elbows, joints, flanges, and flexible connectors attached to a tank system through which regulated substances flow. For the purpose of determining how much piping is connected to any individual UST system, the piping that joins two UST systems should be allocated equally between them.

"Containment sump"means a liquid-tight container that protects the environment by containing leaks and spills of regulated substances from piping, dispensers, pumps, and related components in the containment area. Containment sumps may be single walled or secondarily contained and located at the top of the tank (tank top or submersible turbine pump sump), underneath the dispenser (under-dispenser containment sump), or at other points in the piping run (transition or intermediate sump).

"Corrosion expert" means a person who, by reason of thorough knowledge of the physical sciences and the principles of engineering and mathematics acquired by a professional education and related practical experience, is qualified to engage in the practice of corrosion control on buried or submerged metal piping systems and metal tanks. Such a person must be accredited or certified as being qualified by the National Association of Corrosion Engineers or be a registered professional engineer who has certification or licensing that includes education and experience in corrosion control of buried or submerged metal piping systems and metal tanks.

"De minimis" means trivial and beyond the intent of regulation, as that term is used at 53 FR 37108-37109.

"Delivery prohibition" is prohibiting the delivery, deposit, or acceptance of product to an underground storage tank system that has been determined to be ineligible by the department for such delivery, deposit, or acceptance.

"Delivery prohibition tag" means a tag, device, or mechanism on the tank's fill pipes that clearly identifies an underground storage tank system as ineligible for product delivery. The tag or device is easily visible to the product deliverer and clearly states and conveys that it is unlawful to deliver to, deposit into, or accept product into the ineligible underground storage tank system. The tag, device, or mechanism is generally tamper resistant.

"Department" means the Department of Environmental Quality.

"Dielectric material" means a material that does not conduct direct electrical current. Dielectric coatings are used to electrically isolate UST systems from the surrounding soils. Dielectric bushings are used to electrically isolate portions of the UST system (e.g., tank from piping).

"Director" means the director of the Department of Environmental Quality.

"Dispenser" means equipment located aboveground that dispenses regulated substances from the UST system.

"Dispenser system"means the dispenser and the equipment necessary to connect the dispenser to the underground storage tank system.

"Electrical equipment" means underground equipment that contains dielectric fluid that is necessary for the operation of equipment such as transformers and buried electrical cable.

"Excavation zone" means the volume containing the tank system and backfill material bounded by the ground surface, walls, and floor of the pit and trenches into which the UST system is placed at the time of installation.

"Existing tank system" means a tank system used to contain an accumulation of regulated substances or for which installation has commenced on or before December 22, 1988. Installation is considered to have commenced if:

1. The owner or operator has obtained all federal, state, and local approvals or permits necessary to begin physical construction of the site or installation of the tank system; and if

2. a. Either a continuous onsite physical construction or installation program has begun; or

b. The owner or operator has entered into contractual obligations, which cannot be canceled or modified without substantial loss, for physical construction at the site or installation of the tank system to be completed within a reasonable time.

"Farm tank" is a tank located on a tract of land devoted to the production of crops or raising animals, including fish, and associated residences and improvements. A farm tank must be located on the farm property. "Farm" includes fish hatcheries, rangeland and nurseries with growing operations.

"Field-constructed tank" means a tank constructed in the field. For example, a tank constructed of concrete that is poured in the field, or a steel or fiberglass tank primarily fabricated in the field is considered field constructed.

"Flow-through process tank" is a tank that forms an integral part of a production process through which there is a steady, variable, recurring, or intermittent flow of materials during the operation of the process. Flow-through process tanks do not include tanks used for the storage of materials prior to their introduction into the production process or for the storage of finished products or by-products from the production process.

"Free product" refers to a regulated substance that is present as a nonaqueous phase liquid (e.g., liquid not dissolved in water).

"Gathering lines" means any pipeline, equipment, facility, or building used in the transportation of oil or gas during oil or gas production or gathering operations.

"Hazardous substance UST system" means an underground storage tank system that contains a hazardous substance defined in § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980 (42 USC § 9601 et seq.) (but not including any substance regulated as a hazardous waste under subtitle C of RCRA) or any mixture of such substances and petroleum, and which is not a petroleum UST system.

"Heating oil" means petroleum that is No. 1, No. 2, No. 4-light, No. 4-heavy, No. 5-light, No. 5-heavy, and No. 6 technical grades of fuel oil; other residual fuel oils (including Navy Special Fuel Oil and Bunker C); and other fuels when used as substitutes for one of these fuel oils. Heating oil is typically used in the operation of heating equipment, boilers, or furnaces.

"Hydraulic lift tank" means a tank holding hydraulic fluid for a closed-loop mechanical system that uses compressed air or hydraulic fluid to operate lifts, elevators, and other similar devices.

"Liquid trap" means sumps, well cellars, and other traps used in association with oil and gas production, gathering, and extraction operations (including gas production plants), for the purpose of collecting oil, water, and other liquids. These liquid traps may temporarily collect liquids for subsequent disposition or reinjection into a production or pipeline stream, or may collect and separate liquids from a gas stream.

"Maintenance" means the normal operational upkeep to prevent an underground storage tank system from releasing product.

"Motor fuel" means a complex blend of hydrocarbons typically used in the operation of a motor engine, such as motor gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any blend containing one or more of these substances (for example, motor gasoline blended with alcohol).

"New tank system" means a tank system that will be used to contain an accumulation of regulated substances and for which installation has commenced after December 22, 1988 (See also "existing tank system").

"Noncommercial purposes" with respect to motor fuel means not for resale.

"On the premises where stored" with respect to heating oil means UST systems located on the same property where the stored heating oil is used.

"Operational life" refers to the period beginning when installation of the tank system has commenced until the time the tank system is properly closed under Part VII (9VAC25-580-310 et seq.) of this chapter.

"Operator" means any person in control of, or having responsibility for, the daily operation of the UST system.

"Overfill release" is a release that occurs when a tank is filled beyond its capacity, resulting in a discharge of the regulated substance to the environment.

"Owner" means:

1. In the case of a UST system in use on November 8, 1984, or brought into use after that date, any person who owns an UST system used for storage, use, or dispensing of regulated substances; and

2. In the case of any UST system in use before November 8, 1984, but no longer in use on that date, any person who owned such UST immediately before the discontinuation of its use.

The term "owner" shall not include any person who, without participating in the management of an underground storage tank or being otherwise engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect the holder's security interest in the tank.

"Person" means an individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, any state or agency thereof, municipality, county, town, commission, political subdivision of a state, any interstate body, consortium, joint venture, commercial entity, the government of the United States or any unit or agency thereof.

"Petroleum UST system" means an underground storage tank system that contains petroleum or a mixture of petroleum with de minimis quantities of other regulated substances. Such systems include those containing motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils.

"Pipe" or "piping" means a hollow cylinder or tubular conduit that is constructed of nonearthen materials.

"Pipeline facilities (including gathering lines)" are new and existing pipe rights-of-way and any associated equipment, facilities, or buildings.

"Product deliverer" is any person who delivers or deposits product into an underground storage tank.

"RCRA" means the federal Resource Conservation and Recovery Act of 1976 as amended (42 USC § 6901 et seq.).

"Regulated substance" means an element, compound, mixture, solution, or substance that, when released into the environment, may present substantial danger to the public health or welfare, or the environment. The term "regulated substance" includes:

1. Any substance defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 (42 USC § 9601 et seq.), but not any substance regulated as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act (RCRA) of 1976 (42 USC § 6901 et seq.); and

2. Petroleum, including crude oil or any fraction thereof, that is liquid at standard conditions of temperature and pressure (60°F and 14.7 pounds per square inch absolute). The term "regulated substance" includes petroleum and petroleum-based substances comprised of a complex blend of hydrocarbons, such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils.

"Release" means any spilling, leaking, emitting, discharging, escaping, leaching or disposing from an UST into groundwater, surface water or subsurface soils.

"Release detection" means determining whether a release of a regulated substance has occurred from the UST system into the environment or a leak has occurred into the interstitial space between the UST system and its secondary barrier or secondary containment around it.

"Repair" means to restore to proper operating condition a tank, a pipe, spill prevention equipment, overfill prevention equipment, corrosion protection equipment, release detection equipment, or other UST system component that has caused a release of product from the UST system or has failed to function properly.

"Replaced"means:

1. For a tank - to remove a tank and install another tank.

2. For piping - to remove 50% or more of piping and install other piping, excluding connectors, connected to a single tank. For tanks with multiple piping runs, this definition applies independently to each piping run.

"Residential tank" is a tank located on property used primarily for dwelling purposes.

"SARA" means the Superfund Amendments and Reauthorization Act of 1986.

"Secondary containment" or "secondarily contained" means a release prevention and release detection system for a tank or piping. This system has an inner and outer barrier with an interstitial space that is monitored for leaks. This term includes containment sumps when used for interstitial monitoring of piping.

"Septic tank" is a water-tight covered receptacle designed to receive or process, through liquid separation or biological digestion, the sewage discharged from a building sewer. The effluent from such receptacle is distributed for disposal through the soil, and settled solids and scum from the tank are pumped out periodically and hauled to a treatment facility.

"Storm water or wastewater collection system" means piping, pumps, conduits, and any other equipment necessary to collect and transport the flow of surface water run-off resulting from precipitation, or domestic, commercial, or industrial wastewater to and from retention areas or any areas where treatment is designated to occur. The collection of storm water and wastewater does not include treatment except where incidental to conveyance.

"Surface impoundment" is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials) that is not an injection well.

"Tank" is a stationary device designed to contain an accumulation of regulated substances and constructed of nonearthen materials (e.g., concrete, steel, plastic) that provide structural support.

"Under-dispenser containment" or "UDC" means containment underneath a dispenser system designed to prevent leaks from the dispenser and piping within or above the UDC from reaching soil or groundwater.

"Underground area" means an underground room, such as a basement, cellar, shaft or vault, providing enough space for physical inspection of the exterior of the tank situated on or above the surface of the floor.

"Underground release" means any belowground release.

"Underground storage tank" or "UST" means any one or combination of tanks (including underground pipes connected thereto) that is used to contain an accumulation of regulated substances, and the volume of which (including the volume of underground pipes connected thereto) is 10% or more beneath the surface of the ground. This term does not include any:

1. Farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;

2. Tank used for storing heating oil for consumption on the premises where stored;

3. Septic tank;

4. Pipeline facility (including gathering lines):

a. Regulated under the Natural Gas Pipeline Safety Act of 1968 (49 USC § 1671 et seq.);

b. Regulated under the Hazardous Liquid Pipeline Safety Act of 1979 (49 USC § 2001 et seq.); or

c. Which is an intrastate pipeline facility regulated under state laws comparable to the provisions of the law referred to in subdivision 4 a or 4 b of this definition;

5. Surface impoundment, pit, pond, or lagoon;

6. Storm water or wastewater collection system;

7. Flow-through process tank;

8. Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or

9. Storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.

The term "underground storage tank" or "UST" does not include any pipes connected to any tank that is described in subdivisions 1 through 9 of this definition.

"Upgrade" means the addition or retrofit of some systems such as cathodic protection, lining, or spill and overfill controls to improve the ability of an underground storage tank system to prevent the release of product.

"UST system" or "tank system" means an underground storage tank, connected underground piping, underground ancillary equipment, and containment system, if any.

"Wastewater treatment tank" means a tank that is designed to receive and treat an influent wastewater through physical, chemical, or biological methods.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 1.1, eff. October 25, 1989; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Volume 26, Issue 25, eff. September 15, 2010; Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-20 Applicability

A. The requirements of this chapter apply to all owners and operators of an UST system as defined in 9VAC25-580-10 except as otherwise provided in subsections B and C of this section.

1. Previously deferred UST systems. Airport hydrant fuel distribution systems, UST systems with field-constructed tanks, and UST systems that store fuel solely for use by emergency power generators must meet the requirements of this chapter as follows:

a. Airport hydrant fuel distribution systems and UST systems with field-constructed tanks must meet the requirements in Part X (9VAC25-580-380 et seq.) of this chapter.

b. UST systems that store fuel solely for use by emergency power generators installed before September 15, 2010, must have met all applicable requirements of this chapter before September 15, 2010, except that the requirements of Part IV (9VAC25-580-130 et seq.) of this chapter must be met before January 1, 2021.

c. UST systems that store fuel solely for use by emergency power generators installed on or after September 15, 2010, must meet all applicable requirements of this chapter at installation.

2. Any UST system listed in subsection C of this section must meet the requirements of 9VAC25-580-30.

B. Exclusions. The following UST systems are excluded from the requirements of this chapter:

1. Any UST system holding hazardous wastes listed or identified under Subtitle C of the Solid Waste Disposal Act (42 USC § 6901) or a mixture of such hazardous waste and other regulated substances.

2. Any wastewater treatment tank system that is part of a wastewater treatment facility regulated under § 402 or § 307(b) of the Clean Water Act.

3. Equipment or machinery that contains regulated substances for operational purposes such as hydraulic lift tanks and electrical equipment tanks.

4. Any UST system whose capacity is 110 gallons or less.

5. Any UST system that contains a de minimis concentration of regulated substances.

6. Any emergency spill or overflow containment UST system that is expeditiously emptied after use.

C. Partial Exclusions. Parts II (9VAC25-580-50 et seq.), III (9VAC25-580-80 et seq.), IV, V (9VAC25-580-190 et seq.), VII (9VAC25-580-310 et seq.), IX (9VAC25-580-370 et seq.), and X of this chapter do not apply to any of the following types of UST systems:

1. Wastewater treatment tank systems not covered under 9VAC25-580-20 B 2 of this section;

2. Aboveground storage tanks associated with:

a. Airport hydrant fuel distribution systems regulated under Part X of this chapter; and

b. UST systems with field-constructed tanks regulated under Part X of this chapter.

3. Any UST systems containing radioactive material that are regulated under the Atomic Energy Act of 1954 (42 USC § 2011 et seq.); and

4. Any UST system that is part of an emergency generator system at nuclear power generation facilities licensed by the Nuclear Regulatory Commission and subject to Nuclear Regulatory Commission requirements regarding design and quality criteria, including 10 CFR Part 50.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 1.2, eff. October 25, 1989; amended, Virginia Register Volume 26, Issue 25, eff. September 15, 2010; Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017.

9VAC25-580-30 Installation requirements for partially excluded UST systems

Owners and operators must install an UST system listed in subsection C of 9VAC25-580-20 storing regulated substances (whether of single-wall or double-wall construction) that meets the following requirements:

1. Will prevent releases due to corrosion or structural failure for the operational life of the UST system;

2. Is cathodically protected against corrosion, constructed of noncorrodible material, steel clad with a noncorrodible material, or designed in a manner to prevent the release or threatened release of any stored substance; and

3. Is constructed or lined with material that is compatible with the stored substance.

Note: The following codes of practice may be used as guidance for complying with this section:

(a) NACE International Standard Practice SP0285, External Corrosion Control of Underground Storage Tank Systems by Cathodic Protection;

(b) NACE International Standard Practice SP0169, Control of External Corrosion on Underground or Submerged Metallic Piping Systems;

(c) American Petroleum Institute Recommended Practice 1632, Cathodic Protection of Underground Petroleum Storage Tanks and Piping Systems; or

(d) Steel Tank Institute Recommended Practice R892, Recommended Practice for Corrosion Protection of Underground Piping Networks Associated with Liquid Storage and Dispensing Systems.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 1.3, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018.

9VAC25-580-40 Permitting and inspection requirements for all UST systems

In all instances of installation, upgrade, repair and closure where a UST system is constructed, enlarged, altered, repaired or closed all UST systems must be permitted and inspected in accordance with 9VAC25-580-50, 9VAC25-580-60, 9VAC25-580-110, 9VAC25-580-160, 9VAC25-580-170, 9VAC25-580-310, 9VAC25-580-320, 9VAC25-580-380, and 9VAC25-580-390.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 1.4, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018.

Part II UST Systems: Design, Construction, Installation, and Notification

9VAC25-580-50 Performance standards for new UST systems

In order to prevent releases due to structural failure, corrosion, or spills and overfills for as long as the UST system is used to store regulated substances, all owners and operators of new UST systems must meet the requirements in this section.

Tanks and piping installed or replaced on or after September 15, 2010, must be secondarily contained and use interstitial monitoring in accordance with subdivision 7 of 9VAC25-580-160, except for suction piping that meets the requirements of subdivisions 2 a (2) (a) through (e) of 9VAC25-580-140. Secondary containment must be able to contain regulated substances leaked from the primary containment until they are detected and removed and prevent the release of regulated substances to the environment at any time during the operational life of the UST system. For cases where the piping is considered to be replaced, the entire piping run must be secondarily contained.

1. Tanks. Each tank must be properly designed and constructed, and any portion underground that routinely contains product must be protected from corrosion, in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory as specified below:

a. The tank is constructed of fiberglass-reinforced plastic;

NOTE: The following codes of practice may be used to comply with subdivision 1 a of this section:

(1) Underwriters Laboratories Standard 1316, Glass-Fiber-Reinforced Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and Alcohol-Gasoline Mixtures; or

(2) Underwriter's Laboratories of Canada S615 Standard for Reinforced Plastic Underground Tanks for Flammable and Combustible Liquids.

b. The tank is constructed of steel and cathodically protected in the following manner:

(1) The tank is coated with a suitable dielectric material;

(2) Field-installed cathodic protection systems are designed by a corrosion expert;

(3) Impressed current systems are designed to allow determination of current operating status as required in subdivision 3 of 9VAC25-580-90; and

(4) Cathodic protection systems are operated and maintained in accordance with 9VAC25-580-90; or

NOTE: The following codes of practice may be used to comply with subdivision 1 b of this section:

(a) Steel Tank Institute Specification for STI-P3^® Specification and Manual for External Corrosion Protection of Underground SteelStorage Tanks;

(b) Underwriters Laboratories Standard 1746, External Corrosion Protection Systems for Steel Underground Storage Tanks;

(c) Underwriters Laboratories of Canada S603, Standard for Steel Underground Tanks for Flammable and Combustible Liquids, and S603.1, Standard for External Corrosion Protection Systems for Steel Underground Tanks for Flammable and Combustible Liquids, and S631, Standard for Isolating Bushings for Steel Underground Tanks Protected with External Corrosion Protection Systems

(d) Steel Tank Institute Standard F841, Standard for Dual Wall Underground Steel Storage Tanks; or

(e) NACE International Standard Practice SP0285, External Corrosion Control of Underground Storage Tank Systems by Cathodic Protection, and Underwriters Laboratories Standard 58, Standard for Steel Underground Tanks for Flammable and Combustible Liquids.

c. The tank is constructed of steel and clad or jacketed with a noncorrodible material; or

NOTE: The following codes of practice may be used to comply with subdivision 1 c of this section:

(1) Underwriters Laboratories Standard 1746, External Corrosion Protection Systems for Steel Underground Storage Tanks;

(2) Steel Tank Institute ACT-100^® Specification F894, Specification for External Corrosion Protection of FRP Composite Steel Underground Storage Tanks;

(3) Steel Tank Institute ACT-100-U^® Specification F961, Specification for External Corrosion Protection of Composite Steel Underground Storage Tanks; or

(4) Steel Tank Institute Specification F922, Steel Tank Institute Specification for Permatank^®.

d. The tank construction and corrosion protection are determined by the department to be designed to prevent the release or threatened release of any stored regulated substance in a manner that is no less protective of human health and the environment than subdivisions 1 a, 1 b, and 1 c of this section.

2. Piping. The piping that routinely contains regulated substances and is in contact with the ground must be properly designed, constructed, and protected from corrosion in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory as specified below:

a. The piping is constructed of a noncorrodible material.

NOTE: The following codes of practice may be used to comply with subdivision 2 a of this section:

(1) Underwriters Laboratories Standard 971, Nonmetallic Underground Piping for Flammable Liquids; or

(2) Underwriters Laboratories of Canada Standard S660, Standard for Nonmetallic Underground Piping for Flammable and Combustible Liquids.

b. The piping is constructed of steel and cathodically protected in the following manner:

(1) The piping is coated with a suitable dielectric material;

(2) Field-installed cathodic protection systems are designed by a corrosion expert;

(3) Impressed current systems are designed to allow determination of current operating status as required in subdivision 3 of 9VAC25-580-90; and

(4) Cathodic protection systems are operated and maintained in accordance with 9VAC25-580-90; or

NOTE: The following codes of practice may be used to comply with subdivision 2 b of this section:

(a) American Petroleum Institute Recommended Practice 1632, Cathodic Protection of Underground Petroleum Storage Tanks and Piping Systems;

(b) Underwriters Laboratories Subject 971A, Outline of Investigation for Metallic Underground Fuel Pipe;

(c) Steel Tank Institute Recommended Practice R892, Recommended Practice for Corrosion Protection of Underground Piping Networks Associated with Liquid Storage and Dispensing Systems;

(d) NACE International Standard Practice SP0169, Control of External Corrosion on Underground or Submerged Metallic Piping Systems; or

(e) NACE International Standard Practice SP0285, External Corrosion Control of Underground Storage Tank Systems by Cathodic Protection.

c. The piping construction and corrosion protection are determined by the department to be designed to prevent the release or threatened release of any stored regulated substance in a manner that is no less protective of human health and the environment than the requirements in subdivisions 2 a and 2 b of this section.

3. Spill and overfill prevention equipment.

a. Except as provided in subdivisions 3 b and 3 c of this section, to prevent spilling and overfilling associated with product transfer to the UST system, owners and operators must use the following spill and overfill prevention equipment:

(1) Spill prevention equipment that will prevent release of product to the environment when the transfer hose is detached from the fill pipe (for example, a spill catchment basin); and

(2) Overfill prevention equipment that will:

(a) Automatically shut off flow into the tank when the tank is no more than 95% full;

(b) Alert the transfer operator when the tank is no more than 90% full by restricting the flow into the tank or triggering a high-level alarm; or

(c) Restrict the flow 30 minutes prior to overfilling, alert the transfer operator with a high level alarm one minute before overfilling, or automatically shut off flow into the tank so that none of the fittings located on top of the tank are exposed to product due to overfilling.

b. Owners and operators are not required to use the spill and overfill prevention equipment specified in subdivision 3 a of this section if:

(1) Alternative equipment is used that is determined by the department to be no less protective of human health and the environment than the equipment specified in subdivision 3 a (1) or 3 a (2) of this section; or

(2) The UST system is filled by transfers of no more than 25 gallons at one time.

c. Flow restrictors used in vent lines may not be used to comply with subdivision 3 a (2) of this section when overfill protection is installed or replaced on or after January 1, 2018.

d. Spill and overfill protection equipment must be periodically tested or inspected in accordance with 9VAC25-580-82.

4. Installation.

a. The UST system must be properly installed in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory and in accordance with the manufacturer's instructions.

b. Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia). No UST system shall be installed or placed into use without the owner and operator having obtained the required permit and inspections from the building official under the provisions of the Virginia Uniform Statewide Building Code.

In the case of state-owned facilities, the Department of General Services shall function as the building official in accordance with § 36-98.1 of the Code of Virginia.

In the case of federal facilities, the building official must be contacted. Owners and operators must obtain a permit and the required inspections must be issued in accordance with the provisions of the Virginia Uniform Statewide Building Code.

NOTE: Tank and piping system installation practices and procedures described in the following codes of practice may be used to comply with the requirements of subdivision 4 of this section:

(1) American Petroleum Institute Publication 1615, Installation of Underground Petroleum Storage System;

(2) Petroleum Equipment Institute Publication RP100, Recommended Practices for Installation of Underground Liquid Storage Systems; or

(3) National Fire Protection Association Standard 30, Flammable and Combustible Liquids Code and Standard 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages.

NOTE: These industry codes require that prior to bringing the system into use the following tests be performed: (i) tank tightness test (air); (ii) pipe tightness test (air or hydrostatic); and (iii) precision system test.

5. Certification of installation. All owners and operators must ensure that one or more of the following methods of certification, testing, or inspection in subdivisions 5 a through 5 d of this section is performed, and a permit has been issued in accordance with the provisions of the Virginia Uniform Statewide Building Code to demonstrate compliance with subdivision 4 of this section. A certification of compliance on the UST Notification form must be submitted to the department in accordance with 9VAC25-580-70.

a. The installer has been certified by the tank and piping manufacturers;

b. The installation has been inspected and certified by a registered professional engineer with education and experience in UST system installation;

c. All work listed in the manufacturer's installation checklists has been completed; or

d. The owner and operator have complied with another method for ensuring compliance with subdivision 4 of this section that is determined by the department to be no less protective of human health and the environment.

6. Release detection. Release detection shall be provided in accordance with Part IV (9VAC25-580-130 et seq.) of this chapter.

7. Dispenser systems. Each UST system must be equipped with under-dispenser containment for any new dispenser system installed on or after September 15, 2010.

a. A dispenser system is considered new when both the dispenser and the equipment needed to connect the dispenser to the underground storage tank system are installed at an UST facility. The equipment necessary to connect the dispenser to the underground storage tank system includes check valves, shear valves, unburied risers or flexible connectors, or other transitional components that are underneath the dispenser and connect the dispenser to the underground piping.

b. Under-dispenser containment must be liquid-tight on its sides, bottom, and at any penetrations. Under-dispenser containment must allow for visual inspection and access to the components in the containment system or be periodically monitored for leaks from the dispenser system.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 2.1, eff. October 25, 1989; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Volume 26, Issue 25, eff. September 15, 2010; Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-60 Upgrading of existing UST systems

Owners and operators must permanently close in accordance with Part VII (9VAC25-580-310 et seq.) of this chapter any UST system that does not meet the new UST system performance standards in 9VAC25-580-50 or has not been upgraded in accordance with subdivisions 2, 3, and 4 of this section. This does not apply to previously deferred UST systems described in Part X (9VAC25-580-380 et seq.) of this chapter and where an upgrade is determined to be appropriate by the department.

Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

A permit from the building official must be obtained prior to upgrading any UST system. No upgraded UST system shall be placed into use unless and until the system is inspected in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

In the case of state-owned facilities, the Department of General Services shall function as the building official in accordance with § 36-98.1 of the Code of Virginia.

In the case of federal facilities the building official must be contacted. Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

1. Alternatives allowed. All existing UST systems must comply with one of the following requirements:

a. New UST system performance standards under 9VAC25-580-50;

b. The upgrading requirements in subdivisions 2, 3, and 4 of this section; or

c. Closure requirements under Part VII of this chapter, including applicable requirements for corrective action under Part VI (9VAC25-580-230 et seq.) of this chapter.

2. Tank upgrading requirements. Steel tanks must be upgraded to meet one of the following requirements in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory:

a. Interior lining. Tanks upgraded by internal lining must meet the following:

(1) The lining was installed in accordance with the requirements of 9VAC25-580-110; and

(2) Within 10 years after lining, and every five years thereafter, the lined tank is internally inspected and found to be structurally sound with the lining still performing in accordance with original design specifications. If the internal lining is no longer performing in accordance with original design specifications and cannot be repaired in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory, then the lined tank must be permanently closed in accordance with Part VII of this chapter.

b. Cathodic protection. Tanks upgraded by cathodic protection must meet the requirements of 9VAC25-580-50 1 b (2), (3), and (4) and the integrity of the tank must have been ensured using one of the following methods:

(1) The tank was internally inspected and assessed to ensure that the tank was structurally sound and free of corrosion holes prior to installing the cathodic protection system;

(2) The tank had been installed for less than 10 years and is monitored monthly for releases in accordance with subdivisions 4 through 9 of 9VAC25-580-160;

(3) The tank had been installed for less than 10 years and was assessed for corrosion holes by conducting two tightness tests that meet the requirements of subdivision 3 of 9VAC25-580-160. The first tightness test must have been conducted prior to installing the cathodic protection system. The second tightness test must have been conducted between three and six months following the first operation of the cathodic protection system; or

(4) The tank was assessed for corrosion holes by a method that is determined by the department to prevent releases in a manner that is no less protective of human health and the environment than subdivisions 2 b (1), (2), and (3) of this section.

c. Internal lining combined with cathodic protection. Tanks upgraded by both internal lining and cathodic protection must meet the following:

(1) The lining was installed in accordance with the requirements of 9VAC25-580-110; and

(2) The cathodic protection system meets the requirements of subdivisions 1 b (2), (3), and (4) of 9VAC25-580-50.

NOTE: The following historical codes of practice were listed as options for complying with subdivision 2 of this section:

(a) American Petroleum Institute Publication 1631, Recommended Practice for the Interior Lining of Existing Steel Underground Storage Tanks;

(b) National Leak Prevention Association Standard 631, Spill Prevention, Minimum 10 Year Life Extension of Existing Steel Underground Tanks by Lining Without the Addition of Cathodic Protection;

(c) National Association of Corrosion Engineers Standard RP-02-85, Control of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid Storage Systems; and

(d) American Petroleum Institute Recommended Practice 1632, Cathodic Protection of Underground Petroleum Storage Tanks and Piping Systems.

NOTE: The following codes of practice may be used to comply with the periodic lining inspection requirement in subdivision 2 a (2) of this section:

(a) American Petroleum Institute Recommended Practice 1631, Interior Lining and Periodic Inspection of Underground Storage Tanks;

(b) National Leak Prevention Association Standard 631, Chapter B Future Internal Inspection Requirements for Lined Tanks; or

(c) Ken Wilcox Associates Recommended Practice, Recommended Practice for Inspecting Buried Lined Steel Tanks Using a Video Camera.

3. Piping upgrading requirements. Metal piping that routinely contains regulated substances and is in contact with the ground must be cathodically protected in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory and must meet the requirements of subdivisions 2 b (2), (3) and (4) of 9VAC25-580-50.

NOTE: The codes of practice listed in the note following subdivision 2 b of 9VAC25-580-50 may be used to comply with this requirement.

4. Spill and overfill prevention equipment. To prevent spilling and overfilling associated with product transfer to the UST system, all existing UST systems must comply with UST system spill and overfill prevention equipment requirements specified in subdivision 3 of 9VAC25-580-50.

5. Release detection. Release detection shall be provided in accordance with Part IV (9VAC25-580-130 et seq.) of this chapter.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 2.2, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-70 Notification requirements

A. After May 8, 1986, an owner must submit notice of a tank system's existence to the department within 30 days of bringing the underground storage tank system into use. Owners must use a UST Notification form approved by the department.

B. Any change in ownership, tank status, tank/piping systems, or substance stored requires the UST owner to submit an amended notification form, or other documentation approved by the department, within 30 days after such change or upgrade occurs or is brought into use. Owners may provide notice for several tanks using one notification form, but owners with tanks located at more than one place of operation must file a separate notification form for each separate place of operation.

C. Under Virginia UST notification requirements effective July 1, 1987, owners of property who have actual knowledge of underground storage tanks on such property that were taken out of service before January 1, 1974, yet are still in the ground, must notify the department on the notification form.

NOTE: Under the federal UST Notification Program, owners and operators of UST systems that were in the ground on or after May 8, 1986, unless taken out of operation on or before January 1, 1974, were required to notify the department in accordance with the Hazardous and Solid Waste Amendments of 1984, P.L. 98-616 (42 USC § 9603), on a form published by EPA on November 8, 1985, (50 FR 46602) unless notice was given pursuant to § 103(c) of CERCLA. Owners and operators who have not complied with the notification requirements may use portions I through VI of the UST Notification form approved by the department.

D. All owners and operators of new UST systems must certify in the notification form compliance with the following requirements:

1. Installation of tanks and piping under subdivision 5 of 9VAC25-580-50.

2. Cathodic protection of steel tanks and piping under subdivisions 1 and 2 of 9VAC25-580-50.

3. Financial responsibility under financial responsibility regulations promulgated by the board under 9VAC25-590.

4. Release detection under 9VAC25-580-140 and 9VAC25-580-150.

E. All owners and operators of new UST systems must ensure that the installer certifies in the notification form that the methods used to install the tanks and piping comply with the requirements in subdivision 4 of 9VAC25-580-50.

F. Beginning October 24, 1988, any person who sells a tank intended to be used as an underground storage tank must notify the purchaser of such tank of the owner's notification obligations under subsection A of this section. The statement provided in the following note, when used on shipping tickets and invoices, may be used to comply with this requirement:

NOTE: A federal law (the Solid Waste Disposal Act, 42 USC § 6901 et seq.) requires owners of certain underground storage tanks to notify implementing agencies of the existence of their tanks. Notifications must be made within 30 days of bringing the tank into use. Consult EPA's regulations at 40 CFR 280.22 to determine if you are affected by this law.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 2.3, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part III General Operating Requirements

9VAC25-580-80 Spill and overfill control

A. Owners and operators must ensure that releases due to spilling or overfilling do not occur. The owner and operator must ensure that the volume available in the tank is greater than the volume of product to be transferred to the tank before the transfer is made and that the transfer operation is monitored constantly to prevent overfilling and spilling.

NOTE: The transfer procedures described in National Fire Protection Association Standard 385 Standard for Tank Vehicles for Flammable and Combustible Liquids or American Petroleum Institute Recommended Practice 1007, Loading and Unloading of MC 306/DOT 406 Cargo Tank Motor Vehicles may be used to comply with this subsection. Further guidance on spill and overfill prevention appears in American Petroleum Institute, Recommended Practice 1621, Bulk Liquid Stock Control at Retail Outlets.

B. The owner and operator must report, investigate, and clean up any spills and overfills in accordance with 9VAC25-580-220.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 3.1, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018.

9VAC25-580-82 Periodic testing of spill prevention equipment and containment sumps used for interstitial monitoring of piping and periodic inspection of overfill prevention equipment

A. Owners and operators of UST systems with spill and overfill prevention equipment and containment sumps used for interstitial monitoring of piping must meet these requirements to ensure the equipment is operating properly and will prevent releases to the environment:

1. Spill prevention equipment (such as a catchment basin, spill bucket, or other spill containment device) and containment sumps used for interstitial monitoring of piping must prevent releases to the environment by meeting one of the following:

a. The equipment is double walled and the integrity of both walls is periodically monitored as described in 9VAC25-580-85 A 1 a (1) at a frequency not less than the frequency of the walkthrough inspections described in 9VAC25-580-85. Within 30 days of discontinuing periodic monitoring under this subdivision, owners and operators must conduct a test in accordance with subdivision A 1 b of this section and begin meeting the requirements of that subdivision; or

b. The spill prevention equipment and containment sumps used for interstitial monitoring of piping are tested at least once every three years to ensure the equipment is liquid tight by using vacuum, pressure, or liquid testing in accordance with one of the following criteria:

(1) Requirements developed by the manufacturer (Note: Owners and operators may use this option only if the manufacturer has developed requirements);

(2) Code of practice developed by a nationally recognized association or independent testing laboratory; or

(3) Requirements determined by the department to be no less protective of human health and the environment than the requirements listed in subdivisions A 1 b (1) and (2) of this section.

2. Overfill prevention equipment must be inspected at least once every three years. At a minimum, the inspection must ensure that overfill prevention equipment is set to activate at the correct level specified in subdivision 3 of 9VAC25-580-50 and will activate when regulated substance reaches that level. Inspections must be conducted in accordance with one of the criteria in subdivisions 1 b (1), (2), or (3) of this subsection.

NOTE: The following code of practice may be used to comply with subdivisions A 1 b and A 2 of this section: Petroleum Equipment Institute Publication RP 1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities.

B. Owners and operators must begin meeting these requirements as follows:

1. For UST systems in use before January 1, 2018, the initial spill prevention equipment test, containment sump test, and overfill prevention equipment inspection must be conducted not later than January 1, 2021.

2. For UST systems brought into use on or after January 1, 2018, these requirements apply at installation.

C. Owners and operators must maintain records as follows in accordance with 9VAC25-580-120 for spill prevention equipment, containment sumps used for interstitial monitoring of piping, and overfill prevention equipment:

1. All records of testing or inspection must be maintained for three years; and

2. For spill prevention equipment and containment sumps used for interstitial monitoring of piping not tested every three years, documentation showing that the prevention equipment is double walled and the integrity of both walls is periodically monitored must be maintained for as long as the equipment is periodically monitored.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-85 Periodic operation and maintenance walkthrough inspections

A. To properly operate and maintain UST systems, not later than January 1, 2021, owners and operators must meet one of the following:

1. Conduct a walkthrough inspection that, at a minimum, checks the following equipment as specified below:

a. Every 30 days (Exception: spill prevention equipment at UST systems receiving deliveries at intervals greater than every 30 days may be checked prior to each delivery):

(1) Spill prevention equipment – visually check for damage; remove liquid or debris; check for and remove obstructions in the fill pipe; check the fill cap to make sure it is securely on the fill pipe; and, for double walled spill prevention equipment with interstitial monitoring, check for a leak in the interstitial area; and

(2) Release detection equipment – check to make sure the release detection equipment is operating with no alarms or other unusual operating conditions present and ensure records of release detection testing are reviewed and current; and

b. Annually:

(1) Containment sumps – visually check for damage, leaks to the containment area, or releases to the environment; remove liquid (in contained sumps) or debris; and, for double walled sumps with interstitial monitoring, check for a leak in the interstitial area; and

(2) Handheld release detection equipment – check devices such as tank gauge sticks or groundwater bailers for operability and serviceability;

2. Conduct operation and maintenance walkthrough inspections according to a standard code of practice developed by a nationally recognized association or independent testing laboratory that checks equipment comparable to subdivision 1 of this subsection; or

3. Conduct operation and maintenance walkthrough inspections according to a protocol developed by the department that checks equipment comparable to subdivision 1 of this subsection.

B. Owners and operators must maintain records (in accordance with 9VAC25-580-120) of operation and maintenance walkthrough inspections for one year. Records must include a list of each area checked, whether each area checked was acceptable or needed action taken, a description of actions taken to correct an issue, and delivery records if spill prevention equipment is checked less frequently than every 30 days due to infrequent deliveries.

NOTE: The following code of practice may be used to comply with subdivision A 2 of this section: Petroleum Equipment Institute Recommended Practice RP 900, Recommended Practices for the Inspection and Maintenance of UST Systems.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-90 Operation and maintenance of corrosion protection

All owners and operators of metal UST systems with corrosion protection must comply with the following requirements to ensure that releases due to corrosion are prevented until the UST system is permanently closed or undergoes a change-in-service pursuant to 9VAC25-580-320:

1. All corrosion protection systems must be operated and maintained to continuously provide corrosion protection to the metal components of that portion of the tank and piping that routinely contain regulated substances and are in contact with the ground.

2. All UST systems equipped with cathodic protection systems must be inspected for proper operation by a qualified cathodic protection tester in accordance with the following requirements:

a. Frequency. All cathodic protection systems must be tested within six months of installation and at least every three years thereafter; and

b. Inspection criteria. The criteria that are used to determine that cathodic protection is adequate as required by this section must be in accordance with a code of practice developed by a nationally recognized association.

NOTE: The following codes of practice may be used to comply with subdivision 2 of this section:

(1) NACE International Test Method TM0101, Measurement Techniques Related to Criteria for Cathodic Protection of Underground Storage Tank Systems;

(2) NACE International Test Method TM0497, Measurement Techniques Related to Criteria for Cathodic Protection on Underground or Submerged Metallic Piping Systems;

(3) Steel Tank Institute Recommended Practice R051, Cathodic Protection Testing Procedures for STI-P3^® USTs;

(4) NACE International Standard Practice SP0285, External Control of Underground Storage Tank Systems by Cathodic Protection; or

(5) NACE International Standard Practice SP0169, Control of External Corrosion on Underground or Submerged Metallic Piping Systems.

3. UST systems with impressed current cathodic protection systems must also be inspected every 60 days to ensure the equipment is running properly. These systems only provide the necessary corrosion protection when in continuous operation. Such equipment shall be installed so that it cannot be inadvertently shut off.

4. For UST systems using cathodic protection, records of the operation of the cathodic protection must be maintained (in accordance with 9VAC25-580-120) to demonstrate compliance with the performance standards in this section. These records must provide the following:

a. The results of the last three inspections required in subdivision 3 of this section; and

b. The results of testing from the last two inspections required in subdivision 2 of this section.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 3.2, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018.

9VAC25-580-100 Compatibility

A. Owners and operators must use an UST system made of or lined with materials that are compatible with the substance stored in the UST system.

B. Owners and operators must notify the department at least 30 days prior to switching to a regulated substance containing greater than 10% ethanol, greater than 20% biodiesel, or any other regulated substance identified by the department. In addition, owners and operators with UST systems storing these regulated substances must meet one of the following:

1. Demonstrate compatibility of the UST system, including the tank, piping, containment sumps, pumping equipment, release detection equipment, spill equipment, and overfill equipment. Owners and operators may demonstrate compatibility of the UST system by using one of the following options:

a. Certification or listing of UST system equipment or components by a nationally recognized, independent testing laboratory for use with the regulated substance stored; or

b. Equipment or component manufacturer approval. The manufacturer's approval must be in writing, indicate an affirmative statement of compatibility, specify the range of biofuel blends the equipment or component is compatible with, and be from the equipment or component manufacturer; or

2. Use another option determined by the department to be no less protective of human health and the environment than the options listed in subdivision 1 of this subsection.

C. Owners and operators must maintain records in accordance with subdivision 2 of 9VAC25-580-120 documenting compliance with subsection B of this section for as long as the UST system is used to store the regulated substance.

NOTE: The following code of practice may be useful in complying with this section:

American Petroleum Institute Recommended Practice 1626, Storing and Handling Ethanol and Gasoline-Ethanol Blends at Distribution Terminals and Filling Stations.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 3.3, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-110 Repairs allowed

Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

A permit from the building official must be obtained prior to repairing any UST system. No repaired UST system shall be placed into use unless and until the system is inspected in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

In the case of state-owned facilities the Department of General Services shall function as the building official in accordance with § 36-98.1 of the Code of Virginia.

In the case of federal facilities the building official must be contacted. Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

Owners and operators of UST systems must ensure that repairs will prevent releases due to structural failure or corrosion as long as the UST system is used to store regulated substances. The repairs must meet the following requirements:

1. Repairs to UST systems must be properly conducted in accordance with a code of practice developed by a nationally recognized association or an independent testing laboratory.

NOTE: The following codes of practice may be used to comply with subdivision 1 of this section:

a. National Fire Protection Association Standard 30, Flammable and Combustible Liquids Code;

b. American Petroleum Institute Recommended Practice RP 2200, Repairing Crude Oil, Liquefied Petroleum Gas, and Product Pipelines;

c. American Petroleum Institute Recommended Practice RP 1631, Interior Lining and Periodic Inspection of Underground Storage Tanks;

d. National Fire Protection Association Standard 326, Standard for the Safeguarding of Tanks and Containers for Entry, Cleaning, or Repair;

e. National Leak Prevention Association Standard 631, Chapter A, Entry, Cleaning, Interior Inspection, Repair, and Lining of Underground Storage Tanks;

f. Steel Tank Institute Recommended Practice R972, Recommended Practice for the Addition of Supplemental Anodes to STI-P3^® Tanks;

g. NACE International Standard Practice SP 0285, External Control of Underground Storage Tank Systems by Cathodic Protection; or

h. Fiberglass Tank and Pipe Institute Recommended Practice T-95-02, Remanufacturing of Fiberglass Reinforced Plastic (FRP) Underground Storage Tanks.

2. Repairs to fiberglass-reinforced plastic tanks may be made by the manufacturer's authorized representatives or in accordance with a code of practice developed by a nationally recognized association or an independent testing laboratory.

3. Metal pipe sections and fittings that have released product as a result of corrosion or other damage must be replaced. Noncorrodible pipes and fittings may be repaired in accordance with the manufacturer's specifications.

4. Repairs to secondary containment areas of tanks and piping used for interstitial monitoring and to containment sumps used for interstitial monitoring of piping must have the secondary containment tested for tightness according to the manufacturer's instructions, a code of practice developed by a nationally recognized association or independent testing laboratory, or according to requirements established by the department within 30 days following the date of completion of the repair.

5. All other repairs to tanks and piping must be tightness tested in accordance with subdivision 3 of 9VAC25-580-160 and subdivision 2 of 9VAC25-580-170 within 30 days following the date of the completion of the repair except as provided below:

a. The repaired tank is internally inspected in accordance with a code of practice developed by a nationally recognized association or an independent testing laboratory;

b. The repaired portion of the UST system is monitored monthly for releases in accordance with a method specified in subdivisions 4 through 9 of 9VAC25-580-160; or

c. Another test method is used that is determined by the department to be no less protective of human health and the environment than those listed in subdivisions a and b of this subdivision 5.

NOTE: The following codes of practice may be used to comply with subdivisions 4 and 5 of this section:

(1) Steel Tank Institute Recommended Practice R012, Recommended Practice for Interstitial Tightness Testing of Existing Underground Double Wall Steel Tanks; or

(2) Fiberglass Tank and Pipe Institute Protocol, Field Test Protocol for Testing the Annular Space of Installed Underground Fiberglass Double and Triple-Wall Tanks With Dry Annular Space.

(3) Petroleum Equipment Institute Recommended Practice RP1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities.

6. Within six months following the repair of any cathodically protected UST system, the cathodic protection system must be tested in accordance with subdivisions 2 and 3 of 9VAC25-580-90 to ensure that it is operating properly.

7. Within 30 days following any repair to spill or overflow prevention equipment, the repaired spill or overflow prevention equipment must be tested or inspected as appropriate, in accordance with 9VAC25-580-82 to ensure it is operating properly.

8. UST system owners and operators must maintain records in accordance with 9VAC25-580-120 of each repair until the UST system is permanently closed or undergoes a change-in-service pursuant to 9VAC25-580-320.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 3.4, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-120 Reporting and recordkeeping

Owners and operators of UST systems must cooperate fully with inspections, monitoring and testing conducted by the department, as well as requests for document submission, testing, and monitoring by the owner or operator pursuant to § 9005 of Subtitle I of the Solid Waste Disposal Act, as amended.

1. Reporting. Owners and operators must submit the following information to the department:

a. Notification for all UST systems (9VAC25-580-70), which includes certification of installation for new UST systems (subdivision 5 of 9VAC25-580-50) and notification when any person assumes ownership of an UST system (9VAC25-580-70);

b. Notification prior to UST systems switching to certain regulated substances (subsection B of 9VAC25-580-100);

c. Reports of all releases including suspected releases (9VAC25-580-190), spills and overfills (9VAC25-580-220), and confirmed releases (9VAC25-580-240);

d. Corrective actions planned or taken including initial abatement measures (9VAC25-580-250), site characterization (9VAC25-580-260), free product removal (9VAC25-580-270), and corrective action plan (9VAC25-580-280); and

e. An amended notification form must be submitted within 30 days after permanent closure or change-in-service (9VAC25-580-320).

2. Recordkeeping. Owners and operators must maintain the following information:

a. Documentation of operation of corrosion protection equipment (subdivision 4 of 9VAC25-580-90);

b. Documentation of compatibility for UST systems (subsection C of 9VAC25-580-100);

c. Documentation of UST system repairs (subdivision 8 of 9VAC25-580-110);

d. Documentation of compliance and applicable installation records for spill and overfill prevention equipment and containment sumps used for interstitial monitoring of piping (subsection C of 9VAC25-580-82);

e. Documentation of periodic walkthrough inspections (subsection B of 9VAC25-580-85);

f. Documentation of compliance with release detection requirements (9VAC25-580-180);

g. Results of the site investigation conducted at permanent closure (9VAC25-580-350); and

h. Documentation of operator training required by 9VAC25-580-125, including verification of training for current Class A, Class B, and Class C operators, and current list of operators and written instructions or procedures for Class C operators (9VAC25-580-125).

3. Availability and maintenance of records. Owners and operators must keep the records required either:

a. At the UST site and immediately available for inspection by the department; or

b. At a readily available alternative site and be provided for inspection to the department upon request.

In the case of permanent closure records required under 9VAC25-580-350, owners and operators are also provided with the additional alternative of mailing closure records to the department if they cannot be kept at the site or an alternative site as indicated above.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 3.5, eff. October 25, 1989; amended, Virginia Register Volume 26, Issue 25, eff. September 15, 2010; Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-125 Operator training

A. Definitions.

1. For purposes of this section, "Class A operator" means an operator who has primary responsibility to operate and maintain the underground storage tank system and facility. The Class A operator's responsibilities include managing resources and personnel, such as establishing work assignments, to achieve and maintain compliance with regulatory requirements. In general, Class A operators focus on the broader aspects of the underground storage tank statutory and regulatory requirements and standards necessary to properly operate and maintain the underground storage tank system and facility.

2. For purposes of this section, "Class B operator" means an operator who implements applicable underground storage tank regulatory requirements and standards in the field or at the underground storage tank facility. A Class B operator oversees and implements the day-to-day aspects of operations, maintenance, and recordkeeping for the underground storage tanks at one or more facilities.

3. For purposes of this section, "Class C operator" means the person responsible for responding to alarms or other indications of emergencies caused by spills or releases from underground storage tank systems and equipment failures. A Class C operator, generally, is the first line of response to events indicating emergency conditions.

B. Requirements for trained operators.

1. Owners and operators of UST systems shall designate Class A, Class B, and Class C operators for each UST system or facility that has underground storage tanks.

a. A person may be designated for more than one class of operator.

b. Any person designated for more than one class of operator shall successfully complete the required training under subsection C of this section for each operator class for which he is designated.

c. Persons trained in accordance with subsection C of this section may perform operator duties consistent with their training when employed or contracted by the tank owner or operator to perform these functions.

2. Class A operators shall be familiar with training requirements for each class of operator and may provide required training for Class C operators.

3. Class B operators shall be familiar with Class B and Class C operator responsibilities and may provide training for Class C operators.

4. Trained operators shall be readily available to respond to suspected/confirmed releases, other unusual operating conditions and equipment shut-offs or failures.

a. The Class A or Class B operator shall be available for immediate telephone consultation when an UST facility is in operation. A Class A or Class B operator shall be able to be onsite at the facility within a reasonable time to perform necessary functions.

b. For manned facilities, a Class C operator shall be onsite whenever the UST facility is in operation. After September 15, 2010, written instructions or procedures shall be maintainedand visible at manned UST facilities for persons performing duties of the Class C operator to follow and to provide notification necessary in the event of emergency conditions.

c. For unmanned facilities, a Class C operator shall be available for immediate telephone consultation and shall be able to be onsite within a reasonable time to perform necessary functions. Emergency contact information shall be prominently displayed at the site. After September 15, 2010, written instructions or procedures shall be maintainedand visible at unmanned UST facilities for persons performing duties of the Class C operator to follow and to provide notification necessary in the event of emergency conditions.

C. Required training.

1. Class A operators shall successfully complete a training course approved by the department that includes a general knowledge of UST system requirements. Training shall provide information that should enable the operator to make informed decisions regarding compliance and ensuring that appropriate persons are fulfilling operation, maintenance, and recordkeeping requirements and standards of this chapter and/or federal underground storage tank requirements in 40 CFR Part 280 (relating to technical standards and corrective action requirements for owners and operators of underground storage tanks (UST)), including, at a minimum, the following:

a. Spill and overfill prevention;

b. Release detection and related reporting requirements;

c.Corrosion protection;

d. Emergency response;

e. Product and equipment compatibility;

f. Financial responsibility;

g. Notification and storage tank registration requirements;

h. Temporary and permanent closure requirements; and

i. Class B and Class C operator training requirements.

2. Class B operators shall successfully complete a training course approved by the department that includes an in-depth understanding of operation and maintenance aspects of UST systems and related regulatory requirements. Training shall provide specific information on the components of UST systems, materials of construction, methods of release detection and release prevention applied to UST systems and components. Training shall address operation and maintenance requirements of this chapter and/or federal underground storage tank requirements in 40 CFR Part 280, including, at a minimum, the following:

a. Spill and overfill prevention;

b. Release detection and related reporting requirements;

c. Corrosion protection and related testing;

d. Emergency response;

e. Product and equipment compatibility;

f. Reporting and recordkeeping requirements; and

g. Class C operator training requirements.

3. Class C operators. At a minimum, training provided by the tank owner or Class A or Class B operator shall enable the Class C operator to take action in response to emergencies caused by spills or releases and alarms from an underground storage tank. Training shall include written instructions or procedures for the Class C operator to follow and to provide notification necessary in the event of emergency conditions.

4. Successful completion for Class A and Class B operators means completion of the entire training course and demonstration of knowledge of the course material as follows:

a. Receipt of a passing grade (a score of 80% or better) on an examination of material presented in the training course, or demonstration through practical (hands-on) application to the trainer of operation and maintenance checks of underground storage tank equipment, including performance of release detection at the UST facility, at the conclusion of onsite training; and

b. Receipt of a training certificate by an approved trainer upon verification of successful completion of training under this section.

5. Reciprocity. The department may also recognize successful completion of Class A and Class B operator training on regulatory standards consistent with 40 CFR Part 280, which is recognized by other state or implementing agencies and which is approved by EPA as meeting operator training grant guidelines published by EPA.

6. The tank owner and operator shall incur the costs of the training.

D. Timing of training.

1. An owner and operator shall ensure that Class A, Class B and Class C operators are trained as soon as practicable after September 15, 2010, contingent upon availability of approved training providers, but not later than August 8, 2012.

2. When a Class A or Class B operator is replaced after August 8, 2012, a new operator shall be trained within 60 days of assuming duties for that class of operator.

3. Class C operators shall be trained before assuming duties of a Class C operator. After September 15, 2010, written instructions or procedures shall be provided to Class C operators to follow and to provide notification necessary in the event of emergency conditions. Class C operators shall be briefed on these instructions or procedures at least annually (every 12 months), which may be concurrent with annual safety training required under Occupational Safety and Health Administration, 29 CFR Part 1910 (relating to Occupational Safety and Health Standards).

E. Retraining.

1. Owners and operators of UST systems shall ensure that Class A and B operators in accordance with subsection C of this section are retrained if the department determines that the UST system is out of compliance with the requirements of 9VAC25-580-30 through 9VAC25-580-190. At a minimum, Class A and Class B operators shall successfully complete retraining in the areas identified as out of compliance.

2. Class A and B operators shall complete training pursuant to this subsection no later than 90 days from the date the department identifies the noncompliance.

F. Documentation.

1. Owners and operators of underground storage tank facilities shall prepare and maintain a list of designated Class A, Class B, and Class C operators. The list shall represent the current Class A, Class B, and Class C operators for the UST facility and shall include:

a. The name of each operator, class of operation trained for, and the date each operator successfully completed initial training and refresher training, if any.

b. For Class A and Class B operators that are not permanently onsite or assigned to more than one facility, telephone numbers to contact the operators.

2. A copy of the certificates of training for Class A and Class B operators shall be on file as long as each operator serves in that capacity at the facility or three years, whichever is longer, and readily available, and a copy of the facility list of Class A, Class B, and Class C operators and Class C operator instructions or procedures shall be kept onsite and immediatelyavailable for manned UST facilities and readily available for unmanned facilities (see subdivision 2 h of 9VAC25-580-120 relating to reporting and recordkeeping).

3. Class C operator and owner contact information, including names and telephone numbers, and any emergency information shall be conspicuously posted at unmanned facilities.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 1.2, eff. October 25, 1989; amended, Virginia Register Volume 26, Issue 25, eff. September 15, 2010; Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

Part IV Release Detection

9VAC25-580-130 General requirements for all petroleum and hazardous substance UST systems

A. Owners and operators of UST systems must provide a method, or combination of methods, of release detection that:

1. Can detect a release from any portion of the tank and the connected underground piping that routinely contains product;

2. Is installed and calibrated in accordance with the manufacturer's instructions, including routine maintenance and service checks for operability or running condition;

3. Beginning on January 1, 2021, is operated and maintained, and electronic and mechanical components are tested for proper operation, in accordance with one of the following: (i) manufacturer's instructions; (ii) a code of practice developed by a nationally recognized association or independent testing laboratory; or (iii) requirements determined by the department to be no less protective of human health and the environment than the two options listed in subdivisions 1 and 2 of this subsection. A test of the proper operation must be performed at least annually and, at a minimum, as applicable to the facility, cover the following components and criteria:

a. Automatic tank gauge and other controllers: test alarm; verify system configuration; test battery backup;

b. Probes and sensors: inspect for residual buildup; ensure floats move freely; ensure shaft is not damaged; ensure cables are free of kinks and breaks; test alarm operability and communication with controller;

c. Automatic line leak detector: test operation to meet criteria in subdivision 1 of 9VAC25-580-170 by simulating a leak;

d. Vacuum pumps and pressure gauges: ensure proper communication with sensors and controller; and

e. Handheld electronic sampling equipment associated with groundwater and vapor monitoring: ensure proper operation.

NOTE: The following code of practice may be used to comply with subdivision 3 of this subsection. Petroleum Equipment Institute Publication RP 1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities.

4. Meets the performance requirements in 9VAC25-580-160 or 9VAC25-580-170 or Part X (9VAC25-580-380 et seq.) of this chapter as applicable with any performance claims and their manner of determination described in writing by the equipment manufacturer or installer. In addition, the methods listed in subdivisions 2, 3, 4, 8, and 9 of 9VAC25-580-160; subdivisions 1 and 2 of 9VAC25-580-170; and Part X must be capable of detecting the leak rate or quantity specified for that method in the corresponding section of the regulation with a probability of detection of 0.95 and a probability of false alarm of 0.05.

B. When a release detection method operated in accordance with the performance standards in 9VAC25-580-160, 9VAC25-580-170, or Part X of this chapter indicates a release may have occurred, owners and operators must notify the department in accordance with Part V (9VAC25-580-190 et seq.) of this chapter.

C. Any UST system that cannot apply a method of release detection that complies with the requirements of this part must complete the closure procedures in Part VII (9VAC25-580-310 et seq.) of this chapter. For previously deferred UST systems described in Parts I (9VAC25-580-10 et seq.) and X of this chapter, this requirement applies on or after the effective dates described in 9VAC25-580-20 A 1 b and c and 9VAC25-580-380 A 1.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 4.1, eff. October 25, 1989; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Volume 26, Issue 25, eff. September 15, 2010; Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-140 Requirements for petroleum UST systems

Owners and operators of petroleum UST systems must provide release detection for tanks and piping as follows:

1. Tanks. Tanks must be monitored for releases as follows:

a. Tanks installed before September 15, 2010, must be monitored for releases at least every 30 days for releases using one of the methods listed in subdivisions 4 through 9 of 9VAC25-580-160 except that:

(1) UST systems that meet the performance standards in subdivisions 1 through 5 of 9VAC25-580-50 or subdivisions 1 through 4 of 9VAC25-580-60 may use both monthly inventory control requirements in subdivision 1 or 2 of 9VAC25-580-160, and tank tightness testing (conducted in accordance with subdivision 3 of 9VAC25-580-160) at least every five years until 10 years after the tank was installed; and

(2) Tanks with capacity of 550 gallons or less and tanks with a capacity of 551 to 1000 gallons that meet the tank diameter criteria in subdivision 2 of 9VAC25-580-160 may use manual tank gauging (conducted in accordance with subdivision 2 of 9VAC25-580-160).

b. Tanks installed on or after September 15, 2010, must be monitored for releases at least every 30 days in accordance with subdivision 7 of 9VAC25-580-160.

2. Piping. Underground piping that routinely contains regulated substances must be monitored for releases in a manner that meets one of the following requirements:

a. Piping installed before September 15, 2010, must meet one of the following:

(1) Pressurized piping. Underground piping that conveys regulated substances under pressure must:

(a) Be equipped with an automatic line leak detector conducted in accordance with subdivision 1 of 9VAC25-580-170; and

(b) Have an annual line tightness test conducted in accordance with subdivision 2 of 9VAC25-580-170 or have monthly monitoring conducted in accordance with subdivision 3 of 9VAC25-580-170.

(2) Suction piping. Underground piping that conveys regulated substances under suction must either have a line tightness test conducted at least every three years and in accordance with subdivision 2 of 9VAC25-580-170, or use a monthly monitoring method conducted in accordance with subdivision 3 of 9VAC25-580-170. No release detection is required for suction piping that is designed and constructed to meet the following standards:

(a) The below-grade piping operates at less than atmospheric pressure;

(b) The below-grade piping is sloped so that the contents of the pipe will drain back into the storage tank if the suction is released;

(c) Only one check valve is included in each suction line;

(d) The check valve is located directly below and as close as practical to the suction pump; and

(e) A method is provided that allows compliance with subdivisions 2 a (2) (b), (c), and (d) of this section to be readily determined.

b. Piping installed or replaced on or after September 15, 2010, must meet one of the following:

(1) Pressurized piping must be monitored for releases at least every 30 days in accordance with subdivision 7 of 9VAC25-580-160 and be equipped with an automatic line leak detector in accordance with subdivision 1 of 9VAC25-580-170.

(2) Suction piping must be monitored for releases at least every 30 days in accordance with subdivision 7 of 9VAC25-580-160. No release detection is required for suction piping that meets the requirements of subdivisions 2 a (2) (a) through (e) of this section.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 4.2, eff. October 25, 1989; amended, Volume 26, Issue 25, eff. September 15, 2010; Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017.

9VAC25-580-150 Requirements for hazardous substance UST systems

Owners and operators of hazardous substance UST systems must provide containment that meets the following requirements and monitor these systems using subdivision 7 of 9VAC25-580-160 at least every 30 days:

1. Secondary containment systems must be designed, constructed and installed to:

a. Contain regulated substances leaked from the primary containment until they are detected and removed;

b. Prevent the release of regulated substances to the environment at any time during the operational life of the UST system; and

c. Be checked for evidence of a release at least every 30 days.

NOTE: The provisions of 40 CFR 265.193, Containment and Detection of Releases, may be used to comply with these requirements for tanks installed before September 15, 2010.

2. Double-walled tanks must be designed, constructed, and installed to:

a. Contain a leak from any portion of the inner tank within the outer wall; and

b. Detect the failure of the inner wall.

3. External liners (including vaults) must be designed, constructed, and installed to:

a. Contain 100% of the capacity of the largest tank within its boundary;

b. Prevent the interference of precipitation or groundwater intrusion with the ability to contain or detect a release of regulated substances; and

c. Surround the tank completely (i.e., it is capable of preventing lateral as well as vertical migration of regulated substances).

4. Underground piping must be equipped with secondary containment that satisfies the requirements of this section (e.g., trench liners, double-walled pipe). In addition, underground piping that conveys regulated substances under pressure must be equipped with an automatic line leak detector in accordance with subdivision 1 of 9VAC25-580-170.

5. For hazardous substance UST systems installed before September 15, 2010, other methods of release detection may be used if owners and operators:

a. Demonstrate to the department that an alternate method can detect a release of the stored substance as effectively as any of the methods allowed in subdivisions 2 through 9 of 9VAC25-580-160 can detect a release of petroleum;

b. Provide information to the department on effective corrective action technologies, health risks, and chemical and physical properties of the stored substance, and the characteristics of the UST site; and

c. Obtain approval from the department to use the alternate release detection method before the installation and operation of the new UST system.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 4.3, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-160 Methods of release detection for tanks

Owners and operators must obtain a permit and the required inspections in accordance with 9VAC25-580-50 or 9VAC25-580-60 for the installation of certain release detection equipment contained in subdivisions 4 through 9 of this section.

Each method of release detection for tanks used to meet the requirements of 9VAC25-580-140 must be conducted in accordance with the following and be designed to detect releases at the earliest possible time for the specific method chosen:

1. Inventory control. Product inventory control (or another test of equivalent performance) must be conducted monthly to detect a release of at least 1.0% of flow-through plus 130 gallons on a monthly basis in the following manner:

a. Inventory volume measurements for regulated substance inputs, withdrawals, and the amount still remaining in the tank are recorded each operating day;

b. The equipment used is capable of measuring the level of product over the full range of the tank's height to the nearest 1/8 of an inch;

c. The regulated substance inputs are reconciled with delivery receipts by measurement of the tank inventory volume before and after delivery;

d. Deliveries are made through a drop tube that extends to within one foot of the tank bottom;

e. Product dispensing is metered and recorded according to regulations of the Bureau of Weights and Measures of the Virginia Department of Agriculture and Consumer Services for meter calibration within their jurisdiction; for all other product dispensing meter calibration, an accuracy of six cubic inches for every five gallons of product withdrawn is required; and

f. The measurement of any water level in the bottom of the tank is made to the nearest 1/8 of an inch at least once a month.

NOTE: Practices described in the American Petroleum Institute Recommended Practice RP 1621 Bulk Liquid Stock Control at Retail Outlets, may be used, where applicable, as guidance in meeting the requirements of this subsection.

2. Manual tank gauging. Manual tank gauging must meet the following requirements:

a. Tank liquid level measurements are taken at the beginning and ending of a period using the appropriate minimum duration of test value in the table below during which no liquid is added to or removed from the tank;

b. Level measurements are based on an average of two consecutive stick readings at both the beginning and ending of the period;

c. The equipment used is capable of measuring the level of product over the full range of the tank's height to the nearest 1/8 of an inch;

d. A release is suspected and subject to the requirements of Part V (9VAC25-580-190 et seq.) if the variation between beginning and ending measurements exceeds the weekly or monthly standards in the following table:

| Nominal Tank Capacity | Minimum Duration of Test | Weekly Standard (One Test) | Monthly Standard (Four Test Average) | | --- | --- | --- | --- | | 550 gallons or less | 36 hours | 10 gallons | 5 gallons | | 551 - 1,000 gallons (when tank diameter is 64 inches) | 44 hours | 9 gallons | 4 gallons | | 551 - 1,000 gallons (when tank diameter is 48 inches) | 58 hours | 12 gallons | 6 gallons | | 551 -1,000 gallons (also requires periodic tank tightness testing) | 36 hours | 13 gallons | 7 gallons | | 1001 - 2,000 gallons (also requires periodic tank tightness testing) | 36 hours | 26 gallons | 13 gallons |

e. Tanks of 550 gallons or less nominal capacity and tanks with a nominal capacity of 551 to 1,000 gallons that meet the tank diameter criteria in the table in subdivision 2 d of this section may use this as the sole method of release detection. All other tanks with a nominal capacity of 551 to 2,000 gallons may use the method in place of inventory control in subdivision 1 of this section. Tanks of greater than 2,000 gallons nominal capacity may not use this method to meet the requirements of this part.

3. Tank tightness testing. Tank tightness testing (or another test of equivalent performance) must be capable of detecting a 0.1 gallon per hour leak rate from any portion of the tank that routinely contains product while accounting for the effects of thermal expansion or contraction of the product, vapor pockets, tank deformation, evaporation or condensation, and the location of the water table.

4. Automatic tank gauging. Equipment for automatic tank gauging that tests for the loss of product and conducts inventory control must meet the following requirements:

a. The automatic product level monitor test can detect a 0.2 gallon per hour leak rate from any portion of the tank that routinely contains product;

b. The automatic tank gauging equipment must meet the inventory control (or other test of equivalent performance) requirements of subdivision 1 of this section; and

c. The test must be performed with the system operating in one of the following modes:

(1) In-tank static testing conducted at least once every 30 days; or

(2) Continuous in-tank leak detection operating on an uninterrupted basis or operating within a process that allows the system to gather incremental measurements to determine the leak status of the tank at least once every 30 days.

5. Vapor monitoring. Testing or monitoring for vapors within the soil gas of the excavation zone must meet the following requirements:

a. The materials used as backfill are sufficiently porous (e.g., gravel, sand, crushed rock) to readily allow diffusion of vapors from releases into the excavation area;

b. The stored regulated substance, or a tracer compound placed in the tank system, is sufficiently volatile (e.g., gasoline) to result in a vapor level that is detectable by the monitoring devices located in the excavation zone in the event of a release from the tank;

c. The measurement of vapors by the monitoring device is not rendered inoperative by the groundwater, rainfall, or soil moisture or other known interferences so that a release could go undetected for more than 30 days;

d. The level of background contamination in the excavation zone will not interfere with the method used to detect releases from the tank;

e. The vapor monitors are designed and operated to detect any significant increase in concentration above background of the regulated substance stored in the tank system, a component or components of that substance, or a tracer compound placed in the tank system;

f. In the UST excavation zone, the site is assessed to ensure compliance with the requirements in subdivisions a through d of this subdivision 5 and to establish the number and positioning of monitoring wells that will detect releases within the excavation zone from any portion of the tank that routinely contains product; and

g. Monitoring wells are clearly marked and secured to avoid unauthorized access and tampering.

6. Groundwater monitoring. Testing or monitoring for liquids on the groundwater must meet the following requirements:

a. The regulated substance stored is not readily miscible in water and has a specific gravity of less than one;

b. Groundwater is never more than 20 feet from the ground surface and the hydraulic conductivity of the soils between the UST system and the monitoring wells or devices is not less than 0.01 cm/sec (e.g., the soil should consist of gravels, coarse to medium sands, coarse silts or other permeable materials);

c. The slotted portion of the monitoring well casing must be designed to prevent migration of natural soils or filter pack into the well and to allow entry of regulated substance on the water table into the well under both high and low groundwater conditions;

d. Monitoring wells shall be sealed from the ground surface to the top of the filter pack;

e. Monitoring wells or devices intercept the excavation zone or are as close to it as is technically feasible;

f. The continuous monitoring devices or manual methods used can detect the presence of at least 1/8 of an inch of free product on top of the groundwater in the monitoring wells;

g. Within and immediately below the UST system excavation zone, the site is assessed to ensure compliance with the requirements in subdivisions a through e of this subdivision 6 and to establish the number and positioning of monitoring wells or devices that will detect releases from any portion of the tank that routinely contains product; and

h. Monitoring wells are clearly marked and secured to avoid unauthorized access and tampering.

7. Interstitial monitoring. Interstitial monitoring between the UST system and a secondary barrier immediately around or beneath it may be used, but only if the system is designed, constructed and installed to detect a leak from any portion of the tank that routinely contains product and also meets one of the following requirements:

a. For double-walled UST systems, the sampling or testing method can detect a leak through the inner wall in any portion of the tank that routinely contains product;

b. For UST systems with a secondary barrier within the excavation zone, the sampling or testing method used can detect a leak between the UST system and the secondary barrier:

(1) The secondary barrier around or beneath the UST system consists of artificially constructed material that is sufficiently thick and impermeable (at least 10^-6 cm/sec for the regulated substance stored) to direct a leak to the monitoring point and permit its detection;

(2) The barrier is compatible with the regulated substance stored so that a leak from the UST system will not cause a deterioration of the barrier allowing a release to pass through undetected;

(3) For cathodically protected tanks, the secondary barrier must be installed so that it does not interfere with the proper operation of the cathodic protection system;

(4) The groundwater, soil moisture, or rainfall will not render the testing or sampling method used inoperative so that a release could go undetected for more than 30 days;

(5) The site is assessed to ensure that the secondary barrier is always above the groundwater and not in a 25-year flood plain, unless the barrier and monitoring designs are for use under such conditions; and

(6) Monitoring wells are clearly marked and secured to avoid unauthorized access and tampering.

c. For tanks with an internally fitted liner, an automated device can detect a leak between the inner wall of the tank and the liner, and the liner is compatible with the substance stored.

8. Statistical inventory reconciliation. Release detection methods based on the application of statistical principles to inventory data similar to those described in subdivision 1 of this section must meet the following requirements:

a. Report a quantitative result with a calculated leak rate;

b. Be capable of detecting a leak rate of 0.2 gallon per hour or a release of 150 gallons within 30 days; and

c. Use a threshold that does not exceed one-half the minimum detectible leak rate.

9. Other methods. Any other type of release detection method, or combination of methods, can be used if:

a. It can detect a 0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05; or

b. The department may approve another method if the owner and operator can demonstrate that the method can detect a release as effectively as any of the methods allowed in subdivisions 3 through 8 of this section. In comparing methods, the department shall consider the size of release that the method can detect and the frequency and reliability with which it can be detected. If the method is approved, the owner and operator must comply with any conditions imposed by the department on its use to ensure the protection of human health and the environment.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 4.4, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 503 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-170 Methods of release detection for piping

Owners and operators must obtain a permit and the required inspections in accordance with 9VAC25-580-50 or 9VAC25-580-60 for the installation of certain release detection equipment contained in subdivisions 1 through 3 of this section.

Each method of release detection for piping used to meet the requirements of 9VAC25-580-140 must be conducted in accordance with the following:

1. Automatic line leak detectors. Methods that alert the operator to the presence of a leak by restricting or shutting off the flow of regulated substances through piping or triggering an audible or visual alarm may be used only if they detect leaks of three gallons per hour at 10 pounds per square inch line pressure within one hour. An annual test of the operation of the leak detector must be conducted in accordance with subdivision A 3 c of 9VAC25-580-130.

2. Line tightness testing. A periodic test of piping may be conducted only if it can detect a 0.1 gallon per hour leak rate at one and one-half times the operating pressure.

3. Applicable tank methods. Except as described in subdivision 1 of 9VAC25-580-140, any of the methods in subdivisions 5 through 9 of 9VAC25-580-160 may be used if they are designed to detect a release from any portion of the underground piping that routinely contains regulated substances.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 4.5, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018.

9VAC25-580-180 Release detection recordkeeping

All UST system owners and operators must maintain records in accordance with 9VAC25-580-120 demonstrating compliance with all applicable requirements of this part. These records must include the following:

1. All written performance claims pertaining to any release detection system used, and the manner in which these claims have been justified or tested by the equipment manufacturer or installer, must be maintained for five years from the date of installation or as long as the method of release detection is used, whichever is greater. Not later than January 1, 2021, records of site assessments required under subdivisions 5 f and 6 g of 9VAC25-580-160 must be maintained for as long as the methods are used. Records of site assessments developed after January 1, 2018, must be signed by a professional engineer or professional geologist, or equivalent licensed professional with experience in environmental engineering, hydrogeology, or other relevant technical discipline acceptable to the department;

2. The results of any sampling, testing, or monitoring must be maintained for at least one year, or for another reasonable period of time determined by the department, except as follows:

a. The results of annual operation tests conducted in accordance with subdivision A 3 of 9VAC25-580-130 must be maintained for three years. At a minimum, the results must list each component tested, indicate whether each component tested meets criteria in subdivision A 3 of 9VAC25-580-130 or needs to have action taken, and describe any action taken to correct an issue;

b. The results of tank tightness testing conducted in accordance with subdivision 3 of 9VAC25-580-160 must be retained until the next test is conducted; and

c. The results of tank tightness testing, line tightness testing, and vapor monitoring using a tracer compound placed in the tank system conducted in accordance with 9VAC25-580-390 D must be retained until the next test is conducted; and

3. Written documentation of all calibration, maintenance, and repair of release detection equipment permanently located on-site must be maintained for at least one year after the servicing work is completed or for such longer period as may be required by the department. Any schedules of required calibration and maintenance provided by the release detection equipment manufacturer must be retained for five years from the date of installation.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 4.6, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 504 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part V Release Reporting, Investigation, and Confirmation

9VAC25-580-190 Reporting of suspected releases

Owners and operators of UST systems must report to the department within 24 hours and follow the procedures in 9VAC25-580-210 for any of the following conditions:

1. The discovery by owners and operators or others of released regulated substances at the UST site or in the surrounding area (such as the presence of free product or vapors in soils, basements, sewer and utility lines, and nearby surface water).

2. Unusual operating conditions observed by owners and operators (such as the erratic behavior of product dispensing equipment, the sudden loss of product from the UST system, an unexplained presence of water in the tank, or liquid in the interstitial space of secondarily contained systems), unless:

a. The system equipment or component is found not to be releasing regulated substances to the environment;

b. Any defective system equipment or component is immediately repaired or replaced; and

c. For secondarily contained systems, except as provided for in subdivision 7 b (4) of 9VAC25-580-160, any liquid in the interstitial space not used as part of the interstitial monitoring method (for example, brine filled) is immediately removed.

3. Monitoring results, including investigation of an alarm, from a release detection method required under 9VAC25-580-140 and 9VAC25-580-150 that indicate a release may have occurred unless:

a. The monitoring device is found to be defective, and is immediately repaired, recalibrated or replaced, and additional monitoring does not confirm the initial result;

b. The leak is contained in the secondary containment and:

(1) Except as provided for in subdivision 7 b (4) of 9VAC25-580-160, any liquid in the interstitial space not used as part of the interstitial monitoring method (for example, brine filled) is immediately removed; and

(2) Any defective system equipment or component is immediately repaired or replaced;

c. In the case of inventory control, described in subdivision 1 of 9VAC25-580-160, a second month of data or in the case of manual tank gauging, a second week or month as prescribed in the chart under subdivision 2 d of 9VAC25-580-160 does not confirm the initial result or the investigation determines no release has occurred; or

d. The alarm was investigated and determined to be a nonrelease event (for example, from a power surge or caused by filling the tank during release detection testing).

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 5.1, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-200 Investigation due to off-site impacts

When required by the department, owners and operators of UST systems must follow the procedures in 9VAC25-580-210 to determine if the UST system is the source of off-site impacts. These impacts include the discovery of regulated substances (such as the presence of free product or vapors in soils, basements, sewer and utility lines, and state waters) that has been observed by the department or brought to its attention by another party.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 5.2, eff. October 25, 1989; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-210 Release investigation and confirmation steps

Unless corrective action is initiated in accordance with Part VI (9VAC25-580-230 et seq.) of this chapter, owners and operators must immediately investigate and confirm all suspected releases of regulated substances requiring reporting under 9VAC25-580-190 within seven days, or another reasonable time period specified by the department upon written request made and approved within seven days after reporting of the suspected release.

The following steps are required for release investigation and confirmation:

1. System test. Owners and operators must conduct tests (according to the requirements for tightness testing in subdivision 3 of 9VAC25-580-160 and subdivision 2 of 9VAC25-580-170) or, as appropriate, secondary containment testing described in subdivision 4 of 9VAC25-580-110 .

a. The test must determine whether:

(1) A leak exists in that portion of the tank that routinely contains product or in the attached delivery piping; or

(2) A breach of either wall of the secondary containment has occurred.

b. If the system test confirms a leak into the interstice or a release, owners and operators must repair, replace, upgrade, or close the UST system. In addition, owners and operators must begin corrective action in accordance with Part VI of this chapter if the test results for the system, tank, or delivery piping indicate that a release exists.

c. Further investigation is not required if the test results for the system, tank, and delivery piping do not indicate that a release exists and if environmental contamination is not the basis for suspecting a release.

d. Owners and operators must conduct a site check as described in subdivision 2 of this section if the test results for the system, tank, and delivery piping do not indicate that a release exists but environmental contamination is the basis for suspecting a release.

2. Site check. Owners and operators must measure for the presence of a release where contamination is most likely to be present at the UST site. In selecting sample types, sample locations, and measurement methods, owners and operators must consider the nature of the stored substance, the type of initial alarm or cause for suspicion, the type of backfill, the depth of groundwater, and other factors appropriate for identifying the presence and source of the release. Samples shall be tested according to established EPA analytical methods or methods approved by the department.

a. If the test results for the excavation zone or the UST site indicate that a release has occurred, owners and operators must begin corrective action in accordance with Part VI of this chapter.

b. If the test results for the excavation zone or the UST site do not indicate that a release has occurred, further investigation is not required.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 5.3, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 504 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-220 Reporting and cleanup of spills and overfills

A. Owners and operators of UST systems must contain and immediately clean up a spill or overfill and report to the department within 24 hours and begin corrective action in accordance with Part VI of this chapter in the following cases:

1. Spill or overfill of petroleum that results in a release to the environment that exceeds 25 gallons or that causes a sheen on nearby surface water; and

2. Spill or overfill of a hazardous substance that results in a release to the environment that equals or exceeds its reportable quantity under CERCLA (40 CFR Part 302).

B. Owners and operators of UST systems must contain and immediately clean up a spill or overfill of petroleum that is less than 25 gallons and a spill or overfill of a hazardous substance that is less than the reportable quantity. If cleanup cannot be accomplished within 24 hours owners and operators must immediately notify the department.

NOTE: Pursuant to 40 CFR §§ 302.6 and 355.40, a release of a hazardous substance equal to or in excess of its reportable quantity must also be reported immediately (rather than within 24 hours) to the National Response Center under §§ 102 and 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 (42 USC §§ 9602 and 9603) and to appropriate state and local authorities under Title III of the Superfund Amendments and Reauthorization Act (SARA) of 1986.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 5.4, eff. October 25, 1989; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VI Release Response and Corrective Action for UST Systems Containing Petroleum or Hazardous Substances

9VAC25-580-230 General

Owners and operators of petroleum or hazardous substance UST systems must, in response to a confirmed release from the UST system, comply with the requirements of this part except for USTs excluded under subsection B of 9VAC25-580-20 and UST systems subject to RCRA Subtitle C corrective action requirements under § 3004(u) of the Resource Conservation and Recovery Act, as amended.

History

• Statutory Authority: §§ 62.1-44.15(10) and 62.1-44.34:9 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-02 § 6.1, eff. October 25, 1989.

9VAC25-580-240 Initial response

Upon confirmation of a release in accordance with 9VAC25-580-210 or after a release from the UST system is identified in any other manner, owners and operators must perform the following initial response actions within 24 hours of a release:

1. Report the release to the department (e.g., by telephone or electronic mail);

2. Take immediate action to prevent any further release of the regulated substance into the environment; and

3. Identify and mitigate fire, explosion, and vapor hazards.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 6.2, eff. October 25, 1989; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-250 Initial abatement measures and site check

A. Unless directed to do otherwise by the department, owners and operators must perform the following abatement measures:

1. Remove as much of the regulated substance from the UST system as is necessary to prevent further release to the environment;

2. Visually inspect any aboveground releases or exposed belowground releases and prevent further migration of the released substance into surrounding soils and groundwater;

3. Continue to monitor and mitigate any additional fire and safety hazards posed by vapors or free product that have migrated from the UST excavation zone and entered into subsurface structures (such as sewers or basements);

4. Remedy hazards posed by contaminated soils that are excavated or exposed as a result of release confirmation, site investigation, abatement, or corrective action activities. If these remedies include treatment or disposal of soils, the owner and operator must comply with applicable state and local requirements;

5. Measure for the presence of a release where contamination is most likely to be present at the UST site, unless the presence and source of the release have been confirmed in accordance with the site check required by subdivision 2 of 9VAC25-580-210 or the closure site assessment of subsection A of 9VAC25-580-330. In selecting sample types, sample locations, and measurement methods, the owner and operator must consider the nature of the stored substance, the type of backfill, depth to groundwater and other factors as appropriate for identifying the presence and source of the release. Samples shall be tested according to established EPA analytical methods or methods approved the department; and

6. Investigate to determine the possible presence of free product, and begin free product removal as soon as practicable and in accordance with 9VAC25-580-270.

B. Within 20 days after release confirmation, or within another reasonable period of time determined by the department upon written request made and approved within 20 days after release confirmation, owners and operators must submit a report to the department summarizing the initial abatement steps taken under subsection A of this section and any resulting information or data.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 6.3, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-260 Site characterization

A. Owners and operators must assemble information about the site and the nature of the release, including information gained while confirming the release or completing the initial abatement measures in 9VAC25-580-230 and 9VAC25-580-240. This information must include, but is not necessarily limited to, the following:

1. Data on the material released and the estimated quantity of release;

2. Data from available sources or site investigations concerning the following:

a. Site assessment to include: data on the physical/chemical properties of the contaminant; nature and quantity and extent of the release; evidence that free product is found to need recovery; geologic/hydrologic site characterization; current and projected land/water uses; water quality; subsurface soil conditions; evidence that contaminated soils are in contact with the groundwater; locations of subsurface conduits (e.g., sewers, utility lines, etc.); and climatological conditions. Samples collected for this site characterization shall be tested according to established EPA analytical methods or methods approved by the department;

b. Risk (exposure) assessment to include: evidence that wells of the area have been affected; use and approximate locations of wells potentially affected by the release; identification of potential and impacted receptors; migration routes; surrounding populations; potential for additional environmental damage;

c. Remediation assessment to include: potential for remediation and applicability of different remediation technologies to the site.

3. Results of the site check required under subdivision A 5 of 9VAC25-580-250; and

4. Results of the free product investigations required under subdivision A 6 of 9VAC25-580-250, to be used by owners and operators to determine whether free product must be recovered under 9VAC25-580-270.

B. Within 45 days of release confirmation or another reasonable period of time determined by the department upon written request made and approved within 45 days after release confirmation, owners and operators must submit the information collected in compliance with subsection A of this section to the department in a manner that demonstrates its applicability and technical adequacy, or in a format and according to the schedule required by the department.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 6.4, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-270 Free product removal

At sites where investigations under subdivision A 6 of 9VAC25-580-250 indicate the presence of free product, owners and operators must remove free product to the maximum extent practicable as determined by the department while continuing, as necessary, any actions initiated under 9VAC25-580-240 through 9VAC25-580-260, or preparing for actions required under 9VAC25-580-280. In meeting the requirements of this section, owners and operators must:

1. Conduct free product removal in a manner that minimizes the spread of contamination into previously uncontaminated zones by using recovery and disposal techniques appropriate to the hydrogeologic conditions at the site, and that properly treats, discharges or disposes of recovery by-products in compliance with applicable local, state and federal regulations;

2. Use abatement of free product migration as a minimum objective for the design of the free product removal system;

3. Handle any flammable products in a safe and competent manner to prevent fires or explosions; and

4. Unless directed to do otherwise by the department, prepare and submit to the department within 45 days after confirming a release a free product removal report that provides at least the following information:

a. The name of the persons responsible for implementing the free product removal measures;

b. The estimated quantity, type, and thickness of free product observed or measured in wells, bore holes, and excavations;

c. The type of free product recovery system used;

d. Whether any discharge will take place on-site or off-site during the recovery operation and where this discharge will be located;

e. The type of treatment applied to, and the effluent quality expected from, any discharge;

f. The steps that have been or are being taken to obtain necessary permits for any discharge; and

g. The disposition of the recovered free product.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia, and 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 6.5, eff. October 25, 1989; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-280 Corrective action plan

A. At any point after reviewing the information submitted in compliance with 9VAC25-580-240, 9VAC25-580-250, and 9VAC25-580-260, the department may require owners and operators to submit additional information or to develop and submit a corrective action plan for responding to contaminated soils and groundwater. If a plan is required, owners and operators must submit the plan according to a schedule and format established by the department. Alternatively, owners and operators may, after fulfilling the requirements of 9VAC25-580-240, 9VAC25-580-250, and 9VAC25-580-260, choose to submit a corrective action plan for responding to contaminated soil and groundwater. In either case, owners and operators are responsible for submitting a plan that provides for adequate protection of human health and the environment as determined by the department and must modify their plan as necessary to meet this standard.

B. In conjunction with the information provided under subdivision A 2 of 9VAC25-580-260 (site assessment, risk (exposure) assessment, and remediation assessment), the corrective action plan must include the following information:

1. Detailed conceptual design including narrative description of technologies and how they will be applied at the site;

2. Projected remediation end points/degree of remediation;

3. Schedule of project implementation;

4. Schedule to achieve projected end points;

5. Operational and post-operational monitoring schedules (to include data submittals);

6. Proposed disposition of any wastes and discharges (if applicable);

7. Actions taken to obtain any necessary federal, state and local permits to implement the plan; and

8. Proposed actions to notify persons directly affected by the release or the planned corrective action.

C. The department will approve the corrective action plan only after ensuring that implementation of the plan will adequately protect human health, safety, and the environment. In making this determination, the department will consider the following factors as appropriate:

1. The physical and chemical characteristics of the regulated substance, including its toxicity, persistence, and potential for migration;

2. The hydrogeologic characteristics of the facility and the surrounding area;

3. The proximity, quality, and current and future uses of nearby surface water and groundwater;

4. The potential effects of residual contamination on nearby surface water and groundwater;

5. The site, risk (exposure), and remediation assessments as required by subdivision A 2 of 9VAC25-580-260; and

6. Any information assembled in compliance with this part.

D. Upon approval of the corrective action plan or as directed by the department, owners and operators must implement the plan, including modifications to the plan made by the department. They must monitor, evaluate, and report the results of implementing the plan in accordance with a schedule and in a format established by the department.

E. Owners and operators may, in the interest of minimizing environmental contamination and promoting more effective cleanup, begin cleanup of soil and groundwater before the corrective action plan is approved provided that they:

1. Notify the department of their intention to begin cleanup and obtain written approval to proceed with an agreed upon activity;

2. Comply with any conditions imposed by the department, including halting cleanup or mitigating adverse consequences from cleanup activities; and

3. Incorporate these self-initiated cleanup measures in the corrective action plan that is submitted to the department for approval.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 6.6, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-290 (Repealed.)

Historical Notes

Derived from VR680-13-02 § 6.7, eff. October 25, 1989; repealed, Virginia Register Volume 20, Issue 12, eff. March 24, 2004.

9VAC25-580-300 Public participation

A. For each confirmed release that requires a corrective action plan, the department will require the owner and operator to provide notice to the public by means designed to reach those members of the public directly affected by the release or the planned corrective action. This notice may include, but is not limited to, public notice in local newspapers, block advertisements, public service announcements, publication in a state register, letters to individual households, or personal contacts by field staff.

B. The department must ensure that site release information and decisions concerning the corrective action plan are made available to the public for inspection upon request.

C. Before approving a corrective action plan, the department may hold a public meeting to consider comments on the proposed corrective action plan if there is sufficient public interest, or for any other reason.

D. The department will require the owner and operator to give public notice that complies with subsection A of this section if implementation of an approved corrective action plan does not achieve the established cleanup levels in the plan and termination of that plan is under consideration by the department.

E. These public participation requirements do not supersede any public participation requirements of other regulations.

F. In the event the owner and operator have failed to give the required notice to the public, the department will provide such notice to the extent required by applicable federal law.

G. In those cases where the department implements the corrective plan, the department will provide such notice to the extent required by applicable federal law.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 6.8, eff. October 25, 1989; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VII Out-of-Service UST Systems and Closure

9VAC25-580-310 Temporary closure

Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

A permit from the building official must be obtained prior to temporary tank closure. No UST system shall be temporarily closed unless and until the system is inspected in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

In the case of state-owned facilities the Department of General Services shall function as the building official in accordance with § 36-98.1 of the Code of Virginia.

In the case of federal facilities the building official must be contacted. Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

1. When an UST system is temporarily closed, owners and operators must continue operation and maintenance of corrosion protection in accordance with 9VAC25-580-90, and any release detection in accordance with Parts IV (9VAC25-580-130 et seq.) and X (9VAC25-580-380 et seq.) of this chapter. Parts V (9VAC25-580-190 et seq.) and VI (9VAC25-580-230 et seq.) of this chapter must be complied with if a release is suspected or confirmed. However, release detection and release detection operation and maintenance testing and inspections in Parts III (9VAC25-580-80 et seq.) and IV of this chapter are not required as long as the UST system is empty. The UST system is empty when all materials have been removed using commonly employed practices so that no more than 2.5 centimeters (one inch) of residue, or 0.3% by weight of the total capacity of the UST system, remain in the system. In addition, spill and overfill operation and maintenance testing and inspections in Part III of this chapter are not required.

2. When an UST system is temporarily closed for three months or more, owners and operators must also comply with the following requirements:

a. Leave vent lines open and functioning; and

b. Cap and secure all other lines, pumps, manways, and ancillary equipment.

3. When an UST system is temporarily closed for more than 12 months, owners and operators must permanently close the UST system if it does not meet either performance standards in 9VAC25-580-50 for new UST systems or the upgrading requirements in 9VAC25-580-60, except that the spill and overfill equipment requirements do not have to be met. Owners and operators must permanently close the substandard UST systems at the end of this 12-month period in accordance with 9VAC25-580-320 through 9VAC25-580-350, unless the building official provides an extension of the 12-month temporary closure period. Owners and operators must complete a site assessment in accordance with 9VAC25-580-330 before such an extension can be applied for.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 7.1, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018.

9VAC25-580-320 Permanent closure and changes-in-service

Owners and operators must obtain a permit and the required inspections in accordance with the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

A permit from the building official must be obtained prior to permanent tank closure or a change-in-service. No UST system shall be permanently closed or changed-in-service unless and until the system is inspected in accordance with the provisions of the Virginia Uniform Statewide Building Code (§ 36-97 et seq. of the Code of Virginia).

If such closure is in response to immediate corrective actions that necessitate timely tank removal, then the building official must be notified and the official's directions followed until a permit is issued.

In the case of state-owned facilities the Department of General Services shall function as the building official in accordance with § 36-98.1 of the Code of Virginia.

In the case of federal facilities the building official must be contacted. Owners and operators must obtain a permit and the required inspections in accordance with the provisions of the Virginia Uniform Statewide Building Code.

1. Owners and operators must within 30 days after either permanent closure or a change-in-service submit an amended UST notification form to the department.

2. The required assessment of the excavation zone under 9VAC25-580-330 must be performed after notifying the building official but before completion of the permanent closure or a change-in-service.

3. To permanently close a tank, owners and operators must empty and clean it by removing all liquids and accumulated sludges. When the owner or operator suspects that the residual sludges are hazardous in nature the Department of Environmental Quality regulations shall be followed to facilitate the proper treatment, storage, manifesting, transport, and disposal. All tanks taken out of service permanently must be removed from the ground, filled with an inert solid material, or closed in place in a manner approved by the department.

4. Continued use of an UST system to store a nonregulated substance is considered a change-in-service. Before a change-in-service, owners and operators must empty and clean the tank by removing all liquid and accumulated sludge and conduct a site assessment in accordance with 9VAC25-580-330.

NOTE: The following cleaning and closure procedures may be used to comply with this section:

a. American Petroleum Institute Recommended Practice RP 1604, Closure of Underground Petroleum Storage Tanks;

b. American Petroleum Institute Standard 2015, Safe Entry and Cleaning of Petroleum Storage Tanks, Planning and Managing Tank Entry from Decommissioning through Recommissioning;

c. American Petroleum Institute Recommended Practice 2016, Guidelines and Procedures for Entering and Cleaning Petroleum Storage Tanks;

d. American Petroleum Institute Recommended Practice RP 1631, Interior Lining and Periodic Inspection of Underground Storage Tanks, may be used as guidance for compliance with this section;

e. National Fire Protection Association Standard 326, Standard for the Safeguarding of Tanks and Containers for Entry, Cleaning, or Repair; and

f. The National Institute for Occupational Safety and Health Publication 80-106, Criteria for a Recommended Standard *** Working in Confined Space may be used as guidance for conducting safe closure procedures at some hazardous substance tanks.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 7.2, eff. October 25, 1989; amended, Virginia Register Volume 20, Issue 12, eff. March 24, 2004; Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-330 Assessing the site at closure or change-in-service

A. Before permanent closure or a change-in-service is completed, owners and operators must measure for the presence of a release where contamination is most likely to be present at the UST site. In selecting sample type or types (soil or water) and sample location or locations, and measurement methods, owners and operators must consider the method of closure, the nature of the stored substance, the type of backfill, the depth to groundwater and other factors appropriate for identifying the presence of a release. Samples shall be tested according to established EPA analytical methods or methods approved by the department. Where the suspected release is a petroleum product, the samples shall be analyzed for total petroleum hydrocarbons (TPH). The requirements of this section are satisfied if one of the external release detection methods allowed in subdivisions 5 and 6 of 9VAC25-580-160 is operating in accordance with the requirements in 9VAC25-580-160 at the time of closure, and indicates no release has occurred.

B. In all cases where a sample or samples are analyzed, the owner and operator shall submit, along with the amended UST notification form as required in subdivision 1 of 9VAC25-580-320, a copy of the laboratory results (including a statement as to the test method used), a description of the area sampled, and a site map depicting tanks, piping, and sample location or locations.

C. If contaminated soils, contaminated groundwater or free product as a liquid or vapor is discovered under subsection A of this section, or by any other manner, owners and operators must begin corrective action in accordance with Part VI (9VAC25-580-230 et seq.) of this chapter.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 7.3, eff. October 25, 1989; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 504 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-340 Applicability to previously closed UST systems

When directed by the department, the owner and operator of an UST system permanently closed before December 22, 1988, must assess the excavation zone and close the UST system in accordance with this part if releases from the UST may, in the judgment of the department, pose a current or potential threat to human health and the environment.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 7.4, eff. October 25, 1989; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-350 Closure records

Owners and operators must maintain records in accordance with 9VAC25-580-120 that are capable of demonstrating compliance with closure requirements under this part. The results of the excavation zone assessment required in 9VAC25-580-330 must be maintained for at least three years after completion of permanent closure or change-in-service in one of the following ways:

1. By the owners and operators who took the UST system out of service;

2. By the current owners and operators of the UST system site; or

3. By mailing these records to the department if they cannot be maintained at the closed facility.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from VR680-13-02 § 7.5, eff. October 25, 1989; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VIII Delegation

9VAC25-580-360 (Repealed.)

History

• Historical Notes: Derived from VR680-13-02 § 8.1, eff. October 25, 1989; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part IX Delivery Prohibition

9VAC25-580-370 Requirements for delivery prohibition

A. No person shall deliver to, deposit into, or accept a petroleum product or other regulated substance into an underground storage tank that has been identified under subdivision G 2 of this section by the department to be ineligible for such delivery, deposit, or acceptance. Unless authorized in writing by the department, no person shall alter, deface, remove, or attempt to remove a tag that prohibits delivery, deposit, or acceptance of a petroleum product or other regulated substance to an underground storage tank.

B. When an inspection or other information provides reason to believe one or more of the following violations exists, the department shall initiate a proceeding in accordance with subsection D of this section:

1. Spill prevention equipment is not installed on the UST system properly as required by 9VAC25-580-50 or 9VAC25-580-60 or is disabled;

2. Overfill protection equipment is not installed on the UST system properly as required by 9VAC25-580-50 or 9VAC25-580-60 or is disabled;

3. Release detection equipment is not installed on the UST system properly or is disabled or a release detection method is not being performed as required by 9VAC25-580-50 or 9VAC25-580-60;

4. Corrosion protection equipment is not installed on the UST system properly as required by 9VAC25-580-50 or 9VAC25-580-60 or is disabled;

5. Secondary containment is not installed on the UST system properly as required by 9VAC25-580-50, 9VAC25-580-60, or 9VAC25-580-150 or is disabled; or

6. The department has reason to believe that an UST system is leaking and the owner or operator has failed to initiate and complete the investigation and confirmation requirements of 9VAC25-580-190, 9VAC25-580-200, and 9VAC25-580-210.

C. For purposes of subsection B of this section, spill prevention, overfill prevention, corrosion protection, release detection, or secondary containment equipment that is not verifiable as installed is not installed.

D. The department shall provide written notice to the owner and operator pursuant to subdivision G 1 of this section that it will conduct an informal fact finding pursuant to § 2.2-4019 of the Code of Virginia to determine whether the underground storage tank shall be ineligible for delivery, deposit, or acceptance of a petroleum product or other regulated substance. The fact finding shall be scheduled as soon as practicable after the notice, and within 10 business days in any event. Upon a finding to impose delivery prohibition, the department shall affix a tag to the fill pipe of the underground storage tank prohibiting delivery, deposit, or acceptance of a petroleum product or other regulated substance.

E. When the department issues a notice of alleged violation based on an inspection or other information that provides reason to believe a UST system is not in compliance with the requirements of Part II (9VAC25-580-50 et seq.), III (9VAC25-580-80 et seq.), IV (9VAC25-580-130 et seq.), or X (9VAC25-580-380 et seq.) of this chapter not listed in subsection B of this section, the requirements of 9VAC25-580-240 through 9VAC25-580-280, or the requirements of 9VAC25-590 (Petroleum Underground Storage Tank Financial Responsibility Requirements), and the owner or operator fails to comply with the notice of alleged violation within the time prescribed by the department, the department may proceed in accordance with subsection D of this section.

F. The department may classify all underground storage tanks containing petroleum or any other regulated substance at a facility as ineligible for delivery, deposit, or acceptance of a petroleum product or other regulated substance if one or more underground storage tanks at the facility has been classified as ineligible for more than 90 days and the ineligible underground storage tank has neither been closed in accordance with 9VAC25-580-310 or 9VAC25-580-320 nor returned to compliance. The department shall provide written notice to the owner and operator pursuant to subdivision G 1 of this section that it will conduct an informal fact finding pursuant to § 2.2-4019 of the Code of Virginia to determine whether all the underground storage tanks shall be ineligible for delivery, deposit, or acceptance of a petroleum product or other regulated substance. The fact finding shall be scheduled as soon as practicable after the notice, and within 10 business days in any event.

G. Notice.

1. The department shall provide written notice of an informal fact finding to consider delivery prohibition to the owner and operator. The notice shall meet the requirements of § 2.2-4019 of the Code of Virginia. The notice shall further advise the owner and operator of the possibility of a special order pursuant to subsection I of this section.

2. The presence of the delivery prohibition tag on the fill pipe of an ineligible underground storage tank shall be sufficient notice to any person, including the owner, the operator, and product deliverers, that the underground storage tank is ineligible for delivery or deposit. The department may use other methods in addition to the delivery prohibition tag to provide notice to product deliverers.

H. An owner or operator shall notify the department in writing once an ineligible underground storage tank has been returned to compliance and provide a written report detailing all actions that have been taken to return the UST system to compliance, as well as supporting evidence such as test reports, invoices, receipts, inventory records, etc. As soon as practicable after confirming that the underground storage tank is in compliance with the requirements of this chapter or 9VAC25-590, or both, but in no event later than two business days, the department shall remove or authorize the owner or operator, in writing, to remove the delivery prohibition tag.

I. If the department determines that a violation exists that warrants the imposition of delivery prohibition, the department may further consider whether the threat posed by the violation is outweighed by the need for fuel from the underground storage tank in question to meet an emergency situation or the need for availability of or access to motor fuel in any rural and remote area. If the department finds that such a condition outweighs the immediate risk of the violation, the department may defer imposition of delivery prohibition for up to 180 days. In every such case the director shall consider (i) issuing a special order under the authority of subdivision 9 of § 10.1-1186 of the Code of Virginia prescribing a prompt schedule for abating the violation and (ii) imposing a civil penalty.

J. The department may temporarily authorize an owner or operator to accept delivery into an ineligible underground storage tank if such activity is necessary to test or calibrate the underground storage tank or dispenser system.

K. Nothing in this section shall prevent the department or the director from exercising any other enforcement authority including, without limitation, their authority to issue emergency orders and their authority to seek injunctive relief.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from Virginia Register Volume 26, Issue 25, eff. September 15, 2010; amended, Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Volume 39, Issue 5, eff. November 23, 2022.

Part X UST Systems with Field-Constructed Tanks and Airport Hydrant Fuel Distribution Systems

9VAC25-580-380 General requirements

A. Implementation of requirements . Owners and operators must comply with the requirements of this part for UST systems with field-constructed tanks and airport hydrant systems as follows:

1. For UST systems installed before January 1, 2018, the requirements are effective according to the following schedule:

| Requirement | Effective Date | | --- | --- | | Upgrading UST systems; general operating requirements; and operator training | January 1, 2021 | | Release detection | January 1, 2021 | | Release reporting, response, and investigation; closure; financial responsibility and notification (except as provided in subsection B of this section) | January 1, 2018 |

2. For UST systems installed on or after January 1, 2018, the requirements apply at installation.

B. Not later than January 1, 2021, all owners of previously deferred UST systems must submit a one-time notice of tank system existence to the department, using the UST Notification Form. Owners and operators of UST systems in use as of January 1, 2018, must demonstrate financial responsibility at the time of submission of the notification form.

C. Except as provided in 9VAC25-580-390, owners and operators must comply with the requirements of Parts I (9VAC25-580-10 et seq.) through VII (9VAC25-580-310 et seq.) and IX (9VAC25-580-370 et seq.) of this chapter and 9VAC25-590.

D. In addition to the codes of practice listed in 9VAC25-580-50, owners and operators may use military construction criteria, such as Unified Facilities Criteria (UFC) 3-460-01, Petroleum Fuel Facilities, when designing, constructing, and installing airport hydrant systems and UST systems with field-constructed tanks.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 504 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-580-390 Additions, exceptions, and alternatives for UST systems with field-constructed tanks and airport hydrant systems

A. Exception to piping secondary containment requirements. Owners and operators may use single walled piping when installing or replacing piping associated with UST systems with field-constructed tanks greater than 50,000 gallons and piping associated with airport hydrant systems. Piping associated with UST systems with field-constructed tanks less than or equal to 50,000 gallons not part of an airport hydrant system must meet the secondary containment requirement when installed or replaced.

B. Upgrade requirements. Not later than January 1, 2021, airport hydrant systems and UST systems with field-constructed tanks where installation commenced before January 1, 2018, must meet the following requirements or be permanently closed pursuant to Part VII (9VAC25-580-310 et seq.) of this chapter.

1. Corrosion protection. UST system components in contact with the ground that routinely contain regulated substances must meet one of the following:

a. Except as provided in subsection A of this section, the new UST system performance standards for tanks at subdivision 1 of 9VAC25-580-50 and for piping at subdivision 2 at 9VAC25-580-50; or

b. Be constructed of metal and cathodically protected according to a code of practice developed by a nationally recognized association or independent testing laboratory and meets the following:

(1) Cathodic protection must meet the requirements of subdivisions 1 b (2), (3), and (4) of 9VAC25-580-50 for tanks and subdivisions 2 b (2), (3), and (4) of 9VAC25-580-50 for piping.

(2) Tanks older than 10 years without cathodic protection must be assessed to ensure the tank is structurally sound and free of corrosion holes prior to adding cathodic protection. The assessment must be by internal inspection or another method determined by the department to adequately assess the tank for structural soundness and corrosion holes.

Note: The following codes of practice may be used to comply with subsection B of this section:

(a) NACE International Standard Practice SP0285, External Control of Underground Storage Tank Systems by Cathodic Protection;

(b) NACE International Standard Practice SP0169, Control of External Corrosion on Underground or Submerged Metallic Piping Systems;

(c) National Leak Prevention Association Standard 631, Chapter C, Internal Inspection of Steel Tanks for Retrofit of Cathodic Protection; or

(d) American Society for Testing and Materials Standard G158, Standard Guide for Three Methods of Assessing Buried Steel Tanks.

2. Spill and overfill prevention equipment. To prevent spilling and overfilling associated with product transfer to the UST system, all UST systems with field-constructed tanks and airport hydrant systems must comply with new UST system spill and overfill prevention equipment requirements specified in subdivision 3 of 9VAC25-580-50.

C. Walkthrough inspections . In addition to the walkthrough inspection requirements in 9VCA25-580-85, owners and operators must inspect the following additional areas for airport hydrant systems at least once every 30 days if confined space entry according to the Occupational Safety and Health Administration (see 29 CFR Part 1910) is not required or at least annually if confined space entry is required and keep documentation of the inspection according to 9VAC25-580-85 B.

1. Hydrant pits – visually check for any damage, remove any liquid or debris, and check for any leaks; and

2. Hydrant piping vaults – check for any hydrant piping leaks.

D. Release detection. Owners and operators of UST systems with field-constructed tanks and airport hydrant systems must begin meeting the release detection requirements described in this part not later than January 1, 2021.

1. Methods of release detection for field-constructed tanks and airport hydrant systems.Owners and operators of shop fabricated USTs that are part of airport hydrant systems and field-constructed tanks with a capacity less than or equal to 50,000 gallons must meet the release detection requirements in Part IV (9VAC25-580-130 et seq.) of this chapter. Owners and operators of field-constructed tanks with a capacity greater than 50,000 gallons must meet either the requirements in Part IV of this chapter (except subdivisions 5 and 6 of 9VAC25-580-160 must be combined with inventory control as stated in this subdivision) or use one or a combination of the following alternative methods of release detection:

a. Conduct an annual tank tightness test that can detect a 0.5 gallon per hour leak rate;

b. Use an automatic tank gauging system to perform release detection at least every 30 days that can detect a leak rate less than or equal to one gallon per hour. This method must be combined with a tank tightness test that can detect a 0.2 gallon per hour leak rate performed at least every three years;

c. Use an automatic tank gauging system to perform release detection at least every 30 days that can detect a leak rate less than or equal to two gallons per hour. This method must be combined with a tank tightness test that can detect a 0.2 gallon per hour leak rate performed at least every two years;

d. Perform vapor monitoring (conducted in accordance with subdivision 5 of 9VAC25-580-160 for a tracer compound placed in the tank system) capable of detecting a 0.1 gallon per hour leak rate at least every two years;

e. Perform inventory control (conducted in accordance with Department of Defense Directive 4140.25, ATA Airport Fuel Facility Operations and Maintenance Guidance Manual, or equivalent procedures) at least every 30 days that can detect a leak equal to or less than 0.5% of flow-through; and

(1) Perform a tank tightness test that can detect a 0.5 gallon per hour leak rate at least every two years; or

(2) Perform vapor monitoring or groundwater monitoring (conducted in accordance with subdivision 5 or 6 of 9VAC25-580-160, respectively, for the stored regulated substance) at least every 30 days; or

f. Another method approved by the department if the owner and operator can demonstrate that the method can detect a release as effectively as any of the methods allowed in subdivisions D 1 a through D 1 e of this section. In comparing methods, the department shall consider the size of release that the method can detect and the frequency and reliability of detection.

2. Methods of release detection for piping. Owners and operators of underground piping associated with field-constructed tanks less than or equal to 50,000 gallons must meet the release detection requirements in Part IV of this chapter. Owners and operators of underground piping associated with airport hydrant systems and field-constructed tanks greater than 50,000 gallons must follow either the requirements in Part IV (except subdivisions 5 and 6 of 9VAC25-580-160 must be combined with inventory control as stated in this subdivision) or use one or a combination of the following alternative methods of release detection:

a. (1) Perform a semiannual or annual line tightness test at or above the piping operating pressure in accordance with the following table:

| Maximum Leak Detection Rate Per Test Section Volume | | | | --- | --- | --- | | Test Section Volume (Gallons) | Semiannual Test - Leak Detection Rate Not To Exceed (Gallons Per Hour) | Annual Test - Leak Detection Rate Not To Exceed (Gallons Per Hour) | | < 50,000 | 1.0 | 0.5 | | ≥ 50,000 to < 75,000 | 1.5 | 0.75 | | ≥ 75,000 to < 100,000 | 2.0 | 1.0 | | ≥ 100,000 | 3.0 | 1.5 |

(2) Piping segment volumes equal to or greater than 100,000 gallons not capable of meeting the maximum 3.0 gallons per hour leak rate for the semiannual test may be tested at a leak rate up to 6.0 gallons per hour according to the following schedule:

| Phase in for Piping Segments ≥ 100,000 Gallons in Volume | | | --- | --- | | First test | Not later than January 1, 2021, (may use up to 6.0 gph leak rate) | | Second test | Between January 1, 2021, and January 1, 2024, (may use up to 6.0 gph leak rate) | | Third test | Between January 1, 2024, and January 1, 2025, (must use 3.0 gph for leak rate) | | Subsequent tests | After January 1, 2025, begin using semiannual or annual line testing according to the Maximum Leak Detection Rate Per Test Section Volume table above |

b. Perform vapor monitoring (conducted in accordance with subdivision 5 of 9VAC25-580-160 for a tracer compound placed in the tank system) capable of detecting a 0.1 gallon per hour leak rate at least every two years;

c. Perform inventory control (conducted in accordance with Department of Defense Directive 4140.25, ATA Airport Fuel Facility Operations and Maintenance Guidance Manual, or equivalent procedures) at least every 30 days that can detect a leak equal to or less than 0.5% of flow-through; and

(1) Perform a line tightness test (conducted in accordance with subdivision 2 a of this subsection using the leak rates for the semiannual test) at least every two years; or

(2) Perform vapor monitoring or groundwater monitoring (conducted in accordance with subdivision 5 or 6 of 9VAC25-580-160, respectively, for the stored regulated substance) at least every 30 days; or

d. Another method approved by the department if the owner and operator can demonstrate that the method can detect a release as effectively as any of the methods allowed in subdivisions D 2 a, D 2 b, and D 2 c of this section. In comparing methods, the department shall consider the size of release that the method can detect and the frequency and reliability of detection.

3. Recordkeeping for release detection . Owners and operators must maintain release detection records according to the recordkeeping requirements in 9VAC25-580-180.

E. Applicability of closure requirements to previously closed UST systems . When directed by the department, the owner and operator of an UST system with field-constructed tanks or airport hydrant system permanently closed before January 1, 2018, must assess the excavation zone and close the UST system in accordance with Part VII of this chapter if releases from the UST may, in the judgment of the department, pose a current or potential threat to human health and the environment.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.34:9 of the Code of Virginia; 42 USC § 6901 et seq.; 40 CFR Parts 280 and 281.
• Historical Notes: Derived from Virginia Register Volume 34, Issue 1, eff. January 1, 2018; Errata, 34:4 VA.R. 504 October 16, 2017; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Chapter 610 Groundwater Withdrawal Regulations

Part I General

9VAC25-610-10 Definitions

Unless a different meaning is required by the context, the following terms as used in this chapter shall have the following meanings:

"Act" means the Ground Water Management Act of 1992, Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.

"Adverse impact" means reductions in groundwater levels or changes in groundwater quality that limit the ability of any existing groundwater user lawfully withdrawing or authorized to withdraw groundwater at the time of permit or special exception issuance to continue to withdraw the quantity and quality of groundwater required by the existing use. Existing groundwater users include all those persons who have been granted a groundwater withdrawal permit subject to this chapter and all other persons who are excluded from permit requirements by 9VAC25-610-50.

"Agricultural use" means utilizing groundwater for the purpose of agricultural, silvicultural, horticultural, or aquacultural operations. Agricultural use includes withdrawals for turf farm operations but does not include withdrawals for landscaping activities or turf installment and maintenance associated with landscaping activities.

"Applicant" means a person filing an application to initiate or enlarge a groundwater withdrawal in a groundwater management area.

"Area of impact" means the areal extent of each aquifer where more than one foot of drawdown is predicted to occur due to a proposed withdrawal.

"Beneficial use" includes domestic (including public water supply), agricultural, commercial, and industrial uses.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Consumptive use" means the withdrawal of groundwater, without recycle of said waters to their source of origin.

"Controversial permit" means a water permitting action for which a public hearing has been granted pursuant to 9VAC25-610-270 and 9VAC25-610-275.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality.

"Draft permit" means a prepared document indicating the department's tentative decision relative to a permit action.

"General permit" means a groundwater withdrawal permit authorizing the withdrawal of groundwater in a groundwater management area under specified conditions, including the size of the withdrawal or the aquifer or confining unit from which the withdrawal is to be made.

"Geophysical investigation" means any hydrogeologic evaluation to define the hydrogeologic framework of an area or determine the hydrogeologic properties of any aquifer or confining unit to the extent that withdrawals associated with such investigations do not result in unmitigated adverse impacts to existing groundwater users. Geophysical investigations include pump tests and aquifer tests.

"Groundwater" means any water, except capillary moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir, or other body of surface water wholly or partially within the boundaries of this Commonwealth, whatever the subsurface geologic structure in which such water stands, flows, percolates, or otherwise occurs.

"Human consumption" means the use of water to support human survival and health, including drinking, bathing, showering, cooking, dishwashing, and maintaining hygiene.

"Instream beneficial uses" means uses including the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, and cultural and aesthetic values is an instream beneficial use of Virginia's waters.

"Mitigate" means to take actions necessary to ensure that all existing groundwater users at the time of issuance of a permit or special exception who experience adverse impacts continue to have access to the amount and quality of groundwater needed for existing uses.

"Permit" means a groundwater withdrawal permit issued under the Ground Water Management Act of 1992 permitting the withdrawal of a specified quantity of groundwater under specified conditions in a groundwater management area.

"Permittee" means a person that currently has an effective groundwater withdrawal permit issued under the Ground Water Act of 1992.

"Person" means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this Commonwealth or any other state or country.

"Practicable" means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

"Private well" means, as defined in § 32.1-176.3 of the Code of Virginia, any water well constructed for a person on land that is owned or leased by that person and is usually intended for household, groundwater source heat pump, agricultural use, industrial use, or other nonpublic water well.

"Public hearing" means a fact-finding proceeding held to afford interested persons an opportunity to submit factual data, views, and comments to the department.

"Public water supply" means a system that provides water for human consumption through pipes or other constructed conveyances to at least 15 service connections or serves an average of at least 25 people for at least 60 days a year. A public water supply may be publicly or privately owned.

"Salt water intrusion" means the encroachment of saline waters in any aquifer that creates adverse impacts to existing groundwater users or is counter to the public interest.

"Special exception" means a document issued by the department for withdrawal of groundwater in unusual situations where requiring the user to obtain a groundwater withdrawal permit would be contrary to the purpose of the Ground Water Management Act of 1992. Special exceptions allow the withdrawal of a specified quantity of groundwater under specified conditions in a groundwater management area.

"Supplemental drought relief well" means a well permitted to withdraw a specified amount of groundwater to meet human consumption needs during declared drought conditions after mandatory water use restrictions have been implemented.

"Surface water" means all state waters that are not groundwater as groundwater is defined in § 62.1-255 of the Code of Virginia.

"Surface water and groundwater conjunctive use system" means an integrated water supply system wherein surface water is the primary source and groundwater is a supplemental source that is used to augment the surface water source when the surface water source is not able to produce the amount of water necessary to support the annual water demands of the system.

"Surficial aquifer" means the upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone.

"Water loss" means the difference between the estimated or measured volume of water withdrawn and the estimated or measured volume applied to the beneficial use.

"Water loss audit" means the review of records and data that traces the flow of water from its withdrawal through distribution and application to the beneficial use.

"Water well systems provider" means any individual who is certified by the Board for Contractors in accordance with § 54.1-1128 et seq. of the Code of Virginia and who is engaged in drilling, installation, maintenance, or repair of water wells, water well pumps, ground source heat exchangers, and other equipment associated with the construction, removal, or repair of water wells, water well systems, and ground source heat pump exchangers to the point of connection to the ground source heat pump.

"Well" means any artificial opening or artificially altered natural opening, however made, by which groundwater is sought or through which groundwater flows under natural pressure or is intended to be withdrawn.

"Withdrawal system" means (i) one or more wells or withdrawal points located on the same or contiguous properties under common ownership for which the withdrawal is applied to the same beneficial use or (ii) two or more connected wells or withdrawal points that are under common ownership but are not necessarily located on contiguous properties.

History

• Statutory Authority: §§ 62.1-256 and 62.1-262.1 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 1.1, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; Volume 32, Issue 25, eff. September 22, 2016; Volume 35, Issue 4, eff. November 14, 2018; Volume 39, Issue 7, eff. December 21, 2022; Volume 41, Issue 24, eff. August 13, 2025.

9VAC25-610-20 Purpose

The Ground Water Management Act of 1992 recognizes and declares that the right to reasonable control of all groundwater resources within the Commonwealth belongs to the public and that in order to conserve, protect and beneficially utilize the groundwater resource and to ensure the public welfare, safety and health, provisions for management and control of groundwater resources are essential. This chapter delineates the procedures and requirements to be followed when establishing groundwater management areas and the issuance of groundwater withdrawal permits by the board or department pursuant to the Ground Water Management Act of 1992.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 1.2, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-25 Permit rationale

In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-30 (Repealed.)

Historical Notes

Derived from VR680-13-07 § 1.3, eff. September 22, 1993; repealed, Virginia Register Volume 15, Issue 5, eff. January 1, 1999.

9VAC25-610-40 Prohibitions and requirements for groundwater withdrawals

A. No person shall withdraw, attempt to withdraw, or allow the withdrawal of groundwater within a groundwater management area, except as authorized pursuant to a groundwater withdrawal permit, or as excluded in 9VAC25-610-50.

B. No permit or special exception shall be issued for more groundwater than can be applied to the proposed beneficial use.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 1.4, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

9VAC25-610-42 Private well registration

A. Each certified water well systems provider shall register with the department each private well, as defined in 9VAC25-610-10, that is constructed in a groundwater management area after September 22, 2016.

B. The registration shall be made within 30 calendar days of the completion of well construction.

C. Such registration shall be submitted to the department on a form, paper or electronic, provided by the department for registration purposes.

D. The following information, at a minimum, shall be required for each registration:

1. Contact information, including:

a. The well owner's name and mailing address; and

b. The certified water well system provider's name and mailing address.

2. The well location, including:

a. The physical address, tax map number, or grid parcel identification number (GPIN) of the property at which the well is located;

b. The subdivision name and appropriate section, block and lot numbers, if applicable; and

c. The latitude, longitude, and datum of the well.

3. The type of use of the well water.

4. Well construction information, including:

a. The well designation name or number;

b. The start and completion dates of well construction;

c. The depth of the well and borehole depth;

d. Borehole sizes;

e. Height of casing above the land surface, if applicable;

f. Size, depth, and material weight per foot or wall thickness of the casing, if applicable;

g. Size, type, and mesh of the screen or water zones, if applicable; and

h. The type of grout, grouting method, and type of seal, if applicable.

5. If a pump test is conducted, the pump test information, including:

a. Date and duration of test;

b. Pre-pumped static water level; and

c. Stabilized measured pumping level and yield.

6. Production pump intake depth, if applicable.

7. Drillers log.

8. The certified water well system provider's certification statement.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 32, Issue 25, eff. September 22, 2016; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-44 Technical evaluation of withdrawals for subdivisions with 30 or more lots served by private wells

A. On or after July 1, 2018, the developer of a subdivision, as defined in § 15.2-2201 of the Code of Virginia, located in a groundwater management area, shall apply for a technical evaluation from the department prior to final subdivision plat approval if there will be 30 or more lots within the subdivision served by private wells, as defined in § 32.1-176.3 of the Code of Virginia. This requirement shall not apply to the developer of a subdivision who constructs all of the private wells within the subdivision in the surficial aquifer.

B. The application for a technical evaluation shall be on a form established by the department and shall include a geophysical log from a geophysical borehole located within the subdivision. Such borehole may subsequently be utilized as a groundwater supply for a dwelling unit or for other appropriate purpose within the subdivision.

C. Within 60 days of receiving a complete application for a technical evaluation, the department shall perform a technical evaluation and provide to the developer a recommendation sufficient to serve the water needs of each dwelling unit in the subdivision that specifies the aquifers that will minimize unmitigated impacts to groundwater resources and any offsite impacts to existing groundwater users.

D. The recommendation to the developer shall be nonbinding; however, any such developer who constructs one or more private wells in the subdivision in an aquifer inconsistent with the department's recommendation shall prepare and submit a mitigation plan to the department, consistent with requirements for mitigation plans established by the board, and record a mitigation plan approved by the department with the subdivision plat prior to constructing any private wells within the subdivision.

E. The department shall charge the developer a fee not to exceed $5,000 to recover the cost of performing the technical evaluation. The fee shall be paid prior to the department providing the developer with the recommendation of the technical evaluation.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 35, Issue 4, eff. November 14, 2018.

9VAC25-610-50 Exclusions

The following do not require a groundwater withdrawal permit:

1. Withdrawals of less than 300,000 gallons per month;

2. Withdrawals associated with temporary construction dewatering that do not exceed 24 months in duration;

3. Withdrawals associated with a state-approved groundwater remediation that do not exceed 60 months in duration;

4. Withdrawals for use by a groundwater source heat pump where the discharge is reinjected into the aquifer from which it was withdrawn;

5. Withdrawals from ponds recharged by groundwater without mechanical assistance;

6. Withdrawals for the purpose of conducting geophysical investigations, including pump tests;

7. Withdrawals coincident with exploration for and extraction of coal or activities associated with coal mining regulated by the Department of Energy;

8. Withdrawals coincident with the exploration for or production of oil, gas or other minerals other than coal, unless such withdrawal adversely impacts aquifer quantity or quality or other groundwater users within a groundwater management area;

9. Withdrawals in any area not declared to be a groundwater management area;

10. Withdrawal of groundwater authorized pursuant to a special exception issued by the department; and

11. Withdrawal of groundwater discharged from free flowing springs where the natural flow of the spring has not been increased by any method.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 1.5, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 38, Issue 3, eff. October 27, 2021; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-60 Effect of a permit

A. Compliance with a groundwater withdrawal permit constitutes compliance with the permit requirements of the Ground Water Management Act of 1992.

B. The issuance of a permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize injury to private property or any invasion of personal rights or any infringement of federal, state or local law or regulation.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 1.6, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

Part II Declaration of Groundwater Management Areas

9VAC25-610-70 Criteria for consideration of a groundwater management area

The board upon its own motion, or in its discretion, upon receipt of a petition by any county, city or town within the area in question, may initiate a groundwater management area proceeding, whenever in its judgment there is reason to believe that any one of the four following conditions exist:

1. Groundwater levels in the area are declining or are expected to decline excessively;

2. The wells of two or more groundwater users within the area are interfering or may be reasonably expected to interfere substantially with one another;

3. The available groundwater supply has been or may be overdrawn; or

4. The groundwater in the area has been or may become polluted.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 2.1, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

9VAC25-610-80 Declaration of groundwater management areas

A. If the board finds that any of the conditions listed in 9VAC25-610-70 exist, and further determines that the public welfare, safety and health require that regulatory efforts be initiated, the board shall declare the area in question a groundwater management area, by regulation.

B. Such regulations shall be promulgated in accordance with the agency's Public Participation Guidelines (9VAC25-11) and the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. The regulation shall define the boundaries of the groundwater management area and identify the aquifers to be included in the groundwater management area. Any number of aquifers that either wholly or partially overlie one another may be included within the same groundwater management area.

D. After adoption the department shall mail by postal or electronic delivery a copy of the regulation to the mayor or chairman of the governing body of each county, city or town within which any part of the groundwater management area lies.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 2.2, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

Part III Permit Application and Issuance

9VAC25-610-85 Preapplication meeting

A. The applicant and owner or operator intending to apply for a new or expanded application for a groundwater withdrawal or reapply for a current permitted withdrawal shall schedule a meeting with the department prior to submitting their permit application. The purpose of the meeting is to have a mutual exchange of information on the proposed application and applicable regulatory requirements. If the preapplication meeting is being held for a public water supply system, the Virginia Department of Health may participate in the preapplication meeting by providing information and guidance to assist the applicant with meeting Virginia Department of Health regulatory requirements.

B. For applicants reapplying for a current permitted withdrawal, during the preapplication meeting, the department shall discuss information provided in previous permit applications and regular submittals that may or may not be resubmitted as part of the permit application.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

9VAC25-610-90 Application for a permit by groundwater users in existing groundwater management areas withdrawing prior to July 1, 1992

Persons withdrawing groundwater or who have rights to withdraw groundwater prior to July 1, 1992, in the Eastern Virginia or Eastern Shore Groundwater Management Areas and not excluded from requirements of this chapter by 9VAC25-610-50 shall apply for a permit.

1. Any person who was issued a certificate of groundwater right or a permit to withdraw groundwater prior to July 1, 1991, and who was withdrawing groundwater pursuant to said permit or certificate on July 1, 1992, shall file an application on or before December 31, 1992, to continue said withdrawal. The applicant shall demonstrate the claimed prior withdrawals through withdrawal reports required by the existing certificate or permit or by reports required by Water Withdrawal Reporting Regulations) (9VAC25-200).

2. Any person who was issued a certificate of groundwater right or a permit to withdraw groundwater prior to July 1, 1991, and who had not initiated the withdrawal prior to July 1, 1992, may initiate a withdrawal on or after July 1, 1992, pursuant to the terms and conditions of the certificate or permit and shall file an application for a groundwater withdrawal permit on or before December 31, 1995, to continue said withdrawal. The applicant shall demonstrate the claimed prior withdrawals through withdrawal reports required by the existing certificate or permit or by reports required by Water Withdrawal Reporting Regulations (9VAC25-200).

3. Any person who was issued a permit to withdraw groundwater on or after July 1, 1991, and prior to July 1, 1992, shall not be required to apply for a groundwater withdrawal permit until the expiration of the permit to withdraw groundwater or 10 years from the date of issuance of the permit to withdraw groundwater whichever occurs first. Such persons shall reapply for a groundwater withdrawal permit as described in 9VAC25-610-96.

4. Any person withdrawing groundwater for agricultural or livestock watering purposes on or before July 1, 1992, shall file an application for a groundwater withdrawal permit on or before December 31, 1993. The applicant shall demonstrate the claimed prior withdrawals by voluntary withdrawal reports required by Water Withdrawal Reporting Regulations) (9VAC25-200) when such reports have been filed with the board. When such reports are not available, estimates of withdrawal will be accepted that are based on the area irrigated, depth of irrigation, and annual number of irrigations; pumping capacity and annual pumping time; annual energy consumption for pumps, energy consumption per hour, and pumping capacity; number and type of livestock watered annually; number and type of livestock where water is used for cooling purposes; or other methods approved by the department.

5. Any political subdivision, or authority serving a political subdivision, holding a certificate of groundwater right or a permit to withdraw groundwater issued prior to July 1, 1992, for the operation of a public water supply well for the purpose of providing supplemental water during drought conditions, shall file an application on or before December 31, 1992. Any political subdivision, or authority serving a political subdivision, shall submit, as part of the application, a water conservation and management plan as described in 9VAC25-610-100 B.

6. Any person who is required to apply in subdivision 1, 2, or 5 of this section and who uses the certificated or permitted withdrawal to operate a public water supply system shall provide a copy of the waterworks operation permit, or equivalent, with the required application for a groundwater withdrawal permit.

7. Any person described in subdivision 1, 2, 3, or 5 of this section who files a complete application by the date required may continue to withdraw groundwater pursuant to the existing certificate or permit until such time as the department takes action on the outstanding application for a groundwater withdrawal permit.

8. Any person described in subdivision 4 of this section who files a complete application by the date required may continue his existing withdrawal until such time as the department takes action on the outstanding application for a groundwater withdrawal permit.

9. Any person described in subdivision 1, 2, 3, 4, or 5 of this section who files an incomplete application by the date required may continue to withdraw groundwater as described in subdivisions 7 and 8 of this section provided that all information required to complete the application is provided to the department within 60 days of the department's notice to the applicant of deficiencies. Should such person not provide the department the required information within 60 days, he shall cease withdrawals until he provides any additional information to the department and the department concurs that the application is complete.

10. A complete application for those persons described in subdivision 1, 2, 3, 4, or 5 of this section shall contain:

a. The permit fee as required by the Fees for Permits and Certificates Regulations (9VAC25-20);

b. A groundwater withdrawal permit application completed in its entirety with all maps, attachments, and addenda that may be required. Application forms shall be submitted in a format specified by the department. Such application forms are available from the Department of Environmental Quality;

c. A signature as described in 9VAC25-610-150;

d. Well construction documentation for all wells associated with the application submitted on the Water Well Completion Report, Form GW2, which includes the following information:

(1) The depth of the well;

(2) The diameter, top and bottom, and material of each cased interval;

(3) The diameter, top and bottom, for each screened interval; and

(4) The depth of pump intake;

e. Locations of all wells associated with the application shown on United States Geological Survey 7-1/2 minute topographic maps. The applicant shall provide the latitude and longitude coordinates in a datum specified by the department for each existing and proposed well. The detailed location map shall be of sufficient detail such that all wells may be easily located for site inspection;

f. A map identifying the service areas for public water supplies;

g. Information on surface water and groundwater conjunctive use systems as described in 9VAC25-610-104 if applicable;

h. Persons described in subdivision 5 of this section shall submit a water conservation and management plan as described in 9VAC25-610-100;

i. Withdrawal reports required by the existing groundwater certificate or permit, reports required by Water Withdrawal Reporting Regulations (9VAC25-200), or estimates of withdrawals as described in subdivision 4 of this section to support any claimed prior withdrawal; and

j. A copy of the Virginia Department of Health waterworks operation permit, or equivalent, where applicable.

11. The department may waive the requirement for information listed in subdivision 10 of this section to be submitted if it has access to substantially identical information that remains accurate and relevant to the permit application.

12. Any person described in subdivision 1, 2, 3, or 5 of this section who fails to file an application by the date required creates the presumption that all claims to groundwater withdrawal based on historic use have been abandoned. Should any such person wish to rebut the presumption that claims to groundwater withdrawal based on historic use have been abandoned, he shall have filed an application with a letter of explanation to the board by November 21, 1993. Any such person failing to rebut the presumption that claims to groundwater withdrawal based on historic use have been abandoned who wishes to withdraw groundwater shall apply for a new withdrawal as described in 9VAC25-610-94.

13. Any person described in subdivision 4 of this section who fails to file an application by the date required creates the presumption that all claims to groundwater withdrawal based on historic use have been abandoned. Should any such person wish to rebut the presumption that claims to groundwater withdrawal based on historic use have been abandoned, he may do so by filing an application with a letter of explanation to the board within 60 days of the original required date or within 60 days of January 1, 1999, whichever is later. Any such person failing to rebut the presumption that claims to groundwater withdrawal based on historic use have been abandoned who wishes to withdraw groundwater shall apply for a new withdrawal as described in 9VAC25-610-94.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 3.1, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-92 Application for a permit by existing users when a groundwater management area is declared or expanded on or after July 1, 1992

Persons withdrawing groundwater when a groundwater management area is declared or expanded on or after July 1, 1992, and not excluded from requirements of this chapter by 9VAC25-610-50 shall apply for a permit.

1. Any person withdrawing groundwater in an area that is declared to be a groundwater management area on or after July 1, 1992, shall file an application for a groundwater permit within six months of the effective date of the regulation creating or expanding the groundwater management area. The applicant shall demonstrate the claimed prior withdrawals through withdrawal reports required by Water Withdrawal Reporting Regulations (9VAC25-200), or other methods approved by the department if reporting information pursuant to the Water Withdrawal Reporting Regulations is not available. In the case of agricultural groundwater withdrawals not required to report by Water Withdrawal Reporting Regulations, estimates of withdrawal will be accepted that are based on the area irrigated, depth of irrigation, and annual number of irrigations; pumping capacity and annual pumping time; annual energy consumption for pumps, energy consumption per hour, and pumping capacity; number and type of livestock watered annually; number and type of livestock where water is used for cooling purposes; or other methods approved by the department.

2. Any person withdrawing groundwater who uses the withdrawal to operate a public water supply system shall provide a copy of the waterworks operation permit, or equivalent, with the required application for a groundwater withdrawal permit.

3. Any person who is required to apply for a groundwater withdrawal permit and files a complete application within six months after the effective date of the regulation creating or expanding a groundwater management area may continue their existing documented withdrawal until such time as the department takes action on the outstanding application for a groundwater withdrawal permit.

4. Any person who is required to apply for a groundwater withdrawal permit and files an incomplete application within six months after the effective date of the regulation creating or expanding a groundwater management area may continue to withdraw groundwater as described in subdivision 3 of this section provided that all the information required to complete the application is provided to the department within 60 days of the department's notice to the applicant of deficiencies. Should such person not provide the department the required information within 60 days, he shall cease withdrawals until he provides any additional information to the department and the department concurs that the application is complete.

5. A complete application for those persons described in subdivision 1 of this section shall contain:

a. The permit fee as required by the Fees for Permits and Certificates Regulations (9VAC25-20);

b. A groundwater withdrawal permit application completed in its entirety with all maps, attachments, and addenda that may be required. Application forms shall be submitted in a format specified by the department. Such application forms are available from the Department of Environmental Quality;

c. A signature as described in 9VAC25-610-150;

d. Well construction documentation for all wells associated with the application submitted on the Water Well Completion Report, Form GW2, which includes the following information:

(1) The depth of the well;

(2) The diameter, top and bottom, and material of each cased interval;

(3) The diameter, top and bottom, for each screened interval; and

(4) The depth of pump intake;

e. Locations of all wells associated with the application shown on United States Geological Survey 7-1/2 minute topographic maps. The applicant shall provide the latitude and longitude coordinates in a datum specified by the department for each existing and proposed well. The detailed location map shall be of sufficient detail such that all wells may be easily located for site inspection;

f. A map identifying the service areas for public water supplies;

g. Information on surface water and groundwater conjunctive use systems as described in 9VAC25-610-104 if applicable;

h. Withdrawal reports required by Water Withdrawal Reporting Regulations (9VAC25-200), other documentation demonstrating historical water use approved by the department to support claimed prior withdrawals if Water Withdrawal Reporting information is unavailable or estimates of withdrawals as described in subdivision 1 of this section to support any claimed prior withdrawal; and

i. A copy of the Virginia Department of Health waterworks operation permit where applicable.

6. The department may waive the requirement for information listed in subdivision 5 of this section to be submitted if it has access to substantially identical information that remains accurate and relevant to the permit application.

7. Any person who fails to file an application within six months after the effective date creating or expanding a groundwater management area creates the presumption that all claims to groundwater withdrawal based on historic use have been abandoned. Should any such person wish to rebut the presumption that claims to groundwater withdrawal based on historic use have been abandoned, they may do so by filing an application with a letter of explanation to the department within eight months after the date creating or expanding the groundwater management area. Any such person failing to rebut the presumption that claims to groundwater withdrawal based on historic use have been abandoned who wishes to withdraw groundwater shall apply for a new withdrawal as described in 9VAC25-610-94.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-94 Application for a new permit, expansion of an existing withdrawal, or reapplication for a current permitted withdrawal

Persons wishing to initiate a new withdrawal, expand an existing withdrawal, or reapply for a current permitted withdrawal in any groundwater management area and not excluded from requirements of this chapter by 9VAC25-610-50 shall apply for a permit.

1. A groundwater withdrawal permit application shall be completed and submitted to the department and a groundwater withdrawal permit issued by the department prior to the initiation of any withdrawal not specifically excluded in 9VAC25-610-50 or authorized by a general permit adopted by the board as a regulation.

2. A complete groundwater withdrawal permit application for a new or expanded withdrawal, or reapplication for a current withdrawal, shall contain the following:

a. The permit fee as required by the Fees for Permits and Certificates Regulations (9VAC25-20);

b. A groundwater withdrawal permit application completed in its entirety with all maps, attachments, and addenda that may be required. Application forms shall be submitted in a format specified by the department. Such application forms are available from the Department of Environmental Quality;

c. A signature as described in 9VAC25-610-150;

d. A completed well construction report for all existing wells associated with the application submitted on the Water Well Completion Report, Form GW2;

e. The application shall include locations of all wells associated with the application shown on United States Geological Survey 7-1/2 minute topographic maps. The applicant shall provide the latitude and longitude coordinates in a datum specified by the department for each existing and proposed well. The detailed location map shall be of sufficient detail such that all wells may be easily located for site inspection;

f. A map identifying the service areas for public water supplies;

g. Information on surface water and groundwater conjunctive use systems as described in 9VAC25-610-104 if applicable;

h. A water conservation and management plan as described in 9VAC25-610-100;

i. The application shall include notification from the local governing body in which the withdrawal is to occur that the location and operation of the withdrawing facility is in compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of Virginia. If the governing body fails to respond to the applicant's request for certification within 45 days of receipt of the written request, the location and operation of the proposed facility shall be deemed to comply with the provisions of such ordinances for the purposes of this chapter. The applicant shall document the local governing body's receipt of the request for certification through the use of certified mail or other means that establishes proof of delivery;

j. An alternatives analysis that evaluates sources of water supply other than groundwater, including sources of reclaimed water, and the lowest quality of water needed for the intended beneficial use as described in 9VAC25-610-102;

k. Documentation justifying the need for future water supply as described in 9VAC25-610-102;

l. A plan to mitigate potential adverse impacts from the proposed withdrawal on existing groundwater users. In lieu of developing individual mitigation plans, multiple applicants may choose to establish a mitigation program to collectively develop and implement a cooperative mitigation plan that covers the entire area of impact of all members of the mitigation program; and

m. Other relevant information that may be required by the department to evaluate the application.

3. In addition to requirements contained in subdivision 2 of this section, the department may require any or all of the following information prior to considering an application complete.

a. The installation of monitoring wells and the collection and analysis of drill cuttings, continuous cores, geophysical logs, water quality samples, or other hydrogeologic information necessary to characterize the aquifer system present at the proposed withdrawal site.

b. The completion of pump tests or aquifer tests to determine aquifer characteristics at the proposed withdrawal site.

4. The department may waive the requirement for information listed in subdivision 2 or 3 of this section to be submitted if it has access to substantially identical information that remains accurate and relevant to the permit application.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-95 General permits

A. The board may issue a general permit by regulation for withdrawals of groundwater within a groundwater management area as it deems appropriate in accordance with the following:

1. A general permit may be written to cover the following:

a. Withdrawals of a certain size;

b. Withdrawals from a specific aquifer or confining unit; or

c. Other categories of withdrawals deemed appropriate by the board.

2. A general permit must clearly identify the applicable conditions of this chapter for each category or subcategory of withdrawals covered by the permit.

3. The general permit may exclude specified withdrawals or areas from coverage.

B. When the board determines on a case-by-case basis that concerns for the aquifer, water quality, or the ecosystem services that depend on the groundwater so indicate, the board may require individual applications and individual permits rather than approving coverage under a general permit regulation. Cases where an individual permit may be required include the following:

1. The wells of two or more groundwater users within the area are interfering or may reasonably be expected to interfere substantially with one another;

2. The available groundwater or surface water supply that rely on surficial aquifer input has been or may be adversely impacted or instream beneficial uses may be impacted;

3. The groundwater or surface water in the area has been or may become polluted. Such pollution includes any alteration of the physical, chemical, or biological properties of groundwater or surface waters that has a harmful or detrimental effect on the quality or quantity of such waters;

4. The applicant or permittee is not in compliance with the conditions of the general permit regulation or coverage; or

5. An applicant or permittee no longer qualifies for coverage under the general permit.

C. General permit coverage may be revoked from a permittee for any of the reasons set forth in 9VAC25-610-300 A subject to appropriate opportunity for a hearing.

D. Activities authorized under a general permit and general permit regulation shall be authorized for the fixed term stated in the applicable general permit and general permit regulation.

E. When an individual permit is issued to a permittee, the applicability of general permit coverage to the individual permittee is automatically terminated on the effective date of the groundwater withdrawal individual permit.

F. When a groundwater withdrawal general permit regulation is issued that applies to a permittee that is already covered by an individual permit, that person may request exclusion from the provisions of the general permit regulation and subsequent coverage under an individual permit.

G. General permits may be issued, modified, revoked and reissued, or terminated in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: §§ 62.1-256 and 62.1-262.1 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 7, eff. December 21, 2022.

9VAC25-610-96 Duty to reapply for a permit

A. Any permittee with an effective permit shall submit a new permit application at least 270 days before the expiration date of an effective permit unless permission for a later date has been granted by the department. If a complete application for a new permit has been filed in a timely manner, and the department is unable, through no fault of the permittee, to issue a new permit before the expiration date of the previous permit, the permit may be administratively continued.

B. Permittees who have effective permits shall submit a new application 270 days prior to any proposed modification to their activity or withdrawal system that will:

1. Result in an increase of withdrawals above permitted limits; or

2. Violate or lead to the violation of the terms and conditions of the permit.

C. The applicant shall provide all information described in 9VAC25-610-94 for any reapplication. The information may be provided by referencing information previously submitted to the department that remains accurate and relevant to the permit application. The department may waive any requirement of 9VAC25-610-94 if it has access to substantially identical information.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-98 Incomplete or inaccurate applications

A. Where the department finds an application to be incomplete under the requirements of 9VAC25-610-90, 9VAC25-610-92, or 9VAC25-610-94, the department shall require the submission of additional information after an application has been filed, and may suspend processing of the application until such time as the applicant has supplied the missing or deficient information and the department finds the application complete. An incomplete permit application for a new or expanded withdrawal may be suspended from processing 180 days from the date that the applicant received notification that the application is deficient. Once an application has been suspended from processing, the applicant must submit a new complete application; however, no additional permit fee will be assessed. Further, where the applicant becomes aware that one or more relevant facts from a permit application were omitted, or that incorrect information was submitted in a permit application or in any report to the department, the applicant shall immediately submit such facts or the correct information.

B. When an application does not accurately describe an existing or proposed groundwater withdrawal, the department may require the applicant to revise the existing application or submit a new application before the application will be processed.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-100 Water conservation and management plans

A. Any application to initiate a new withdrawal or expand an existing withdrawal in any groundwater management area or the reapplication at the end of a permit cycle for all permits shall require a water conservation and management plan before the application or reapplication is considered complete. The department shall review all water conservation and management plans and ensure that such plans contain all elements required in subsection B of this section. The approved plan shall become an enforceable part of the approved permit.

B. A water conservation and management plan is an operational plan to be referenced and implemented by the permittee. Water conservation and management plans shall be consistent with local and regional water supply plans in the applicant's geographic area developed as required by 9VAC25-780. The water conservation and management plan shall be specific to the type of water use and include the following:

1. For a public water supply, the required water conservation and management plan shall include:

a. A water auditing plan for an annual water loss audit in accordance with the American Water Works Association (AWWA) methodology for water loss auditing, using the most recent version of the AWWA Water Audit Software or another methodology approved by the department that estimates water loss.

(1) A water loss audit using an approved methodology shall be conducted annually. The requirement to conduct an annual water loss audit shall begin upon permit issuance. By the end of the first year of the permit term, the permittee shall submit documentation to the department that the water loss audit has been initiated. This documentation shall include activities completed during the first year of the permit term.

(2) The applicant shall report the results of the annual water loss audits in a report submitted at a minimum every three years. The report shall also include any revisions to the water auditing plan over the short term and long term.

b. A leak detection and repair plan shall be submitted as a component of the water conservation and management plan. The leak detection and repair plan shall indicate how its implementation will be informed by the results of the annual water loss audit process and shall be updated during each new permit term. The plan shall include:

(1) A description of how the water loss audit results are expected to inform prioritization of actions to address water loss;

(2) Where practicable, a process for the identification of equipment needs to quantify and reduce water loss;

(3) Where practicable, a schedule for inspection of equipment and distribution systems for actual water losses; and

(4) In the report required by subdivision 1 a (2) of this subsection, a description of the leak detection and repair plan's effectiveness in addressing water loss, including revisions to those elements of the leak detection and repair plan that can be improved over the short term and long term.

c. Other components of a water conservation and management plan include:

(1) A water use education program that contains requirements for the education of water users and training of employees controlling water consuming processes to ensure that water conservation principles are well known by the users of the resource. The program shall include a schedule for information distribution and the type of materials used;

(2) An evaluation of water reuse options and assurances that water shall be reused in all instances where reuse is practicable. Potential for expansion of the existing reuse practices or adoption of additional reuse practices shall also be included;

(3) Where practicable, a requirement for the use of water-saving equipment and processes for all water users, including technological, procedural, or programmatic improvements to the facilities and processes to decrease the amount of water withdrawn or to decrease water demand. Information on the water-saving alternatives examined and the water savings associated with the alternatives shall be provided. Water conservation and management plans shall discuss high volume water consumption by users on the system and where conservation measures have previously been implemented and shall be applied. Where appropriate, the use of water-saving fixtures in new and renovated plumbing, as provided in the Virginia Uniform Statewide Building Code (13VAC5-63), shall also be identified in the plan; and

(4) Requirements for mandatory water use reductions during water shortage emergencies declared by the local governing body or water authority consistent with §§ 15.2-923 and 15.2-924 of the Code of Virginia. This shall include, where appropriate, ordinances in municipal systems prohibiting the waste of water generally and requirements providing for mandatory water use restrictions in accordance with drought response and contingency ordinances implemented to comply with 9VAC25-780-120 during water shortage emergencies. The water conservation and management plan shall also contain requirements for mandatory water use restrictions during water shortage emergencies that restricts or prohibits all nonessential uses such as lawn watering, car washing, and similar nonessential residential, industrial, and commercial uses for the duration of the water shortage emergency. Penalties for failure to comply with mandatory water use restrictions shall be included in municipal system plans.

2. For a commercial and industrial user, the required water conservation and management plan shall include:

a. A water auditing plan for a water loss audit to be conducted beginning in the first three years of the permit term. The plan shall include a description of the methodology used to estimate the water loss for the operation and the quantity of water used throughout the facility.

(1) A water loss audit using this methodology shall be conducted once every three years. The requirement to conduct a water loss audit shall begin upon permit issuance. Documentation shall include activities completed during the first three years of the permit term.

(2) The applicant shall conduct a water loss audit and report the results of the water loss audit in a report submitted every three years.

b. A leak detection and repair plan shall be submitted as a component of the water conservation and management plan. The leak detection and repair plan shall indicate how its implementation will be informed by the results of the water loss audit process and shall be updated during each new permit term. The plan shall include:

(1) A description of how the water loss audit results are expected to inform prioritization of actions to address water loss;

(2) Where practicable, a process for the identification of equipment needs to quantify and reduce water loss;

(3) Where practicable, a schedule for inspection of equipment and piping systems for actual water losses;

(4) Where practicable, a requirement for use of water-saving equipment and processes, including technological, procedural, or programmatic improvements to the facilities and processes to decrease the amount of water withdrawn or to decrease water demand. The goal of these requirements is to ensure the most efficient use of groundwater. Information on the water-saving alternatives examined and the water savings associated with the alternatives shall be provided. Water conservation and management plans shall discuss high volume water processes in the facility and where conservation measures have previously been implemented and shall be applied. Where appropriate, the use of water-saving fixtures in new and renovated plumbing, as provided in the Virginia Uniform Statewide Building Code, shall also be identified in the plan; and

(5) In the report required by subdivision 2 a (2) of this subsection, a description of the plan's effectiveness in addressing water loss, including revisions to those elements of the water conservation and management plan that can be improved over the short term and long term.

c. Other components of a water conservation and management plan include:

(1) A water use education program that contains requirements for the education of water users and training of employees controlling water consuming processes to ensure that water conservation principles are well known by the users of the resource. The program shall include a schedule for information distribution and the type of materials used;

(2) An evaluation of water reuse options and assurances that water shall be reused in all instances where reuse is practicable. Potential for expansion of the existing reuse practices or adoption of additional reuse practices shall also be included;

(3) Where practicable, actions to encourage or provide incentives for the use of water-saving fixtures in new and renovated plumbing, as provided under the Virginia Uniform Statewide Building Code, shall be identified in the plan; and

(4) Requirements for complying with mandatory water use reductions during water shortage emergencies declared by the local governing body or water authority in accordance with §§ 15.2-923 and 15.2-924 of the Code of Virginia. This shall include, where appropriate, ordinances prohibiting the waste of water generally and requirements providing for mandatory water use restrictions in accordance with drought response and contingency ordinances implemented to comply with 9VAC25-780-120 during water shortage emergencies. The water conservation and management plan shall also contain requirements for mandatory water use restrictions during water shortage emergencies that restricts or prohibits all nonessential uses such as lawn watering, car washing, and similar nonessential industrial and commercial uses for the duration of the water shortage emergency.

3. For an agricultural user, the required water conservation and management plan shall include:

a. A water auditing plan for an annual water loss audit that shall be conducted annually or periodically based on agricultural management plans or irrigation management plans, including the anticipated crop rotation schedule or livestock growth stages. The water auditing plan shall include an estimate of water loss for the agricultural operation and a description of the methodology used to determine the quantity of water used throughout the agricultural operation.

(1) A water loss audit using this methodology shall be conducted. The requirement to conduct a water loss audit shall begin upon permit issuance. By the end of the first year of the permit term, the permittee shall submit documentation to the department that the water loss audit has been initiated. This documentation shall include activities completed during the first year of the permit term.

(2) The applicant shall report the results of the water loss audit in a report submitted at a minimum every three years.

b. A leak detection and repair plan shall be submitted as a component of the water conservation and management plan. The leak detection and repair plan shall include:

(1) A description of how the water loss audit results are expected to inform prioritization of actions to address water loss;

(2) For plans submitted for the use of groundwater for irrigation, identification of the specific type of irrigation system that will be utilized, the efficiency rating of the irrigation system in comparison to less efficient systems, the irrigation management methods used to minimize water demand, and the anticipated crop watering requirements. Multiple types of irrigation methods may be addressed in the plan. For livestock watering operations, plans shall include livestock watering requirements (per head) and processes to minimize waste of water. If these options are not implemented in the plan, information on the water-saving alternatives examined and the water savings associated with the alternatives shall be provided;

(3) Where practicable, a schedule for inspection of equipment and distribution systems for water loss;

(4) Where practicable, the use of water-saving equipment and processes, including technological, procedural, or programmatic improvements to the facilities and processes to decrease the amount of water withdrawn or to decrease water loss. The goal of these requirements is to ensure the most efficient use of groundwater. Information on the water-saving alternatives examined and the water savings associated with the alternatives should be provided. Water conservation and management plans shall discuss high volume water consumption by processes in the agricultural operation and where conservation measures have previously been implemented and shall be applied. Where practicable, the use of water-saving fixtures in new and renovated plumbing, as provided in the Virginia Uniform Statewide Building Code, shall also be identified in the plan; and

(5) In the report required by subdivision 3 a (2) of this subsection, a description of the leak detection and repair plan's effectiveness in addressing water loss, including revisions to those elements of the leak detection and repair plan that can be improved over the short term and long term.

c. Other components of a water conservation and management plan include:

(1) A water use education program that contains requirements for the training of employees controlling water consuming processes to ensure that water conservation principles are well known by the users of the resource. The program shall include a schedule for training employees. This requirement may be met through training employees on water use requirements contained in irrigation management plans or livestock management plans;

(2) An evaluation of potential water reuse options and assurances that water shall be reused in all instances where reuse is practicable and not prohibited by other regulatory programs. Potential for expansion of the existing reuse practices or adoption of additional reuse practices shall also be included;

(3) Requirements for mandatory water use reductions during water shortage emergencies and compliance with ordinances prohibiting the waste of water generally. This shall include requirements providing for mandatory water use restrictions in accordance with drought response and contingency ordinances implemented to comply with 9VAC25-780-120 during water shortage emergencies; and

(4) The permittee may submit portions of Agricultural Management Plans or Irrigation Management Plans developed to comply with requirements of federal or state laws, regulations, or guidelines to demonstrate the requirements of subdivisions B 3 a through B 3 c (3) of this section are being achieved.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 3.2, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022; Volume 41, Issue 24, eff. August 13, 2025.

9VAC25-610-102 Evaluation of need for withdrawal and alternatives

A. The applicant shall identify the purpose of the proposed withdrawal by providing a narrative description of the water supply issues that form the basis of the proposed withdrawal.

B. The applicant shall subsequently demonstrate to the satisfaction of the department that the withdrawal meets an established water supply need.

1. In establishing local need for a public water supply, the applicant shall provide the following information:

a. Existing supply sources, yields and demands, including:

(1) Peak day and average daily withdrawal;

(2) Total consumptive use component of the withdrawal, including identification of the amount needed for human consumption;

(3) Types of water uses; and

(4) Existing water conservation measures and drought response plan, including what conditions trigger their implementation.

b. Projected demands in 10 year increments over a minimum 30-year planning period that includes the following:

(1) Projected demand contained in the local or regional water supply plan developed in accordance with 9VAC25-780 or for the project service area if such area is smaller than the planning area; or

(2) Statistical population (growth) trends, projected demands by use type including projected demand with and without water conservation measures.

2. In establishing need for agricultural water supply, the applicant shall provide the following information:

a. For crop irrigation: crop, acreage, crop spacing, crop watering requirements for the particular crop (crop rooting depth), soil types, soil holding capacity (available water capacity), allowable soil water depletion, historic precipitation records (precipitation contribution), peak irrigation months, irrigation scheduling approaches (tensiometers vs. feel method), irrigation type (drip, overhead, center pivot etc.), and irrigation system efficiency rating.

b. For livestock watering: kind and size of animal, rate and composition of gain, presence of pregnant animals or lactating animals, type of diet, level of dry matter intake, level of activity, quality of the water, temperature of the water offered, and surrounding air temperature.

3. In establishing need for commercial water supply, the applicant shall provide the following information:

a. Number of employees by month for an average year;

b. Average gallons per day used per month;

c. Average daily water use rate per employee per month; and

d. Identification of peak month of water demand.

4. In establishing need for industrial water supply, the applicant shall provide the following information:

a. SIC or NAICS industry code;

b. Number of employees by month for an average year;

c. Average gallons per day used per month;

d. Average daily water use rate per employee per month;

e. Identification of peak month of water demand;

f. Amount of withdrawal per unit of output or similar metric identified by the user; and

g. Monthly amount of water used for industrial processes.

C. The applicant shall provide an alternatives analysis that evaluates sources of water supply other than groundwater and the availability and use of lower qualities of groundwater that can still be put to beneficial use. For all proposed withdrawals, the applicant shall demonstrate to the satisfaction of the department:

1. Opportunities to reduce and minimize the use of groundwater have been identified and the requested amount is the minimum amount of groundwater necessary for the proposed activity;

2. The project utilizes the lowest quality water for the proposed activity;

3. Alternate sources of supply other than groundwater, including surface water and water reuse, were considered for use in the proposed activity particularly for consumptive use purposes; and

4. Practicable alternatives, including design alternatives, have been evaluated for the proposed activity. Measures that would avoid or result in less adverse impact to high quality groundwater shall be considered to the maximum extent practicable.

D. Any alternatives analysis conducted specifically for public water supply projects shall include:

1. All applicable alternatives contained in the local or regional water supply plan developed in accordance with 9VAC25-780;

2. Alternatives that are practicable that had not been identified in the local or regional water supply plan developed in accordance with 9VAC25-780;

3. Water conservation measures that could be considered as a means to reduce demand for each alternative considered by the applicant; and

4. A narrative description that outlines the opportunities and status of regionalization efforts undertaken by the applicant, including the interconnectivity of water systems and the ability for applicants to purchase water from other water supplies.

E. The alternatives analysis shall discuss the criteria used to evaluate each alternative including, but not limited to:

1. Demonstration that the proposed alternative meets the project purpose and project demonstrated need;

2. Availability of the alternative to the applicant;

3. Evaluation of interconnectivity of water supply systems and the ability to purchase water from other supplies when applicable (both existing and proposed); and

4. Evaluation of the cost of the alternative on an equivalent basis.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-104 Surface water and groundwater conjunctive use systems

A. Surface water and groundwater conjunctive use systems for public water supplies.

1. Applicants proposing to withdraw groundwater as part of a surface water and groundwater conjunctive use system for public water supplies shall provide the following information to the department in addition to information required by 9VAC25-610-90, 9VAC25-610-92, or 9VAC25-610-94 as part of their permit application:

a. A detailed description of the surface water and groundwater conjunctive use system, including:

(1) Identification of all surface water sources, including pond and reservoir volumes where applicable;

(2) Identification of the wells used on a continual basis to supplement surface water supply needs and wells to be utilized in periods of reduced surface water availability. Well construction information for all wells shall be submitted on the Water Well Completion Report, Form GW2, which includes the following information:

(a) The depth of the well;

(b) The diameter, top and bottom, and material of each cased interval;

(c) The diameter, top and bottom, for each screened interval; and

(d) The depth of pump intake.

(3) A description of the storage system, excluding surface water sources described in subdivision 1 a (1) of this subsection;

(4) A copy of the Engineering Description Sheet developed by the Virginia Department of Health for the withdrawal; and

(5) A line drawing of the water supply system illustrating the water balance of the system.

b. Records documenting the amount of water withdrawn on a daily basis for each water source during average weather conditions and during drought conditions;

c. Documentation of the seasonal supply of surface water during both average and drought conditions;

d. Documentation of any seasonal changes in demand that occur during an annual cycle of the specified beneficial use or uses; and

e. Other relevant information that may be required by the department to evaluate the application.

2. The applicant shall demonstrate that the groundwater withdrawal will originate from the aquifer that contains the lowest quality water that will support the proposed beneficial use or uses.

3. The department shall evaluate the proposed groundwater withdrawal for consistency with criteria specified in 9VAC25-610-110.

4. In addition to conditions established in 9VAC25-610-100, 9VAC25-610-110, 9VAC25-610-120, 9VAC25-610-130, and 9VAC25-610-140, the permit shall specify the maximum amount of groundwater that may be withdrawn during the term of the permit and shall address variations in the groundwater withdrawal amounts that may occur.

5. The department may issue any permit with terms, conditions, or limitations necessary to protect the public welfare, safety, and health, or to protect the resource.

6. Applicants may request approval to withdraw groundwater amounts that exceed the withdrawal limits established in subdivision 4 of this section from wells that are part of a conjunctive use system to meet human consumption needs during periods of drought by applying for a supplemental drought relief permit as described in 9VAC25-610-106.

B. Surface water and groundwater conjunctive use systems for uses other than public water supplies.

1. Applicants proposing to withdraw groundwater as part of a surface water and groundwater conjunctive use system for uses other than public water supplies shall provide the following information to the department in addition to information required by 9VAC25-610-90, 9VAC25-610-92, or 9VAC25-610-94 as part of their permit application:

a. A detailed description of the surface water and groundwater conjunctive use system, including:

(1) Identification of all surface water sources, including pond and reservoir volumes where applicable;

(2) Identification of the wells used on a continual basis to supplement surface water supply needs and wells to be utilized in periods of reduced surface water availability. Well construction information for all wells shall be submitted on the Water Well Completion Report, Form GW2, which includes the following information:

(a) The depth of the well;

(b) The diameter, top and bottom, and material of each cased interval;

(c) The diameter, top and bottom, for each screened interval; and

(d) The depth of pump intake.

(3) A description of the storage system, excluding surface water sources described in subdivision 1 a (1) of this subsection; and

(4) A map delineating the area in which the water will be beneficially used.

b. Records documenting the amount of water withdrawn on a monthly basis and annual basis for each water source during average weather conditions and during drought conditions;

c. Documentation of the seasonal supply of surface water during both average and drought conditions;

d. Documentation of any seasonal changes in demand that occur during an annual cycle of the specified beneficial use or uses;

e. Other relevant information that may be required by the department to evaluate the application.

2. The applicant shall demonstrate that the groundwater withdrawal will originate from the aquifer that contains the lowest quality water that will support the proposed beneficial use or uses.

3. The department shall evaluate the proposed groundwater withdrawal for consistency with criteria specified in 9VAC25-610-110.

4. In addition to conditions established in 9VAC25-610-100, 9VAC25-610-110, 9VAC25-610-130, and 9VAC25-610-140, the permit shall specify the maximum amount of groundwater that may be withdrawn during the term of the permit and shall address variations in the groundwater withdrawal amounts that may occur.

5. The department may issue any permit with terms, conditions, or limitations necessary to protect the public welfare, safety, and health, or to protect the resource.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-106 Supplemental drought relief wells

A. Public water supplies wishing to withdraw groundwater for human consumption during periods of drought through the use of supplemental drought relief wells in any groundwater management area and not excluded from requirements of this chapter by 9VAC25-610-50 shall apply for a permit.

B. A groundwater withdrawal permit application shall be completed and submitted to the department and a groundwater withdrawal permit issued by the department prior to the initiation of any withdrawal not specifically excluded in 9VAC25-610-50 or authorized by a general permit adopted by the board as a regulation.

C. A complete groundwater withdrawal permit application for supplemental drought relief wells shall contain the following:

1. The permit fee as required by the Fees for Permits and Certificates Regulations (9VAC25-20);

2. A groundwater withdrawal permit application completed in its entirety with all maps, attachments, and addenda that may be required. Application forms shall be submitted in a format specified by the department. Such application forms are available from the Department of Environmental Quality;

3. A signature as described in 9VAC25-610-150;

4. Well construction documentation for all wells associated with the application submitted on the Water Well Completion Report, Form GW2, which includes the following information:

a. The depth of the well;

b. The diameter, top and bottom, and material of each cased interval;

c. The diameter, top and bottom, for each screened interval; and

d. The depth of pump intake.

5. The application shall include locations of all wells associated with the application shown on United States Geological Survey 7-1/2 minute topographic maps. The applicant shall provide the latitude and longitude coordinates in a datum specified by the department for each existing and proposed well. The detailed location map shall be of sufficient detail such that all wells may be easily located for site inspection;

6. A map identifying the service areas for public water supplies;

7. Information on surface water and groundwater conjunctive use systems as described in 9VAC25-610-104 if applicable;

8. A water conservation and management plan as described in 9VAC25-610-100;

9. The application shall include notification from the local governing body in which the withdrawal is to occur that the location and operation of the withdrawing facility is in compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of Virginia. If the governing body fails to respond to the applicant's request for certification within 45 days of receipt of the written request, the location and operation of the proposed facility shall be deemed to comply with the provisions of such ordinances for the purposes of this chapter. The applicant shall document the local governing body's receipt of the request for certification through the use of certified mail or other means that establishes proof of delivery;

10. A plan to mitigate potential adverse impacts from the proposed withdrawal on existing groundwater users. In lieu of developing individual mitigation plans, multiple applicants may choose to establish a mitigation program to collectively develop and implement a cooperative mitigation plan that covers the entire area of impact of all members of the mitigation program;

11. Documentation on the maximum amount of groundwater needed annually to meet human consumption needs; and

12. Other relevant information that may be required by the department to evaluate the application.

D. Permits issued by the department for groundwater withdrawals from supplemental drought relief wells shall include the following permit conditions:

1. Permits shall include a maximum amount of groundwater allowed to be withdrawn over the term of the permit.

2. The permit shall specify an annual limit on the amount of groundwater to be withdrawn based on the amount of groundwater needed annually to meet human consumption needs. Groundwater withdrawals from supplemental drought relief wells shall be subject to monthly groundwater withdrawal limits.

3. Permits shall specify that groundwater withdrawn from supplemental drought relief wells shall be used to meet human consumption needs.

4. Permits shall specify that groundwater shall only be withdrawn from supplemental drought relief wells after mandatory water restrictions have been implemented pursuant to approved water conservation and management plans as required by § 62.1-265 of the Code of Virginia.

5. A permit shall contain the total depth of each permitted well in feet.

6. A permit shall specify the screened intervals of wells authorized for use by the permit.

7. A permit shall contain the designation of the aquifers to be utilized.

8. A permit may contain conditions limiting the withdrawal amount of a single well or a group of wells within a withdrawal system to a quantity specified by the department.

9. A groundwater withdrawal permit for a public water supply shall contain a condition allowing daily withdrawals at a level consistent with the requirements and conditions contained in the waterworks operation permit, or equivalent, issued by the Virginia Department of Health. This requirement shall not limit the authority of the department to reduce or eliminate groundwater withdrawals by public water suppliers if necessary to protect human health or the environment.

10. The permit shall state that no pumps or water intake devices are to be placed lower than the top of the uppermost confined aquifer that a well utilizes as a groundwater source or lower than the bottom of an unconfined aquifer that a well utilizes as a groundwater source in order to prevent dewatering of a confined aquifer, loss of inelastic storage, or damage to the aquifer from compaction.

11. All permits shall specify monitoring requirements as conditions of the permit.

a. Permitted users shall install in-line totalizing flow meters to read gallons, cubic feet, or cubic meters on each permitted well prior to beginning the permitted use. Such meters shall produce volume determinations within plus or minus 10% of actual flows. A defective meter or other device must be repaired or replaced within 30 days. A defective meter is not grounds for not reporting withdrawals. During any period when a meter is defective, generally accepted engineering methods shall be used to estimate withdrawals and the period during which the meter was defective must be clearly identified in groundwater withdrawal reports. An alternative method for determining flow may be approved by the department on a case-by-case basis.

b. Permits shall contain requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods when required as a condition of the permit.

c. Permits shall contain required monitoring including type, intervals, and frequency sufficient to yield data that are representative of the monitored activity and including, when appropriate, continuous monitoring and sampling.

d. Each permitted well shall be equipped in a manner such that water levels can be measured during pumping and nonpumping periods without dismantling any equipment. Any opening for tape measurement of water levels shall have an inside diameter of at least 0.5 inches and be sealed by a removable plug or cap. The permittee shall provide a tap for taking raw water samples from each permitted well.

12. All permits shall prohibit withdrawals from wells not authorized in the permit.

13. All permits shall include requirements to report the amount of water withdrawn from each permitted well or well system on forms provided by the department with a frequency dependent on the nature and effect of the withdrawal, but in no case less than once per year.

14. Groundwater withdrawal permits issued under this chapter shall have an effective and expiration date that will determine the life of the permit. Groundwater withdrawal permits shall be effective for a fixed term not to exceed 15 years. Permit duration of less than the maximum period of time may be recommended in areas where hydrologic conditions are changing or are not adequately known. The term of any permit shall not be extended by modification beyond the maximum duration. Extension of permits for the same activity beyond the maximum duration specified in the original permit will require reapplication and issuance of a new permit.

15. Each permit shall have a condition allowing the reopening of the permit for the purpose of modifying the conditions of the permit to meet new regulatory standards duly adopted by the board.

16. Each well that is included in a groundwater withdrawal permit shall have affixed to the well casing, in a prominent place, a permanent well identification plate that records the Department of Environmental Quality well identification number, the groundwater withdrawal permit number, the total depth of the well, and the screened intervals in the well, at a minimum. Such well identification plates shall be in a format specified by the department and are available from the Department of Environmental Quality.

E. The permit shall address variations in the groundwater withdrawal amounts that may occur.

F. In addition to the permit conditions listed in subsection D of this section, the department may issue any permit with terms, conditions, or limitations necessary to protect the public welfare, safety, and health, or to protect the resource.

G. The department shall evaluate the application for supplemental drought relief wells based on the following criteria:

1. The applicant demonstrates that no pumps or water intake devices are placed lower than the top of the uppermost confined aquifer that a well utilizes as a groundwater source or lower than the bottom of an unconfined aquifer that a well utilizes as a groundwater source in order to prevent dewatering of a confined aquifer, loss of inelastic storage, or damage to the aquifer from compaction.

2. The applicant demonstrates that the amount of groundwater withdrawal requested is the smallest amount of withdrawal necessary to support human consumption when mandatory water use restrictions have been implemented.

3. The applicant provides a water conservation and management plan as described in 9VAC25-610-100 and implements the plan as an enforceable condition of the groundwater withdrawal permit.

4. The applicant provides certification by the local governing body that the location and operation of the withdrawing facility is in compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of Virginia.

5. The department's technical evaluation demonstrates that the area of impact of the proposed withdrawal will remain on property owned by the applicant or that there are no existing groundwater withdrawers within the area of impact of the proposed withdrawal.

In cases where the area of impact does not remain on the property owned by the applicant or existing groundwater withdrawers will be included in the area of impact, the applicant shall provide and implement a plan to mitigate all adverse impacts on existing groundwater users. Approvable mitigation plans shall, at a minimum, contain the following features and implementation of the mitigation plan shall be included as enforceable permit conditions:

a. The rebuttable presumption that water level declines that cause adverse impacts to existing wells within the area of impact are due to the proposed withdrawal;

b. A commitment by the applicant to mitigate undisputed adverse impacts due to the proposed withdrawal in a timely fashion;

c. A speedy, nonexclusive, low-cost process to fairly resolve disputed claims for mitigation between the applicant and any claimant; and

d. The requirement that the claimant provide documentation that he is the owner of the well; documentation that the well was constructed and operated prior to the initiation of the applicant's withdrawal; the depth of the well, the pump, and screens, and any other construction information that the claimant possesses; the location of the well with enough specificity that it can be located in the field; the historic yield of the well, if available; historic water levels for the well, if available; and the reasons the claimant believes that the applicant's withdrawals have caused an adverse impact on the well.

6. The department conducts a technical evaluation of the effects of the proposed withdrawal with the stabilized cumulative effects of all existing lawful withdrawals to identify if the withdrawal will lower water levels in any confined aquifer below a point that represents 80% of the distance between the land surface and the top of the aquifer.

7. The department's technical evaluation demonstrates that the proposed groundwater withdrawal will not result in salt water intrusion or the movement of waters of lower quality to areas where such movement would result in adverse impacts on existing groundwater users or the groundwater resource. This provision shall not exclude the withdrawal of brackish water provided that the proposed withdrawal will not result in unmitigated adverse impacts.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 35, Issue 4, eff. November 14, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-108 Estimating area of impact for qualifying groundwater withdrawals

A. For groundwater withdrawals where available information indicates the area of impact for the withdrawal will be less than 12 square miles, the director may estimate, through the use of modeling techniques, the area of impact of a withdrawal for use by the applicant in developing a mitigation plan.

B. The applicant may choose to use the area of impact estimated by the department or the applicant may conduct a geophysical investigation to gather site-specific information to be used as the basis for identifying the area of impact of the withdrawal.

C. The area of impact, whether estimated or identified through an evaluation of a geophysical investigation, shall be included in the permit's mitigation plan if a plan is required by 9VAC25-610-110 D 3 g.

D. Mitigation plans for all surface water and groundwater conjunctive use system permits and supplemental drought relief permits shall address the area of impact associated with the maximum groundwater withdrawal allowed by such permits.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

9VAC25-610-110 Evaluation criteria for permit applications

A. The department shall not issue any permit for more groundwater than will be applied to the proposed beneficial use.

B. The department shall issue groundwater withdrawal permits to persons withdrawing groundwater or who have rights to withdraw groundwater prior to July 1, 1992, in the Eastern Virginia or Eastern Shore Groundwater Management Area and not excluded from requirements of this chapter by 9VAC25-610-50 based on the following criteria:

1. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 1 of 9VAC25-610-90 for the total amount of groundwater withdrawn in any consecutive 12-month period between July 1, 1987, and June 30, 1992; however, with respect to a political subdivision, an authority serving a political subdivision, or a community waterworks regulated by the Virginia Department of Health, the department shall issue a groundwater withdrawal permit for the total amount of water withdrawn in any consecutive 12-month period between July 1, 1980, and June 30, 1992.

2. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 2 of 9VAC25-610-90 for the total amount of groundwater withdrawn and applied to a beneficial use in any consecutive 12-month period between July 1, 1992, and June 30, 1995.

3. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 4 of 9VAC25-610-90 for the total amount of groundwater withdrawn in any consecutive 12-month period between July 1, 1983, and June 30, 1993. The department shall evaluate all estimates of groundwater withdrawal based on projected water demands for crops and livestock as published by the Virginia Cooperative Extension Service, the United States Natural Resources Conservation Service, or other similar references and determine whether the estimates are reasonable. In all cases only reasonable estimates will be used to document a permit limit.

4. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 5 of 9VAC25-610-90 for the amount of groundwater withdrawal needed to annually meet human consumption needs as proven in the water conservation and management plan approved by the department. The department shall include conditions in such permits that require the implementation of mandatory use restrictions before such withdrawals can be exercised.

5. When requested by persons described in subdivisions 1, 2, and 4 of 9VAC25-610-90, the department may issue groundwater withdrawal permits that include withdrawal amounts in excess of those that an applicant can support based on historic usage. These additional amounts shall be based on documentation of water savings achieved through water conservation measures. The applicant shall demonstrate withdrawals prior to implementation of water conservation measures, type of water conservation measure implemented, and withdrawals after implementation of water conservation measures. The applicant shall provide evidence of withdrawal amounts through metered withdrawals and estimated amounts shall not be accepted to claim additional withdrawal amounts due to water conservation. Decreases in withdrawal amounts due to production declines, climatic conditions, population declines, or similar events shall not be used as a basis to claim additional withdrawal amounts based on water conservation.

C. The department shall issue groundwater withdrawal permits to persons withdrawing groundwater when a groundwater management area is declared or expanded after July 1, 1992, and not excluded from requirements of this chapter by 9VAC25-610-50 based on the following criteria:

1. The department shall issue a groundwater withdrawal permit to nonagricultural users for the total amount of groundwater withdrawn in any consecutive 12-month period during the five years preceding the effective date of the regulation creating or expanding the groundwater management area.

2. The department shall issue a groundwater withdrawal permit to agricultural users for the total amount of groundwater withdrawn in any consecutive 12-month period during the 10 years preceding the effective date of the regulation creating or expanding the groundwater management area. The department shall evaluate all estimates of groundwater withdrawal based on projected water demands for crops and livestock as published by the Virginia Cooperative Extension Service, the United States Natural Resources Conservation Service, or other similar references and determine whether the estimates are reasonable. In all cases only reasonable estimates will be used to document a permit limit.

3. When requested by the applicant, the department may issue groundwater withdrawal permits that include withdrawal amounts in excess of those that an applicant can support based on historic usage. These additional amounts shall be based on documentation of water savings achieved through water conservation measures. The applicant shall demonstrate withdrawals prior to implementation of water conservation measures, type of water conservation measure implemented, and withdrawals after implementation of water conservation measures. The applicant shall provide evidence of withdrawal amounts through metered withdrawals and estimated amounts shall not be accepted to claim additional withdrawal amounts due to water conservation. Decreases in withdrawal amounts due to production declines, climatic conditions, population declines, or similar events shall not be used as a basis to claim additional withdrawal amounts based on water conservation.

D. The department shall issue groundwater withdrawal permits to persons wishing to initiate a new withdrawal, expand an existing withdrawal, or reapply for a current withdrawal in any groundwater management area who have submitted complete applications and are not excluded from requirements of this chapter by 9VAC25-610-50 based on the following criteria:

1. The applicant shall provide all information required in subdivision 2 of 9VAC25-610-94 prior to the department's determination that an application is complete. The department may require the applicant to provide any information contained in subdivision 3 of 9VAC25-610-94 prior to considering an application complete based on the anticipated impact of the proposed withdrawal on existing groundwater users or the groundwater resource.

2. The department shall perform a technical evaluation to determine the areas of any aquifers that will experience at least one foot of water level declines due to the proposed withdrawal and may evaluate the potential for the proposed withdrawal to cause salt water intrusion into any portions of any aquifers or the movement of waters of lower quality to areas where such movement would result in adverse impacts on existing groundwater users or the groundwater resource. Prior to public notice of a draft permit developed in accordance with the findings of the technical evaluation and at the request of the applicant, the results of the technical evaluation, including all assumptions and input, will be provided to the applicant for review.

3. The department shall issue a groundwater withdrawal permit when it is demonstrated, by a complete application and the department's technical evaluation, to the department's satisfaction that the maximum safe supply of groundwater will be preserved and protected for all other beneficial uses and that the applicant's proposed withdrawal will have no significant unmitigated impact on existing groundwater users or the groundwater resource. In order to ensure that the applicant's proposed withdrawal complies with these requirements, the demonstration shall include compliance with the following criteria:

a. The applicant demonstrates that no other sources of water supply, including reclaimed water, are practicable.

b. The applicant demonstrates that the groundwater withdrawal will originate from the aquifer that contains the lowest quality water that will support the proposed beneficial use.

c. The applicant demonstrates that no pumps or water intake devices are placed lower than the top of the uppermost confined aquifer that a well utilizes as a groundwater source or lower than the bottom of an unconfined aquifer that a well utilizes as a groundwater source in order to prevent dewatering of a confined aquifer, loss of inelastic storage, or damage to the aquifer from compaction.

d. The applicant demonstrates that the amount of groundwater withdrawal requested is the smallest amount of withdrawal necessary to support the proposed beneficial use and that the amount is representative of the amount necessary to support similar beneficial uses when adequate conservation measures are employed.

e. The applicant provides a water conservation and management plan as described in 9VAC25-610-100 and implements the plan as an enforceable condition of the groundwater withdrawal permit.

f. The applicant provides certification by the local governing body that the location and operation of the withdrawing facility is in compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of Virginia.

g. The department's technical evaluation demonstrates that the area of impact of the proposed withdrawal will remain on property owned by the applicant or that there are no existing groundwater withdrawers within the area of impact of the proposed withdrawal.

In cases where the area of impact does not remain on the property owned by the applicant or existing groundwater withdrawers will be included in the area of impact, the applicant shall provide and implement a plan to mitigate all adverse impacts on existing groundwater users. Approvable mitigation plans shall, at a minimum, contain the following features and implementation of the mitigation plan shall be included as an enforceable permit condition:

(1) The rebuttable presumption that water level declines that cause adverse impacts to existing wells within the area of impact are due to the proposed withdrawal;

(2) A commitment by the applicant to mitigate undisputed adverse impacts due to the proposed withdrawal in a timely fashion;

(3) A speedy, nonexclusive, low-cost process to fairly resolve disputed claims for mitigation between the applicant and any claimant; and

(4) The requirement that the claimant provide documentation that the claimant is the owner of the well; documentation that the well was constructed and operated prior to the initiation of the applicant's withdrawal; the depth of the well, the pump, and screens and any other construction information that the claimant possesses; the location of the well with enough specificity that it can be located in the field; the historic yield of the well, if available; historic water levels for the well, if available; and the reasons the claimant believes that the applicant's withdrawals have caused an adverse impact on the well.

h. The department's technical evaluation demonstrates that the stabilized effects from the proposed withdrawal in combination with the stabilized combined effects of all existing lawful withdrawals will not lower water levels, in any confined aquifer that the withdrawal impacts, below a point that represents 80% of the distance between the land surface and the top of the aquifer. Compliance with the 80% drawdown criteria will be determined at the points where the predicted one-foot drawdown contour is predicted for the proposed withdrawal.

i. The department's technical evaluation demonstrates that the proposed groundwater withdrawal will not result in salt water intrusion or the movement of waters of lower quality to areas where such movement would result in adverse impacts on existing groundwater users or the groundwater resource. This provision shall not exclude the withdrawal of brackish water, provided that the proposed withdrawal will not result in unmitigated adverse impacts.

4. The department shall also take the following factors into consideration when evaluating a groundwater withdrawal permit application or special conditions associated with a groundwater withdrawal permit:

a. The nature of the use of the proposed withdrawal;

b. The public benefit provided by the proposed withdrawal;

c. The proposed use of innovative approaches, such as aquifer storage and recovery systems, surface water and groundwater conjunctive use systems, multiple well systems that blend withdrawals from aquifers that contain different quality groundwater in order to produce potable water, and desalinization of brackish groundwater;

d. Prior public investment in existing facilities for withdrawal, transmission, and treatment of groundwater;

e. Climatic cycles;

f. Economic cycles;

g. The unique requirements of nuclear power stations;

h. Population and water demand projections during the term of the proposed permit;

i. The status of land use and other necessary approvals; and

j. Other factors that the department deems appropriate.

E. When proposed uses of groundwater are in conflict or available supplies of groundwater are not sufficient to support all those who desire to use them, the department shall prioritize the evaluation of applications in the following manner:

1. Applications for human consumption shall be given the highest priority;

2. Should there be conflicts between applications for human consumption, applications will be evaluated in order based on the date that the applications were considered complete; and

3. Applications for all uses, other than human consumption, will be evaluated following the evaluation of proposed human consumption in order based on the date that the applications were considered complete.

F. Criteria for review of reapplications for groundwater withdrawal permit.

1. The department shall consider all criteria in subsection D of this section prior to reissuing a groundwater withdrawal permit. Existing permitted withdrawal amounts shall not be the sole basis for determination of the appropriate withdrawal amounts when a permit is reissued.

2. The department shall reissue a permit to any public water supply user for an annual amount no less than the amount equal to that portion of the permitted withdrawal that was used by the system to support human consumption during 12 consecutive months of the previous term of the permit.

G. The department is authorized to utilize and incorporate comprehensive groundwater, surface water, and aquifer data in permit decisions. Such data may include information relating to water levels, flow rates, and water quality.

History

• Statutory Authority: §§ 62.1-44.15:22 and 62.1-256 of the Code of Virginia
• Historical Notes: Derived from VR680-13-07 § 3.3, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-610-120 Public water supplies

The department shall evaluate all applications for groundwater withdrawals for public water supplies as described in 9VAC25-610-110. The department shall make a preliminary decision on the application and prepare a draft groundwater withdrawal permit and forward the draft permit to the Virginia Department of Health. The department shall not issue a final groundwater withdrawal permit until such time as the Virginia Department of Health issues a waterworks operation permit, or equivalent. The department shall establish withdrawal limits for such permits as described in 9VAC25-610-140 A 4 and 5. Under the Virginia Department of Health's Waterworks Regulation any proposed use of reclaimed, reused, or recycled water contained in a groundwater withdrawal application to support a public water supply is required to be approved by the Virginia Department of Health.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 3.4, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-130 Conditions applicable to all groundwater permits

A. Duty to comply. The permittee shall comply with all conditions of the permit. Nothing in this chapter shall be construed to relieve the groundwater withdrawal permit holder of the duty to comply with all applicable federal and state statutes and prohibitions. At a minimum, a person must obtain a well construction permit or a well site approval letter from the Virginia Department of Health prior to the construction of any well for any withdrawal authorized by the Department of Environmental Quality. Any permit violation is a violation of the law and is grounds for enforcement action, permit termination, revocation, modification, or denial of a permit application.

B. Duty to cease or confine activity. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the activity for which a permit has been granted in order to maintain compliance with the conditions of the permit.

C. Duty to mitigate. The permittee shall take all reasonable steps to:

1. Avoid all adverse impacts to lawful groundwater users that could result from the withdrawal; and

2. Where impacts cannot be avoided, provide mitigation of the adverse impact as described in 9VAC25-610-110 D 3 g.

D. Inspection and entry. Upon presentation of credentials, the permittee shall allow the department or any duly authorized agent of the department, at reasonable times and under reasonable circumstances, to conduct actions listed in this section. For the purpose of this section, the time for inspection shall be deemed reasonable during regular business hours. Nothing contained herein shall make an inspection time unreasonable during an emergency.

1. Entry upon any permittee's property, public or private, and have access to, inspect and copy any records that must be kept as part of the permit conditions;

2. Inspect any facilities, operations, or practices (including monitoring and control equipment) regulated or required under the permit; and

3. Sample or monitor any substance, parameter, or activity for the purpose of ensuring compliance with the conditions of the permit or as otherwise authorized by law.

E. Duty to provide information. The permittee shall furnish to the department, within a reasonable time, any information that the department may request to determine whether cause exists for modifying or revoking, reissuing, or terminating the permit or to determine compliance with the permit. The permittee shall also furnish to the department, upon request, copies of records required to be kept by the permittee.

F. Monitoring and records requirements.

1. Monitoring of parameters, other than pollutants, shall be conducted according to approved analytical methods as specified in the permit. Analysis of pollutants will be conducted according to 40 CFR Part 136 as published in the 40 CFR July 1, 2024, update.

2. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

3. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart or electronic recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three years from the date of the expiration of a granted permit. This period may be extended by request of the department at any time.

4. Records of monitoring information shall include as appropriate:

a. The date, exact place and time of sampling or measurements;

b. The name of the individuals who performed the sampling or measurements;

c. The date the analyses were performed;

d. The name of the individuals who performed the analyses;

e. The analytical techniques or methods supporting the information such as observations, readings, calculations, and bench data used;

f. The results of such analyses; and

g. Chain of custody documentation.

G. Permit action.

1. A permit may be modified or revoked as set forth in Part VI (9VAC25-610-290 et seq.) of this chapter.

2. If a permittee files a request for permit modification or revocation, or files a notification of planned changes, or anticipated noncompliance, the permit terms and conditions shall remain effective until the department makes a final case decision. This provision shall not be used to extend the expiration date of the effective permit.

3. Permits may be modified or revoked upon the request of the permittee, or upon department initiative, to reflect the requirements of any changes in the statutes or regulations.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 3.5, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; Volume 34, Issue 19, eff. June 13, 2018; Volume 39, Issue 5, eff. November 23, 2022; Volume 40, Issue 14, eff. March 27, 2024; Errata, 40:16 VA.R. 1375, March 25, 2024; amended, Virginia Register Volume 41, Issue 7, eff. December 18, 2024.

9VAC25-610-140 Establishing applicable standards, limitations or other permit conditions

A. In addition to the conditions established in 9VAC25-610-100, 9VAC25-610-110, 9VAC25-610-120, and 9VAC25-610-130, each permit shall include conditions with the following requirements:

1. A permit shall contain the total depth of each permitted well in feet;

2. A permit shall specify the screened intervals of wells authorized for use by the permit;

3. A permit shall contain the designation of the aquifers to be utilized;

4. A permit shall contain conditions limiting the withdrawal amount of a single well or a group of wells that comprise a withdrawal system to a quantity specified by the department. A permit shall contain a maximum annual withdrawal and a maximum monthly groundwater withdrawal limit;

5. A groundwater withdrawal permit for a public water supply shall contain a condition allowing daily withdrawals at a level consistent with the requirements and conditions contained in the waterworks operation permit, or equivalent, issued by the Virginia Department of Health. This requirement shall not limit the authority of the department to reduce or eliminate groundwater withdrawals by public water suppliers if necessary to protect human health or the environment;

6. The permit shall state that no pumps or water intake devices are to be placed lower than the top of the uppermost confined aquifer that a well utilizes as a groundwater source or lower than the bottom of an unconfined aquifer that a well utilizes as a groundwater source in order to prevent dewatering of a confined aquifer, loss of inelastic storage, or damage to the aquifer from compaction.

7. All permits shall specify monitoring requirements as conditions of the permit.

a. Permitted users who are issued groundwater withdrawal permits based on 9VAC25-610-110 B 3 and C 2 shall install either in-line totalizing flow meters or hour meters that record the hours of operation of withdrawal pumps on each permitted well prior to beginning the permitted use. Flow meters shall produce volume determinations within plus or minus 10% of actual flows. Hour meters shall produce run times within plus or minus 10% of actual run times. Hour meter readings will be multiplied by the maximum capacity of the withdrawal pump to determine withdrawal amounts. A defective meter or other device must be repaired or replaced within 30 days. A defective meter is not grounds for not reporting withdrawals. During any period when a meter is defective, generally accepted engineering methods shall be used to estimate withdrawals and the period during which the meter was defective must be clearly identified in groundwater withdrawal reports. An alternative method for determining flow may be approved by the department on a case-by-case basis.

b. Permitted users who are issued groundwater withdrawal permits based on any section of this chapter not included in subdivision 7 a of this subsection shall install in-line totalizing flow meters to read gallons, cubic feet, or cubic meters on each permitted well prior to beginning the permitted use. Such meters shall produce volume determinations within plus or minus 10% of actual flows. A defective meter or other device must be repaired or replaced within 30 days. A defective meter is not grounds for not reporting withdrawals. During any period when a meter is defective, generally accepted engineering methods shall be used to estimate withdrawals and the period during which the meter was defective must be clearly identified in groundwater withdrawal reports. An alternative method for determining flow may be approved by the department on a case-by-case basis.

c. Permits shall contain requirements concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment or methods when required as a condition of the permit.

d. Permits shall contain required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity and including, when appropriate, continuous monitoring and sampling.

e. Each permitted well shall be equipped in a manner such that water levels can be measured during pumping and nonpumping periods without dismantling any equipment. Any opening for tape measurement of water levels shall have an inside diameter of at least 0.5 inches and be sealed by a removable plug or cap. The permittee shall provide a tap for taking raw water samples from each permitted well.

8. All permits shall prohibit withdrawals from wells not authorized in the permit.

9. All permits shall include requirements to report the amount of water withdrawn from each permitted well and well system on forms provided by the department with a frequency dependent on the nature and effect of the withdrawal, but in no case less than once per year.

10. Groundwater withdrawal permits issued under this chapter shall have an effective and expiration date which will determine the life of the permit. Groundwater withdrawal permits shall be effective for a fixed term not to exceed 15 years. Permit duration of less than the maximum period of time may be recommended in areas where hydrologic conditions are changing or are not adequately known. The term of any permit shall not be extended by modification beyond the maximum duration. Extension of permits for the same activity beyond the maximum duration specified in the original permit will require reapplication and issuance of a new permit.

11. Each permit shall have a condition allowing the reopening of the permit for the purpose of modifying the conditions of the permit to meet new regulatory standards duly adopted by the board.

12. Each well that is included in a groundwater withdrawal permit shall have affixed to the well casing, in a prominent place, a permanent well identification plate that records the Department of Environmental Quality well identification number, the groundwater withdrawal permit number, the total depth of the well and the screened intervals in the well, at a minimum. Such well identification plates shall be in a format specified by the department and are available from the Department of Environmental Quality.

B. In addition to the conditions established in 9VAC25-610-100, 9VAC25-610-110, 9VAC25-610-120, 9VAC25-610-130, and subsection A of this section, each permit may include conditions with the following requirements where applicable:

1. A withdrawal limit may be placed on one or more of the wells that constitute a withdrawal system;

2. A permit may contain quarterly, monthly, or daily withdrawal limits or withdrawal limits based on any other frequency as determined by the department;

3. A permit may contain conditions requiring water quality and water levels monitoring at specified intervals in any wells deemed appropriate by the department;

4. A permit may contain conditions specifying water levels and water quality action levels in pumping and observation/monitoring wells to protect against or mitigate water quality levels or aquifer degradation. The department may require permitted users to initiate control measures which include the following:

a. Pumping arrangements to reduce groundwater withdrawal in areas of concentrated pumping;

b. Location of wells to eliminate or reduce groundwater withdrawals near saltwater-freshwater interfaces;

c. Requirement of selective withdrawal from other available aquifers than those presently used or proposed;

d. Selective curtailment, reduction or cessation of groundwater withdrawals to protect the public welfare, safety, or health or to protect the resource;

e. Conjunctive use of freshwater and saltwater aquifers, or waters of less desirable quality where water quality of a specific character is not essential;

f. Construction and use of observation or monitoring wells;

g. Well construction techniques that prohibit the hydraulic connection of aquifers that contain different quality waters, such as gravel packing, that could result in deterioration of water quality in an aquifer; and

h. Such other necessary control or abatement techniques as are practicable to protect and beneficially utilize the groundwater resource.

5. A permit may contain conditions limiting water level declines in pumping wells and observation wells;

6. All permits may include requirements to report water quality and water level information on forms provided by the department with a frequency dependent on the nature and effect of the withdrawal, but in no case less than once per year; and

7. Permits shall require implementation of water conservation and management plans developed to comply with requirements of 9VAC25-610-100.

C. In addition to conditions described in 9VAC25-610-130 and subsections A and B of this section, the department may issue any groundwater withdrawal permit with any terms, conditions and limitations necessary to protect the public welfare, safety, and health or to protect the resource.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 3.6, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; amended, Virginia Register Volume 35, Issue 4, eff. November 14, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-150 Signatory requirements

A. Application. Any application for a permit under this chapter must bear the applicant's signature or the signature of a person acting in the applicant's behalf with the authority to bind the applicant. Electronic submittals containing the original signature page, such as that contained in a scanned document file, are acceptable.

B. Reports. All reports required by permits and other information requested by the department shall be signed by:

1. The permittee; or

2. A duly authorized representative of that person. A person is a duly authorized representative only if:

a. The authorization is made in writing to the department by a person described in subsection A of this section; and

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated withdrawal system or activity, such as the position of plant manager, superintendent, or position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position.

If an authorization is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization must be submitted to the department prior to or together with any separate information, or applications to be signed by an authorized representative.

C. Certification of application and reports. Any person signing a document under subsection A or B of this section shall make the following certification: I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 3.7, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-160 Draft permit

A. Upon receipt of a complete application for a new or expanded withdrawal or a complete application to modify an existing withdrawal, the department shall make a tentative decision to issue or deny the permit. If a tentative decision is to issue the permit then a draft permit shall be prepared in advance of public notice. The following tentative determinations shall be incorporated into a draft permit:

1. Conditions, withdrawal limitations, standards and other requirements applicable to the permit;

2. Monitoring and reporting requirements;

3. Requirements for mitigation of adverse impacts; and

4. Requirements for a water conservation and management plan.

B. If the tentative decision is to deny the permit, the department shall do so in accordance with 9VAC25-610-340.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 3.8, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

Part IV Special Exception Application and Issuance

9VAC25-610-170 Application for a special exception

A. Any person who wishes to initiate a groundwater withdrawal in any groundwater management area and is not exempted from the provisions of this chapter by 9VAC25-610-50 may apply for a special exception in unusual cases where requiring the proposed user to obtain a groundwater withdrawal permit would be contrary to the purpose of the Ground Water Management Act of 1992.

B. A special exception application shall be completed and submitted to the department and a special exception issued by the department prior to the initiation of any withdrawal not specifically excluded in 9VAC25-610-50. Special exception application forms shall be in a format specified by the department and are available from the Department of Environmental Quality.

C. Due to the unique nature of applications for special exceptions the department shall determine the completeness of an application on a case-by-case basis. The department may require any information required in 9VAC25-610-90, 9VAC25-610-92, or 9VAC25-610-94, prior to considering an application for a special exception complete.

D. Where the department finds an application incomplete, the department shall require the submission of additional information after an application has been filed, and may suspend processing of any application until such time as the applicant has supplied missing or deficient information and the department finds the application complete. An incomplete permit application for a special exception may be suspended from processing 180 days from the date that the applicant received notification that the application is deficient. Further, where the applicant becomes aware that he omitted one or more relevant facts from a special exception application, or submitted incorrect information in a special exception application or in any report to the department, he shall immediately submit such facts or the correct information.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.1, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-180 Water conservation and management plans

A. The department may require water conservation and management plans or specific elements of water conservation and management plans as described in 9VAC25-610-100 B prior to considering an application for special exception complete.

B. In instances where a water conservation and management plan is required, the department may include the implementation of such plans as an enforceable condition of the applicable special exception.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.2, eff. September 22, 1993; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-190 Criteria for the issuance of special exceptions

A. The department shall issue special exceptions only in unusual situations where the applicant demonstrates to the department's satisfaction that requiring the applicant to obtain a groundwater withdrawal permit would be contrary to the intended purposes of the Ground Water Management Act of 1992.

B. The department may require compliance with any criteria described in 9VAC25-610-110.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.3, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-200 Public water supplies

The department shall not issue special exceptions for the normal operations of public water supplies.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.4, eff. September 22, 1993; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-210 Conditions applicable to all special exceptions

The holder of any special exception shall be responsible for compliance with all conditions contained in the special exception and shall be subject to the same requirements of permittees as described in 9VAC25-610-130.

History

• Statutory Authority: §§ 62.1-44.15(10) and 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.5, eff. September 22, 1993.

9VAC25-610-220 Establishing applicable standards, limitations or other special exception conditions

The department may issue special exceptions which include any requirement for permits as described in 9VAC25-610-140. Special exceptions shall not be renewed, except in the case of special exceptions that have been issued to allow groundwater withdrawals associated with state-approved groundwater remediation activities. In the case of reissuance of a special exception for a state-approved groundwater remediation activity, the department may require the holder of the special exception to submit any information required in 9VAC25-610-90, 9VAC25-610-92, and 9VAC25-610-94, and may require compliance with any criteria described in 9VAC25-610-110. In the case where any other activity that is being supported by the specially excepted withdrawal will require that the withdrawal extend beyond the term of the existing special exception, the groundwater user shall apply for a permit to withdraw groundwater.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.6, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-230 Signatory requirements

The signatory requirements for any application, report or certification shall be the same as those described in 9VAC25-610-150.

History

• Statutory Authority: §§ 62.1-44.15(10) and 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.7, eff. September 22, 1993.

9VAC25-610-240 Draft special exception

A. Upon receipt of a complete application, the department shall make a tentative decision to issue or deny the special exception. If a tentative decision is to issue the special exception then a draft special exception shall be prepared in advance of public notice. The following tentative determinations shall be incorporated into a draft special exception:

1. Conditions, withdrawal limitations, standards and other requirements applicable to the special exception;

2. Monitoring and reporting requirements; and

3. Requirements for mitigation of adverse impacts.

B. If the tentative decision is to deny the special exception, the department shall return the application to the applicant. The applicant may then apply for a groundwater withdrawal permit for the proposed withdrawal in accordance with Part III (9VAC25-610-85 et seq.) of this chapter.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 4.8, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

Part V Public Involvement

9VAC25-610-250 Public notice of permit or special exception action and public comment period

A. Every draft permit described in 9VAC25-610-160 A and draft special exception shall be given public notice, paid for by the applicant, by publication once in a newspaper of general circulation in the area affected by the withdrawal.

B. Notice of each draft permit described in 9VAC25-610-160 A and draft special exception will be mailed by the department to each local governing body within the groundwater management area within which the proposed withdrawal will occur on or before the date of public notice.

C. The department shall allow a period of at least 30 days following the date of the public notice for interested persons to submit written comments on the tentative decision and to request a public hearing.

D. The contents of the public notice of a draft permit or draft special exception action shall include:

1. Name and address of the applicant. If the location of the proposed withdrawal differs from the address of the applicant the notice shall also state the location in sufficient detail such that the specific location may be easily identified;

2. Brief description of the beneficial use that the groundwater withdrawal will support;

3. The name and depth below ground surface of the aquifer that will support the proposed withdrawal;

4. The amount of groundwater withdrawal requested expressed as an average gallonage per day;

5. A statement of the tentative determination to issue or deny a permit or special exception;

6. A brief description of the final determination procedure;

7. The address, email address, and phone number of a specific person or persons at the department's office from whom further information may be obtained; and

8. A brief description on how to submit comments and request a public hearing.

E. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application or for draft permits for existing groundwater withdrawals when such draft permits are based solely on historic withdrawals.

F. When a permit or special exception is denied the department will do so in accordance with 9VAC25-610-340.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 5.1, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-260 Public access to information

All information pertaining to groundwater permit processing or in reference to any activity requiring a groundwater permit under this chapter shall be available to the public unless the applicant has made a showing that the information is protected by the applicant as a trade secret covered by § 62.1-44.21 of the Code of Virginia. All information claimed confidential must be identified as such at the time of submission to the department.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 5.2, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-270 Public comments and public hearing

A. The director shall consider all written comments and requests for a public hearing received during the comment period, and shall make a determination on the necessity of a public hearing in accordance with 9VAC25-610-275. All proceedings, public hearings, and decisions from it will be in accordance with 9VAC25-610-275.

B. Any applicant or permittee aggrieved by an action of the department or director taken without a formal hearing or inaction of the department or director may request in writing a formal hearing pursuant to § 62.1-44.25 of the Code of Virginia.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 5.3, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-275 Criteria for requesting and granting a public hearing on an individual permit or a special exception action

A. During the public comment period on a permit action in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest the action or terms and conditions of a permit.

B. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations to those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Water Control Board.

C. Upon completion of the public comment period on a permit action, the director shall review all timely requests for public hearing filed during the comment period on the permit action and, within 30 calendar days following the expiration of the time period for the submission of requests, shall grant a public hearing, unless the permittee or applicant agrees to a later date if the director finds the following:

1. That there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;

2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

3. That the action requested by the interested party is not on its face inconsistent with or in violation of the basic laws of the State Water Control Board for a water permit action, a federal law, or any regulation promulgated thereunder.

D. The director of DEQ shall notify by email or postal mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.

E. If the request for a public hearing is granted, the director shall:

1. Schedule the hearing at a time between 45 and 75 days after emailing or mailing the notice of the decisions to grant the public hearing.

2. Cause or require the applicant to publish notice of a public hearing to be published once in a newspaper or general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date.

F. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

G. The director may, at the director's discretion, convene a public hearing in a permit action.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-280 Public notice of hearing

A. Public notice of any public hearing held pursuant to 9VAC25-610-270 and 9VAC25-610-275 shall be circulated as follows:

1. Notice shall be published once in a newspaper of general circulation in the area affected by the proposed withdrawal at least 30 days in advance of the public hearing; and

2. Notice of the public hearing shall be sent to all persons and government agencies which received a copy of the public notice of the draft permit or special exception and to those persons requesting a public hearing or having commented in response to the public in accordance with 9VAC25-610-275.

B. The cost of public notice shall be paid by the applicant.

C. The content of the public notice of any public hearing held pursuant to 9VAC25-610-270 and 9VAC25-610-275 shall include at least the following:

1. Name and address of each person whose application will be considered at the public hearing, the amount of groundwater withdrawal requested expressed as an average gallonage per day, and a brief description of the beneficial use that will be supported by the proposed groundwater withdrawal.

2. The precise location of the proposed withdrawal and the aquifers that will support the withdrawal. The location should be described, where possible, with reference to route numbers, road intersections, map coordinates or similar information.

3. A brief reference to the public notice issued for the permit or special exception application and draft permit or special exception, including identification number and date of issuance unless the public notice includes the public hearing notice.

4. Information regarding the time and location for the public hearing.

5. The purpose of the public hearing.

6. A concise statement of the relevant issues raised by the persons requesting the public hearing.

7. Contact person and the mailing address, email address, phone number, and name of the Department of Environmental Quality office at which interested persons may obtain further information or request a copy of the draft permit or special exception.

8. A brief reference to the rules and procedures to be followed at the public hearing.

D. Public notice of any formal hearing held pursuant to 9VAC25-610-270 B shall be in accordance with Procedural Rule No.1 (9VAC25-230).

E. The public comment period shall remain open for 15 days after the close of the public hearing required by § 62.1-44.15:01 of the Code of Virginia.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 5.4, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-285 Controversial permits

Before rendering a final decision on a controversial permit, the department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at that time. In making its decision, the department shall consider (i) the verbal and written comments received during the comment period and the public hearing made part of the record, (ii) any commentary of the board, and (iii) the agency files.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-287 Controversial permits reporting

At each regular meeting of the board, the department shall provide an overview and update regarding any controversial permits pending before the department that are relevant. Immediately after such presentation by the department, the board shall have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part VI Permit and Special Exception Modification, Revocation and Denial

9VAC25-610-290 Rules for modification and revocation

Permits and special exceptions shall be modified or revoked only as authorized by this part of this chapter as follows:

1. A permit or special exception may be modified in whole or in part, or revoked;

2. Permit or special exception modifications shall not be used to extend the term of a permit or special exception; and

3. Modification or revocation may be initiated by the department, at the request of the permittee, or other person at the department's discretion under applicable laws or the provisions of this chapter.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 6.1, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-300 Causes for revocation

A. After public notice and opportunity for a formal hearing pursuant to 9VAC25-230-100 a permit or special exception can be revoked for cause. Causes for revocation are as follows:

1. Noncompliance with any condition of the permit or special exception;

2. Failure to fully disclose all relevant facts or misrepresentation of a material fact in applying for a permit or special exception, or in any other report or document required by the Act, this chapter or permit or special exception conditions;

3. The violation of any regulation of the board or order of the department, or any order of a court, pertaining to groundwater withdrawal;

4. A determination that the withdrawal authorized by the permit or special exception endangers human health or the environment and cannot be regulated to acceptable levels by permit or special exception modification;

5. A material change in the basis on which the permit or special exception was issued that requires either a temporary or permanent reduction, application of special conditions or elimination of any groundwater withdrawal controlled by the permit or special exception.

B. After public notice and opportunity for a formal hearing pursuant to 9VAC25-230-100 a permit or special exception may be revoked when any of the developments described in 9VAC25-610-310 occur.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 6.2, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-310 Causes for modification

A. A permit or special exception may, at the department's discretion, be modified for any cause as described in 9VAC25-610-300.

B. A permit or special exception may be modified when any of the following developments occur:

1. When new information becomes available about the groundwater withdrawal covered by the permit or special exception, or the impact of the withdrawal, which was not available at permit or special exception issuance and would have justified the application of different conditions at the time of issuance;

2. When groundwater withdrawal reports submitted by the permittee indicate that the permittee is using less than 60% of the permitted withdrawal amount for a five-year period;

3. When a change is made in the regulations on which the permit or special exception was based; or

4. When changes occur which are subject to "reopener clauses" in the permit or special exception.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 6.3, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-320 Transferability of permits and special exceptions

A. Transfer by modification. Except as provided for under automatic transfer in subsection B of this section, a permit or special exception shall be transferred only if the permit has been modified to reflect the transfer.

B. Automatic transfer. Any permit or special exception shall be automatically transferred to a new owner as allowed by the minor modification process described in 9VAC25-610-330 B 8 if:

1. The current owner notifies the department within 30 days in advance of the proposed transfer of ownership;

2. The notice to the department includes a notarized written agreement between the existing permittee and proposed new permittee containing a specific date of transfer of permit or special exception responsibility, coverage and liability to the new permittee, or that the existing permittee will retain such responsibility, coverage, or liability, including liability for compliance with the requirements of any enforcement activities related to the permitted activity;

3. The department does not within the 30-day time period notify the existing permittee and the proposed permittee of its intent to modify, revoke, or reissue the permit or special exception; and

4. The permit transferor and the permit transferee provide written notice to the department of the actual transfer date.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 6.4, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-330 Minor modification

A. Upon request of the holder of a permit or special exception, or upon department initiative with the consent of the holder of a permit or special exception, minor modifications may be made in the permit or special exception without following the public involvement procedures.

B. For groundwater withdrawal permits and special exceptions, minor modifications may only:

1. Correct typographical errors;

2. Require reporting at a greater frequency than required in the permit or special exception;

3. Add additional or more restrictive monitoring requirements than required in the permit or special exception;

4. Replace an existing well provided that the replacement well is screened in the same aquifer or aquifers as the existing well, the replacement well is in the near vicinity of the existing well, the groundwater withdrawal does not increase, and the area of impact does not increase;

5. Add additional wells so long as the additional wells are screened in the same aquifer or aquifers as the existing well, additional wells are in the near vicinity of the existing well, the total groundwater withdrawal does not increase, and the area of impact does not increase;

6. Combine the withdrawals governed by multiple permits into one permit when the systems that were governed by the multiple permits are physically connected, as long as the interconnection will not result in additional groundwater withdrawal and the area of impact will not increase;

7. Change an interim compliance date in a schedule of compliance to no more than 120 days from the original compliance date and provided it will not interfere with the final compliance date;

8. Allow for a change in ownership or operational control when the department determines that no other change in the permit or special exception is necessary, provided that a written agreement containing a specific date for transfer of permit or special exception responsibility, coverage and liability from the current to the new owner has been submitted to the department; and

9. Revise a water conservation and management plan to update conservation measures being implemented by the permittee that increase the amount of groundwater conserved.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 6.5, eff. September 22, 1993; amended, Virginia Register Volume 15, Issue 5, eff. January 1, 1999; Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-340 Denial of a permit or special exception

A. The director shall make a decision to tentatively deny the permit or special exception requested if the requirements of this chapter are not met. Bases for denial include, but are not limited to, the following:

1. The cumulative stabilized impact of the proposed withdrawal in combination with all existing lawful withdrawals will lower water levels in a confined aquifer below a point that represents 80% of the distance between the land surface and the top of the aquifer;

2. The groundwater withdrawal amount requested in the permit application exceeds the amount that can be applied to the proposed beneficial use; and

3. Available supplies of groundwater are insufficient for all who desire to use them and the preference is being given to use for human consumption.

B. The applicant shall be notified by letter of the director's preliminary decision to tentatively deny the permit or special exception requested.

C. The department shall provide sufficient information to the applicant regarding the rationale for denial, such that the applicant may, at his option, modify the application in order to achieve a favorable recommendation; withdraw his application; or proceed with the processing on the original application.

D. Should the applicant withdraw his application, no permit or special exception will be issued.

E. Should the applicant elect to proceed as originally proposed, the director shall advise the applicant of his right to an informal fact finding in accordance with § 2.2-4019 of the Administrative Process Act to consider the denial.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 6.6, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

Part VII Enforcement

9VAC25-610-350 Enforcement

The department may enforce the provisions of this chapter utilizing all applicable procedures under the Ground Water Management Act of 1992 or any other section of the Code of Virginia that may be applicable.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 7.1, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

Part VIII Miscellaneous

9VAC25-610-360 (Repealed.)

History

• Historical Notes: Derived from VR680-13-07 § 8.1, eff. September 22, 1993; amended, Virginia Register Volume 35, Issue 25, eff. September 4, 2019; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-370 Control of naturally flowing wells

The owner of any well that naturally flows, in any portion of the Commonwealth, shall either:

1. Permanently abandon the well in accordance with the Virginia Department of Health's Private Well Construction Regulations; or

2. Equip the well with valves that will completely stop the flow of groundwater when it is not being applied to a beneficial use.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 8.2, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

9VAC25-610-380 Statewide information requirements

The department may require any person withdrawing groundwater for any purpose anywhere in the Commonwealth, whether or not declared to be a groundwater management area, to furnish to the department such information that may be necessary to carry out the provisions of the Ground Water Management Act of 1992. Groundwater withdrawals that occur in conjunction with activities related to the exploration and production of oil, gas, coal, or other minerals regulated by the Department of Energy are exempt from any information reporting requirements.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 8.3, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 38, Issue 3, eff. October 27, 2021; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-390 Statewide right to inspection and entry

Upon presentation of credentials the department, or any duly authorized agent, shall have the power to enter, at reasonable times and under reasonable circumstances, any establishment or upon any property, public or private, located anywhere in the Commonwealth for the purposes of obtaining information, conducting surveys or inspections, or inspecting wells and springs to ensure compliance with any regulations adopted by the board or permits, standards, policies, rules, rulings, and special orders which the department may adopt, issue or establish to carry out the provisions of the Ground Water Management Act of 1992 and this chapter.

History

• Statutory Authority: § 62.1-256 of the Code of Virginia.
• Historical Notes: Derived from VR680-13-07 § 8.4, eff. September 22, 1993; amended, Virginia Register Volume 30, Issue 5, eff. January 1, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-610-400 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 15, Issue 5, eff. January 1, 1999; repealed, Virginia Register Volume 30, Issue 5, eff. January 1, 2014.

Chapter 650 Closure Plans and Demonstration of Financial Capability

Part I Definitions

9VAC25-650-10 Definitions

The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise:

"Active life" means the length of time a facility discharges to state waters or is subject to regulation under the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31).

"Anniversary date" means the date of issuance of a financial mechanism.

"Assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Ceases operations" means to cease conducting the normal operation of a facility under circumstances in which it is reasonable to expect that such operation will not be resumed by the owner at the facility. The term shall not include the sale or transfer of a facility in the ordinary course of business or a permit transfer in accordance with board regulations. Ceases operations shall include, but not be limited to, the following:

1. Bankruptcy or insolvency of the owner or operator or suspension or revocation of a charter or license to operate the facility or to furnish sewer services;

2. Failure to operate and maintain a facility in accordance with the Operations and Maintenance Manual for the facility, such that a substantial or imminent threat to public health or the environment is created;

3. Failure to comply with the requirements of the VPDES permit for the facility, such that a substantial or imminent threat to public health or the environment is created;

4. Notification of termination of service by a utility providing electricity or other resource essential to the normal operation of the facility.

"Closure plan" means a plan to abate, control, prevent, remove, or contain any substantial or imminent threat to public health or the environment that is reasonably likely to occur if a facility ceases operations.

"Current annual inflation factor" means the annual inflation factor derived from the most recent implicit price deflator for gross national product published by the U.S. Department of Commerce in its Survey of Current Business.

"Current closure cost estimate" means the most recent of the estimates prepared in accordance with the requirements of this chapter.

"Current dollars" means the figure represented by the total of the cost estimate multiplied by the current annual inflation factor.

"CWA" means the Clean Water Act (33 USC § 1251 et seq.) (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972) Public Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Public Law 96-483, and Public Law 97-117, or any subsequent revisions thereto.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality, or an authorized representative.

"Discharge" when used without qualification means the discharge of a pollutant.

"Facility" or "activity" means any VPDES point source or treatment works treating domestic sewage or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the VPDES program.

"Facility closure plan" means a facility closure plan prepared in accordance with 9VAC25-790-120 E 3.

"Local government" means a municipality, county, city, town, authority, commission, school board, political subdivision of a state, or other special purpose local government which provides essential services.

"Owner or operator" means the owner or operator of any facility or activity subject to regulation under the VPDES program.

"Parent corporation" means a corporation that directly owns at least 50% of the voting stock of the corporation that is the facility owner or operator; the latter corporation is deemed a "subsidiary" of the parent corporation.

"Permit" means an authorization, certificate, license, or equivalent control document issued by the department or a general permit issued as a regulation adopted by the board to implement the requirements of this chapter. For the purposes of this chapter, permit includes coverage issued under a VPDES general permit. Permit does not include any permit which has not yet been the subject of final agency action, such as a draft permit or proposed permit.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Point source" means any discernible, defined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agricultural or agricultural stormwater run off.

"Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water. It does not mean:

1. Sewage from vessels; or

2. Water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well if the well used either to facilitate production or for disposal purposes is approved by the department, and if the department determines that the injection or disposal will not result in the degradation of ground or surface water resources.

"Pollution" means such alteration of the physical, chemical or biological properties of any state waters as will, or is likely to, create a nuisance or render such waters (i) harmful or detrimental or injurious to the public health, safety or welfare, or to the health of animals, fish or aquatic life; (ii) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural, or for other reasonable uses; provided that: (i) an alteration of the physical, chemical, or biological property of state waters, or a discharge or a deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of, or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the board, are "pollution" for the terms and purposes of this chapter.

"Private residence" means any building, buildings, or part of a building owned by a private entity which serves as a permanent residence where sewage is generated. Private residences include, but are not limited to, single family homes, town houses, duplexes, condominiums, mobile homes, and apartments. Private residences do not include hotels, motels, seasonal camps, and industrial facilities that do not also serve as residences.

"Privately owned sewerage system" means any device or system that is:

1. Used in the treatment (including recycling and reclamation) of sewage. This definition includes sewers, pipes, pump stations or other conveyances only if they convey wastewater to a privately owned sewerage system; and

2. Not owned by the United States, a state, or a local government.

"Publicly owned treatment works" or "POTW" means a treatment works as defined by § 212 of the CWA, which is owned by a state or municipality (as defined by § 502(4) of the CWA). This definition includes any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature. It also includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW treatment plant. The term also means the municipality as defined in § 502(4) of the CWA, which has jurisdiction over the indirect discharges to and the discharges from such a treatment works.

"Sewage" means the water-carried human wastes from residences, buildings, industrial establishments, or other places together with such industrial wastes, underground, surface, storm, or other water, as may be present.

"Special order" means an order of the department issued under the provisions of § 62.1-44.15:1.1 of the Code of Virginia, which require that an owner file with the department a plan to abate, control, prevent, remove, or contain a substantial and imminent threat to public health or the environment that is likely to occur if the facility ceases operations.

"Signature" means the name of a person written with his own hand.

"State waters" means all water, on the surface and under the ground, wholly, or partially within, or bordering the Commonwealth, or within its jurisdiction, including wetlands.

"Substantial business relationship" means the extent of a business relationship necessary under applicable Virginia law to make a guarantee contract incident to that relationship valid and enforceable. A "substantial business relationship" shall arise from a pattern of recent and ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the director.

"Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.

"Treatment works" means any devices and systems used for the storage, treatment, recycling, or reclamation of sewage or liquid industrial waste, or other waste or necessary to recycle or reuse water, including intercepting sewers, outfall sewers, sewage collection systems, individual systems, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, or alterations thereof; and any works, including land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from such treatment; or any other method or system used for preventing, abating, reducing, storing, treating, separating, or disposing of municipal waste or industrial waste, including waste in combined sewer water and sanitary sewer systems.

"Virginia Pollutant Discharge Elimination System (VPDES) Permit" means a document issued by the department or a general permit issued as a regulation adopted by the board pursuant to 9VAC25-31, authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters and the use of biosolids or disposal of sewage sludge. Under the approved state program, a VPDES permit is equivalent to an NPDES permit.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 39, Issue 5, eff. November 23, 2022.

Part II General Information and Legislative Authority

9VAC25-650-20 Purpose

The purpose of this regulation is to require owners or operators of certain privately owned sewerage systems that treat sewage from private residences to file with the department a plan to abate, control, remove, or contain any substantial or imminent threat to public health or the environment that is reasonably likely to occur if the facility ceases operations. For the purposes of this regulation, such a plan shall be termed a closure plan. Such plan shall also include the demonstration of financial assurance required in 9VAC25-650-30 to implement the plan.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-30 Applicability

A. This regulation applies to all persons who own or operate permitted or unpermitted privately owned sewerage systems subject to the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31) that treat sewage generated by private residences and discharge more than 1,000 gallons per day and less than 40,000 gallons per day to state waters.

B. Owners or operators of privately owned sewerage systems must demonstrate annually financial assurance in accordance with the requirements of this chapter.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-650-40 Suspensions and revocations

Failure to submit a closure plan or to provide or maintain adequate financial assurance in accordance with this regulation shall be a basis for termination of a VPDES permit. Termination of a VPDES permit shall be in accordance with 9VAC25-31-410.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001.

Part III Closure Plans and Financial Assurance Criteria

9VAC25-650-50 General purpose and scope

A. Any owner or operator of a privately owned sewerage system subject to this regulation shall file with the department a plan to abate, control, prevent, remove, or contain any substantial imminent threat to public health or the environment that is reasonably likely to occur if such facility ceases operations. Such plan shall be referred to as a closure plan. The closure plan shall include a detailed written estimate of the cost to implement the plan. The owner or operator shall file a closure plan and associated cost estimate for the facility with the department concurrently with the owner's or operator's first VPDES permit application for issuance or reissuance for the facility. Closure plans and cost estimates filed with the department shall be reviewed by the owner or operator and updated as necessary at the end of each VPDES permit term. Revised and updated closure plans shall be filed with the department concurrently with each subsequent VPDES permit application.

B. Closure plans and cost estimates shall be subject to review by the department. The owner or operator shall be notified in writing within 60 days of receipt of the closure plan and cost estimate of the department's decision to approve or disapprove the proposed closure plan and cost estimate. If the department disapproves the closure plan or cost estimate, the department shall notify the owner or operator as to what measures, if any, the owner or operator may take to secure approval. If the owner or operator submits a closure plan that is not approvable by the department, the department may, at its sole discretion, promulgate a closure plan and cost estimate for the facility, subject to appeal by the owner or operator only as to content under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. Closure plans shall be implemented when the department has determined, at its sole discretion, that the facility has ceased operations. The owner or operator of a privately owned facility shall notify the department within 24 hours of the facility ceasing operations as defined in this chapter.

D. In order to assure that the costs associated with protecting public health and the environment are to be recovered from the owner or operator in the event that a facility subject to this regulation ceases operation, the owner or operator of such facility shall submit to the department one or a combination of the financial assurance mechanisms described in this chapter. Financial assurance mechanisms shall be in amounts calculated as the inflation-adjusted cost estimate using the procedures set forth in this chapter.

E. In the case of new facilities or increased discharges from existing facilities, the selected financial assurance mechanism or mechanisms shall be filed with the department no less than 90 days prior to the discharge or increased discharge to state waters.

F. The department may disapprove the proposed evidence of financial assurance if the mechanism or mechanisms submitted do not adequately assure that funds will be available for implementation of the closure plan. The owner or operator shall be notified in writing of the department's decision to approve or disapprove the proposed mechanism. If the department disapproves the financial assurance mechanism, the department shall notify the owner or operator as to what measures, if any, the owner or operator may take to secure approval.

G. Closure plans, cost estimates, and financial assurance mechanisms shall remain in place for the active life of the facility and for the time required to complete the activities specified in the closure plan.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; Errata, 18:7 VA.R. December 17, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-60 Closure plans

A. The owner or operator of a privately owned sewerage system subject to this chapter shall provide a closure plan which abates, controls, prevents, removes, or contains any substantial threat to public health or the environment that is reasonably likely to occur if the facility ceases operations.

B. Closure plans shall be submitted to the department by the owner or operator concurrently with its application for a VPDES permit for the facility or as otherwise required by special order. Existing closure plans filed with the department shall be reviewed by the owner or operator, modified as necessary, and resubmitted to the department concurrently with an owner's or operator's application for a reissued VPDES permit. The submittal shall include a written summary of the results of the review and any modifications to the closure plan.

C. Closure plans shall consist of one or more of the following:

1. The cessation of the discharge of pollutants to state waters, followed by closure of the facility in accordance with the facility closure plan prepared in accordance with 9VAC25-790-120 E 3 and approved by the department.

2. Connection to an alternative treatment works, such as a POTW, including rerouting of all influent flow, followed by closure of the VPDES permitted facility in accordance with the facility closure plan prepared in accordance with 9VAC25-790-120 E 3 and approved by the department.

3. Transfer of the facility to a local government, provided that written agreement of the receiving local government to obtain a VPDES permit and operate and maintain the facility in accordance with the VPDES permit and all other applicable laws and regulations, is obtained and included as part of the closure plan.

4. Contract operation of the facility for a period of two years after initial implementation of the closure plan, regardless of the date of initial implementation. Contract operation shall be by a named private company or other entity licensed to operate wastewater treatment facilities in the Commonwealth of Virginia and licensed to operate the specific facility to which the closure plan applies. A closure plan consisting of or including contract operation shall include a written, signed contract executed by the contract operator, contingent only upon approval of the closure plan by the department. The contract shall specify that the contract operator shall operate the facility for the term of the contract in accordance with the terms and conditions of the owner's or operator's VPDES permit for the facility. The contract shall also specify that the contract operator shall assume, without exception, all responsibilities and liabilities associated with the facility's discharge to state waters and with the owner's or operator's VPDES permit in the event the closure plan is implemented. The owner or operator of the facility and the owner of the private company or entity contracted to operate the facility under the closure plan shall not be the same person.

5. An alternative plan which will abate, control, prevent, remove, or contain any substantial or imminent threat to public health or the environment that is reasonably likely to occur if the facility ceases operations.

D. Closure plans shall designate and authorize a named third party who, upon notification by the department, will implement the closure plan. The closure plan shall include written agreement by the named third party, bearing that person's signature, to implement the closure plan in accordance with the requirements of the closure plan for the duration of the VPDES permit term. Where the closure plan includes contract operation of the facility, the named third party may be the contract operator.

E. Closure plans may not consist of the transfer or sale of the facility to another private entity which also would be subject to this regulation.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-70 Transfer of ownership or permit

A. If a privately owned sewerage system subject to this regulation is to be sold or if ownership is to be transferred in the normal course of business, the owner or operator shall notify the department, in written form through certified mail, of such intended sale or transfer at least 30 days prior to such sale or transfer. The notification shall provide the full name, address, and telephone number of the person to whom the facility is to be sold or transferred. The notice shall include a written agreement between the existing and the new permittee containing a specific date for transfer of permit responsibilities, coverage, and liabilities between them.

B. Changes in the ownership or operational control of a facility may be made as a minor modification with prior written approval of the department in accordance with 9VAC25-31-380, except as otherwise provided in this section. When a transfer of ownership or operational control occurs, the new owner or operator shall demonstrate compliance with this chapter and the department shall approve the financial mechanism prior to the transfer of the permit. Upon demonstration to the department by the new owner or operator of compliance with this chapter, the department shall notify the old owner or operator that the old owner or operator no longer needs to comply with this chapter as of the date of demonstration.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 36, Issue 6, eff. December 26, 2019; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-80 Cost estimate for facility closure

A. The owner or operator shall prepare for approval by the department, a detailed written estimate of the cost of implementing the closure plan. The written cost estimate shall be submitted concurrently with the closure plan.

1. The closure plan cost estimate shall equal the full cost of implementation of the closure plan in current dollars.

2. The closure cost estimate shall be based on and include the costs to the owner or operator of hiring a third party to implement the closure plan. The third party may not be either a parent corporation or subsidiary of the owner or operator.

3. The closure cost estimate may not incorporate any salvage value that may be realized by the sale of wastes, facility structures or equipment, land or other facility assets at the time of implementation of the closure plan.

B. During the term of the VPDES permit, the owner or operator shall adjust the implementation cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial assurance mechanism used to comply with this chapter. The adjustment may be made by recalculating the implementation cost in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified below. The inflation factor is the result of dividing the latest published annual deflator by the deflator for the previous year.

1. The first adjustment is made by multiplying the implementation cost estimate by the latest inflation factor. The result is the adjusted implementation cost estimate.

2. Subsequent adjustments are made by multiplying the latest adjusted cost estimate by the latest inflation factor.

C. During the term of the VPDES permit, the owner or operator shall revise the implementation cost estimate concurrently with any revision made to the closure plan which increases the implementation cost. The revised implementation cost estimate shall be adjusted for inflation as specified in subdivisions B 1 and B 2 of this section.

D. The owner or operator may reduce the implementation cost estimate and the amount of financial assurance provided under this section, if it can be demonstrated that the cost estimate exceeds the cost of implementation of the closure plan. The owner or operator shall obtain the approval of the department prior to reducing the amount of financial assurance.

E. The owner or operator shall provide continuous coverage to implement the closure plan until released from financial assurance requirements by the department.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-90 Trust Agreement

A. An owner or operator of a privately owned sewerage system may satisfy the requirements of this chapter by establishing an irrevocable trust fund that conforms to the requirements of this section and by submitting an originally signed duplicate of the trust agreement to the department. The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or the State Corporation Commission (Commonwealth of Virginia).

B. The trust agreement shall be irrevocable and shall continue until terminated at the written direction of the grantor, the trustee, and the department, or by the trustee and the department if the grantor ceases to exist. Upon termination of the trust, all remaining trust property, less final administration expenses, shall be delivered to the grantor. The wording of the trust agreement shall be identical to the wording as follows, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. The trust agreement shall be accompanied by a formal letter of certification of acknowledgement as specified in this chapter.

TRUST AGREEMENT

Trust agreement, the "Agreement," entered into as of (date) by and between (name of the owner or operator), a (name of state) (insert "corporation," "partnership," "association," "proprietorship," or appropriate identification of type of entity), the "Grantor," and (name of corporate trustee), (insert "Incorporated in the state of ________" or "a national bank"), the "Trustee."

Whereas, the State Water Control Board of the Commonwealth of Virginia has established certain regulations applicable to the Grantor, requiring that an owner or operator of a private sewage treatment facility shall provide assurance that funds will be available when needed for implementation of a closure plan. The attached Schedule A contains the name and address of the facility covered by this trust agreement;

Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee;

Now, therefore, the Grantor and the Trustee agree as follows:

Section 1. Definitions. As used in this Agreement:

(a) The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.

(b) The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.

Section 2. Establishment of Fund.

The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of the Department of Environmental Quality of the Commonwealth of Virginia. The Grantor and the Trustee intend that no third party have access to the Fund. Payments made by the provider of financial assurance pursuant to the Director of the Department of Environmental Quality's instruction are transferred to the Trustee and are referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor as provider of financial assurance, any payments necessary to discharge any liability of the Grantor established by the Department of Environmental Quality.

Section 3. Payment for Implementation of the Closure Plan.

The Trustee shall make payments from the Fund as the Director, Department of Environmental Quality shall direct, in writing, to provide for the payment of the costs of implementation of the closure plan for the facility covered by the financial assurance mechanism identified in this Agreement.

The Trustee shall reimburse the Grantor, or other persons as specified by the Department of Environmental Quality, from the Fund for implementation of the closure plan in such amounts as the Director of the Department of Environmental Quality shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the Director of the Department of Environmental Quality specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.

Section 4. Payments Comprising the Fund.

Payments made to the Trustee for the Fund shall consist of cash and securities acceptable to the Trustee.

Section 5. Trustee Management.

The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:

(i) Securities or other obligations of the Grantor, or any other operator of the facility, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 USC § 80a-2(a), shall not be acquired or held, unless they are securities or other obligations of the federal or a state government;

(ii) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or state government; and

(iii) Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

Section 6. Commingling and Investment.

The Trustee is expressly authorized in its discretion:

(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and

(b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 USC § 80a-1 et seq., including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.

Section 7. Express Powers of Trustee.

Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:

(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;

(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;

(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the federal or state government; and

(e) To compromise or otherwise adjust all claims in favor of or against the Fund.

Section 8. Taxes and Expenses.

All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.

Section 9. Advice of Counsel.

The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any questions arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.

Section 10. Trustee Compensation.

The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.

Section 11. Successor Trustee.

The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in writing sent to the Grantor and the present Trustee by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this Section shall be paid as provided in Section 9.

Section 12. Instructions to the Trustee.

All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in the attached Schedule B or such other designees as the Grantor may designate by amendment to Schedule B. The trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests and instructions by the Department of Environmental Quality to the Trustee shall be in writing, signed by the Director of the Department of Environmental Quality, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or the Department of Environmental Quality hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the Department of Environmental Quality, except as provided for herein.

Section 13. Irrevocability and Termination.

Subject to the right of the parties to amend this Agreement as provided in Section 17, this Trust shall be irrevocable and shall continue until terminated at the written direction of the Grantor and the Trustee, or by the Trustee and the Director of the Department of Environmental Quality, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.

Section 14. Immunity and Indemnification.

The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the Department of Environmental Quality issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.

Section 15. Choice of Law.

This Agreement shall be administered, construed, and enforced according to the laws of the Commonwealth of Virginia.

Section 16. Amendment of Agreement.

This Agreement may be amended by an instrument executed in writing executed by the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director of the Department of Environmental Quality, Commonwealth of Virginia, if the Grantor ceases to exist.

Section 17. Annual Valuation.

The Trustee will annually, at the end of the month coincident with or preceding the anniversary date of establishment of the Fund, furnish the Grantor and to the Director of the Department of Environmental Quality, Commonwealth of Virginia, a statement confirming the value of the Trust. Any securities in the Fund will be valued at market value as of no more than 30 days prior to the date of the statement. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the Director of the Department of Environmental Quality, Commonwealth of Virginia will constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.

Section 18. Interpretation.

As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.

In Witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals (if applicable) to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is identical to the wording specified in 9VAC25-650-90 B as such regulations were constituted on the date written above.

(Signature of Grantor)

(Name of the Grantor)

(Title)

Attest:

(Signature of Trustee)

(Name of the Trustee)

(Title)

(Seal)

(Signature of Witness)

(Name of Witness)

(Title)

(Seal)

CERTIFICATE OF ACKNOWLEDGMENT

State of ______________________________

County of ______________________________

On this (date), before me personally came (owner's or operator's representative) to me known, who, being by me duly sworn, did depose and say that she/he resides at (address), that she/he is (title) of (corporation), the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that is was so affixed by order of the Board of Directors of said corporation; and that she/he signed her/his name thereto by like order.

(Signature of Notary Public)

(Name of Notary Public)

My Commission expires:___________________

SCHEDULE A

Name of Facility

Address of facility

Closure Cost Estimate

VPDES Permit Number

C. The irrevocable trust fund, when established, shall be funded for the full required amount of coverage, or funded for part of the required amount of coverage and used in combination with other mechanisms that provide the remaining required coverage. Schedule A of the trust agreement shall be updated within 60 days after a change in the amount of the approved cost estimate covered by the agreement.

D. If the value of the trust fund is greater than the required amount of coverage, the owner or operator may submit a written request to the department for release of the excess.

E. If other financial assurance as specified in this chapter is substituted for all or part of the trust fund, the owner or operator may submit a written request to the director for release of the excess.

F. Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection D or E of this section, the department will instruct the trustee to release to the owner or operator such funds, if any, that the department determines to be eligible for release and specifies in writing.

G. Whenever the cost estimate changes, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new cost estimate, the owner or operator shall, within 10 days of the change in the approved cost estimate, deposit a sufficient amount into the trust so that its value after payment at least equals the amount of the new estimate, or obtain other financial assurance as specified in this article to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner or operator may submit a written request to the department for release of the amount that is in excess of the cost estimate.

H. After beginning implementation of the closure plan, an owner or operator or any other person authorized to implement the closure plan may request reimbursement for implementation expenditures by submitting itemized bills to the department. Within 60 days after receiving bills for plan implementation activities, the department shall instruct the trustee to make reimbursements in those amounts as the department determines are in accordance with the closure plan or are otherwise justified.

I. The department shall agree to terminate the trust when:

1. The owner or operator substitutes alternate financial assurance as specified in this article; or

2. The department notifies the owner or operator that he is no longer required to maintain financial assurance for the implementation of the closure plan.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 36, Issue 6, eff. December 26, 2019; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-100 Surety bond

A. An owner or operator may satisfy the requirements of this chapter by obtaining a surety bond that conforms to the requirements of this section and by submitting an originally signed duplicate of the bond to the department. The surety company issuing the bond shall be licensed to operate as a surety in the Commonwealth of Virginia and be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.

B. The surety bond shall be on surety company letterhead and worded as follows, except that instructions in parentheses shall be replaced with the relevant information and the parentheses deleted.

PERFORMANCE BOND

Date bond executed: _____________

Period of coverage: _____________

Effective date: _____________

Principal: (legal name and address of owner or operator) _____________

Type of organization: (insert "individual" "joint venture," "partnership," "corporation," or appropriate identification of type of organization) _____________

State of incorporation (if applicable): _____________

Surety: (name(s) and business address) _____________

Scope of Coverage:

(List the name of and the address where the private sewage treatment facility assured by this mechanism is located. List the coverage guaranteed by the bond: operation, maintenance, and closure of the privately owned sewage treatment facility)

Penal sum of bond: $ _____________

Surety's bond number: _____________

Know All Persons by These Presents, that we, the Principal and Surety(ies), hereto are firmly bound to the Department of Environmental Quality, Commonwealth of Virginia, ("DEQ") in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sums jointly and severally only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sums only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas said Principal is required under § 62.1-44.18:3 of the State Water Control Law of the Code of Virginia to provide financial assurance to implement a plan to abate, control, prevent, remove, or contain any substantial or imminent threat to public health or the environment that is reasonably likely to occur if such facility ceases operations (closure plan);

Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully implement the closure plan in accordance with the Director of the DEQ's instructions to implement the plan for the facility described above, or if the Principal shall provide alternate financial assurance, acceptable to DEQ and obtain the Director's written approval of such assurance, within 60 days after the date the notice of cancellation is received by the Director of the DEQ from the Surety(ies), then this obligation shall be null and void; otherwise it is to remain in full force and effect.

The Surety(ies) shall become liable on this bond when the Principal has failed to fulfill the conditions described above. Upon notification by the Director of the DEQ that the owner or operator has failed to fulfill the conditions above or that the DEQ has determined that the facility has ceased operations, the Surety(ies) shall either implement the closure plan or forfeit the full amount of the penal sum as directed by the Director of the DEQ under 9VAC25-650-140.

The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the penal sum shown on the face of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.

The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and to the Director of the DEQ, Commonwealth of Virginia, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219, provided, however, that cancellation shall not occur (1) during the 120 days beginning on the date of receipt of the notice of cancellation by the Principal and Director of the DEQ as shown on the signed return receipt; or (2) while a compliance procedure is pending.

In Witness Thereof, the Principal and Surety(ies) have executed this Bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in 9VAC25-650-100 B as such regulations were constituted on the date this bond was executed.

PRINCIPAL

(Signature(s))

(Name(s))

(Title(s))

(Corporate seal)

CORPORATE SURETY(IES)

(Name and address)

State of Incorporation:

Liability limit: $ _______________

(Signature(s))

(Name(s) and title(s))

(Corporate seal)

(For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.)

Bond premium: $ ______________

C. Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.

D. The bond shall guarantee that the owner or operator or any other authorized person will:

1. Implement the closure plan in accordance with the approved closure plan and other requirements in any permit for the facility;

2. Implement the closure plan following an order to do so issued by the department or by a court.

E. The surety bond shall guarantee that the owner or operator shall provide alternate financial assurance as specified in this part within 60 days after receipt by the department of a notice of cancellation of the bond from the surety.

F. If the approved cost estimate increases to an amount greater than the amount of the penal sum of the bond, the owner or operator shall, within 60 days after the increase, cause the penal sum of the bond to be increased to an amount at least equal to the new estimate or obtain other financial assurance, as specified in this part to cover the increase. Whenever the cost estimate decreases, the penal sum may be reduced to the amount of the cost estimate following written approval by the department. Notice of an increase or decrease in the penal sum shall be sent to the department by certified mail within 60 days after the change.

G. The bond shall remain in force for its term unless the surety sends written notice of cancellation by certified mail to the owner or operator and to the department. Cancellation cannot occur, however:

1. During the 120 days beginning on the date of receipt of the notice of cancellation by the department as shown on the signed return receipt; or

2. While an enforcement procedure is pending.

H. The surety shall provide written notification to the department by certified mail no less than 120 days prior to the expiration date of the bond, that the bond will expire and the date the bond will expire.

I. In regard to implementation of a closure plan either by the owner or operator, by an authorized third party, or by the surety, proper implementation of a closure plan shall be deemed to have occurred when the department determines that the closure plan has been completed. Such implementation shall be deemed to have been completed when the provisions of the facility's approved closure plan have been executed and the provisions of any other permit requirements or enforcement orders relative to the closure plan have been complied with.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 34, Issue 13, eff. February 19, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-110 Letter of credit

A. An owner or operator may satisfy the requirements of this chapter by obtaining an irrevocable standby letter of credit that conforms to the requirements of this section and by submitting an originally signed duplicate of the letter of credit to the department. The issuing institution shall be an entity that has the authority to issue letters of credit in the Commonwealth of Virginia and whose letter-of-credit operations are regulated and examined by a federal agency or the State Corporation Commission.

B. The letter of credit shall be on financial institution letterhead and worded as follows, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.

IRREVOCABLE STANDBY LETTER OF CREDIT

(Name and address of issuing institution)

Beneficiary:

Director

Department of Environmental Quality (DEQ)

P.O. Box 1105

Richmond, Virginia 23218

1111 East Main Street, Suite 1400

Richmond, Virginia 23218

Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No.________ in your favor, at the request and for the account of (owner or operator name) of (address) up to the aggregate amount of (in words) U.S. dollars, ($(insert dollar amount)), available upon presentation of

(1) your sight draft, bearing reference to this letter of credit, No._______ and

(2) your signed statement reading as follows:

"I certify that the amount of the draft is payable pursuant to regulations issued under authority of § 62.1-44.18:3 of the Code of Virginia."

This letter of credit may be drawn on to implement the closure plan for the facility identified below in the amount of (in words) ($(insert dollar amount)). (Name of facility and address of the facility assured by this mechanism, and number of hookups served by the system.)

This letter of credit is effective as of (date) and shall expire on (date), but such expiration date shall be automatically extended for a period of (at least the length of the original term) on (expiration date) and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify the Director of the DEQ and the owner or operator by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event that the owner or operator is so notified, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by the Director of the DEQ and the owner or operator, as shown on the signed return receipt.

Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall submit the amount of the draft directly to DEQ in accordance with your instructions.

We certify that the wording of this letter of credit is identical to the wording required in 9VAC25-650-110 B as such regulations were constituted on the date shown immediately below.

Attest:

(Signature(s) and title(s) of official(s) of issuing institution)

(Date)

This credit is subject to (insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce," or "the Uniform Commercial Code").

C. The letter of credit shall be irrevocable and issued for a period of at least one year in an amount at least equal to the current cost estimate for implementation of the closure plan. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the issuing institution decides not to extend the letter of credit beyond the current expiration date it shall, at least 120 days before the expiration date, notify both the owner or operator and the department by certified mail of that decision. The 120-day period will begin on the date of receipt by the department as shown on the signed return receipt. Expiration cannot occur, however, while an enforcement procedure is pending. If the letter of credit is canceled by the issuing institution, the owner or operator shall obtain alternate financial assurance to be in effect prior to the expiration date of the letter of credit.

D. Whenever the approved cost estimate increases to an amount greater than the amount of credit, the owner or operator shall, within 60 days of the increase, cause the amount of credit to be increased to an amount at least equal to the new estimate or obtain other financial assurance as specified in this part to cover the increase. Whenever the cost estimate decreases, the letter of credit may be reduced to the amount of the new estimate following written approval by the department. The issuing institution shall send the notice of an increase or decrease in the amount of the credit to the department by certified mail within 60 days of the change.

E. Following a determination by the department that the owner or operator has failed to provide alternate financial assurance within 60 days after the date the notice of cancellation is received by the owner or operator or has ceased operations at the facility or has failed to implement the closure plan in accordance with the approved plan or other permit or special order requirements, the department will draw on the letter of credit.

F. The owner or operator may cancel the letter of credit only if alternate financial assurance acceptable to the department is substituted as specified in this part or if the owner or operator is released by the department from the requirements of this chapter.

G. The department shall return the original letter of credit to the issuing institution for termination when:

1. The owner or operator substitutes acceptable alternate financial assurance for implementation of the closure plan as specified in this part; or

2. The department notifies the owner or operator that he is no longer required by this part to maintain financial assurance for implementation of the closure plan for the facility.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 28, Issue 18, eff. June 6, 2012; Volume 31, Issue 21, eff. July 30, 2015; Volume 34, Issue 13, eff. February 19, 2018; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-120 Certificate of deposit

A. An owner or operator may satisfy the requirements of this chapter, wholly or in part, by assigning all rights, title and interest of a certificate of deposit to the department, conditioned so that the owner or operator shall comply with the approved facility closure plan filed for the facility. The issuing institution shall be an entity that has the authority to issue certificates of deposit in the Commonwealth of Virginia and whose operations are regulated and examined by a federal agency or the State Corporation Commission (Commonwealth of Virginia). The owner or operator must submit the originally signed assignment and the originally signed certificate of deposit, if applicable, to the department.

B. The assignment shall be on financial institution letterhead and worded as follows, except that instructions in parentheses shall be replaced with the relevant information and the parentheses deleted.

ASSIGNMENT OF CERTIFICATE OF DEPOSIT ACCOUNT

City,______________________________ 20______________________________

FOR VALUE RECEIVED, the undersigned assigns all right, title and interest to the Virginia Department of Environmental Quality, Commonwealth of Virginia and its successors and assigns the Virginia Department of Environmental Quality the principal amount of the instrument, including all monies deposited now or in the future to that instrument, indicated below:

__If checked here, this assignment includes all interest now and hereafter accrued.

Certificate of Deposit Account No.

This assignment is given as security to the Virginia Department of Environmental Quality in the amount of ____________________ Dollars ($____________________).

Continuing Assignment. This assignment shall continue to remain in effect for all subsequent terms of the automatically renewable certificate of deposit.

Assignment of Document. The undersigned also assigns any certificate or other document evidencing ownership to the Virginia Department of Environmental Quality.

Additional Security. This assignment shall secure the payment of any financial assurance obligations of the (name of owner/operator) to the Virginia Department of Environmental Quality for closure activities at the (facility name and permit number) located (physical address).

Application of Funds. The undersigned agrees that all or any part of the funds of the indicated account or instrument may be applied to the payment of any and all financial assurance obligations of (name of owner/operator) to the Virginia Department of Environmental Quality for closure activities at the (facility name and address). The undersigned authorizes the Virginia Department of Environmental Quality to withdraw any principal amount on deposit in the indicated account or instrument including any interest, if indicated, and to apply it in the Virginia Department of Environmental Quality's discretion to fund closure at the (facility name) or in the event of (name of owner or operator)'s failure to comply with the regulation entitled Closure Plans and Demonstration of Financial Capability, 9VAC25-650-10 et seq. The undersigned agrees that the Virginia Department of Environmental Quality may withdraw any principal and/or interest from the indicated account or instrument without demand or notice. The undersigned agrees to assume any and all loss of penalty due to federal regulations concerning the early withdrawal of funds. Any partial withdrawal of principal or interest shall not release this assignment.

The party or parties to this Assignment set their hand or seals, or if corporate, has caused this assignment to be signed in its corporate name by its duly authorized officers and its seal to be affixed by authority of its Board of Directors the day and year above written.

SEAL

(Owner)

(Print name)

SEAL

(Owner)

(Print name)

THE FOLLOWING SECTION IS TO BE COMPLETED BY THE BRANCH OR LENDING OFFICE:

The signature(s) as shown above compare correctly with the name(s) as shown on record as owner(s) of the Certificate of Deposit indicated above. The above Assignment has been properly recorded by placing a hold in the amount of $____________________for the benefit of the Virginia Department of Environmental Quality.

__If checked here, the accrued interest on the Certificate of Deposit indicated above has been maintained to capitalize versus being mailed by check or transferred to a deposit account.

I certify that the wording of this Assignment is identical to the wording required in 9VAC25-650-120 B as such regulations were constituted on the date shown immediately below.

(Signature)

(Date)

(Print name)

(Title)

C. The amount of the certificate of deposit shall be at least equal to the current closure cost estimate for the facility for which the permit application has been filed or any part thereof not covered by other financial assurance mechanisms. The owner or operator shall maintain the certificate of deposit and assignment until all activities required by the approved facility closure plan have been completed.

D. The owner or operator shall be entitled to demand, receive and recover the interest and income from the certificate of deposit as it becomes due and payable as long as the market value of the certificate of deposit plus any other mechanisms used continue to at least equal the amount of the current closure cost estimate.

E. Following a determination by the department that the owner or operator has ceased operations at the facility or has failed to complete closure activities in accordance with the approved facility closure plan or other permit or special order, the department shall cash the certificate of deposit.

F. Whenever the approved closure cost estimate increases to an amount greater than the amount of the certificate of deposit, the owner or operator shall, within 60 days of the increase, cause the amount of the certificate of deposit to be increased to an amount at least equal to the new estimate or obtain other financial assurance as specified in this chapter to cover the increase. Whenever the cost estimate decreases, the owner or operator may reduce the amount of the certificate of deposit to the new estimate following written approval by the department. The owner or operator must submit a certificate of deposit and assignment reflecting the new cost estimate within 60 days of the change in the cost estimate.

G. The department shall return the original assignment and certificate of deposit, if applicable, to the issuing institution for termination when:

1. The owner or operator substitutes acceptable alternate financial assurance for implementation of the closure plan as specified in this chapter; or

2. The department notifies the owner or operator that the owner or operator is no longer required by this chapter to maintain financial assurance for implementation of the closure plan for the facility.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-124 Corporate financial test

A. An owner or operator may satisfy the requirements for financial assurance by demonstrating that he passes a financial test as specified in this section. To pass this test the owner or operator shall meet the following criteria:

1. Financial component.

a. The owner or operator shall satisfy one of the following three conditions:

(1) Supply documentation demonstrating that the owner or operator has a current rating for its senior unsubordinated debt of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's;

(2) A ratio of less than 1.5 comparing total liabilities to net worth; or

(3) A ratio of greater than 0.10 comparing the sum of net income plus depreciation, depletion, and amortization, minus $10 million, to total liabilities.

b. The tangible net worth of the owner or operator shall be greater than the sum of the current closure plan cost estimates and any other environmental obligations covered by a financial test plus $10 million.

c. The owner or operator shall have assets located in the United States amounting to at least the sum of current closure plan cost estimates and any other environmental obligations covered by a financial test as described in subdivision 3 of this subsection.

2. Reporting requirements.

a. To demonstrate that the owner or operator meets the financial component, the owner or operator shall submit the following items to the director and place copies of the items in the facility's operating record:

(1) An original letter signed by the owner's or operator's chief financial officer or managing member and worded as specified in 9VAC25-650-124 B.

(2) A copy of the independent certified public accountant's unqualified opinion of the owner's or operator's financial statements for the latest completed fiscal year except as provided in subdivision (a) of this subdivision A 2 a (2):

(a) To be eligible to use the financial test, the owner's or operator's financial statements referenced in subdivision 2 a (2) of this subsection shall receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for disallowance. The director may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the director deems that the matters which form the basis for the qualification are insufficient to warrant disallowance of the test. If the director does not allow use of the test, the owner or operator shall provide alternate financial assurance as specified in this part.

(b) (Reserved.)

(3) A copy of the owner's or operator's audited financial statements for the latest completed fiscal year.

(4) If the chief financial officer's or managing member's letter providing evidence of financial assurance includes financial data that are different from data in the audited financial statements referred to in subdivision 2 a (2) of this subsection or any other audited financial statement or data filed with the Securities Exchange Commission (SEC), a special report from the owner's or operator's independent certified public accountant to the owner or operator is required stating that:

(a) He has compared the data in the chief financial officer's or managing member's letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

(b) In connection with that examination, no matters came to his attention which caused him to believe that the data in the chief financial officer's or managing member's letter should be adjusted.

(5) A certification from the corporation's chief financial officer or managing member stating the method for funding closure costs and the amount currently designated for closure costs in the corporation's financial statements worded as specified in 9VAC25-650-124 B.

b. If the owner or operator changes the financial assurance mechanism to corporate financial test from any other mechanism, the owner or operator shall submit the items specified in subdivision 2 a of this subsection at least 60 days before the date that the former assurance expires.

c. After the initial submission of items specified in subdivision 2 a of this subsection, the owner or operator shall update the information and submit updated information to the director within 90 days following the close of the owner's or operator's fiscal year. This information must consist of all five items specified in subdivision 2 a of this subsection.

d. The owner or operator is no longer required to submit the items specified in subdivision 2 a of this subsection when:

(1) The owner or operator substitutes alternate financial assurance as specified in this part; or

(2) The owner or operator is released from the requirements of this part by the director.

e. If the owner or operator no longer meets the requirements of subdivision 1 of this subsection, the owner or operator shall, within 120 days following the close of the owner's or operator's fiscal year, obtain alternative financial assurance that meets the requirements of this part, notify the director that the owner or operator no longer meets the criteria of the financial test and submit the alternate assurance documentation.

f. The director may require reports of financial condition at any time from the owner or operator in addition to those specified in subdivision 2 a of this subsection. If the director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subdivision 1 of this subsection, the owner or operator shall provide alternate financial assurance as specified in this part within 30 days after notification of such a finding.

g. The director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see subdivision 2 a (2) (a) of this subsection). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The director will evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this part within 30 days after notification of the disallowance.

3. Calculation of costs to be assured. When calculating the current cost estimates for closure, and any other environmental obligations assured by a financial test referred to in subdivision 1 of this subsection, the owner or operator must include cost estimates required for closure plans for privately owned sewerage systems under this part, as well as cost estimates required for the following environmental obligations, if it assures them through financial test obligations associated with underground injection control (UIC) facilities under 40 CFR 144.62; petroleum underground storage tank facilities under 9VAC25-590-10 et seq.; above ground storage tank facilities under 9VAC25-640-10 et seq.; polychlorinated biphenyls (PCB) storage facilities under 40 CFR Part 761; hazardous waste treatment, storage, and disposal facilities under 40 CFR Parts 264 and 265; and municipal solid waste management facilities under 9VAC20-70.

B. The wording of the letter from the chief financial officer or managing member shall be as follows, except that instructions in parentheses shall be replaced with the relevant information and the parentheses deleted.

| Director | | --- | | Department of Environmental Quality | | P.O. Box 1105 | | Richmond, Virginia 23218 |

Dear (Sir, Madam):

I am the chief financial officer or managing member of (name and address of firm). This letter is in support of this firm's use of the financial test to demonstrate financial assurance, as specified in 9VAC25-650-124 of the Closure Plans and Demonstration of Financial Capability Regulation (9VAC25-650) ("Regulation").

(Fill out the following four paragraphs regarding privately owned sewerage systems (9VAC25-650), solid waste, regulated medical waste, yard waste composting, hazardous waste, underground injection (regulated under the federal program in 40 CFR Part 144, or its equivalent in other states), petroleum underground storage (9VAC25-590), above ground storage facilities (9VAC25-640) and PCB storage (regulated under 40 CFR Part 761) facilities and associated cost estimates. If your firm has no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its name, address, permit number, if any, and current closure, post-closure care, corrective action or any other environmental obligation cost estimates. Identify each cost estimate as to whether it is for closure, post-closure care, corrective action or other environmental obligation.)

1. This firm is the owner or operator of the following facilities for which financial assurance is demonstrated through the corporate test specified in 9VAC25-650-124 or its equivalent in other applicable regulations. The current closure plan cost estimates covered by the test are shown for each facility:

2. This firm guarantees, through the corporate guarantee specified in 9VAC25-650-124, the financial assurance for the following facilities owned or operated by subsidiaries of this firm. The current closure plan cost estimates so guaranteed are shown for each facility:

3. This firm, as owner or operator or guarantor, is demonstrating financial assurance for the following facilities through the use of a financial test. The current closure plan cost estimates covered by such a test are shown for each facility:

4. This firm is the owner or operator of the following privately owned sewerage systems for which financial assurance is not demonstrated through the financial test or any other financial assurance mechanism. The current closure plan cost estimates for the facilities which are not covered by such financial assurance are shown for each facility:

This firm (insert "is required" or "is not required") to file a Form 10K with the Securities and Exchange Commission (SEC) for the latest fiscal year.

The fiscal year of this firm ends on (month, day). The figures for the following items marked with an asterisk are derived from this firm's independently audited, year-end financial statements for the latest completed fiscal year, ended (date).

| 1) Sum of current closure, post-closure care, corrective action, or other environmental obligations cost estimates (total of all cost estimates shown in the four paragraphs above.) | $_______________ | | | | --- | --- | --- | --- | | 2) Tangible net worth* | $_______________ | | | | 3) Total assets located in the United States* | $_______________ | | | | | YES | NO | | | Line 2 exceeds line 1 by at least $10 million? | ____ | ____ | | | Line 3 exceeds line 1 by at least $10 million? | ____ | ____ | |

(Fill in Alternative I if the criteria of 9VAC25-650-124 A 1 a (1) are used. Fill in Alternative II if the criteria of 9VAC25-650-124 A 1 a (2) are used. Fill in Alternative III if the criteria of 9VAC25-650-124 A 1 a (3) are used.)

ALTERNATIVE I

| Current bond rating of this firm's senior unsubordinated debt and name of rating service | | | --- | --- | | Date of issuance of bond | | | Date of maturity of bond | |

ALTERNATIVE II

| 4) Total liabilities* (if any portion of the closure, post-closure care, corrective action, or other environmental obligations cost estimates is included in total liabilities, you may deduct the amount of that portion from this line and add that amount to line 5.) | $_______________ | | | | --- | --- | --- | --- | | 5) Net worth* | $_______________ | | | | | YES | NO | | | Is line 4 divided by line 5 less than 1.5? | ____ | ____ | |

ALTERNATIVE III

| 6) Total liabilities* | $_______________ | | | | --- | --- | --- | --- | | 7) The sum of net income plus depreciation, depletion, and amortization minus $10 million* | $_______________ | | | | | YES | NO | | | Is line 7 divided by line 6 less than 0.1? | ____ | ____ | |

I hereby certify that the wording of this letter is identical to the wording in 9VAC25-650-124 B of the Closure Plans and Demonstration of Financial Capability Regulation as such regulation is constituted on the date shown immediately below.

| (Signature) | | --- | | (Name) | | (Title) | | (Date) |

C. Certification of funding.

CERTIFICATION OF FUNDING

I certify the following information details the current plan for funding closure at the privately owned sewerage systems listed below.

| Facility permit # | | | --- | --- | | Source for funding closure | | | Name of locality or corporation | | | Signature | | | Printed name | | | Title | | | Date | |

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-650-127 Corporate guarantee

A. An owner or operator may meet the requirements of this part by obtaining a written guarantee, referred to in this section as "corporate guarantee." The guarantor shall be the direct or higher-tier parent corporation or direct or higher-tier parent company of the owner or operator, a firm whose parent corporation or parent company is also the parent corporation or parent company of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator.

B. Financial component. The guarantor shall meet the requirements for owners or operators in 9VAC25-650-124 and shall comply with the terms of the corporate guarantee.

C. Reporting requirements.

1. The wording of the corporate guarantee shall be identical to the wording specified in 9VAC25-650 127 G. The corporate guarantee shall accompany the items sent to the director as specified in 9VAC25-650-124 A 2. A copy of the guarantee and other items listed in of 9VAC25-650-124 A 2 shall be placed in the facility's operating record.

2. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter shall describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter shall describe this "substantial business relationship" and the value received in consideration of the guarantee.

3. If the owner or operator changes the financial assurance mechanism to corporate guarantee from any other mechanism, the guarantor shall submit the required items 60 days before the former mechanism expires.

D. The terms of the corporate guarantee shall provide that:

1. If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit or order requirements whenever required to do so, the guarantor shall:

a. Perform, or pay a third party to perform, closure as required (performance guarantee); or

b. Establish a fully funded trust fund as specified in 9VAC25-650-90 in the name of the owner or operator (payment guarantee).

2. The corporate guarantee will remain in force unless the guarantor sends a prior notice of cancellation by certified mail to the owner or operator and to the director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the director, as evidenced by the return receipts.

3. If a guarantee is canceled, the owner or operator must within 90 days following receipt of the cancellation notice by the owner or operator obtain alternate financial assurance and submit the required documentation to the director.

4. If the owner or operator fails to provide alternate financial assurance as specified in this part and to obtain the written approval of such alternate assurance from the director within 90 days after the receipt by both the owner or operator and the director of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator within 120 days of issuing the cancellation notice.

E. If a corporate guarantor no longer meets the requirements of subdivision 1 of 9VAC25-650-124, the owner or operator must, within 90 days following the close of the guarantor's fiscal year, obtain alternative assurance and submit the required documentation to the director. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within 120 days following the close of the guarantor's fiscal year, obtain alternative assurance, and submit the necessary documentation to the director.

F. The owner or operator is no longer required to submit the items specified in this section when:

1. The owner or operator substitutes alternate financial assurance; or

2. The owner or operator is released from the requirements by the director.

G. The wording of the corporate guarantee shall be as follows, except that instructions in parentheses shall be replaced with the relevant information and the parentheses deleted.

CORPORATE GUARANTEE

Guarantee made this (date) by (name of guaranteeing entity), a business corporation or company organized under the laws of the state of (insert name of state), herein referred to as guarantor. This guarantee is made on behalf of the (owner or operator) of (business address), which is (one of the following: "our subsidiary"; "a subsidiary of (name and address of common parent corporation or parent company) of which guarantor is a subsidiary"; or "an entity with which the guarantor has a substantial business relationship, as defined in Part I of the Closure Plan and Demonstration of Financial Capability Regulation 9VAC25-650") to the Virginia Department of Environmental Quality ("Department"), obligee, on behalf of the (owner or operator) of (business address).

Recitals:

1. Guarantor meets or exceeds the financial test criteria in 9VAC25-650-124 and agrees to comply with the reporting requirements for guarantors as specified in 9VAC25-650-127 of the Closure Plan and Demonstration of Financial Capability Regulation ("Regulation").

2. (Owner or operator) owns or operates the following sewage treatment plant(s) covered by this guarantee: (List for each facility: name, address, and permit number, if any.)

3. "Closure plans" as used below refer to the plans maintained as required by the Regulation.

4. For value received from (owner or operator), guarantor guarantees to the Department that in the event that (owner or operator) fails to perform closure of the above facility(ies) in accordance with the closure plan and other (requirements of the) permit or (the order) whenever required to do so, the guarantor shall do so or establish a trust fund as specified in 9VAC25-650-90 in the name of (owner or operator) in the amount of the current closure plan cost estimates.

5. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send within 90 days, by certified mail, notice to the director and to (owner or operator) that guarantor intends to provide alternate financial assurance as specified in 9VAC25-650, in the name of (owner or operator). Within 120 days after the end of such fiscal year, the guarantor shall establish such financial assurance unless (owner or operator) has done so.

6. The guarantor agrees to notify the director by certified mail of a voluntary or involuntary proceeding under Title 11 (Bankruptcy) of the United States Code, naming guarantor as debtor, within 10 days after commencement of the proceeding.

7. Guarantor agrees that within 30 days after being notified by the director of a determination that guarantor no longer meets the financial test criteria or that guarantor is disallowed from continuing as a guarantor of closure, guarantor shall establish alternate financial assurance as specified in 9VAC25-650 in the name of (owner or operator) unless (owner or operator) has done so.

8. Guarantor agrees to remain bound under this guarantee notwithstanding any or all of the following: amendment or modification of the closure plan, amendment or modification of the permit, amendment or modification of the order, the extension or reduction of the time of performance of closure, or any other modification or alteration of an obligation of the owner or operator pursuant to the Regulation or § 62.1-44.18:3 of the Code of Virginia.

9. Guarantor agrees to remain bound under this guarantee for so long as (owner or operator) shall comply with the applicable financial assurance requirements of the Regulation for the above-listed facilities, except as provided in paragraph 10 of this agreement.

10. (Insert the following language if the guarantor is (a) a direct or higher-tier parent corporation or company or (b) a firm whose parent corporation or parent company is also the parent corporation or parent company of the owner or operator:) Guarantor may terminate this guarantee by sending notice by certified mail to the Director of the Department of Environmental Quality and to the (owner or operator), provided that this guarantee may not be terminated unless and until (the owner or operator) obtains and the director approves alternate financial assurance coverage complying with the requirements of 9VAC25-650. (Insert the following language if the guarantor is a firm qualifying as a guarantor due to its "substantial business relationship" with the owner or operator:) Guarantor may terminate this guarantee 120 days following the receipt of notification of cancellation through certified mail by the director and by (the owner or operator).

11. Guarantor agrees that if (owner or operator) fails to provide alternate financial assurance as specified in the Regulation and obtain written approval of such assurance from the director within 90 days after a notice of cancellation by the guarantor is received by the director from guarantor, guarantor shall provide such alternate financial assurance in the name of (owner or operator).

12. Guarantor expressly waives notice of acceptance of this guarantee by the Department or by (owner or operator). Guarantor also expressly waives notice of amendments or modifications of the closure plan and of amendments or modifications of the facility permit(s) or order.

I hereby certify that the wording of this guarantee is identical to the wording in 9VAC25-650-127 G of the Closure Plan and Demonstration of Financial Capability Regulation as such regulation was constituted on the date shown immediately below.

| (Name of guarantor) | | | --- | --- | | Effective date | | | (Authorized signature for guarantor) | | | (Name of person signing) | | | (Title of person signing) | | | Signature of witness or notary | |

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-650-130 Multiple financial mechanisms

An owner or operator may satisfy the requirements of this chapter by establishing more than one financial mechanism per facility, except that mechanisms guaranteeing performance, rather than payment, may not be combined with other mechanisms.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001.

9VAC25-650-140 Drawing on financial assurance mechanism

A. The department shall require the surety or institution issuing a letter of credit or certificate of deposit to submit to the department the amount of funds stipulated by the department, up to the limit of funds provided by the financial assurance mechanism when:

1. The owner or operator fails to establish alternate financial assurance within 60 days after receiving notice of cancellation of the surety bond, letter of credit or certificate of deposit; or

2. The conditions of subsection B of this section are satisfied.

B. The b department makes a final determination that a privately owned sewerage system has ceased operation.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-150 Waiver of requirements

A. The department may waive the filing of the closure plan required pursuant to this chapter for any person who operates a privately owned sewerage system or treatment works subject to this regulation that was permitted prior to January 1, 2001, and discharges less than 5,000 gallons per day upon a finding that such person has not violated any regulation of the board or order of the department, any condition of a permit to operate the facility, or any provision of the State Water Control Law, § 62.1-44.2 et seq. of the Code of Virginia for a period of not less than five years.

B. No waiver shall be approved by the department until after the governing body of the locality in which the facility is located approves the waiver after a public hearing.

C. The department may revoke a waiver at any time for good cause.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-160 Release of the owner or operator from the financial assurance requirements

A. Where the closure plan results in the termination of discharge to state waters and a VPDES permit for the discharge is no longer required, the department shall verify, within 60 days after receiving certification from the owner or operator that the closure plan has been completed in accordance with the requirements of the approved closure plan, permit or other order, whether the closure plan has been completed. Unless the department has reason to believe that the closure plan has not been implemented in accordance with the appropriate plan or other requirements, the department shall notify the owner or operator in writing that the owner or operator is no longer required to maintain financial assurance for the particular facility. Such notice shall release the owner or operator only from the requirements for financial assurance for the facility; it does not release the owner or operator from legal responsibility for meeting the facility closure standards. If no written notice of termination of financial assurance requirements or of failure to properly implement the closure plan is received by the owner or operator within 60 days after certifying proper implementation of the closure plan, the owner or operator may request the department for an immediate decision in which case the department shall respond within 10 days after receipt of such request.

B. Where a VDPES permit for the facility is no longer required under State Water Control Law, the department shall notify the owner or operator in writing that the owner or operator is no longer required to maintain financial assurance for the facility. Such notice shall release the owner or operator only from the requirements for financial assurance for the facility.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-170 Cancellation or renewal by a provider of financial assurance

A. Except as otherwise provided, a provider of financial assurance may cancel or fail to renew an assurance mechanism by sending a notice of termination by certified mail to the owner or operator. Termination of a surety bond or a letter of credit may not occur until 120 days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt.

B. If a provider of financial assurance cancels or fails to renew for reasons other than incapacity of the provider as specified in 9VAC25-650-180, the owner or operator shall obtain alternate coverage as specified in this section and shall submit to the department the appropriate original forms listed in 9VAC25-650-90, 9VAC25-650-100, 9VAC25-650-110, or 9VAC25-650-120 documenting the alternate coverage within 60 days after receipt of the notice of termination. If the owner or operator fails to obtain alternate coverage within 60 days after receipt of the notice of termination, the owner or operator shall immediately notify the department of such failure and submit:

1. The name and address of the provider of financial assurance;

2. The effective date of termination; and

3. A copy of the financial assurance mechanism subject to the termination maintained in accordance with this chapter.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 31, Issue 21, eff. July 30, 2015; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-180 Incapacity of owners or operators, or financial institution

A. An owner or operator shall notify the department by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding.

B. An owner or operator who fulfills the requirements of 9VAC25-650-50 D by obtaining a trust fund, a letter of credit, a surety bond, or certificate of deposit will be deemed to be without the required financial assurance in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing a surety bond, letter of credit, or certificate of deposit to issue such mechanisms. The owner or operator shall establish other financial assurance within 60 days of such event.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-650-190 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; repealed, Virginia Register Volume 31, Issue 21, eff. July 30, 2015.

9VAC25-650-200 Notices to the Department of Environmental Quality

All requirements of this chapter for notification to the Department of Environmental Quality shall be addressed as follows:

| | Mailing Address: | Location Address: | | --- | --- | --- | | | Director | Director | | | Department of Environmental Quality | Department of Environmental Quality | | | P.O. Box 1105 | 1111 East Main Street, Suite 1400 | | | Richmond, Virginia 23218 | Richmond, Virginia 23219 |

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register Volume 28, Issue 18, eff. June 6, 2012; Volume 34, Issue 13, eff. February 19, 2018; Volume 39, Issue 5, eff. November 23, 2022.

Chapter 740 Water Reclamation and Reuse Regulation

Part I Definitions and General Program Requirements

9VAC25-740-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural, electric power generation, commercial, and industrial uses.

"Biological nutrient removal" or "BNR" means treatment that achieves annual average concentrations less than or equal to 8.0 mg/l total nitrogen (N) and 1.0 mg/l total phosphorus (P).

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Bulk irrigation reuse" means reuse of reclaimed water for irrigation of an area greater than five acres on one contiguous property.

"Conjunctive system" means a system consisting of a wastewater treatment works and reclamation system having no or minimal separation of treatment processes between the treatment works and the reclamation system.

"Controlled use" means a use of reclaimed water authorized in accordance with this chapter.

"Corrective action threshold" or "CAT" means a bacterial, turbidity, or total residual chlorine standard for reclaimed water at which measures shall be implemented to correct operational problems of the reclamation system within a specified period, or divert flow from the reclamation treatment process in accordance with this chapter.

"Department" means the Department of Environmental Quality.

"Design flow" means the capacity at which a treatment works is designed to reliably treat an average 24-hour influent flow rate, assessed over a period of a month for all months of operation within a year, including appropriate peak factors provided to meet applicable reliability and redundancy requirements. The average 24-hour influent flow rate shall be based on projected estimates of influent flow to be received by the treatment works.

"Designated design flow" means the design flow of a reclamation system that may be some percentage of or equal to the design flow of a treatment works providing source water to the reclamation system to produce reclaimed water.

"Direct beneficial use" means the use of reclaimed water in a manner protective of the environment and public health that involves transport of the reclaimed water from the point of reclamation treatment and production to the point of use without an intervening discharge to waters of the state.

"Direct injection" means the discharge of reclaimed water directly into groundwater.

"Direct potable reuse" means the discharge of reclaimed water directly into a drinking water treatment facility or into a drinking water distribution system. This includes storage facilities associated with the drinking water treatment facility or drinking water distribution system that are not surface or ground waters of the state.

"Director" means the Director of the Department of Environmental Quality or an authorized representative.

"Disinfection" means the destruction, inactivation, or removal of pathogenic microorganisms by chemical, physical, or biological means. Disinfection may be accomplished by chlorination, ozonation, or other chemical disinfectants; UV radiation; or other processes.

"Disposal" means the discharge of effluent to injection wells, effluent outfalls, subsurface drain fields, or other facilities utilized primarily for the release of effluents into the environment without deriving a direct beneficial use.

"Domestic sewage" means sewage derived from the normal family or household activities, including drinking, laundering, bathing, cooking, heating, cleaning and flushing toilets.

"Drip irrigation" means the slow and uniform above-ground application of water to individual plants and vegetated cover using tubing and drip devices or emitters. Drip irrigation may include below-ground applications of reclaimed water as specified in 9VAC25-740-90 B.

"Effluent," unless specifically stated otherwise, means treated wastewater that is not reused after flowing out of any treatment works.

"End user" means a person or entity that directly uses reclaimed water.

"Filtration" means the passing of wastewater through a conventional technology, such as sand, anthracite or cloth; or an advanced technology, such as microfiltration, ultrafiltration, nanofiltration or reverse osmosis membrane.

"Food crops commercially processed" means food crops that, prior to sale to the public or others, have undergone chemical or physical processing sufficient to remove or destroy pathogens.

"Food crops not commercially processed" means food crops that, prior to sale to the public or others, have not undergone chemical or physical processing sufficient to remove or destroy pathogens.

"Gray water" means untreated wastewater from bathtubs, showers, lavatory fixtures, wash basins, washing machines, and laundry tubs. It does not include wastewater from toilets, urinals, kitchen sinks, dishwashers, or laundry water from soiled diapers.

"Groundwater" means any water, except capillary moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir or other body of surface water wholly or partially within the boundaries of this Commonwealth, whatever the subsurface geologic structure in which such water stands, flows, percolates or otherwise occurs.

"Harvested rainwater" means rainwater that has been collected off of a rooftop through a system that concentrates the rooftop flow and conveys this to a storage device, container, or vessel with the intention of using this water before discharge to waterways via sanitary sewer systems, septic tank or other onsite treatment and disposal systems, or a land based discharge.

"Indirect nonpotable reuse" means the discharge of reclaimed water to a receiving surface water for the purpose of intentionally augmenting a water source, followed by withdrawal from the water source with or without mixing and transport to the withdrawal location, for reuse or distribution for reuse other than indirect potable reuse.

"Indirect potable reuse" or "IPR" means the discharge of reclaimed water to a receiving surface water for the purpose of intentionally augmenting a water supply source, with subsequent withdrawal after mixing with the ambient surface water and transport to the withdrawal location, followed by treatment and distribution for drinking water and other potable water purposes.

"Industrial wastewater" means wastewater resulting from any process of industry, manufacture, trade or business, or from the development of any natural resources.

"Irrigation" means the application of water to land for plant use at a rate that undesirable plant water stress does not occur.

"Landscape impoundment" means a body of water that contains reclaimed water, is not intended for public contact, and is used primarily for aesthetic enjoyment. Landscape impoundments include, but are not limited to, decorative pools, fountains, ponds and lagoons; located outdoors or indoors.

"Level 1" means a degree of treatment at which reclaimed water has received, at a minimum, secondary treatment with filtration and higher-level disinfection, and meets all other applicable standards specified in 9VAC25-740-70.

"Level 2" means a degree of treatment at which reclaimed water has received, at a minimum, secondary treatment and standard disinfection, and meets all other applicable standards specified in 9VAC25-740-70.

"Municipal wastewater" means sewage.

"Nonbulk irrigation reuse" means the reuse of reclaimed water for irrigation of individual areas less than or equal to five acres.

"Nonpotable water" means any water, including reclaimed water, not meeting the definition of potable water.

"Nonsystem storage" means storage for reclaimed water that is other than system storage and is used at a location downstream of the service connection to the reclaimed water distribution system to equalize flow to end users.

"Nutrient management plan" or "NMP" means a plan prepared by a nutrient management planner certified by the Department of Conservation and Recreation to manage the amount, placement, timing, and application of plant nutrients from liquid, solid or semisolid manures, fertilizers, biosolids, or other materials, for the purpose of producing crops and reducing nutrient loss to the environment.

"Owner" means the Commonwealth or any of its political subdivisions including, but not limited to, sanitation district commissions and authorities, and any public or private institution, corporation, association, firm or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for the production or distribution of reclaimed water, or any facility or operation that produces or distributes reclaimed water.

"Permit" means an authorization, certificate, license, or equivalent control document issued by the department to implement the requirements of this chapter.

"Point of compliance" or "POC" means a point at which compliance with the standards of this chapter is required.

"Pollutants of concern" means any pollutants that might reasonably be expected to be discharged to a publicly or privately owned treatment works in sufficient amounts to pass through or interfere with the works, contaminate sludge generated by the works, cause problems in the collection system of the works, or jeopardize the health of employees at the works and the public.

"Potable water" means water fit for human consumption and domestic use that is sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts for domestic usage in the area served and normally adequate in quantity and quality for the minimum health requirements of the persons served.

"Public access area" means an area that is intended to be accessible to the general public, such as golf courses, cemeteries, parks, athletic fields, school yards, and landscape areas. Public access areas include private property that is not open to the public at large, but is intended for frequent use by many persons. Presence of authorized farm personnel or other authorized treatment plant, utilities system, or reuse system personnel does not constitute public access.

"Reclaimed water" means water resulting from the treatment of domestic, municipal or industrial wastewater that is suitable for a water reuse that would not otherwise occur. Specifically excluded from this definition is "gray water." For the purposes of this chapter, "harvested rainwater" and "stormwater" are also excluded from this definition.

"Reclaimed water agent" means a person or entity that holds a permit to distribute reclaimed water to one or more end users.

"Reclaimed water distribution system" means a network of pipes, pumping facilities, storage facilities, and appurtenances designed to convey and distribute reclaimed water from one or more reclamation systems to end uses.

"Reclamation" means the treatment of domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a water reuse that would not otherwise occur.

"Reclamation system" means a treatment works that treats domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a water reuse that would not otherwise occur.

"Reject water storage" means storage for water diverted by a reclamation system or satellite reclamation system that does not meet applicable reclaimed water standards.

"Reliability Class I" means a measure of reliability that requires a treatment works design to provide continuous satisfactory operation during power failures, flooding, peak loads, equipment failure, and maintenance shut-down. This class includes design features, such as additional electrical power sources, additional flow storage capacity, and additional treatment units that provide operation in accordance with the issued certificate or permit requirements. The definition of Reliability Class I contained in this chapter is in addition to but does not supersede the definition of Reliability Class I contained in the Sewage Collection and Treatment Regulations (9VAC25-790).

"Reuse" or "water reuse" means the use of reclaimed water for a direct beneficial use, an indirect potable reuse, an indirect nonpotable reuse, or a controlled use in accordance with this chapter.

"Reuse system" means an installation or method of operation that uses reclaimed water for a water reuse in accordance with this chapter.

"Restricted access" means limited access by humans to areas where nonpotable water, including reclaimed water, is used, resulting in minimal or no potential for human contact.

"Satellite reclamation system" or "SRS" means a conjunctive system that operates within or parallel to a sewage collection system to treat a portion of the available wastewater flow in the collection system to produce reclaimed water for reuse. Satellite reclamation systems do not have a discharge to surface waters, but may return their treatment process wastewater and residuals to the sewage collection system.

"Secondary treatment" means a biological treatment process for wastewater that achieves the minimum level of effluent quality defined by the federal secondary treatment regulation in 40 CFR 133.102 (2001).

"Service area" means a geographic area that receives reclaimed water from a reclaimed water distribution system or directly from a reclamation system for approved reuses within that area.

"Sewage" means the water-carried human wastes and nonwater-carried human excrement, kitchen, laundry, shower, bath or lavatory wastes, separately or together with such underground, surface, storm and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments or other places.

"Significant industrial user" or "SIU" shall have the meaning set forth in the VPDES Permit Regulation (9VAC25-31-10).

"Source water" means untreated or partially treated wastewater supplied for reclamation.

"State waters" or "waters of the state" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"State Water Control Law" or "Law" means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.

"Stormwater" means precipitation that is discharged across the land surface or through conveyances to one or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage.

"Supplemental irrigation" means irrigation, which in combination with rainfall, meets but does not exceed the water necessary to maximize production or optimize growth of the irrigated vegetation.

"Surface waters" means all waters in the Commonwealth, except groundwater as defined in § 62.1-255 of the Code of Virginia.

"System storage" means storage on or off the site and considered part of a reclamation system, SRS, or reclaimed water distribution system that is used to store reclaimed water produced by the reclamation system or SRS and to equalize flow to or within a reclaimed water distribution system.

"Total maximum daily load" or "TMDL" shall have the meaning set forth in the Water Quality Management Planning Regulation (9VAC25-720).

"Treatment works" means any devices and systems used for the storage, treatment, recycling or reclamation of sewage or liquid industrial waste, or other waste, or that are necessary to recycle or reuse water, including intercepting sewers, outfall sewers, sewage collection systems, individual systems, pumping, power and other equipment and their appurtenances, extensions, improvements, remodeling, additions, or alterations thereof; or any works, including land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from such treatment; or any other method or system used for preventing, abating, reducing, storing, treating, separating, or disposing of municipal waste or industrial waste, including waste in combined sewer water and sanitary sewer systems.

"Underground aquifer" means an aquifer or portion of an aquifer that supplies any public water system or that contains a sufficient quantity of groundwater to supply a public water system, and currently supplies drinking water for human consumption, or that contains fewer than 10,000 mg/l total dissolved solids and is not an exempted aquifer.

"Unintentional reuse" means the unintentional or unplanned use of reclaimed water subsequent to discharge to surface waters of the state, including wetlands, pursuant to a VPDES permit.

"Unrestricted access" means unlimited or minimally limited access by humans to areas where nonpotable water, including reclaimed water, is used, resulting in a high potential for human contact.

"User" means end user.

"Virginia Pollution Abatement permit" or "VPA permit" means a document issued by the department, pursuant to the Virginia Pollution Abatement (VPA) Permit Regulation (9VAC25-32), authorizing pollutant management activities under prescribed conditions.

"Virginia Pollutant Discharge Elimination System permit" or "VPDES permit" means a document issued by the department, pursuant to the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31), authorizing, under prescribed conditions the potential or actual discharge of pollutants from a point source to surface waters and the use or disposal of sewage sludge. Under the approved state program, a VPDES permit is equivalent to an NPDES permit.

"Wastewater" means untreated liquid and water-carried industrial wastes and domestic sewage from residential dwellings, commercial buildings, industrial and manufacturing facilities and institutions.

"Water reclamation" means the reclamation of wastewater or treated effluent for reuse.

"Waterworks" means a system that serves piped water for drinking or domestic use to (i) the public, (ii) at least 15 connections, or (iii) an average of 25 individuals for at least 60 days out of the year. The term "waterworks" shall include all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure water, except the piping and fixtures inside the building where such water is delivered.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-20 Purpose

In accordance with §§ 62.1-44.2, 62.1-44.3 and 62.1-44.15 of the Code of Virginia, it is the purpose of this chapter to promote and encourage the reclamation of wastewater, here after referred to as water reclamation, and water reuse in a manner that is protective of the environment and public health, and as an alternative to discharging treated effluent to state waters. For this purpose, the chapter establishes permitting requirements, general requirements for design, operation and maintenance; quality standards, monitoring requirements, and approved reuses for reclaimed water.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008.

9VAC25-740-30 Applicability and transition

A. The requirements of this chapter shall apply to water reclamation systems, reclaimed water distribution systems, and water reuse unless specifically excluded under 9VAC25-740-50 A. The requirements shall apply to all new water reclamation systems, reclaimed water distribution systems and, as applicable, water reuses for which Virginia Pollution Abatement (VPA) or Virginia Pollutant Discharge Elimination System (VPDES) permit applications are received after October 1, 2008. The requirements may also be applied to all existing permitted facilities producing, distributing or using reclaimed water through a permit modification or reissuance procedure and shall be applied when such facilities are to be modified or expanded unless specifically excluded under 9VAC25-740-50 A. The owners of existing water reclamation systems, reclaimed water distribution systems and, as applicable, water reuses that do not have a VPA or VPDES permit shall submit a complete VPA or VPDES permit application or other necessary information as prescribed under 9VAC25-740-40 within 180 days of being requested by the department.

B. For the purposes of this chapter:

1. The incorporation of standards, monitoring requirements and special conditions for water reclamation and reuse into a VPA permit shall be considered a minor modification unless they alter other conditions of the permit specifically related to the pollutant management activity for which the permit was originally issued.

2. Standards, monitoring requirements and special conditions for water reclamation and reuse may be authorized for a VPDES permit through:

a. A modification of the permit where such standards, monitoring requirements, and special conditions would effectively alter other conditions of the permit specifically related to the effluent discharge for which the permit was originally issued, or where the diversion of source water from the VPDES permitted discharge to water reclamation and reuse has the potential to cause a significant adverse impact to other beneficial uses of the receiving state water, or both; or

b. An administrative authorization where such standards, monitoring requirements, and special conditions would not alter other conditions of the permit specifically related to the effluent discharge for which the permit was originally issued, and where the diversion of source water from the VPDES permitted discharge to water reclamation and reuse does not have the potential to cause a significant adverse impact to other beneficial uses of the receiving state water. The administrative authorization shall have the full effect of the VPDES permit until such time that it is incorporated into the VPDES permit through reissuance or modification.

3. Modification of a VPA or VPDES permit or the issuance of an administrative authorization associated with a VPDES permit described in subdivisions 1 and 2 of this subsection shall require an application in accordance with 9VAC25-740-100.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-40 Permitting requirements

A. The owner of the reclamation system and the owner of the reclaimed water distribution system or the reclaimed water agent shall obtain a VPDES or VPA permit to produce and distribute reclaimed water, unless otherwise excluded from the requirements of this chapter under 9VAC25-740-50 A. Where both the reclamation system and the reclaimed water distribution system are under common ownership and management, one permit may be issued to the owner. Permit coverage may be provided through modification or reissuance of an existing VPA permit, or reissuance of or administrative authorization for an existing VPDES permit to include standards, monitoring requirements and special conditions that address water reclamation and reuse.

B. The owner of a satellite reclamation system (SRS) shall obtain a VPA permit. Alternatively and at the discretion of the department, a SRS may be authorized under a VPA or VPDES permit issued to a wastewater treatment works that is under common ownership or management with the SRS and receives wastewater and residuals discharged by the SRS.

C. Each end user shall enter into a service agreement or contract with all reclaimed water agents from which the end user receives reclaimed water prior to receipt of such water. Monitoring and management of individual end users shall be by the reclaimed water agents with whom the end users have a service connection, and through the service agreements or contracts between the reclaimed water agents and the individual end users unless affected by a permit issued to an end user as described in subsection F of this section.

D. Where a reclamation system and a reclaimed water distribution system that receives reclaimed water from the reclamation system are under separate ownership and management, and the reclaimed water distribution system does not distribute reclaimed water to end users other than to the owner or management of that system, the reclaimed water distribution system may not require a permit provided a service agreement or contract is established between the reclamation system and the reclaimed water distribution system.

E. A separate permit may be required for end users receiving reclaimed water directly from more than one reclamation system, SRS, reclaimed water distribution system, or a combination thereof. An end user may be authorized under the permit issued to one of the reclamation systems, SRSs, or reclaimed water distribution systems that supply reclaimed water to the end user, provided the end user is under common ownership or management with the permitted system.

F. Property irrigated with reclaimed water from a reclamation system, SRS, or reclaimed water distribution system under common ownership or management with that property, shall be regulated by the permit issued to the reclamation system, SRS, or reclaimed water distribution system providing reclaimed water to the irrigated property.

G. A reclamation system shall not discharge reclaimed or reject water to surface waters of the state in lieu of providing storage, discharging to another permitted reuse system, if applicable; returning reclaimed or reject water to a wastewater treatment works; or suspending production of reclaimed water; without authorization to discharge under a VPDES permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-45 Emergency authorization for the production, distribution, or reuse of reclaimed water

A. The department may issue an emergency authorization for the production, distribution, or reuse of reclaimed water when it finds that due to drought there is an insufficient public water supply that may result in a substantial threat to public safety. The emergency authorization may be issued only after:

1. Conservation measures mandated by local or state authorities have failed to protect public safety, and

2. The Virginia Department of Health has been notified of the application to issue an emergency authorization and has been provided not less than 14 days to submit comments or recommendations to the department on the application.

B. An emergency authorization may be issued in addition to an Emergency Virginia Water Protection Permit (as provided in 9VAC25-210) for a new or increased public water supply withdrawal.

C. An emergency authorization may be issued to only existing VPDES or VPA permitted municipal treatment works that:

1. Are not currently authorized to produce, distribute, or reuse reclaimed water in accordance with 9VAC25-740-40;

2. Are currently capable of producing reclaimed water meeting minimum standard requirements of 9VAC25-740-90 for proposed reuses listed in the application for an emergency authorization; and

3. Do not have significant industrial users (SIUs), or do have SIUs and a pretreatment program developed, approved, and maintained in accordance with Part VII (9VAC25-31-730 et seq.) of the VPDES Permit Regulation.

D. An emergency authorization may be issued for only reuses of reclaimed water deemed necessary by the department. In no case shall an emergency authorization be issued in lieu of a VPDES permit action for a reuse that involves a discharge of reclaimed water to surface waters.

E. An application for an emergency authorization issued pursuant to this section shall provide the information specified in 9VAC25-740-105. No later than 180 days after the issuance of an emergency authorization, the holder of the authorization shall apply for coverage under a VPDES or VPA permit in accordance with 9VAC25-740-40. Thereafter, the emergency authorization shall remain in effect until the department acts upon the application for the VPDES or VPA permit in accordance with 9VAC25-740-30 B.

F. There shall be no public comment period for the issuance of an emergency authorization.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 9, eff. January 29, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-50 Exclusions and prohibitions

A. Exclusions. Exclusion from the requirements of this chapter does not relieve any owner of the operations identified in this section of the responsibility to comply with any other applicable federal, state, or local statutes, regulations, or ordinances. The following are excluded from the requirements of this chapter:

1. Activities permitted by the Virginia Department of Health (VDH), such as, but not limited to, septic tank drainfield systems and other onsite sewage treatment and disposal systems, and water treatment plant recycle flows. This exclusion does not apply to alternative onsite sewage systems as defined in 12VAC5-613 (Regulations for Alternative Onsite Sewage Systems) with an average daily sewage flow in excess of 1,000 gallons per day that are concurrently permitted by the department and VDH to allow sewage reclamation and reuse in addition to onsite sewage treatment and disposal.

2. Utilization of gray water, harvested rainwater, or stormwater.

3. Nonpotable water produced and utilized on-site by the same treatment works for facilities permitted through a VPDES or VPA permit. This includes the use of nonpotable water at the treatment works site for incidental landscape irrigation that is not identified as land treatment defined in the Sewage Collection and Treatment Regulations (9VAC25-790). The treatment works site shall include property that is either contiguous to or in the immediate vicinity of the parcel of land upon which the treatment works is located, provided such property is under common ownership or management with the treatment works. This exclusion does not apply to nonpotable water produced by treatment works authorized by the VPDES General Permit for Domestic Sewage Discharges Less Than or Equal to 1,000 Gallons Per Day (9VAC25-110).

4. Recycle flows within a treatment works.

5. Industrial effluents or other industrial water streams created prior to final treatment and used for water re-circulation, recycle, or reuse systems located on the same property as the industrial facility, provided:

a. The water used in these systems does not contain or is not expected to contain pathogens or other constituents in sufficient quantities and with a potential for human contact as may be harmful to human health;

b. These systems are closed or isolated to prevent worker contact with the water of the systems; or

c. Other measures are in place, including but not limited to, applicable federal and state occupational safety and health standards and requirements, to adequately inform and protect employees from pathogens or other constituents that may be harmful to human health in the water to be re-circulated, recycled or reused at the facility.

6. Land treatment systems described in the Sewage Collection and Treatment Regulations (9VAC25-790). Such use of wastewater effluent, either existing or proposed, must be authorized by a VPA or VPDES permit and must be on land owned or under the direct long-term control of the permittee.

7. Unintentional reuse.

8. Existing indirect nonpotable reuse projects that as of January 29, 2014, are authorized by a VPDES permit to discharge to surface waters of the state.

9. Existing indirect potable reuse projects that upon October 1, 2008, are authorized by a VPDES permit to discharge to surface waters of the state, and future expansions of these projects.

10. Direct injection of reclaimed water into any underground aquifer authorized by EPA under the Safe Drinking Water Act, Underground Injection Control Program (UIC), 40 CFR Part 144; or other applicable federal and state laws and regulations.

B. Prohibitions. The following are prohibited under this chapter:

1. Direct potable reuse;

2. The reuse of reclaimed water distributed to one-family or two-family dwellings. This prohibition does not apply to reuses of reclaimed water outside of and on the same property as one-family or two-family dwellings where the reclaimed water is not distributed to such reuses by way of plumbing within the dwellings;

3. The reuse of reclaimed water to fill residential swimming pools, hot tubs or wading pools;

4. The reuse of reclaimed water for food preparation or incorporation as an ingredient into food or beverage for human consumption;

5. Bypass of untreated or partially treated wastewater from the reclamation system or any intermediate unit process to the point of reuse unless the bypass complies with standards and requirements specified in 9VAC25-740-70 and is for essential maintenance to assure efficient operation;

6. The return of reclaimed water to the reclaimed water distribution system after the reclaimed water has been delivered to an end user; and

7. Reduction of the discharge from a VPDES permitted treatment works due to diversion of source water flow for reclamation and reuse such that the physical, chemical, or biological properties of the receiving state waters are affected in a manner that would cause a significant adverse impact to other beneficial uses.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-55 Variances

A. The department may grant a variance to this chapter for design, construction, operation, or maintenance requirements contained in the chapter by following the appropriate procedures set forth in this section.

B. Any person or entity wishing to initiate a project for the production, distribution, or reuse of reclaimed water that is not excluded from the provisions of this chapter by 9VAC25-740-50 may apply for a variance to the design, construction, operation, or maintenance requirements of this chapter where requiring the project to comply with such requirements would be contrary to the purpose of State Water Control Law, specifically § 62.1-44.2 of the Code of Virginia. The department may grant a variance if it finds that the hardship imposed, which may be economic, outweighs the benefits of the project and that the granting of such variance would not adversely impact public health or the environment.

C. An application for a variance shall be made in writing and shall include the following:

1. A citation of the regulation from which a variance is requested;

2. The nature and duration of variance requested;

3. A statement of the hardship to the applicant and the anticipated impacts to public health and welfare or the environment if a variance were granted;

4. Suggested conditions that might be imposed on the granting of a variance that would limit any anticipated detrimental impacts on public health or the environment;

5. Other information, if any, believed to be pertinent by the applicant; and

6. Such other information as may be required to make the determination in accordance with subsection B of this section.

D. The department shall act on any application for a variance submitted pursuant to this section within 60 days of application receipt. In the department's decision to grant or deny a variance for a project to produce, distribute, or reuse reclaimed water, the department shall consider, at a minimum, the following:

1. The effect that such a variance would have on the adequate operation of the project, including operator safety (in accordance with the requirements of the Virginia Department of Labor and Industry, Occupation Safety and Health Administration);

2. The cost and other economic considerations imposed by the regulatory requirement for which the variance has been requested; and

3. The effect that such a variance would have on the protection of public health or the environment.

E. Disposition of a variance request.

1. If the department proposes to deny a variance request submitted pursuant to this section, the department shall provide the applicant an opportunity to an informal fact-finding proceeding in accordance with § 2.2-4019 of the Code of Virginia. Thereafter, the department may reject any application for a variance and shall notify the applicant in writing of this decision and the basis for the rejection. The department's notice, in this case, constitutes a case decision.

2. If the department proposes to grant a variance request submitted pursuant to this section, the applicant shall be notified in writing of this decision. Such notice shall:

a. Identify the project for which the variance has been granted;

b. Describe the variance;

c. Specify the period of time for which the variance will be effective; and

d. State that the variance shall be terminated when the project comes into compliance with the applicable design, construction, operation, or maintenance requirements of this chapter and may be terminated upon a finding by the department that the project has failed to comply with any requirements or schedules issued in conjunction with the variance.

3. The effective date of a variance described in subdivision 2 of this subsection shall be 15 days following the date of notice to the applicant.

F. All variances granted for the design, construction, operation, or maintenance of a project to produce, distribute, or reuse reclaimed water are nontransferable. Any requirements of the variance shall become part of the permit for the project subsequently issued, reissued, or modified by the department.

G. Where this chapter references the Sewage Collection and Treatment Regulations (9VAC25-790) for design, construction, operation, or maintenance requirements affecting components of a project to produce, distribute, or reuse reclaimed water, an application for a variance to such requirements shall be in accordance with variance procedures described in 9VAC25-790.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 9, eff. January 29, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-60 Relationship to other board regulations

A. Virginia Pollution Abatement (VPA) Permit Regulation (9VAC25-32). The VPA Permit Regulation delineates the procedures and requirements to be followed in connection with the VPA permits issued by the department pursuant to the State Water Control Law. Any treatment works treating domestic, municipal or industrial wastewater that produces reclaimed water or a facility that distributes reclaimed water in a manner that does not result in a discharge to surface waters shall obtain a VPA permit. Design, operation, and maintenance standards prescribed by this chapter for water reclamation and reuse shall be incorporated into the VPA permit application and the VPA permit when applicable. Water reclamation and reuse requirements contained in a VPA permit shall be enforced through existing enforcement mechanisms of the permit.

B. Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). The VPDES Permit Regulation delineates the procedures and requirements to be followed in connection with VPDES permits issued by the department pursuant to the Clean Water Act and the State Water Control Law. Any treatment works treating domestic, municipal, or industrial wastewater that produces reclaimed water and has a discharge to surface waters or a reclaimed water distribution system that has a discharge to surface waters shall obtain a VPDES permit. Design, operation, and maintenance standards for water reclamation and reuse shall be incorporated into the VPDES permit application and the VPDES permit when applicable. Water reclamation and reuse requirements contained in a VPDES permit shall be enforced through existing enforcement mechanisms of the permit.

C. Sewage Collection and Treatment Regulations (9VAC25-790). The Sewage Collection and Treatment Regulations establish standards for the operation, construction, or modification of a sewerage system or treatment works, including land treatment systems. This chapter prescribes design, operation and maintenance standards for water reclamation and reuse.

D. Regulation for Nutrient Enriched Waters and Dischargers within the Chesapeake Bay Watershed (9VAC25-40). Sections 62.1-44.19:12 through 62.1-44.19:19 of the Code of Virginia, which establishes the Regulation for Nutrient Enriched Waters and Dischargers within the Chesapeake Bay Watershed (9VAC25-40), allows for credit to be given for reductions in total nitrogen and total phosphorus discharged loads through recycle or reuse of wastewater when determining technology requirements associated with new or expanded discharges.

E. General VPDES Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia (9VAC25-820). The General VPDES Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia regulates point sources of nutrients and establishes a framework for nutrient credit trading and offsets. Water reclamation and reuse provides an opportunity to reduce point source nutrient loads.

F. Local and Regional Water Supply Planning (9VAC25-780). The Local and Regional Water Supply Planning regulation requires every county, city, and town to develop a water plan in accordance with established planning criteria. Where appropriate, the plan may consider nontraditional means of increasing supplies such as interconnection, desalination, recycling and reuse.

G. Water Withdrawal Reporting (9VAC25-200). The Water Withdrawal Reporting regulation requires industrial VPDES permittees to annually report to the board the source and location of water withdrawals and the type of use information specified by 9VAC25-200. Where the VPDES permitted discharge volume deviates by greater than ± 10% of the water withdrawal volume, the permittee is required to report the deviation.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

Part II Reclaimed Water Treatment, Standards, Monitoring Requirements and Reuses

9VAC25-740-70 Treatment and standards for reclaimed water

A. Treatment and standards for reclaimed water are provided in Table 70-A.

| Table 70-A Treatment and Standards for Reclaimed Water | | | --- | --- | | 1. Level 1 | | | a. Treatment | Secondary treatment with filtration and higher-level disinfection. | | b. Bacterial Standards | (1) Fecal coliform¹: monthly geometric mean² less than or equal to 14 colonies/100ml; corrective action threshold at greater than 49 colonies/100 ml; or | | (2) E. coli¹: monthly geometric mean² less than or equal to 11 colonies/100 ml; corrective action threshold at greater than 35 colonies/100 ml; or | | | (3) Enterococci¹: monthly geometric mean² less than or equal to 11 colonies/100 ml; corrective action threshold at greater than 24 colonies/100 ml. | | | c. Total Residual Chlorine (TRC)³ | Corrective action threshold at less than 1.0 mg/l⁴ after a minimum contact time of 30 minutes at average flow or 20 minutes at peak flow. | | d. pH | 6.0 – 9.0 standard units | | e. Five-day Biochemical Oxygen Demand (BOD₅) | (1) BOD₅: monthly average less than or equal to 10 mg/l; or (2) Carbonaceous Biochemical Oxygen Demand (CBOD₅)⁵: monthly average less than or equal to 8 mg/l. | | f. Turbidity⁶ | Daily average of discrete measurements recorded over a 24-hour period less than or equal to 2.0 nephelometric turbidity units (NTU); corrective action threshold at greater than 5.0 NTU. | | 2. Level 2 | | | a. Treatment | Secondary treatment and standard disinfection. | | b. Bacterial Standards | (1) Fecal coliform¹: monthly geometric mean² less than or equal to 200 colonies/100ml; corrective action threshold at greater than 800 colonies/100 ml; or | | (2) E. coli¹: monthly geometric mean² less than or equal to 126 colonies/100 ml; corrective action threshold at greater than 235 colonies/100 ml; or | | | (3) Enterococci¹: monthly geometric mean² less than or equal to 35 colonies/100 ml; corrective action threshold at greater than 104 colonies/100 ml. | | | c. Total Residual Chlorine (TRC)³ | Corrective action threshold at less than 1.0 mg/l⁴ after a minimum contact time of 30 minutes at average flow or 20 minutes at peak flow. | | d. pH | 6.0 – 9.0 standard units | | e. Five-day Biochemical Oxygen Demand (BOD₅) | (1) BOD₅: monthly average less than or equal to 30 mg/l; maximum weekly average 45 mg/l; or (2) Carbonaceous Biochemical Oxygen Demand (CBOD₅)⁵: monthly average less than or equal to 25 mg/l; maximum weekly average 40 mg/l. | | f. Total Suspended Solids (TSS) | Monthly average less than or equal to 30 mg/l; maximum weekly average 45 mg/l. | | ¹After disinfection. ²For the purpose of calculating the geometric mean, bacterial analytical results below the detection level of the analytical method used shall be reported as values equal to the detection level. ³Applies only if chlorine is used for disinfection. ⁴TRC less than 1.0 mg/l may be authorized by the department if demonstrated to provide comparable disinfection through a chlorine reduction program in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790). ⁵Applies only if CBOD₅ is used in lieu of BOD₅. ⁶Where ultraviolet radiation will be used for disinfection of Level 1 reclaimed water, other turbidity standards may apply in accordance with 9VAC25-740-110 A 2 a. | |

B. Point of compliance (POC).

1. Reclaimed water produced by reclamation systems and SRSs for reuse shall meet all applicable standards in accordance with this chapter, excluding the turbidity standard for Level 1 treatment, at the POC. The POC for Level 1 and Level 2 treatment shall be after all reclaimed water treatment and prior to discharge to a reclaimed water distribution system. Where chlorination is used for disinfection of the reclaimed water, the POC for the TRC standard shall be the monitoring location specified in 9VAC25-740-80 A 2. The POC for the turbidity standard of Level 1 treatment shall be just upstream of disinfection.

2. Where the department determines that reclaimed water monitoring is required for a system storage facility or a reclaimed water distribution system, the number and location of POCs for these facilities shall be determined on a case-by-case basis and shall be described in the following documents for approval by the department:

a. For system storage facilities other than those considered part of reclaimed water distribution systems, in the operations and maintenance manual of the reclamation system or SRS where the storage facility is located; and

b. For reclaimed water distribution systems, including system storage facilities considered part of these systems, in the reclaimed water management plan pursuant to 9VAC25-740-100 C 1 h.

C. Reclaimed water that fails to comply with the standards shall be managed as follows:

1. Should reclaimed water reach the corrective action threshold (CAT) for turbidity in the standard for Level 1, or for TRC in the standards for Level 1 or 2, whichever applies, the operator of the reclamation system shall immediately initiate a review of treatment operations and data to identify the cause of the CAT monitoring results to bring the reclaimed water back into compliance with the standards. Resampling or diversion shall occur within one hour of first reaching the CAT. Procedures for resampling, operational review and diversion shall be as described in an approved operations and maintenance manual for the reclamation system. If subsequent monitoring results of the resamples collected within one hour of the first CAT monitoring results for turbidity or TRC continue to reach the CAT of the standards, the reclaimed water shall be considered substandard or reject water and shall be diverted to either storage for subsequent additional treatment or retreatment, or discharged to another permitted reuse system requiring a lower level of treatment not less than Level 2 or to a VPDES permitted effluent disposal system provided the reject water meets the effluent limits of the permit. If the reclamation system is unattended, the diversion of reject water shall be initiated and performed with automatic equipment. There shall be no automatic restarts of distribution to reuse until the treatment problem is corrected. Failure to divert the substandard or reject water after one hour of CAT monitoring results shall be considered a violation of this chapter. Upon resuming discharge of reclaimed water to the reclaimed water distribution system for which the CAT was reached, resampling for turbidity or TRC shall occur within one hour to verify proper treatment.

2. Should reclaimed water reach the CAT for bacteria (i.e., fecal coliform, E. coli or enterococci) in the standards for Level 1 or 2, whichever applies, the operator of the reclamation system shall immediately initiate a review of treatment operations and data to identify the cause of the CAT monitoring results to bring the reclaimed water back into compliance with the standards. Procedures for operational review shall be as described in an approved operations and maintenance manual for the reclamation system. Two consecutive bacterial monitoring results that reach the CAT of the standards shall be considered a violation of this chapter.

3. Repeated, although temporary, failure to comply with all other standards by the reclamation system may be considered a violation of this chapter determined by the frequency and magnitude of the noncompliant monitoring results and other relevant factors. Failure to resample after determination that monitoring results are not in compliance with the standards, to make adjustments to the treatment process to bring the reclaimed water back into compliance with the standards, or to divert substandard or reject water in accordance with subdivision 1 of this subsection shall be considered a violation of this chapter.

D. Treatment or standards other than or in addition to the treatment and standards in subsection A of this section may be necessary based on the quality and character of the wastewater to be reclaimed or the intended reuse or reuses of the reclaimed water. Such alternative or additional treatment or standards may be exempt from this chapter unless required by the department to protect public health and the environment.

E. Standards for the reclamation of industrial wastewater shall be determined on a case-by-case basis relative to the proposed reuse or reuses of the reclaimed water and for the purpose of protecting public health and the environment. Industrial wastewater may also be subject to disinfection requirements of Level 1 or Level 2 if the industrial wastewater contains sewage or is expected to contain organisms pathogenic to humans, such as, but not limited to, wastewater from the production and processing of livestock and poultry. The point of compliance for reclamation standards of industrial wastewater shall also be determined on a case-by-case basis.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Errata 30:11 VA.R. 1615 January 27, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-80 Reclaimed water monitoring requirements for reuse

A. The monitoring requirements for the standards provided under 9VAC25-740-70 A, are as follows:

1. Turbidity analysis:

a. Analysis shall be performed by a continuous, on-line turbidity meter equipped with an automated data logging or recording device and an alarm to notify the operator when the CAT for turbidity in the standard for Level 1 has been reached. Compliance with the average turbidity standard shall be determined daily, based on the arithmetic mean of hourly or more frequent discrete measurements recorded during a 24-hour period. Monitoring for the turbidity CAT shall be continuous.

b. Should the on-line turbidity meter go out of service for either planned or unplanned repair, the permittee shall be allowed to manually collect samples for turbidity analysis at four-hour intervals up to a maximum of five days. Following the five-day period of repair, continuous, on-line monitoring with a turbidity meter shall resume.

2. Sampling and analysis for residual concentrations of disinfectants, including total residual chlorine (TRC):

a. For Level 1:

(1) Shall be continuous on-line monitoring, equipped with an automated data logging or recording device and an alarm to notify the operator when the CAT for the disinfectant has been reached. For disinfectants other than chlorine, continuous on-line monitoring shall be provided at the point of compliance monitoring. For TRC, continuous on-line monitoring shall be provided at the end of the contact tank or contact period. Monitoring for the TRC CAT shall be continuous.

(2) Should the on-line disinfectant monitoring equipment go out of service for either planned or unplanned repair, the permittee shall be allowed to manually collect samples for disinfectant analysis at four-hour intervals up to a maximum of five days. Following the five-day period of repair, continuous, on-line disinfectant monitoring shall resume.

b. For Level 2, shall be based on the designated design flow of the reclamation system and be the same sampling type and frequency as specified for sewage treatment works in the Sewage Collection and Treatment Regulations (9VAC25-790). For chemical disinfectants other than TRC, monitoring shall be provided at the point of compliance in accordance with 9VAC25-740-70 B. For TRC, monitoring shall be provided at the end of the contact tank or contact period.

3. Sampling for TSS and BOD₅ or CBOD₅ shall be at least weekly or more frequently based on the designated design flow of the reclamation system, and shall be the same sampling type and frequency as specified for sewage treatment works in the Sewage Collection and Treatment Regulations (9VAC25-790). Compliance with the monthly average TSS and BOD₅ or CBOD₅ standards shall be determined monthly, based on the arithmetic mean of all samples collected during the month. Compliance with the maximum weekly average TSS and BOD₅ or CBOD₅ standards shall be determined monthly, using the same procedures applied in the VPDES permit program for point source discharges.

4. Sampling for fecal coliform, E. coli or enterococci:

a. Shall for Level 1, be grab samples collected at a time when wastewater characteristics are most representative of the treatment facilities and disinfection processes for water reuse, and at the frequencies provided in Table 80-A. Compliance with the geometric mean standards for fecal coliform, E. coli, or enterococci shall be determined monthly, based on all bacteriological monitoring results for that month. Monitoring of the CAT for fecal coliform, E. coli, or enterococci shall be based on the bacteriological monitoring results determined for each day a sample is collected.

| Table 80-A | | | --- | --- | | Reclamation System Designated Design Flow (MGD)⁽¹⁾ | Bacterial Sampling Frequency⁽²⁾ | | >0.500 | Daily with the ability to reduce to no less than four days per week⁽³⁾ | | 0.050 to 0.500 | Four days per week with the ability to reduce to no less than three days per week⁽³⁾ | | <0.050 | Three days per week with no reduction allowed | | ⁽¹⁾MGD means million gallons per day. ⁽²⁾For reclamation systems treating municipal wastewater, bacterial samples shall be collected between 10 a.m. and 4 p.m. to coincide with peak flows to the reclamation system. An exception to this requirement may be approved upon demonstration to the department that peak flows to the reclamation system occur outside this period. ⁽³⁾Monitoring frequency may be reduced after demonstrating compliance with bacterial standards for Level 1 and adequate correlation between bacterial monitoring results and measurements for surrogate disinfection parameters, such as TRC and turbidity. | |

b. Shall for Level 2, be based on the designated design flow of the reclamation system and be the same sampling type and frequency as specified for sewage treatment works in the Sewage Collection and Treatment Regulations (9VAC25-790). Compliance with the geometric mean standard and monitoring of the CAT for fecal coliform, E. coli or enterococci shall be in accordance with the same procedures specified for Level 1 in subdivision 4 a of this subsection.

5. Samples for pH shall be grab samples collected at least daily. Compliance with the range of the pH standard shall be determined daily based on the pH of the samples.

B. Samples collected for TSS, BOD₅ or CBOD₅, and fecal coliform, E. coli or enterococci analyses, shall be analyzed by laboratory methods accepted by the department.

C. A reclamation system that produces reclaimed water intermittently or seasonally shall monitor only when the reclamation system discharges to a reclaimed water distribution system, a nonsystem storage facility, or directly to a reuse.

D. Monitoring of reclaimed water held in system storage for a period greater than 24 hours at a reclamation system or SRS may be required by the department where (i) the system storage facility discharges to a reclaimed water distribution system, a nonsystem storage facility, or directly to a reuse; and (ii) conditions exist at the facility to degrade the reclaimed water to a quality failing to comply with applicable minimum reclaimed water standards for the intended reuses of that water. When monitoring of reclaimed water in or from system storage is required, monitoring parameters and frequencies shall be determined by the department on a case-by-case basis.

E. Monitoring other than or in addition to that described under subsection A of this section may be required for treatment of reclaimed water that is provided pursuant to 9VAC25-740-70 D and 9VAC25-740-70 E.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-90 Minimum standard requirements for reuses of reclaimed water

A. Minimum standard requirements for reclaimed water shall be determined, in part, by the reuse or reuses of that water. For specific reuses, the minimum standard requirements of reclaimed water are provided in Table 90-A.

| Table 90-A Minimum Standard Requirements for Reuses of Reclaimed Water | | | | | --- | --- | --- | --- | | Reuse Category | Reuse | Minimum Standard Requirements^a | | | 1. Urban – Unrestricted Access | All types of landscape irrigation in public access areas (i.e., golf courses, cemeteries, public parks, school yards and athletic fields) Toilet flushing ^b Firefighting or protection and fire suppression ^b Outdoor reuse (i.e., lawn watering and noncommercial car washing)^b Commercial car washes Commercial air conditioning systems | Level 1 | | | 2. Irrigation – Unrestricted Access^c | Irrigation for any food crops not commercially processed, including crops eaten raw | Level 1 | | | 3. Irrigation – Restricted Access^{c, d, e} | Irrigation for any food crops commercially processed | Level 2 | | | Irrigation for nonfood crops and turf, including fodder, fiber and seed crops; pasture for foraging livestock; sod farms; ornamental nurseries; and silviculture | | | | | 4. Landscape Impoundments^f | Potential for public access or contact | Level 1 | | | No potential for public access or contact | Level 2 | | | | 5. Construction^e | Soil compaction Dust control Washing aggregate Making concrete Irrigation to establish vegetative erosion control^g | Level 2 | | | 6. Industrial^e | Commercial laundries Ship ballast^h | Level 1 | | | Livestock wateringⁱ Aquaculture^j Stack scrubbing Street washing Boiler feed Once-through cooling^k Recirculating cooling towers^k | Level 2 | | | | | | | | | | | | | | | | | | | ^aFor reclaimed industrial wastewater, minimum standards required shall be determined on a case-by-case basis relative to the proposed reuse or reuses. ^bThese reuses of reclaimed water are prohibited in accordance with 9VAC25-740-50 B 2 where they would involve the distribution of reclaimed water to a one-family or two-family dwelling in order to occur. ^cReclaimed water treated to Level 1 or 2 may be used for surface irrigation, including spray irrigation. Reclaimed water treated to Level 2 may be used for spray irrigation if the area to be irrigated restricts access to the public and has appropriate setbacks in accordance with 9VAC25-740-170. Reclaimed water treated to Level 1 or 2 may be used for irrigation of food crops eaten raw, excluding root crops, only when there will be no direct contact (or indirect contact via aerosol carry) between the reclaimed water and edible portions of the crop. ^dFor irrigation with reclaimed water treated to Level 2, the following shall be prohibited unless Level 1 disinfection is provided: 1. Grazing by milking animals on the irrigation reuse site for 15 days after irrigation with reclaimed water ceases, and 2. Harvesting, retail sale or allowing access by the general public to ornamental nursery stock or sod farms for 14 days after irrigation with reclaimed water ceases. ^eWorker contact with reclaimed water treated to Level 2 shall be minimized. Level 1 disinfection shall be provided when worker contact with reclaimed water is likely. ^fLandscape impoundments may also be used to store reclaimed water for other subsequent reuses of that reclaimed water, such as irrigation, if included in an inventory of reclaimed water storage facilities submitted to the department pursuant to 9VAC25-740-110 C 15. ^gIrrigation with reclaimed water to establish vegetative cover at a construction site shall be subject to requirements for irrigation reuse specified in 9VAC25-740-100 C. Continued irrigation of the same site following construction completion shall be subject to the minimum standard requirements of reuse category 1, 2, or 3 contained in this table, determined by the intended reuse of the irrigated site. ^hReuse of reclaimed water for ship ballast shall also comply with applicable federal regulations and standards governing the use and discharge of ship ballast. ⁱLevel 1 disinfection shall be provided when the reclaimed water is consumed by milking livestock. ^jLevel 1 disinfection shall be provided for aquaculture production of fish to be consumed raw, such as sushi. ^kWindblown spray generated by once-through cooling or recirculating cooling towers using reclaimed water treated to Level 2, shall not reach areas accessible to workers or the public unless Level 1 disinfection is provided. See also setback requirements in 9VAC25-740-170 for open cooling towers. | | | |

B. For any type of reuse not listed in subsection A of this section, including, but not limited to, indirect potable reuse and below-ground drip irrigation reuse that is newly proposed after October 1, 2008, indirect nonpotable reuse that is newly proposed after January 29, 2014, or any reuse of reclaimed industrial water, including reuses listed in subsection A of this section, the department may prescribe specific reclaimed water standards and monitoring requirements needed to protect public health and the environment. When establishing these requirements for the proposed reuse, the department shall consider the following factors:

1. The risk of the proposed reuse to public health with specific input from the Virginia Department of Health;

2. The degree of public access and human exposure to reclaimed water by the proposed reuse;

3. The reclaimed water treatment necessary to prevent nuisance conditions by the proposed reuse;

4. The reclaimed water treatment necessary for the proposed reuse to comply with this and other applicable regulations of the board;

5. The potential for improper or unintended use of the reclaimed water;

6. Other federal or state laws, regulations and guidelines that would apply to the proposed reuse;

7. The similarity of the proposed reuse to reuses listed in this chapter with regard to potential impact to public health and the environment;

8. Whether the proposed reuse may be excluded or prohibited by 9VAC25-740-50; and

9. For new indirect potable reuse proposals, residence or transport time, mixing ratios, and other relevant information deemed necessary by the department.

C. For any indirect potable reuse (IPR) project that is newly proposed after January 29, 2014, the following are required:

1. A multiple barrier approach shall be used in the planning, design, and operation of the project. Multiple barriers to be employed for the project shall be described in the application for a permit in accordance with 9VAC25-740-100 D.

2. All reclaimed water generated by a reclamation system for IPR shall meet, at a minimum, Level 1 reclaimed water standards, reclaimed water standards developed pursuant to subsection B of this section, and any other standards that may apply, including but not limited to, the Water Quality Standards (9VAC25-260) and total maximum daily loads (TMDLs). Where there is more than one standard for the same pollutant, the more stringent standard shall apply.

3. The public health risks of and the need to impose new or more stringent reclaimed water standards for an IPR project shall be reevaluated with specific input from the Virginia Department of Health upon each renewal of the permit issued to the reclamation system that produces reclaimed water for the project. Factors to be considered in the reevaluation shall include, at a minimum, applicable factors contained in subsection B of this section.

4. All reclamation systems identified as a component of an IPR project in accordance with 9VAC25-740-100 D 1, including pump stations that are part of the reclamation systems, shall meet reliability requirements specified in 9VAC25-740-130 C.

5. VPDES permitted treatment works that have SIUs and provide source water for reclamation and subsequent IPR shall, if required, have a pretreatment program or a program equivalent to a pretreatment program in accordance with 9VAC25-740-150 E.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

Part III Application and Technical Requirements

9VAC25-740-100 Application for permit

A. The need for an owner to obtain a permit or modification or reissuance of an existing permit from the department for a proposed or an existing reclamation system, reclaimed water distribution system, satellite reclamation system (SRS), or, as applicable, water reuse, shall be determined in accordance with 9VAC25-740-30. Where required, permit coverage for these systems or activities shall be provided in accordance with 9VAC25-740-40, contingent upon receipt of a complete application from the owner. The application shall contain supporting documentation and information required by subsections B and C of this section.

B. General information. For projects that involve water reclamation and the distribution of reclaimed water, the following information shall be submitted with an application for a permit. Information required for this subsection may be provided by referencing specific information previously submitted to the department unless changes have occurred that require the submission of new or more current information. For projects that involve exclusively the distribution of reclaimed water, information for only subdivisions 1, 2, and 5 of this subsection shall be submitted with an application for a permit.

1. A description of the design and a site plan showing operations and unit processes of the proposed project, including and as applicable, treatment, storage, distribution, reuse and disposal facilities, and reliability features and controls. Treatment works, reclamation systems and reclaimed water distribution systems previously permitted need not be included, unless they are directly tied into the new units or are critical to the understanding of the complete project. Design approaches shall be consistent with accepted engineering practice and any applicable state regulations.

2. A general location map, showing orientation of the project with reference to at least two geographic features (e.g., numbered roads, named streams or rivers, etc.). A general location map for a reclaimed water distribution system may be included in the map of a service area required in accordance with subdivision C 1 a of this section.

3. Information regarding each wastewater treatment works that diverts or will divert source water to the reclamation system to be permitted, including:

a. All unit processes used for the treatment of wastewater at the facility prior to diversion to the reclamation system;

b. Any SIUs that indirectly discharge to the wastewater treatment works; and

c. Analyses of the source water to be diverted by the facility to the reclamation system.

4. Information regarding the sewage collection system that diverts or will divert sewage to the SRS to be permitted, including:

a. The name of the sewage collection system and the owner of that system;

b. Any SIUs that discharge directly or indirectly to the collection line from which sewage will be diverted to the SRS, excluding any downstream SIUs whose discharge has no potential to backflow to the SRS intake. This information shall include the location of the SIUs and distance between the SIUs and the SRS along the sewage collection line or lines; and

c. Characterization of the sewage to be diverted from the sewage collection system to the SRS at the point of diversion. Analysis of the sewage may be required where SIUs described in subdivision 4 b of this subsection discharge to the sewage collection system.

5. Information regarding each reclamation system or SRS to be permitted, including:

a. The standards specified in 9VAC25-740-70 A to be achieved;

b. Any other physical, chemical, and biological characteristics and constituent concentrations that may affect the intended reuse of the reclaimed water with respect to adverse impacts to public health or the environment; and

c. Designated design flow.

6. For the purpose of determining any significant adverse impacts to other beneficial uses, information regarding the VPDES permitted wastewater treatment works or the sewage collection system that will provide a new or increased diversion of source water to a reclamation system or SRS for the production of reclaimed water and information, as applicable, regarding the SRS that includes:

a. The latitude and longitude of the treatment works discharge location to a surface water or the SRS return discharge location in the sewage collection system;

b. The mean monthly discharge of the treatment works or return discharge of the SRS for each month during the most recent 60 or more consecutive months at the time of application, or where this information is not available, estimated values for the mean monthly discharge of the treatment works or return discharge of the SRS for each month during a period of 12 consecutive months;

c. The maximum monthly diversion of source water from the treatment works to a reclamation system or from the sewage collection system to a SRS for each month during a period of 12 consecutive months;

d. Pertaining only to sewage collection systems that provide source water, the name of the treatment works at the terminus of the sewage collection system; and

e. The information specified in subdivisions 6 a, b, and c of this subsection for each increase in source water diverted by the treatment works or the sewage collection system to a reclamation system or SRS, respectively, among multiple increases to occur in planned phases, and the anticipated dates of the phased increases.

7. Information describing measures to be immediately implemented for the management of wastewater and reclaimed water by a conjunctive system in the event that primary reuses of reclaimed water generated by the system cease or fail, and where the system:

a. Relies primarily or completely on water reclamation and reuse to eliminate wastewater;

b. Relies on:

(1) Irrigation as the primary or only reuse of reclaimed water, or

(2) One or more large end users, each consuming a significant volume of reclaimed water, such that the ability of the conjunctive system to manage wastewater would be adversely impacted if any such end user were to discontinue receiving reclaimed water from the conjunctive system; and

c. Does not have the ability to implement two or more of the options described in 9VAC25-740-110 C 1.

8. Information required per subdivision 7 of this subsection shall be included in the reclaimed water management plan described in subsection C of this section where the conjunctive system is acting as a reclaimed water agent by directly distributing reclaimed water to an end user or end users, including an end user that is also the applicant or permittee.

9. Information, if applicable, regarding any type of proposed reuse not listed in this chapter, by which the department can evaluate the need to prescribe specific reclaimed water treatment and monitoring requirements in accordance with 9VAC25-740-90 B.

C. Reclaimed water management (RWM) plan.

1. A RWM plan shall be submitted in support of a permit application for a new or expanded reclamation system, SRS, or reclaimed water distribution system acting as a reclaimed water agent by directly distributing reclaimed water to an end user or end users, including an end user that is also the applicant or permittee. A RWM plan shall not be required for a reclamation system that distributes reclaimed water exclusively for indirect potable reuse. The RWM plan shall contain the following:

a. A description and map of the expected service area to be covered by the RWM plan for the term of the permit for the project (i.e., five years for a VPDES or 10 years for a VPA permit). The map shall identify all reuses according to reuse categories shown in 9VAC25-740-90 A or other categories for reuses that are or shall be authorized pursuant to 9VAC25-740-90 B, and their locations within the service area. The map shall also identify and show the location of all public potable water supply wells and springs, and public water supply intakes, within the boundaries of the service area. The description and map of the service area shall be updated by the permittee with each permit renewal.

b. A current inventory of impoundments, ponds or tanks that are used for system storage of reclaimed water and, as applicable, reject water storage under the control of the permittee, and nonsystem storage located within the service area of the RWM plan in accordance with 9VAC25-740-110 C 15.

c. A water balance that accounts for the volumes of reclaimed water to be generated, stored, reused and discharged (i.e., through a VPDES permitted outfall, back to a sewage collection system, or otherwise disposed). The water balance shall include projected volumes of seasonal and annual reclaimed water demand for each reuse category.

d. An example of service agreements or contracts to be established by the applicant or permittee with end users regarding implementation of and compliance with the RWM plan. A service agreement or contract shall contain conditions and requirements specified in subdivisions 3 b and c of this subsection and in 9VAC25-740-170 that apply to the particular planned reuse of each end user. Terms of the agreement shall require property owners to report to the applicant or permittee all potable and nonpotable water supply wells on their property and to comply with appropriate setback distances for wells where reclaimed water will be used on the same property. Within the agreement or contract, the applicant or permittee shall also reserve the right to perform routine or periodic inspections of an end user's reclaimed water reuses and storage facilities, and to terminate the agreement or contract and withdraw service for any failure by the end user to comply with the terms and conditions of the agreement or contract if corrective action for such failure is not taken by the end user.

e. A description of monitoring of end users by the applicant or permittee to verify compliance with the terms of their agreements or contracts. Monitoring shall include, at a minimum, metering the volume of reclaimed water consumed by end users.

f. An education and notification program required in accordance with 9VAC25-740-170 A.

g. A cross-connection and backflow prevention program that:

(1) Evaluates the potential for cross-connections of the reclaimed water distribution system to a potable water system and backflow to the reclaimed water distribution system from industrial end users;

(2) Evaluates the public health risks associated with possible backflow from industrial end users;

(3) Describes inspections to be performed by the applicant or permittee at the time end users connect to the reclaimed water distribution system and periodically thereafter to prevent cross-connections to a potable water system and backflow from industrial end users as determined necessary through the program evaluation;

(4) Insures that cross-connection and backflow prevention design criteria specified in 9VAC25-740-110 B for reclaimed water distribution systems are implemented; and

(5) Requires a backflow prevention device on the reclaimed water service connection to an industrial end user, unless evaluation by the cross-connection and backflow prevention program determines that there is minimal risk to public health associated with possible backflow from the industrial end user or that there will be no backflow from the industrial end user capable of contaminating the reclaimed water supply.

h. A description of how the quality of reclaimed water in the reclaimed water distribution system shall be maintained to meet and, if determined necessary by the department, monitored to verify compliance with the minimum standard requirements specified in 9VAC25-740-90 for the intended reuse or reuses of the reclaimed water, excluding CAT standards. Where monitoring of reclaimed water in the distribution system is required, monitoring parameters and frequencies shall be determined by the department on a case-by-case basis.

i. Information specified in subdivision B 7 of this section for conjunctive systems described in subdivision B 8 of this section.

j. Where the applicant or permittee is the provider of reclaimed water, the exclusive end user of that reclaimed water and is not otherwise excluded under 9VAC25-740-50 A, information for only subdivisions 1 a, b, and c of this subsection is required.

2. All irrigation reuses of reclaimed water shall be limited to supplemental irrigation.

3. Nutrient management requirements for irrigation reuse will be established in the RWM plan according to the concentration of total N and total P in the reclaimed water compared to biological nutrient removal (BNR) as defined in 9VAC25-740-10.

a. Except as specified in subdivision 4 of this subsection, a nutrient management plan (NMP) shall not be required for irrigation reuse of reclaimed water treated to achieve BNR or nutrient levels below BNR.

b. For bulk irrigation reuse of reclaimed water not treated to achieve BNR, a NMP shall be required of the end user.

(1) Where the applicant or permittee is the end user, the NMP shall be submitted with the RWM plan to the department and shall be the responsibility of the applicant or permittee to properly implement.

(2) Where the end user is other than the applicant or permittee, the NMP shall be required as a condition of the service agreement or contract specified in subdivision 1 d of this subsection between the applicant or permittee and the end user. The end user shall be responsible for obtaining, maintaining and following a current NMP; providing a copy of the most current NMP to the applicant or permittee prior to initiating bulk irrigation reuse of reclaimed water; and providing proof of compliance with the NMP at the request of the permittee.

c. For nonbulk irrigation reuse of reclaimed water not treated to achieve BNR, a NMP shall not be required. However, the RWM plan shall describe other measures to be implemented by the applicant or permittee to manage nutrient loads by nonbulk irrigation reuse of reclaimed water not treated to achieve BNR within the service area. These shall include, but are not limited to the following:

(1) The inclusion of language in the service agreement or contract specified in subdivision 1 d of this subsection, explaining proper use of the reclaimed water by the end user for the purpose of managing nutrients;

(2) Routine distribution of literature not less than annually, to individual nonbulk irrigation end users addressing the proper use of reclaimed water for irrigation in accordance with 9VAC25-740-170 A; and

(3) Monthly monitoring of N and P loads by nonbulk irrigation reuses to the service area of the RWM plan based on the total monthly metered nonbulk irrigation reuse of reclaimed water for the service area and the monthly average concentrations of total N and total P in the reclaimed water. Results of this monitoring shall be included in the annual report to the department submitted in accordance with 9VAC25-740-200 C.

4. Independent of the reclaimed water nutrient content, a NMP shall be required for a bulk irrigation reuse site where:

a. A wastewater treatment works, reclamation system, SRS, or reclaimed water distribution system and the irrigation reuse site or sites are under common ownership or management; and

b. In addition to irrigation reuse:

(1) There is no option to dispose of the reclaimed water through a VPDES permitted discharge, or

(2) There is an option to dispose of the reclaimed water through a VPDES permitted discharge, but the VPDES permit does not allow discharge of the full nutrient load under design flow (e.g., a treatment works with a VPDES permitted discharge implements water reclamation and reuse in lieu of providing treatment to meet nutrient effluent limits at design flow).

5. A NMP required per subdivision 4 of this subsection shall be approved by the Department of Conservation and Recreation (DCR) and submitted with the RWM plan to the department. The applicant or permittee shall be responsible for proper implementation of the NMP.

6. If required for a specific irrigation reuse, the NMP shall be prepared by a nutrient management planner certified by DCR and shall be maintained current in accordance with the Nutrient Management Training and Certification Regulations, 4VAC5-15. A copy of the NMP for each irrigation reuse site shall be maintained at the site or at a location central to all sites covered by the plan. Another copy shall be provided to and retained by the applicant or permittee.

7. A site plan is required for each bulk irrigation reuse site and area of proposed expansion to an existing irrigation reuse site, displayed on the most current U.S. Geological Survey topographic maps (7.5 minutes series, where available) and showing the following:

a. The boundaries of the irrigation site;

b. The location of all potable and nonpotable water supply wells and springs, public water supply intakes, occupied dwellings, property lines, areas accessible to the public, outdoor eating, drinking and bathing facilities; surface waters, including wetlands; limestone rock outcrops and sinkholes within 250 feet of the irrigation site; and

c. Setbacks areas around the irrigation site in accordance with 9VAC25-740-170.

8. The site plan for a bulk irrigation reuse site shall be prepared by:

a. The applicant or permittee for submission with the RWM plan to the department when the irrigation site is under common ownership or management with a wastewater treatment works, a reclamation system, SRS, or reclaimed water distribution system from which it receives reclaimed water for irrigation; or

b. The bulk irrigation end user for submission with the service agreement or contract between the end user and the applicant or permittee when the irrigation site is not under common ownership or management with a wastewater treatment works, a reclamation system, SRS, or reclaimed water distribution system from which it receives reclaimed water for irrigation.

9. For the addition of new end users or new reuses not contained in the original RWM plan submitted with the application for a permit, the permittee shall submit to the department for approval an amendment to the RWM plan identifying the new end users or new reuses prior to connection and reclaimed water service to the new end users or initiating the new reuses. For each new end user or new reuse, the permittee shall also provide all applicable information required by this subsection. Amendment of the RWM plan for the addition of new end users or new reuses after the issuance or reissuance of the permit shall not be considered a modification of the permit unless the new end users or new reuses will require the addition of different reclaimed water standards, monitoring requirements and conditions not contained in the permit.

D. Indirect potable reuse (IPR). For an application to permit an IPR project, the following additional information shall be submitted by the applicant or permittee to the department:

1. Identification of the following components of an IPR project:

a. The reclamation system that will produce reclaimed water discharged to the water supply source (WSS).

b. The WSS to which the reclamation system identified in subdivision 1 a of this subsection will discharge reclaimed water.

c. The waterworks that will withdraw water from the WSS identified in subdivision 1 b of this subsection to produce potable water.

2. Identification of all uses in addition to IPR of the WSS identified in subdivision 1 of this subsection. Such uses shall be those deemed acceptable by the Virginia Department of Health or the Waterworks Regulations (12VAC5-590).

3. A description of multiple barriers to be implemented by the reclamation system or waterworks, or both, to produce water of a quality suitable for IPR. Multiple barriers shall include at a minimum:

a. Source control and protection. This involves the control of contaminants with potential to adversely impact public health by preventing or minimizing the entry of these contaminants into the wastewater collection system prior to reclamation or the WSS prior to withdrawal by the waterworks. Source control and protection shall, at a minimum, address pretreatment requirements for SIUs in accordance with 9VAC25-740-150 E and education requirements in accordance with 9VAC25-740-170 A 1, and shall describe other measures to reduce the introduction of contaminants from domestic sources that may include, but are not limited to, community collection programs for hazardous wastes and unused pharmaceuticals.

b. Effective and reliable treatment. This involves the use of treatment processes at both the reclamation system and the waterworks that, in combination with any natural attenuation provided by the environmental buffer to be described per subdivision 3 c of this subsection, shall reliably achieve the water quality necessary for IPR. A description of reclamation system treatment processes for IPR may be satisfied by referencing application information submitted in accordance with subsection B of this section.

c. Environmental buffers and natural attenuation. This involves the use of an environmental buffer, such as a surface water used as a WSS, to provide further removal or degradation of certain contaminants when exposed to naturally occurring physical, chemical, and biological processes in the environment over time.

d. Monitoring programs. This involves monitoring at progressive stages of treatment or barriers of the project to verify that they are working effectively and reliably to achieve the necessary water quality for IPR.

e. Responses to adverse conditions. To address those circumstances where the reclamation system of the IPR project experiences a catastrophic treatment failure that cannot be corrected by subsequent treatment or barriers, or fails to produce reclaimed water meeting the standards or limits at the point of discharge to the WSS, the application for the IPR project shall contain:

(1) A contingency plan that describes all alternatives to be implemented in lieu of discharging the substandard reclaimed water to the WSS.

(2) A notification program for the reclamation system of the IPR project as described in 9VAC25-740-170 A 2.

4. An evaluation of the combined effectiveness of all the barriers described in subdivision 3 of this subsection to achieve the water quality necessary for IPR.

5. Any information deemed necessary by the department to establish reclaimed water standards and monitoring requirements for the IPR project in accordance with 9VAC25-740-90 B. This shall include, but is not limited to, residence or transport times, mixing ratios, and other applicable modeling of the reclamation system discharge or contaminants introduced by the discharge to the WSS.

6. A water balance for the reclamation system that accounts for the volumes of reclaimed water to be generated, stored, discharged to the WSS, and withdrawn for IPR.

7. Any change by the reclamation system to provide reclaimed water for other reuses or end users in addition to IPR shall require submission of a RWM plan in accordance with subdivision C 1 of this section. The water balance for the RWM plan shall include the water balance required per subdivision 6 of this subsection for the IPR project.

8. A copy of the contractual agreement established between the reclamation system and the waterworks of the IPR project, identifying the responsibilities of each party to implement multiple barriers described in accordance with subdivision 3 of this subsection, unless the reclamation system and waterworks are under common ownership or management.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Errata 30:11 VA.R. 1615 January 27, 2014; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-105 Application for an emergency authorization

A. An application for an emergency authorization as described in 9VAC25-740-45 shall include information addressing the following:

1. Contact information of the applicant or permittee including name, mailing address, telephone number, and, if applicable, fax number, and electronic mail address;

2. Name of the city or county where the emergency production, distribution, and reuse of reclaimed water shall occur;

3. Recent and current water use, including monthly water use in the previous calendar year and weekly water use in the previous six months prior to the application. The application shall identify the sources of such water and also identify any water purchased from other water suppliers;

4. A description of the severity of the public water supply emergency, including for reservoirs, an estimate of days of remaining supply at the current rates of use and replenishment; for wells, current production; for intakes, current streamflow;

5. A description of mandatory water conservation measures taken or imposed by the applicant or permittee and the dates when the measures were implemented. For the purposes of obtaining an emergency authorization, mandatory water conservation measures shall include, but are not limited to, the prohibition of lawn and landscape watering, noncommercial vehicle washing, the watering of recreation fields, refilling of swimming pools, and the washing of paved surfaces;

6. An estimate of water savings realized by implementing mandatory water conservation measures;

7. Documentation that the applicant or permittee has exhausted all public water supply management actions that would minimize the threat to public welfare, safety, and health, and would avoid the need to obtain an emergency authorization. This may include among other actions, the acquisition of an Emergency Virginia Water Protection Permit ( as provided in 9VAC25-210) for a new or increased withdrawal;

8. Any other information demonstrating that public water supply conditions are a substantial threat to public health or safety;

9. Name, address, and permit number of the municipal treatment works that proposes to produce, distribute, or reuse reclaimed water under the emergency authorization;

10. A statement confirming that the municipal treatment works:

a. Does not have SIUs, or

b. Has SIUs and a pretreatment program developed, approved, and maintained in accordance with Part VII (9VAC25-31-730 et seq.) of the VPDES Permit Regulation;

11. Information regarding the design and operation of the treatment works, demonstrating that the facility is currently capable of producing reclaimed water meeting minimum standard requirements of 9VAC25-740-90 for reuses listed in the application pursuant to subdivision 13 of this subsection;

12. Information specified in 9VAC25-740-100 B 6 regarding the diversion of source water from the treatment works to reclamation and reuse;

13. A list of proposed reuses for reclaimed water produced by the municipal treatment works and an explanation of how these reuses will protect public health and safety under the current public water supply conditions;

14. A description of the system that will be used to distribute reclaimed water from the municipal treatment works to the intended reuses; and

15. A signed and dated certification statement in accordance with signatory requirements of the VPDES Permit Regulation (9VAC25-31) or the VPA Permit Regulation (9VAC25-32), whichever applies to the permit issued to the municipal treatment works.

B. The application for a permit described in 9VAC25-740-100 may be used as an application to issue an emergency authorization where the permit application contains the information required in subsection A of this section.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 30, Issue 9, eff. January 29, 2014.

9VAC25-740-110 Design criteria

A. Reclamation system.

1. The design of systems for the reclamation of municipal wastewater or source water derived from a municipal wastewater treatment works shall adhere to the standards of design and construction specified in the Sewage Collection and Treatment Regulations (9VAC25-790) and other applicable engineering standards and regulations. Design standards for reclamation systems of industrial wastewater or source water derived from an industrial wastewater treatment works shall be determined and evaluated on a case-by-case basis.

2. Ultraviolet (UV) disinfection for reclamation systems:

a. For Level 1 reclaimed water:

(1) Designs for UV disinfection shall be validated in accordance with NWRI Ultraviolet Disinfection Guidelines for Drinking Water and Water Reuse, Second Edition (2003) (guidelines) to meet a UV design dosage greater than or equal to 100,000 uWsec/cm² (MS-2 dose) under peak flow and a minimum UV transmittance of 55% at 254 nm. A lower UV disinfection dosage may be authorized by the department if demonstrated to meet at least one of the bacteria standards for Level 1 specified in 9VAC25-740-70 A, and where microbial testing is used to validate the efficacy of the UV disinfection dose in accordance with the guidelines. For the lower disinfection dose, the department may develop reclaimed water turbidity standards and minimum UV transmittance requirements that are unique to the UV disinfection process of the reclamation system.

(2) The UV disinfection system shall be designed to supply the minimum dose specified in subdivision 2 a (1) of this subsection at all times. The system may be automated to immediately adjust the UV disinfection dosage in response to changes in the UV system influent reclaimed water flow and quality.

b. UV disinfection for Level 2 reclaimed water shall be designed, constructed, and operated in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790) for UV disinfection of secondary effluent.

B. Reclaimed water distribution system.

1. All reclaimed water distribution systems shall be designed and constructed in accordance with this chapter and applicable sections of the Sewage Collection and Treatment Regulations (9VAC25-790) pertaining to force mains, so that:

a. Reclaimed water does not come into contact with or otherwise contaminate a potable water system;

b. The structural integrity of the system is provided and maintained; and

c. The capability for inspection, maintenance, and testing is maintained.

2. For a reclaimed water distribution system, the following shall be implemented as part of the cross-connection and backflow prevention program submitted with the RWM plan:

a. There shall be no direct cross-connections between the reclaimed water distribution system and a potable water supply system.

b. The reclaimed water distribution system shall be in compliance with the cross connection control and backflow prevention requirements of Article 4 (12VAC5-590-580 et seq.) of Part II of the Commonwealth of Virginia Waterworks Regulations and, when applicable, the reclaimed water distribution system shall also be in compliance with the Virginia Statewide Building Code (13VAC5-63).

c. Potable water may be used to supplement reclaimed water for a reuse, provided there is an air gap separation of at least eight inches between the potable water and the reclaimed water or a reduced pressure principle backflow prevention device installed at the potable water service connection to the reuse. The installation of the reduced pressure principal backflow prevention device shall allow for proper inspection and testing of the device.

d. Reclaimed water shall not be returned to the reclaimed water distribution system after the reclaimed water has been delivered to an end user.

3. In-ground reclaimed water distribution pipelines shall be installed and maintained to achieve minimum separation distance and configurations as follows:

a. No reclaimed water distribution pipeline shall pass within 50 feet of a potable water supply well, potable water supply spring or water supply intake that are part of a regulated waterworks. The same separation distance shall be required between a reclaimed water distribution pipeline and a nonpublic or private potable water supply well or spring, but may be reduced to not less than 35 feet provided special construction and pipe materials are used to obtain adequate protection of the potable water supply.

b. Reclaimed water distribution pipeline shall be separated horizontally by at least 10 feet from a water main. The distance shall be measured edge-to-edge. When local conditions prohibit this horizontal separation, the reclaimed water distribution pipeline may be laid closer provided that the water main is in a separate trench or an undisturbed earth shelf located on one side of the reclaimed water distribution pipeline and the bottom of the water main is at least 18 inches above the top of the reclaimed water distribution pipeline. Where this vertical separation cannot be obtained, the reclaimed water distribution pipeline shall be constructed of water pipe material in accordance with AWWA specifications and pressure tested in place without leakage prior to backfilling. The hydrostatic test shall be conducted in accordance with the AWWA standard (ANSI/AWWA C600-05, effective December 1, 2005) for the pipe material, with a minimum test pressure of 30 psi.

c. Distribution pipeline that conveys Level 1 reclaimed water shall be separated horizontally by at least two feet from a sewer line. The distance shall be measured edge-to-edge. When local conditions prohibit this horizontal separation, the reclaimed water distribution pipeline may be laid closer provided that the sewer line is in a separate trench or an undisturbed earth shelf located on one side of the reclaimed water distribution pipeline and the bottom of the reclaimed water distribution pipeline is at least 18 inches above the top of the sewer line. Where this vertical separation cannot be obtained, either the reclaimed water distribution pipeline or the sewer line shall be constructed of water pipe material in accordance with AWWA specifications and pressure tested in place without leakage prior to backfilling. The hydrostatic test shall be conducted in accordance with the AWWA standard (ANSI/AWWA C600-05, effective December 1, 2005) for the pipe material, with a minimum test pressure of 30 psi.

d. Reclaimed water distribution pipeline shall cross under water main such that the top of the reclaimed water distribution pipeline is at least 18 inches below the bottom of the water main. When local conditions prohibit this vertical separation, the reclaimed water distribution pipeline shall be constructed of AWWA specified water pipe and pressure tested in place without leakage prior to backfilling, in accordance with the provisions of the Sewage Collection and Treatment Regulations (9VAC25-790). Where reclaimed water distribution pipeline crosses over water main, the reclaimed water distribution pipeline shall:

(1) Be laid to provide a separation of at least 18 inches between the bottom of the reclaimed water distribution pipeline and the top of the water main.

(2) Be constructed of AWWA approved water pipe and pressure tested in place without leakage prior to backfilling, in accordance with the provisions of the Sewage Collection and Treatment Regulations (9VAC25-790).

(3) Have adequate structural support to prevent damage to the water main.

(4) Have joints placed equidistant and as far as possible from the water main joints.

e. Sewer line shall cross under distribution pipeline that conveys Level 1 reclaimed water such that the top of the sewer line is at least 18 inches below the bottom of the reclaimed water distribution pipeline. When local conditions prohibit this vertical separation, the sewer line shall be constructed of AWWA specified water pipe and pressure tested in place without leakage prior to backfilling, in accordance with the provisions of the Sewage Collection and Treatment Regulations (9VAC25-790). Where sewer line crosses over distribution pipeline that conveys Level 1 reclaimed water, the sewer line shall:

(1) Be laid to provide a separation of at least 18 inches between the bottom of the sewer line and the top of the reclaimed water distribution pipeline.

(2) Be constructed of AWWA approved water pipe and pressure tested in place without leakage prior to backfilling, in accordance with the provisions of the Sewage Collection and Treatment Regulations (9VAC25-790).

(3) Have adequate structural support to prevent damage to the reclaimed water distribution pipeline.

(4) Have joints placed equidistant and as far as possible from the reclaimed water distribution pipeline joints.

f. No reclaimed water distribution pipeline shall pass through or come into contact with any part of a sewer manhole. Distribution pipeline that conveys Level 1 reclaimed water shall be separated horizontally by at least two feet from a sewer manhole whenever possible. The distance shall be measured from the edge of the pipe to the edge of the manhole structure. When local conditions prohibit this horizontal separation, the manhole shall be of watertight construction and tested in place.

4. No setback distance is required to any nonpotable water supply well and no vertical or horizontal separation distances are required between above-ground reclaimed water pipelines and potable water, sewer or wastewater pipelines.

5. All reclaimed water outlets shall be of a type, or secured in a manner, that permits operation by authorized personnel. Public access to reclaimed water outlets shall be controlled in areas where reclaimed water outlets are accessible to the public as follows:

a. If quick connection couplers are used on above-ground portions of the reclaimed water distribution system, they shall differ materially from those used on the potable water supply.

b. Use of above-ground hose bibs, spigots or other hand-operated connections that are standard on local potable water distribution systems shall be prohibited for use on the local reclaimed water distribution system. If above-ground hose bibs, spigots or other hand-operated connections are used on the reclaimed water distribution system, they must differ materially from those used on the local potable water distribution system and must be clearly distinguishable as reclaimed water connections (i.e., painted purple, valve operation with a special tool) so as not to be mistaken for potable water connections. Where below-grade vaults are used to house reclaimed water connections, the connections in the vault may have standard potable water distribution system thread and bib size services provided the bib valves can be operated only by a special tool. The below-grade vaults shall also be labeled as being part of the reclaimed water distribution system (i.e., painted purple, labeled).

6. Existing potable water distribution systems, sewer and wastewater collection systems, and irrigation distribution systems may be converted for use as reclaimed water distribution systems. Not less than 90 days prior to such conversions, excluding the conversion of irrigation distribution systems that are not under common ownership or management with reclamation systems, SRSs, or reclaimed water distribution systems providing reclaimed water to the irrigation distribution systems, the following shall be submitted to the department for approval:

a. A system conversion plan that contains:

(1) Information on the location and identification of the facilities to be converted;

(2) Information on the location of all connections to the facilities to be converted;

(3) A description of procedures to be used to ensure that all connections and cross-connections shall be eliminated. This may include physical inspections, dye testing, or other testing procedures;

(4) A description of the physical and operational modifications necessary to convert the existing system to a reclaimed water distribution system that shall comply with applicable design criteria in subsections B and C of this section, and the operations and maintenance requirements of 9VAC25-740-140 D 2;

(5) A description of cleaning and disinfection procedures to be followed before the converted facilities will be placed into operation for reclaimed water distribution. For the conversion of existing sewer and wastewater collection systems, cleaning and disinfection of the system shall be conducted in accordance with AWWA standards (ANSI/AWWA C651-05, effective June 1, 2005). Procedures to dispose of flush water from cleaning or disinfection shall be those described in the operations and maintenance manual of the system for the disposal of flush water from maintenance activities;

(6) An assessment of the physical condition and integrity of facilities to be converted; and

(7) Reasonable assurance that cross-connections will not result, public health will be protected, and the integrity of potable water, wastewater, and reclaimed water systems will be maintained when the conversion is made.

b. An operations and maintenance manual for the system converted to a reclaimed water distribution system in accordance with 9VAC25-740-140 B, containing at a minimum the items specified in 9VAC25-740-140 D.

7. Tank trucks may be used to transport and distribute reclaimed water only if the following requirements are met:

a. The truck is not used to transport potable water that is used for drinking water or food preparation;

b. The truck is not used to transport waters or other fluids that do not meet the requirements of this chapter, unless the tank has been evacuated and properly cleaned prior to the addition of the reclaimed water;

c. The truck is not filled through on-board piping or removable hoses that may subsequently be used to fill tanks with water from a potable water supply; and

d. The reclaimed water contents of the truck are clearly identified as nonpotable water on the truck.

8. Reclaimed water distribution systems shall have the following identification, notification and signage:

a. Reclaimed water piping with an outer diameter greater than or equal to one inch, installed in-ground after January 29, 2014, or above-ground shall display the words "CAUTION: RECLAIMED WATER - DO NOT DRINK" by one or more of the following methods:

(1) Stenciling or stamping the piping with two-inch to three-inch letters on opposite sides of the piping, placed at intervals of three to four feet. For piping less than two inches and greater than or equal to one inch outer diameter, lettering shall be at least 5/8 inch, placed on opposite sides of the piping and repeated at intervals of one foot.

(2) Wrapping the piping with purple (Pantone 522) polyethylene vinyl wrap or adhesive tape, placed longitudinally at three-foot intervals. The width of the wrap or tape shall be at least three inches, and shall display the required caution statement in either white or black lettering.

(3) Permanently affixing purple (Pantone 522) vinyl adhesive tape on top of the piping, parallel to the axis of the piping, fastened at least every 10 feet to each pipe section, and continuously for the entire length of the piping. The width of the tape shall be at least three inches, and shall display the required caution statement in either white or black lettering.

(4) Using an alternate method that assures the caution statement will be displayed to provide an equivalent degree of public notification and protection if approved by the department.

b. Additional methods, if provided, to identify reclaimed water piping with an outer diameter greater than or equal to one inch (e.g., permanently color coding the piping Pantone 522 purple), shall not obscure any portion of the caution statement required pursuant to subdivision 8 a of this subsection.

c. Reclaimed water piping with an outer diameter less than one inch shall require the following:

(1) Where installed in-ground after January 29, 2014, or above ground, the piping shall be permanently color coded purple (Pantone 522). Longitudinal purple striping of the piping may be allowed provided the cumulative width of the stripes is greater than or equal to 25% of the outer pipe diameter.

(2) Where installed within a building or structure, the piping shall have in addition to color coding required per subdivision 8 c (1) of this subsection, the words "CAUTION: RECLAIMED WATER – DO NOT DRINK" embossed, stenciled, stamped, or affixed with adhesive tape on the piping, placed on opposite sides of the piping, and repeated at intervals of one foot. Lettering of the caution statement shall be of a size easily read by a person with normal vision at a distance of two feet.

d. All other above-ground portions of the reclaimed water distribution system including reclaimed water valves, outlets (including fire hydrants) and other appurtenances shall be color coded, taped, labeled, tagged or otherwise marked to notify the public and employees that the source of the water is reclaimed water, not intended for drinking or food preparation. For reclaimed water treated to Level 2, such notification shall also inform employees to practice good personal hygiene for incidental contact with reclaimed water and the public to avoid contact with the reclaimed water.

e. Each mechanical appurtenance of a reclaimed water distribution system shall be colored purple and legibly marked "RECLAIMED WATER" to identify it as a part of the reclaimed water distribution system and to distinguish it from mechanical appurtenances of a potable water distribution system or a wastewater collection system.

f. Valve boxes for reclaimed water distribution systems shall be painted purple. Valve covers for reclaimed water distribution lines shall not be interchangeable with potable water supply valve covers.

g. Existing potable water distribution systems, sewer or wastewater collection systems, or irrigation distribution systems that are converted to reclaimed water distribution systems in accordance with subdivision 6 of this subsection after January 29, 2014, shall be retrofitted to meet identification, notification, and signage requirements of subdivision 8 of this subsection with the following exceptions:

(1) For converted systems requiring the submission of a conversion plan and an operations and maintenance manual in accordance with subdivision 6 of this subsection, existing in-ground converted piping shall be retrofitted to a distance of not less than 10 feet from locations where the piping crosses or is crossed by a potable water supply line or sanitary sewer line.

(2) For all other converted systems, identification, notification, and signage requirements specified in subdivision 8 of this subsection for in-ground piping shall not apply.

9. All reclaimed water distribution systems shall be maintained to minimize losses and to ensure safe and reliable conveyance of reclaimed water such that the reclaimed water will not be degraded below the standards, excluding CAT standards, required for the intended reuse or reuses in accordance with 9VAC25-740-90.

C. Storage requirements.

1. To ensure reliable reclamation system operation in accordance with the requirements of this chapter, all reclamation systems shall have the ability to implement one or more of the following options:

a. Store reclaimed water;

b. Discharge reclaimed water to another permitted reuse system, if applicable;

c. Discharge reclaimed water to surface waters of the state under a VPDES permit;

d. Suspend all or a portion of water reclamation for planned periods; or

e. In the case of a satellite reclamation system, discharge reclaimed water into the sewage collection system from which it received source water for reclamation.

2. Storage for reclaimed water shall be required only when subdivision 1 b, c, or d of this subsection or, as applicable, subdivision 1 e of this subsection are not available or approved by the department.

3. Separate, off-line storage shall be provided for reject water of the reclamation system unless the reject water can be diverted to another permitted reuse system, discharged to surface waters of the state under a VPDES permit, returned directly to an appropriate point of treatment in the reclamation system, or in the case of a satellite reclamation system, sent to the sewage collection system from which the reclamation system received water for reclamation. Where reject water is stored, provisions shall be incorporated into the design of the reclamation system to distribute the reject water from storage to other parts of the reclamation system for additional or repeated treatment.

4. Storage for reject water may also be used for emergency storage to ensure Reliability Class I of the reclamation system in accordance with 9VAC25-740-130.

5. Reject water and reclaimed water may be stored in watertight tanks placed above-ground or in-ground. Labeling of tanks used for reject water storage, system storage or nonsystem storage shall be in accordance with 9VAC25-740-160 B, and shall, at a minimum, identify the contents of each tank as either reject water or reclaimed water.

6. For all impoundments or ponds that are used for reject water storage or system storage, with the exception of impoundments and ponds specified in subdivision 7 of this subsection, the following are required:

a. A minimum two-foot freeboard shall be maintained at all times. Any emergency discharge or overflow device and the disposition of the overflow discharge shall be identified in the engineering report.

b. There shall be a minimum two-foot separation distance between the bottom of the impoundment or pond and the seasonal high water table.

c. The impoundment or pond shall have a properly designed and installed synthetic liner of at least 20 mils thickness or a compacted soil liner of at least one foot thickness. Synthetic liners shall be installed in accordance with the manufacturer's specifications and recommendations. The soil liner shall be composed of separate lifts not to exceed six inches. The maximum coefficient of permeability for the synthetic and soil liners shall not exceed 1x10^-6 cm/sec and 1x10^-7cm/sec, respectively. A plan of quality assurance and quality control which substantiates the adequacy of the liner and its installation shall be included in or shall accompany the preliminary engineering report or supporting documentation for the CTC. Documentation of quality assurance and quality control activities on liner installation along with permeability test results, shall be submitted with the statement of construction completion to the department.

d. If the requirements of subdivision 6 b or c of this subsection cannot be met, the department may allow use of the impoundment or pond for storage provided that a groundwater monitoring plan for the facility is submitted to the department for review and approval. The plan shall identify the direction of groundwater flow and the proposed location and depth of groundwater monitoring wells at the location of the impoundment or pond, parameters to be monitored, a monitoring schedule, and procedures for proper sample collection and handling.

e. The design of the impoundment or pond shall prevent the entry of surface water or storm water runoff from outside the facility embankment or berm.

f. Where the embankment of the impoundment or pond is composed of soil, the embankment shall have:

(1) A top width of at least five feet;

(2) Interior and exterior slopes no steeper than one foot vertical to three feet horizontal unless alternate methods of slope stabilization are used;

(3) Shallow-rooted vegetative cover or other soil stabilization to prevent erosion; and

(4) Erosion stops and water seals installed on all piping that penetrates the embankment.

g. There shall be routine maintenance of the impoundment or pond liner, embankments and access areas.

h. Impoundments and ponds shall be sited to avoid areas of uneven subsidence, sinkholes, or unstable soils unless provisions are made for their correction. Results from field and laboratory tests from an adequate number of test borings and soil samples shall be the basis for computations pertaining to permeability and stability analyses.

i. Impoundments or ponds shall not be located on a floodplain unless protected from inundation or damage by a 100-year frequency flood event.

j. There shall be a minimum setback distance measured horizontally from the perimeter of the storage impoundment or pond to potable water supply wells and springs, and public water supply intakes, of 100 feet for storage of Level 1 reclaimed water and 200 feet for storage of Level 2 reclaimed water or reject water.

7. Reject water storage and system storage impoundments or ponds that exist upon October 1, 2008, shall be exempt from the design, construction, and operation requirements specified in subdivision 6 of this subsection until such time these facilities are modified or expanded, or unless they have failed to comply with other existing regulatory or permitting requirements.

8. The capacity of reject water storage and system storage facilities, including impoundments, ponds or tanks, shall be as follows:

a. For reject water, the capacity of the storage facility shall, at a minimum, be the volume equal to the designated design flow of the reclamation system unless other options exist for immediate disposal or retreatment of the reject water in addition to storage.

b. For reclaimed water, the capacity of the storage facility shall be determined by the seasonal variability in demand, intended reuses with intermittent, variable demand, such as fire protection or fighting; and the availability of other options to generate or manage reclaimed water as specified in subdivision 1 of this subsection.

(1) Where there is no or minimal seasonal variability in demand and no other options are available for alternative generation or management of all or a portion of the reclaimed water, the capacity of the storage facility shall, at a minimum, be the volume equal to three times that portion of the reclamation system designated design flow for which no other options to generate or manage the reclaimed water from the reclamation system are permitted.

(2) Where there is seasonal variability in demand and no other options are available for alternative generation or management of all or a portion of the reclaimed water during periods of low seasonal demand, storage facilities shall have sufficient storage capacity to assure the retention of the reclaimed water under conditions and circumstances that preclude reuse. The methods, assumptions and calculations used to determine the system storage requirements shall be provided and justified in the preliminary engineering report or supporting documentation for the CTC. Analytical means of determining system storage requirements, such as water balance calculations or computer hydrological programs, shall be used and shall account for all water inputs into the system. Analysis shall be based on site-specific data. Irrigation efficiencies or rainfall efficiencies shall not be used in storage volume determinations.

9. Requirements specified in subdivision 6 of this subsection shall not apply to impoundments or ponds used for nonsystem storage with the exception of those specified in subdivision 11 of this subsection.

10. Landscape impoundments may also be used for nonsystem storage of reclaimed water prior to another subsequent reuse, such as irrigation.

11. Impoundments or ponds used for nonsystem storage of reclaimed water, including landscape impoundments, for subsequent irrigation reuse on sites under common ownership or management with the reclamation system or satellite reclamation system that provides reclaimed water to the sites, shall comply with the design, construction and operation requirements specified in subdivision 6 of this subsection.

12. For impoundments or ponds used for nonsystem storage of reclaimed water, the following setback distances shall apply:

a. There shall be a 50-foot minimum setback distance measured horizontally from the perimeter of the impoundment or pond to property lines.

b. For an impoundment or pond with a liner meeting the requirements specified in subdivision 6 c of this subsection, there shall be a minimum setback distance measured horizontally from the perimeter of the storage impoundment or pond to potable water supply wells and springs, and public water supply intakes, of 100 feet for storage of Level 1 reclaimed water and 200 feet for storage of Level 2 reclaimed water.

c. For an unlined impoundment or pond, there shall be a minimum setback distance measured horizontally from the perimeter of the storage impoundment or pond to potable water supply wells and springs, and public water supply intakes, of 200 feet for storage of Level 1 reclaimed water and 400 feet for storage of Level 2 reclaimed water.

13. Where more than one setback distance applies to storage for reclaimed water or reject water, the greater setback distance shall govern.

14. Reclaimed water system storage facilities shall be designed and operated to prevent a discharge to surface waters of the state except in the event of a storm greater than the 25-year, 24-hour storm. Reclaimed water nonsystem storage facilities, including landscape impoundments used for nonsystem storage, shall be designed and operated to prevent a discharge to surface waters of the state, except in the event of a storm greater than the 10-year, 24-hour storm.

15. Permittees shall maintain current inventories of reject water storage, system storage and nonsystem storage facilities located within the service area of the RWM plan. An inventory or a revised inventory shall be submitted as part of the RWM plan in the permit application. For the addition of new storage facilities to an inventory after permit issuance, the permittee shall submit to the department an amended inventory at least 30 days before reclaimed water will be introduced into the new storage facilities. An inventory of reject water storage, system storage and nonsystem storage facilities shall include the following:

a. Name or identifier for each storage facility;

b. Location of each storage facility (including latitude and longitude);

c. Function of each storage facility (i.e., reject water storage, system storage or nonsystem storage);

d. Type of each storage facility (i.e., covered tank, uncovered tank, lined pond, unlined pond, etc.); and

e. Location (latitude and longitude) and distance of the nearest potable water supply well and spring, and public water supply intake, to each storage facility within 450 feet of that facility.

16. Storage requirements as specified in this subsection shall not apply to reclaimed water storage facilities provided at the site of an industrial end user where such facilities are regulated by an existing water permit issued by the department to the industrial end user, or the industrial end user is also the generator of reclaimed water stored in the facilities and is excluded under 9VAC25-740-50 A.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-120 Construction requirements

A. Preliminary engineering report and pilot study.

1. A preliminary engineering report shall be submitted for new water reclamation projects and for modification or expansion of existing reclamation systems, SRSs, and reclaimed water distributions systems. At the request of the applicant or permittee, the department may waive the need for a preliminary engineering report or portions of a preliminary engineering report for modification or expansion of an existing reclamation system, SRS, or reclaimed water distributions system based on the scope of the proposed project.

2. A pilot study shall be required where treatment is proposed for a reclamation system of an IPR project.

a. The pilot study shall demonstrate the ability of selected treatment processes to:

(1) Meet, at a minimum, the reclaimed water standards prescribed for the IPR project in accordance with 9VAC25-740-90 C, and

(2) Generate a consistent and reliable supply of reclaimed water for the IPR project.

b. The pilot study shall quantify and characterize the quality of source water provided for reclamation and reclaimed water generated by the treatment processes of the reclamation system for a period of not less than 365 days unless reduced by the department in accordance with subdivision 2 c of this subsection.

c. At the request of the applicant or permittee, the department may reduce the pilot study duration specified in subdivision 2 b of this subsection or the pilot study scope where the following are met:

(1) The applicant or permittee provides a detailed plan of study for the department's review and approval before initiating the pilot study, and

(2) The detailed plan of study justifies to the satisfaction of the department that a pilot study of shorter duration or reduced scope will be sufficient to achieve the requirements of subdivision 2 a of this subsection. For the purpose of reducing the duration or scope of a pilot study, results of previous pilot studies and operating experiences of similar water reclamation and IPR projects may be used as part of the demonstration required pursuant to subdivision 2 a of this subsection.

d. Results of the pilot study shall be submitted to the department for review.

B. Certificate to construct and certificate to operate.

1. No owner shall cause or allow the construction, expansion or modification of a reclamation system or SRS except in compliance with a certificate to construct (CTC) from the department unless otherwise provided for by this chapter. Furthermore, no owner shall cause or allow any reclamation system or SRS to be operated except in compliance with a certificate to operate (CTO) issued by the department, which authorizes the operation of the reclamation system or SRS, unless otherwise provided for by this chapter. The need for a CTC and CTO for modifications shall be determined by the department on a case-by-case basis. Conditions may be imposed on the issuance of any CTC or CTO, and no reclamation system or SRS may be constructed, modified, or operated in violation of these conditions.

2. CTC.

a. Upon approval of the proposed design by the department, including any submitted plans and specifications, if required, the department will issue a CTC to the owner of such approval to construct or modify his reclamation system or SRS in accordance with the approved plans and specifications.

b. Any deviations from the approved design or the submitted plans and specifications significantly affecting hydraulic conditions (flow profile), unit operations capacity, the functioning of the reclamation system or SRS, or the quality of the reclaimed water, must be approved by the department before any such changes are made.

3. CTO.

a. Upon completion of the construction or modification of the reclamation system or SRS, the owner shall submit to the department a Statement of Construction Completion signed by a licensed professional engineer stating that the construction work has been completed in accordance with the approved plans and specifications, or revised only in accordance with subdivision 2 b of this subsection. This statement shall be based upon inspections of the reclamation system or SRS during and after construction or modifications that are adequate to ensure the truth of the statement.

b. Upon receipt of the construction completion statement, the department may issue a final CTO. However, the department may delay the granting of the CTO pending inspection, or satisfactory evaluation of reclaimed water test results, to ensure that the work has been satisfactorily completed.

c. A conditional CTO may be issued specifying final approval conditions, with specific time periods for completion of unfinished work, revisions to the operations and maintenance manual, or other appropriate items. The department may issue a conditional CTO to owners of a reclamation system or SRS for which the required information for completion of construction has not been received. Such CTOs will contain appropriate conditions requiring the completion of any unfinished or incomplete work including subsequent submission of the statement of completion of construction.

d. An interim CTO may be issued to individual unit operations of the treatment system so as to allow utilization of these unit operations prior to completion of the total project. A final CTO shall be issued upon verification that the requirements of this chapter have been complied with.

e. Within 30 days after placing a new or modified reclamation system or SRS into operation, the department may require reclaimed water produced by the system to be sampled and tested in a manner sufficient to demonstrate compliance with approved specifications and permit requirements. The department shall be notified of the time and place of the tests, and shall be sent the results of the tests for evaluation as part of the final CTO.

f. Within 90 days of placing the new or modified reclamation system or SRS into operation, the owner shall submit a new or revised operations and maintenance manual for the water reclamation system, SRS, or both, if covered by the same permit. The manual shall contain information as specified in 9VAC25-740-140.

g. The department may amend or reissue a CTO where there is a change in the manner of treatment or the source of water that is reclaimed at the permitted location, or for any other cause incidental to the protection of the public health and welfare, provided notice is given to the owner.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-130 Operator requirements and system reliability

A. Operator requirements. In accordance with the Virginia Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals Regulations (18VAC160-20), each reclamation system shall be assigned a classification based on the treatment processes used to reclaim water and the design capacity of the facility. The classification of both the reclamation system and the operator in responsible charge shall be the same as that specified in the Sewage Collection and Treatment Regulations (9VAC25-790) for sewage treatment works with similar treatment processes and design capacities. The reclamation system shall be manned while in operation and under the supervision of the operator in responsible charge unless the system is equipped with remote monitoring and, as applicable, automated diversion of substandard or reject water in accordance with 9VAC25-740-70 C 1.

B. Reliability Class I as defined in 9VAC25-740-10 is required for Level 1 reclamation systems, satellite reclamation systems, and for pump stations considered part of these systems, unless there is a permitted alternate treatment, discharge or disposal system available with sufficient capacity to handle any reclaimed water flows that do not meet the reclaimed water standards of this chapter or performance criteria established in the operations and maintenance manual.

C. Reliability Class I, as defined in 9VAC25-740-10, is required for a reclamation system identified as a component of an IPR project in accordance with 9VAC25-740-100 D 1, including pump stations that are part of the reclamation system. No exception or variance shall be granted for this requirement.

D. For independent reclamation systems and systems consisting of an industrial wastewater treatment works and reclamation system, the applicability of Reliability Class I requirements as specified in the Sewage Collection and Treatment Regulations (9VAC25-790), shall be determined by the department for each proposed or existing system.

E. The department may approve alternative measures to achieve Reliability Class I specified in the Sewage Collection and Treatment Regulations (9VAC25-790) and this chapter if the applicant or permittee can demonstrate in the engineering report, using accepted and appropriate engineering principles and practices, that the alternative measures will achieve a level of reliability equivalent to Reliability Class I.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-140 Operations and maintenance

A. The permittee shall develop and submit to the department an operations and maintenance manual in accordance with 9VAC25-740-120 B 3 f for each reclamation system, SRS, or combination of these facilities covered by the same permit. The permittee shall maintain the manual and any changes in the practices and procedures followed by the permittee shall be documented and submitted to the department within 90 days of the effective date of the changes.

B. For each reclaimed water distribution system, the permittee shall develop an operations and maintenance manual to be made available at a location central to the system. The permittee shall maintain the manual and include any changes in the practices and procedures followed by the permittee in the manual. The operations and maintenance manual for a reclaimed water distribution system may be included in the operations and maintenance manual described in subsection A of this section where the reclaimed water distribution system and a reclamation system or SRS, or all these facilities are covered by the same permit.

C. For a reclamation system authorized under the permit of a wastewater treatment works that provides flow to the reclamation system, the operations and maintenance manual of the reclamation system may be made a part of the operations and maintenance manual for the wastewater treatment works.

D. The operations and maintenance manual is a set of detailed instructions developed to facilitate the operator's understanding of operational constraints and maintenance requirements for the reclamation system, SRS, or reclaimed water distribution system; and the monitoring and reporting requirements specified in the permit issued for each system. The scope and content of the manual will be determined by the complexity of the system or systems described by the manual.

1. For a reclamation system or SRS, the operations and maintenance manual shall, at a minimum, contain the following:

a. A description of unit treatment processes within the reclamation system or SRS and step-by-step instructions for the operation of these processes;

b. Routine maintenance and schedules of maintenance for each unit treatment process in the system;

c. The criteria used to make continuous determinations of the acceptability of the reclaimed water being produced and shall include set points for parameters measured by continuous on-line monitoring equipment;

d. Descriptions of sampling and monitoring procedures and record keeping that comply with the requirements of this chapter and any applicable permit conditions;

e. The physical steps and procedures to be followed by the operator when substandard water is being produced, including resampling and operational review in accordance with 9VAC25-740-70 C;

f. The physical steps and procedures to be followed by the operator when the treatment works returns to normal operation and acceptable quality reclaimed water is again being produced;

g. Procedures to be followed during a period when an operator is not present at the treatment works;

h. Information necessary for the proper management of sludge or residuals from reclamation treatment that is not specifically requested in the application for a VPDES or VPA permit; and

i. A contingency plan to eliminate or minimize the potential for untreated or inadequately treated water to be delivered to reuse areas. The plan shall, as applicable, reference and coordinate with the education and notification program specified in 9VAC25-740-170 A for any release of untreated or inadequately treated water to the reclaimed water distribution system.

2. For a reclaimed water distribution system, the operations and maintenance manual shall, at a minimum, contain the following:

a. A map of the distribution system, a description of all components within the distribution system, and step-by-step instructions for the operation of specific mechanical components;

b. Routine and unplanned inspection of the distribution system, including required inspections for the cross-connection and backflow prevention program as specified in 9VAC25-740-100 C 1 g;

c. Routine maintenance and schedules of maintenance for all components of the distribution system. Maintenance shall include, but is not be limited to, initial and routine flushing of the distribution system, measures to prevent or minimize corrosion, fouling and clogging of distribution lines; and detection and repair of broken distribution lines, flow meters or pumping equipment; and

d. Procedures to:

(1) Handle and dispose of any wastes generated by maintenance of the distribution system in a manner protective of the environment;

(2) Prevent the discharge of reclaimed or flush water from distribution system maintenance activities to:

(a) Storm drains;

(b) State waters unless otherwise authorized by the department; and

(c) Sanitary sewers unless allowed under local sewer use ordinances and authorized by the department; and

(3) Collect and, as applicable, retreat reclaimed water or treat flush water from distribution system maintenance activities for a subsequent reuse or use approved by the department.

E. The permittee shall review and revise the operations and maintenance manual, as needed and appropriate, to ensure that the manual contains procedures and criteria addressing the requirements of subsection D of this section for satisfactory system performance. Any revision to the manual shall be reviewed and approved by the department.

F. The permittee of a reclamation system, SRS, or reclaimed water distribution system shall be responsible for making the facility protective of the environment and public health at all times, including periods of inactivation or closure. Included in the operations and maintenance manual for the reclamation system, SRS, or reclaimed water distribution system, the permittee shall submit a plan for inactivation or closure of the facility, specifying what steps will be taken to protect the environment and public health.

G. Where a bulk irrigation reuse site is under common ownership or management with a reclamation system or SRS that generates reclaimed water applied to the site, the operations and maintenance manual for the reclamation system or SRS shall include the following:

1. Measurements and calculations used to determine supplemental irrigation rates of reclaimed water for the irrigation reuse sites;

2. Operating procedures of the irrigation system;

3. Routine maintenance required for the continued design performance of the irrigation system and reuse sites;

4. Identification and routine maintenance of reclaimed water storage facilities dedicated to bulk irrigation reuse;

5. Schedules for harvesting and crop removal at the irrigation reuse sites;

6. An inventory of spare parts to be maintained for the irrigation system; and

7. Any other information essential to the operation of the irrigation system and reuse sites in accordance with the requirements of this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-150 Management of pollutants from significant industrial users

A. A reclamation system that receives source water from a wastewater treatment works having SIUs shall not be permitted to produce reclaimed water meeting Level 1 standards, unless:

1. The wastewater treatment works providing source water to the reclamation system is a publicly owned treatment works as defined in the VPDES Permit Regulation (9VAC25-31-10), and has a pretreatment program required by and developed in accordance with procedures described in Part VII of the VPDES Permit Regulation (9VAC25-31-730 et seq.); or

2. The reclamation system has evaluated source water from the treatment works for pollutants of concern discharged by SIUs to the treatment works, and has confirmed that such pollutants shall not interfere with the ability of the wastewater treatment works to produce source water suitable for the production of reclaimed water meeting Level 1 standards and any other standards required in accordance with 9VAC25-740-70 D. All such evaluations by the reclamation system shall be submitted to the department for review and approval, and shall be repeated for each new SIU that proposes to discharge to the treatment works prior to commencing such discharge. The reclamation system shall maintain a current inventory of SIUs discharging to the treatment works.

B. The permittee of a reclamation system authorized to produce reclaimed water treated to Level 1 shall establish a contractual agreement with all treatment works providing source water to the reclamation system unless the reclamation system and the treatment works are authorized by the same permit. The contractual agreement shall, at a minimum, require the treatment works to notify the reclamation system of all SIUs that discharge to the treatment works. Upon execution of the contractual agreement, a copy of the agreement shall be provided to the department.

C. A satellite reclamation system (SRS) that receives municipal wastewater or sewage from a sewage collection system pipeline with contributions from SIU discharges, excluding any SIUs whose discharge has no potential to reach the SRS intake, shall not be permitted to produce reclaimed water meeting Level 1 standards, unless the SRS has evaluated pollutants of concern discharged by the SIUs and has confirmed that such pollutants shall not interfere with the ability of the SRS to produce reclaimed water meeting Level 1 standards and any other standards required in accordance with 9VAC25-740-70 D. All such evaluations by the SRS shall be submitted to the department for review and approval, and shall be repeated for each new SIU that proposes to discharge to the sewage collection system and whose discharge has the potential to reach the SRS intake prior to commencing such discharge. The SRS shall maintain a current inventory of all SIUs that discharge pollutants of concern to the sewage collection system capable of reaching the intake of the SRS.

D. The permittee of a SRS authorized to produce reclaimed water treated to Level 1 shall establish a contractual agreement with the sewage collection system providing sewage to the SRS. The contractual agreement shall, at a minimum, require the sewage collection system to notify the SRS of all SIUs that discharge to the sewage collection system. Upon execution of the contractual agreement, a copy of the agreement shall be provided to the department.

E. Any VPDES permitted treatment works with SIUs that provides source water for reclamation and subsequent indirect potable reuse shall have the following:

1. For publicly owned treatment works, a pretreatment program where required by the VPDES Permit Regulation or deemed necessary by the department, developed in accordance with procedures described in Part VII (9VAC25-31-730 et seq.) of the VPDES Permit Regulation.

2. For all other treatment works, a program equivalent to a pretreatment program as described in Part VII (9VAC25-31-730 et seq.) of the VPDES Permit Regulation, if deemed necessary by the department.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-160 Access control and advisory signs

A. There shall be no uncontrolled public access to reclamation systems, SRSs, and system storage facilities. Access to any wastewater treatment works directly associated with a reclamation system or SRS shall be controlled in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790). System storage ponds shall be enclosed with a fence or otherwise designed with appropriate features to discourage the entry of animals and unauthorized persons.

B. Where advisory signs or placards are required as described in subsections C and D of this section or 9VAC25-740-110 C 5 for above-ground storage facilities, each sign shall state, at a minimum, "CAUTION: RECLAIMED WATER – DO NOT DRINK" and have the equivalent standard international symbol for nonpotable water. The size of the sign and lettering used shall be such that it can be easily read by a person with normal vision at a distance of 50 feet. Alternate signage and wording that assures an equivalent degree of public notification and protection may be accepted by the department.

C. For all reuses of reclaimed water treated to Level 2, fencing around the site boundary is not required but public access shall be restricted. Advisory signs shall be posted around reuse areas or reuse site boundaries, and shall additionally state the nature of the reuse and no trespassing.

D. For all reuses of reclaimed water treated to Level 1, advisory signs or placards shall be posted within and at the boundaries of reuse areas. The advisory signs or placards shall additionally state the nature of the reuse. Examples of some notification methods that may be used by permittees include posting advisory signs at entrances to residential neighborhoods where reclaimed water is used for landscape irrigation and posting advisory signs at the entrance to a golf course and at the first and tenth tees.

E. Advisory signs shall be posted adjacent to impoundments or ponds, including landscape impoundments, used for nonsystem storage of reclaimed water.

F. For industrial reuses, advisory signs shall be posted around those areas of the industrial site where reclaimed water is used and at the main entrances to the industrial site to notify employees and the visiting public of the reclaimed water reuse. Access control beyond what is normally provided by the industry is not required.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-170 Use area requirements

A. Education and notification program. An education and notification program (program) shall be developed and submitted with the RWM plan in accordance with 9VAC25-740-100 C 1 for reuses that require Level 1 reclaimed water, will be in areas accessible to the public, or are likely to have human contact. For indirect potable reuse (IPR) projects that do not require a RWM plan, the program shall be submitted with the application to permit the project in accordance with 9VAC25-740-100 D. The program shall be the responsibility of the permittee to implement.

1. Education. The education component of the program shall:

a. For end users and the public likely to have contact with reclaimed water, provide information:

(1) To ensure that they are informed of the origin, nature, and characteristics of the reclaimed water; the manner in which the reclaimed water can be used safely; and uses for which the reclaimed water is prohibited or limited;

(2) To individual end users, at the time of their initial connection to the reclaimed water distribution system, which may be provided in the service agreement or contract with the permittee established in accordance with 9VAC25-740-100 C 1 d; and

(3) To individual end users, annually or more often after the reclaimed water distribution system is placed into operation for nonbulk irrigation reuse of reclaimed water not treated to achieve biological nutrient removal (BNR).

b. For IPR projects, provide information to generators of source water for reclamation and IPR that are other than SIUs. This information shall describe methods and practices to avoid or reduce the introduction of contaminants from domestic and commercial sources into the wastewater collection system prior to reclamation and shall be provided to individual generators annually or more often after the reclamation system is placed into operation.

c. Describe all modes of communication to be used to educate and inform, including, but not limited to, meetings, distribution of written information, the news media (i.e., newspapers, radio, television, or the Internet), and advisory signs as described in 9VAC25-740-160.

2. Notification. The notification component of the program shall contain procedures to notify end users and the affected public of discharges of substandard reclaimed water to reuse that can adversely impact human health, or the loss of reclaimed water service due to planned or unplanned causes.

a. Notifications required for discharge of substandard reclaimed water to reuse.

(1) For reuses other than IPR. Where treatment of the reclaimed water fails more than once during a seven-day period to comply with Level 1 disinfection or other standards developed in accordance with 9VAC25-740-70 D or 9VAC25-740-70 E for the protection of human health, and the noncompliant reclaimed water has been discharged to a reclaimed water distribution system or directly to a reuse, the permittee shall notify the end user of the treatment failures and advise the end user of precautions to be taken to protect human health when using the reclaimed water in areas accessible to the public or where human contact with the reclaimed water is likely. These precautions shall be implemented for a period of seven days or greater depending on the frequency and magnitude of the treatment failure.

(2) For IPR. Where treatment of the reclaimed water fails at any time to comply with standards specified in 9VAC25-740-90 C and is discharged to the water supply source (WSS), the permittee shall notify the owner or management of the waterworks that withdraws water from the affected WSS of the time, duration, volume, and pollutant characteristics of the noncompliant discharge within a period of less than or equal to half the shortest determined travel time between the reclamation system discharge and the waterworks intake, but in no case greater than eight hours. Such notification shall be implemented for a period of seven days or greater depending on the frequency and magnitude of the noncompliant reclaimed water discharge and the ability of subsequent multiple barriers as described in the permit application of the IPR project to mitigate the impact of the discharge on the WSS.

b. Notifications required for loss of service.

(1) For reuses other than IPR. Where reclaimed water service to end users will be interrupted due to planned causes, such as scheduled maintenance or repairs, the permittee shall provide advance notice to end users of the anticipated date and duration of the interrupted service. Where reclaimed water service to end users is disrupted by unplanned causes, such as an upset at the reclamation system, the permittee shall notify end users and the affected public of the disrupted service if it cannot or will not be restored within eight hours of discovery.

(2) For IPR. Where the discharge of the reclamation system to the WSS will be interrupted due to planned causes, such as scheduled maintenance or repairs, the permittee shall provide advance notice to the owner or management of the waterworks that withdraws water from the WSS of the anticipated date, duration, and cause for the interrupted discharge. Where the discharge of the reclamation system is interrupted by unplanned causes, such as an upset at the reclamation system, the permittee shall notify the waterworks owner or management of the interrupted discharge if the discharge cannot or will not be restored within eight hours of initial occurrence.

c. The notification component of the program shall describe all modes of communication that may be used to provide the notifications specified in subdivisions 2 a and b of this subsection. Modes of communication may include, but are not limited to, those described in subdivision 1 c of this subsection for the education component of the education and notification program.

B. Reclaimed water shall be used in a manner that is consistent with this chapter and with the conditions of the VPDES or VPA permit, such that public health and the environmental shall be protected.

C. Reclaimed water delivered to end users shall comply with reclaimed water standards required for the intended reuses at the point of delivery to end users.

D. There shall be no nuisance conditions resulting from the distribution, use, or storage of reclaimed water.

E. For all irrigation reuses of reclaimed water, the following shall be required:

1. There shall be no application of reclaimed water to the ground when it is saturated, frozen or covered with ice or snow, and during periods of rainfall.

2. The chosen method of irrigation shall minimize human contact with the reclaimed water.

3. Reclaimed water shall be prevented from coming into contact with drinking fountains, water coolers, or eating surfaces.

F. For bulk irrigation reuse of reclaimed water, the following shall be required:

1. Irrigation systems shall be designed, installed and adjusted to:

a. Provide uniform distribution of the reclaimed water over the irrigation site;

b. Prevent ponding or pooling of reclaimed water at the irrigation site;

c. Facilitate maintenance and harvesting of irrigated areas and preclude damage to the irrigation system from the use of maintenance or harvesting equipment;

d. Prevent aerosol carry-over from the irrigation site to areas beyond the setback distances described in subsection H of this section; and

e. Prevent clogging from algae or suspended solids.

2. All pipes, pumps, valve boxes and outlets of the irrigation system shall be designed, installed, and identified in accordance with 9VAC25-740-110 B.

3. Any reclaimed water runoff shall be confined to the irrigation reuse site unless authorized by the department.

G. Overspray of surface waters, including wetlands, from irrigation or other reuses of reclaimed water is prohibited.

H. Setback distances for irrigation reuses of reclaimed water.

1. For sites irrigated with reclaimed water treated to Level 1, the setback distances provided in Table 170-H1 are required:

| Table 170-H1 Setback Distances for Irrigation Reuses of Reclaimed Water Treated to Level 1 | | | --- | --- | | Feature Requiring Setback | Setback Distance | | a. Potable water supply wells and springs and public water supply intakes | 100 feet | | b. Nonpotable water supply wells | 10 feet | | c. Limestone rock outcrops and sinkholes | 50 feet |

2. For sites irrigated with reclaimed water treated to Level 1, no setback distances are required from occupied dwellings and outdoor eating, drinking and bathing facilities. However, aerosol formation shall be minimized within 100 feet of occupied dwellings and outdoor eating, drinking and bathing facilities through the use of low trajectory nozzles for spray irrigation, above-ground drip irrigation, or other means.

3. For sites irrigated with reclaimed water treated to Level 2, the setback distances provided in Table 170-H2 are required:

| Table 170-H2 Setback Distances for Irrigation Reuses of Reclaimed Water Treated to Level 2 | | | --- | --- | | Feature Requiring Setback | Setback Distance | | a. Potable water supply wells and springs and public water supply intakes | 200 feet | | b. Nonpotable water supply wells | 10 feet | | c. Surface waters, including wetlands | 50 feet | | d. Occupied dwellings | 200 feet | | e. Property lines and areas accessible to the public | 100 feet | | f. Limestone rock outcrops and sinkholes | 50 feet |

4. For sites irrigated with reclaimed water treated to Level 2, the setback distances may be reduced as follows:

a. Up to but not exceeding 50% from occupied dwellings and areas accessible to the public if it can be demonstrated that alternative measures shall be implemented to provide an equivalent level of public health protection. Such measures shall include, but are not limited to, disinfection of the reclaimed water equivalent to Level 1, application of the reclaimed water by methods that minimize aerosol formation (e.g., low trajectory nozzles for spray irrigation, above-ground drip irrigation), installation of permanent physical barriers to prevent migration of aerosols from the reclaimed water irrigation site, or any combination thereof. Written consent of affected landowners is required to reduce setback distances from occupied dwellings.

b. Up to 100 % from property lines with written consent from adjacent landowners.

c. To but not less than 100 feet from potable water supply wells and springs, or public water supply intakes if it can be demonstrated that disinfection of the reclaimed water is equivalent to Level 1 and there are no other constituents of the reclaimed water present in quantities sufficient to be harmful to human health.

d. To but not less than 25 feet from surface waters, including wetlands, where reclaimed water shall be applied by methods that minimize aerosol formation (e.g., low trajectory nozzles for spray irrigation, above-ground drip irrigation); or permanent physical barriers are installed to prevent the migration of aerosols from the reclaimed water irrigation site to surface waters.

5. Application of reclaimed water shall not occur during winds of sufficient strength to cause overspray or aerosol drift into or beyond the buffer zones or setbacks specified in subdivisions 1 through 4 of this subsection.

6. For irrigation reuses where more than one setback distance may apply, the greater setback distance shall govern.

7. Unless specifically stated otherwise, all setback distances shall be measured horizontally.

I. Minimum separation distances for in-ground reclaimed water distribution pipelines specified in 9VAC25-740-110 B 3, shall apply to in-ground piping for irrigation systems of reclaimed water.

J. A setback distance of 100 feet horizontally shall be maintained from indoor aesthetic features (i.e., decorative waterfalls or fountains) that use reclaimed water treated to Level 1, to adjacent indoor public eating and drinking facilities where the aesthetic features have the potential to create aerosols and eating and drinking facilities are within the same room or building space.

K. A setback distance of 300 feet horizontally shall be provided from an open cooling tower to the site property line where reclaimed water treated to Level 2 is used in the tower. No setback distance shall be required from an open cooling tower to the site property line where a drift or mist eliminator is installed and properly operated or reclaimed water treated to Level 1 disinfection standards is used in the tower. Treatment of the reclaimed water to Level 1 disinfection standards may be provided by the industrial end user through the contract or agreement established by the permittee in accordance with 9VAC25-740-100 C 1 d.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-180 Operational flow requirements

A. When the monthly average flow into a reclamation system or SRS reaches 95% of the designated design flow authorized by the VPDES or VPA permit issued to that system for each month of any three-month period, the permittee shall within 30 days notify the department in writing and within 90 days submit a plan of action for ensuring continued compliance with the terms of the permit.

B. The plan of action described in subsection A of this section shall include the necessary steps and a prompt schedule of implementation for controlling any current problem, or any problem that could be reasonably anticipated, resulting from high flows entering the reclamation system or SRS.

C. Upon receipt of the permittee's plan of action described in subsection A of this section, the department shall notify the owner whether the plan is approved or disapproved. If the plan is disapproved, such notification shall state the reasons and specify the actions necessary to obtain approval of the plan.

D. Failure to timely submit an adequate plan of action in accordance with subsection A of this section shall be deemed a violation of the permit.

E. Nothing herein shall in any way impair the authority of the department to take enforcement action under § 62.1-44.15, 62.1-44.23, or 62.1-44.32 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-190 Recordkeeping

A. Operating records shall be maintained at the reclamation system or a central depository within the reclaimed water distribution system for a period as specified in the VPDES or VPA permit issued to the facility. Operating records shall include all analyses specified in this chapter, records of operational problems, alarm failures, unit process and equipment breakdowns, diversions to reject storage or emergency storage, discharge to another permitted reuse system requiring a lower level of treatment, or disposal via a permitted effluent discharge; and all corrective or preventive action taken.

B. A monthly summary of operating records as specified under subsection A of this section shall be maintained at the facility.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008.

9VAC25-740-200 Reporting

A. Permittees of water reclamation systems and SRSs shall submit a monthly monitoring report to the department. The report shall include monitoring results for parameters contained in the VPDES or VPA permit to demonstrate compliance with applicable reclaimed water standards of this chapter.

B. Interruption or loss of reclaimed water supply or discharge of any untreated or partially treated water that fails to comply with standards specified in the VPDES or VPA permit to the service area of intended reuse, shall be reported in accordance with procedures specified in the permit. This report shall also contain a description of any notification provided in accordance with 9VAC25-740-170 A 2.

C. Permittees of reclaimed water distribution systems shall submit an annual report to the department on or before February 10 of the following year. The annual report shall, at a minimum:

1. Estimate the volume of reclaimed water distributed to the service area of the RWM plan, reported as monthly totals for a 12-month period from January 1 through December 31;

2. Provide for reclaimed water not treated to achieve BNR that is used within the service area of the RWM plan, the monthly average concentrations of total N and total P in the reclaimed water, an estimate of the monthly total volume of reclaimed water used for nonbulk irrigation and for bulk irrigation, the monthly total nutrient loads (N and P) to the service area resulting from nonbulk irrigation reuse and from bulk irrigation reuse, and the area in active reuse for nonbulk irrigation and for bulk irrigation within the service area, all reported for a 12-month period from January 1 through December 31; and

3. Provide a summary of ongoing education and notification program activities, including copies of education materials, as required by 9VAC25-740-170 A.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; amended, Virginia Register Volume 30, Issue 9, eff. January 29, 2014; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-740-210 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 24, Issue 26, eff. October 1, 2008; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Chapter 770 Virginia Financial Responsibility Requirements for Mitigation Associated with Tidal Dredging Projects

Part I Definitions

9VAC25-770-10 Definitions

Unless a different meaning is required by the context, the following terms as used in this chapter shall have the following meanings:

"Applicant" means a person applying for a VWP individual or general permit.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Compensation" or "compensatory mitigation" means actions taken that provide some form of substitute aquatic resource for the impacted aquatic resource.

"Compensatory mitigation plan" means the written plan describing the proposed compensatory mitigation activities required by 9VAC25-210-80 of the Virginia Water Protection Permit Program Regulation.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality (DEQ) or an authorized representative.

"Dredging" means a form of excavation in which material is removed or relocated from beneath surface waters.

"Excavate" or "excavation" means ditching, dredging, or mechanized removal of earth, soil or rock.

"General permit" means a permit authorizing a specified category of activities.

"In-lieu fee fund" means a monetary fund operated by a nonprofit organization or governmental agency that receives financial contributions from persons impacting wetlands or streams pursuant to an authorized permitted activity and that expends the moneys received to provide consolidated compensatory mitigation for permitted wetland or stream impacts.

"Law" means the State Water Control Law of Virginia.

"Mitigation" means sequentially avoiding and minimizing impacts to the maximum extent practicable, and then compensating for remaining unavoidable impacts of a proposed action.

"Mitigation bank" means a site providing off-site, consolidated compensatory mitigation that is developed and approved in accordance with all applicable federal and state laws or regulations for the establishment, use and operation of mitigation banks, and is operating under a signed banking agreement.

"Permittee" means the person who holds a VWP individual or general permit.

"Person" means any firm, corporation, association, or partnership, one or more individuals, or any governmental unit or agency of it.

"Practicable" means available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Surface water" means all state waters that are not ground water as defined in § 62.1-255 of the Code of Virginia.

"USACE" means the United States Army Corps of Engineers.

"VWP permit" means an individual permit issued by the department or a general permit issued as a regulation adopted by the board under § 62.1-44.15:5 of the Code of Virginia that authorizes activities otherwise unlawful under § 62.1-44.5 of the Code of Virginia or otherwise serves as the Commonwealth of Virginia's § 401 certification.

"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part II General Information

9VAC25-770-20 Applicability

This regulation applies to all persons required to obtain or modify a VWP permit pursuant to the Virginia Water Protection Permit Program Regulation, 9VAC25-210, for completion of dredging projects in tidal waters governed under Chapter 12 (§ 28.2-1200 et seq.) or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia.

State and federal government entities whose debts and liabilities are the debts and liabilities of the Commonwealth of Virginia or the United States have the requisite financial strength and stability to fulfill their financial responsibility obligations and are not required to comply with the requirements of this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004.

9VAC25-770-30 Compliance date

An applicant for a VWP permit for completion of a dredging project in tidal waters must file proof of mitigation bank credit purchase or in-lieu fee fund donation or a financial responsibility mechanism with the department at least 60 days prior to onset of any activity in permitted impact areas. The compensatory mitigation plan and financial responsibility documentation or proof of mitigation bank credit purchase or in-lieu fee fund donation shall be submitted by the permittee and approved by the department prior to the onset of any dredging activities in permitted impact areas.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-40 Revocation or suspensions

Failure to provide or maintain adequate evidence of financial responsibility in accordance with this regulation shall be a basis for termination of a VWP permit. Termination of a VWP permit shall be in accordance with 9VAC25-210-180.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004.

9VAC25-770-50 Forfeitures

Forfeiture of any financial obligation imposed pursuant to this chapter shall not relieve any holder of a VWP permit from any obligations to comply with the provisions of the Virginia Water Protection Permit Program Regulation (9VAC25-210) and any other applicable regulations or any other legal obligations for the consequences of abandoning the project.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004.

9VAC25-770-60 Transfer of permit

The new permittee must submit proof of mitigation bank credit purchase or in-lieu fee fund donation or evidence of financial responsibility to the department in accordance with this chapter within 60 days of the transfer of the permit from the existing permittee to the new permittee. If the old permittee has completed mitigation activities by filing proof of mitigation bank credit purchase or in-lieu fee fund donation before the transfer of the permit, the new permittee is not required to do so or to provide any additional evidence of financial responsibility. When a transfer of the permit occurs, the old permittee shall continue to comply with the requirements of this chapter until the new permittee has demonstrated that he is complying with the requirements of this chapter. The new permittee shall demonstrate compliance with this chapter within 60 days of the date of the transfer of the permit. Upon demonstration to the department by the new permittee of compliance with this chapter, the department shall notify the old permittee that he or she no longer needs to comply with this chapter as of the date of demonstration.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

Part III Compensatory Mitigation Plan And Financial Responsibility Criteria

9VAC25-770-70 Compensatory mitigation requirements

A. Compensatory mitigation for any project subject to a VWP permit must include measures to avoid and reduce impacts to surface waters to the maximum extent practicable, and where impacts cannot be avoided, the means by which compensation will be accomplished to achieve no net loss of wetland acreage and function.

B. The applicable compensatory mitigation standards are described in 9VAC25-210-80 and 9VAC25-210-115 of the Virginia Water Protection Permit Program Regulation. All aspects of the compensatory mitigation plan, including documentation of financial responsibility or proof of mitigation bank credit purchase or in-lieu fee fund donation, shall be finalized, submitted and approved by the department prior to the onset of any dredging activities in permitted impact areas.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-80 Cost estimates for in-lieu fee fund donations and mitigation bank credit purchases

A. Permittees with compensatory mitigation plans that provide for donations to in-lieu fee funds must submit to the department as part of the final mitigation plan proof that the entity is willing to accept the contribution along with a detailed, written cost estimate.

B. Permittees with compensatory mitigation plans that provide for purchase of mitigation bank credits must provide to the department as part of the final mitigation plan proof that the selected bank has available credits, along with a detailed, written cost estimate.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-90 Cost estimate for compensatory mitigation activities other than in-lieu fee fund donations or mitigation bank credit purchases

A. The permittee shall prepare for approval by the department a detailed written estimate of the cost of implementing compensatory mitigation activities. The written cost estimate shall be submitted concurrently with the final compensatory mitigation plan.

1. The compensatory mitigation plan cost estimate shall equal the full cost of implementation of the plan.

2. The compensatory mitigation cost estimate shall be based on and include the costs to the permittee of hiring a third party to implement the compensatory mitigation plan. The third party may not be either a parent corporation or subsidiary of the permittee.

3. The compensatory mitigation cost estimate may not incorporate any salvage value that may be realized by the sale of materials, facility structures or equipment, land or other facility assets at the time of implementation of the plan.

B. If the length of the estimated project life exceeds one year, the permittee shall add to the total cost estimate an amount to represent an appropriate rate of inflation over the period covering the life of the project.

C. During the term of the VWP permit, the permittee shall revise the cost estimate concurrently with any revision made to the compensatory mitigation plan or at any time unforeseen circumstances occur which increase the implementation cost. The revised implementation cost estimate shall be adjusted for inflation as specified in subsection B of this section.

D. During the term of the VWP permit, the permittee may reduce the cost estimate and the amount of financial responsibility provided under this chapter, if it can be demonstrated that the cost estimate exceeds the cost of implementation of the compensatory mitigation plan. The permittee shall obtain the approval of the department prior to reducing the amount of financial responsibility.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-100 Payment of in-lieu fee fund donations and mitigation bank credit purchases

A. Permittees with compensatory mitigation plans that provide for donations to in-lieu fee funds or mitigation bank credit purchases shall make the entire donation or purchase before the onset of activity in the permitted impact areas. Permittees shall submit documentation of the payment or donation to the department for approval a minimum of 60 days prior to onset of activity in permitted areas.

B. A permittee may satisfy the requirements of this section, wholly or in part, by submitting a photocopy of the documentation submitted to the USACE pursuant to § 404 of the Clean Water Act (33 USC § 1251 et seq., as amended in 1987) documenting the donation or purchase for the current project along with a photocopy of the document issued by the USACE indicating approval of the documentation, if applicable. Any documentation of the in-lieu fee fund donation or mitigation banking credit purchase pursuant to this subsection must demonstrate clearly that the donation or purchase was made to provide compensatory mitigation for the project that is the subject of the VWP permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-110 Allowable financial mechanisms for compensatory mitigation activities other than in-lieu fee fund donations or mitigation bank credit purchases

A. If a permittee does not purchase mitigation bank credits or donate to an in-lieu fee fund as part of his compensatory mitigation plan, the permittee must demonstrate financial responsibility using one of the mechanisms specified in 9VAC25-770-120 through 9VAC25-770-150. The mechanisms used to demonstrate evidence of financial responsibility shall ensure that the funds necessary to meet the costs of completing compensatory mitigation requirements for the permitted project as described in 9VAC25-770-70 will be available whenever they are needed. Financial responsibility mechanisms shall be in the amount equal to the cost estimate approved by the department.

B. The permittee shall provide continuous coverage to implement the compensatory mitigation plan until released from financial responsibility requirements by the department.

C. The director may reject the proposed evidence of financial responsibility if the mechanism submitted does not adequately assure that funds will be available to complete the necessary compensatory mitigation activities. The permittee shall be notified in writing within 60 days of receipt of a complete financial responsibility submission of the tentative decision to accept or reject the proposed evidence.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-120 Surety bond

A. A permittee may satisfy the requirements of this chapter by obtaining a surety bond that conforms to the requirements of this section and by submitting an originally signed duplicate of the bond to the department. The surety company issuing the bond shall be licensed to operate as a surety in the Commonwealth of Virginia and be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.

B. Under the terms of the bond, the surety will become liable on the bond obligation when the permittee fails to perform as guaranteed by the bond.

C. The bond shall guarantee that the permittee or any other authorized person will:

1. Implement compensatory mitigation in accordance with the approved compensatory mitigation plan and other requirements in any VWP permit for the project;

2. Implement the compensatory mitigation plan following an order to do so issued by the department or by a court.

D. The surety bond shall guarantee that the permittee shall provide alternate evidence of financial responsibility as specified in this article within 60 days after receipt by the department of a notice of cancellation of the bond from the surety.

E. If the approved cost estimate increases to an amount greater than the amount of the penal sum of the bond, the permittee shall, within 60 days after the increase, cause the penal sum of the bond to be increased to an amount at least equal to the new estimate and submit a revised mechanism to the department. Whenever the cost estimate decreases, the penal sum may be reduced to the amount of the cost estimate following written approval by the department. Notice of an increase or decrease in the penal sum shall be sent to the department by certified mail within 60 days after the change.

F. The bond shall remain in force for its term unless the surety sends written notice of cancellation by certified mail to the permittee and to the department. Cancellation cannot occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by the department as shown on the signed return receipt. The surety shall provide written notification to the department by certified mail no less than 120 days prior to the expiration date of the bond, that the bond will expire and the date the bond will expire.

G. The department shall cash the surety bond if it is not replaced 60 days prior to expiration with alternate evidence of financial responsibility acceptable to the department or if the permittee fails to fulfill the conditions of the bond.

H. In regards to implementation of a compensatory mitigation plan either by the permittee, by an authorized third party, or by the surety, proper implementation of a compensatory mitigation plan shall be deemed to have occurred when the department determines that compensatory mitigation has been completed. Such implementation shall be deemed to have been completed when the provisions of the permittee's approved compensatory mitigation plan have been executed and the provisions of any other permit requirements or enforcement orders relative to the compensatory mitigation plan have been complied with.

I. The surety bond shall be worded as described in 9VAC25-770-190 A, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-130 Letter of credit

A. A permittee may satisfy the requirements of this chapter by obtaining an irrevocable standby letter of credit that conforms to the requirements of this section and by submitting an originally signed duplicate of the letter of credit to the department. The issuing institution shall be an entity that has the authority to issue letters of credit in the Commonwealth of Virginia and whose letter-of-credit operations are regulated and examined by a federal agency or the State Corporation Commission.

B. The letter of credit shall be irrevocable and issued for a period of at least one year in an amount at least equal to the current cost estimate for implementation of the compensatory mitigation plan. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the issuing institution decides not to extend the letter of credit beyond the current expiration date, it shall, at least 120 days before the expiration date, notify both the permittee and the department by certified mail of that decision. The 120-day period will begin on the date of receipt by the department as shown on the signed return receipt. If the letter of credit is canceled by the issuing institution, the permittee shall obtain alternate evidence of financial responsibility to be in effect prior to the expiration date of the letter of credit.

C. Whenever the approved cost estimate increases to an amount greater than the amount of credit, the permittee shall, within 60 days of the increase, cause the amount of credit to be increased to an amount at least equal to the new estimate and submit a revised mechanism to the department. Whenever the cost estimate decreases, the letter of credit may be reduced to the amount of the new estimate following written approval by the department.

D. The department shall cash the letter of credit if it is not replaced 60 days prior to expiration with alternate evidence of financial responsibility acceptable to the department or if the permittee has failed to implement compensatory mitigation in accordance with the approved plan or other permit or special order requirements.

E. In regards to implementation of a compensatory mitigation plan either by the permittee or by an authorized third party, proper implementation of a compensatory mitigation plan shall be deemed to have occurred when the department determines that compensatory mitigation has been completed. Such implementation shall be deemed to have been completed when the provisions of the permittee's approved compensatory mitigation plan have been executed and the provisions of any other permit requirements or enforcement orders relative to the compensatory mitigation plan have been complied with.

F. The permittee may cancel the letter of credit only if alternate evidence of financial responsibility acceptable to the department is substituted as specified in this chapter or if the permittee is released by the department from the requirements of this regulation.

G. The department shall return the original letter of credit to the issuing institution for termination when:

1. The permittee substitutes acceptable alternate evidence of financial responsibility for implementation of the compensatory mitigation plan as specified in this chapter; or

2. The department notifies the permittee that he is no longer required by this chapter to maintain evidence of financial responsibility for implementation of the compensatory mitigation plan for the project.

H. The letter of credit shall be worded as described in 9VAC25-770-190 B, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-140 Certificate of deposit

A. A permittee may satisfy the requirements of this chapter, wholly or in part, by obtaining a certificate of deposit and assigning all rights, title and interest of the certificate of deposit to the department, conditioned so that the permittee shall comply with the approved compensatory mitigation plan filed for the project. The issuing institution shall be an entity that has the authority to issue certificates of deposit in the Commonwealth of Virginia and whose operations are regulated and examined by a federal agency or the State Corporation Commission (Commonwealth of Virginia). The permittee must submit the originally signed assignment and the originally signed certificate of deposit, if applicable, to the department.

B. The amount of the certificate of deposit shall be at least equal to the current compensatory mitigation cost estimate for the project for which the permit application has been filed or any part thereof not covered by other financial responsibility mechanisms. The permittee shall maintain the certificate of deposit and assignment until all activities required by the approved compensatory mitigation plan have been completed.

C. The permittee shall be entitled to demand, receive and recover the interest and income from the certificate of deposit as it becomes due and payable as long as the market value of the certificate of deposit used continues to at least equal the amount of the current cost estimate for compensatory mitigation activities.

D. The department shall cash the certificate of deposit if the permittee has failed to implement compensatory mitigation in accordance with the approved plan or other permit or special order requirements.

E. In regards to implementation of a compensatory mitigation plan either by the permittee or by an authorized third party, proper implementation of a compensatory mitigation plan shall be deemed to have occurred when the department determines that compensatory mitigation has been completed. Such implementation shall be deemed to have been completed when the provisions of the permittee's approved compensatory mitigation plan have been executed and the provisions of any other permit requirements or enforcement orders relative to the compensatory mitigation plan have been complied with.

F. Whenever the approved compensatory mitigation cost estimate increases to an amount greater than the amount of the certificate of deposit, the permittee shall, within 60 days of the increase, cause the amount of the certificate of deposit to be increased to an amount at least equal to the new estimate or obtain another certificate of deposit to cover the increase. Whenever the cost estimate decreases, the permittee may reduce the amount of the certificate of deposit to the new estimate following written approval by the department.

G. The department shall return the original assignment and certificate of deposit, if applicable, to the issuing institution for termination when:

1. The permittee substitutes acceptable alternate evidence of financial responsibility for implementation of the compensatory mitigation plan as specified in this chapter; or

2. The department notifies the permittee that he is no longer required by this chapter to maintain evidence of financial responsibility for implementation of the compensatory mitigation plan for the project.

H. The assignment shall be worded as described in 9VAC25-770-190 C, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-150 Federal documentation

A permittee may satisfy the requirements of this chapter, wholly or in part, by submitting a photocopy of the financial responsibility documentation submitted to the USACE pursuant to § 404 of the Clean Water Act (33 USC § 1251 et seq., as amended in 1987) for the current project along with a photocopy of the document issued by the USACE indicating approval of the financial responsibility, if applicable. Any demonstration of financial responsibility pursuant to this subsection must apply clearly to the project and compensatory mitigation activities that are the subject of the VWP permit.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004.

9VAC25-770-160 Release of permittee from the financial responsibility requirements

A. The permittee shall submit a notice that compensatory mitigation has been completed in accordance with the requirements of the approved compensatory mitigation plan, permit or other order, within 60 days of completion of all compensatory mitigation requirements. Unless the department has reason to believe that the compensatory mitigation activities have not been implemented in accordance with the appropriate plan or other requirements, the department shall notify the permittee in writing that the permittee is no longer required to maintain evidence of financial responsibility for the project. Such notice shall release the permittee only from the requirements for financial responsibility for the project; it does not release the permittee from legal responsibility for meeting the compensatory mitigation requirements.

B. Where a VWP permit for the project is no longer required under law, the department shall notify the permittee in writing that the permittee is no longer required to maintain evidence of financial responsibility for the project. Such notice shall release the permittee only from the requirements for financial responsibility for the project.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-170 Incapacity of Financial Providers, permittees

A. A permittee shall notify the director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the permittee as debtor, within 10 days after commencement of the proceeding.

B. A permittee who fulfills the requirements of this chapter by obtaining a letter of credit, a surety bond, or a certificate of deposit will be deemed to be without the required evidence of financial responsibility in the event of bankruptcy of the issuing institution, or a suspension or revocation of the authority of the institution issuing a surety bond, letter of credit, or certificate of deposit to issue such mechanisms. The permittee shall establish other financial responsibility within 60 days of such event.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004.

9VAC25-770-180 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-770-190 Wording of the instruments

A. Wording of surety bond.

SURETY BOND

Date bond executed:

---

Period of coverage:

---

Effective date:

---

Principal: (legal name and address of owner or operator)

---

Type of organization: (insert "individual" "joint venture," "partnership," "corporation," or appropriate identification of type of organization)

---

State of incorporation (if applicable):

---

Surety: (name(s) and business address)

---

Scope of Coverage:

(List the name of the project and the physical address where the project is located and VWP permit number. List the coverage guaranteed by the bond: "for completion of compensatory mitigation activities")

Penal sum of bond: $________________________

Surety's bond number: ______________________________

Know All Persons by These Presents, that we, the Principal and Surety(ies), hereto are firmly bound to the Department of Environmental Quality, Commonwealth of Virginia, ("DEQ") in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sums jointly and severally only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sums only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas said Principal is required under § 62.1-44.15 (5c) of the State Water Control Law of the Code of Virginia to demonstrate financial responsibility to implement a plan to complete the required compensatory mitigation activities described in a permit, order or regulations;

Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully implement the compensatory mitigation plan in accordance with the applicable regulations and the Director of the DEQ's instructions to implement the plan for the project described above, or if the Principal shall provide alternate documentation of financial responsibility, acceptable to DEQ and obtain the Director's written approval of such assurance, within 60 days after the date the notice of cancellation is received by the Director of the DEQ from the Surety(ies), then this obligation shall be null and void; otherwise it is to remain in full force and effect.

The Surety(ies) shall become liable on this bond when the Principal has failed to fulfill the conditions described above. Upon notification by the Director of the DEQ that the owner or operator has failed to fulfill the conditions above or that the DEQ has determined that the Principal has failed to complete the project described above, the Surety(ies) shall either implement the compensatory mitigation plan or forfeit the full amount of the penal sum as directed by the Director of the DEQ under 9VAC25-770-120.

The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the penal sum shown on the face of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.

The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and to the Director of the DEQ, Commonwealth of Virginia, P.O. Box 1105, Richmond, Virginia 23218 provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by the Principal and Director of the DEQ as shown on the signed return receipt.

In Witness Thereof, the Principal and Surety(ies) have executed this Bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in 9VAC25-770-190 A as such regulations were constituted on the date this bond was executed.

PRINCIPAL

(Signature(s))

(Name(s))

(Title(s))

(Corporate seal)

CORPORATE SURETY(IES)

(Name and address)

State of Incorporation:

Liability limit: $ ______________

(Signature(s))

(Name(s) and title(s))

(Corporate seal)

(For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.)

Bond premium: $ ______________

B. Wording of letter of credit.

IRREVOCABLE STANDBY LETTER OF CREDIT

(Name and address of issuing institution)

Beneficiary:

Director

Department of Environmental Quality (DEQ)

P. O. Box 1105

1111 East Main Street, Suite 1400

Richmond, Virginia 23218

Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No.________ in your favor, at the request and for the account of (permittee) of (address) up to the aggregate amount of (in words) U.S. dollars, ($(insert dollar amount)), available upon presentation of

(1) your sight draft, bearing reference to this letter of credit, No._______ and

(2) your signed statement reading as follows:

"I certify that the amount of the draft is payable pursuant to regulations issued under authority of § 62.1- 44.15 (5c) of the Code of Virginia."

This letter of credit may be drawn on to implement the compensatory mitigation plan for the project identified below in the amount of (in words) $ (insert dollar amount). (Name and physical address of the project assured by this mechanism and VWP permit number.)

This letter of credit is effective as of (date) and shall expire on (date), but such expiration date shall be automatically extended for a period of (at least the length of the original term) on (expiration date) and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify the Director of the DEQ and the permittee by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event that the permittee is so notified, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by the Director of the DEQ and the permittee, as shown on the signed return receipt.

Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall submit the amount of the draft directly to DEQ in accordance with your instructions.

I hereby certify that I am authorized to execute this letter of credit on behalf of (issuing institution) and I hereby certify that the wording of this letter of credit is identical to the wording required in 9VAC25-770-190 B as such regulations were constituted on the date shown immediately below.

| Attest: | | | --- | --- | | | | | Signature | Date | | | | | | | | Name | Title |

This credit is subject to (insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce," or "the Uniform Commercial Code").

C. Wording of assignment of certificate of deposit.

ASSIGNMENT OF CERTIFICATE OF DEPOSIT ACCOUNT

| | | | --- | --- | | City | , 20 |

FOR VALUE RECEIVED, the undersigned assigns all right, title and interest to the Virginia Department of Environmental Quality (DEQ), Commonwealth of Virginia and its successors and assigns the Virginia DEQ the principal amount of the instrument, including all moneys deposited now or in the future to that instrument, indicated below:

() If checked here, this assignment includes all interest now and hereafter accrued.

Certificate of Deposit Account No.

This assignment is given as security to the Virginia DEQ in the amount of

| Dollars ($ | | ). | | --- | --- | --- | | | | |

Continuing Assignment. This assignment shall continue to remain in effect for all subsequent terms of the automatically renewable certificate of deposit.

Assignment of Document. The undersigned also assigns any certificate or other document evidencing ownership to the Virginia DEQ.

Additional Security. This assignment shall secure the payment of any financial responsibility obligations of the (name of permittee) to the Virginia DEQ for compensatory mitigation activities at the (project name and permit number) located at (physical address).

Application of Funds. The undersigned agrees that all or any part of the funds of the indicated account or instrument may be applied to the payment of any and all financial responsibility obligations of (name of permittee) to the Virginia DEQ for compensatory mitigation activities at the (project name and address). The undersigned authorizes the Virginia DEQ to withdraw any principal amount on deposit in the indicated account or instrument including any interest, if indicated, and to apply it in the Virginia DEQ's discretion to fund compensatory mitigation at the (project name) in the event of (permittee name)'s failure to implement compensatory mitigation activities to the DEQ's satisfaction. The undersigned agrees that the Virginia DEQ may withdraw any principal and/or interest from the indicated account or instrument without demand or notice. The undersigned agrees to assume any and all loss of penalty due to federal regulations concerning the early withdrawal of funds. Any partial withdrawal of principal or interest shall not release this assignment.

The party or parties to this Assignment set their hand or seals, or if corporate, has caused this assignment to be signed in its corporate name by its duly authorized officers and its seal to be affixed by authority of its board of Directors the day and year above written.

| | SEAL | | --- | --- | | (Owner) | | | | (Print name) | | | SEAL | | (Owner) | | | | (Print name) |

THE FOLLOWING SECTION IS TO BE COMPLETED BY THE BRANCH OR LENDING OFFICE:

The signature(s) as shown above compare correctly with the name(s) as shown on record as owner(s) of the Certificate of Deposit indicated above. The above Assignment has been properly recorded by placing a hold in the amount of $_________________ for the benefit of the Virginia DEQ.

() If checked here, the accrued interest on the Certificate of Deposit indicated above has been maintained to capitalize versus being mailed by check or transferred to a deposit account.

I certify that the wording of this Assignment is identical to the wording required in 9VAC25-770-190 C as such regulations were constituted on the date shown immediately below.

| (Signature) | (Date) | | --- | --- | | | (Print name) | | | (Title) |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 20, Issue 23, eff. August 25, 2004; Errata 20:24 VA.R. 2981 August 9, 2004; amended, Virginia Register Volume 34, Issue 13, eff. February 19, 2018.

Chapter 790 Sewage Collection and Treatment Regulations

Article 1 Definitions and Terms

9VAC25-790-10 Definitions

Unless otherwise specified, for the purpose of this chapter the following words and terms shall have the following meanings unless the context clearly indicates otherwise:

"Area engineer" means the licensed professional engineer at the Department of Environmental Quality responsible for review and approval of construction plans and related materials who serves the area where a sewerage system or treatment works is located.

"Biosolids" means a sewage sludge that has received an established treatment for required pathogen control and is treated or managed to reduce vector attraction to a satisfactory level and contains limited levels of pollutants, such that it is acceptable for use by land application, marketing or distribution in accordance with the Virginia Pollution Abatement Permit Regulation (9VAC25-32) and the Virginia Pollutant Discharge Elimination System Permit Regulation (9VAC25-31).

"Biosolids use facility" means a type of treatment works that specifically treats or stores biosolids.

"Board" means the Virginia State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"CTC" means a Certificate to Construct issued in accordance with the provisions of this chapter. This certificate will normally be in the form of a letter granting authorization for construction.

"CTO" means a Certificate to Operate issued in accordance with the provisions of this chapter. This certificate will normally be in the form of a letter granting authorization for operation.

"Critical areas/waters" means areas/waters in proximity to shellfish waters, a public water supply, recreation or other waters where health or water quality concerns are identified by the Virginia Department of Health or the State Water Control Board.

"Conventional design" means the designs for unit operations (treatment system component) or specific equipment that has been in satisfactory operation for a period of one year or more, for which adequate operational information has been submitted to the department to verify that the unit operation or equipment is designed in substantial compliance with this chapter. Equipment or processes not considered to be conventional may be deemed as alternative or nonconventional.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or an authorized representative.

"Discharge" means (when used without qualification) discharge of a pollutant.

"Effluent limitations" means any restrictions imposed by the board or department on quantities, discharge rates, and concentrations of pollutants that are discharged from point sources into surface waters, the waters of the contiguous zone, or the ocean.

"Exceptional quality biosolids" means biosolids that have received an established level of treatment for pathogen control and vector attraction reduction and contain known levels of pollutants, such that they may be marketed or distributed for public use in accordance with this chapter.

"Indirect discharger" means a nondomestic discharger introducing pollutants to a POTW.

"Industrial wastes" means liquid or other wastes resulting from any process of industry, manufacture, trade or business, or from the development of any natural resources.

"Land application" means the distribution of treated wastewater of acceptable quality, referred to as effluent, or supernatant from biosolids use facilities or stabilized sewage sludge of acceptable quality, referred to as biosolids, upon, or insertion into, the land with a uniform application rate for the purpose of assimilation, utilization, or pollutant removal. Bulk disposal of stabilized sludge in a confined area, such as in landfills, is not land application.

"Licensee" means an individual holding a valid license issued by the Board for Waterworks and Wastewater Works Operators.

"Licensed operator" means a licensee in the class of the treatment works who is an operator at the treatment works.

"Local review" means a program for obtaining advance approval by the director of an owner's general local plans and specifications for future connections to, or extensions of, existing sewerage systems and of a plan for implementing them, in lieu of obtaining a CTC and CTO for each project within the scope of the plan.

"Manual" and "Manual of Practice" means Part III (9VAC25-790-310 et seq.) of the Sewage Collection and Treatment Regulations.

"Operate" means the act of making a decision on one's own volition (i) to place into or take out of service a unit process or unit processes or (ii) to make or cause adjustments in the operation of a unit process or unit processes at a treatment works.

"Operating staff" means individuals employed or appointed by any owner to work at a treatment works. Included in this definition are licensees whether or not their license is appropriate for the classification and category of the treatment works.

"Operator" means any individual employed or appointed by any owner, and who is designated by such owner to be the person in responsible charge, such as a supervisor, a shift operator, or a substitute in charge, and whose duties include testing or evaluation to control treatment works operations. Not included in this definition are superintendents or directors of public works, city engineers, or other municipal or industrial officials whose duties do not include the actual operation or direct supervision of a treatment works.

"Owner" means the Commonwealth or any of its political subdivisions, including, but not limited to, sanitation district commissions and authorities, and any public or private institution, corporation, association, firm or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any actual or potential discharge of sewage, industrial wastes, or other wastes to state waters, or any facility or operation that has the capability to alter the physical, chemical, or biological properties of state waters in contravention of § 62.1-44.5 of the State Water Control Law.

"Permit" in the context of this chapter means a CTC or a CTO. Permits issued under 9VAC25-31 or 9VAC25-32 will be identified respectively as VPDES permits or VPA permits.

"Primary sludge" means sewage sludge removed from primary settling tanks designed in accordance with this chapter that is readily thickened by gravity thickeners designed in accordance with this chapter.

"Point source" means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff.

"Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into the water. It does not mean:

1. Sewage from vessels; or

2. Water, gas, or other material that is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by the department, and if the department determines that the injection or disposal will not result in the degradation of ground or surface water resources.

"Pollution" means such alteration of the physical, chemical or biological properties of any state waters as will, or is likely to, create a nuisance or render such waters (i) harmful or detrimental or injurious to the public health, safety or welfare, or to the health of animals, fish or aquatic life; (ii) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural or for other reasonable uses; provided that: (a) an alteration of the physical, chemical or biological property of state waters, or either a discharge, or a deposit, of sewage, industrial wastes, or other wastes to state waters by any owner, which by itself is not sufficient to cause pollution, but which, in combination with such alteration of, or discharge, or deposit to state waters by other owners is sufficient to cause pollution; (b) the discharge of untreated sewage by any owner into state waters; and (c) contributing to the contravention of standards of water quality duly established by the State Water Control Board are "pollution" for the terms and purposes of this chapter.

"Reliability" means a measure of the ability of a component or system to perform its designated function without failure or interruption of service.

"Responsible charge" means designation by the owner of any individual to have the duty and authority to operate a treatment works.

"Settled sewage" is effluent from a basin in which sewage is held or remains in quiescent conditions for 12 hours or more and the residual sewage sludge is not reintroduced to the effluent following the holding period. Sewage flows not in conformance with these conditions providing settled sewage shall be defined as nonsettled sewage.

"Sewage" means the water-carried and nonwater-carried human excrement, kitchen, laundry, shower, bath or lavatory wastes, separately or together with such underground, surface, storm and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments or other places.

"Sewage sludge" or "sludge" means any solid, semisolid, or liquid residues which contain materials removed from municipal or domestic wastewater during treatment including primary and secondary residues. Other residuals or solid wastes consisting of materials collected and removed by sewage treatment, septage and portable toilet wastes are so included in this definition. Liquid sludge contains less than 15% dry residue by weight. Dewatered sludge contains 15% or more dry residue by weight.

"Sewerage system" or "sewage collection system" means a sewage collection system consisting of pipelines or conduits, pumping stations and force mains and all other construction, devices and appliances appurtenant thereto, used for the collection and conveyance of sewage to a treatment works or point of ultimate disposal.

"Shall" or "will" means a mandatory requirement.

"Should" means a recommendation.

"Sludge management" means the treatment, handling, transportation, use, distribution or disposal of sewage sludge.

"State waters" means all water, on the surface and under the ground, wholly or partially within, or bordering the state or within its jurisdiction.

"Substantial compliance" means designs that do not exactly conform to the guidelines set forth in Part III as contained in documents submitted pursuant to this chapter but whose construction will not substantially affect health considerations or performance of the sewerage system or treatment works.

"Subsurface disposal" means a sewerage system involving the controlled distribution of treated sewage effluent below the ground surface in a manner that may provide additional treatment and assimilation of the effluent within the soil so as not to create a point source discharge or result in pollution of surface waters.

"Surface waters" means all state waters that are not ground water as defined in § 62.1-255 of the Code of Virginia.

"Toxic pollutant" means any pollutant listed as toxic under § 307(a)(1) or, in the case of sludge use or disposal practices, any pollutant identified in regulations implementing § 405(d) of the Clean Water Act.

"Treatment works" means any device or system used in the storage, treatment, disposal or reclamation of sewage, sewage sludge or combinations of sewage and industrial wastes, including but not limited to pumping, power and other equipment and their appurtenances, septic tanks and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for ultimate disposal of residues or effluents resulting from such treatment. Treatment works does not mean land application of biosolids on private land, as permitted under the Virginia Pollution Abatement Permit Regulation (9VAC25-32) and the Virginia Pollutant Discharge Elimination System Permit Regulation (9VAC25-31).

"Virginia Pollution Abatement (VPA) permit" means a document issued by the department pursuant to 9VAC25-32 or a general permit issued as a regulation adopted by the board in accordance with 9VAC25-32-260, authorizing pollutant management activities under prescribed conditions.

"Virginia Pollutant Discharge Elimination System (VPDES) Permit" means a document issued by the department pursuant to 9VAC25-31 or a general permit issued as a regulation adopted by the board in accordance with 9VAC25-31-170, authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters and the use or disposal of sewage sludge. Under the approved state program, a VPDES permit is equivalent to an NPDES permit.

"Water quality standards" means the narrative statements for general requirements and numeric limits for specific requirements, that describe the water quality necessary to meet and maintain reasonable and beneficial uses.

Such standards are established by the State Water Control Board under § 62.l-44.15(3a) of the Code of Virginia as the State Water Quality Standards (9VAC25-260).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-10 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-10, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Errata 20:12 VA.R. 1526 February 23, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 39, Issue 5, eff. November 23, 2022.

Article 2 Procedures

9VAC25-790-20 Compliance with the Administrative Process Act

Article 2 Procedures

The provisions of the Virginia Administrative Process Act (Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia) and Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 govern the adoption and enforcement of the regulations and standards contained in the chapter. All procedures outlined in this article are in addition to, or in compliance with, the requirements of that Act.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-30 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-20, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-30 Extent

A. Powers and procedures. The department reserves the right to utilize any lawful procedure for the enforcement of this chapter and standards contained in this chapter.

B. Establishment. Authority for the regulations and standards contained in this chapter for the operation, construction, or modification of sewerage systems or treatment works are established, pursuant to § 62.1-44.19 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-40 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-30, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Errata 20:12 VA.R. 1526 February 23, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-790-40 Variances

A. The director may grant a variance to a design or operational standard by following the appropriate procedures set forth in this chapter.

B. Requirements. The director may grant a variance if he finds that the hardship imposed (which may be economic) outweighs the benefits that may be received by the public and that the granting of such variance does not subject the public to unreasonable health risks or environmental pollution.

C. Application. Any owner may apply in writing for a variance. The application should be sent to the appropriate area engineer as specified, for evaluation. The application shall include:

1. A citation of the design or operational standard from which a variance is requested.

2. The nature and duration of variance requested.

3. A statement of the hardship to the owner and the anticipated impacts to the public health and welfare if a variance were granted.

4. Suggested conditions that might be imposed on the granting of a variance that would limit its detrimental impact on public health and welfare.

5. Other information, if any, believed to be pertinent by the applicant.

6. Such other information as may be required to make the determination in accordance with this chapter.

D. Consideration. The director shall act on any variance request submitted pursuant to this chapter within 60 days of receipt of request. In the director's consideration of whether a sewerage systems or treatment works variance should be granted, the director shall consider such factors as the following:

1. The effect that such a variance would have on the adequate operation of the sewerage systems or treatment works, including operator safety (in accordance with requirements of the Virginia Department of Labor and Industry, Occupational Safety and Health Administration (VOSH)).

2. The cost and other economic considerations imposed by this requirement;

3. The effect that such a variance would have on the protection of the public health and welfare, or the environment.

E. Disposition. The director will offer the owner an opportunity to participate or become informed as to the variance processing and decisions.

1. The director may grant the variance request and if the director proposes to deny the variance he shall provide the owner an opportunity to an informal fact-finding proceeding as provided in § 2.2-4019 of the Administrative Process Act. Following this opportunity for an informal fact-finding proceeding, the director may reject any application for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision.

2. If the director proposes to grant a variance request submitted pursuant to this chapter, or standards contained in this chapter, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, the sewerage systems or treatment works involved, and shall specify the period of time for which the variance will be effective. Such notice shall provide that the variance will be terminated when the sewerage systems or treatment works come into compliance with the applicable design or operational standard and may be terminated upon a finding by the director that the sewerage systems or treatment works has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the variance shall be 15 days following its issuance.

F. Posting. All variances granted for the design or operation of any sewerage systems or treatment works are nontransferable. Any requirements of the variance shall become part of the permit of the sewerage systems or treatment works subsequently granted by the director.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-70 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-40, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Errata 20:12 VA.R. 1526 February 23, 2004.

9VAC25-790-50 CTCs and CTOs

A. No owner shall cause or allow the construction, expansion or modification (change of 25% or more in capacity or performance capability or 20% for a biosolids use facility) of a sewerage system or treatment works except in compliance with a CTC from the director unless as otherwise provided for by this chapter and standards contained in this chapter. Furthermore, no owner shall cause or allow any sewerage systems or treatment works to be operated except in compliance with a CTO issued by the director which authorizes the operation of the sewerage systems treatment works including biosolids use facilities unless otherwise provided for by this chapter and standards contained in this chapter. Conditions may be imposed on the issuance of any CTC or CTO, and no sewerage systems or treatment works may be constructed, modified, or operated in violation of these conditions.

B. Discharges of 1,000 gpd or less. On-site (located within owners property) residential sewage treatment works having a design capacity of 1,000 gallons per day or less may not be governed by this chapter and standards contained in this chapter if the performance reliability of such technology has been established by an approved testing program (9VAC25-790-210). These treatment works are regulated by other applicable regulations of the board (9VAC25-110) and of the Virginia Department of Health (12VAC5-610 and 12VAC5-640). Owners of such treatment works shall make application in accordance with and obtain the necessary permits from the board, department, or the Virginia Department of Health as appropriate via the application procedures established for such treatment works.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-110 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-50, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-790-60 CTC and CTO waivers

A. Small sewerage systems and treatment works. As described in this section, the requirement to formally obtain a CTC and a CTO through the provisions of this chapter and standards contained in this chapter is waived for sewerage systems having a design capacity of 40,000 gallons per day or less and serving or capable of serving a population of 400 persons or less and consisting entirely of gravity flow sewers.

B. Other waivers. A waiver for formal CTC and CTO issuance may also be granted for:

1. Construction of gravity flow sewers of 12-inch diameter design size or less;

2. Installations consisting of a single sewage pumping station having a design pumping capacity of 25 gallons per minute or less and handling a total daily volume of 2000 gallons or less;

3. Land application sites meeting the operational restrictions specified in the Virginia Pollution Abatement Permit Regulation (9VAC25-32) and the Virginia Pollutant Discharge Elimination Permit Regulation (9VAC25-31); or

4. Sites utilized entirely for research projects in accordance with this chapter, such as pilot plant studies.

C. Larger sewerage systems and treatment works. In order to qualify for a CTC and CTO waiver for collection systems serving more than 400 persons, the permittee or owner must file with the area engineer an application (see Part IV (9VAC25-790-940 et seq.) of this chapter) or a letter of intent to construct and operate such a system as described above. The letter shall be filed at least 30 days prior to the time that granting of such a waiver would be required to initiate construction. The letter shall contain a brief description of the proposed sewerage system, or land application, applicable maintenance provisions, the area to be served, the location of the proposed sewerage system, treatment works, or land application and the point of discharge or entry to the downstream sewerage system or treatment works if applicable. If the owner of the sewerage system or treatment works is not the applicant, the applicant shall demonstrate that the downstream owner will accept the design flow for connection to the downstream sewerage system or treatment works. A written statement that the additional sewage being discharged into the downstream system will be accepted may be required. If after review of the application or letter, a determination is made by the director that it is not in the best interest of public health and welfare to waive the permit requirements of this chapter and standards contained in this chapter, the owner will be so notified and will be required to obtain the applicable CTC and CTO. The requirements of this subsection are not applicable if the owner has a local review program pursuant to this chapter and standards contained in this chapter.

D. The director may revoke a waiver granted under this section in his sole discretion if he determines that the public health and welfare would be better served by issuance of a CTC and a CTO.

History

• Statutory Authority: § 62.1-44. 15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-110 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-60, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-70 Reliability classification

The department shall establish the reliability classification following discussion with the owner for inclusion in the engineer's design of the sewerage system or works. Reliability is a measurement of the ability of a component or system to perform its designated function without failure or interruption of service. Overflow criteria, such as a period of discharge, are utilized solely for the establishment of reliability classification for design purposes and are not to be construed as authorization for, or defense of, an unpermitted discharge to state waters. The reliability classification will be a major consideration for discussion at the preliminary engineering conference described in this chapter. Pump stations associated with, but physically removed from, the actual treatment works may have a different classification than the treatment works itself. The reliability classification shall be based on the water quality and public health and welfare consequences of a component or system failure. Guidelines for classifying sewerage systems and treatment works are as follows:

1. Reliability Class I. Sewerage systems or treatment works whose location, or discharge, or potential discharge (i) is sufficiently close to residences, public water supply, shellfish, or recreation waters; (ii) has a volume or character; or (iii) for which minimal dilution of 10 to 1, receiving water volume to discharge volume, based on permit flow values is not provided year round, such that permanent or unacceptable damage could occur to the receiving waters or public health and welfare if normal operations were interrupted.

2. Reliability Class II. Sewerage systems or treatment works whose location or discharge, or potential discharge, due to its volume or character, would not permanently or unacceptably damage or affect the receiving waters or public health and welfare during periods of short-term operations interruptions, but could be damaging if continued interruption of normal operation were to exceed 24 hours.

3. Reliability Class III. Sewerage systems or treatment works not otherwise classified as Reliability Class I or Class II.

Unless designated as applying to a particular reliability class, all requirements specified in this chapter and standards contained in this chapter apply equally to all reliability classes.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-120 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-70, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-80 CTC procedures

A. CTCs are issued by the director, but all requests for a CTC shall be directed initially to the area engineer that serves the area where the sewerage system or treatment works is located. The procedure for obtaining the permit includes one or more of the following steps:

1. The submission of an application;

2. A preliminary engineering conference;

3. The establishment of the reliability classification of the sewage collection or treatment works;

4. Submission and evaluation of a preliminary engineering proposal or concept;

5. The submission and evaluation of plans, specifications, design criteria and other data in the number requested by the area engineer;

6. The evaluation of an operation and maintenance manual;

7. The evaluation of a sludge management plan.

B. A formal technical evaluation involving a detailed engineering analysis of the plans, specifications and other design documents by the area engineer may be required. Advanced treatment designs (Article 8 of Part III), nutrient control designs (Article 10 of Part III), and alternative technology (9VAC25-790-210) will typically require a formal technical evaluation. A formal technical evaluation of submitted documents prior to issuance of a permit in accordance with this chapter may be waived following a review of the preliminary engineering proposal or concept provided that the owner's consultant submits a statement that the design will meet the requirements established through this chapter and standards contained in this chapter.

C. Notification. Informal and formal technical evaluations will be completed and the owner notified at least informally of the resulting decision within 30 days of receipt of complete documents unless the director grants the area engineer additional time to complete such evaluations on a specified design. In addition, written notice of the decision will be provided to the owner no later than 15 days after completion of the evaluation.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-130 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-80, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-90 CTC application

All applications for a CTC shall be submitted on a form provided by the department and shall be submitted by the owner or authorized agent to the appropriate area engineer as specified at least 30 days of the time an owner desires to be notified of the required procedure for issuance of a CTC, or at least 180 days prior to the date that the owner desires to begin construction. An application for a CTC or a sewerage system shall be accompanied by notification that local government will issue necessary approvals and design data verifying that downstream capacity is available to adequately convey and treat the design flows in accordance with these regulations. An application for a CTC for a sewerage system or treatment works will not be considered complete until evidence is submitted that a complete application has been submitted for a VPDES permit or VPA permit. The owner will be notified by the department within 30 days of receipt of a complete application if a technical evaluation of preliminary or final design documents is required following the preliminary engineering conference, if held.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-140 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-90, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-100 Preliminary engineering conference

A preliminary conference with the appropriate area engineer as specified will be held within 15 days of the owner's request for the meeting for proposed treatment works and pump station designs to establish the requirements for submission of the information necessary for a determination by the director relating to the issuance of a CTC. The applicant's engineer shall be prepared to set forth the sewage collection or treatment problems and the proposed solution in such a manner as to support the conclusions and recommendations presented at this meeting. A preliminary engineering proposal may be submitted prior to, during, or following the preliminary conference. Minutes of the meeting shall be recorded and distributed to the concerned parties.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-150 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-100, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-110 Preliminary engineering proposal

A. Objective. The objective is to facilitate a determination by the department that the proposed design selected by the owner either requires, or does not require, submission of design documents for a formal technical evaluation to establish that the following standards will be reliably met by operation of the facility or system: (i) compliance with effluent limitations and treatment requirements established by the board or department; and (ii) conformance with applicable minimum requirements established by this chapter and standards contained in this chapter, in order that a CTC be issued.

B. Content. The preliminary engineering proposal when submitted for evaluation shall consist of an engineering report and preliminary plans which shall contain the necessary data to portray the sewerage system or treatment works problems and solutions. The requirement for a complete preliminary engineering proposal for small flow or minor projects (design flow less than one million gallons per day (mgd)) can be waived by the department in accordance with the letter from the owner's engineer summarizing the agreements reached at the preliminary engineering conference. For all proposals involving sewerage systems or treatment works, whether new or upgraded, the engineer shall make an evaluation of the l00-year flood elevation at the proposed site or sites, using available data and sound hydrologic principles. If a flood potential is indicated, the flood plain boundaries shall be delineated on a site map, showing its relation to the proposed facility or facilities and actions proposed to comply with this chapter shall be included in the preliminary engineering proposal or with the letter summarizing the agreements reached at the preliminary engineering conference. A conceptual plan for closure of the treatment works shall be discussed prior to final design to anticipate such an occurrence. On major projects (design flow of 1 mgd or more) excluding sewerage systems that are exempted from technical evaluation, the preliminary engineering proposal can include as a minimum the following information as applicable:

1. Mapping of present site location and evaluation of site constraints.

2. Data supporting predicted service population.

3. Identification of specific service area for immediate consideration and possible extensions.

4. Data, including reliable measurements or predictions of design flow and analyses of sewage constituents as a basis of process design.

5. Description of treatment process and flow plans identifying the proposed arrangement of basins, piping and related equipment with unit operation design parameters and sizes.

6. Description of sludge management method.

7. Plan for imposed operations requirements, i.e., certain unit operations may be required to operate independently of others in accordance with the reliability classification, while achieving the treatment performance necessary to meet permit limits under average design conditions.

8. Demonstration of compliance with state and local laws and regulations.

9. Summary of findings, conclusions and recommendations.

10. Description of existing institutional constraints or other unresolved problems that influence selection of alternative solutions.

11. Estimate of capital and operating costs of all alternatives presented if available as public information.

12. For those projects for which a Virginia Revolving Loan will be requested, the ways in which the special requirements contained in Title II of P.L. 92-500 will be met (infiltration, cost effectiveness, etc.).

13. Staffing and operating requirements for facility.

14. Identification consistent with all applicable area wide plans, of drainage basin, service area, and metropolitan area plans.

15. Designation of owner's representative for design purposes.

16. For land application proposals, the information required by Part III (9VAC25-790-310 et seq.) of this chapter, as appropriate.

The format for the Preliminary Engineering Proposal is listed in Part IV (9VAC25-790-940 et seq.) of this chapter.

C. Approval. The department will approve or disapprove the preliminary engineering proposal and notify the owner in accordance with 9VAC25-790-80 C.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-160 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-110, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-790-120 Construction drawings (plans)

A. Construction drawings (plans) for sewerage systems or treatment works improvements for which a technical evaluation is required shall provide the information necessary to determine that the owner's final plans, specifications, and other documents satisfy (i) requirements established by these regulations and engineering standards of practice; and (ii) the minimum requirements and limiting factors established in the owner's approved preliminary engineering proposal. The final plans should include:

B. Final engineering documents. Drawings, plans, specifications and other engineering documents that are submitted to the area engineer for a technical evaluation shall be in substantial compliance with this chapter prior to issuance of a CTC by the director. Engineering documents may be submitted by the owner to the area engineer following the preliminary engineering conference, or following a technical evaluation of the preliminary engineering proposal if required. Up to four copies shall be submitted to the area engineer for non-Virginia Revolving Loan Fund funded projects and up to five copies shall be submitted for projects financed through the Virginia Revolving Loan Fund. The original of the letter of submittal with appropriate signature(s) shall accompany the engineering documents. The letter of submittal should identify any necessary actions to be taken by the area engineer to expedite evaluation of the submitted documents.

All drawings, specifications, engineer's reports and other documents submitted for evaluation shall be prepared by or under the supervision of appropriately licensed professionals, legally qualified to practice in Virginia, in accordance with the provisions of §§ 54.1-400 to 54.1-411 of the Code of Virginia inclusive.

All submitted plans for sewerage systems or treatment works shall bear a suitable title showing the name of the municipality, sewer district, institution or other owner and shall show the scale in feet, a graphical scale, the north point, date and the name of the appropriate licensed professional. Also, each plan sheet shall bear the same general title identifying the overall project, and each shall be numbered. Appropriate subtitles shall be included on the individual sheets. The plans shall be clear and legible. They shall be drawn to a scale that will permit all necessary information to be plainly shown. The size of the plans should be no larger than 36 inches by 48 inches. The datum used should be indicated. Locations of all special features, when made, shall be shown on the plans. Logs of test borings should be given either on plans or in the specifications. Detail plans shall consist of plan views, elevations, sections, and supplementary views which, together with the specifications and general layouts, provide the working information for the contract and construction of the works. The plans shall include dimensions and relative elevations of structures, the location and outline form of equipment, location and size of piping, water levels, ground elevations, and erosion control abatement facilities. Data shall be provided for proposed additions of flow to existing sewerage systems indicating that the additional sewage flow from the proposed project will have no adverse impact on the operation of downstream facilities.

C. Sewerage systems. Plans submitted for new construction or substantial modification (increasing flow capacity by more than 25%) of sewage collection piping shall include the following: the location, size, type and direction of flow of all existing and proposed sanitary sewers involved in the project.

1. Detailed plans when submitted for evaluation shall provide complete and properly scaled graphical depictions of design information. Profiles shall have a horizontal scale of not more than 100 feet to the inch and a vertical scale of not more than 10 feet to the inch. The plan view shall be drawn to a corresponding horizontal scale. Plans and profiles shall show:

a. Location of streets and sewers with an identification system.

b. Ground surface elevations and manhole stationing.

c. Invert elevations of sewers at each manhole.

d. Size and grade of sewer between adjacent manholes.

e. Any special construction features.

2. All manholes shall be labeled in an established manner on the plan and correspondingly labeled on the profile. If a community does not allow the connection of basement drains to the sewer, this may be stated on the plans as a basis for exemption, and the plans need not show the elevations and locations of basement floors. Where there is any question of the sewer being sufficiently deep to serve any residence, the elevation and location of the basement floor shall be plotted on the profile of the sewer which is to serve the house in question. The engineer shall state that all sewers are sufficiently deep to serve adjacent basements except where otherwise noted on the plans.

3. Sewerage system plans shall identify locations of all special features such as inverted siphons, concrete encasement, elevated sewers, all known existing structures both above and below ground that might interfere with the proposed construction, particularly water mains, gas mains, storm drains, etc.

4. Special detail drawings, made to a scale to clearly show the nature of the design, shall be furnished to show the following particulars:

a. All stream crossings and sewer outlets, with elevations of the streambed and normal and design flow water levels.

b. Details of all sewer joints and cross sections requiring special construction such as concrete encasement.

c. Details of all sewer appurtenances such as manholes, inspection chambers, inverted siphons, regulators, tide gates and elevated sewers.

D. Sewage pumping stations. Plans submitted for technical evaluation involving new construction or substantial modification (increasing flow capacity by more than 25%) of pumping stations shall address the following design information: (i) the location and extent of the tributary area; (ii) the location of municipal boundaries within the tributary area; and (iii) the location of the pumping station and force main and pertinent elevations.

1. For new construction the forms of land use (commercial, residential, and agricultural) and access control proposed for the near future over a 100-foot radius from the pumping station structure shall be indicated. Existing buildings and their types within 100 feet of the pumping station shall be indicated. Submission of detailed plans would not be required for upgraded pump stations that are issued, or included in, a final operating permit.

2. Detailed plans submitted for evaluation shall provide the following design information where applicable:

a. A contour map of the property to be used.

b. Proposed pumping station equipment layout and capacities including provisions for installation of future pumps or ejectors. Proper references to the specifications should be included.

c. Elevations of operating levels of sewage contained in the wet well at the site and the estimated locations of raw sewage overflows in the collection system upon occasion of pump failure resulting in high water levels in the wet well.

d. Test borings and ground water elevations, if taken.

e. Plan and elevation views of the pump suction (from the wet well) and discharge piping showing all isolation valves and gates.

E. Treatment works. Plans submitted for technical evaluation of projects involving new construction or substantial modifications (increasing flow capacity by more than 25%) of treatment works shall identify the treatment works relative to the remainder of the system. For new construction, the plan shall include sufficient topographic features to indicate its location relative to streams and the point of discharge of treated effluent. Also the forms of land use (commercial, residential, and agricultural, existing or proposed) and access controls for the near future over a 700-foot radius from the proposed treatment works structures must be indicated. Existing buildings and their type of use within 700 feet of the new treatment works site shall be adequately described, e.g., by means of topographic maps, aerial photos, drawings, etc.

1. For technical evaluation, the proposed treatment works design submittal shall include the following as specified:

a. Topography and other characteristics of the site as specified:

b. Size and location of treatment works structures.

c. Schematic flow diagram showing the flow through various treatment works unit operations.

d. Piping, including any arrangements for bypassing individual unit operations. Materials handled and direction of flow through channels, pipes and unit operations shall be shown, including arrangements for independent operation.

e. Hydraulic flow profiles showing the average relative surface elevations of mainstream and sidestream flows of sewage, supernatant and sludge as influent, effluent and flow within the channels, piping, pumps and basins that comprise the treatment works.

f. Soil characteristics including hydraulic conductivity established by soil tests and test borings and hydrologic factors, such as ground water elevations, that can affect the treatment of disposal capacity.

2. For technical evaluation, detailed plans shall include the following:

a. Location, dimensions and elevations of all existing and proposed treatment works unit operations solids handling facilities and equipment.

b. Elevations of high water levels affecting the treatment works design and to which the treatment works effluent is to be discharged or absorbed.

c. Pertinent data concerning the rated capacity of all pumps, blowers, motors and other mechanical devices. All or part of such data may be included in the specifications by suitable reference on the plans.

d. Average and maximum elevations for the hydraulic flow profile within the unit operations.

e. Adequate description of any features not otherwise covered by specifications or engineer's report.

3. Facility closure plans shall address the following information as a minimum:

a. Residual wastewater and solids treatment, removal and final disposition.

b. Removal of structures, equipment, piping and appurtenances.

c. Site grading and erosion and sediment control.

d. Restoration of site vegetation and access control.

e. Proposed land use (post-closure) of site.

F. Plans submitted for technical evaluation of biosolids use facilities, including substantial modifications (new location of storage on site, or increasing design capacity by more than 20%) from that previously approved shall identify the proposed locations, management practices, biosolids sources, treatment and quality information as required. For new construction, the plan shall include sufficient topographic features to indicate its location relative to streams and other land use facilities, as required. The forms of land use (commercial, residential, and agricultural existing or proposed) buffer zones and access controls, for the near future, surrounding the proposed biosolids use facilities must be indicated. Existing buildings and their type of use within 200 feet of the new site shall be adequately described (e.g., by means of topographic maps, aerial photos, drawings, etc.).

Facility closure plans shall address the following information as a minimum:

1. Residual wastewater and sludge treatment, removal and final disposition.

2. Removal of structures, equipment, piping and appurtenances.

3. Site grading and erosion and sediment control.

4. Restoration of site vegetation and access control.

5. Proposed land use (postclosure) of site.

.G. Approval. The area engineer will approve or disapprove the construction drawings and notify the owner in accordance with 9VAC25-790-80 C.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-170 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-120, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-130 Specifications

A. Content. Complete technical specifications for the construction of sewers, sewage pumping stations, treatment works, biosolids use facilities including subsurface disposal pre-treatment and all appurtenances, shall accompany the plans submitted for technical evaluation.

The specifications accompanying construction drawings shall include, but not be limited to, all construction information not shown on the drawings which is necessary to inform the contractor in detail of the design requirement as to the quality of materials and workmanship and fabrication of the project and the type, size, strength, operating characteristics and rating of equipment, including machinery, pumps, valves, piping, and jointing of pipe, electrical apparatus, wiring and meters; laboratory fixtures and equipment; operating tools, construction materials, special filter materials such as stone, sand, gravel or slag; miscellaneous appurtenances; chemicals when used; instructions of testing materials and equipment as necessary to meet design requirements and standards of practice; and operating tests for the completed works and component units.

B. Submittal. Specifications shall be submitted to the area engineer in the number and distribution specified in this chapter. One copy of the submitted documents shall bear on an initial page the original seal imprint and signature of the appropriately registered professional who prepared the specifications or under whose direct supervision the specifications were prepared for electronic submission of documents. For electronic submittal of documents, a transmittal letter shall bear the original seal and signature. Submission of specifications for gravity systems to the area engineer will not be required for those municipalities or privately owned sewerage systems that are either approved to participate in the local review program or have received department approval of local standards for design and construction. Local review participation requirements are described in 9VAC25-790-230.

C. Approval. The area engineer will approve or disapprove the specifications and notify the owner in accordance with 9VAC25-790-80 C.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-180 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-130, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-140 Operation and maintenance manuals

A. Content. Operation and maintenance manuals including the monitoring and operating requirements contained in 9VAC25-790-260 through 9VAC25-790-300 shall be prepared for all sewerage systems, pumping stations, and treatment works evaluated in accordance with this chapter, except as noted in this chapter. Owners shall submit updated information for any operational changes that affect treatment capacity or operational performance by 25% or more. Manuals for new construction or revised pages for existing but modified (upgraded) facilities submitted to the area engineer for evaluation will also be processed.

Copies of the manual submitted to the area engineer shall be in the number up to that specified for plans. An evaluation will not commence until the applicant has submitted all necessary information (see 9VAC25-790-950).

B. Evaluation. The department will evaluate the technical contents of the manual and will notify the owner (and manual preparer if appropriate) of the approval of the manual, or of any necessary revisions to the manual. The owner is responsible for ensuring that the required revisions are made and submitted to the department. If the additions or revisions to the manual are deemed satisfactory the department may not formally notify the owner who may implement those changes.

C. Approval. The department will approve or disapprove the manual and notify the owner in accordance with 9VAC25-790-80 C. If the manual is conditionally approved as submitted, such notification will include the conditions, if any, which must be satisfied for final approval. The owner will be responsible for ensuring that such conditions are satisfied in accordance with the CTO (9VAC25-790-190).

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-190 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-140, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-150 Sludge management plans

A. Evaluation. The general purpose of the plan is to facilitate a determination by the department that the management plan developed by the owner in accordance with the department administered VPDES or VPA permit program (9VAC25-31 and 9VAC25-32) presents the necessary technical guidance and regulatory requirements to facilitate the proper management of sewage sludge, including use of biosolids, for both normal conditions and generally anticipated adverse conditions. The evaluation by the department may address methods of controlling and monitoring the quality of sludge by the owner and the means of use or disposal of that sludge by the owner or his agent.

Three types of biosolids storage may be integrated into a complete sludge management plan in accordance with the Virginia Pollution Abatement Permit Regulation (9VAC25-32) including (i) "emergency storage" involving immediate implementation of storage for any sludge that becomes necessary due to unforeseen circumstances, (ii) "temporary storage" involving the provision of storage of stabilized sludges at the land application site that becomes necessary due to unforeseen climatic events that preclude land application of biosolids in the day that it is transported from the generator, and (iii) "routine storage" involving the storage of biosolids as necessary for all nonapplication periods of the year. The requirements for the design of biosolids storage facilities are located in 9VAC25-32.

B. Approval. The department will approve or disapprove the manual and notify the owner in accordance with 9VAC25-790-80 C.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-200 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-150, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-160 Formal requirements for the submission of engineering data

In accordance with the provisions of §§ 54.1-400 to 54.1-411 of the Code of Virginia, inclusive, all drawings, specifications, and engineer's reports submitted for approval shall be prepared by or under the supervision of a licensed professional engineer legally qualified to practice in Virginia. One copy of the submitted documents, including drawings, the engineer's report, and the specifications submitted for review and evaluation, shall bear the signed imprint of the seal of the licensed professional engineer who prepared or supervised the preparation and be signed with an original signature. For electronic submission of documents, a transmittal letter shall bear the original seal and signature. In addition, each drawing submitted shall bear an imprint or a legible facsimile of such seal. Submissions of technical information for evaluation by the department shall identify the appropriate qualifications of the preparer of such information (i.e., license or certification).

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-210 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-160, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-170 Processing of plans, specifications and other engineering documents

All reports, construction drawings, specifications and operation and maintenance manuals submitted to the department must be received at least 90 days prior to the date upon which action by the department is desired. If the plans and specifications are found to be incomplete or inadequate for detailed evaluation, the department will notify the party submitting the documents of the information necessary for a complete submittal within 30 days of receipt of the plans and specifications. If revisions to the plans or specifications are necessitated, a letter will be sent to the engineer who prepared them within 30 days of receipt outlining the necessary revisions. Revised plans or specifications constitute a resubmittal; therefore, additional time will be necessary for the review and technical evaluation (9VAC25-790-80 C). The owner may request the approval to begin construction prior to this notification in accordance with the provisions of this chapter. Preliminary plans and the engineer's report should be submitted for review and evaluation prior to the preparation of final plans unless the area engineer has agreed to omit this step in the evaluation process. One set of the approved plans and specifications will be stamped by the area engineer and returned to the owner.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-220 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-170, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-180 CTC

A. Issuance. Upon approval of the proposed design by the area engineer, including any submitted plans and specifications, if required, the director will issue a CTC to the owner within 15 days of such approval to construct or modify his sewerage systems or treatment works in accordance with the approved design and submitted plans and specifications.

B. Revisions. Any deviations from the approved design or the submitted plans and specifications significantly (25% or more variation from original for sewerage systems or treatment works and 20% or more for biosolids use facilities) affecting hydraulic conditions (flow profile), unit operations capacity, the functioning of the sewage treatment process, or the quality of treated effluent discharged, must be approved by the area engineer before any such changes are made. Revised plans and specifications shall be submitted in time to allow 30 days for the review, evaluation and approval of such plans or specifications before any construction work that will be affected by such changes is begun, unless the owner has received approval to proceed from the department prior to either a formal submittal of revisions, or the department approval of submitted revisions.

C. Completion of construction. A statement shall be submitted by the owner assuring completion of construction and an inspection of the constructed system works will be scheduled in accordance with the provisions of this chapter.

1. Upon completion of the construction or modification of the sewerage systems or treatment works, the owner shall submit to the area engineer a statement signed by a licensed professional engineer stating that the construction work was completed in accordance with the approved plans and specifications, or revised only in accordance with the provisions of subsection B of this section. This statement is called a Statement of Completion of Construction and shall be based upon inspections of the sewerage systems or treatment works during and after construction or modifications that are adequate to ensure the truth of the statement.

2. The owner shall contact the area engineer and request that a final inspection of the completed construction be made so that either a conditional, or a final, CTO can be issued. Within 30 days after placing a new or modified sewerage systems or treatment works into operation, the effluent produced should be sampled and tested in a manner sufficient to demonstrate compliance with approved specifications and permit requirements. The area engineer shall be notified of the time and place of the tests and the results of the tests shall be sent to the area engineer for evaluation as part of the final CTO.

3. A closure plan should be submitted with or prior to the statement of completion of construction in accordance with this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-230 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-180, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-190 CTO

A. Issuance. Upon receipt of the construction completion statement, the director may issue a final CTO. However, the director may delay the granting of the CTO pending inspection, or satisfactory evaluation of effluent test results, to ensure that the work has been satisfactorily completed.

B. Conditional CTO. A conditional CTO may be issued specifying final approval conditions, with specific time periods, for completion of unfinished work, submission of operations and maintenance manual, sludge management plans, or other appropriate items.

The director may issue a conditional CTO to owners of sewerage systems or treatment works for which the required information for completion of construction has not been received. Such CTOs will contain appropriate conditions requiring the completion of any unfinished or incomplete work including approval of a closure plan and subsequent submission of the statement of completion of construction.

C. Final CTO. Consideration will be given to issuance of an interim CTO to individual unit operations of the treatment process system so as to allow utilization of these unit operations prior to completion of the total project. A final CTO shall be issued upon verification that the requirements of this chapter have been complied with.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-240 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-190, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-200 CTO modifications or revocation actions

A. Amendment or reissuance. The director may amend or reissue a CTO where there is a change in the manner of the collection, the treatment, or the source of sewage or sewage sludge at the permitted location, or for any other cause incident to the protection of the public health and welfare, provided notice is given to the owner, and, if one is required, a hearing held in accordance with the provisions of the Administrative Process Act.

B. Revocation or suspension. The director may suspend or revoke a CTO in accordance with the Administrative Process Act for the following reasons:

1. Failure to comply with the conditions of the CTO.

2. Violation of Title 62.1 of the Code of Virginia or of any of this chapter from which no variance or waiver has been granted.

3. Change in ownership.

4. Abandonment of the sewerage systems or treatment works.

5. Any of the grounds specified in § 62.1-44.2 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-250 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-200, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-210 Nonconventional methods, processes or equipment

A. Policy. The policy of the department is to encourage the development of any new or nonconventional methods, processes, and equipment that appear to have application for the treatment or conveyance of sewage. Sewage treatment methods, processes, and equipment may be subject to a special permit application procedure if (i) they are not covered by the Manual of Practice (Part III (9VAC25-790-310 et seq.) of this chapter) and (ii) they are in principle, or application, deemed to be nonconventional.

B. Provisional CTO. The performance reliability of nonconventional processes and equipment shall have been thoroughly demonstrated through an approved testing program for similar installations (loadings of 75% or more of design level) before they may be considered for conventional approval and use. Where the department approves such a testing program, a provisional CTO will be issued for treatment works in which new or nonconventional processes and equipment are to be evaluated. The provisional CTO will specify conditions related to the testing requirements and agreements necessary for issuance of a final CTO. The owner of the facility shall submit the required test results to the department according to an approved schedule for approval prior to issuance of a final CTO. It is the owner's responsibility to operate in compliance with requirements imposed by permits issued for the sewerage system or treatment works.

C. Assurance resources. As a prerequisite to the issuance of a provisional CTO, the owner must furnish assurance of financial ability or resources available to modify, convert, or replace, the new or nonconventional processes or equipment in the event the performance reliability cannot be established over the period of time specified by the provisional CTO. These assurances may be in the form of funds placed in escrow, letters of credit, performance bonds, etc., which would revert to the facility owner if performance reliability cannot be established.

D. Performance reliability testing. All procedures used in testing of the performance reliability shall be conducted under the supervision of a licensed professional engineer who shall attest to the accuracy of sampling and testing procedures. The required samples shall be tested through a qualified laboratory. The testing program shall provide as a minimum the following:

1. Samples shall be collected at designated locations at a stated frequency and analyzed in accordance with provisions of the provisional CTO. The minimum testing period shall be 12 months under the comparable environmental and operational conditions for which the process and equipment will receive conventional approvals for any additional installations.

2. All analyses shall be made in accordance with the 19th Edition of Standard Methods for the Examination of Water and Wastewater (1995) and 40 CFR Part 136 as published in the 40 CFR July 1, 2024, update, or other approved analytical methods.

E. CTC. After the area engineer evaluates the plans and testing data, the director can issue a CTC if the performance data verifies that the method, process, or equipment can perform reliably in accordance with the design specifications and the operation standards of Part II, and that the method, process, or equipment may be installed as conventional for similar site specific operation.

F. Provisional CTO. Upon completion of construction or modification, a provisional CTO for a definite period of time will be issued for the operation of the nonconventional methods, processes, and equipment. Not more than one provisional CTO will be granted for a similar installation during the evaluation period. The provisional CTO shall require that:

1. The evaluation period shall be a minimum of 12 months and no longer than 18 months,

2. The holder of a provisional CTO must submit reports on operation during the evaluation period. The reports shall be prepared by either a licensed professional engineer experienced in the field of environmental engineering, the owner's operating or engineering staff, or a qualified testing firm.

G. Final CTO. The director will issue a final CTO upon lapse of the provisional CTO, if, on the basis of testing during that period, the new or nonconventional method, process, or equipment demonstrates reliable performance in accordance with permit requirements and the operation standards of Part II. If the standards are not met, then the owner shall provide for modification of the sewerage systems or treatment works, in a manner that will enable those standards to be met in accordance with this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
• Historical Notes: Former 12VAC5-581-260 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-210, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 34, Issue 19, eff. June 13, 2018; Volume 40, Issue 14, eff. March 27, 2024; Volume 41, Issue 7, eff. December 18, 2024.

9VAC25-790-220 Local review for sewerage systems

In lieu of obtaining a CTC and CTO for each sewage collection project, an owner may elect to obtain approval for a master plan and subsequent local review for connections to, or extensions of, existing sewerage systems. The area engineer will provide technical review support for review of such requests. The following procedure for obtaining the approval for local review shall be used:

1. Local plans and specifications. The owner shall develop, adopt, and request approval of general local specifications and plan details covering sewage collection design and construction. For local government or owner approvals, the sewerage system owner must provide for preparation and evaluation of design documents either within the appropriate local government agency, or by separate professional entities or firms, and submit a formal description of such arrangements to the area engineer for evaluation and approval by the director.

2. Master plan. The owner shall develop a plan which outlines the following system specific requirements and the owner's method of compliance with such requirements:

a. Design criteria and construction specifications used by the owner,

b. Evidence that personnel with the training and experience necessary to ensure compliance with the program requirements are employed by the owner,

c. Location of interceptors and force mains, with design flows, for each designated service area within the collection systems conveying flow to the treatment works, and

d. A certificate method for certifying that sewerage system projects meet the requirements of these regulations, and that the project is in compliance with the master plan and local standards and specifications approved by the director.

The local owner approval certificate should describe the project to be constructed in accordance with bid documents and provide for the identification, position and signature of the local official responsible for project oversight.

3. Extensions. Sewer line extensions shall not be undertaken if such construction results in an increase in the number of equivalent residential connections (total flow divided by the product of 100 gpd times the service population), unless the receiving sewerage system and treatment works have been issued a final CTO in accordance with this chapter verifying that there is adequate capacity to handle the project design flows.

4. Sewerage systems covered by this section will not be issued separate CTOs unless special operation requirements dictate a need for permit issuance.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-280 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-220, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Errata, 20:12 VA.R. 1526 February 23, 2004.

9VAC25-790-230 Compliance with Part II (9VAC25-790-260 et seq.--Operational Regulations) of this chapter

A. CTOs issued prior to July 1, 2003. CTOs issued by either the board (including joint certificates to operate) or through the local health department, prior to July 1, 2003, shall continue in force until reissued or amended in accordance with this chapter.

B. Monitoring. All sewerage systems and treatment works owners shall comply with the Part II operational regulations except as provided in accordance with this chapter. Any owner may request technical assistance from the area engineer as necessary to implement corrective action. The director may require the owner or operator of any sewerage systems or treatment works to: (i) develop either an operation plan or an operation and maintenance manual for approval by the department and (ii) install, use, and maintain monitoring equipment for internal process testing of sewage flowing through the treatment works in order to identify and determine the causes of operational problems and to determine the necessary corrective actions to correct such problems. If required, test results shall be recorded, compiled, and reported to the area engineer in a format approved by the department.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-290 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-230, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-240 Compliance with Part III (9VAC25-790-310 et seq.--Manual of Practice) of this chapter

A. The design guidelines set forth in Part III (9VAC25-790-310 et seq.) of this chapter specify general criteria and minimum standards for the design and construction of sewerage systems and treatment works and are not intended to be used as a substitute for engineering experience and judgment used in accordance with standards of practice.

B. Additional standards. The director may impose standards and requirements which are more stringent than those contained in Part III of this chapter when required for critical areas or special conditions. Any such special standards and requirements including those associated with a State Revolving Loan program shall take precedence over the criteria in Part III of this chapter and will be items that warrant careful consideration at the preliminary engineering conference referenced in this chapter. Designs submitted for sewerage systems or treatment works must demonstrate that the system or works will adequately safeguard public health and welfare and will comply with the CTO and VPDES or VPA permit requirements, as appropriate.

C. Substantial compliance. Submissions that are in substantial compliance with Part III (9VAC25-790-310 et seq.) of this chapter or additional requirements of the department as noted above will be approved. Justification for a design may be required for those portions of the submitted design which differ from these criteria. The design engineer shall identify and justify noncompliance with specific design standards or "shall" criteria that the department identifies, or that the design engineer, in his judgment, believes to be substantial in nature. The department may request changes in designs that are not in substantial compliance with Part III of this chapter and that are not adequately justified by the engineer/owner.

D. Exceptions. Compliance with Part III of this chapter will not be required for sewerage systems or treatment works that have received the approval of the Virginia Department of Health and the board and on which modifications and construction have been commenced prior to February 27, 2002, or January 1, 2008, for biosolids use facilities. Construction or modification of sewerage systems or treatment works is deemed to be commenced for purposes of this chapter upon receipt of complete final engineering documents by the area engineer. The fact that significant work was accomplished on a specific project prior to adoption of this chapter and standards contained in this chapter shall be a consideration when evaluating applications.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-3000 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-240, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-250 Sewage Collection and Treatment Advisory Committee

A. The director shall appoint a Sewage Collection and Treatment Regulation Committee consisting of at least eight appointed members and four ex-officio members as specified in this section. Advisory committee membership should be representative of large size and small size communities and their consultants.

B. Organizations. Appointed committee members shall be selected from organizations such as:

a. The Virginia Water Environment Association (VWEA).

b. Virginia Association of Municipal Wastewater Agencies (VAMWA).

c. Virginia Society of Professional Engineers.

d. Sewerage Systems and Treatment Works Owners.

e. Consulting Engineers Council of Virginia.

f. State universities and college faculty.

Consideration shall also be given to appropriate citizens who are not members of these organizations and other interested parties and groups such as the Citizens Conservation Network.

C. Terms. All terms for appointed members should be four years in duration, and members shall not be appointed for more than two consecutive terms. Four of the eight appointed members shall serve an initial term of two years with subsequent terms of four years.

The director will designate two ex officio members from the department, and the Commissioner of the Virginia Department of Health shall be requested to designate one ex officio member from his staff. Each committee member may designate an alternate to serve when necessary. The secretary to the committee will be a staff member of the department.

D. Purpose. The function of the committee will be to meet, discuss issues, and make recommendations directly to the director, concerning this chapter and standards contained in this chapter and other policies, procedures, and programs for regulating sewerage systems and treatment works. The committee will meet semi-annually or more frequently at the call of the chairman. The committee's meeting will be advertised and open to the public, and comments and recommendations from the public will be received.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-310 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-250, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 1 Monitoring

9VAC25-790-260 Influent and effluent monitoring

Article 1 Monitoring

A. Methods. Sampling and testing methods shall conform to permit requirements, or if not specified, to current United States Environmental Protection Agency (EPA) guidelines establishing test procedures for analysis of pollutants or other EPA approved methods.

B. Schedule. The operation and maintenance manual shall contain a specific testing schedule of the minimum tests and their frequencies to be conducted by the facility in accordance with the appropriate certificate and permit issued. If not specifically addressed in the issued certificate and permit, influent and effluent monitoring shall be in accordance with this schedule. Typical tests are listed in 9VAC25-790-960.

C. Sampling. The following sampling instructions shall be followed when collecting samples as required to comply with this chapter and standards contained in this chapter.

1. Raw sewage samples are be collected prior to the treatment process unit operations; samples may be collected following the bar screen or comminutor.

2. Final effluent samples are to be taken at a point following all unit operations in the treatment process. An evaluation of chlorine reduction or dechlorination methods will require monitoring of chlorine residual and fecal coliform levels in treated sewage flows following the chlorine contact tank.

3. Chlorine residual, fecal coliform, pH, temperature and DO test samples may consist of grab samples of sewage flow obtained immediately prior to analytical measurements.

4. Compositing of samples shall be in accordance with the treatment works operation and maintenance manual. Composite samples of sewage flows shall consist of grab samples taken at a minimum frequency of one per hour and should be combined in proportion to flow. Greater frequency of grab sampling may be desirable where abnormal variation in waste strength occurs. Automatic flow proportional samplers are considered a valid sampling method.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-320 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-260, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-270 Operational testing and control

A. Methods. Sampling and testing methods shall conform to the issued certificate and permit requirements. In addition, current United States Environmental Protection Agency (EPA) guidelines and test procedures for analysis of pollutants may be used, as well as other EPA recommended methods.

B. Schedule. The operation and maintenance manual shall contain a specific schedule of the minimum tests and their frequency to be conducted by the treatment works and sampling instructions. Tests and sampling shall be in accordance with the requirements established by the instructions contained in the treatment works' operation and maintenance manual. Typical tests and sampling instructions are contained in this chapter.

C. Information. If necessary, additional operational control information may be requested on an individual treatment works basis by the department to evaluate performance reliability.

D. Records.

1. The owner shall maintain records on the treatment works operation, maintenance and laboratory testing. The records shall be available for review by department and area engineer during inspections at reasonable times. Any records of monitoring activities and results shall include at least the following for all samples:

a. The date, place, and time of sampling or measurements.

b. Individual that performed the sampling or measurements.

c. The dates analyses were performed.

d. Individual that performed analysis.

e. The analytical techniques or methods used.

f. The results of such analyses.

2. The owner shall maintain for a minimum of three years any records of monitoring activities and results, including all original strip chart recordings for continuous monitoring and instrumentation and all calibration and maintenance records. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the owner or upon the request of the director.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-330 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-270, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-280 Land based monitoring system

A. Land application of effluent. The Operation and Maintenance Manual shall contain a schedule of required minimum tests and their frequency to be conducted for the land treatment system and shall also contain instructions for recording and reporting. Monitoring, reporting, and recording for land treatment systems shall be in accordance with the treatment works' Operation and Maintenance Manual. Information concerning monitoring, recording and reporting for land application of effluent are contained in this chapter.

B. Sewage sludge and residual solids management. Either the Operation and Maintenance Manual or the sludge management plan shall contain a list of required minimum tests to be conducted for the sewage sludge and residual solids management system and shall also contain instructions for recording and reporting. Monitoring, reporting, and recording requirements for sewage sludge and residual solids management shall be in accordance with the sludge management plan or operation plan in accordance with this chapter and the Biosolids Use Regulations (12VAC5-585). Suggested monitoring, reporting, and recording for sewage sludge and residual solids management are described in this chapter. The record keeping and reporting requirements for sewage sludge and residual solids management contained in the treatment works Operation and Maintenance Manual or sludge management plan shall apply to all application sites, regardless of size or frequency of application. However, the requirements relative to monitoring, reporting, and recording of site specific soils and the monitoring, reporting, and recording of ground water and surface water are not applicable for any site that meets criteria established in the Biosolids Use Regulations (12VAC5-585) for a monitoring waiver.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-340 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-280, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 2 Operation and Maintenance Manuals

9VAC25-790-290 Manuals

Article 2 Operation and Maintenance Manuals

A. General. The general purpose of the manual is to present both technical guidance and regulatory requirements to facilitate operation and maintenance of the sewerage systems and treatment works for both normal conditions and generally anticipated adverse conditions. The manual should be designed as a reference document, being as brief as possible while presenting the information in a readily accessible manner. The manual shall be tailored to the size and type of system being employed. The manual shall be directed toward the operating staff required for the facility as listed in Table 1. The manual shall be updated as necessary and be made available to the operating staff.

B. Contents. The manual shall contain the elements included in 9VAC25-790-260 B; 9VAC25-790-270 B; 9VAC25-790-280 B; subsection A of this section; and 9VAC25-790-300 B, C and D. In addition, the manual should contain, for information and guidance purposes, additional schedules that supplement these required schedules to assist operations by defining desired levels of staffing, testing, etc. Suggested contents are contained in 9VAC25-790-950 and 9VAC25-790-960.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-350 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-290, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 3 Requirements for Sewerage Systems and Treatment Works Reliability

9VAC25-790-300 Reliability

Article 3 Requirements for Sewerage Systems and Treatment Works Reliability

A. Additional operation and maintenance documentation may be necessary where performance reliability has not been established or worker safety and public health protection is questioned.

B. Operability. Independently operated essential equipment or components of sewerage systems and treatment works shall be provided with sufficient duplication or alternative operation so that the average daily design flow may be transported, stored, treated, or otherwise managed in accordance with reliability requirements with the largest component out of service. Sufficient spare parts to ensure continuous operability of essential unit operations and equipment shall be kept in a central storeroom located at the treatment works or at other readily accessible locations, and the minimum quantities shall be in accordance with the operation and maintenance manual. The need for spare parts should be determined from review of manufacturer's recommendations, evaluation of past maintenance requirements, and any other relevant factors. A spare parts inventory shall be included in the operation and maintenance manual. The inventory shall list the minimum and maximum quantities of the spare parts to be kept on hand, the equipment in which the spare parts are used, the storage location of the spare parts, replacement procedures, and other pertinent information. A suggested spare parts inventory system is contained in Part IV (9VAC25-790-940 et seq.) of this chapter.

C. Maintenance. A regular program of preventive maintenance shall be adhered to. The Operations and Maintenance Manual shall contain a system of maintenance requirements to be accomplished.

1. A minimum preventive maintenance system shall be provided in accordance with the Operations and Maintenance Manual. Such a system should provide for advanced scheduling of preventive maintenance and should be continually assessed in order to reflect increased service requirements as equipment ages or flow rates increase.

2. Adequate records, files, and inventories to assist the operator in this task should also be maintained.

3. A schedule for testing the integrity of all auxiliary standby power equipment, portable pumps, automatic electrical switchover gear, and diversion piping should be developed and adhered to on a regular basis. A suggested maintenance system is outlined in this chapter. In cases where certain components of the treatment process may be damaged by flooding from natural events in such a manner as to cause excessive delays in restoring the treatment process to the design operating level, the means of removal of such components prior to flooding should be described in the Operational and Maintenance Manual.

D. Personnel.

1. Every sewage treatment works owner shall employ or contract an operator who holds a current wastewater operator license, issued in accordance with Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia, of the appropriate class for the type of facility, as determined by the department, or higher class at the owner's option. If the position of the licensed operator of the appropriate class is unexpectedly vacated due to death, extended illness, firing for cause, resignation, or similar cause, the treatment works owner shall notify the department promptly and in accordance with any specific timeframe directed by the department. The department shall temporarily waive the licensed operator requirement for the interim, provided the owner (i) informs the department in writing of the owner's designation of another licensed operator or professional engineer responsible for interim operations within five days of the vacancy, (ii) informs the department in writing within 10 days of the vacancy arising of the owner's plan to hire a replacement licensed operator of the appropriate class as soon as practicable, (iii) implements the hiring plan diligently, and (iv) provides a monthly report to the department on the implementation and progress of such hiring plan. The department may revoke the temporary waiver if the department finds that continued operation pursuant to the waiver presents a public health or water quality threat due to statutory, regulatory, or permit violations.

2. The recommended attendance hours by a licensed operator and the minimum daily hours that the treatment works should be manned by operating staff are contained in Table 1. The number of operating staff provided daily at a treatment works depends upon these requirements, as well as upon the permit compliance status and the operational conditions, such as:

a. The design capacity (flow);

b.The quality of the effluent;

c. The complexity of the treatment processes used; and

d. The fact that only a licensed operator may be specified as the individual in charge of overseeing permit compliance.

In instances where the recommended hours of attendance by a licensed operator are less than the daily hours the treatment works is to be manned by operating staff (see Table 1), a licensed operator is not required to be physically located at the treatment works site during the remaining designated manning hours, provided that the licensed operator is able to respond to requests for assistance in a satisfactory manner, as described in the Operation and Maintenance Manual.

3. Where the facility is equipped with adequate technological capability, the department shall credit remote monitoring of the facility by a licensed operator of the appropriate class as operator attendance toward recommended licensed operator attendance hours, provided that the owner submits and the department approves a remote monitoring plan demonstrating that the facility possesses sufficient technology for the remote operator to adequately monitor the facility and manage onsite operators with a lower license class, mechanics, or other staff to operate the facility under the remote operator's direct supervision. In determining whether to approve a remote monitoring plan for multiple facilities, the department may consider the number of facilities the remote operator is monitoring simultaneously, whether the multiple facilities being monitored remotely are under common ownership, whether the remote operator is employed by the owner of the multiple facilities, and whether occasional in-person attendance is provided, among other factors. The department may cease crediting remote monitoring if the department finds that continued operation pursuant to the remote monitoring plan presents a public health or water quality threat due to statutory, regulatory, or permit violations. The department shall not credit remote monitoring by an operator without the appropriate license class who is operating the waterworks or treatment facility pursuant to a temporary waiver issued under subdivision 1 of this subsection.

E. Conditions. The objective of treatment works operation should be to provide the most reliable and efficient performance that can be practically achieved in compliance with permit requirements, while providing for safe working conditions. Operational health and safety provisions are critical. Cross-media pollution prevention measures should be evaluated and developed where practical, and material safety data sheets for toxic chemicals used should be readily available.

1. Alternate operating provisions shall be utilized as necessary in accordance with the reliability classification. An all-weather road shall be provided to permit access to and from the treatment works during normal weather conditions. Escape routes and methods should be established for emergency situations.

2. Pretreatment requirements as set forth in the State Water Control Board's regulations should be established and monitored in accordance with local regulations specific to such requirements.

3. Local standards and specifications approved in accordance with this chapter shall provide for the construction methods, as necessary in accordance with the local owner's sewer line maintenance program, to minimize excessive amounts of infiltration and inflow and prevent the accumulation of solids or debris that would interfere with the transmission of flow resulting in overflows, bypassing, or offline flow surcharges, such as in service connections.

4. Odor control measures should be established in accordance with site-specific features and weather patterns. Development of objectionable odors shall be addressed by the best available odor control technology.

| TABLE 1. CLASSIFICATION OF TREATMENT WORKS AND RECOMMENDED MINIMUM HOURS OF ATTENDANCE BY LICENSED OPERATORS AND OPERATING STAFF⁽¹⁾. | | | | | | --- | --- | --- | --- | --- | | Treatment Works Classification & Treatment Required Classification of the Operator in Responsible Charge | Treatment Works Capacity (MGD) | Treatment Process Methods | Recommended Attendance by a Licensed Operator^(2,3) Time-Hrs. | Recommended Daily Hours that Works Should Be Manned^(2,3) | | I | Greater than 10 MGD | Biological Treatment Methods | | | | (A) Suspended Growth Reactors | 24 | 24 | | | | (B) Aerated Lagoons or Constructed Wetlands | 16 | 24 | | | | (C) Filters or Other Attached Growth Contactors | 24 | 24 | | | | (D) Processes Utilizing Biological Nutrient Control | 24 | 24 | | | | (E) Processes Utilizing Land Treatment | During Land Application | - - | | | | I | Equal to or less than 10 MGD but greater than 5 MGD | Biological Treatment Methods | | | | (A) Suspended Growth Reactors | 16 | 24 | | | | (B) Aerated Lagoons or Constructed Wetlands | 8 | 16 | | | | (C) Filters or Other Attached Growth Contactors | 16 | 24 | | | | (D) Processes Utilizing Biological Nutrient Control | 16 | 24 | | | | (E) Processes Utilizing Land Treatment | During Land Application | - - | | | | I | Greater than 5 MGD | Advanced Waste Treatment (AWT) | | | | (A) Ammonia Stripping | 24 | 24 | | | | (B) Breakpoint Chlorination | 24 | 24 | | | | (C) Carbon Adsorption | 24 | 24 | | | | (D) Chemical Coagulation, Flocculation, Precipitation | 24 | 24 | | | | (E) Filtration | 24 | 24 | | | | (F) Demineralization (Ion Exchange, Reverse Osmosis, Electrodialysis) | 24` | 24 | | | | I | Equal to or less than 5 MGD but greater than 2.5 MGD | Advanced Waste Treatment | | | | (A) Ammonia Stripping | 16 | 24 | | | | (B) Breakpoint Chlorination | 16 | 24 | | | | (C) Carbon Adsorption | 16 | 24 | | | | (D) Chemical Coagulation, Flocculation, Precipitation | 16 | 24 | | | | (E) Filtration | 16 | 24 | | | | (F) Demineralization (Ion Exchange, Reverse Osmosis, Electrodialysis) | 16 | 24 | | | | (G) Microstraining/Screening | 16 | 24 | | | | II | Greater than 2.5 MGD but equal to or less than 5.0 MGD | Biological Treatment Methods | | | | (A) Suspended Growth Reactors | 8 | 24 | | | | (B) Aerated Lagoons or Constructed Wetlands | 8 | 26 | | | | (C) Filters or Other Attached Growth Contactors | 8 | 24 | | | | (D) Processes Utilizing Biological Nutrient Control | 8 | 24 | | | | (E) Processes Utilizing Land Treatment | During Land Application | - - | | | | II | Greater than 0.5 MGD but equal to or less than 2.5 MGD | Biological Treatment Methods | | | | (A) Suspended Growth Reactors | 8 | 16 | | | | (B) Aerated Lagoons | 4 | 8 | | | | (C) Filters or Other Attached Growth Contactors | 8 | 16 | | | | (D) Processes Utilizing Biological Nutrient Control | 8 | 16 | | | | (E) Processes Utilizing Land Treatment | During Land Application | - - | | | | II | Greater than 0.1 MGD but equal to or less than 2.5 MGD | Advanced Waste Treatment | | | | (A) Ammonia Stripping | 8 | 16 | | | | (B) Breakpoint Chlorination | 8 | 16 | | | | (C) Carbon Adsorption | 8 | 16 | | | | (D) Chemical Coagulation, Flocculation, Precipitation | 8 | 16 | | | | (E) Filtration | 8 | 16 | | | | (F) Demineralization (Ion Exchange, Reverse Osmosis, Electrodialysis) | 8 | 16 | | | | III | Greater than 0.04 MGD but Equal to or less than 0.5 MGD | Biological Treatment Methods | | | | (A) Suspended Growth Reactors | 8 | 8 | | | | (B) Aerated Lagoons or Constructed Wetlands | 8 | 8 | | | | (C) Filters or Other Attached Growth Contractors | 8 | 8 | | | | (D) Processes Utilizing Biological Nutrient Control | 8 | 8 | | | | (E) Processes Utilizing Land Treatment | During Land Application | - - | | | | III | Greater than 1.00 MGD | Natural Treatment Methods | 4 | 8 | | III | Greater than 0.001 MGD but equal to or less than 0.1 MGD | Advanced Waste Treatment | | | | (A) Ammonia Stripping | 8 | 8 | | | | (B) Breakpoint Chlorination | 8 | 8 | | | | (C) Carbon Adsorption | 8 | 8 | | | | (D) Chemical Coagulation, Flocculation, Precipitation | 8 | 8 | | | | (E) Filtration | 8 | 8 | | | | (F) Demineralization (Ion Exchange, Reverse Osmosis, Electrodialysis) | 8 | 8 | | | | IV | Greater than 0.001 MGD but equal to or less than 0.04 MGD | Biological Mechanical Methods⁽⁴⁾ | 4⁽⁵⁾ | 4⁽⁵⁾ | | IV | Greater than 0.001 MGD but equal to or less than 1.00 MGD | Natural Treatment Methods⁽⁴⁾ | 4⁽⁵⁾ | 4⁽⁵⁾ | | Notes: ⁽¹⁾Specific requirements for the number of licensed operators and the number and qualifications of the operating staff specified in accordance with this chapter and in consultation with and concurrence by the director are to be evaluated on a case-by-case basis in accordance with operational reliability and permit compliance data. Such requirements are to be included in the Operation and Maintenance Manual. ⁽²⁾If a particular treatment unit is discontinued or not in use for a significant period of time and the remaining treatment processes result in a lower classification for the treatment works, the licensed operator and operating staff requirements during that period may be reduced to that required for the type and classification of treatment process remaining in service, after concurrence by the director. ⁽³⁾If more than one sewage treatment process is used, the more stringent requirements among the processes will apply. In some cases, complexity of operation for several AWT processes in sequence may require more than the minimum coverage. ⁽⁴⁾Mechanical treatment processes are defined as those containing aerated and mixed flows using electrical or outside energy sources. ⁽⁵⁾An operator is not required unless the facility is designated as a wastewater treatment works by DEQ. | | | | |

History

• Statutory Authority: §§ 62.1-44.19 and 62.1-44.19:3.5 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-360 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-300, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

Article 1 Collection and Conveyance Sewers

9VAC25-790-310 Design factors

Article 1 Collection and Conveyance Sewers

A. Sewage collection systems shall be designed and constructed to achieve total containment of the predicted sewage flows contributed from the established service area and population. New combined sewers receiving direct storm water drainage shall not be approved. Interceptor sewers for existing combined sewers shall be designed and constructed to prevent the discharge of inadequately treated wastes. Overflows from intercepting sewers shall be managed in accordance with the issued certificate or permit.

B. Basis. In general, sewer systems should be designed for the estimated ultimate tributary population with an upper limit consisting of the 50-year population growth projection, except when considering parts of the systems that can be readily increased in capacity. Consideration shall be given to land use plans and to other planning documents and to the maximum anticipated capacity of institutions, industrial parks, apartment developments, etc.

C. Factors. In determining the required capacities of sanitary sewers, the following factors shall be considered:

a. Maximum hourly sewage flow.

b. Additional maximum sewage or wastewater flows from industrial sources.

c. Ground water infiltration.

d. Topography of area.

e. Location of sewage treatment works.

f. Depth of excavation.

g. Pumping requirements.

h. Occupancy rates.

D. Capacity. New sewer system capacity shall be designed on the basis of an average daily per capita flow of sewage of not less than that set forth in Table 3 (9VAC25-790-460) of this chapter. These figures are assumed to include infiltration but do not address inflow. When deviations from the foregoing per capita rates and established peak flow factors are proposed, a description of the procedure used to establish those design flows shall be included with the submission for the purpose of this chapter, the following list defines the various collection system components that are to be designed to transmit peak flow rates:

1. "Lateral" means a sewer that has no other common sewers discharging into it.

2. "Submain" means a sewer that receives flow from one or more lateral sewers.

3. "Main or trunk" means a sewer that receives sewage flow from one or more submain sewers.

4. "Interceptor" means a sewer that receives sewage flow from a number of gravity mains, trunk sewers, sewage force mains, etc.

The minimum peak design capacity for lateral and submain sewers should be 400% of the average design flow.

Minimum peak design capacity of main, and trunk, sewers should be 250% of the average design flow.

Minimum peak design for interceptor sewers shall be 200% of the average design flow.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-370 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-310, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-320 Design details

A. Sizing. For the purpose of this chapter the gravity sewer design details as described herein represent the best available standards of practice. Hydraulic computations and other design data should clearly establish the capacity of proposed sewers that do not conform to the minimum standards included in this section.

1. Sewer size shall not be less than eight inches in diameter, except under the following conditions:

a. Laterals serving six connections or fewer on cul de sacs or as sidewalk collector lines may be six inches in diameter.

b. Sewer lines carrying settled sewage, such as septic tank effluent, may be as small as 1-1/2 inches in diameter.

2. Engineering calculations and justifications indicating that reduced line sizes are adequate shall be included with the submission.

B. Placement. Gravity sewers shall be of suitable material and placed such that their design capacity is maintained and leakage into and out of the pipelines is within allowable values.

1. Sewers shall be installed at a sufficient depth to prevent ice formation due to cooling of the wastewater flows, resulting in blockage of the flow channel. Sewers carrying nonsettled sewage and sewers carrying settled sewage shall be designed and constructed to give mean velocities, when flowing full, of not less than two feet per second and 1.3 feet per second, respectively, based on Manning's formula using a pipe material roughness coefficient ("n") value of 0.014. Use of other "n" values and slopes less than those specified herein shall be justified on the basis of pipe material specifications, research, or field data, presented with the submission for approval.

2. The following list represents the minimum slopes, which should be provided for gravity sewers; however, slopes greater than those listed are desirable:

| | Sewer Size | Minimum Slope in Feet per 100 Feet | | | --- | --- | --- | --- | | | Nonsettled Sewage | Settled Sewage | | | | 3 inch | Not Allowed | 0.53 | | | 4 inch | Not Allowed | 0.47 | | | 6 inch | 0.49 | 0.21 | | | 8 inch | 0.40 | 0.15 | | | 10 inch | 0.28 | 0.12 | | | 12 inch | 0.22 | 0.086 | | | 14 inch | 0.17 | 0.068 | | | 15 inch | 0.15 | 0.063 | | | 16 inch | 0.14 | 0.058 | | | 18 inch | 0.12 | 0.050 | | | 21 inch | 0.10 | 0.040 | | | 24 inch | 0.08 | 0.034 | | | 27 inch | 0.067 | 0.029 | | | 30 inch | 0.058 | 0.025 | | | 36 inch | 0.046 | 0.020 |

3. Decreased slopes may be provided where the depth of flow will be 0.3 of the diameter or greater for design average flow. Whenever such decreased slopes are selected, design consultants must furnish, with their report, computations of the depth of flow in such pipes at minimum, average, and peak daily or hourly rates of flow. Otherwise, it must be recognized that decreased slopes may require available resources for additional sewer maintenance.

4. Sewers shall be installed with uniform slope between manholes.

5. Sewers constructed on 20% slope or greater shall be anchored securely with concrete anchors or equal. Suggested minimum anchorage is as follows:

a. Not over 36 feet center-to-center on grades 20% and up to 35%.

b. Not over 24 feet center-to-center on grades 35% and up to 50%.

c. Not over 16 feet center-to-center on grades 50% and over.

6. Gravity sewers shall normally be installed with a straight alignment between manholes. Curved sewers should be installed only on curved streets, where the curve of the street and the curve of the sewer are concentric. The use of curved alignment for sewers may be considered, with the following restrictions:

a. Justification shall be provided by the design consultant to verify that the curved alignment is more advantageous for that installation.

b. The use of curved sewers shall be limited to conveyance of settled sewage unless the owners can document that the specialized equipment necessary to clean the sewers will be obtained and used as necessary.

c. The minimum radius of the curve shall be based on the maximum allowable joint deflection in accordance with the appropriate ASTM standard or other appropriate standard.

d. The sewers shall be installed with smooth radius curves.

7. Gravity sewer size shall normally remain constant between manholes. Where a smaller sewer joins a larger one, the relative elevations of the inverts of the sewers shall be arranged to maintain approximately the same energy gradient. An approximate method for securing these results, which may be used, is to align the 80% capacity flow level, or to align the internal pipe crown or top invert, of both sewers, at the same elevation.

8. Where velocities greater than 15 feet per second are expected, special provisions shall be made to protect against internal erosion by high velocity. The pipe shall conform to applicable ASTM, AWWA, ANSI, or other appropriate standards or specifications, which provide protection against internal erosion.

9. Any generally accepted material for sewers will be given consideration, but the material selected shall be adapted to local conditions such as character of industrial waste, possibility of septicity, soil characteristics, exceptionally heavy internal-external loadings, abrasions, and similar problems. The pipe material shall conform to applicable ASTM, AWWA, ANSI, or other appropriate standards and the pipe is to be marked with an approved identification such as the specifications standard.

10. All sewers shall be designed to prevent damage from superimposed loads. Proper allowance shall be made for loads on the sewer as a result of the width and depth of the trench.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-380 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-320, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Errata 20:12 VA.R. 1526 February 23, 2004.

9VAC25-790-330 Construction details

A. Pipe joints. The method of joining pipe and the material used shall be included in the design specifications in accordance with ASTM or other nationally recognized standards and the joint material and joint testing shall conform to the appropriate standards and specifications.

1. Sewer joints shall be designed to prevent infiltration and to prevent the entrance of roots.

2. When clay sewer pipe is used, the joints shall be compression joints, made in conformance with the appropriate ASTM specification.

3. When concrete pipe is used, single rubber ring gasket joints shall conform to the appropriate ASTM specification.

4. When asbestos cement pipe, truss pipe, or ductile iron pipe is used, joints using couplings and gaskets shall be made in conformance with the requirements of the appropriate ASTM specification.

5. Joints for plastic material pipe may be of compression gaskets, chemical welded sleeves, or chemical fusion joints per manufacturers' recommendations.

Heat fusion joints may be used for high density polyethylene pipe.

B. Leakage. An acceptance test shall be specified for all gravity sewer lines. The test may be either a hydrostatic test or an air test.

1. Where hydrostatic testing is specified (infiltration or exfiltration), the leakage outward or inward shall not exceed 100 gallons per inch of nominal pipe diameter per mile per day (2,400 gpd/mi maximum) for any section of the system. Manholes should be tested prior to pipeline testing. Where the exfiltration test is employed, the line shall be subjected to a minimum of four feet of head, or up to the head to the top of the previously tested manhole, whichever is the lesser, above the crown of the pipe at the upstream manhole of the section being tested.

2. The infiltration test shall be allowed only when it can be shown that the hydrostatic head outside the pipe is a minimum of four feet or exceeds the upstream manhole depth, whichever is the lesser, above the crown of the pipe for the entire length of the pipe being tested.

3. Where air testing is specified, test methods and acceptability criteria shall be in accordance with the appropriate ASTM specification. Air testing shall generally be acceptable for all types of pipe materials. If air testing is employed, the manholes shall be tested by exfiltration.

4. Manhole leaking standards as specified in 9VAC25-790-350 shall be obtained.

C. Building sewers. Sewerage service lines from buildings (sewers) shall be constructed in accordance with either the Uniform Statewide Building Code of Virginia or this chapter and standards contained in this chapter, depending on jurisdictional considerations as outlined in Part IV (9VAC25-790-940 et seq.) of this chapter. An interceptor, or separation basins, may be required under the provisions of state or local building codes or standards and the provisions of this chapter.

1. Connections shall be made to sewers by replacing a length of pipe with branch fittings, or a clean opening cut with tapping equipment and a "y" type of connection completed and sealed. In some instances a tee-saddle or tee-insert may be attached to the sewer submain to provide a connection.

2. All connections to sewers and manholes shall be made so as to prevent structural damage and infiltration. To meet future needs, stubs, wyes, and tees may be installed if plugged tightly.

D. Trench construction. Class A, B, or C bedding (American Society of Civil Engineers (ASCE) Manuals and Reports on Engineering Practice—No. 36, 1974, Water Pollution Control Federation (WPCF) Manual of Practice—No. 9, 1970, and American Waterworks Association (AWWA) for Installation of Ductile-Iron Water Mains and their Appurtenances (ANSI/AWWA C600-82), 1982, bedding class shall be provided for rigid pipe, and appropriate installation shall be provided for flexible pipe material in accordance with recognized standards and manufacturers' recommendations.

1. Trenches shall be carefully backfilled with excavated materials approved for backfilling, consisting of earth, loam, sandy clay, sand and gravel, soft shale, or other approved materials free from large clods of earth or stones larger than one inch in diameter, deposited in six inch layers, and thoroughly and carefully tamped until the pipe has a cover of not less than one foot.

2. The remainder of the backfill shall be placed in the trench in layers not exceeding two feet and thoroughly tamped. No stone or rock larger than five inches in its greatest dimension shall be used in backfilling.

3. Trenches in public roadways shall be excavated, backfilled and compacted in accordance with the standards specified in the Virginia Department of Transportation's Road and Bridge Specifications or other acceptable criteria.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-390 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-330, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-340 Vacuum sewage system

A. Features. Vacuum sewer systems consisting of small diameter pipes that collect sewage delivered through multiple service connection values and deliver that flow under negative pressure to one or more receiving stations will be considered on a case-by-case basis. The design shall include, but not be limited to, the following criteria:

1. Minimum pipe diameter shall be three inches for nonsettled sewage and 1-1/2 inches for settled sewage.

2. Shut-off valves shall be provided at branch connections with lines exceeding 300 feet and at intervals no greater than 2000 feet on main vacuum lines. Valves shall not obstruct the flow path when fully opened for operation. Gate valves and butterfly valves may not be acceptable if the flow path is obstructed during system operation.

3. Access points equal to the vacuum line diameter shall be provided at the end of main and branch lines and at intervals or locations suitable for operation and maintenance of the system. Access or inspection points shall be provided so that a suitable means for shut off of lines can be readily inserted.

4. Provisions for vacuum testing the piping system shall be described and made available to the department.

B. Connection valves. The minimum diameter of vacuum valves for nonsettled sewage shall be such that a sphere of 2-1/2 inches can pass through. For settled sewage a 1-1/2 inches sphere shall pass through the vacuum valve. Vacuum valves shall be capable of operation under severe climatic conditions such as submerged under water or ice conditions. Air vents shall extend above ground to a level up to the 100-year flood elevation, if practical. Air vent design should provide protection against both freezing and physical damage, where possible. Access to valve pits shall be such that valves may be easily removed and replaced. A holding tank of sufficient volume up to 25% or more of the design daily flow shall be provided upstream of the vacuum valve when the location of the vacuum valve alone does not permit proper system operation.

C. Receiving station. A minimum of two sewage and vacuum pumping units shall be provided for receiving stations. The system shall be capable of handling peak sewage and air flow conditions with one unit out of service. In the overall design, consideration shall be given to pump cooling requirements and features required for pumping moist air containing sewer gases. Provisions for odor control such as exhaust air oxidation or deodorization shall be considered in the system design. The design of the pump station should minimize the discharge of air along with the sewage. The capacity of the collecting tanks shall be sufficient to limit the start frequency of all pumps to less than 12 per hour. The number of collection tanks shall be established to account for system reliability and operability.

1. Provisions shall be made to isolate the receiving vacuum collection tank, vacuum pumps, raw sewage influent line, and raw sewage discharge pumps.

2. The raw sewage pumps shall meet all applicable requirements of this chapter. The negative head created by the vacuum pumps shall be considered in calculating Net Positive Suction Head (NPSH).

D. Service. Adequate service arrangements shall be provided for routine and emergency maintenance and operation. The arrangements shall include:

1. Right of access.

2. Adequate spare valves, spare parts, and service tools.

3. Monitoring, alarm system to locate vacuum loss or valve failure.

E. Operability. The vacuum collection system is to be operated in a manner to prevent the discharge of raw sewage to any waters and to protect public health and welfare by preventing back-up of sewage and subsequent discharge to basements, streets, and other public and private property.

1. Provisions for maintaining interim household service and preventing sewage overflows during system malfunction shall be described and submitted with design information in accordance with this chapter.

2. An alarm system shall be provided capable of alerting maintenance personnel of operational and safety problems in case of malfunction in the collection system.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-400 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-340, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-350 Manholes

A. Location. Manholes shall be installed at the end of each line of eight-inch diameter or greater; at all changes in grade, size, or alignment; at all intersections; and at distances not greater than 400 feet for sewers 15 inches or less in diameter and 500 feet for sewers 18 inches to 30 inches in diameter, except that distances up to 600 feet may be adequate in cases where adequate modern cleaning equipment for such spacing is provided.

1. Slightly greater spacing may be utilized in larger sewers.

2. Terminal cleanouts may be acceptable in place of manholes, on lines eight inches in diameter or less, on a case-by-case basis. Cleanouts may be used in lieu of manholes for collection of settled sewage. Manholes are required where four or more sewers intersect, or where two or more sewers intersect at depths greater than eight feet. Cleanouts shall be installed at distances not greater than 400 feet for settled sewage systems.

B. Materials. Manholes shall be constructed of materials that will maintain structural integrity throughout the design life of the sewer. Manhole wall and bottom construction shall be such as to ensure water tightness and the Virginia Department of Labor and Industry, Occupational Safety and Health Administration (VOSH) requirements may also specify design requirements. Confined space entry restrictions are to be met. For those manholes and vertical sections of pipe tees used for maintenance access, safety slabs or platform benches should be provided at depth intervals of 10 feet or less as required unless adequate access lifting devices are provided in accordance with VOSH or other recognized standards. The use of sections of reinforcing bars as access steps is not recommended for safety considerations.

C. Features. The base inside diameter of manholes and vertical pipe tees used for maintenance access shall be a minimum of 42 inches. The clear opening in the manhole frame shall be a minimum of 24 inches. Larger base diameters are preferred.

1. The manhole foundation shall be adequately designed to support the manhole and any superimposed loads that may occur.

2. The flow channel through manholes shall be of such shape and slope to provide smooth transition between inlet and outlet sewers and to reduce turbulence. Benches shall be sloped to the channel to prevent accumulation of solids.

3. When the flow direction or horizontal deflection of a sewer line varies significantly, elevation changes may be necessary to provide for head losses. The minimum vertical change in elevation from upstream to downstream should provide for a head loss of up to 3 inches or more, when ninety degrees of deflection is specified.

4. Watertight manhole covers or watertight manhole inserts shall be used whenever the manhole tops may be flooded for several hours or more. As a minimum, watertight manhole covers or watertight manhole inserts shall be used when the manhole top is below the elevation of the 100-year flood/wave action.

5. Masonry manholes of brick or segmented block and the nongasketed joints of precast manholes shall be waterproofed on the exterior with suitable coatings (e.g., cement supplemented with bituminous).

6. Inlet and outlet pipes shall be joined to the manhole with a gasketed flexible watertight connection or any watertight connection arrangement that allows differential settlement of the pipe and manhole wall to take place without destroying the watertight integrity of the line connections.

7. Ventilation of gravity sewer systems shall be provided where continuous watertight sections greater than 1,000 feet in length are incurred.

8. In accordance with this chapter and standards contained in this chapter, frames, and covers shall be of suitable material and designed to accommodate prevailing site conditions. Ventilation, safety lines, hoist arrangements and other requirements, as necessary for material maintenance access, should be provided in accordance with VOSH requirements.

9. A drop pipe should be provided for an upstream sewer entering a manhole at an elevation of 24 inches or more above the manhole invert unless sewer pipe crowns match elevations, or as may otherwise be required to conform to the use of standard fittings in the drop pipe construction. Where the difference in elevation between the incoming sewer and the manhole invert is less than 24 inches, the invert shall be filleted to prevent solids deposition. A drop pipe shall be used when the upstream to downstream invert difference exceeds 24 inches and the sewer deflects horizontally at a manhole. The drop through the manhole should be a maximum of four inches for a 90° horizontal deflection.

D. Leakage testing. Manholes may be tested for leakage at the same time that gravity sewer lines are being hydrostatically tested for leakage. For manholes greater than four feet in depth whose entire depth was not included in the hydrostatic testing of the sewer line, the manholes shall be tested by exfiltration. Inflatable stoppers shall be used to plug all lines into and out of the manhole being tested. The manhole shall be filled with water to the top of the rim. A maximum 12-hour soak shall be allowed. Leakage shall not exceed 0.25 gallon per hour (gph) per foot of depth.

1. If air testing of sewer lines is employed, the manholes shall normally be tested by exfiltration. Inflatable stoppers shall be used to plug all lines into and out of the manhole being tested. The stoppers shall be positioned in the lines far enough from the manhole to ensure testing of the untested portions of the lines. The manhole shall then be filled with water to the top of the rim. A maximum 12-hour soak shall be allowed. Leakage shall not exceed 0.25 gph per foot.

2. Air testing or vacuum testing of manholes for leakage may be considered on a case-by-case basis. It is important that the entire manhole from the invert to the top of the rim be tested.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-410 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-350, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-360 Water quality and public health and welfare protection

A. Design integrity. The tops of all sewers entering or crossing streams shall be at a sufficient depth below the natural bottom of the streambed to protect the sewer line. In general, one foot of suitable cover shall be provided where the stream is located in rock and three feet of suitable cover in other material. Less cover will be considered if the proposed sewer crossing is encased in concrete and will not interfere with future improvements to the stream channel. Reasons for requesting less cover shall be given in the application. Below paved channels, the crown of the sewer lines should be placed under the channel pavement. Sewers shall remain fully operational during the 25-year flood/wave action. Sewers and their appurtenances located along streams shall be protected against the normal range of high and low water conditions, including the 100-year flood/wave action. Sewers located along streams shall be located outside of the streambed wherever possible and should be sufficiently removed therefrom to provide for future possible channel widening. Reasons for requesting sewer lines to be located within streambeds shall be given in the application.

1. Sewers entering or crossing streams shall be constructed of watertight pipe. The pipe and joints shall be tested in place and shall exhibit zero infiltration. Sewers laid on piers across ravines or streams shall be allowed only when it can be demonstrated that no other practical alternative exists. Such sewers on piers shall be constructed in accordance with the requirements for sewers entering or crossing under streams. Construction methods and materials of construction shall be such that sewers will remain watertight and free from change in alignment or grade due to anticipated hydraulic and physical loads, erosion, and impact.

2. Depressed sewers or siphons shall have not less than two barrels, with a minimum pipe size of six inches and shall be provided with necessary appurtenances for convenient flushing and maintenance; the inlet and outlet chambers shall be designed to facilitate cleaning; and, in general, sufficient head shall be provided and pipe sizes selected to secure velocities of at least three feet per second for average flows. The inlet and outlet details shall be arranged so that normal flow is diverted to one barrel and so that either barrel may be removed for service or cleaning.

B. Water supplies. No general requirement can be made to cover all conditions. Sewers shall meet the requirements of the appropriate reviewing agency with respect to minimum distances to structures and pipelines utilized for drinking water supplies. There shall be no cross connection between a drinking water supply and a sewer, or appurtenance thereto.

1. The requirements of the Virginia Waterworks Regulations (12VAC5-590) shall be satisfied.

2. The requirements of the Virginia Sewage Handling and Disposal Regulations (12VAC5-610) shall be satisfied.

3. No sewer line shall pass within 50 feet of a drinking water supply well, source, or structure unless special construction and pipe materials are used to obtain adequate protection. The proposed design shall identify and adequately address the protection of all drinking water supply wells, sources, and structures up to a distance of 100 feet of the sewer line installation.

4. Sewers shall be laid at least 10 feet horizontally from a water main. The distance shall be measured edge-to-edge. When local conditions prohibit this horizontal separation, the sewer may be laid closer provided that the water main is in a separate trench or an undisturbed earth shelf located on one side of the sewer and the bottom of the water main is at least 18 inches above the top of the sewer. Where this vertical separation cannot be obtained, the sewer shall be constructed of water pipe material in accordance with AWWA specifications and pressure tested in place without leakage prior to backfilling. The hydrostatic test shall be conducted in accordance with the most recent edition of the AWWA standard (ANSI/AWWA C600-82) for the pipe material, with a minimum test pressure of 30 psi.

5. Sewers shall cross under water mains such that the top of the sewer is at least 18 inches below the bottom of the water main. When local conditions prohibit this vertical separation, the sewer shall be constructed of AWWA specified water pipe and pressure tested in place without leakage prior to backfilling, in accordance with the provisions of this chapter. Sewers crossing over water mains shall:

a. Be laid to provide a separation of at least 18 inches between the bottom of the sewer and the top of the water main.

b. Be constructed of AWWA approved water pipe and pressure tested in place without leakage prior to backfilling, in accordance with the provisions of this chapter.

c. Have adequate structural support to prevent damage to the water main.

d. Have the sewer joints placed equidistant and as far as possible from the water main joints.

6. No water pipe shall pass through or come into contact with any part of a sewer manhole. Manholes shall be placed at least 10 feet horizontally from a water main whenever possible. The distance shall be measured edge-to-edge of the pipes or structures. When local conditions prohibit this horizontal separation, the manhole shall be of watertight construction and tested in place.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-420 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-360, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-370 System access

Sewer location should be within streets, alleys, and utility rights-of-way. Approvals shall be obtained from the appropriate jurisdictions for placement of sewers within these boundaries.

Where it is impossible to avoid placing sewers (and manholes/cleanouts) on private property, the owner shall have recorded easements or have filed certificates of condemnation from all parties possessing or having legal interest in an adequate right-of-way necessary for proper installation, maintenance, operation, and removal of sewerage facilities. These easements shall include provisions for controlling the location of fences, buildings, or other structures within the easement and shall be shown on the plans.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-430 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-370, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 2 Sewage Pump Stations

9VAC25-790-380 Sewage pumping

Article 2 Sewage Pump Stations

A. Features. Sewage pump stations should be located as far as practicable from present or proposed built-up residential areas, and an all-weather road shall be provided. Stations should have a proper zone of controlled or limited use surrounding them. Within such zones, residential uses or high density human activities or activities involving food preparation should be prevented. Provisions for noise control and odor control, and station architectural design should conform to site requirements. Sites for stations shall be of sufficient size for future expansion or addition, if applicable. All mechanical and electrical equipment which could be damaged or inactivated by contact with or submergence in water (motors, control equipment, blowers, switch gear, bearings, etc.) shall be physically located above the 100-year flood/wave action or otherwise protected against the 100-year flood/wave action damage. All stations shall be designed to remain fully operational during the 25-year flood/wave action.

1. Where it may be necessary to pump raw (untreated) or unsettled sewage prior to grit removal, the design of the wet well shall receive special attention. The discharge piping shall be designed to prevent grit settling in the discharge lines when pumps are not operating.

2. At least two pumping units shall be provided. Where two units are provided, each shall be capable of handling flows in excess of the expected maximum flow or a minimum of 2-1/2 times the average design flow, whichever is greater. Where three or more units are provided, they shall be designed to fit actual flow conditions and must be of such capacity that, with any one unit out of service, the remaining units will have capacity to handle the maximum sewage flow or a minimum of 2-1/2 times the average design flow, whichever is greater. When the station is expected to operate at a flow rate less than one-half times the average design flow for an extended period of time, the design shall address measures taken to prevent septicity due to long holding times of untreated sewage in the wet well.

3. Treatment works pump stations should be designed so that sewage will be delivered to the treatment works at approximately the same rate it is received at the pump station. At least two pumping units shall be provided. Treatment works pump stations are those stations which discharge to sewage treatment works without dissipation of flow through a gravity collection system. Where only two pumping units are to be utilized, they shall be variable speeded and sized so that the pumps deliver from 1/2 to 2-1/2 times the average design flow or the maximum flow, whichever is greater, except where flow equalization is utilized in accordance with this chapter. Where constant speed pumps are to be utilized without equalization, either (i) at least three pumps, each having a capacity of approximately 1-1/4 times the average design flow, or (ii) two pumps, each having a capacity of approximately 1-1/4 times the average design flow, with the third pump having a capacity of 2-1/2 times the average design flow, shall be provided as needed to transfer the maximum flow. Multiple-speed pumps in lieu of variable speed pumps may be considered for specific applications. These criteria for influent flows will not apply to such treatment works where several days' holding capacity is provided, such as in stabilization ponds or in aerated lagoons.

4. Pumps handling raw sewage should be preceded by readily accessible bar racks with clear openings not exceeding 2-1/2 inches, unless pneumatic ejectors are used or special devices are installed to protect the pumps from clogging or damage. Where the size of the installation warrants, a mechanically cleaned bar screen with either a grinder or comminution device is recommended. Where screens are located below ground, convenient facilities must be provided for handling screenings. For the larger or deeper stations, duplicate protection units of proper capacity are preferred. Interceptor or separation basins may be necessary prior to pumps handling raw sewage.

5. Pumps in which the solids pass through the impeller(s) shall be capable of passing spheres of at least three inches in diameter. Pumping equipment having integral screens for preventing solids from passing through the impeller shall be capable of passing spheres of at least two inches in diameter. Pumping equipment preceded by grinding equipment shall be capable of passing the solids discharged from the grinding mechanism.

6. Pumps shall be so placed that under normal start conditions they will start with a positive suction head, except as specified for suction lift pumps. Each pump shall have an individual intake and suction line. Wet well design should be such as to avoid turbulence near the intake. Pump suction and discharge piping shall not be less than four inches in diameter except where design of special equipment allows. The design velocity in pump piping should not exceed (i) six feet per second in the suction piping, and (ii) in the discharge piping, eight feet per second. All pumps should be provided with an air relief line on the pump discharge piping.

7. Control float cages shall be so located as not to be affected by the flows entering the wet well or by the suction of the pumps. Float tubes will not be permitted in either the wet or dry well. Air-operated pneumatic controls are preferred for all sewage pump stations. Provisions shall be made to automatically alternate the pumps in use (which is referred to as lead-lag operation) unless adequate operation and maintenance is to be provided to protect against pump failure.

8. For the purpose of designating liquid levels for alarm requirements, high liquid level in the wet well is defined as a level of sewage in the wet well above normal operating levels such that either: (i) a backup of sewage in the incoming sewer may occur, or (ii) an overflow may occur, or (iii) standby pump(s) may be required to be activated. In the case of a duplex pump station with limited wet well volume, the alarm design should include activation at the time of simultaneous operation of both pumps, initiating when the second alternating pump starts (referred to as the lag pump).

9. Suitable shut-off valves shall be placed on each suction and each discharge line of each pump for normal pump isolation. A check valve is to be placed on each discharge line, between the shut-off valve and the pump. No shut-off valve need be placed on the suction side of suction lift or submersible pumps. Periodic exercising of valves should be specified within the routine maintenance programs.

10. System pump stations should have the provision for installing flow measuring devices when necessary. Consideration should be given to installation of such devices in system pump stations whose flow rate can affect the proper operation of the treatment works.

11. Adequate lighting for the entire pump station shall be provided in accordance with VOSH and other applicable codes and standards.

12. Pump stations shall be designed in accordance with the statewide building code and so as to minimize the adverse effects of vandalism. Pump stations shall be equipped with a secure external disconnect switch located above grade where possible.

B. Ventilation shall be provided in accordance with VOSH requirements and shall comply with this chapter for enclosed spaces within pump stations during all periods when the station is manned. Where the pump is permanently mounted below the ground, mechanical ventilation is required and shall be arranged so as to independently ventilate the dry well.

1. As a minimum, ventilation of the wet well shall be accomplished by the provision of a properly screened vent, with the end either turned downward or provided with a "mushroom" cap. The vent shall be at least four inches in diameter. If screens or mechanical equipment, which might require periodic maintenance and inspection, are located in the wet well, then it shall be mechanically ventilated at the time of access by maintenance personnel.

2. There shall be no interconnection between the wet well exhaust flow and the dry well ventilation systems. In pits over 15 feet deep, multiple inlets and outlets are desirable. Dampers shall not be used on exhaust or fresh air ducts, and fine screens or other obstructions in air ducts shall be avoided to prevent clogging. In climates where excessive moisture or low temperature are problems, consideration should be given to installation of automatic heating and dehumidification equipment.

3. Switches for operation of ventilation equipment shall be marked and conveniently located above grade and near the pump station entrance. Consideration should be given also to automatic controls where intermittent operation is used. The fan drive shall be fabricated from nonsparking material in accordance with applicable codes and standards.

4. Where heat buildup from pump motors may be a problem, consideration should be given to automatic cooling and ventilation to dissipate motor heat.

5. Ventilation of wet wells in accordance with VOSH requirements may be either continuous or intermittent. Ventilation, if continuous, shall provide at least 12 complete air changes per hour; if intermittent, at least 30 complete air changes per hour. Such ventilation shall be accomplished by mechanical means.

C. Water supply. There shall be no cross connection between any potable water supply and a sewage pump station which under any conditions might cause contamination of the potable water supply. Any potable water supply brought to the station shall comply with conditions stipulated in the Virginia Waterworks Regulations (12VAC5-590). Where conditions do not warrant the installation of an approved reduced pressure zone backflow prevention device on the water supply line to the pump stations, other approved devices may be considered on a case-by-case basis.

D. Service. Provisions shall be made to facilitate removing pumps, motors, and other equipment without interruption of system service while providing all necessary worker safety features.

1. In accordance with VOSH requirements, suitable and safe means of access shall be provided to dry wells and wet wells containing equipment requiring inspection or maintenance. Compliance with all applicable VOSH and Uniform Statewide Building Code requirements is recommended. All ladders shall have slip-resistant rungs.

2. If the dry well or wet well floor is more than 10 feet below the entrance, special consideration shall be given to safety features such as harness lifts, ladder cages, spiral stairways, or intermediate landings. Intermediate landings should not exceed 10 foot vertical intervals.

E. Wet wells. Proper design of wet wells is essential to effective pump station operation.

1. The wet wells at major pumping stations and in those located in critical areas should be divided into two sections properly interconnected to facilitate repairs and cleaning.

2. The wet well size and control settings shall be designed and operated so as to avoid heat buildup in the pump motor due to frequent starting and to avoid septic conditions due to excessive detention time.

3. Provisions shall be made to prevent solids deposition. Where used, wet well fillets shall have a minimum slope of one-to-one to the hopper bottom. The horizontal area of the hopper bottom shall be no greater than necessary for proper installation and function of the inlet.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-440 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-380, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-390 Reliability

A. Purpose. Reliability provisions are based on a measurement of the ability of a component or system to perform its designated function without failure or interruption of service. Overflow criteria, such as a period of discharge, are utilized solely for the establishment of reliability classification for design purposes and are not to be construed as authorization for, or defense of, an unpermitted discharge to state waters.

1. The objective of achieving reliability protection is to prevent the discharge of raw or partially treated sewage to any waters and to protect public health and welfare by preventing backup of sewage and subsequent discharge to basements, streets and other public and private property. Provisions for continuous operability of pumping stations shall be evaluated in accordance with the appropriate reliability classification.

2. For Class I Reliability, alternate motive force sufficient to operate the station at peak flow rates being received shall be operating the station prior to the expiration of an allowable time period. The maximum allowable period will be the time transpiring between the high liquid level alarm and the occurrence of an overflow, or backup and subsequent discharge, at flow rates being received (except when an emergency holding basin is provided to satisfy the requirement for continuous operability). The transpired time to be considered allowable may be the critical (shortest) transpired time (peak flow rates) or a spectrum of transpired times keyed to the 24 individual hours of the day. Certain Reliability Class I pump stations, for which it is feasible to shut down or discontinue operation during periods of power failure without bypassing or overflowing, may be exempted from the continuous operability requirement. Pump stations which may qualify for the exemption can be broadly categorized as those which serve facilities or institutions which would be closed during periods of power failure, such as certain industrial plants, schools and recreational and park areas.

3. For Class II Reliability, alternate motive force sufficient to operate the station at peak flow rates being received shall be operating the station prior to the expiration of a 24-hour period commencing at the time an overflow or discharge subsequent to a backup begins.

4. Reliability Class III pump stations are not limited to a specific period of overflow or discharge, and will be considered on a case-by-case basis.

B. Continuous operability. The owner shall demonstrate, to the satisfaction of the department, that the time allowances for continuous operability will be met on a 24-hour basis. This information shall accompany the plans and specifications when submitted and shall be subsequently modified and resubmitted at any time in the future that the actual allowable time (transpiring between the high liquid level alarm and the time that an overflow or backup and subsequent discharge will occur at flow rates being received) becomes less than the allowable time claimed in the original submission. The demonstration shall include provision of instructions indicating the essentiality of routinely maintaining, and regularly starting and running, auxiliary and reserve units under field conditions. The following means for provision of continuous operability shall be acceptable:

1. Alternate power sources or auxiliary stand-by generator that can operate sufficient pumps to deliver the design peak flow.

2. Alternate drive arrangements whereby all pumps are backed by internal combustion motors with "Y" mechanical couplings to the pump drive shafts or to permanently mounted reserve pumps capable of delivering total peak flows.

3. Portable pump resources in accordance with this chapter.

4. An emergency overflow holding basin with capacity to retain a minimum of one day of station design flow and having provisions for recycling flow to the pump station.

C. Electrical power. The sources of electrical power required to operate pump stations shall be evaluated in accordance with the reliability classification of the pump station.

1. For Class I Reliability, electric power shall be provided by alternate feed from distribution lines which are serviced by alternate feed from transmission lines (e.g., 115 KV) where possible. The transmission lines shall have alternate feed from the generating source or sources. The capacity of each power source shall be sufficient to operate the pumps during peak wastewater flow conditions, together with critical lighting and ventilation. The requirement for alternate feed can be satisfied by either a loop circuit, a "tie" circuit, or two radial lines. Where alternate feed lines terminate in the same substation, the circuit feeding the pumping station shall be equipped with two or more in-place transformers. Where alternate feed is not possible, provision of auxiliary power sources will be considered.

2. External alternate distribution lines shall be completely independent. The two sets of alternate feed distribution lines should not be supported from the same utility pole and, if used, should neither cross over, nor be located in an area where a single plausible occurrence (e.g., fallen tree) could disrupt both lines. A minimum separation of 25 feet for underground routes shall be maintained unless a properly designed and protected conduit bank is utilized. This shall apply to service connections into the pump station. Devices should be used to protect the system from lightning.

3. For Class II Reliability, a single source feed is acceptable. If alternate power sources are provided for a Class II or III station, one in-place transformer and capability for connection of a mobile transformer may be provided where the alternate feed lines terminate in the same substation.

D. Power distribution. The design of power distribution circuitry and equipment provided within pump stations shall be in accordance with the reliability classification of the pump station.

1. Reliability Class I pump stations shall have the following features:

a. Final stepdown transformer on each electric feed line with adequate physical separation to prevent a common mode failure.

b. In addition, Reliability Class I pump stations shall be provided with separate buses for each power source.

c. Each power source shall remain separate and from separate distribution substations up to the transfer switch to preclude a common mode failure of both sources.

2. Reliability Class II and Class III pump stations may be equipped with a single final stepdown transformer, a single bus, a single motor control center, and a single power distribution system.

3. Breaker settings or fuse ratings shall be coordinated to effect sequential tripping such that the breaker or fuse nearest the fault will clear the fault prior to activation of other breakers or fuses, to the degree practicable.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-450 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-390, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-400 Pumping equipment

A. Proper location. Where practicable, the electric switchgear and motor control centers should be housed above grade and in a separate area from the dry well. All motors and control enclosures shall be adequately protected from moisture from the weather and water under pressure. In cases where equipment may be damaged by flooding from natural events, in such a manner as to cause excessive delays in restoring the pump station to design operating levels, the means of protecting or removing such equipment prior to flooding should be described in the Operation and Maintenance Manual. Motors located indoors and near liquid handling piping or equipment shall be, at least, of-splash-resistant design. Means for heating motors located outdoors or in areas where condensation may occur should be provided. On-site emergency power generation equipment shall be located above grade and be adequately ventilated. Fuel shall be stored in safe locations and in containers specifically designed for fuel storage.

B. Electrical protection. All electrical equipment design (motors, controls, switches, conduit systems, etc.) located in raw sewage wet wells or in totally or partially enclosed spaces where hazardous concentrations of flammable liquids, gases, vapors, or dusts may be present will be evaluated in accordance with the appropriate requirements of the National Electrical Code (e.g., Class I, Group D, Division I for ignitable gases or vapors, etc.) and VOSH requirements.

1. Three-phase motors and their starters shall be protected from electric overload and short circuits on all three phases.

2. All motors shall have a low voltage protection device which, on the reduction or failure of voltage, will cause and maintain the interruption of power to that motor. The low voltage protection device should protect each phase of 3-phase motors.

3. Consideration should be given to the installation of temperature detectors in the stator and bearings of larger motors in order to give an indication of overheating problems.

4. Wires in underground conduits or in conduits that may be flooded shall have moisture resistant insulation as identified in the National Electrical Code.

5. Concrete, metals, control and operating equipment, and safety devices shall, insofar as practical, be designed to protect against corrosion.

6. Electrical power devices or equipment used to convert single phase power to three phase power shall be dedicated to a single specific motor.

C. Testing. Provisions shall be included in the design of equipment requiring periodic testing, to enable the tests to be accomplished while maintaining electric power to all vital components. This requires being able to conduct tests such as actuating and resetting automatic transfer switches and starting and loading emergency generating equipment. The electric distribution system and equipment shall be designed to facilitate inspection and maintenance of individual items without interruption of operations.

D. Generator. The power capacity provided by the on-site emergency generator shall be in accordance with the reliability classification of the pump station. The automatic start system shall be completely independent of the normal electric power source. Air-starting systems shall have an accumulator tank or tanks with a volume sufficient to furnish air for starting the generator engine a minimum of three times without recharging. Batteries used for starting shall have a sufficient charge to permit starting the generator engine a minimum of three times without recharging. The starting system shall be appropriately alarmed and instrumented to indicate loss of readiness (e.g., loss of charge on batteries, loss of pressure in air accumulators, etc.)

E. The specifications shall require that the equipment manufacturers provide to the owner one complete set of operational instructions, equipment and maintenance manuals, with troubleshooting and emergency procedures for each major mechanical and electrical equipment item. The manuals shall contain drawings of equipment and a numbered parts list keyed to a list of components. Tools and such spare parts as may be needed shall also be specified.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-460 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-400, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-410 Portable equipment and diversions

A. Needs. Portable equipment (pumps or generator sets) shall be acceptable to satisfy the continuous operability requirements where, under critical conditions imposed by rush hour traffic, multiple pumping station failures, etc., the portable equipment transportation, connection and starting can be accomplished within allowable time periods.

1. Portable pumping equipment shall have the following provisions:

a. Pumping units shall have capability to operate between the wet well and the discharge side of the station.

b. Each station served by portable pumping equipment shall facilitate rapid and easy connection of lines.

2. Numbers of portable units and their pumping implementation capabilities that are simultaneously available to service pumping stations, which are provided continuous operability through the use of portable equipment, shall conform to the following, whichever shall yield the greater number:

a. The number shall be the maximum number of pumping stations (dependent on portable equipment for continuous reliability) that are on the same radial extremity (single source feed) of any electrical distribution circuit from the point of the radial extremity's intersection with circuitry that has alternate feed.

b. The number shall be equal to 5.0% of the number of pumping stations (dependent on portable equipment for continuous reliability).

3. Volume and head capabilities (pumps) or power watts (generators) of portable equipment shall be capable, singly or in combination, of operating the largest pump station dependent on portable equipment for continuous reliability.

B. Submittals. Plans and specifications for a pump station submitted to the area engineer proposing to use portable equipment to meet continuous operability requirements shall be accompanied by a completed "Portable Equipment for Sewage Pump Stations" form. A list of this information is included in 9VAC25-790-990.

1. The design submitted for sewerage systems that utilize portable equipment to meet the continuous operability requirements for sewage pump stations shall include the following information: (i) an inventory of the owner's portable equipment (pumps or generators) which lists numbers of units, capacities, storage locations, and assignment of this equipment by the owner; and (ii) an analysis of response times based on geographical locations within the owner's sewerage system service area.

2. The response time analysis should be based upon a work crew responding to an alarm from the pump station during the hour of the day that the peak flow to that station is expected to be received.

C. Controlled diversion. The provision of a high-level wet well-controlled diversion may be considered for pump stations of all reliability classes.

1. If a high-level wet well-controlled diversion is utilized, the overflow elevation shall be such that the maximum feasible storage capacity of the wastewater collection system shall be used before the controlled diversion is used. When a controlled diversion is utilized at a Reliability Class I pumping station, it shall be to a storage detention basin or tank. The storage volume shall be sized in accordance with the pump station's operating conditions and the constraints and conditions applicable to the owner's repair and maintenance capabilities. The storage volume shall provide, without overflow, not less than six hours detention capacity at the anticipated flow diversion rate.

2. Additional storage volume, or provisions for protection against overflows in critical areas, may be required.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-470 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-410, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-420 Alarm systems

A. The alarm system provided to monitor pump station operation shall meet the appropriate reliability requirements.

B. Class I. For Class I reliability, the alarm system shall monitor the power supplies to the station, auxiliary power source, failure of pumps to discharge liquid, and high liquid levels in the wet well and in the dry well, and shall include a test function. An on-site audio-visual alarm system shall be provided such that each announced alarm condition is uniquely identified. In addition, provisions shall be made for transmitting a single audible alarm signal to a central location where personnel competent to receive the alarm and initiate corrective action are either: (i) available 24 hours per day, or (ii) available during the periods that flow is received at the pump station. A sign indicating notification procedures (responsible persons, telephone numbers, etc.) to be followed in case of alarm actuation shall be displayed conspicuously.

C. Classes II and III. For Class II or III reliability, the alarm system shall monitor high liquid levels in the wet well. An on-site audio-visual alarm signal shall be provided. A sign indicating notification procedures (responsible persons, telephone numbers, etc.) to be followed in case of alarm actuation shall be displayed conspicuously.

D. Backup. A backup power supply, such as a battery pack with an automatic switchover feature, shall be provided for the alarm system, such that a failure of the primary power source would not disable the alarm system. A backup power supply for the alarm system should be provided for a Reliability Class I facility with dual electrical feed sources. Test circuits shall be provided to enable the alarm system to be tested and verified to be working properly.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-480 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-420, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-430 Alternatives

A. General. Wet well-dry well pump stations shall meet the applicable requirements for both types of systems. Both wet and dry wells shall be separated to prevent leakage of gas into the dry well. A separate sump pump or suitable means shall be provided in the dry well to remove leakage or drainage, with the discharge above the high water level of the wet well. Vacuum ejectors connected to a potable water supply will not be approved. All floor and walkway surfaces shall have an adequate slope to a point of drainage. Drainage shall be unobstructed by conduit, piping, etc., installed on the dry well floor.

B. Suction lift. Suction lift pump installations shall be designed to meet the applicable requirements of this chapter.

1. The capacity of suction lift pump stations shall be limited by the net positive suction head and specific speed requirements as stated on the manufacturer's pump curve under the most severe operating conditions.

2. All suction lift pumps shall be provided with an air relief line on the pump discharge piping. This line shall be located at the maximum elevation between the pump discharge flange and the discharge check valve to ensure the maximum bleed-off of entrapped air. Air relief piping shall have a minimum diameter adequate to purge air during priming. The use of 90° elbows in air relief piping should be avoided. A separate air relief line shall be provided for each pump discharge. The air relief line shall terminate in the wet well or suitable sump and open to the atmosphere.

3. Valving to prevent recycle of flow to the wet well should be provided on all relief lines. The air relief valves shall be located as close as practical to the discharge side of the pump. Automatic operating air relief valves may be used if the design of the particular valve is such that the valve will fail in the open position under varying head conditions. Unvalved air relief piping may lead to air entrainment in the sewage and will materially affect pump efficiency and capacity. Air entrainment shall be considered accordingly by the design consultant.

4. All pumps, connections, shut-off valves, and check valves shall be located in a separate vault either above or outside of the wet well, allowing accessibility to both the wet well and pump/valve vault for inspection, maintenance, etc.

5. Access to the wet well shall not be through a sealed vault. The dry well shall have a gas-tight seal when mounted directly above the wet well.

C. Submersible. Submersible pump station installations shall be designed to meet the applicable requirements of this chapter.

1. Submersible pumps shall be provided with equipment for disconnecting, removal, and reconnection of the pump without requiring personnel to enter the wet well.

2. Owners of submersible pumping facilities shall provide a hoist and accessories for removing the pumps from the wet well.

3. Electrical controls shall be located in a suitable housing for protection against weather and vandalism.

4. The shut-off valve and check valve on the discharge lines of pumps operating at flows greater than 25 gpm shall be located in a separate vault outside of the wet well allowing accessibility for inspection and maintenance.

D. Pneumatic ejectors. Pneumatic ejector stations shall be designed to meet the applicable requirements of this chapter. Pneumatic ejectors should not be directly connected to force mains. The ejector design features should include:

1. Ejector pots shall be vented to the atmosphere in such a manner as to prevent nuisance conditions.

2. Duplicate compressors shall be provided.

3. Pneumatic ejectors may utilize either stored or direct air systems. If a stored air system is utilized, the air storage chamber shall not enclose any piping, valves, or working parts.

4. Duplicate receiver pots shall be provided. The units shall be alternated in operation.

E. Grinder. Grinder pump installations shall be designed to meet the applicable requirements of this chapter.

1. Maintenance and operation service arrangements shall be identified to the division. Acceptable service arrangements shall include:

a. Right of access.

b. Adequate spare parts, spare units and service tools.

2. A single pumping unit for a single home or equivalent flow is acceptable, but the wet well capacity for a single family residence should be a minimum of 60 gallons.

3. Duplex pumping units shall be provided where two houses or equivalent flow are served by a single installation. The wet well or holding tank capacity shall be twice the requirements for a single house.

4. The alarm system should provide notice to residents of pump failure, including excessive high liquid levels. The alarm system should alert the operating staff of the location of pump failure.

5. Pumping equipment shall be capable of delivering flows at the design pressure of the sewer system. Cutter blades shall be driven with a minimum motor size of two horsepower, unless performance data, evaluated by the department, verifies that a smaller motor is suitable.

F. Septic tank effluent pump. Septic Tank Effluent Pumps (STEP) may be located within the effluent end of a single tank or within a separate vault external from the septic tank. The design for STEP facilities is described in published literature, such as the USEPA Technology Transfer Manual "Alternative Wastewater Collection Systems" (EPA/625/1-91/024), which may be used as a reference.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-490 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-430, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-440 Force mains

A. Capacity. The minimum size of force mains shall be four inches in diameter, except for grinder pumps and septic tank effluent (settled sewage) pumping systems, which shall be provided with a minimum diameter of one inch.

1. At pumping capacity, a minimum self-scouring velocity of two feet per second shall be maintained unless provisions for flushing are made. A velocity of eight feet per second should not be exceeded unless suitable construction methods are specified.

2. Air relief valves shall be placed at the high points in the force main to relieve air locking and shall be periodically exercised and maintained.

B. Connections. Force mains shall normally enter a gravity sewer system at a point no more than one foot above the flow line of the receiving manhole with a curved section to prevent air from traveling up into the force main. The force main should enter the receiving manhole with its center-line horizontal, and shall have an invert elevation which ensures a smooth flow transition to the gravity flow section. Special attention shall be paid to the design of the termination in order to prevent turbulence at this point. Whenever existing force mains are connected within a sewerage system in a manner that results in increased flow rates or pressure increase to the existing force mains, those existing force mains shall be examined by the owner. Existing force mains may be examined by internal visual inspections, flow or pressure testing, or other suitable means to verify hydraulic and structural adequacy to convey the actual or projected flow. The results of such inspections and tests shall be submitted with the design documents.

C. Materials. All pipe used for force mains shall be of the pressure type with pressure type joints. The force main shall be constructed of materials with a demonstrated resistance to deterioration from corrosion, acidity, and other chemical action.

1. Consideration should be given to the use of inert materials or protective coatings for either the receiving manhole or gravity sewer to prevent deterioration as a result of hydrogen sulfide or other chemical attack. These requirements should be provided for all force mains.

2. All force mains shall be tested at a minimum pressure of at least 50% above the design operating pressure for at least 30 minutes. Leakage shall not exceed the amount given by the formula contained in the most current AWWA Standard C-600.

D. Installation. Class A, B or C bedding (ASCE Manuals and Reports on Engineering Practice—No. 36, 1974 and the WPCF Manual of Practice—No. 9, 1970) or AWWA pipe installation conditions 3, 4 or 5 (ANSI/AWWA C600-82) shall be provided for installation of pipelines in excavated trenches. Installation of pipelines of flexible materials shall be in accordance with recognized standards.

Force mains shall be sufficiently anchored within the pump station and throughout the line length. The number of bends shall be as few as possible. Thrust blocks, restrained joints, or tie rods shall be provided where restraint is needed.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-500 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-440, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 3 Sewage Treatment Works

9VAC25-790-450 Treatment works design

Article 3 Sewage Treatment Works

A. The sewage treatment process consists of a sequential, upstream to downstream, arrangement of unit operations that remove or modify contaminants through several treatment phases, including (i) primary, (ii) secondary, and (iii) tertiary. A conventional or established secondary treatment process will include primary treatment. Advanced wastewater treatment works include all three phases of treatment. Sewage treatment works should be designed to provide waste water treatment for the tributary sewage flows from either the estimated population 10 years hence or a capacity required by applicable state or federal requirements.

B. Location. A sewage treatment works site shall be located as far as practicable from any existing built-up commercial or residential area, which will probably develop within the design life of the treatment works. The treatment works site shall be (i) protected by a buffer zone, (ii) located to avoid flooding, (iii) provided with year-round access, and (iv) provided with ample area for any future expansion. The minimum distance between the locations of effluent discharges from separate treatment works on the same watershed shall be 500 feet.

C. Restrictions. All new primary and secondary sewage treatment unit operations shall provide the minimum buffer zones as shown in Table 2 (found in 9VAC25-790-460) unless they qualify for reduced requirements as provided in this chapter. Buffer zones for advanced treatment (AWT) and natural treatment operations will be established on a case-by-case basis considering the reliability requirements and process design. Buffer zones are areas of controlled or limited use.

1. Within buffer zones, neither residential uses, high density human activities, nor activities involving food preparation are to be established within the extent of the buffer zone. The extent of the buffer zone perimeter is measured from the treatment units. Buffer zone requirements for sewage sludge incinerator restrictions shall be established in accordance with applicable state and federal regulations.

2. The department may approve a reduction of up to one half of the listed buffer zone requirements based on one or more of the following factors: (i) site topography, (ii) prevailing wind directions, (iii) existence of natural barriers, (iv) establishment of an effective windbreak, (v) type of adjacent development, and (vi) provision of enclosed units, as described in this chapter.

3. The prevailing wind direction should be determined by on-site data. Local weather station records may be utilized if they are demonstrated to be applicable. Attention should be paid to both moderate and high speed winds since the high velocity winds often have a prevailing direction different from the prevailing direction of moderate winds.

4. A windbreak should be located on both sides of the treatment works normal to a line projected through the treatment works and the area that is to be protected, as close to the treatment works as practicable. An effective windbreak may be comprised of man-made or natural barriers that extend from the ground surface to a height of 16 feet. Alternatively, a cultivated tree windbreak may be developed by planting at least four rows of fast-growing evergreen trees (pine family preferred), planted on staggered 10-feet centers. Rows should be spaced no greater than 16 feet apart. The minimum tree height at planting shall be six feet, unless taller trees are required in order to provide a windbreak which will be immediately effective. The variety of tree used should be readily adaptable to the soil and climate at the treatment works site.

5. Reduced buffer distances will be established for enclosed treatment unit operations or processes. Covered units shall be provided with screened intake openings and positive forced draft ventilation and shall have provisions for removal of aerosols and odors from the exhaust.

6. Owners of existing sewage treatment works or those treatment works proposed for upgrading shall take whatever steps possible to provide as much of the required buffer as is reasonably possible under the specific existing conditions at each treatment works site. Wherever a demonstrated nuisance problem does exist, corrective action (wind breaks or odor control measures, for example) shall be undertaken.

7. The required buffer zone shall be maintained by adequate legal instruments such as either ownership, recorded easements, or restrictive zoning throughout the life of the treatment works.

8. The director may consider exceptions to the listed buffer zone requirements in accordance with this chapter.

D. Flooding. All mechanical and electrical equipment that could be damaged or inactivated by contact with or submergence in water (motors, control equipment, blowers, switch-gear, bearings, etc.) shall be physically located above the 100-year level or otherwise protected against the 100-year flood/wave action damage. All components of the treatment works shall be located above or protected against the 25-year flood/wave action level and remain fully operational. Consideration should be given to designing the treatment works in such a way as to facilitate the removal of vital components during more extreme flood events.

E. Closure. A closure plan shall be submitted to the department in accordance with this chapter.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-510 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-450, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-460 Standards

A. The minimum degree of treatment to be provided shall be adequate in design to produce an effluent in accordance with this chapter, that will comply with the provisions of the State Water Control Law and federal law, and any water quality standards adopted by the State Water Control Board or effluent limitations adopted by the State Water Control Board or Department of Environmental Quality or orders issued by the Department of Environmental Quality. The expected performance levels of conventional treatment processes are described in subsection F of this section.

B. Industrial flows. Treatment works receiving industrial wastewater flows at a rate or volume exceeding 90% of the combined average daily influent flow can be designed and operated through the applicable requirements imposed by the State Water Control Board or Department of Environmental Quality, provided that public health and welfare protection issues are resolved. Otherwise, consideration shall be given to the character of industrial wastes in the design of the treatment works. In such cases, the treatability characteristics of the combined (sewage and industrial) wastewater shall be provided and addressed in the treatment process design. Pilot-scale testing as described in this chapter may be required to predict the full-scale treatment works operations.

C. Design loadings. Design loading refers to the established capacity of a unit operation or treatment process to reliably achieve a target performance level under projected operating conditions. Component parts and unit operations of the treatment works shall be arranged for greatest operating convenience, flexibility, economy, and to facilitate installation of future units.

1. Treatment works to serve existing sewerage systems shall be designed on the basis of established average sewage characteristics with sufficient capacity to process peak loadings. Excessive inflow/infiltration is an indication of deficiencies in the sewerage system and the design engineer shall provide an acceptable plan for eliminating or handling these excessive flows so that there will be no discharge of inadequately treated wastewaters or impairment of the treatment process.

2. A new treatment works must be designed in accordance with anticipated loadings. Table 3, found in this section, presents generally accepted minimum design flows and loadings. Deviations from Table 3 shall be based on sound engineering knowledge, experience and acceptable data substantiated in the design consultant's report. Numbers of persons per dwelling shall be based upon planning projections derived from an official source.

3. The design of treatment process unit operations or equipment shall be based on the average rate of sewage flow per 24 hours except where significant deviation from the normal daily or diurnal flow pattern is noted. The design flow for industrial wastewater flow contributions shall be determined from the observed rate of flow during periods of significant discharge or, in the case of proposed or new contributions, the industrial owner shall provide flow projections based on existing facilities of a similar nature. The following factors shall be included in determining design flows:

a. Peak rates of flow delivered through conduits as influent to the treatment process unit operations.

b. Data from similar municipalities, if applicable.

c. Wet weather flows.

4. The design organic loading should be based on the results of acceptable analytical testing of the wastewater or similar wastewater and shall be computed in the same manner used in determining design flow.

5. All piping and channels shall be designed to carry the maximum expected flow. If possible, the influent interceptor or sewer shall be designed for open channel flow at atmospheric pressure. If a force main is used to transmit the influent to the treatment works, a surge or equalization basin should be provided upstream of biological unit operations to provide a more uniform loading. Bottom corners of flow channels shall be filled and any recessed areas or corners where solids can accumulate shall be eliminated. Suitable gates and valves shall be placed in channels to seal off unused sections which might accumulate solids and to provide for maintenance.

D. Pilot plant studies. Pilot plants are defined as small scale performance models of full size equipment or unit operation design. The physical size of pilot plants varies from laboratory bench-scale reactors, with volumetric capacities of one or more liters up to several gallons, up to larger capacity arrangements of pumps, channels, pipes and tankage capable of processing thousands of gallons per day of wastewater.

Pilot scale studies are to include detailed monitoring of treatment performance under operating conditions similar to design sizes, including the proper loading factors. A sampling and analytical testing program is to be developed by the owner and evaluated by the department in order that the results of pilot plant studies can be utilized to verify full size designs.

E. Grease management. An interceptor basin or basins shall be provided to separate oil and grease from wastewater flows discharged to sewage collection systems whenever such contributions will detrimentally affect the capacity of the collection system or treatment works such that permit violations will actually or potentially occur, or such contributions will result in an actual or a potential threat to the safety of the operational staff. Interceptor basins shall be located in compliance with the Statewide Building Code as close to the source of oil and grease as practical. Interceptor basins shall be sized in accordance with the applicable building codes and local standards but shall be designed as a minimum to retain the volume of flow containing the oil or grease for each continuous discharge occurrence. But interceptor basins shall also provide a minimum volume in accordance with the following:

1. Provide two gallons of volume for each pound of grease received; or

2. Provide a minimum retention period of three hours for the average daily volume of flow received.

Interceptor basins shall be routinely maintained, including the periodic, scheduled removal of accumulations of oil and grease, within a portion of the basin volume as necessary, to prevent detrimental effects on system operation. The oil and grease shall be handled and managed in accordance with state and federal laws and regulations.

F. Expected performance. Conventionally designed sewage treatment unit operations and processes should result in an expected performance level when processing design loadings in accordance with this chapter (see Table 4 of this section). A conventional arrangement of unit operations would include primary and secondary phases. The primary phase involves the use of suspended solids setting basins called primary clarifiers. The secondary phase typically includes a biological reactor and secondary clarifier to maintain a population of microorganisms (biomass) capable of achieving a significant reduction of organic matter (Biochemical Oxygen Demand) contained in the sewage. Advanced treatment processes will include primary, secondary and tertiary phases, typically involving filtration unit operations. Conventional processes can be modified to provide for reduced levels of nutrients in the treated effluent as described in Article 9 (9VAC25-790-870 et seq.) of this part. The use of nonconventional processes to achieve required performance levels shall be considered in accordance with the provisions of Article 2 (9VAC25-790-380 et seq.) of this part.

| TABLE 2. BUFFER ZONE REQUIREMENTS FOR PRIMARY AND SECONDARY SEWAGE TREATMENT UNIT OPERATIONS^*. | | | --- | --- | | A. Unit Operations That Are Totally Enclosed⁽¹⁾ | | | DESIGN FLOW, gpd | BUFFER ZONE⁽⁴⁾ | | 1. <1,000 | None | | 2. >1,000 to <500,000 | 50 feet | | 3. Greater than 500,000 | 100 feet | | B. Unit Operations Using Low Intensity Mixing or Quiescent System⁽²⁾ | | | DESIGN FLOW, gpd | BUFFER ZONE⁽⁴⁾ | | 1. <40,000 | 200 feet | | 2. >40,000 to <500,000 | 300 feet | | 3. Greater than 500,000 | 400 feet | | C. Unit Operations Using Turbulent High Intensity Aeration or Mixing⁽³⁾ | | | DESIGN FLOW, gpd | BUFFER ZONE⁽⁴⁾ | | 1. <40,000 | 300 feet | | 2. >40,000 to <500,000 | 400 feet | | 3. Greater than 500,000 | 600 feet | | *Notes: ⁽¹⁾For example, package plant with units totally enclosed as an integral part of its design and manufacture. A package plant treatment works is defined by these regulations as a preengineered and prefabricated structural arrangement of tankage and channels with all necessary components for onsite assembly and installation. The design flow of package plants should be less than 0.1 mgd. Also frequent agricultural use of Class I treated sludge. ⁽²⁾For example, covered basins, bottom tube aerated facultative lagoons or ponds, or surface flow application of treated effluent. Also, frequent agricultural use of Class II treated sludge. ⁽³⁾For example, uncovered surface mixed basins or trajectory spray irrigation for land application of treated effluent. Also frequent agricultural use of Class III treated sludge. ⁽⁴⁾Discharge locations shall be located no closer than 100 feet and up to 200 feet from any private or public water supply source. | |

| TABLE 3. CONTRIBUTING SEWAGE FLOW ESTIMATES TO BE USED AS A DESIGN BASIS FOR NEW SEWAGE WORKS. | | | | | | | --- | --- | --- | --- | --- | --- | | Discharge facility⁽¹⁾ | Contributing Design Units | Flow gpd | BOD₅ #day⁽³⁾ | S.S. #day | Flow duration, hours | | Dwellings | Per person | 100⁽²⁾ | 0.2 | 0.2 | 24 | | Schools w/showers and cafeteria | Per person | 16 | 0.04 | 0.04 | 8 | | Schools w/o showers w/cafeteria | Per person | 10 | 0.025 | 0.025 | 8 | | Boarding Schools | Per person | 75 | 0.2 | 0.2 | 16 | | Motels @ 65 gal. per person (rooms only) | Per room | 130 | 0.26 | 0.26 | 24 | | Trailer courts @ 3 persons/trailer | Per trailer | 300 | 0.6 | 0.6 | 24 | | Restaurants | Per seat | 50 | 0.2 | 0.2 | 16 | | Interstate or through highway restaurants | Per seat | 180 | 0.7 | 0.7 | 16 | | Interstate rest areas | Per person | 5 | 0.01 | 0.01 | 24 | | Service Stations | Per vehicle serviced | 10 | 0.01 | 0.01 | 16 | | Factories | Per person/per 8-hr. shift | 15–35 | 0.03–0.07 | 0.03–0.07 | Oper. Per. | | Shopping centers | Per 1,000 square foot of ultimate floor space | 200–300 | 0.1 | 0.1 | 12 | | Hospitals | Per bed | 300 | 0.6 | 0.6 | 24 | | Nursing Homes | Per bed | 200 | 0.3 | 0.3 | 24 | | Doctor's offices in medical centers | Per 1000 square foot | 500 | 0.1 | 0.1 | 12 | | Laundromats, 9–12 machines | Per machine | 500 | 0.3 | 0.3 | 16 | | Community colleges | Per student & faculty | 15 | 0.03 | 0.03 | 12 | | Swimming pools | Per swimmer | 10 | 0.001 | 0.001 | 12 | | Theaters (drive-in type) | Per car | 5 | 0.01 | 0.01 | 4 | | Theaters (auditorium type) | Per seat | 5 | 0.01 | 0.01 | 12 | | Picnic areas | Per person | 5 | 0.01 | 0.01 | 12 | | Camps, resort day & night w/limited plumbing | Per camp site | 50 | 0.05 | 0.05 | 24 | | Luxury camps w/flush toilets | Per camp site | 100 | 0.1 | 0.1 | 24 | | Notes: ⁽¹⁾Colleges, universities and boarding institutions of special nature to be determined in accordance with subdivision B 2 of this section. ⁽²⁾Includes minimal infiltrations/inflow (I/I) allowance and minor contributions from small commercial/industrial establishments. ⁽³⁾#/Day - Denotes pounds per day. | | | | | |

| TABLE 4. EXPECTED PERFORMANCE FOR VARIOUS CONVENTIONAL TREATMENT PROCESSES. Effluent Value Range⁽¹⁾ (mg/l) | | | | --- | --- | --- | | A. Primary/secondary treatment process. | | | | | BOD₅⁽²⁾ | TSS⁽²⁾ | | 1. Primary | 100–180 | 100–150 | | 2. Facultative Aerated Lagoon | 24–45 | 24–30 | | | a. With Clarification | | | | b. Without Clarification | | | 3. Biological contactors | 24–50 | 24–50 | | 4. Activated Sludge | 24–30 | 24–30 | | 5. Biological Plus Filtration⁽³⁾ | 10–20 | 5–15 | | 6. Primary plus constructed wetlands⁽⁴⁾ | 24–40 | 24–40 | | 7. Primary plus Aquatic Ponds⁽⁵⁾ | 20–30 | 20–30 |

| B. Advanced treatment process. | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | | BOD₅ | TSS | PO₄-P | NH₃-N | | | | 1. Physical chemical⁽⁶⁾ and | 45–95 | 20–70 | 1–10 | 20–30 | | | | | a. F | 20–70 | 1–20 | 1–10 | 20–30 | | | | b. F & AC | 5–10 | 0.1–10 | 1–10 | 20–30 | | | 2. Biological⁽⁷⁾ and | | | | | | | | | a. C & S | 12–20 | 12–24 | 0.5–10 | 5–30 | | | | b. C, S, & F | 6–11 | 0.5–15 | 0.5–10 | 5–30 | | | | c. C, S, F & AC | 1–5 | 0.1–5 | 0.1–10 | 5–30 | | | | d. Microscreening | | | | | | | | | (1) 21 microns @ 5 GPM/sq. ft. | 2–14 | 1–14 | 20–30 | 5–30 | | | | (2) 35 microns @ 8 GPM/sq. ft. | 5–20 | 3–17 | 20–30 | 5–30 | | 3. BNR⁽⁸⁾ | 20–30 | 20–30 | 2–4 | 1–3 | | | | 4. Other biological and natural treatment processes evaluated on a case-by-case basis. | | | | | | | | NOTES: ⁽¹⁾Ranges reflect normal expected upper and lower values for process, performance, considering design and operations variability. Upper range value reflects performance expected for conventional loadings. ⁽²⁾Effluent values for soluble phosphorus and ammonia nitrogen are not given for conventional primary and biological processes since these are not designed as nutrient removal processes. However, phosphorus is removed in biological sludge and ammonia is oxidized to nitrate in biological effluents. Typical effluent values range from 4 to 5 mg/l of total phosphorus and from nearly 0 to more than 30 mg/l ammonia, for fully nitrified to unnitrified effluent. ⁽³⁾Coagulant and polymer addition prior to filter to be provided. ⁽⁴⁾Subsurface flow microbial-plant filter system with a minimum detention of three days, or surface flow system with a minimum retention of six days. ⁽⁵⁾Aquatic pond providing one acre of surface area (5-foot depth) per 200 population equivalent or less. ⁽⁶⁾Physical - Chemical: means coagulation by aluminum, iron or other metal salts or, precipitation by lime, followed by clarification and may include filtration. Unit processes include, as a minimum, flash mix, flocculation, and sedimentation. Filtration operations will be necessary to achieve effluent TSS levels of 15 mg/l or less. ⁽⁷⁾Biological: means any of the biological treatment processes including activated sludge and its process variations, attached growth systems including various filters, and facultative and fully aerated lagoons which are capable of producing a secondary effluent containing 30 mg/l BOD₅ and TSS or less. ⁽⁸⁾Biological Nutrient Removal performance will be a function of influent levels of nutrients with typical influent values of 4 to 6 mg/l of PO₄-P and 20 to 40 mg/l of NH₃-N. Additional nitrification operations would be necessary to achieve TKN levels of less than 10 mg/l. Denitrification may produce effluent total nitrogen levels of 5 to 10 mg/l. LEGEND: C = Coagulation S = Sedimentation F = Filtration and AC = Activated Carbon BNR = Biological Nutrient Removal | | | | | | |

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-520 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-460, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; Errata 20:12 VA.R. 1526 February 23, 2004; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-790-470 Treatment works details

A. Equipment. The specifications should be so written that the installation and essential items of mechanical equipment will be certified by a representative of the manufacturer. The specifications shall require that the equipment manufacturers provide to the owner one complete set of operational instructions, equipment and maintenance manuals, and emergency procedures for each essential mechanical and electrical equipment item. The manuals shall contain drawings of equipment and a numbered parts list keyed to a list of components.

B. Instrumentation. Insofar as possible, all indicating, recording, and totalizing flow meters shall be identical so that repair components and charts are interchangeable. Recording equipment for dissolved oxygen, temperature, pH, and other operating data, along with flow metering equipment, shall be located in areas free from high humidity, extreme temperatures, and corrosive gases. Instrumentation requirements for each treatment works shall be decided on a case-by-case basis.

Facilities for measuring the volume of sewage flows shall be provided at all treatment works. Treatment works having a capacity of equal to or less than 40,000 gallons per day shall be equipped with a primary metering device such as a Parshall flume with separate float well and staff gauge, weir box with plate and staff gauge, or other approved devices, as a minimum unless nonfluid contact measuring devices are provided. All treatment works having a capacity of greater than 40,000 gallons per day shall be equipped with indication, recording, and totalizing equipment. The recording scale shall be sufficient to accurately record and depict the flow measured. Flows passed through the treatment works and flows passed through controlled diversions shall be measured in a manner that will allow them to be distinguished and separately reported.

C. Component isolation. Properly located and arranged diversion piping or structures shall be provided so that any component of the treatment works process can be independently operated in accordance with the reliability classification, or removed from service independently for inspection, maintenance, and repairs. Adequate access and removal space shall be provided around all components to provide for proper maintenance or removal and replacement without interfering with the operation of other equipment. Due consideration shall be given to the need for lifting and handling equipment available to aid in the maintenance and replacement of all components. In addition, the placement of structures and other devices, such as pad-eyes and hooks to aid handling of heavy or large components, should be considered in the preliminary design. These criteria for adequate access and handling equipment do not apply to the removal or replacement of large tanks, basins, channels, or wells. Lines feeding chemicals or process air to basins, wet wells, and tanks shall be designed to enable repair or replacement without drainage of the basins, wet wells, or tanks.

D. Maintenance provisions. The design of a treatment works should facilitate access for both routine maintenance and equipment failure response.

1. Provisions should be made for flushing, with water or air, all scum lines, sludge lines, lime feed and lime sludge lines, and all other lines that are subject to clogging. All piping subject to accumulation of solids over a long period of time should be arranged in a manner to facilitate mechanical cleaning if possible. The design shall be such that flushing and mechanical cleaning can be accomplished without causing violation of effluent limitations or without cross-connections to the potable water system.

2. Provisions should be made for dewatering each unit. Drain lines should discharge to points within the system such that maximum treatment of the contents of the drained unit is provided. Due consideration shall be given to the possible need for hydrostatic pressure relief devices. Where practicable, all piping shall be sloped or have drains (drain plug or valve) at the low points to permit complete draining. Piping shall not be installed with isolated pockets that cannot be drained.

3. Concrete, metals, control and operating equipment, and safety devices shall, insofar as practical, be designed to protect against corrosion, moisture and heat induced damage.

4. Positive identification of the content of a piping system shall be by lettered legend giving the name of the contents. Arrows should be used to indicate direction of flow. Legends shall be applied close to valves and adjacent to changes in direction, branches and where pipes pass through walls or floors, and at frequent intervals on straight pipe runs. The lettering shall be of such color, size, and location to be clearly visible and readable.

5. A complete outfit of tools and accessories for the treatment works operator's use, such as wrenches, valve keys, rakes, shovels, etc., and such spare parts as may be needed, shall be specified as either contractor or owner furnished. A portable pump is desirable. Readily accessible storage space and work bench facilities shall be specified. Consideration shall be given to provision of a garage area that would also provide space for large equipment maintenance and repair.

6. Concrete, paved, or gravel walkways shall be provided for access to all units. Where possible, steep slopes and narrow stairways shall be avoided to increase access for maintenance. Surface water shall not be permitted to drain into any units. Provision should be made for erosion protection and landscaping, particularly when a treatment works must be located near residential areas.

E. Essential facilities. The design of treatment works shall include both proper physical support for operation personnel and specific safety features to protect operators and visitors from exposure to hazards.

1. A supply of potable water with adequate pressure shall be provided for use in the laboratory and bathroom facilities. All potable water supplies within the treatment works shall be protected with reduced pressure zone backflow prevention devices. To facilitate cleaning wet wells, tanks, basins, and beds, water supplied from a nonpotable water system or the treatment works effluent may be supplied at these points by means of an adequately pressurized water system with hydrants or hose bibs having minimum outlets of one inch in diameter.

The potable water supply line to each treatment works shall be equipped, as a minimum, with an approved reduced-pressure zone backflow preventer. These devices shall be installed in an above-ground location, no more than 36 inches above the ground floor elevation and with adequate clearance for access on all sides, to prevent corrosion and to allow for adequate, quick service and periodic inspections. Designers shall consult with the appropriate field office of the department for such requirements at individual treatment works in accordance with the Waterworks Regulations (12VAC5-590).

Where it is not possible to provide potable water from a public water supply, a separate well may be provided. Location and construction of the well shall comply with requirements of the department.

2. All sewage treatment works shall be provided with or have ready access to a toilet and lavatory. For a treatment works at which the operator is required to be on duty for eight or more hours per day, a shower shall also be provided.

3. Minimum laboratory space for treatment works not performing BOD and suspended solids testing on-site shall be 50 square feet of floor space with 20 square feet of bench area. Treatment works providing on-site BOD, suspended solids, or fecal coliform analysis shall provide a minimum of 400 square feet of floor space and 150 square feet of bench space. If more than two persons will be working in the laboratory at any given time, 100 square feet of additional space should be provided for each additional person. Advanced sewage treatment works shall provide a minimum of 100 additional square feet of floor space, with a proportionate increase in bench space. On-site laboratories shall be isolated from treatment works equipment, vehicular traffic, etc., so as to render the laboratory reasonably free from the adverse effects of noise, heat, vibration, and dust in accordance with VOSH requirements.

4. Safety provisions should protect operators and visitors at treatment works from exposure to hazards in accordance with VOSH requirements. The designer should refer to the applicable occupational safety and health standards of the Virginia Department of Labor and Industry for the appropriate requirements. The following shall be required as a minimum, as applicable:

a. Enclosing the treatment works site with a fence designed to discourage the entrance of unauthorized persons and animals.

b. Providing adequate lighting, installing handrails, and establishing access guards, where necessary, and posting "No Smoking" signs in hazardous locations.

c. Providing first aid supplies and safety equipment, including protective clothing and equipment such as gas masks, goggles and gloves.

d. Providing explosion-proof electrical equipment, nonsparking tools, etc. in work areas where hazardous conditions may exist, such as digester vaults and other locations where potentially explosive atmospheres of flammable gas or vapor with air may accumulate.

e. Providing properly grounded and insulated electrical wiring, with no part of the treatment works piping being used for grounding.

f. Providing railroad type manhole steps with slip-proof rungs, unless access is to be provided by lifting devices. The railroad type step is designed to help prevent foot slippage off the ends of the rungs. Also, providing intermediate landings or other suitable protection between height intervals of 10 feet or less, unless adequate lifting devices are to be provided.

g. Providing adequate protective storage for flammable and hazardous materials and safety devices for gas collection piping.

h. Providing adequate ventilation for all areas subject to accumulation of hazardous or toxic gases and providing equipment (accuracy of + or—5%) for measuring the concentration of gases in the atmosphere of confined spaces, enclosed areas, underground areas, or other areas where hazardous gases may accumulate or oxygen deficiencies may occur. Providing a portable blower and hose sufficient to ventilate accessed confined spaces.

i. Locating heating devices with open flames in separate rooms with outside entrances located at grade level or above.

j. Locating laboratory and office space at sewage treatment works to minimize interference from motors, generators, compressors, etc. and providing adequate floor slope to a point of drainage.

k. Providing stairways with a slope of 30° to 50° from the horizontal, with risers all of equal height, and with handrails on the open sides of all exposed stairways and stair platforms.

F. Odor control. The potential for odor problems at new treatment works shall be evaluated. The evaluation shall include possible sources of odors, types of odors, and various methods (i.e., covered units, physical treatment, chemical treatment, or biological treatment) of controlling odors. Provisions for odor control shall be included in the design if the sewerage system is primarily composed of force mains or otherwise provides lengthy retention times (i.e., on the order of two or three days), or if the treatment works will provide raw sludge holding, raw sludge dewatering, or thermal treatment. Odor control provisions should be considered for sludge digestion processes, sludge dewatering processes, preliminary and primary sewage treatment processes, and other processes that provide the opportunity for gas transfer or gas stripping activities to occur.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-530 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-470, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-480 Treatment works outfalls

A. The effluent discharge line or outfall shall be designed with sufficient capacity to transmit the maximum expected flow in a manner so as to prevent flooding of the treatment process while providing optimum dispersion of the treated effluent into the receiving waters.

B. Velocity. The velocity in the outfall at design average flow shall be a minimum of 1-1/2 feet per second to avoid any settling of solids. Velocities should not exceed the recommendations of the pipe manufacturer with respect to maximum velocities to avoid pipe erosion or scour and should be less than eight feet per second to avoid excessive head loss or disruption of the receiving water channel.

C. Structures. The outlet structure should be submerged during design low flow conditions in the receiving water channel, unless adequate dispersion can be achieved without such submergence. The outlet structure should be designed to provide effective dispersion of effluent into the receiving body of water as established by the certificate or permit issued. Additional provisions for dispersion of effluent may be required, based on public health and welfare protection and water quality considerations in accordance with downstream uses.

1. The outfall, where practicable, shall be of gravity sewer design and extend beyond the design low water level of the receiving body of water and account for coastal erosion if necessary. The effluent discharge shall remain submerged if required to maintain water quality standards or protect public health and welfare.

2. Headwalls may be used where adequate dispersion will be obtained without requiring that the outfall be submerged. The design shall include measures to prevent erosion and foaming problems as a result of the discharge.

3. When a diffuser mechanism is provided, the design shall take into account the range of current velocities and directions in the vicinity of the diffuser.

Diffuser ports shall be spaced and located so as to avoid interference between adjacent jet plumes and sized so as to minimize head loss and maximize initial dispersion of the effluent into the receiving water.

D. Protection. The outfall shall be designed and constructed to protect against the effects of erosion, flood waters, tides, ice, boating and shipping, and other hazards, and to insure structural stability and freedom from stoppage.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-540 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-480, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-490 Reliability protection

A. Reliability is a measurement of the ability of a component or system to perform its designated function without failure or interruption of service. Overflow criteria, such as a period of discharge, are utilized solely for the establishment of reliability classification for design purposes and are not to be construed as authorization for or defense of an unpermitted discharge to state waters. The treatment works design shall provide for satisfactory operation during power failures, flooding, peak loads, equipment failure, and maintenance shut-down (in accordance with the requirements of the appropriate reliability class). Such design features include: (i) additional electrical power sources; (ii) additional flow storage capacity; and (iii) additional treatment unit operations, that provide for alternate operation in accordance with the issued certificate permit requirements.

B. Power feed. For Class I Reliability, two separate and independent sources of power feed shall be provided. Each source shall be capable of maintaining continuous treatment works operation at peak design flow during power failures, flooding, or equipment malfunction. Certain Reliability Class I treatment works for which it is feasible to shut down or discontinue treatment works operation during periods of power failure without bypassing or violating effluent limitations may be exempt from the alternate feed requirement.

1. Class I Reliability treatment works that may qualify for the alternate feed exemption can be broadly categorized as (i) those that serve facilities or institutions that could be closed during periods of power failure, such as certain industrial plants, schools, and recreational and park areas; (ii) those equipped with an emergency overflow holding basin with sufficient capacity to retain a minimum of one day of treatment works design flow and having provisions for recycle to the treatment works; and (iii) those with sufficient operational resources for which it can be demonstrated that projected power failures will not result in public health problems, water quality damage, or socio-economic resource losses.

2. Single source power feed is acceptable for Reliability Class II and III systems or works.

C. Power source. Electric power shall be provided by alternate feed from distribution lines that are serviced by alternate feed from transmission lines (e.g., 115KV) where possible. The transmission lines shall have alternate feed from the generating source or sources. The requirement for alternate feed can be satisfied by either a loop circuit, a "tie" circuit, or two radial lines. Where alternate feed lines terminate in the same substation, the substation shall be equipped as follows:

1. Reliability Class I: two or more in-place transformers.

2. Reliability Class II and Class III: one in-place transformer and capability for a connection of a mobile transformer.

On-site power generating equipment may be used as a substitute for alternate utility source feed. The capacity of the back-up power source shall be sufficient to operate all components vital to wastewater treatment operations during peak wastewater flow conditions, together with critical lighting and ventilation.

D. Power systems. External power distribution lines to a Class I Reliability Treatment Works shall be completely independent (i.e., both power lines cannot be carried on the same pole, cannot be placed in the same underground conduit, or cannot cross in their route to the treatment works) where possible. Minimum separation between alternate lines of 75 feet for above ground routes and 25 feet for underground routes shall be maintained. This shall also apply to service connections into the sewage treatment works. Devices should be used to protect the system from lightning.

1. Reliability Class I treatment works shall have a final step down transformer on each electrical feed line with adequate physical separation between them to prevent a common mode failure. In addition, Reliability Class I treatment works shall be provided with separate buses for each power source and separate independent internal power distribution systems up to the transfer switch for all critical components. The electrical power transfer to the alternate source should occur within 10 minutes of the time of failure of the primary power source.

2. Breaker settings or fuse ratings shall be coordinated to effect sequential tripping such that the breaker or fuse nearest the fault will clear the fault prior to activation of other breakers or fuses, to the degree practicable.

3. Where practicable, the electric switchgear and motor control centers shall be housed in a separate room from the liquid processing equipment. All outdoor motors shall be adequately protected from the weather. Motors located indoors and near liquid handling piping or equipment shall be, at least, of splash-proof design. Means for heating motors located outdoors or in areas where condensation may occur should be provided. On-site emergency power generating equipment shall be located above grade and be adequately ventilated. Fuel shall be stored in safe locations and in containers specifically designed for fuel storage.

a. All electrical equipment (motors, controls, switches, conduit systems, etc.) located in raw sewage wet wells or in totally or partially enclosed spaces where hazardous concentrations of flammable liquids, gases, vapors, or dusts may be present shall comply with the National Electrical Code, including the requirements for Class I, Group D, Division 1 locations.

b. Three-phase motors and their starters shall be protected from electric overload and short circuits on all three phases.

c. Large motors shall have a low voltage protection device that, on the reduction or failure of voltage, will cause and maintain the interruption of power to that motor.

d. Consideration should be given to the installation of temperature detectors in the stator and bearings of large motors in order to give an indication of overheating problems.

e. Wires in underground conduits or in conduits that can be flooded shall have moisture resistant insulation identified in the National Electrical Code.

4. The means for starting an on-site emergency power generator shall be completely independent of the normal electric power source. Air-starting systems shall have an accumulator tank or tanks with a volume sufficient to furnish air for starting the generator engine a minimum of three times without recharging. Batteries used for starting shall have a sufficient charge to start the generator engine a minimum of three times without recharging. The starting system shall be appropriately alarmed and instrumented to indicate loss of readiness (e.g., loss of charge on batteries, loss of pressure in air accumulators, etc.).

5. Testing provisions shall be included in the design of essential equipment requiring periodic testing to enable the tests to be accomplished while maintaining electric power to all vital components. Such provisions would involve an ability to conduct tests, such as actuating and resetting automatic transfer switches and starting and loading emergency generating equipment without taking essential equipment off-line. The electric power distribution system and equipment shall be designed to facilitate inspection and maintenance of individual items without interruption of operations.

E. Flow Storage. In combination with provisions for electrical power reliability, the use of flow storage and additional unit operations should be evaluated. Additional flow storage capacity should provide up to a 24-hour detention of the peak design flow. Additional unit operations could involve chemical clarification, filtration, additional disinfection capacity, or use of natural treatment technology for enhancing effluent quality.

F. Alarm systems. An audiovisual alarm system to monitor the condition of equipment whose failure could result in a bypass or a violation of effluent limitations shall be provided for all treatment works. Alarms shall also be provided to monitor conditions which could result in damage to vital components.

1. For continuously manned treatment works, the alarm system shall sound and be visible in areas normally manned and in areas near the equipment being monitored.

2. Treatment works not continuously manned shall have, in addition to a local audiovisual alarm, provisions for transmitting an audible alarm to a central location where personnel competent to receive the alarm and initiate corrective action are available 24 hours per day or during the period of time that the treatment works receives influent flow.

3. The following requirements apply to all treatment works:

a. The on-site alarm system should be designed in such a manner that each announced condition is uniquely identified.

b. A back up power supply, such as a battery pack with an automatic switchover feature, shall be provided for the alarm system (such that a failure of the primary power source would not disable the alarm system), unless an adequate alternate or backup power source is provided.

c. Test circuits shall be provided to enable the alarm system to be tested and verified to be working properly.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-550 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-490, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 4 Preliminary Processes

9VAC25-790-500 Screening

Article 4 Preliminary Processes

A. Conventional preliminary treatment shall include adequate screening to remove solids and debris that could interfere with the performance of downstream unit operations. The process design shall address the means of proper waste management for screenings.

B. Requirements. Protection for pumps and other equipment shall be provided by installing large openings, one inch or more, coarse screens, or bar racks, and smaller openings screens. All screen equipment and facilities shall be readily accessible for maintenance. Small openings, fine screening, or comminution should follow grit removal, which should be preceded by coarse screening. Screen locations are to be provided as follows:

1. Manually cleaned screens shall be provided at all sewage treatment works unless adequate redundant mechanical screens are provided and manually cleaned screens shall be located in open areas with easy access. Mechanical screens that can be manually cleaned upon mechanical failure may be used to meet this requirement.

2. Manually cleaned screens located in deep pits shall be provided with stairway access, adequate lighting and ventilation, and convenient and adequate means for removing screenings.

3. Screening devices installed in a building where other equipment or offices are located shall be separated from the rest of the building, provided with separate outside entrances, and provided with adequate means of ventilation.

C. Design. Clear openings between the bars of coarse screens should be from one to 1-3/4 inches. Other size openings will be considered on a case-by-case basis. Coarse screen design shall provide for installation such that the screening equipment can be conveniently and safely accessed for maintenance and management of screenings.

1. Where a single mechanically cleaned screen that cannot be manually cleaned upon mechanical failure is used, an auxiliary manually cleaned screen shall be provided.

2. Where two or more mechanically cleaned screens are used, the design shall provide for taking any unit out of service without sacrificing the capability to handle the peak design flow.

3. Manually cleaned screens, except those for emergency use, shall be placed on a slope of 30 to 60 degrees with the horizontal.

4. All mechanical units that are operated by timing devices shall be provided with auxiliary controls which will set the cleaning mechanism in operation at predetermined high water levels.

5. The design or electrical fixtures and controls in enclosed places where gas may accumulate will be evaluated in accordance with the National Electrical Code specifications for hazardous conditions.

6. The use of fine mesh static or mechanical screens as an adjunct to or in lieu of sedimentation will be considered on a case-by-case basis.

D. Flow control. At the normal operating flow conditions, approach velocities should be no less than 1.25 feet per second, to prevent settling, and no greater than 3.0 feet per second, to prevent forcing materials through the openings.

1. The approach flow velocity shall be calculated from a vertical projection of the screen openings on the cross-sectional area between the invert of the channel and the flow line.

2. The screen channel invert shall be three to six inches below the invert of the incoming sewers. To prevent jetting action, the length and construction of the screen channel shall be adequate to reestablish hydraulic flow pattern following the drop in elevation.

3. Multiple channels, where provided, shall be equipped with the necessary gates to isolate flow from any one screening unit operation. Provisions shall also be made to facilitate dewatering each unit. The channel preceding and following the screen shall be shaped to eliminate settling and accumulation of solids. Fillets may be necessary.

E. Screening management. Properly sized facilities shall be provided for removal, storage, and disposal of screenings as required by the approved operation and maintenance manual or sludge management plan. Manually cleaned screening facilities shall include an accessible platform, in accordance with VOSH requirements, from which the operator may remove screenings easily and safely. Suitable drainage facilities shall be provided both for the platform and for storage areas, with all drain water returned to the raw or primary influent flow.

F. Comminution. Comminution should be provided in treatment works that do not provide primary sedimentation, unless other means of protecting downstream processes and equipment are provided. The term "comminutors" shall be understood to also include barminutors, or other shredding/grinding equipment.

1. Comminutors should be located downstream of any grit removal equipment. Areas containing comminution devices shall be provided with stairway access, adequate lighting and ventilation in accordance with VOSH requirements and convenient and adequate means for maintenance and device removal. Comminutors installed in a building where other equipment or offices are located should be accessible only through a separate outside entrance. Comminutor capacity shall be adequate to handle expected peak flows.

2. A bypass channel with appropriate screening shall be provided. Gates to isolate flow from the comminutor channel shall be installed. Each comminutor not preceded by grit removal shall be protected by a screen, trap, or other means to remove potentially harmful gravel.

3. Electrical equipment in comminutor chambers is to be designed in accordance with the applicable requirements of the National Electrical Code. Protection against accumulation of hazardous gases and accidental submergence shall be provided as required by state and federal regulations.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-560 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-500, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-510 Grit removal facilities

A. Grit removal unit operations facilities shall be provided for all sewage treatment works with a design capacity of 0.15 million gallons per day or greater and are required for treatment works receiving sewage from combined sewers or from sewer systems receiving substantial amounts of grit. Grit removal facilities should be provided at all sewage treatment works.

1. Grit removal facilities should be located ahead of pumps and comminuting devices. Coarse bar racks and other suitable screens should be placed ahead of mechanically cleaned grit removal facilities.

2. Treatment works treating wastes from combined sewers shall have at least two mechanically cleaned grit removal units, with provisions for unit bypassing.

3. A single manually cleaned or mechanically cleaned grit removal unit, with a unit bypass, is acceptable for those sewage treatment works with a design capacity of less than 0.15 million gallons per day and serving separate sanitary sewer systems.

4. Minimum facilities for larger treatment works serving separate sanitary sewers shall be at least one mechanically cleaned unit with a unit bypass.

B. Design. The design of grit removal facilities shall be based on the requirements of the downstream treatment units. Local conditions and wastewater characteristics shall be evaluated in selecting the design size of particle to be removed. Flow turbulence into and through grit removal basins shall be minimized.

1. Horizontal flow basins shall be designed so as to provide controlled velocities as close as possible to one foot per second during average design flow conditions. The detention period shall be based on the size of particle to be removed. The design should take into consideration hydraulic inefficiencies and positioning of inlets and outlets.

2. Aerated chambers shall be designed to provide a minimum detention time of three minutes at average flow. An air flow of three to five cubic feet per minute per foot of chamber length should be maintained. Aerated chambers shall have adequate and flexible controls for agitation and air supply devices.

3. Other types of degritters will be approved on a case-by-case basis upon evaluation of satisfactory performance data.

4. Wherever possible, grit removal facilities should be located in open areas with easy access. Grit removal facilities located in deep pits shall be provided with mechanical equipment for pumping or hoisting grit to ground level. Such pits shall have a stairway, elevator, or manlift, adequate ventilation, and adequate lighting in accordance with VOSH requirements.

5. Provisions shall be made for dewatering each unit. Drain lines shall discharge to points within the system such that maximum treatment of the contents of the drained unit is provided.

6. The provision of grit washing facilities shall be a function of the ultimate disposal and transportation methods provided for the grit. Impervious surfaces with drains shall be provided for grit handling areas. If grit is to be transported, conveying equipment shall be designed to avoid loss of material.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-570 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-510, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-520 Pre-aeration

Aeration of pretreated sewage should be provided whenever the low dissolved oxygen, or anaerobic condition, of the sewage can interfere with downstream unit operation reliability. Pre-aeration may be used to prevent solids deposition problems in on-line or off-line equalization or storage basins.

1. Pre-aeration unit operations shall be designed so that removal from service will not interfere with normal downstream operation of the remainder of the treatment process.

2. Inlet and outlet devices shall be designed to ensure proper distribution and help prevent solids deposition, while minimizing any hydraulic short circuiting effects.

3. The aeration equipment shall be capable of obtaining both adequate mixing and self-cleaning velocities within the basin. Any of the types of equipment used for aeration of biological reactors may be utilized.

4. A satisfactory means of grit removal shall be provided for operation of pre-aeration basins.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-580 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-520, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-530 Clarifiers

A. Conventional solids settling basin design information shall apply to clarifiers not preceded by chemical flash mix and flocculation. Where clarifiers are preceded by chemical flash mix and flocculation, chemical clarification requirements shall apply.

B. Design. Conventional clarifiers shall be designed to dissipate the inlet velocity, to distribute the flow uniformly across the basin, and to prevent short-circuiting hydraulic currents.

1. Inlet channels should be designed to maintain a velocity of at least one foot per second at 1/2 design flow. Corner pockets and dead ends shall be eliminated, and corner fillets or channeling used where necessary.

2. Provisions shall be made for elimination or removal of floating materials in inlet structures having submerged ports.

3. The minimum length of flow from inlet to outlet of a clarifier should be 10 feet unless special provisions are made to prevent short circuiting.

4. The liquid depth of mechanically cleaned clarifiers shall be as shallow as practicable but not less than 10 feet for an overflow rate of 300 gpd per square foot. For each three-foot increase or decrease in depth, the overflow rate shall be increased or decreased by 200 gpd per square foot respectively. Final clarifiers receiving flow from biological reactors should not be less than 12 feet in depth.

5. A minimum of two hours of average design flow detention volume should be provided within the settling zone of conventional clarifiers, at the design loading.

6. Multiple clarifiers capable of independent operation shall be provided at treatment works having a capacity of more than 40,000 gallons per day; however, single clarifiers may be allowed at Reliability Class II and Class III treatment works having a capacity up to 100,000 gpd when appropriate reliability and continuous operability requirements are satisfied.

7. Where multiple clarifiers are utilized in suspended growth processes, provisions for combining the effluent from the reactors (aeration basins) and proportionally distributing the reactor effluent to each clarifier shall be included, for the purpose of evenly distributing the biomass to the clarifiers.

8. Overflow weir plates shall be adjustable. In cases in which clarifier designs have a potential for short circuiting hydraulic inefficiencies, weir loadings rates should not exceed 10,000 gallons per day per linear foot for treatment works designed for average flows of 1.0 mgd or less. Special consideration will be given to weir loading rates for treatment works designed for flows in excess of 1.0 mgd, but such loading rates should not exceed 15,000 gallons per day per linear foot if short circuiting problems may affect performance. If pumping is required, pump capacity shall be related to clarifier design to avoid excessive weir loading.

9. The tops of beams and similar construction features which are submerged shall have a minimum slope of 1.4 vertical to 1 horizontal. The underside of such features should have a slope of one to one to prevent the accumulation of scum and solids. Effective scum collection and removal facilities, including baffling, shall be provided ahead of the outlet weirs on all clarifiers. Provisions may be made for discharge of scum with the sludge; other provisions may be necessary to dispose of floating materials which may adversely affect sludge handling and management.

10. Clarifier design should include provisions for reasonable access for maintenance and protection of operators. Such features may include slip resistant stairways and walkways, protective handrails, etc., in accordance with VOSH requirements. If side walls are extended some distance above the liquid level to provide flood protection, or for other purposes, stairs and walkways with handrails should be provided to facilitate housekeeping and maintenance. Access for cleaning and maintenance of weirs should also provide proper safety features in accordance with VOSH requirements.

11. Where primary clarifiers are used, provisions for emergency bypassing, or discharging sewage which has received preliminary treatment directly to the biological treatment unit operation, may be desirable.

12. Shallow depth sedimentation will be considered on a case-by-case basis.

C. Loadings. Conventional clarifier design should provide for established surface settling rates (flow rate per unit surface area) for optimum performance reliability.

1. Surface settling rates for primary clarifier should not exceed 1,000 gpd per square foot at design average flows or 2,500 gpd per square foot at peak hourly flows. Clarifier sizing shall be calculated for both flow conditions, and the larger surface area shall be used.

2. Surface settling rates for secondary clarifiers following attached growth biological reactors shall not exceed 1,200 gpd per square foot, based on peak hourly flows, or 500 gpd per square foot, based on average daily design flow, whichever loading results in a larger clarifier volume.

3. The hydraulic design of clarifiers following the activated sludge process shall be based on the anticipated peak hourly overflow rate from the clarifier. The hydraulic loading, except as noted, shall not exceed the following peak hourly surface settling (overflow) rates:

| | Type of Process | Rate | | --- | --- | --- | | | conventional | 1,200 gpd/sq. ft. | | | step aeration | 1.200 gpd/sq. ft. | | | contact stabilization | 1,200 gpd/sq. ft. | | | carbonaceous stage of separate stage nitrification | 1,200 gpd/sq. ft. | | | extended aeration | 1,000 gpd/sq. ft. | | | nitrification stage of separate stage nitrification | 800 gpd/sq. ft |

4. The peak hour surface settling (overflow) rates for sewage treatment works with an average design flow of 0.1 mgd or less shall not exceed 800 gpd/sq. ft.

5. The established surface settling rates may be reduced by up to 30% for treatment works employing flow equalization, prior to the clarifier, provided that such a reduction will not result in turbulence and density currents that may be associated with a smaller clarifier design surface area.

6. The solids loading shall be evaluated at both peak hourly and average daily flow conditions in the design of secondary clarifiers, for comparison to the hydraulic loading. The larger surface area established by design loadings shall be utilized to establish the required clarifier size. The following values for solids loading shall apply:

| | Type of Treatment | Solids loading (lb/sq. ft./hour) | | | --- | --- | --- | --- | | | Average | Peak | | | | attached growth process | 0.6-1.0 | 1.6 | | | extended aeration | 0.20-1.0 | 1.4 | | | other activated sludge | 0.6-1.25 | 1.8 |

D. Sludge removal and handling. Sludge collection and sludge withdrawal facilities shall be designed to minimize density currents and to permit rapid and continuous sludge removal.

1. Final clarifiers in activated sludge treatment works greater than 0.25 mgd shall be provided with positive scraping devices.

2. If multiple sludge hoppers are provided for sludge collection, means for individually and variably controlling sludge withdrawal from each hopper shall be provided in order to overcome any variations in the quantities of settled sludge in the various hoppers.

3. Each sludge withdrawal line shall be individually valved. Pumped withdrawal lines shall be at least four inches in diameter, and gravity withdrawal lines shall be at least six inches in diameter. The size of sludge withdrawal lines for airlift sludge removal shall be determined by the sludge removal rate.

4. The depth or head available for gravity withdrawal of sludge shall be at least 30 inches of water. A sludge well or other appropriate equipment shall be provided for viewing and sampling the sludge.

5. The minimum slope of the hopper side walls for primary basins shall be 1.7 vertical to 1.0 horizontal. Hopper wall surfaces should be made smooth with rounded corners to aid in sludge removal. Hopper bottoms should have a maximum dimension of two feet. The use of sludge hoppers for sludge thickening purposes is not recommended.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-590 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-530, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 5 Sludge Processing and Management

9VAC25-790-540 Sludge stabilization

Article 5 Sludge Processing and Management

The selection and operation of the sludge treatment or stabilization process shall be based on the ultimate utilization of the final sludge product. Land based management of treated sewage sludge may require the production of biosolids as described in the Virginia Pollution Abatement Permit Regulation (9VAC25-32) or Virginia Pollutant Discharge Elimination System Permit Regulation (9VAC25-31). The design requirements for the treatment and stabilization processes described in this chapter are based on the assumption that they must accomplish the necessary processing of sewage sludge at the treatment works. Consideration will be given to reducing design requirements, on a case-by-case basis, for treatment works employing series operation of two or more stabilization processes or methods in accordance with the means of sludge management. The standard buffer distance of 200 feet shall be provided between the walls of open and exposed sludge treatment operations and the boundaries of the site area in which either controlled use or access restrictions apply.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-600 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-540, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-550 Anaerobic digestion

A. The design of anaerobic digesters should provide an optimum environment for effective microbial degradation of the organic matter in sewage sludge. The digester system design shall address separation and removal of liquid or supernatant. The production of methane gas (CH₄) should be optimized. Digester gas should be utilized as a fuel whenever practical.

B. Design. A minimum of two anaerobic digesters, or enclosed reactors, shall be provided, so that each digester may be used as a first stage or primary reactor for treating primary and secondary sludge flows generated at a treatment works with a design flow exceeding 0.5 mgd. Additional digesters are provided to treat the total flow of primary and secondary sludge generated at treatment works with sewage design flows exceeding one MGD.

1. Where multiple digesters are not provided, a storage facility or adequate available sludge processing system shall be provided for emergency use so that the digester may be taken out of service without unduly interrupting treatment works operation.

2. Each digester should have the means for transferring a portion of its contents to other digesters. Multiple digester facilities should have means of returning supernatant from the settling digester unit to appropriate points for treatment.

3. Provisions for side-stream treatment of supernatant shall be included when the supernatant load is not included in the treatment works design.

4. Multiple sludge inlets and draw-offs and multiple recirculation section and discharge points (minimum of three) to facilitate flexible operation and effective mixing of the digester contents to optimize treatment for pathogen control and vector attraction reduction shall be provided. One inlet shall discharge above the liquid level and be located at approximately the center of the digester to assist in scum breakup. Raw sludge inlets should be so located as to minimize short circuiting between the inlets and either the supernatant draw-off, or sludge withdrawal points.

5. The proportion of depth to diameter should provide for a minimum of six feet storage depth for supernatant liquor, or the proportion of total volume allocated for supernatant should be 10% or more.

6. The digester bottom shall slope to drain toward the withdrawal pipe. At least one access manholes shall be provided in the top of the digester in addition to the gas dome. One opening shall be large enough to permit the use of mechanical equipment to remove grit and sand. A separate side wall manhole shall be provided at the basin floor level.

a. To facilitate emptying, cleaning, and maintenance, the digester design shall provide for access and safety features.

b. In accordance with VOSH requirements and these regulations, the operation and maintenance manual should specify: nonsparking tools, rubber soled shoes, safety harness, gas detectors for inflammable and toxic gases, and at least one self contained breathing apparatus.

C. Loadings. Where the composition of the sewage has been established, digester capacity shall be computed from the volume and character of sludge to be digested. The total digestion volume shall be determined by rational calculations based upon such factors as volume of sludge added, its percent solids and character, the temperature to be maintained in the digesters, the degree or extent of mixing to be obtained, expected formation of inactive deposits, and the size of the installation with appropriate allowance for sludge and supernatant storage. These detailed calculations shall be submitted to justify the basis of design.

1. The design average detention time for sludge undergoing digestion for stabilization shall be a minimum of 15 days within the primary digester, but longer periods may be required to achieve the levels of pathogen control and vector attraction reduction necessary for the method used for sludge management.

2. The digester shall be capable of maintaining a minimum average sludge digestion temperature of 35°C (95°F) with the capability of maintaining temperature control within a 4°(+/-)C range.

3. If unheated digesters are utilized, they shall have the capacity to provide a minimum detention time of 60 days within the digestion volume in which sludge is maintained at a temperature of at least 20°C (68°F).

4. For digestion systems where mixing is accomplished only by circulating sludge through an external heat exchanger, the system shall be loaded at less than 40 pounds of volatile solids per 1,000 cubic feet of volume per day or at a volumetric rate that provides not less than a 30 day detention time in the active digestion volume. The design volatile solids loading should be established in accordance with the degree of mixing provided.

5. Where mixing is accomplished by other methods, loading rates shall be determined on the basis of information furnished by the design consultant.

D. Completely mixed systems. For digesters providing for intimate and effective mixing of the digestion volume contents, the systems shall be designed for an average feed loading rate of less than 200 pounds of volatile solids per 1,000 cubic feet of volume per day or at a volumetric loading that provides 15 days or more detention time in the active digestion volume.

1. Confined mixing systems include (i) arrangements where gas or sludge flows are directed through vertical channels; and (ii) mechanical stirring, or pumping systems. Both confined mixing and unconfined continuously discharging gas mixing systems shall be designed to ensure complete turnover of digestion volume every 30 minutes. For tanks over 60 feet in diameter, multiple mixing devices shall be used.

2. Unconfined, sequentially discharging gas mixing systems shall be designed using the number of discharge points and gas flow rates shown for the various tank diameters as listed in this section, unless sufficient operating data is submitted and approved to verify the performance reliability of a alternative designs.

3. Gas discharge lines (lances) mounted on a floating cover or top designed to accumulate gas emissions shall extend to the base of the vertical side wall while the cover is resting on its landing brackets. For floor mounted diffuser boxes or lances mounted to a fixed cover, gas discharge shall extend to the base of the vertical side wall.

| DESIGN CRITERIA FOR MULTIPLE DISCHARGE MIXING SYSTEMS, SEQUENTIAL DISCHARGE | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Maximum Diameter (Ft.) | | | | | | | | | | | Tank Diameter | 20–30 | 31–40 | 41–50 | 51–60 | 61–70 | 71–80 | 81–90 | 91–100 | 101–110 | | (Minimum Number of Points) | | | | | | | | | | | Discharge Points | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | | Minimum Gas Flow | | | | | | | | | | | Gas Flow (CFM) | 95 | 95 | 95 | 150 | 150 | 150 | 200 | 250 | 300 |

4. The minimum gas flow supplied for complete mixing shall be 15 cubic feet/min./1000 cubic feet of digestion volume. Flow measuring devices and throttling valves shall be used to provide the minimum gas flow.

5. The design power supplied for mechanical stirring or pumping type complete mixing systems shall be capable of achieving a minimum of 0.5 horsepower per 1,000 cubic feet of digestion volume.

6. Where low speed mechanical mixing devices are specified, more than one device shall be provided unless other mixing devices are also provided.

E. Gas collection. All portions of the gas system, including the space above the liquid surface in the digester, storage facilities and piping shall be so designed that under all normal operating conditions, including sludge withdrawal, the gas will be maintained under positive pressure.

1. All enclosed areas where any gas leakage might occur shall be adequately ventilated.

2. All necessary safety facilities should be included where gas is produced in accordance with VOSH requirements.

3. Pressure and vacuum relief valves and flame traps, together with automatic safety shut-off valves, may be provided.

4. Water seal equipment shall not be installed on gas piping.

5. Gas piping shall be of adequate diameter to provide a velocity less than 12 feet per second at a flow of two times the average rate and shall slope to condensation or drip traps at low points.

6. The use of float controlled condensate traps is not permitted. Condensation traps shall be placed in accessible locations for daily servicing and draining.

7. Electrical fixtures and equipment located in enclosed places where gas may accumulate will be evaluated in accordance with the National Board of Fire Underwriters' specifications for hazardous conditions and other applicable codes and regulations.

8. The electrical equipment provided in sludge-digester pipe galleries containing gas piping should be designed and installed to eliminate potential explosive conditions. The design of electrical equipment located in any location where gas or digested sludge leakage is possible will be evaluated in accordance with applicable codes and regulations.

9. Waste gas burners shall be readily accessible and should be located at least 50 feet away from any structure, if placed at ground level. Gas burners may be located on the roof of the control building if sufficiently removed from the digester and gas storage tank and will comply with all applicable state and federal air pollution control requirements. Waste gas burners shall not be located on top of the digester or gas storage tank.

10. In remote locations it may be permissible to discharge small quantities of digester gas (less than 100 CFH) to the atmosphere through a return bend screened vent terminating at least 10 feet above the walking surface, provided the assembly incorporates a flame trap and is in compliance with all applicable state and federal regulations.

11. A gas meter with bypass shall be provided to meter total gas production. Gas piping lines for anaerobic digesters shall be equipped with closed type indicating gauges. These gauges shall read directly in inches of water. Normally, three gauges will be provided: (i) one to measure the main line pressure; (ii) a second to measure the pressure to gas-utilization equipment; and (iii) the third to measure pressure to waste burners. Gas tight shut-off and vent cocks shall be provided. The vent piping shall be extended outside the building, and the opening shall be screened and arranged to prevent the entrance of rainwater. All piping of the manometer system shall be protected with safety equipment.

12. Any underground enclosures connecting with anaerobic digester tanks or containing sludge or gas piping or equipment shall be provided with forced ventilation in accordance with VOSH requirements and this chapter and standards contained in this chapter. Tightly fitting, self closing doors shall be provided at connecting passageways and tunnels to minimize the spread of gas.

F. Energy control. If practical, digesters should be constructed above the water table and should be suitably insulated to minimize heat loss. The use of digester gas as a heating fuel source is encouraged.

1. Sludge shall be heated by circulating the sludge through external heaters unless effective mixing is provided. Piping shall be designed to provide for the preheating of feed sludge before introduction to the digesters. Provisions shall be made in the layout of the piping and valving to facilitate cleaning of these lines. Heat exchanger sludge piping shall be sized for design heat transfer requirements.

2. Sufficient heating capacity shall be provided to maintain consistently the design temperature required for sludge stabilization. For emergency usage, an alternate source of fuel shall be available and the boiler or other heat source shall be capable of using the alternate fuel.

3. The heating system design shall provide for all controls necessary to ensure effective and safe operation. Facilities for optimizing mixing of the digester contents for effective heating shall be provided.

4. Sludge heating devices with open flames should be located above grade in areas separate from locations of gas production or storage.

G. Supernatant handling. Supernatant withdrawal piping shall not be less than six inches in diameter, and piping shall be arranged so that withdrawal can be made from three or more levels in the tank. A positive, unvalved, vented overflow shall be provided.

1. On fixed cover digesters the supernatant withdrawal level should preferably be selected by means of interchangeable extensions at the discharge end of the piping.

2. If a supernatant selector is provided, provision shall be made for at least two other draw-off levels located in the supernatant zone of the digester in addition to the unvalved emergency supernatant draw-off pipe. High pressure backwash facilities shall be provided.

3. Provisions shall be made for sampling at each supernatant draw-off level. Sampling pipes shall be at least 1-1/2 inches in diameter.

4. Management of digester supernatant must be addressed in the treatment works design. Also, sidestream treatment alternatives for digester supernatant shall be considered in the preliminary engineering design.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-610 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-550, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-560 Aerobic sludge digestion

A. Aerobic sludge digestion reactors shall be designed for effective mixing and aeration. If diffusers are used, they shall be of the type that minimizes clogging and they should be designed to permit removal for inspection, maintenance and replacement without dewatering the tanks.

B. Design. Multiple aerobic digesters are required at all treatment works having a design flow capacity of more than 0.5 mgd. The size and number of aerobic sludge digesters shall be determined by rational calculations based upon such factors as (i) volume of sludge added; (ii) type and percent solids; (iii) the required volatile solids reduction for stabilization; (iv) allowance for sludge and supernatant storage; and (v) the minimum design temperature of the digester contents.

1. Calculations shall be submitted to justify the design and shall include design digester temperature based on the type of mixing equipment and other factors.

2. Digester volume shall be a minimum of 20% of the average design flow of the treatment works. The design digester volume should be increased up to 25% of the average design flow if the wastewater temperature will remain below 10°C (50°F) for an extensive period of time (60 days/year).

3. A reduction in requirements for hydraulic detention time may be given for treatment works designed to be operated in the extended aeration mode, or coupled with additional stabilization processes, or operated at elevated temperatures.

4. Facilities shall be provided for effective separation and withdrawal, or decanting of supernatant.

C. Loadings. The volatile solids loading should be in the range of one- to two-tenths (0.1 to 0.2) pounds of volatile solids per cubic foot per day.

1. Dissolved oxygen concentration maintained in the liquid shall be in the range of one to two milligrams per liter.

2. Energy input requirements for mixing should be in the range of 0.5 to 1.5 horsepower per 1,000 cubic feet, where mechanical aerators are utilized, and 20 to 30 standard cubic feet per minute per 1,000 cubic feet of aeration tank, where air mixing is utilized.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-620 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-560, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-570 Composting

A. Conventional sludge composting facilities aerobically process digested, or otherwise treated, sewage sludge that is uniformly mixed with other organic materials and bulking agents to facilitate biological decomposition of organics. The treated sewage sludge will be exposed to temperatures at or above 55°C for three consecutive days or more. The method of mixing and aeration, and the carbon to nitrogen characteristics, of the compost mix are critical to the process design.

B. General design. Unless the facility is totally enclosed, an appropriate buffer shall be established on a case-by-case basis by considering both the locations of any residential area, hospitals, nursing homes for the elderly and serum production centers and the prevailing wind at such locations. Local jurisdictions impacted by this restriction shall be so notified.

1. All compost facilities shall be provided with adequate means to prevent and control odors as necessary.

2. All compost facilities shall be provided with all-weather roads to and from the facility, as well as between the various process operations.

3. The receiving, mixing, composting, curing, drying, screening, and storage areas shall be paved with asphaltic concrete, reinforced concrete, or other impervious, structurally stable material that provides similar site characteristics.

4. The facility shall be graded to prevent uncontrolled runoff and a suitable drainage system shall be provided to collect all process wastewater and direct it to storage and treatment facilities. Process wastewater includes water collected from paved process areas. The capacity of the drainage system, including associated storage or treatment works system shall be based on the 24-hour rainfall of a 10-year return frequency.

5. All facility process wastewater and sanitary wastewater shall be collected and treated prior to discharge.

C. Facilities. A weigh scale, volumetric method, or other means shall be provided for determining the amount of sludge or residuals delivered to the facility and the amount of compost material removed from the facility. Adequate space and equipment must be provided for mixing operations and other material handling operations.

1. Where liquid, or dewatered, sludge or residuals are processed by the compost facility, all receiving of such inputs shall occur in either:

a. An area that drains directly to a storage, treatment, or disposal facility.

b. A handling area which shall be hard-surfaced and diked to prevent entry of runoff or escape of the liquids.

c. A sump with an adequately sized pump located at the low point of the hard-surfaced area shall be provided to convey spills to a disposal or holding facility.

2. Provisions for cleaning all sludge transport or residual hauling trucks that return to public roads, shall be provided at all compost facilities. The facility shall be capable of effective operation regardless of weather conditions. Wash water shall be collected for necessary treatment.

3. At all compost facilities handling liquid or dewatered residual materials that must be mixed prior to composting, a mixing operation shall be provided. The operation shall have sufficient capacity to properly process the peak daily waste input with the largest mixer out of operation. Volumetric throughput values used to establish necessary mixing capacity may be based on the material volume resulting from the sludge to bulking agent ratio, or may be estimated from previous experience or pilot scale tests.

4. Effective mixing equipment should be provided for use at all compost facilities. The ability of all selected equipment to produce a compostable mix from sludge of an established moisture content, residual material, and the selected bulking agent shall be documented from previous experience or pilot tests.

5. Except for windrow composting wherein mobile mixers are used, an area with sufficient space to mix the bulking agent and sludge or residuals and store half of the daily peak input shall be provided. The mixing area shall be covered to prevent ambient precipitation from directly contacting the mix materials.

6. Where conveyors are used to move the compost mix to the composting area and or help provide mixing, either sufficient capacity shall be provided to permit handling of the mix with one conveyor out of operation, or a backup method of handling or storing shall be provided. Runoff shall be directed to a storage or treatment facility. Capacity of the drainage system shall be based on the 24-hour rainfall producing a peak rate expected once in 10 years.

D. System design. The system design shall be sufficient to provide the level of treatment required for protection of public health and welfare in relation to the anticipated management method. Consideration should be given to covering the compost mixing pad and curing area in order to allow for handling of bulking agents and treated sludge and the finished compost, during extended periods of precipitation. If a roof type cover is not provided, operation of the facility during critical weather periods shall be addressed. Sufficient equipment shall be provided for routinely measuring the temperature and oxygen at multiple points and depths within the compost piles.

1. Windrow method. The area requirements shall be based on the average daily compost mix inputs, a minimum detention time of 30 days on the compost pad, and the area required for operation of the mixing equipment. Sufficient compost mix handling equipment shall be provided to turn the windrows daily. In addition, proper drainage and space shall be provided to allow equipment movement between compost pile sections and access around the working areas.

2. Aerated-static pile method. The aerated-static pile area requirement shall be based on the average daily compost mix inputs, along with storing base and cover material, with a composting time of 21 days, unless the applicant can demonstrate through previous experience or pilot scale studies that less time is necessary to achieve the requirements.

a. The compost mix pile shall be provided with a means of uniformly distributing air flow. One foot or more thick base of friable material may be utilized under the deepest sections of compost mix. A 1-1/2 foot or more thick covering blanket of unscreened compost or a one foot thick or more blanket of screened compost may be utilized over the compost mix pile.

b. Compost mix piles should be configured to provide adequate aeration of the mix using either positive or negative pressure for air flow through the piles.

3. Confined composting methods. Due to the large variation in composting processes, equipment types, and process configuration characteristic of currently available confined systems, such as enclosed operations or in-vessel systems, it is not feasible to stipulate specific design criteria. However, a confined composting system will not be approved unless the applicant can demonstrate, through previous operating experience or pilot scale studies, that the material removed from the enclosed container or compost process, after the manufacturer's suggested residence time, has an equivalent or higher degree of stabilization than would be achieved after 21 consecutive days of aerated static pile composting.

E. Aeration. Sufficient blower capacity shall be provided to deliver the necessary air flow through the compost mix, but the delivered air flow shall not be less than a minimum aeration rate of 500 cubic feet per hour per dry ton (CFH/DT). Where centralized aeration is utilized, multiple blower units shall be provided and shall be arranged so that the design air requirement can be met with the largest single unit out of service. Where individual or separated blowers are used, sufficient numbers of extra blowers shall be provided so that the design air requirement can be met with 10% of the blowers out of service. For facilities that are not continuously manned, the blower units should be equipped with automatic reset and restart mechanisms or alarmed to a continuously manned station, so that they will be placed back into operation after periods of power outage.

1. Each pile aeration distribution header shall be provided with a throttling control valve. The aeration system shall be designed to permit both suction and forced aeration. The piping system shall be capable of delivering 150% of the design aeration rate. The aeration piping may be located in troughs cast into the compost pad.

2. The aeration system shall be designed to permit the length of the aeration cycle to be individually adjusted at each pile header pipe.

F. Compost handling. The design of the curing area shall be based on a minimum retention time of 30 days unless the applicant can demonstrate through previous experience or pilot studies that less time is required. Daily input shall be based on the average daily input of mix to the composting area.

1. A drying stage is optional, but is usually required if compost is to be recycled as a bulking agent or if screening is required. Consideration should be given to covering the drying area. If a cover is provided, it can be designed so that sunlight is transmitted to the composting materials while preventing direct contact with ambient precipitation. Efficient drying may be accomplished by drawing or blowing air through the compost mixture or by mechanical mixing of shallow layers with stationary bucket systems, mobile earth moving equipment, or rotating discs.

2. Screening shall be provided for all compost facilities where the compost disposition necessitates the use of a screened product or where the bulking agent must be recycled and reused. When dry compost is used as a bulking agent screening is not typically provided.

a. A daily screening capacity of 200% of the average daily amount of compost mix shall be provided when screening is required.

b. Based on previous composting facility performance, or on pilot tests, the ability of the specified equipment to screen compost at the projected moisture range shall be demonstrated.

c. The area used for screening should be covered unless operations are not hindered when screening is temporarily discontinued.

3. Storage areas shall be provided for six months storage of compost unless the applicant can demonstrate (through previous experience, pilot studies or letters of intent to accept compost offsite) that less storage area is required. Storage for curing or drying biosolids compost is usually provided if compost is to be recycled for public use.

For all compost facilities where a separate bulking agent is required, storage area for a six-month supply of the bulking agent shall be provided, unless the applicant can demonstrate that bulking agent supplies can be replenished more frequently.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-630 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-570, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-580 Heat treatment

A. The design of heat treatment systems shall be based on the anticipated sludge flow rate (gpm) with the required heat input dependent on sludge characteristics and concentration. The system should be designed for continuous 24-hour operation to minimize additional heat input to start up the system. Measures for the adequate control of odors shall be stipulated for review.

B. Design. Multiple units shall be provided unless nuisance-free storage or alternate stabilization methods are available, to avoid disruption to treatment works operation when units are not in service. If a single system is provided, standby grinders, fuel pumps, air compressor (if applicable), and dual sludge pumps shall be required.

1. A reasonable downtime for maintenance and repair based on data from comparable facilities shall be included in the design. Adequate storage for process feed and downtime shall be included. Control parameters shall be adequately monitored. Continuous recorders to monitor temperatures shall be provided.

2. Due to the large variation in incineration processes, equipment types, and configurations characteristic of currently available incineration systems, it is not feasible to stipulate specific design criteria. Therefore, these systems shall be considered on a case-by-case basis. Design of these systems should be based on pilot plant studies or data from comparable facilities.

C. Features. The process should provide heat stabilization in a reaction vessel within a range of 175°C or 350°F for 40 minutes to 205°C or 400°F for 20 minutes at pressure ranges of 250 to 400 psig, or provide for pasteurization at temperatures of 30°C or 85°F or more and gage pressures of more than one standard atmosphere (14.7 psia) for periods exceeding 25 days. The conventional heat drying system involves either direct or indirect contact between a dewatered sludge cake and hot gases in order to reduce the moisture content of the cake to 10% or less. The sludge cake temperature is typically 800°F or more during this process.

1. Sludge grinders shall be provided to protect heat exchangers from rag fouling. An acid wash or high pressure water wash system shall be available to remove scale from heat exchangers and reactors. Materials of construction of heat exchangers shall be selected to minimize corrosion.

2. The decant tank shall be equipped with a sludge scraper mechanism and shall be covered to prevent odor release.

3. Separate, additional grit removal (in addition to grit removal at the treatment works influent) should be considered to prevent abrasion of piping.

4. Adequate treatment works or sidestream treatment shall be provided for the recycle streams from heat treatment.

5. Odor control shall be addressed for exhaust and off-gas from decant tanks in accordance with state and federal air pollution control requirements.

D. Incineration. Sludge incinerator ash may be used as either a material additive or an ingredient for the manufacture of construction materials and other products. Due to the large variation in incineration processes, equipment types, and configurations characteristic of currently available incineration systems, it is not feasible to describe a conventional design. Design of these systems should be based on pilot plant studies or data from comparable facilities.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-640 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-580, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-590 Chemical treatment

A. The fundamental design areas to be considered include chemical feeding, mixing, and storage capacity. Chemical treatment operation controls may include pH, contact time and mixture temperature.

B. Alkaline treatment. The three design parameters typically considered fundamental for design of an alkaline stabilization system include pH, contact time, and mixture temperature. The alkaline additive dosage required to stabilize sludge is determined by the type of sludge, its chemical composition and the solids concentration. Performance data taken from pilot plant test programs or from comparable facilities should be used in determining the proper dosage.

1. For conventional treatment, the design objective shall be to furnish uniform mixing in order to maintain a pH of 12 or above for two hours or more in the alkaline additive-sludge mixture. The design criteria for accomplishing adequate treatment may include:

a. Adding a controlled dosage of alkaline agents to sludge and providing uniform mixing of the sludge and agents.

b. Bringing the alkaline additive-sludge mixture pH to the design objective, such as a mixture pH of 12.5 or more and maintaining the mixture pH above 12.5 for 30 minutes or more.

c. Providing capacity to achieve a temperature of the alkaline-sludge mixture of more than 52°C, if desired, and maintaining a sufficient temperature over a measured contact period to ensure pasteurization.

d. Maintaining conditions so that the sludge is not altered or further distributed for two hours or more after alkaline treatment.

2. For Class I or Class II treatment to achieve pathogen reduction and control for beneficial uses of sewage sludge, including biosolids, the design objective shall be to meet the operational standards for pH during pasteurization, contact time, temperature, pH following pasteurization, and any other applicable requirements specified in the Virginia Pollution Abatement Permit Regulation (9VAC25-32) for the alkaline treatment.

3. Multiple units shall be provided unless nuisance-free storage or alternate stabilization methods are available to avoid disruption to treatment works operation when units are not in service. If a single system is provided, standby conveyance and mixers, backup heat sources, dual blowers, etc., shall be provided as necessary. A reasonable downtime for maintenance and repair based on data from comparable facilities shall be included in the design. Adequate storage for process, feed, and downtime shall be included.

4. Storage facilities and chemical handling shall be designed in accordance with this chapter. Either mechanical or aeration agitation should be provided to ensure uniform discharge from storage bins. Alkaline additive feeding equipment shall meet the requirements of this chapter. Hydrated lime should be fed as a 6% to 18% Ca(OH2) slurry by weight. Other suitable means should be developed for controlling the feed rate for dry additives.

5. The additive/sludge blending or mixing vessel shall be large enough to hold the mixture for 30 minutes at maximum feed rate. In a batch process, a pH greater than 12 shall be maintained in the mixing tank during this period. In a continuous flow process, the nominal detention time (defined as tank volume divided by volumetric input flow rate) shall be used in design, and a pH greater than 12 shall be maintained in the exit line. Slurry mixtures can be mixed with either diffused air or mechanical mixers. Mixing equipment shall be designed to keep the alkaline slurry mixture in complete suspension.

6. Coarse bubble diffusers should be used for mixing with compressed air. A minimum air supply of 20 scfm per 1,000 cubic feet of tank volume should be provided for adequate mixing. The mixing tank shall be adequately ventilated and odor control equipment shall be provided.

7. Mechanical mixers should be sized to provide 5 to 10 HP per 1,000 cubic feet of tank volume. Impellers should be designed to minimize fouling with debris in the sludge.

8. Pasteurization vessels shall be designed to provide for a minimum retention period of 30 minutes. The means for provision of external heat shall be specified.

C. Chlorine treatment. The stabilization of sludge by high doses of chlorine should be considered on a case-by-case basis. Process equipment that comes into contact with sludges that have not been neutralized after chlorine oxidation shall be constructed of acid resistant materials or coated with protective films. Caution should be exercised with recycle streams from dewatering devices or sludge drying beds which have received chlorine stabilized sludge due to the creation of potential toxic byproducts which may be detrimental to the treatment process or receiving stream.

D. Other treatment. Other processes for chemical treatment can be considered in accordance with this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-650 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-590, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-600 Sludge thickening

A. Sludge thickening to decrease the liquid fraction should be considered for volume reduction and conditioning of sludges prior to treatment and management. Biological sludges returned to reactors should be thickened to provide for effective control of biomass. Prior to conventional treatment of biosolids, thickening should be provided to reduce volume and to condition the raw sludge flow.

B. General design. Thickener design shall provide adequate capacity to meet peak demands. Thickeners should be designed to prevent septicity during the thickening process.

1. A sludge handling bypass around the thickening process is required. Dual units or alternate storage is required for all treatment works of greater than 1 mgd capacity.

2. Thickeners shall be provided with a means of continuous return of supernatant for treatment. Provisions for side-stream treatment of supernatant should be considered.

3. Consideration should be given to any potential treatment advantages obtained from the blending of sludges from various treatment processes.

4. Odor control shall be addressed with consideration being given to flexibility of operations and changes of influent sludge characteristics.

C. Gravity systems. Clarifiers or gravity thickeners sufficiently sized for clarification will provide for thickening. However, the use of mechanical stirring devices will significantly improve the performance of gravity thickeners. Mechanical thickeners employ low speed stirring mechanisms for continuous mixing and flocculation within the zone of sludge concentration. In this manner, liquid separation is enhanced.

1. Conventional overflow rates for gravity thickeners should be in the 400-800 gpd per square foot range. The engineer shall provide the basis and calculations for the nonconventional surface loading rates. The side water depth of conventional gravity thickeners shall be a minimum of 10 feet. Circular thickeners shall have a minimum bottom slope of 1-1/2 inches per radial foot.

2. A gravity sludge thickener shall be so designed as to provide for sludge storage, if sufficient storage is unavailable within other external tankage. Sludge withdrawal from gravity thickeners should be controlled and adjusted, and variable speed pumps should be provided.

3. Gravity thickeners should be provided with bottom scraping equipment to enhance sludge removal. The scraper mechanism peripheral velocity should be in the 15 to 20 feet per minute range.

a. The scraper mechanical train shall be capable of withstanding extra heavy torque loads. The normal working torque load shall not exceed 10% of the rated torque load.

b. A method to correct blockage of the scraper mechanism and restore operation from a stalled position should be provided in accordance with the Operation and Maintenance Manual.

4. Alternative designs should be based on data obtained from a pilot plant (relatively small scale test equipment) program. Chemical addition and dilution water feed systems should be evaluated for use to optimize performance.

D. Dissolved air flotation. Dissolved air flotation (DAF) basins shall be equipped with bottom scrapers to remove settled solids and surface skimmers to remove the float established through release of pressurized air into the sludge inflow. The bottom scraper should function independently of the surface skimmer mechanism. Dissolved air flotation units should be enclosed in a building. A positive air ventilation system and odor control shall be provided.

1. Conventional design parameters include:

a. Maximum hydraulic loading rates of 2.0 gallons per minute per square foot of surface area (gal/min/sq. ft.).

b. A solids loading rate in the range of 0.4 to 1.0 pounds per hour per square foot of surface area (lb/hr/sq. ft.) without chemical addition. A solids loading rate of up to 2.5 lbs./hr./sq. ft. may be used if appropriate chemical addition is provided (9VAC25-790-860).

c. An air supply to sludge solids weight ratio in the range of 0.02 to 0.04.

2. The recycle ratio should be in the 30% to 150% range. The recycle pressurization system should utilize DAF effluent or secondary effluent if use of potable water is not available. The retention tank system shall provide a minimum pressure of 40 psig.

3. A polymer feed system shall be provided. The feed system shall meet the requirements of this chapter.

4. Alternative design should be based on data obtained from a pilot plant test program if sufficient operational performance data is not available.

5. Skimmer design shall be multiple or variable speed such as to allow normal operation in the less than one fpm range, with the capability of a speed increase to 25 fpm.

E. Mechanical separation. Filters or centrifuge can be used to thicken sludges. The process shall be preceded by pretreatment to remove material that can plug the media, nozzles or cause excessive wear.

1. Provisions for the addition of appropriate coagulants to the sludge inflow to the filter or centrifuge shall be considered.

2. The design basis and calculations for nonconventional loading rates shall be submitted for evaluation.

3. Filtrate or centrate shall be returned to the head of the primary units, aeration basins, or a separate side-stream treatment system.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-660 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-600, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

9VAC25-790-610 Sludge dewatering

A. Gravity drying beds, centrifuges, and various filtration equipment can be used to remove liquid from treated sewage sludge in order to reduce the amount of sludge that is to be managed. Drainage from beds and centrate or filtrate from dewatering units shall be returned to the sewage treatment process at appropriate points preceding disinfection. These organic loads shall be considered in treatment works design, and alternatives for handling these loads may be considered similar to those for thickening and treatment supernatant. The design of dewatering equipment used for municipal sludges containing significant industrial waste shall consider the release of constituents such as free metals, organic toxicants, or strong reducing/oxidizing compounds, especially when thermal or chemical stabilization processes are employed.

B. Capacity. Where mechanical dewatering equipment is employed, at least two units shall be provided unless adequate storage (separate or in-line) or an alternative means of sludge handling is provided. Whenever performance reliability and sludge management options are dependent on production of dewatered sludge, each of the mechanical dewatering equipment provided should be designed to operate for less than 60 hours during any six day period. The facility shall be able to dewater in excess of 50% of the average design sludge flow with the largest unit out of service. The requirements for excess capacity will depend upon the type of equipment provided, peak sludge factor, and storage capability not otherwise considered. All units shall have bypass capability for maintenance.

1. Where mechanical dewatering equipment will not be operated on a continuous basis and the treatment works is without digesters with built-in short-term storage, separate storage shall be provided.

2. In-line storage of stabilized or unstabilized sludge shall not interfere with the design function of any of the treatment unit operations. Separate sludge storage from primary digestors shall be aerated and mixed as necessary to prevent nuisance conditions. The effect of storage on the sludge dewatering characteristics shall be considered.

3. All dewatering facilities should be properly ventilated to protect operator personnel in accordance with VOSH requirements and this chapter and standards contained in this chapter. The potential for odors or obnoxious gases being released within or without the building and grounds and the control of such should be addressed in accordance with applicable state and federal requirements.

Sampling stations before and after each dewatering unit or any appropriate segment of the unit shall be designed to allow the periodic evaluation of the dewatering process.

C. Conditioning. Adequate mixing time for the dispension of reaction between the chemical or other additives shall be provided. Subsequent handling should avoid floc shearing. The injection or addition point should be carefully considered in relation to downstream equipment and to the combined effect of other additives. Chemical handling shall be in accordance with this chapter.

1. Solution storage or day tanks should provide for the design dosages, if the equipment design does not require continuous operation. A minimum of eight hours storage shall be provided unless the specific chemical or additive selected is adversely affected by storage. Storage for batch operations shall be adequate for one batch at maximum chemical or additive demand. Storage volume reductions shall be justified, and other methods to ensure a continuous supply of chemicals or additives through the operating day or batch shall be provided. If conditioning tanks are employed, mixers may be necessary and the design should consider the capability for variable detention times.

2. Pilot plant testing or full size performance data shall be utilized to determine the characteristics and design dosage of the additives. In-stream flocculation/coagulation systems design shall be supported by comparable performance data or pilot plant testing.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-670 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-610, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-620 Sludge drying beds

A. Actual performance data from similar facilities should be provided for bed sizing. If such data is unavailable, the following general guidelines shall been used as the minimum:

| Stabilization Process | Loading Rate* | | --- | --- | | i. Anaerobic Digestion | 20.0 | | ii. Aerobic Digestion and | 15.0 | | iii. Other Stabilization Processes | 15.0 | | *lbs dry solids/sq ft/year | |

B. Design. Area requirements for covered beds or greenhouse beds may be reduced if polymer is used to condition the sludge prior to application to the beds, or performance data from similar designs is provided. Covers should extend beyond the bed area sufficiently to keep out rain and snow.

1. Not less than two beds shall be provided and they shall be arranged to facilitate sludge removal. Concrete pads serving as vehicle support tracks should be provided for all percolation type sludge beds. Pairs of support tracks for percolation type beds should be on 20-foot centers.

2. Sludge drying beds should be rectangular and separated from adjacent beds by permanent or removable dividers. Bed width should be determined by a rational basis considering the sludge handling and treatment and sludge management options. If polymers or other chemicals are used to enhance sludge dewatering, the effects of the polymer dosage on uniform distribution of sludge on the bed shall be considered.

3. The sludge pipe to the beds shall terminate at least 12 inches above the surface and be arranged so that it will drain. Concrete splash plates shall be provided at sludge discharge points.

4. Interior walls shall be watertight and extend 15 to 18 inches above and at least 6 inches below the bed surface.

5. Exterior walls shall be watertight and extend 15 to 18 inches above the bed surface or ground elevation, whichever is higher. They shall extend 12 to 15 inches below the drain pipes.

6. The bottom of the drying bed shall be relatively impervious, consisting of a minimum of one-foot layer of clayey subsoil having a permeability of less than one-millionth (10^-6) cm/sec. In locations where the ground water table is within one foot of the bottom, a watertight concrete pad should be considered.

C. Media. The bed media top course shall consist of at least 12 inches of sand with a uniformity coefficient of less than 4.0 and an effective grain size between 0.3 and 0.75 millimeters. The bed media lower course shall consist of gravel around the underdrains that conforms to the Virginia Department of Transportation's Road and Bridge Specifications, 1974. The gravel layer should be 12 inches in depth, extending at least six inches above the top of the underdrains. It is desirable to place this gravel in two or more layers. The top layer of at least three inches shall consist of number 8 sized gravel 1/8 inch to ¼ inch in size and the bottom layer should consist of number 3 sized gravel.

1. Underdrains shall be clay pipe, concrete drain tile or other underdrain material acceptable to the department and shall be at least four inches in diameter and sloped not less than 1.0% to drain. Underdrains shall be spaced not more than 20 feet apart.

2. Vacuum assisted, wedgewire, or other variations to the gravity drying bed concept will be considered on a case-by-case basis. Actual performance data or pilot studies with appropriate scale-up factors shall be provided.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-680 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-620, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-630 Filtration

A. Rotary drums. The following rates of vacuum filtration, in pounds of dry solids per square foot of drum filter area per hour, for various types of sludge, may be considered conventional loading with proper prior sludge conditioning. A variable speed drive shall be provided.

| Type of Treatment Process Producing Sludge Prior to Stabilization | Pounds of Dry Solids Per Square Foot Per Hour Minimum - Maximum | | --- | --- | | a. Primary | 4 - 6 | | b. Primary and Contact Reactor | 3 - 5 | | c. Primary and Suspended Growth Reactor | 3 - 4 |

1. Unless dual trains are provided, the following appurtenant equipment shall be provided in duplicate with necessary connecting piping, and electrical controls to allow equipment alternation. Spare filter fabric shall be provided except when metal coils are utilized.

a. Feed pump.

b. Vacuum pump.

c. Filtrate pump.

2. Wetted parts should be constructed of corrosion-resistant material. Drum and agitator assemblies shall be equipped with variable speed drives and provisions for altering the liquid level shall be made.

3. Vacuum pumps having a capacity of at least 1.5 cfm per square foot for metal-covered drums should be provided. Vacuum receivers are required with dry type vacuum pumps.

4. Each filter shall be fed by a separate feed pump to ensure a proper feed rate. Filtrate pumps must be of adequate capacity to pump the maximum amount of liquid to be removed from the sludge.

5. Careful consideration to filter washing and variable sludge pickup depth should be made.

B. Plate and frame presses. Actual performance data developed from similar operational characteristics should be utilized for design. The impact that anticipated sludge variability will have on the design variables for the press as well as chemical conditioning shall be addressed. Appropriate scale-up factors shall be utilized for full size designs if pilot scale testing is done in lieu of full-scale testing.

1. The following appurtenant equipment shall be considered for duplicate operation unless multiple units are provided:

a. Feed pump.

b. Air compressor.

c. Washwater booster pump.

2. The following spare appurtenances shall be provided where multiple units are not installed:

a. At least one extra plate for every ten required for startup, but a total of not less than two extra plates required.

b. One complete filter fabric set.

c. Closure drive system.

d. Feed pump (when duplicates are not provided).

e. Air compressor (when duplicates are not provided).

f. Washwater booster pump (when duplicates are not provided).

3. Filter feed pumps shall be capable of a combination of initial high flow, low pressure filling followed by sustained periods of operating at 100 to 225 psi. An integral pressure vessel to produce this initial high volume flow should be considered. Operating pressures less than 225 psi will be considered if actual performance data using similar sludges is provided.

4. Provisions for cake breaking to protect or enhance downline process shall be incorporated where necessary.

5. Crane or monorail services capable of removing the plates should be considered. In some installations, the capability to remove other press parts should also be considered.

6. Provision for a high pressure water or acid wash system to clean the filter shall be considered. Booster pumping should be addressed.

C. Belt presses. Actual performance data developed from similar operational characteristics should be utilized for design. The impact that anticipated sludge variability will have on the design variables for the press as well as chemical conditioning shall be addressed. A second belt filter press or an approved backup method of dewatering shall be required whenever a single belt press is operated 60 hours or more within any consecutive five day period or the average daily flow received at the treatment works equals or exceeds four mgd. Appropriate scale-up factors shall be utilized for full-size designs if pilot plant testing is performed in lieu of full-scale testing.

1. The following appurtenant equipment shall be considered for duplicate operation unless multiple units are provided:

a. Feed pump.

b. Washwater booster pump.

2. Requirements for spare appurtenances should include the following:

a. Complete set of belts.

b. One set of bearings for each type of press bearing.

c. Tensioning and tracking sensors.

d. One set of wash nozzles.

e. Doctor blade.

f. Conditioning or flocculation drive equipment if duplicate units are not provided.

3. A polymer selection methodology, accounting for sludge variability and anticipated sludge loading to the press shall be provided.

4. Sludge feed shall be as constant as possible to eliminate difficulties in polymer addition and press operation. The range in feed variability shall be identified and equalization shall be provided as necessary. A method for uniform sludge dispersion on the belt shall be provided. Grinders for the sludge feed to the flocculation system shall be considered. Thickening of the feed sludge should be an integral part of the design of the filter press. Separate thickening or dual purpose thickening will be considered on a case-by-case basis.

5. The filter press design shall consider the following:

a. Variable belt speed mechanism.

b. Belt tracking and belt tensioning equipment.

c. Belt replacement availability based on evaluation of the belt equipment selection especially if the weave, material, width, or thickness cannot be reasonably duplicated.

6. Rollers specified for the press design should provide:

a. Rubber coating or other protective finish.

b. Maximum frame and roller deflection and operating tension.

c. Roller bearings that are watertight and rated for a B-10 life of 100,000 hours.

7. The washwater system should provide for:

a. High pressure washwater for each belt with a specified operating pressure.

b. Booster pumps if necessary.

c. Spray wash systems designed to be cleaned without interference with the system operation.

d. Particular care in nozzle selections and optional nozzle cleaning systems when recycled wastewater is used for belt washing.

e. Replaceable spray nozzles.

f. Spray curtains.

D. Additional design features to be considered include:

a. Drip trays under the press and under the thickener to readily remove filtrate if gravity belt thickening is employed.

b. Adequate clearance to the side and floor for maintenance and removal of the dewatered sludge.

c. Location of all electrical panels or other materials that are subject to corrosion out of the area of the press.

d. Adjustable doctor blade clearance.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-690 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-630, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-640 Centrifuges

Successful application of centrifugation similar to sludge thickening applications for dewatering of municipal type sludges requires consideration of certain design factors. Proper scale-up data pertaining to the particular sludge to be dewatered and the necessary polymer and coagulant dosage to achieve the design solids content shall be provided. The abrasiveness of each sludge supply shall be considered in scroll selection. Adequate sludge storage shall be provided for proper operation.

1. Unless dual trains are provided, the following spare appurtenant equipment shall be provided, with necessary connecting piping and electrical controls to allow easy installation:

a. Drive motor.

b. Gear assembly.

c. Feed pump.

2. Each feed pump shall be variable speed. A pump for each centrifuge shall be provided within the feed system.

3. Each centrifuge shall be equipped with provisions for variation of scroll speed and pool depth.

4. A crane or monorail shall be provided for equipment removal or maintenance.

5. Provision for adequate and efficient wash down of the interior of the machine shall be an integral part of the design.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-700 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-640, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-650 Sludge pumping

Pump capacities shall be adequate but not excessive. Provisions for varying pump capacity are desirable.

1. Duplicate units shall be provided where failure of one unit would seriously hamper treatment works operation.

2. Positive displacement pumps or other types of pumps with demonstrated solids handling capability shall be provided for handling raw sludge.

3. The minimum positive head necessary for proper operation shall be provided at the suction side of centrifugal type pumps. A positive head of 24 inches or more may be desirable for all types of sludge pumps. Maximum suction lifts shall not exceed 10 feet for positive displacement pumps.

4. Adequate sludge sampling facilities shall be provided. Provision of quick closing sampling valves installed at the sludge pumps would be an adequate means of sampling. The size of valve and piping shall be at least 1-1/2 inches.

5. Sludge withdrawal piping for anaerobic digesters and gravity thickeners shall have a minimum diameter of six inches for gravity withdrawal and four inches for pump suction and discharge lines. Where withdrawal is by gravity, the available head on the discharge pipe shall be at least four feet and preferably more. Also, where gravity withdrawal is to be used as the primary withdrawal method, the piping for the primary sludge clarifier pump should be so arranged as to permit use of the pump for removal of digested sludge. Downstream gravity piping for transport of sludge shall be laid on uniform grade and alignment. Slope on gravity discharge piping should not be less than 3.0%. Provisions shall be made for draining and flushing discharge lines, and special consideration shall be given to the corrosion resistance and continuing stability of supporting systems for piping located inside the digestion tank.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-710 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-650, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-660 Sludge management

Sludge management activities not specifically provided for through approval of design plans and specifications shall be described in a sludge management plan submitted by the owner to the area engineer and the DEQ regional office for review and approval. The use or disposal of treated sewage sludge shall be addressed through either the sludge management plan required by the VPDES permit, or a permit issued through the Virginia Pollution Abatement Permit Regulation (9VAC25-32) or Virginia Pollutant Discharge Elimination System Permit Regulation (9VAC25-31).

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-720 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-660, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008.

Article 6 Biological Treatment

9VAC25-790-670 Attached growth processes

Article 6 Biological Treatment

A. The contactor, or media filled reactor, utilized for attached growth biological processes shall be preceded by primary clarification equipped with scum and grease collecting devices. Other pretreatment facilities equivalent to primary clarification may be proposed for evaluation by the department. The media shall provide sufficient surface area to support the attached biological growth necessary to achieve the desired performance standard. Recirculation of treated wastewater back to the contactor influent should be provided to maintain design loadings.

B. Trickling filters. Biological contactors called trickling filters shall be designed so as to provide either the reduction in biochemical oxygen demand required by the issued certificate or permit, or the treatment necessary to properly condition the sewage for subsequent treatment. This section provides performance criteria to achieve final effluent limits to meet federal secondary equivalency requirements for trickling filters. Such biological contactors may be designed to achieve higher degrees of treatment or used in conjunction with other unit operations. Where the design intent is to achieve other than secondary equivalency levels, the proposed design parameters shall be thoroughly reviewed during the preliminary engineering conference.

1. The hydraulic loading used for design of standard rate trickling filters shall be between two and four million gallons per acre per day with an organic loading between 400 and 800 pounds of BOD₅ per acre foot per day.

2. The hydraulic loading used for design of high-rate filters shall be between 10 and 30 million gallons per acre per day with an organic loading between 1,200 and 3,300 pounds BOD₅ per acre foot per day.

3. Other design loadings that are based on pilot studies and related to design and performance parameters through rational design equations or models will be evaluated by the department.

4. The performance of biological contactors can be detrimentally affected by diurnal loading conditions. The volume of media as determined from either pilot plant studies or from acceptable design equations shall be based upon the design peak hourly organic loading rate rather than the average rate. An alternative for reducing the design peak flow would involve provision of adequate flow equalization prior to the contactor.

5. Consideration should be given to the use of two-stage biological contactors in series operation where single stage reactors may not accomplish the required removals. Expected treatment efficiencies shall be calculated and documented.

C. Features. All hydraulic factors involving proper distribution of sewage on the contactor media shall be carefully calculated. For reaction type distributors, a minimum head of 24 inches between the low water level in siphon chamber and the horizontal elevation of the center of distribution arms shall be required. Surge relief to prevent damage to distributor seals shall be provided where sewage is pumped directly to the distributors. A minimum clearance of six inches between the media surface and the bottom of distributor arms shall be provided.

1. The sewage may be distributed over the contact reactor media surface by rotary distributors or other suitable devices that will permit reasonably uniform distribution to the surface area. At design average flow, the deviation from a calculated uniformly distributed volume per square foot of the filter surface shall not exceed plus or minus 10% at any point.

2. Sewage may be applied to the contactor media by siphons, pumps or by gravity discharge from preceding treatment units when suitable flow characteristics have been developed. Application of sewage should be continuous. In the case of intermittent dosing, the dosing cycles shall normally vary between five to 15 minutes with distribution taking place approximately 50% of the time. The maximum rest should not exceed five minutes based on the design average flow. Consideration shall be given to a piping system that will permit recirculation.

3. Underdrains with semi-circular inverts or equivalent shall be provided and the underdrainage system shall cover the entire floor of the filter. Inlet openings into the underdrains shall have an unsubmerged gross combined area equal to at least 15% of surface area of the filter. The underdrains shall have a minimum slope of 1.0%. Effluent channels shall be designed to produce a minimum velocity of two feet per second at the average daily rate of application to the filter. Provision shall be made for flushing the underdrains. The use of a peripheral head channel with vertical vents is acceptable for flushing purposes. Inspection facilities shall be provided.

4. The underdrainage system, effluent channels and effluent pipe shall be designed to permit free passage of air. The size of drains, channels, and pipe shall be such that not more than 50% of their cross-sectional area will be submerged under the design hydraulic loading. Provision shall be made in the design of the effluent channels to allow the possibility of increased hydraulic loading. Consideration should be given to the use of forced ventilation, particularly for covered trickling filters and deep (10 feet or more) contactors filled with a manufactured media.

5. The design should provide for variable rates of recirculation for various purposes; for example, to prevent drying of a standard rate filter between dosing. Devices shall be provided to permit measurement of flow to the filter process, including recirculated flows. The design should include provisions to flood filter structures where applicable.

6. All distribution devices, underdrains, channels and pipes shall be installed so that they may be properly maintained, flushed or drained. Mercury seals shall not be permitted. Ease of seal replacement shall be considered in the design to ensure continuity of operation.

7. A freeboard of four feet or more should be provided for all deep bed contactors with manufactured media that also utilize fine spray distributors, so as to maximize the containment of windblown spray.

8. Protection such as covers or windbreaks shall be provided to maintain operation and treatment efficiencies when climatic conditions are expected to result in problems due to cold temperatures.

D. Reactor media. Contact reactor media may be crushed rock, stone or specially manufactured material. The media shall be durable, resistant to spalling or flaking and relatively insoluble in sewage. The top 18 inches of rock or stone media shall have a loss by the 20-cycle, sodium sulfate soundness test of not more than 10% (as prescribed by ASCE Manual of Engineering Practice, "Filtering Materials for Sewage Treatment Plants," Manual of Engineering Practice No. 13, ASCE, New York, New York), the balance to pass a 10-cycle test using the same criteria. Stone media shall be free from iron. Manufactured media shall be chemically and biologically inert. The media shall be structurally stable to allow for distributor maintenance or a suitable access walkway shall be provided.

1. Rock or stone filter media shall have a minimum depth of five feet above the underdrains. Manufactured contactor media should have a minimum depth of 10 feet to provide adequate contact time with the wastewater. Rock and stone filter media depth should not exceed 10 feet and manufactured filter media should not exceed 30 feet except where special construction is justified through performance data or pilot plant studies.

2. Rock, stone, and similar media shall not contain more than five percent by weight of pieces whose longest dimension is three times the least dimension. They shall be free from thin elongated and flat pieces, dust, clay, sand or fine material and shall conform to the following size and grading when mechanically graded over vibrating screens with square openings:

a. Passing 4-1/2 inch screen—100% by weight

b. Retained on three-inch screen—95-100% by weight

c. Passing two inch screen—0-2% by weight

d. Passing one inch screen—0-1% by weight

e. Maximum dimensions of stone--five inches

f. Minimum dimensions of stone--three inches

3. Applications of manufactured media such as wood, plastic, etc., will be evaluated on a case-by-case basis. The handling and placement of the media should be specified.

E. Roughing reactors. Roughing contact reactors are used to reduce the organic load applied to subsequent oxidation processes. They are particularly applicable preceding an activated sludge process or a second stage filter in a treatment works receiving high strength wastewater (excessive organic loadings). Roughing filter designs differ from other contactors principally on the basis of the deeper depths and media design utilized for given loadings in comparison to high rate trickling filters. Since it is used to reduce the downstream organic loading rather than to provide a stabilized effluent, it is designed to receive organic loadings exceeding those applied to conventional biological contactors.

F. Granular media filters. Intermittently dosed biological sand filters utilized to process septic tank effluent to meet secondary treatment standards should be limited to schools, day camps and other installations that have part-time usage. These reactors should also be limited to those installations generating a sewage flow of 20,000 gallons per day or less and provide lengthy rest periods for filter operation. Biological sand filters may serve year-round residential dwellings if the design capacity is restricted to 1,000 gallons per day or less.

1. Biological sand filters shall not be used to treat raw wastewater and shall be preceded by a minimum of pretreatment designed to produce a settled sewage with adequate grease management. The use of biological sand filters designed to enhance effluent from other sewage treatment reactors shall be evaluated on a case by case basis.

2. Sand filter media beds shall consist of level areas of sand beneath which there are graded layers of gravel surrounding the underdrains. Each filter bed shall have an impervious bottom. Sewage is discharged onto the beds through rotary distributors or pipes onto splash plates or, in the case of subsurface filters, through lines of drain tile laid with open joints. Open sand beds shall be surrounded by a concrete, brick or cinder block wall extending above the sand and at least one foot above ground level. For subsurface sand filters, the surrounding wall is not necessary except to prevent caving of the earth walls while the sand and gravel are being placed. The underdrainage system shall consist of open joint or perforated pipe tied together into a manifold and vented to the atmosphere. The minimum size for the underdrain shall be four inches in diameter. The underdrain pipes should be placed on a slope of not less than 1.0%.

3. Rock, gravel and sand media components shall be clean and free of organic matter, clay or loam soils and fine limestone material.

a. The media depth shall not be less than 30 inches. Sand media for intermittently dosed and recirculated effluent, shall have an effective size of 0.30 mm to 1.0 mm and 0.8 mm to 1.5 mm, respectively. The uniformity coefficient should not exceed 4.0. No more than 2.0% shall be finer than 0.177 mm (80 mesh sieve) and not more than 1.0% shall be finer than 0.149 mm. No more than 2.0% shall be larger than 4.76 mm (4 mesh sieve). Larger granular media up to 5 mm in effective size may be considered on a case by case basis.

b. The gravel base for sand media shall conform to the Virginia Department of Transportation's Road and Bridge Specifications (1974). The base gravel shall consist of No. 3 sized gravel with at least a three-inch depth above the sloped underdrains. The middle layer shall consist of at least three inches of No. 68 gravel, and the top layer shall consist of at least three inches of No. 8 gravel.

4. Dosing tanks with either siphons or pumps for sand filters shall have the capacities to effect the dosage volumes required. The siphons and the rotary distributor should be supplied by the same manufacturer. The influent line to the rotary distributor shall be equipped with a valved drain.

5. Sand filters designed for intermittent flooding should be divided into at least two beds for small filters and three beds for the larger filters. Distribution boxes must be provided for diverting the sewage onto the filter bed or beds desired, as it is often necessary to take one filter bed out of operation during scheduled rest periods. Providing such rest periods will prevent surface clogging that results in sewage ponding above filter media. When three filters are employed, only two beds are normally used at any one time, the other bed being held out of operation for rest periods or maintenance, if required.

6. In the design of intermittently flooded sand filters the area of the filter beds is normally based upon a rate of application of 2.3 gallons per square foot per day. Also, a sufficient amount of settled sewage should be discharged onto the sand bed surface to cover the sand to a depth of two inches.

7. A rotary distributor will accomplish uniform application of settled sewage over the sand filter surface. A uniform application will maintain the design treatment efficiency of the filter so that a relatively higher dosage rate may be utilized or, for equal sewage flows, the area of sand bed required may be less than other designs. The design of the area of the filter beds equipped with rotary distributors should be based on an application rate of 3.5 gallons per square foot per day. The amount of sewage applied to the sand filter at each discharge of the dosing siphon should be equal to a depth exceeding one-half inch over the entire sand bed area being dosed.

8. The rate of dosage onto a buried sand filter shall not exceed 1.15 gallons per square foot per day of settled sewage. Settled sewage shall be applied to the filter through lines of drain tile laid with open joints, with the tile placed in a 12-inch layer of No. 3 stone. The top of the filter may be finished with a 12-inch layer of stone. Where it is not feasible or desirable to finish the top of the subsurface filter with stone, a 3-inch layer of straw covered with a four to eight inch layer of top soil may be used. Open joint underdrain tiles shall be sloped one inch per 10 feet and shall be installed in the base gravel and connected to the effluent pipe. The ends of the distribution lines should be tied together into a manifold and should be vented to the atmosphere. All open joints shall be covered with collars of asphalt paper or other suitable material.

Distribution boxes must be provided for diverting sewage onto the filter beds through headers, with each header connecting to not more than four distribution lines, where multiple units are used. Each application must completely fill the tile lines in use.

9. Consideration should be given to providing recirculation for granular media filters to improve treatment performance. Recirculating sand filters should be designed using a hydraulic loading rate of 3-1/2 gallons per day per square feet, based on average daily flow, with an organic loading rate not to exceed 0.005 pounds of BOD₅ per day per square foot of surface area. A recirculation ratio greater than 3:1 shall be provided. The use of granular media filters for nutrient removal will be evaluated on a case by case basis based on evaluation of performance data. Granular media filters shall be timer dosed and adjustable from one to 10 minutes of dosing per 30 minutes on time.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-730 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-670, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-680 Rotating biological contactors

A. The rotating biological contractor (RBC) treatment process may be used to accomplish carbonaceous and nitrogenous oxygen demand reductions. Expected performance of RBC equipment shall be based upon experience at similar full scale treatment works or through documented pilot scale testing with the particular wastewater.

B. Design. A minimum of two independent RBC units shall be provided for treatment works greater than 100,000 GPD. Provisions for positive and measurable flow control to individual contactors shall be provided. Piping shall permit each reactor to be operated in the parallel or series flow mode. The design of the RBC shaft and media support structures shall assure protection from structural failure for the design life of the treatment works.

1. In determining design loading rates, the following parameters shall be considered: design flow rate and influent waste strength; percentage of BOD₅ to be removed; media arrangement, including number of stages and unit area in each stage; rotational velocity of the media; wastewater temperature; and percentage of influent BOD₅ that is soluble. The maximum first stage loading shall not exceed three pounds soluble BOD₅ per day per 1,000 square feet of media surface area.

2. The contactor basin should be designed to allow a submergence of 30% to 40% based on total media surface area.

a. The clearance between the tank floor and the bottom of the rotating media shall be four to nine inches to maintain sufficient bottom velocities and prevent solids deposition in the tank.

b. Suitable means shall be provided to dewater each basin.

3. Rotating biological contactors shall be covered to protect the biomass from cold temperatures and the media from direct sunlight.

4. Enclosures shall be constructed of corrosion resistant material. Adequate clearance shall be provided for normal maintenance and reasonable access to the rotating shafts and for observation of the biomass. Windows or simple louvered mechanisms shall be provided for adequate equipment ventilation. To minimize condensation the enclosure should be insulated or heated.

C. Features. Provisions shall be made to allow access to the shaft bearings for routine maintenance and removal. In addition, hydraulic load cells (i.e., bearing lift or electronic strain gauges) should be provided to allow a determination of total shaft weight, which in turn can be used to estimate the depth of attached growth or the biofilm thickness. The drives used for shaft rotation may be provided through either mechanical gear reducers or special media features that utilize aeration as a turning force. A stand-by drive assembly shall be provided to ensure continuous operability.

1. Rotational velocity directly affects the level of wastewater treatment by providing contact, aeration, and mixing between the biomass and wastewater. The optimum rotational velocity will vary with the specific installations and is generally in the range of one to two revolutions per minute (RPM).

2. RBC mechanical drive assemblies should have the capability to vary shaft rotational speed for dissolved oxygen and biofilm thickness control. Drive systems and motors shall be provided with protective coatings suitable for high humidity environments.

3. Supplemental aeration shall be provided for the first stage of all mechanically driven RBC units with first stage soluble organic (SBOD₅) loadings greater than two pounds/1000 square foot of media surface. The air flow shall be supplied by air headers and diffusers located beneath the rotating media at a rate of not less than 1.25 cfm/1000 square foot of media surface area. The total design air flow rate may be provided by a single blower; however, two blowers, each providing 50% of the total air flow rate, are recommended. The design shall provide the capability to vary the volume of air delivered to handle fluctuations in the treatment works loading.

4. The design of an air drive system shall provide the capability to vary the volume of air delivered to handle fluctuations in treatment works loading or to control shaft rotational speed and biofilm thickness.

a. Air delivered shall not be less than 2.5 cfm/1000 square foot of media surface area to meet treatment objectives. For operational flexibility and biofilm thickness control, blowers shall be provided in multiple units, so arranged and in such capacities to allow delivery of 150% of the treatment air requirement with the single largest blower unit out of service.

b. Provisions shall be made for independent air flow metering and control to each RBC shaft.

5. At least two stages of RBC media for each flow stream shall be provided for secondary treatment applications. Additional stages shall be provided for nitrification or enhanced BOD₅ removals.

6. Design consideration should be given to providing: (i) recirculation of secondary clarifier effluent; (ii) positively controlled alternate flow distribution, such as step feed; and (iii) combination air/mechanical drive systems.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-740 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-680, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-690 Suspended growth (activated sludge) process

A. A number of variations of suspended growth treatment systems can be designed, featuring combinations of reactors utilizing aeration to support suspended biomass, and secondary clarifiers to separate suspended solids from the secondary effluent, that are known as activated sludge processes. Design standards, operating data, and experience for some of these variations are not well established and may not be considered as conventional design.

B. Design. The possibility of nonconventional technology approval should be considered in selection of a process modification. The conventional process and its various modifications may be expected to consistently produce an effluent containing no more than 30 milligrams per liter of either Biochemical Oxygen Demand (BOD₅), or total suspended solids (TSS), within the boundaries of the design parameters described in this chapter and with effective operation.

1. Designs to meet effluent limits more stringent than conventional secondary levels will be considered on a case-by-case basis when additional provisions such as flow equalization, increased clarifier capacity, or other process enhancement are proposed.

2. When the design includes multiple suspended growth reactors or aeration basins, provisions for combining the influent and return sludge and proportionally distributing the combined flows to each reactor shall be included to the extent practical. When the design includes multiple clarifiers, provisions for combining the effluent flows from all aeration basins and proportionally distributing the basin effluent with a uniform biomass concentration (mixed liquor suspended solids (MLSS)) to each secondary clarifier shall be included to the extent practical.

3. Effective removal of grit, debris and excessive oil or grease and grinding or fine screening of solids shall be accomplished prior to the activated sludge process. Aerated grit chambers alone will not provide adequate solids reduction.

C. Nitrification. The following requirements apply to activated sludge treatment works designed to provide nitrification.

1. The extended aeration modification shall be provided for single-stage activated sludge systems with a design flow of 0.5 mgd or less. Other modifications may be utilized for activated sludge systems with design flows greater than 0.5 mgd or two stage activated sludge systems; however, the design shall ensure that an adequate nitrifying bacteria population can be maintained during the required time period (i.e., seasonal or year-round) without excessive reactor biomass (MLSS). This requires (i) a longer detention time; (ii) a longer mean cell residence time (MCRT) with a relatively high ratio of the amount of biomass in the process compared to the rate of loss or wastage of biomass; and (iii) a lower organic loading rate than that required for carbonaceous organic removal alone.

2. The design for processes other than the extended aeration modification shall be based on satisfactory process performance obtained at full scale or pilot scale facilities. Performance data and information from such facilities shall be included with the design data submittal and shall particularly address temperature and pH dependence of the nitrification process.

3. Flow equalization or other proven methods to eliminate the likelihood of loss of biomass or activated sludge washout shall be provided for sewage treatment works subject to infiltration/inflow rates which could be expected to result in periodic biomass or activated sludge nitrifier washout.

4. Feed equipment for the addition of chemicals to maintain a minimum alkalinity of 50 mg/L in the aeration basin contents (mixed liquor) shall be provided when necessary, based on the characteristics of the influent wastewater. Approximately 7.2 pounds of alkalinity will be destroyed per pound of ammonia nitrogen oxidized. The design of the feed equipment shall meet the requirements of this chapter.

D. Reactor requirements. Multiple aerated suspended growth reactors (aeration basins) capable of independent operation shall be provided for all treatment works rated at greater than 40,000 gallons per day, with this exception: single units may be allowed for Reliability Class II and Class III treatment works having a capacity up to 100,000 gpd when the appropriate reliability and continuous operability requirements are satisfied, and provided that all aeration equipment is removable for inspection, maintenance and replacement without dewatering the reactor or clarifiers.

1. The size of the aeration basin for any particular adaptation of the process shall be based on such factors as (i) the design flow; (ii) degree of treatment desired; (iii) sludge age, (MCRT); (iv) mixed liquor suspended solids concentration (MLSS); (v) BOD₅ loading; and (vi) food to microorganism ratio (F/M). Calculations shall be submitted to justify the basis of design of the aeration basin capacity and process efficiency.

2. Aeration basin detention times, recirculation ratios, and permissible loadings for the several adaptations of the process are shown in Table 5. Operational parameters (sludge age, F/M, and MLSS) for the various process modifications are also included in this table as a guide.

3. The dimensions of each independent aeration basin or any off-line reaeration basins shall be such as to maintain effective mixing and utilization of air. Liquid depths should not be less than 10 feet except in special design cases.

For very small basins (volume less than 40,000 gpd) or basins with special configuration, the shape of the basin or the installation of aeration equipment should provide for elimination of short-circuiting through the basin. Aeration basins should have a freeboard of at least 18 inches.

4. Inlets and outlets for each aeration basin shall be suitably equipped with valves, gates, stop plates, weirs or other devices to permit control of the flow and to maintain reasonably constant liquid level. The hydraulic properties of the system shall allow the anticipated maximum instantaneous hydraulic load or peak flow to be carried downstream with any single aeration basin out of service.

5. Channels and pipes carrying liquids with solids in suspension shall be designed to maintain self-cleaning velocities or the flow shall be mixed to keep such solids in suspension at all rates of flow within the design limits. The means for adequate flow measurement shall be provided in accordance with Table 6 of this section.

6. Foam control devices shall be provided for aeration basins. Suitable spray systems or other appropriate means will be acceptable. If potable water is used, approved backflow prevention shall be provided on the water lines. The spray lines shall have provisions for draining to prevent damage by freezing.

| TABLE 5. TYPICAL ACTIVATED SLUDGE DESIGN AND OPERATION PARAMETERS. | | | | | | | --- | --- | --- | --- | --- | --- | | Process Detention Modification Time (Hr.) | Recirculation Flow Regime Ratio | MCRT (Days) | Food to micro-organism Ratio (F/M) | Reactor Loading #BOD₅ per 1,000 cu. ft. | (MLSS) Suspended Solids (mg/L) | | Conventional 4–8 | PF 0.25–1.0 | 5–15 | 0.1–0.5 | 20–40 | 1500–4000 | | Complete Mix 4–8 | CM 0.25–1.0 | 5–15 | 0.2–0.5 | 20–80 | 1500–4000 | | Step Aeration 4–8 | PF 0.25–1.0 | 5–15 | 0.2–0.5 | 20–40 | 1500–4000 | | Contact Stabilization 0.5–1.5⁽¹⁾ 3.6⁽²⁾ | PF 0.25–1.5 | 5–15 | 0.2–0.6 | 30–50⁽¹⁾ | 1000–3000⁽¹⁾ 8000–80000⁽²⁾ | | Extended Aeration⁽³⁾ 24 | PF 0.25–1.5 | 20–30 | 0.05–0.2 | 10–15 | 1500–3000 | | High Purity Oxygen⁽⁴⁾ Systems 1–5 | CM 0.25–0.5 | 5–15 | 0.15–1.0 | 100–250 | 4000–8000 | | Notes: F indicates the amount of available organic substance in the influent to the reactor. M indicates the amount of viable biomass in the reactor measured as the volatile portion of the total suspended solids level (MLSS) in the reactor. PF indicates a plug flow hydraulic characteristic in which the measured residence time is 80% or more of the theoretical detention time. CM indicates a completely mixed basin whose contents have essentially the same characteristics as the average levels within the basin effluent. See 9 VAC 25-790-460 E (Table 4) for estimated values of secondary effluent from activated sludge reactors followed by secondary clarifiers. ⁽¹⁾Contact Unit ⁽²⁾Solids Stabilization Unit ⁽³⁾Includes Oxidation Ditch Systems ⁽⁴⁾Reactors in Series | | | | | |

| TABLE 6. MINIMUM FLOW MEASUREMENT REQUIREMENTS FOR ACTIVATED SLUDGE. | | | | | --- | --- | --- | --- | | Flow Stream | Treatment Works Design Capacity, Q, MGD | | | | Q 0.04 | 0.04 < Q 1.0 | Q > 1.0 | | | Influent Sewage to each aeration basin⁽¹⁾ | None | Indicating | Indicating & Totalizing⁽²⁾ | | Air to each aeration basin | None | Indicating | Indicating | | Return Activated Sludge to each aeration basin⁽¹⁾ | Indicating | Indicating | Indicating & Totalizing⁽²⁾ | | Waste Activated Sludge | Indicating & Totalizing | Indicating & Totalizing | Indicating, Recording & Totalizing | | Notes: ⁽¹⁾Where it can be verified by calculations or pilot studies that proportional flow distribution to each aeration basin can be maintained, then flow measurement devices for the influent and return activated sludge to each basin may not be required. However, as a minimum, the total influent and return activated sludge flows shall be provided with flow measuring devices to measure each flow separately. ⁽²⁾Recording and totalizing may not be required where adequate flow control is provided and totalizing refers to the total flow not individual basin flow. | | | |

E. Aeration. Oxygen requirements generally depend on BOD₅ loading, degree of treatment and level of biomass or suspended solids concentration to be maintained in the aeration basin (MLSS). Aeration equipment shall be designed to meet the oxygen demands of the activated sludge process and provide adequate mixing to rapidly mix the influent with the reactor contents and maintain the reactor biomass (MLSS) in uniform and complete suspension.

1. When the applied wastewater contains a substantial portion of industrial wastes which have characteristics significantly different from domestic wastes, then experimentally derived data shall be submitted to support the proposed oxygen requirements for the process. Calculations shall be submitted to justify the oxygen requirements and the equipment capacity.

2. The oxygen requirements for domestic waste shall be a minimum of 1.2 pounds of oxygen per pound of applied BOD₅ for the extended aeration process and a minimum of 1.1 pounds of oxygen per pound of applied BOD₅ for other processes listed in Table 5 of this section. In addition, oxygen requirements for nitrification of ammonium nitrogen shall be a minimum of 4.6 pounds of oxygen per pound of applied ammonium nitrogen for the extended aeration process, and for other processes, unless the proposed operation procedures will preclude nitrification by employing a low sludge age (MCRT).

3. The oxygen shall be supplied at a rate that can maintain a minimum aeration basin dissolved oxygen concentration under critical environmental conditions (i.e., temperature, pressure) of: 2.0 mg/l at average design organic loading, or 1.0 mg/l at peak design organic loading, whichever is greater.

4. The peak organic loading rate shall be the maximum organic loading applied to the aeration basin during a six-hour period. When influent data is not available or for new treatment works, the peak organic loading rate shall be two times the design average daily organic loading rate.

5. Certified test data shall be obtained for regulatory evaluation prior to installation that demonstrates the standard clean water oxygen transfer capabilities of the proposed diffused aeration equipment for treatment works with a design flow greater than 100,000 gpd and for proposed mechanical aeration equipment for all treatment works. The test data shall be developed using similar reactor and aerator configuration, basin depth, aerator depth as applicable, and air or energy input rates as proposed in the design. The procedures for conducting the clean water oxygen transfer tests shall be in accordance with the latest ASCE Standard for Measurement of Oxygen Transfer in Clean Water (see Part IV (9VAC25-790-940 et seq.) of this chapter).

6. The field oxygen transfer rate shall be calculated from the standard clean water oxygen transfer rate using the following equation:

Equation 1:

| OTR_f= | (Alpha)(SOTR)(Theta^{(T 20)})(TauBetaOmegaC20-C)/C20 | | | --- | --- | --- | | Where: | | | | OTR_f = | Field oxygen transfer rate estimated for the system operating under process conditions at a D.O. concentration, C-mg/l, and temperature, T-°C. | | | Alpha = | Oxygen transfer correction factor for wastewater = (average wastewater KLA)/(average clean water KLA) | | | SOTR = | Standard Oxygen Transfer Rate for clean water at standard conditions. | | | Theta = | Empirical temperature correction factor; usually taken as 1.024. | | | T = | Temperature in mixed liquor at design operating conditions, °C | | | Tau = | Cst/Cs20 | | | Cst = | Tabular dissolved oxygen surface saturation value for clean water at standard barometric pressure of 1.00 atm, 100% relative humidity, and critical design operating temperature, mg/L. | | | Cs20 = | Tabular dissolved oxygen surface saturation valve for clean water at standard barometric pressure of 1.00 atm, 100% relative humidity, and standard temperature of 20°C, mg/L. | | | Beta = | Dissolved oxygen saturation correction factor for wastewater = (dissolved oxygen saturation value for wastewater at standard conditions)/(dissolved oxygen saturation value for clean water at standard conditions). | | | Omega = | Pressure correction factor | | | = | Pb/Ps | | | Pb = | Critical design operating barometric pressure, atm. | | | Ps = | Standard barometric pressure of 1.00 atm. | | | C20 = | Dissolved oxygen saturation valve for a given aeration device at standard barometric pressure of 1.00 atm and standard temperature of 20°C. | | | | | |

7. A discussion of the Alpha and Beta factors is provided in Part IV (9VAC25-790-940 et seq.) of this chapter. Further description and discussion of terms are provided in the ASCE Standard and Annexes for the Measurement of Oxygen Transfer in Clean Water and other related publications.

8. When conventional diffused air equipment performance data is not submitted, then minimum air supply to meet the oxygen requirements in terms of cubic feet of air per minute per pound of applied BOD₅ to the aeration basin shall be 1,500 CF /lb. per day BOD₅ for the conventional, complete mix, step aeration, and contact stabilization processes and 2100 CF /lb. BOD₅ for the extended aeration process.

9. Air supply for mixing requirements shall be 20 to 30 cubic feet per minute of air per 1,000 cubic feet of aeration basin volume. Air supply volume requirements shall be increased for aerated channels, pumpwells, or other air-use demands.

10. The air supply blowers shall be provided in multiple units, so arranged and in such capacities as to meet the maximum air demand with the single largest unit out of service. The design shall also provide for varying the volume of air delivered in proportion to the load demand of the treatment works. Time clocks or variable speed drives are acceptable. In addition, positive displacement blowers shall be equipped with either multispeed pulleys with sufficient horsepower or other means to change the speed from the motor drive up to the highest speed and capacity. The specified capacity of blowers or air compressors, particularly centrifugal blowers, shall take into account that the air intake temperature may reach 40°C (104°F) or higher and the pressure may be less than normal. Air supply intake filters shall be provided in numbers, arrangement and capacities to furnish at all times an air supply sufficiently free from dust to prevent clogging of the diffuser system used.

11. The spacing of diffusers in basins or channels shall be in accordance with the oxygenation requirements through the length of the basin or channel and should be designed to facilitate adjustments of their spacing without major revision to airheader piping. The arrangement of diffusers should also permit their removal for inspection, maintenance and replacement without shutting off the air supply to other diffusers in the basin or otherwise adversely affecting treatment performance.

12. Individual assembly units of diffusers shall be equipped with control valves, preferably with indicator markings for throttling or for complete shutoff. Diffusers in any single assembly shall have substantially uniform pressure loss.

13. The mechanism and drive unit for mechanical aerators shall be designed for the expected conditions in the aeration basin in terms of the proven performance of the equipment. The aeration equipment shall be designed to provide the total projected oxygen requirements. Minimum power input shall be 0.5 to 1.3 horsepower per 1,000 cubic feet of aeration basin volume for mixing. The design basis for determining mechanical mixing requirements shall be submitted. Due to the heat loss incurred by surface mixing, consideration shall be given to protecting treatment unit operations from ice and freezing effects.

14. Multiple mechanical aeration unit installations shall be so designed as to meet the maximum air demand with the largest aeration unit out of service. The design shall also provide for varying the amount of oxygen transferred in proportion to the organic loading. Time clocks, variable speed drives or variable aeration basin level controls are acceptable. A spare aeration mechanism shall be furnished for single unit installations.

F. Biomass control. The design of an activated sludge process shall include methods for returning settled biomass (secondary sludge) back to the inlet section to the aeration basin. The minimum secondary sludge return rate of withdrawal from the secondary clarifier or clarifiers is a function of the concentration of suspended solids in the aeration basin (mixed liquor) that are contained in the secondary clarifier influent. In addition, the secondary sludge volume index (as determined by Standard Methods for the Examination of Water and Wastewater) and the length of time that a design depth of sludge (blanket) is to be retained in the settling basin should be considered when selecting a sludge return rate.

1. The rate of sludge return expressed as a ratio of the average design flow shall generally be variable between the limits set forth in Table 5. The rate of sludge return shall be varied by means of variable speed motors, drives, air assisted withdrawal, flow control methods, or timers for such operations.

2. If motor driven sludge return pumps are used, the maximum return sludge capacity shall be obtained with the largest pump out of service. If air lifts are used for returning sludge from each clarifier basin, no standby unit will be required, provided the design of the air lifts are such as to facilitate their rapid and easy cleaning and if other suitable standby measures are provided.

3. Suction and discharge piping shall be designed to maintain a velocity of not less than two feet per second when sludge return facilities are operating at normal return sludge rates. Suitable devices for observing, sampling and controlling secondary sludge return flow from each secondary clarifier shall be provided.

4. The design of activated sludge processes shall provide methods for controlling the rate at which secondary sludge (waste sludge) is transferred to further treatment. For those treatment works with a capacity of one mgd or higher, the daily capacity for waste sludge transferal to sludge handling and treatment facilities should equal or exceed 20% of the total aerated reactor volume. For treatment works with a design capacity of less than one mgd, such waste sludge facilities should provide a minimum return rate of 10 gallons per minute. Means for observing, sampling and controlling waste sludge flow shall be provided.

G. High purity oxygen. The following additional requirements apply to activated sludge systems which utilize high purity oxygen for aeration.

1. The design of activated sludge processes utilizing pure oxygen aeration shall provide for covered and compartmentalized reactors to provide a series of stages for biological growth. Sampling ports shall be provided for each compartment of the biological reactors. An enclosed air-oxygen exhaust system shall be provided to collect and vent the reactor off-gases.

2. Mixing equipment shall be sufficient to maintain solids in suspension. Normally, the power input should be 0.5 to 1.3 horsepower per 10 cubic feet of aerator volume. The design basis for determining mixing requirements shall be submitted. Provisions shall be included for rapid removal or cleaning of the mixers.

3. The high purity oxygen storage and generation facilities and piping shall be remotely located from areas where flammable or explosive substances may be present. Warning signs shall be posted in the area of the oxygen storage and generation facilities. The covered aeration basins should be equipped with explosive atmosphere monitors and alarms in accordance with applicable state and federal regulations. An influent hydrocarbon monitor shall be included at the headworks to initiate operation of purge air blowers to vent reactor oxygen when explosive mixtures could occur.

4. At least two sources of oxygen shall be provided. On-site storage of oxygen for emergencies and peak demands is required. Storage of oxygen shall be determined by engineering analysis of the availability and delivery of oxygen to the treatment works site.

H. Biomass support systems. Modifications to the activated sludge process in which attached growth supports are located within the aeration basins will be considered on a case-by-case basis evaluation of performance data and approved through the provisions of this chapter.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-750 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-690, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-700 Oxidation ditches

A. An oxidation ditch process typically employs an extended aeration type of activated sludge process with a single channel or multiple interconnected concentric channels used as an aeration basin with a detention volume of 18 hours or more at the design flow rate. However, they may utilize some batch type operational principles.

B. Design. The geometry of the channels can vary; however, the oval is the most common configuration. Design requirements involving the use of duplicate oxidation ditches within the flow range of 40,000 gpd to 200,000 gpd shall be determined by the reliability class of the treatment works (Class I, II or III), the nutrient removal requirements, and the use of conventional dual final clarifiers. For design flows up to 100,000 gpd, a single oxidation ditch should be sufficient for secondary treatment of discharges to Class I reliability waters, if provided with external duplex clarifiers. In Class II and Class III waters, a single oxidation ditch may be acceptable for secondary treatment of flows up to 200,000 gpd. However, for treatment works permitted with effluent limits less than secondary or nutrient removal requirements, duplicate reactors and clarifiers shall be provided. In other cases, the treatment works size and location may allow for an exception for specific designs.

1. The multiple concentric channel basin can have any number of interconnected channels. This channel design scheme provides some process flexibility, since with minor modifications it can be changed to other activated sludge process modes. Typically, the outer channel (if multiple channels are present) receives unsettled raw sewage with a loading of 15 pounds per 1,000 cubic feet of volume or less. Shallow channels are usually four to six feet deep with 45° sloping walls. Deep channels have vertical side walls and are normally 10 to 12 feet deep.

2. The channels are characteristically lined to prevent erosion and leakage. Ditch lining should be constructed of reinforced concrete, asphalt or plastic liners. Shallow channels with sloped sidewalls are often constructed of concrete poured against earth backing and reinforced with welded wire mesh. Deep vertical wall channels require reinforced concrete walls.

3. Oxidation ditches may also be operated in alternating modes through on/off operation of aeration/mixing devices with intermittent changes in flow rates or direction. Influent wastewater can be diverted through one or more multiple reactors in which different operational phases (anoxic, aerobic, etc.) may occur. Effluent clarification may be accomplished within the reactor or within a separate clarifier. Automatically controlled weirs regulate flow direction and alternating operation of aeration/mixing equipment controls the operating mode. As with either standard continuous flow, or batch-type processes, the design duration of each operating phase is critical to performance reliability.

C. Aeration. Since oxidation ditches are considered a variation of the extended aeration modification of the activated sludge process, the requirements set forth in this chapter are applicable except as follows:

1. The mixing system shall be capable of maintaining a minimum velocity throughout the oxidation ditch cross-section of 1.0 fps at maximum design depth and solids concentration. For designs utilizing in-channel suspended solids removal the mixing system shall provide for all necessary variations in flow velocity to achieve adequate separation of suspended solids. Calculations and certified performance data for the mixing system shall be submitted to substantiate the adequacy of the proposed design.

2. Designs based on anoxic operation shall provide mixing and aeration system capacity for aerobic operation with adequate turndown capability to operate in the anoxic mode. Flexibility to allow for operation in the anoxic mode should be considered for all designs.

3. Designs should provide for variation in the oxygen supply independent of the mixing function.

4. The outlet from the oxidation ditch shall be separated from the inlet in such a manner as to prevent discharging of partially treated effluent.

5. Intra-channel clarifiers may be utilized if conventional settling rates are maintained and sludge handling, treatment and management provisions are satisfactorily addressed.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-760 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-700, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-710 Sequencing batch reactors (SBR)

A. Usage. In accordance with the requirements of this chapter and standards contained in this chapter, batch operation modifications of the activated sludge process will be considered as conventional secondary treatment processes. Adequate performance data and information from a full scale treatment works of similar design, including the levels of influent wastewater characteristics that produce hydraulic and organic loading rates within 25% of values used in the proposed design, shall be provided if an SBR design is to accomplish an effluent quality more advanced than a secondary level.

B. Design. The design shall meet the applicable loading requirements. The operating cycle normally consists of FILL, REACT, SETTLE, DRAW, and IDLE sequences with alternating sequences of mixing and aeration on and off.

1. A minimum of two basins shall be provided for design flows in excess of 0.1 mgd. The minimum total basin volume shall be equal to the design daily influent flow volume and either upstream in-line or off-line storage is necessary to minimize influent flow during settling and decanting. Effective scum collection and removal equipment shall be provided.

2. The design basis for meeting oxygen requirements shall consider the variation in liquid level depth and the aeration sequence time.

3. The basin depth shall be sufficient to provide optimum separation of the settled biomass and the point of effluent withdrawal.

4. Adequate mixing shall be provided to resuspend settled solids at the start of the FILL sequence and maintain solids in suspension over the design liquid volume range.

5. A high liquid level overflow shall be provided between basins. The overflow shall be located as far as possible from the outlet device and in no case be closer than 10 feet from the outlet device.

6. Inlets to each basin shall be located as far as possible from the outlet and in no case be closer than 10 feet from the outlet.

7. Scum baffles or other suitable arrangements shall be provided to prevent scum from being withdrawn with the effluent.

8. Outlet facilities shall be designed to prevent resuspension of the settled solids in the basins. An adjustable flow rate control device shall be provided on each basin outlet.

9. Waste sludge control facilities shall have a rate per day equal to 50% of the total basin volume.

10. The FILL and DRAW sequences for an individual basin shall not overlap.

C. Features. Automatic control valves and switches shall be provided for controlling the operating sequences of each basin. Automatic control valves shall be capable of manual operation. Control sequences shall be adjustable to allow flexibility in operating time periods for each sequence. The control system shall provide automatic operation of the inlet valve and outlet valve to each basin, the air supply valve to each basin and the blowers or mechanical aerators.

1. The control system shall provide for automatic operation of downstream units or equipment as necessary. The control system should also provide automatic control of the waste sludge removal system. A spare automatic control unit shall be provided.

2. A monitoring system shall be provided that will indicate control system status and actual valve position of each automatically operated valve. Also, the control system status and the actual operational status of both the air supply system (blowers or mechanical aerators) and sludge removal system shall be monitored, when equipped for automatic operation. The monitoring system shall include an alarm to indicate a malfunction of the control system.

3. Dual hydraulic pumps and air compressors shall be provided when such facilities are utilized in conjunction with valve operators. Electrically operated valves shall be designed so as to fail only in the open position.

4. A high liquid level alarm for each basin shall be provided to signal an alarm condition prior to reaching the overflow pipe or port.

5. Influent flow and effluent flow measurement for the treatment facility shall be provided. The extent of the flow measurement equipment shall be in accordance with this chapter.

6. Disinfection and other downstream treatment units shall be sized based on the maximum design DRAW sequence flow rate.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-770 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-710, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-720 Sewage stabilization ponds and aerated lagoons

A. General design. Basins with surface areas many times larger than conventional biological reactors, that utilize relatively low (less than 500 mg/l) levels of biomass, are typically referred to as stabilization ponds (if unaerated) but are referred to as facultative lagoons if aerated. This section provides criteria for achieving final effluent levels of 45 mg/l BOD₅ and 45 mg/l, or higher suspended solids, as permitted limits applicable to the geographic allowance for sections of Virginia. This level of treatment has been established in accordance with the federal requirements for secondary treatment equivalency as achievable through the use of stabilization ponds and facultative lagoons. The design information contained herein pertaining to features other than biological treatment performance criteria shall apply to the construction of earthen basins used in the treatment of sewage.

Stabilization ponds or facultative lagoons may be designed to achieve a higher degree of treatment or used as a biological treatment phase in conjunction with other unit processes. Proposed design parameters to achieve other than 45 mg/l BOD₅ effluent limits shall be thoroughly reviewed with the area engineer during the preliminary engineering conference. Necessary features for protecting public health and welfare and preventing potential violations of water quality standards shall be addressed in the design report.

1. The engineering design report shall contain pertinent information on location, geology, soil conditions, area for expansion, and any other factors that may affect the feasibility and acceptability of waste stabilization ponds or aerated lagoons used for sewage treatment. Specifically, the report shall contain the following supplementary field survey data.

a. The location and direction of all residences, commercial development, recreation areas and potable water supplies within one-half mile of the proposed pond or lagoon site. If practicable, ponds and lagoons should be located so that local prevailing winds will be in the direction of uninhabited areas.

b. Borings or other necessary geophysical analyses required to determine surface and subsurface characteristics of the immediate area and their effect on the construction and operation of ponds or lagoons located on the site.

c. Data demonstrating anticipated permeability at the elevation of the proposed pond or lagoon bottom.

d. A description, including maps showing elevations and contours, of the site and adjacent areas suitable for expansion.

e. A closure plan shall be submitted to the department prior to issuance of an operating permit.

2. The proximity of ponds or lagoons to potable water supplies and other water resources subject to potential contamination and location in areas of porous soils and fissured rock formations within the depth directly affected by the ponds or lagoons shall be reported to avoid area contamination. Monitoring and more stringent construction requirements may be required after consideration of such factors as distance from water sources, water uses, installation size, liner design, and wastewater characteristics. Adequate provisions shall be made to divert storm water around the ponds or lagoons and otherwise protect pond embankments.

3. Access control for the immediate area surrounding the ponds or lagoons shall be addressed by sufficient means, such as a woven wire fence at least six feet high. Vehicle access control shall be provided. Any access gate(s) shall be provided with locks.

a. Appropriate signs shall be provided along the secured perimeter or fence around the ponds or lagoons to designate the nature of the facility and advise against trespassing. The size of the sign and lettering used shall be such that it can be easily read by a person with normal vision at a distance of 50 feet.

b. Access for maintenance equipment, transporting chlorine cylinders and inspection shall be provided by an all-weather entrance road.

B. Loading design. For stabilization pond design with relatively uniform organic and hydraulic loading, the maximum loading shall be 30 pounds of BOD₅per day per total surface acreage, measured at the four-foot water depth level. For stabilization ponds that are not intended to meet federal secondary treatment equivalency limitations but will be used for pretreatment, higher loading rates may be acceptable.

1. In no case shall the detention time be less than 45 days, based on a four-foot operation level. For purposes of design, evaporation is to be considered equal to rainfall. At a minimum, a pond system shall consist of two physically separated ponds providing three separate treatment cells. For treatment works receiving an average design flow of less than 0.04 mgd, a minimum of one pond with two treatment cells may be acceptable. Organic loading to the first upstream or primary cells receiving sewage influent shall be a maximum of twice the total design loading for the system.

2. The shape of all cells shall be designed to provide even distribution of flow throughout the system. Round or square ponds are acceptable; however, rectangular ponds with high length to width ratios (up to 10:1) are considered most desirable. If round or square ponds are used, appropriate aeration arrangements and baffling shall be provided in order to minimize short-circuiting. Earth dikes shall be rounded at corners to minimize accumulations of floating materials.

3. Multiple sections of pond volume or cells designed so as to be capable of receiving design loadings under both series and parallel operation are required for all except small treatment works (one-half acre of pond surface or less). The minimum freeboard shall be two feet above the maximum operation depth, except for treatment works receiving less than 40,000 gpd. Operation depth requirements include:

a. The minimum operation depth shall be two feet, excluding any sludge storage section.

b. The maximum operating depth shall be five feet, excluding any sludge storage section.

4. For Class I reliability, the treatment works should provide for operation under winter conditions. The design should include considerations for, but not limited to, winter storage and supplemental aeration, to prevent effluent deterioration during cold weather conditions.

5. Installations provided for intermittent operation at a higher than normal loading for a relatively short portion of the year will be individually considered, taking into account the ability of the volume of the pond system to absorb shock loads.

6. The pond design shall include provisions for sludge storage. The volume of sludge storage should be based on a 20-year design life. The sludge storage section should be located in the upstream portion of the primary cells of the pond system.

7. Piping should be provided around the first cell in order to allow for parallel operation of the first two upstream cells in a pond system.

C. Features. Embankments and dikes shall be constructed of relatively impervious materials and compacted sufficiently to form a stable structure. Vegetation should be removed from the area upon which the embankment is to be placed. Embankment material shall be free of vegetative material and large rocks (more than six inches in length). Topsoil relatively free of debris may be used as outer slope cover material. Construction details including methods of construction, compaction details, inspection and construction certification shall be included in the design specifications. Soils used in constructing the side slopes shall either be compacted within 3.0% of the optimum moisture content to at least 90% Standard Proctor Density, or compacted in accordance with the proper site specific geotechnical recommendations.

1. The minimum embankment top width should be eight feet to permit access of maintenance vehicles. Lesser top widths will be considered for lagoons designed to serve 200 persons or 0.040 mgd or less. The top width must be designed to allow adequate maintenance.

2. Outer slopes should not be less than three-horizontal-to-one-vertical and the inner slope should not be less than three-horizontal-to-one-vertical nor greater than four-horizontal-to-one-vertical.

3. Exposed embankments and excavated areas shall be protected against erosion by suitable seeding, sodding or other methods. Additional protection for embankments, such as riprap, may be necessary to protect against wave action and flood currents. A method shall be specified that will prevent vegetation growth one foot above and below the operating water levels.

4. The pond shall be as level as possible at all points. Finished elevations shall not be more than three inches from the average elevation on the bottom. The bottom shall be cleared of vegetation and debris. Organic material thus removed shall not be used in the dike core construction.

D. Liners. A liner shall be provided for all ponds in order to minimize seepage. Material shall be of acceptable standard to assure uniform placement and quality. Standard ASTM procedures or acceptable similar methods shall be used for all tests. Natural soil and enhanced soil (bentonite, cement, etc.) material used as liners should be capable of achieving a maximum coefficient of permeability of one tenth of one millionth of one centimeter each second (1X10^-7cm/sec) or approximately three centimeters per year or less. Following the specified level of compaction, liner material used for the pond's side and bottom shall have a coefficient of permeability of one millionth (1X10^-6) cm/sec or less. Bentonite, asphalt, and other sealant additive materials should be considered to enhance the impermeability of natural soil liners.

1. Synthetic liner material shall be selected considering the application and manufacturer's use recommendations. Minimum requirements for generally used materials are:

a. Plastic film (nonreinforced, covered)—thickness equal or greater than 0.020 inches.

b. Plastic film (nonreinforced, noncovered)—thickness equal or greater than 0.050 inch.

c. Asphalt panels (covered)—thickness equal to or greater than 0.25 inch.

d. Asphalt panels (noncovered)—thickness equal to or greater than 0.50 inch.

2. Construction should be planned and implemented to assure liner integrity throughout the coverage area for the design life of the liner. The design specifications shall include details of construction, inspection, and certification. Services of qualified soil scientists, manufacturer material certification and inspection, and other qualified means of assuring proper material installation should be used. The liner substrate should be free of organic material, graded, rolled and be level and smooth in nature. The preparation of a stable and adequately smooth substrate is important for liner installation.

3. Natural soil or enhanced soil liners shall be compacted at or up to 4.0% above optimum moisture content to at least 95% Standard Proctor Density (or 90% Modified Proctor Density) throughout the bottom and side coverage area. Soil liners shall not contain rock fragments greater than two inches in the longest dimension and shall have a compacted thickness of at least 12 inches. Soil layers shall be applied in multiple compacted lifts of six inches or less.

4. Soil enhancers (bentonite, cement, hot asphalt) used to improve soil impermeability can be used to reduce the required liner thickness. Although thickness may be reduced with improved impermeability, a minimum thickness of two inches shall be provided. The enhanced soil liner soil matrix should be screened and free of stones greater than 3/4-inches in the longest dimension. Reduced thickness enhanced soil liners should be covered with a six-inch compacted protective soil layer. All layers should be applied in lifts of six inches or less. Presence of smaller gravel will assist in erosion protection.

5. Synthetic liners shall be constructed in accordance with the manufacturer's applicable instructions for liner usage. Generally, these liners should be covered by a protective layer of soil to prevent surface damage and deterioration. The liner shall be top anchored with a minimum berm set back and anchor depth of 18 inches. Unless the manufacturer specifies otherwise, all seams should be perpendicular to the slope with the overlap in the down slope direction. The pond should be subsurface drained or the liner vented to protect against damage due to gas accumulation under the liner. Special care and design will be required to assure a tight seal around inlet and outlet structures. Pads will be required in areas of aerator action and other sources of high velocity flow.

a. If mechanical equipment may result in damage to liner, then a protective layer of soil or other material shall be provided.

b. The pond bottom liner shall be located at least two feet above the seasonal high water table.

E. Hydraulics. The influent line to the pond system shall conform to acceptable material requirements of this chapter. A manhole shall be installed at the terminus of the influent sewer line, preceding the pond system, and shall be located as close to the dike as topography permits. Its invert shall be at least six inches above the maximum operating level of the initial upstream pond to provide sufficient hydraulic head without surcharging the manhole. The influent line to the initial upstream pond shall slope uniformly to the inner toe of the sloping embankment. A bend may be used where the influent line changes direction at the inner toe of the dike embankment and pond bottom.

The sewer upstream from the manhole should not be surcharged unless the means to routinely flush the influent pipeline is provided. If sewage is discharged to the pond system through a force main or mains, an antisiphoning device shall be provided on the force main.

1. Influent and effluent piping shall be located as far apart as possible along the flow path to minimize short-circuiting within the pond.

a. The influent line to each pond should be located approximately at the center of the influent area provided to uniformly distribute influent flow. Influent lines or interconnecting piping to downstream or secondary cells of multiple cells in the pond system, that are operated in series, may consist of pipes through the separating dikes.

b. Influent mixing or dispersion shall be provided for ponds having two acres or more of water surface area. All gravity lines shall discharge horizontally above an erosion resistant surface. Force mains shall discharge vertically upward and shall be submerged at least two feet when operating at the three feet depth. Velocity in the force main at normal pumping rate must be sufficient to prevent deposit of grit in the force main.

c. A concrete-lined pad with a minimum size of four feet square or a surface with equivalent resistance should be provided to prevent erosion at the influent point of discharge to the pond.

2. The outlet structure shall be placed on the horizontal pond floor adjacent to the inner toe of dike embankment. A permanent type walkway from top of dike to top of outlet structure for access shall be provided. The outlet structure shall consist of a well or box equipped with multiple-valved pond draw-off lines. An adjustable draw-off device is also acceptable. The outlet structure shall be designed such that the liquid level of the pond can be varied from a three-foot depth to a five-foot depth in increments of one-half foot or less. Withdrawal points shall be spaced so that effluent can be withdrawn from depths of 0.75 feet to 2.0 feet below pond water surface, irrespective of the pond depth. The lowest draw-off lines shall be 12 inches off the bottom to control eroding velocities and avoid pick-up of bottom deposits. The overflow from the pond shall be taken near but below the water surface. The structure shall also have provisions for draining the pond. A locking device shall be provided to prevent unauthorized access to level control facilities. An unvalved overflow placed six inches above the maximum water level shall be provided.

3. Interconnecting piping for multiple pond installations operated in series should be valved or provided with other arrangements to regulate flow between structures and permit flexible depth control. Interconnecting piping and outlets shall be of materials meeting the requirements of this chapter.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-780 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-720, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-730 Aerated lagoons

A. Low intensity aerated basins containing relatively low levels (less than 500 mg/l) of biomass are also known as aerated lagoons. The designed construction details of aerated lagoons are often similar to stabilization ponds. However, the aerated lagoon liquid depth shall be sufficient to provide for uniform distribution of dissolved oxygen in the design range of six feet to 15 feet.

B. Design. Not less than two physically separated basins providing a minimum of three treatment cells shall be used to provide the detention time and basin volume required by the lagoon system design. For treatment works less than 0.04 mgd, one basin with two treatment cells may be acceptable. The basins shall be designed to receive established loadings for both parallel and series operation. The air diffusion equipment shall be capable of maintaining sufficient mixing and oxygen concentration in the aerated volume under maximum seasonal demand conditions. Consideration should be given to fixed or floating-type in-pond baffle walls with carefully placed openings, to minimize short circuiting effects and to maximize flow path length. Deep ponds with depths exceeding 10 feet shall be provided with baffling to ensure adequate flow distribution and proper detention.

1. Detention time is dependent on many variables including type of waste, temperature, effective volume and nutrient balance. For a typical sewage influent strength of 300 mg/l or less of BOD₅ or TSS, the lagoon system design shall require total detention times in the range of 20 days. In addition to adequate volume to achieve the desired detention time, the design for primary lagoons shall include a minimum of 10% additional volume for sludge storage.

2. The initial upstream, primary cell receiving influent flow shall contain a minimum of one third of the total system volume. For small treatment works (design flow of 0.04 mgd or less) the primary cell shall contain at least one half of the total design volume.

3. Design requirements, as with detention time, may be dependent on many variables. Generally, mixing energy to maintain adequate solids suspension will be the limiting factor. All aerated lagoon systems shall be designed to maintain a normal dissolved oxygen concentration of two mg/l throughout the system. Minimum aeration requirements shall be based on established mass transfer models considering the treatment variables involved. Aeration equipment shall be capable of transferring two pounds of oxygen per pound of BOD₅ applied to the basin. Calculations shall be submitted to justify equipment and aeration patterns.

4. The influent to a lagoon shall discharge into a highly turbulent area, if applicable, to facilitate mixing effects. Baffles and pipe diffusers shall be considered for provision of uniform distribution of flow into basins with a surface area of 10 acres or more. All systems shall be designed with piping flexibilities to permit isolation of any cell without affecting the transfer and discharge capabilities of the total system. In addition, the ability to discharge the influent waste load to a minimum of two cells or all primary cells in the system shall be provided. Screening shall be provided on influent lines to prevent damage to mechanical surface aerators.

5. The outlet structure shall be located in a quiescent zone, at such a depth and at the most remote location possible with respect to the basin inlet, so as to minimize suspended solids carryover and maximize basin detention. The outlet structure shall provide for withdrawal at controlled rates for multiple depth levels, such that the liquid level in the basin can be drained and can be varied in an easily accessible manner. A minimum of three incremental withdrawal elevations should be provided, including the minimum and maximum operating depths.

6. Provisions shall be made to allow final solids settling prior to discharge. This provision should be made through the use of either a final settling basin or by providing an adequate quiescent zone toward the end of the final treatment cell. If a final settling basin is used, it shall provide a minimum of 1.5 hours settling time and conform to applicable requirements specified in this chapter.

7. It may be desirable to provide for concrete or soil cement stabilization of bottoms, walls and embankments. However, they will not be required initially unless experience dictates their necessity. Adequate concrete pads shall be provided under mechanical surface aerators to prevent bottom scour. For surface aeration, earthen embankment walls one foot above and one foot below the normal water level must be riprapped or stabilized with other suitable material to prevent erosion by wave action.

C. Mechanical aeration. Not less than two aeration units shall be used to provide the horsepower required. Aerators shall be located such that their circles of influence touch. The circle of influence is that area in which return velocity is greater than 0.15 feet per second as indicated by certified data. Without supporting data the following may be used as a guide:

| | Nameplate Horsepower | Radius in feet | | --- | --- | --- | | | 5 | 35 | | | 10-25 | 50 | | | 40-60 | 50-100 | | | 75 | 60-100 | | | 100 | 100 |

1. The horsepower shall be sufficient to provide the oxygen required for BOD₅satisfaction and mixing. In no case shall the horsepower be less than 10 horsepower per million gallons of basin volume.

A sufficient number of aerators shall be provided so that a design level of dissolved oxygen within a particular cell shall be maintained with the largest capacity aerator in that cell out of service. Installation of the backup aerator should not be required, provided that it can be placed into service prior to a detrimental decrease in dissolved oxygen levels.

2. Floating surface aerators should be anchored in at least three and preferably four directions. Interconnection of floating aerators is discouraged. Flexible cables are preferred over rigid ones.

3. Surface aerators should be designed to prevent icing. Consideration should be given to the installation of splash plates for control of misting. For platform mounted aerators, the platform legs should be spaced at a sufficient distance from the aerator to minimize the effect of ice build-up caused by splashing.

a. Aerator design should provide for periodic and major maintenance and repairs and shall provide for removal of the aerators for replacement if necessary.

b. Provisions shall be made for independent operation of each aerator by on/off switches, time clocks, etc.

D. Diffused aeration. The design for compressed air volume requirements shall include the basin aeration requirements together with air used in other channels, pumps, or other air-use demands. The air diffusion equipment shall be capable of maintaining sufficient mixing and oxygen concentration in the aerated volume under maximum seasonal demand conditions. Provisions shall be made for removal of deposits for unclogging of air diffuser openings. Consideration should be given to minimizing the points of access necessary for cleaning.

1. The specified capacity of blowers or air compressors, (particularly centrifugal blowers), shall take into account that the air intake temperature may reach 40°C (104°F) or higher and the pressure may be less than normal. Air filters shall be provided in numbers, arrangement, and capacities to furnish at all times an air supply sufficiently free from dust to protect equipment and prevent clogging of the diffuser system used.

2. The blowers shall be provided in multiple units, so arranged and in such capacities as to meet the maximum air demand with the single largest unit out of service. The design shall also provide for varying the volume of air delivered in proportion to the design load for individual cells of the lagoon system.

3. Calculations shall be provided to verify that blower pressure is sufficient to dewater the diffuser lines at saturation conditions under normal operating depths.

4. Diffusers shall be arranged in each basin to provide tapered aeration with maximum intensity near the inlet. The spacing of diffusers shall be in accordance with the oxygenation requirements of the total process, i.e., the organic loading in each cell. Diffuser spacing should be designed to facilitate adjustments without major revision to air header piping. The arrangement of diffusers should also permit their removal for inspection, maintenance, and replacement without completely dewatering the basin and without shutting off the air supply to other diffusers in the basin.

5. Individual assembly units of diffusers shall be equipped with control valves, preferably with indicator markings for throttling or for complete shut-off. Provisions must be made for subsequent air flow or pressure measurements and necessary air flow adjustments. Diffusers in any single assembly shall have substantially uniform pressure loss.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-790 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-730, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 7 Effluent Polishing and Disinfection Processes

9VAC25-790-740 Disinfection

Article 7 Effluent Polishing and Disinfection Processes

A. Disinfection processes are designed to inactivate actual or potential pathogenic microorganisms present in treated sewage effluents. Disinfection of treated sewage effluents shall be provided to prevent the occurrence of public health hazards in either receiving streams, land treatment sites, or reuse applications from wastewater effluents. Disinfection shall be accomplished in a manner that meets standards for indicator microorganisms but does not result in a violation of toxicity standards.

B. Policy. The need for disinfection of a sewage treatment works effluent is primarily based on standards for either the receiving waters and the land application site or public exposure to reuse as determined by the following requirements:

1. Discharges located within 15 miles upstream or one tidal cycle downstream of a water supply intake shall be disinfected at all times.

2. When sewage discharges are permitted to or within five miles upstream of shellfish waters, they shall be disinfected at all times.

3. Discharges located in all other waters shall be disinfected at all times unless it can be demonstrated, through the use of a Site Specific Beneficial Use-Attainability Analysis of the recreational and other beneficial seasonal uses of the receiving stream, that disinfection is not needed throughout the year, or on a seasonal basis, to protect those uses.

4. Discharges for land treatment or reuse purposes shall be disinfected as necessary to protect the public health and welfare. The public shall not be directly exposed to treated effluent.

C. Toxicity reduction. The need for reducing the effect of toxicity from wastewater effluents is based on the characteristics of the discharge and receiving stream and is established at the time of the permit or certificate issuance. Where the need is established, dechlorination or alternate disinfection methods shall be provided.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-800 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-740, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-750 Chlorination

A. Disinfection can be accomplished through the controlled application of chlorine compounds to treated sewage to accomplish a sufficient dose, or contact exposure level, over a sufficient period of time, to achieve compliance with the indicator microorganism standard.

B. Chemical. Conventional types of chlorine compounds (chemical) include:

1. Chlorine gas is a greenish-yellow gas with a density greater than the density of air at room temperature and pressure. When compressed to pressures greater than its vapor pressure, chlorine gas condenses into a clear amber liquid.

2. Dry chlorine, liquid or gaseous, contains no more than 150 ppm of water (by weight). Unless otherwise indicated, the word "chlorine" wherever used in this section refers to dry chlorine.

3. A chlorine solution is a mixture of chlorine and water.

4. A hypochlorite solution is a mixture of either sodium or calcium hypochlorite and water.

5. A hypochlorite tablet is a solid formulation of a hypochlorite compound designed to dissolve in a liquid at a controlled rate.

C. Design. Chlorination feed equipment capacity shall be based on the degree of treatment, flow variations, and other uses in the treatment processes. For disinfection, the capacity shall be adequate to produce the residual required in the certificate or permit issued, in the effluent, after the required contact period. Conventional chlorination should be designed to provide a Total Residual Chlorine (TRC) level of up to 1.5 mg/l following a design contact period of 30 minutes or more. Chlorination should be considered for the control of odors and sludge bulking.

1. For normal domestic sewage the dosing capacities listed in Table 7 are recommended:

| TABLE 7. MINIMUM DESIGN CHLORINE DOSAGES. | | | --- | --- | | EFFLUENT BOD/SS CONCENTRATION | DOSAGE (Based on Maximum Daily Flow) | | 30/78 mg/l | 20 mg/l | | 45/45 mg/l | 15 mg/l | | 30/30 mg/l | 8 mg/l | | 20/20 mg/l | 6 mg/l | | 10/10 mg/l | 4 mg/l | | <10/10 mg/l | <4 mg/l | | Odor/Sludge Bulking Control | >20 mg/l |

2. Standby chlorination capabilities shall be provided that will ensure adequate disinfection with any essential equipment of the unit operation out of service for maintenance or repairs. An adequate inventory of parts subject to wear and breakage shall be maintained at all times. An automatic changeover system shall be provided for either (i) treatment works with a design flow of 1.0 mgd or greater or (ii) discharges to critical waters, unless the treatment works are manned 24 hours per day. Where several cylinders are needed to feed sufficient chlorine, separate connections shall be provided for the duplicate gas supplies.

3. A sufficient supply of water shall be available for operating the chlorinators. Where a booster pump is required, duplicate pumping equipment shall be provided, except for discharges to critical waters, in which case duplicate pumps shall be installed. Where an onsite well is used for operating the chlorinators, an adequate back up shall be provided to ensure continuous disinfection. When connection is made from domestic water supplies, equipment for backflow prevention shall be installed. Pressure gauges shall be provided on chlorinator water supply lines.

4. Equipment for measuring the amount of chlorine used shall be provided. Where chlorine gas cylinders are used, scales shall be provided for weighing the cylinders. Scales should be manufactured with a material that is resistant to corrosion by chlorine. Adequate means for supporting the cylinders on the scales shall be provided. At large treatment works, multiple scales of the indicating and recording type are recommended. The recessing of scales is recommended to aid in changing of cylinders if hoists are not provided. Where manifolding of several cylinders will be required to feed sufficient chlorine, consideration shall be given to the installation of evaporators.

D. Dose control. The introduction of chlorine compounds (chemical) at a controlled feed rate is a critical area of disinfection system design.

1. Manual control is the simplest strategy for controlling the chemical feed rate. Generally the feed rate will be constant with minor adjustments made by the operator. This method is normally utilized at smaller treatment facilities.

2. Flow proportioning control in which the chemical feed rate is paced in proportion to the effluent flow rate by appropriate equipment is typically used at treatment works receiving more than 0.1 mgd influent flow.

3. Residual control may be used where the pacing of the chemical feed rate is based on residual analysis of a chemical compound or oxidation-reduction potential in the sample stream.

4. Compound loop control involves a system with interlocking controls that combines the regulation of chemical feed by flow proportioning with subsequent adjustment of the flow proportion dosage in reference to the chemical compound residual. This system is used at treatment works receiving more than 1.0 mgd of influent flow.

5. Solution-feed vacuum-type chlorinators are generally preferred for gas chlorination. Positive displacement type feeders are preferred for hypochlorite solution. Tablet chlorinators may be considered on a case-by-case basis for design flows up to 50,000 gpd.

6. The control system requirements for chlorine feed shall be in accordance with Table 8 as follows:

| TABLE 8. CHLORINE DOSAGE CONTROL SYSTEMS. | | | --- | --- | | Design Flow MGD | Type of Control System Recommended | | <0.04 | Manual Control | | 0.04 to 5.0 | Flow Proportioning⁽¹⁾ | | 1.0 to 5.0 | Compound Loop⁽²⁾ | | 5.0 or greater | Compound Loop |

Notes:

⁽¹⁾Manual, or residual control, may be allowed for flows up to five mgd if equalization of flow prior to disinfection is provided, or allowed for unequalized flows up to one mgd when the discharge is not to critical waters. Flow proportioning control may be allowed for discharges up to five mgd to other than critical waters.

⁽²⁾Required for discharges to critical waters and when dechlorination is necessary to meet effluent requirements for maximum chlorine residuals (TRC) of 0.5 mg/l or less.

E. Dose application. The applied chlorine compound shall be uniformly mixed with the influent to the contact basin. The flow shall be retained within the contact basin for the time period necessary to achieve the design dose.

1. Provisions for mixing shall be made to ensure uniform mixing of the chlorine solution or chemical with the wastewater flow near the point of application prior to and without interfering with the design contact period. This may be accomplished by either the use of turbulent flow regime or a mechanical mixer. A mean velocity gradient (G) value of 500 to 1,000 per second (Sec^-1) is recommended. The engineer shall provide calculations to justify adequate mixing.

2. A minimum contact period of 30 minutes at average daily flow or 20 minutes at maximum daily flow shall be provided within basins or channels immediately following the application of chlorine. A minimum contact period of 60 minutes at average daily flow or 30 minutes at the maximum daily flow shall be required for treatment works that are not continuously manned and that discharge to shellfish waters as defined in the state Water Quality Standards (9VAC25-260). The contact period shall be based on whichever criterion is more stringent.

3. A chlorine contact tank is a basin specifically designed to retain chlorinated effluent for the design contact periods following the application of chlorine. Continuous disinfection shall be provided. The design shall provide continuous chlorination while the chlorine contact tanks are dewatered for cleaning. Multiple basins will be required when mechanical sludge collection equipment is utilized in the contact tanks. For all treatment works with a design flow of 40,000 gpd or greater, multiple tanks shall be provided unless other provisions are made to prevent discharge of nondisinfected effluent. The contact tanks shall be designed to provide plug flow type hydraulics, with baffling provided to achieve a flow path length to flow path width ratio of at least 20 to 1 and a basin depth to basin width ratio of approximately 1.0.

F. Features. Disinfection piping systems shall be well supported, adequately sloped to allow drainage, and protected from mechanical damage. Suitable allowance shall be provided for pipe expansion due to changes in temperature. It is recommended that joints in chlorine piping be flanged or welded.

1. Piping materials shall be suitable for use with chlorine gas or solution, in conformance with the latest standards of the Chlorine Institute.

2. Where adequate superheat is not provided by an evaporator, condensation should be prevented by reducing the pressure with a pressure reducing valve.

3. Where odor control is accomplished by prechlorination, solution piping shall be arranged such that the necessary chlorine application can be accomplished.

4. Any building that houses chlorine equipment or containers shall be designed and constructed to protect all elements of the chlorine system from fire hazards in accordance with applicable codes and regulations. If flammable materials are stored or processed in the same building with chlorination equipment other than that utilizing hypochlorite solutions, a fire wall shall be erected to separate the two areas. If gas chlorination equipment and chlorine cylinders are to be in a building used for other purposes, a gas-tight partition shall separate this room from any other portion of the building. Doors to this room shall open only to the outside of the building and shall be equipped with panic hardware. Such rooms shall be at ground level and should permit easy access to all equipment. The storage area should be separated from the feed area. At least two means of exit should be provided from each separate room or building in which chlorine, other than hypochlorite, is stored, handled, or used. All exit doors shall open outward or roll-upward. A clear-glass, gas-tight window should be installed in an exterior door or interior wall of the chlorinator room to permit the chlorinator to be viewed without entering the room.

5. Chlorinator rooms shall be provided with a means of heating so that a temperature of at least 15°C (60°F) can be maintained. The room shall also be protected from excess heat. Forced, mechanical ventilation that will provide one complete air change per minute shall be installed in all chlorine feed rooms and rooms where chlorine cylinders are stored. The entrance to the air exhaust duct from the room shall be near the floor and the point of discharge shall be so located as not to contaminate the air inlet to any building or inhabited areas. The air inlet shall be so located as to provide cross ventilation with air at such a temperature that will not adversely affect the chlorination equipment. The vent hose shall run without traps from the chlorinator and shall discharge to the outside atmosphere above grade.

6. The controls for the fans and lights shall be such that they can automatically operate when the door is opened if a remote disconnect or override switch is provided in an identifiable, safe, remote location and they can also be manually operated from the outside without opening the door.

G. Safety. Respiratory protection procedures and equipment in compliance with VOSH and other applicable standards (National Institute for Occupational Safety and Health (NIOSH)/Mine Safety and Health Administration (MSHA)) should be available where chlorine gas is handled, and should be stored at a convenient location, but not inside any room where chlorine is used or stored. For treatment works designed for one mgd or greater, it is recommended that at least two complete sets be provided.

1. Instructions for using the equipment shall be posted. The use of compressed air or oxygen, with at least a 30-minute capacity, as compatible with such units used by fire departments (responsible for the treatment works) is recommended in accordance with applicable local, state, and federal standards.

2. A bottle of approximately 50% ammonium hydroxide solution shall be available for detecting chlorine leaks. Where 150-pound cylinders, ton containers, or tank cars are used, a proper leak repair kit (as the type approved by the Chlorine Institute) shall be provided.

3. Consideration should be given to the provision of chlorine gas containment scrubber system with caustic soda solution reaction tanks for absorbing the contents of leaking ton containers where such containers are in use.

4. For treatment works designed for a one mgd or greater average influent flow, automatic gas detection and related alarm equipment should be provided in accordance with VOSH and other applicable requirements.

H. Monitoring. Facilities shall be included for collecting a sample following the contact period to determine the effectiveness of the disinfection method.

1. Equipment shall be provided for measuring chlorine residual in accordance with EPA approved methods.

2. For discharges to critical waters, equipment or services, or both, shall be provided for monitoring the level of indicator microorganisms for pathogenic organisms, in accordance with EPA approved methods, in order to verify the disinfection efficiency.

3. Requests to establish a chlorine (TRC) reduction program, for maintaining a TRC below 1.0 mg/l in the chlorine contact effluent, shall be evaluated based on submission of at least one year of adequate monitoring results comparing TRC values and corresponding indicator microorganism results.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-810 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-750, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-760 Bromochlorination

A. Disinfection by bromochlorination is accomplished with bromine chloride (BrCl) in a manner similar to chlorine disinfection. Bromine chloride is an equilibrium mixture of bromine and chlorine in both the gas and liquid states. The chemical is highly soluble in water and hydrolyzes to hypobromous (HOBr) and hydrochloric (HCL) acids. Due to the rapid decay of bromine chloride in wastewater, generally there will not be any measurable bromine chloride residuals in the final sewage effluents. Pure bromine chloride is a heavy, fuming, dark, red liquid which is about 20% disassociated into molecular bromine and chlorine.

B. Design. This disinfection process can be considered for treated effluents with BOD₅ and suspended solids concentrations of 30 mg/l or less. Prior documentation should be furnished which shows that adequate disinfection of a specific sewage effluent can be obtained with this process.

C. Dose control. Bromochlorination feed equipment capacity shall be based on degree of treatment, flow variations, and other uses in the treatment processes. For disinfection, the capacity shall be adequate to produce the control point residual required in the permit or certificate issued. The dosing capacity of this process for normal domestic sewage should usually be 80% of that recommended in the chlorine dosage Table 7.

1. Bromochlorination equipment and spare parts are essentially the same as similar requirements for chlorination.

2. Gas feeder systems may be used for feed rates less than 500 pounds per day. Direct liquid bromine chloride feed systems should be used for feed rates greater than 500 pounds per day.

D. Features. Where adequate heat is not provided by the vaporizer to prevent condensation, the use of auxiliary heating and insulation shall be provided as necessary.

1. Materials for piping and appurtenances shall be suitable for handling gas, pure liquid or solutions of bromine chloride as appropriate.

2. The required housing shall be the same as for chlorination, as per VOSH requirements.

3. An evaporator shall be provided for all gas feed systems. The equipment should be designed to minimize the time out of service for maintenance. A backup system shall be provided to ensure adequate disinfection for all discharges when the vaporizer is out of service for maintenance. The vaporizer system should provide superheated gas to the inlet of the vacuum-operated bromine chloride feeder.

E. Safety. The requirement for safety shall be the same as for chlorination and should be in accordance with VOSH requirements. A physical barrier shall be provided for the separation of storage areas if bromine chloride and chlorine chemical supply containers and gas cylinders are located in the same room.

F. Monitoring. Facilities shall be included for collecting samples for bromine chloride residual determinations at the five minute contact time control point and for pathogenic bacterial indicator organism determinations following the total contact period. There should be no readily detectable bromine residual within the final effluent.

1. As bromochlorination equipment represents new technology and limited performance data is available for these systems, an initial period of increased sampling frequency and testing requirements for pathogenic bacterial indicators, such as fecal coliform, may be required. The required initial testing program should take place over a period of one year or more under reasonable operating conditions with a minimum sampling frequency of at least once per week.

2. Disinfection of secondary or better quality effluent should consistently maintain a fecal coliform level below 200 per 100 milliliters of sample volume, or the allowable level contained in the certificate or permit issued, whichever is more restrictive.

3. Indicator organism test results should be correlated with other measurements at the time of sampling, including flow rate, effluent suspended solids, bromine dose rate, and residual measurements.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-820 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-760, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-770 Ultraviolet light irradiation (UV)

A. Disinfection can be achieved through exposure of microorganisms to a sufficient level of UV at the germicidal wavelength for an adequate period of time.

B. Design parameters. The following parameters are important to UV disinfection design:

1. The absorbance coefficient is a measure of the UV absorbing characteristics of the irradiated fluid as measured by a single beam spectrophotometer at 253.7 nanometers, using both filtered and unfiltered fluid samples. The units of this parameter are absorption units per unit distance from the UV source.

2. The contact period is the period of time that a microorganism is exposed to a given intensity and is a function of the residence time distribution (RTD) of flow moving past an arrangement of UV lamps which can be determined from tracer tests.

3. The UV dose is a function of the product resulting from multiplying the average UV intensity, by the contact period (T) and is expressed as (microwatts)(seconds)/square centimeter (UW/SQ.CM/SEC).

4. The dose response is a measure of the inhibition of cell replication, and is indicated by the ratio of the monitored log counts of an indicator organism prior to and following exposure to a given UV dose.

5. The dispersion coefficient (E) is a measure of turbulent mixing (square centimeters per second) within the fluid passing through an arrangement of UV lamps. The value of E established by the RTD variance should be correlated with the contact time necessary to provide the required dose response.

6. The intensity is an expression of the rate (units of microwatts per square centimeter) at which energy is delivered from the source into the surrounding liquid. UV intensity will dissipate by dilution and will be absorbed by the medium as the distance from the source increases. The UV intensity provided for disinfection purposes should be approximated on the basis of the physical properties of the UV lamps, the physical arrangement of lamps within a flowing liquid stream, and the properties of the wastewater effluent (Kab).

7. Lamp assemblies are defined as the arrangement or grouping of UV lamps occupying the cross-section of a channel or reactor.

8. Photoreactivation is a process whereby certain organisms regain the ability to reproduce upon exposure to secondary light.

C. Design dose. This disinfection process shall only be considered as conventional when designed to treat effluent with BOD₅ and suspended solids concentrations of no more than 30 mg/l and that consistently maintains a filtered KAB(Base e) of no more than 0.4/centimeter. The minimum average design intensity and dosage provided by each lamp assembly shall be specified. Conventionally designed lamp assemblies shall not receive a maximum flow in excess of three mgd unless sufficient operating data is submitted to verify disinfection performance for similar wastewater flows in excess of three mgd.

1. Conventional UV process design shall provide a minimum average dose of 50,000 microwatt-seconds per square centimeter after the UV lamps have been in operation for 7,500 hours or more unless sufficient information is provided to demonstrate that the required level of disinfection can be obtained at a lower dose level.

2. UV designs based on dose-response models shall be verified by acceptable bioassay test results, and the expected influent level of indicator microorganisms shall be determined to verify the design.

3. Photoreactivation effects should be accounted for by the UV design.

D. Features. The current configurations acceptable for UV disinfection equipment include contact systems with submerged UV lamps enclosed in quartz tubes and noncontact systems with UV lamps situated adjacent to the flow surface or adjacent to teflon-lined tubular channels carrying treated effluent. Conventional UV disinfection system design shall include, as a minimum, two separate lamp assemblies with each assembly capable of providing the level of disinfection necessary to meet the disinfection standard at average daily flow. If no more than two lamp assemblies are provided for treatment works discharging to critical waters, then each assembly shall be capable of disinfecting the maximum daily flow. Upstream screens should be provided for unfiltered effluent to prevent breakage of quartz tubes by debris. In addition, these systems should be protected against "shock" hydraulic loads from pump station flows.

1. As quartz effectively passes the germicidal portion of light emitted by UV lamps, a quartz tube should be used to enclose UV lamps that are submerged in the treated effluent. The quartz tubes shall be watertight and not subject to breakage under normal usage. As teflon also passes the germicidal portion of light emitted by UV lamps, teflon lined channels may also be used to separate UV lamps from direct contact with treated effluent. Lamp alignment should provide for maximum contact periods and for reduced opportunity for blockage by debris around the submerged lamps. The downstream fluid head should maintain full flow within teflon lined channels. The strength needed to prevent channel deformation in relation to wall thickness should be established by the designer for these channels. The teflon tubes should normally be supported to prevent sagging during operation. Provisions should be made for air bleeding of this system by the operator when necessary.

2. Lamp spacing in channels or reactors should be sufficient to use the light in the solution rather than absorb it on adjacent lamps and walls. The lamp spacing should provide for the absorbance of the fluid disinfected. For good quality secondary effluent (absorbance (Base e) 0.3/cm or less) the spacing between lamps should be no more than eight cm with good mixing provided along intensity gradients. The arrangement and numbers of lamps included in each assembly shall be designed to facilitate proper maintenance. All electrical connections to submerged lamps shall be watertight and designed so as to remain dry during maintenance operations.

3. UV lamp specifications should include as minimum the following or demonstrated equivalent:

a. Availability (at least two manufacturers).

b. 90% or more emitted light output at 253.7 nanometers.

c. A minimum arc length that exceeds lamp length.

d. A rated output of 120 UW/SQ.CM. or more at 1.0 meter from the source.

e. A rated operating life in excess of 7500 hours during which time the UV output exceeds one-half of the rated output.

f. The lamps should not produce significant ozone or hydrogen peroxide.

g. Temperature control should provide for maintaining 105°F to 120°F surface temperature.

4. A single ballast should be utilized to provide power to no more than two UV lamps. Ballasts may be mounted side by side in a control box and shall be specified or labeled to indicate their corresponding UV lamps. A set of lights should indicate the on-off status of each lamp and should be visible without opening the control box. The ballasts generate a significant amount of heat, and forced-air ventilation or positive cooling of control boxes shall be provided. The set of ballasts serving each assembly of UV lamps shall be mounted in separate (physically separated) arrangements or control boxes. Control boxes shall be designed and installed in such a manner that replacement of individual ballasts will not result in discharge of undisinfected effluent.

5. The system of electrical connections shall be designed so as to minimize maintenance problems associated with breakage and moisture damage. The electrical system shall be designed so that routine maintenance can be achieved without loss of disinfection efficiency.

6. UV lamp assemblies shall be so located as to provide convenient access for lamp maintenance and removal. Provisions shall be made so that lamp assemblies may be observed and the channel surface physically inspected. Flow channels should be entirely accessible for cleaning to remove film deposits of material interfering with UV disinfection.

7. At least one UV intensity meter within each assembly of lamps shall be provided to indicate operating conditions. The intensity reading should be indicated on the control panel for each lamp assembly. For treatment works with a design average daily flow of one mgd or higher, flow metering shall be provided and appropriate spectrophotometric equipment shall be provided to measure the UV absorbance of the wastewater. An elapsed time meter shall be provided to indicate the total operating time of the UV lamps.

E. Dose control. For treatment works with a design average daily flow of one mgd or more, UV system design should include a control system to turn appropriate lamps on or off in order to conserve energy. The reliability of proposed automated control systems connected to flow sensors shall be demonstrated through submission of acceptable supporting information. Manual control should be based on diurnal flow variations.

1. A spare UV lamp (and quartz tube, if appropriate) shall be provided as a minimum at all UV installations. The number of additional spare lamps (and quartz tubes if appropriate) provided shall equal the nearest whole number equivalent to 10% of the number of lamps required to disinfect the maximum flow rate. Spare ballasts shall also be provided at all UV installations in numbers sufficient to operate the spare lamps.

2. UV equipment design shall provide for routine chemical cleaning with a proper acid/detergent cleanser. A chemical mix tank, circulation pump and upstream/downstream connections should be provided. A weak acid such as citric acid may be utilized for chemical cleaning of quartz tubes, but a stronger acid is recommended for more effective and more economical maintenance. Acid levels with flows returned to the treatment process should be monitored and controlled through pH measurements. A high pressure wash of the quartz tubes or teflon-lined channels should be utilized as a follow-up to chemical cleaning. The system design shall provide for direct scrubbing of surfaces and lamp removal for testing of UV output. As UV transmissibility of quartz and teflon will diminish with time, the design should provide for periodic measurements of these values. As continuous methods of cleaning UV lamp and channel surfaces have not been established as reliable means of maintenance, these methods, including mechanical wipers and ultrasonics, shall not be accepted as sole maintenance methods, i.e., they may be used together with conventional maintenance methods as previously described in this section.

F. Hydraulics. The distances across light intensity gradients for flow past UV lamps should be short compared to the length of the chambers in the direction of flow, and measures should be taken to assure mixing across these gradients, with minimal longitudinal mixing, as measured by the dispersion coefficient. UV system design should provide an estimated E value of no more than 100 square centimeters per second.

1. For lamp assemblies with a dispersion coefficient equal to or more than 50 square centimeters per second, the minimum contact period shall be 10 seconds, assuming that the flow path length is equivalent to the linear distance that the design dosage is provided. The contact period of the UV system flow pattern shall be of sufficient duration to provide the design dose response in relation to the established E value.

2. All UV systems shall be furnished with a means for dewatering as necessary for cleaning. The depth of irradiated flow shall be controlled as necessary to meet the disinfection standard at all flow rates.

G. Safety. UV lamps should not be viewed in the ambient air without proper eye protection as required by VOSH and other applicable regulations. A minimum of one pair of UV protective eye glasses shall be provided. The system design should prevent exposure of bare skin to UV lamp emissions for durations exceeding several minutes. Electrical interlocks should be provided to shut off high voltage systems in accordance with VOSH requirements and as requested by other local and state standards when such energized connections are exposed and could come into contact with operators.

H. Monitoring. Facilities shall be included for collecting a sample following the contact period prior to discharge, to determine the effectiveness of the disinfection method.

1. As most UV disinfection equipment represents new technology and limited performance data is available for these systems, an initial period of increased sampling frequency and testing requirements for pathogenic bacterial indicators, such as fecal coliform, may be required. The required initial testing program should take place over a period of one year or more under reasonable operating conditions with a minimum sampling frequency of at least once per week.

2. Disinfection of secondary effluent by UV irradiation should consistently maintain a fecal coliform level below 200 organisms per 100 milliliters of sample or the level established by the permit or certificate issued.

3. Indicator organism test results should be correlated with other measurements at the time of sampling, including flow rate, effluent suspended solids, UV absorbance coefficient, and lamp operating conditions such as total operating time, the number in operation, and voltage and intensity.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-830 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-770, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-780 Ozonation

A. Disinfection can be achieved through microorganism exposure to a sufficient level of Ozone (O3) in solution for a proper contact period. Ozone is an unstable gas that is produced when oxygen molecules are dissociated into atomic oxygen which subsequently collides with other oxygen molecules.

B. Parameters. The following parameters are important factors in the design of ozonation disinfection:

1. The applied ozone dosage is the mass of ozone from the generator that is directed to a unit volume of the wastewater to be disinfected.

2. The transferred ozone dosage is the mass of applied ozone that is dissolved into the wastewater. This dosage depends on the physical characteristics of the contractor and the residual ozone concentration, which is affected by the quality of the wastewater.

3. The dew point is the measure of the relative moisture content of a gas, specifically the temperature at which a gas under a precise pressure is saturated with water.

4. Off-gas is the excess ozone transferred from the contact basin to the surrounding atmosphere.

5. Ozone destruction involves the changing of ozone to a less reactive molecule. This occurs naturally because of ozone's inherent instability. However, deactivation by thermal or catalytic destruction units is usually necessary to reduce excess ozone in the off-gas to acceptable levels for human health.

6. Dose/response curve is a mathematical relationship between coliform destruction and transferred ozone dosage. A threshold level of dosage may exist that indicates no response until the dosage exceeds that threshold.

C. Design. This process can be considered for disinfection of filtered secondary effluents. Documentation of process effectiveness must be provided for ozone disinfection of secondary effluents that are not filtered. The transferred ozone dosage shall exceed the threshold level as necessary for adequate disinfection. The presence of reducing compounds such as nitrates shall be addressed in the unit operation design.

1. The contact basin design shall ensure uniform mixing of ozone with the wastewater as well as flow retention equal to or exceeding the design contact period. Ozone addition shall be staged to provide a uniform ozone concentration throughout the entire volume of the contact basin. Multiple staged contactors that are positively isolated from each other are recommended. The design shall provide continuous disinfection while contact basins are dewatered for cleaning and shall include provisions for foam control, including adequate collection space and a removal mechanism. In addition, the design (flow path width to length ratio of 20 or more) shall minimize short-circuiting and optimize the contact period through the provision of baffles or other approved methods. A minimum contact period of 10 minutes shall be provided at average daily flow.

2. Ozone recycling and destruction shall be considered.

a. Moisture and foam removal should be considered in the design of catalyst type destruction units.

b. The use of activated carbon for destruction is not recommended.

c. A pressure/vacuum relief valve is required between the destruction unit and the contact basin to protect the contact basin from excessive pressure or vacuum.

3. Generation and feeding equipment shall be capable of providing disinfection, as specified by the issued certificate or permit, under variable operating conditions such as peak flows and ozone demand.

D. Ozone supply. Ozone production shall be sufficient to disinfect to achieve effluent disinfection requirements at the maximum daily wastewater flow. The applied ozone dose shall produce the design transferred ozone dosage at the calculated transfer efficiency. Pilot scale tests or development of a dose/response curve from the current literature shall be provided to establish the design transferred ozone dose.

1. The ozone generator should produce the design ozone concentration while operating at 75% or less maximum power to reduce stress on generator dielectrics and decrease maintenance problems. Likewise, high voltages and frequencies should be avoided.

2. The ozone generator design shall provide for cooling. Watercooled systems are recommended. The effectiveness of air cooled systems shall be verified.

3. The feed gas shall be oil-free, particle-free and dry. Pure oxygen normally has these characteristics. If air feed is used, the following shall be required:

a. The feed gas shall be filtered or electrostatically precipitated so that it does not contain particles greater than 0.4 microns in diameter.

b. The feed gas moisture content shall not be greater than 0.011 grams per cubic meter (dew point temperature of -60°C at standard pressure).

c. Desiccant type dryers shall have a design cycle time of 12 hours or more under maximum moisture conditions.

d. Feed gas dryers shall have a source of purge flow that is monitored and controlled.

4. Standby ozonation capability shall be provided which will ensure adequate disinfection with any unit out of operation for maintenance or repairs. An adequate inventory of parts subject to wear and breakage shall be maintained at all times.

E. Features. Measurement equipment and alarms shall be provided to ensure proper operation of all system units and continuous disinfection to permit limits under expected operating conditions. Monitoring should be provided for the parameters listed below:

1. Inlet temperature, pressure, flow rate, and moisture concentration of generator feed gas.

2. Outlet temperature, pressure, flow rate, and ozone concentration of generator discharge gas.

3. Frequency, voltage, wattage, and amperage of generator power supply.

4. Inlet flow, and inlet and outlet temperature of generator cooling water.

5. Ozone concentration in contact basin off-gas.

6. Inlet temperature and flow, and outlet ozone concentration of destructor gas.

Materials shall be suitable for use with ozone. Piping systems should be as simple as possible, and specifically selected and manufactured to be suitable for ozone service with a minimum number of joints. Piping should be well supported and protected against temperature extremes.

Requirements for housing shall be the same as for chlorination. Floor space shall be sufficient to provide access for equipment maintenance and to allow adequate equipment ventilation.

F. Safety. Safety requirements shall be the same as for chlorination. Employee exposure to ozone in the working environment is limited by VOSH requirements and such exposure should not exceed the permissible exposure level in VOSH regulation. Monitoring and purging shall be provided to prevent development of an explosive atmosphere in the contact basins and other susceptible areas in accordance with federal and state standards.

G. Monitoring. Monitoring requirements shall be the same as for chlorination.

1. Off-gas ozone monitoring is recommended for use in a control loop. Residual ozone monitoring is not recommended unless its reliability can be documented.

2. Monitoring of the final effluent for a suitable pathogenic bacterial indicator organism, such as fecal coliform, shall be required for a period of at least one year to ensure disinfection effectiveness.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-840 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-780, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-790 Other disinfection methods

A. Design standards for disinfection methods not specifically addressed in this chapter will be established upon evaluation of performance data.

B. Chlorine dioxide (ClO₂). Chlorine dioxide is characterized as a yellow-green to orange gas, its color changing toward red with increasing concentration. Upon cooling, it forms a red, highly unstable liquid which freezes at -59°C and boils at 11°C. Due to the sensitivity of ClO₂ gas to pressure and temperature, it shall be generated at the location where it will be used as a disinfectant. Chlorine dioxide is quite soluble in water, its solubility depending upon temperature and pressure. At temperatures less than 25°C and above 30 mm partial pressure, it is soluble to the extent of 10 grams per liter. Unlike chlorine, ClO₂ does not react with water; it is a true dissolved gas.

1. Chlorine dioxide gas is very toxic but, when dissolved, it is stable and safe to use in water solution. Since concentrated chlorine dioxide gas is unstable under pressure, chlorine dioxide shall be generated under controlled conditions.

2. The generation of chlorine dioxide involves the reaction between chlorine and sodium chlorite:

Cl₂ + 2 Na ClO₂——>2 NaCl + 2 ClO₂

Side reactions that also produce sodium chlorate (Na ClO₃) are also possible in dilute solutions, especially if the concentration of molecular chlorine, Cl₂, is low. Research has shown that high concentrations of sodium chlorite and molecular chlorine favor the formation of chlorine dioxide. Accordingly, chlorine dioxide generators should be designed and operated to provide these reaction conditions while minimizing the amount of chlorine gas that is mixed with the generated ClO₂.

3. As with chlorine, adequate disinfection with chlorine dioxide is achieved by maintaining a sufficient chlorine dioxide residual after a specific contact time in order to achieve the desired microbiological quality of the treated effluent. All the principles of good chlorination practice, proper pretreatment, rapid initial mixing, adequate residual, plug flow contacting, etc., are also applicable to disinfection with chlorine dioxide.

4. Thus, the required levels of residual ClO₂ shall be equivalent to the residual concentrations that would be required for chlorination of a specific effluent unless adequate information is submitted to the regulatory agencies verifying that acceptable disinfection can be achieved with a lower residual of ClO₂.

5. Design dosages of ClO₂ applied to treated effluent should be similar to the recommended levels for chlorination. The results of limited research to date indicate that for certain effluents, lower dosages of ClO₂, in comparison to Cl₂, may accomplish adequate disinfection. However, all proposals specifying design dosages of ClO₂ below the levels approved for chlorination, must provide supporting information based on field measurements or laboratory studies acceptable to the regulatory agencies.

6. The introduction of ClO₂ shall be in a manner to maximize mixing with the influent flow to the contact basin while minimizing vaporization. The same basic principles as for chlorine are to be adhered to in chlorine dioxide physical contacting with the wastewater. However, chlorine dioxide use should be optimized by appropriate selection of application points within the process scheme.

7. Contact periods approved for chlorination shall be directly applicable to chlorine dioxide contacting unless adequate supporting information is submitted verifying that the use of a particular design contact period can result in the acceptable level of disinfection.

8. Chlorine dioxide disinfection requires maintenance of a residual throughout the contact period. Conventional amperometric titration systems should be used to monitor chlorine dioxide residuals and, with some modifications, should be used to control the residual and generation of chlorine dioxide. Operator exposure to ClO₂ shall be minimized. Adequate ventilation shall be provided in areas where ClO₂ is generated and where concentrated mixtures of ClO₂ are sampled and tested. As ClO₂ to ambient air mixtures containing 10% or more ClO₂ are potentially explosive and highly corrosive, provisions shall be made to prevent this occurrence.

C. Electrolytic oxidants. Electrolytic processes produce a mixed group of oxidants consisting of ozone, hydrogen peroxide and chlorine constituents. This process is typically monitored and controlled by the chlorine residual level in the wastewater effluent. All electrolytic oxidant processes should be evaluated under the provisions for conventional disinfection of wastewater in accordance with this chapter. The department will evaluate the development of these methods of disinfection and the approval of this process will be handled on a case-by-case basis in accordance with the provisions of this chapter.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-850 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-790, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-800 Dechlorination

A. Dechlorination is a process which effectively reduces free and combined chlorine residuals. Sulfur compounds applied to chlorinated effluents have been established as effective dechlorination agents as follows:

1. Sulfur dioxide (SO₂) is a nonflammable, colorless gas with a suffocating, pungent odor and a density greater than that of air. It rapidly dissolves in water to form a weak solution of sulfurous acid (H₂SO₃) which dissociates to produce sulfite ions (SO₃)^-2, which are the active dechlorinating agents.

2. Sulfite salts used for dechlorination include sodium sulfite (NaHSO₃), sodium disulfite (NaHSO3), and sodium metabisulfite (Na₂S₂O₅). Sodium metabisulfite is the most commonly used. Sulfite salts are available in dry form and are more safely handled than sulfur dioxide. On dissolution in water they produce the same active sulfite (SO₃)^-2 ion.

B. Usage. Both sulfur dioxide gas and sulfite compounds may be considered for use for dechlorination purposes. However, the use of sulfur dioxide gas or sodium metabisulfite in accordance with this chapter will be considered as conventional technology for dechlorination of flows equal to one mgd or more.

1. Sulfur dioxide shall be fed as a gas similar to chlorine gas. Since sulfur dioxide is more prone to reliquification, consideration should be given to heating the sulfur dioxide header. Sulfonator capacity shall be adequate to dechlorinate the maximum chlorine residual anticipated on at least a one-to-one basis at maximum daily flow rates to meet the effluent requirements contained in the issued permit or certificate. Requirements for equipment type, standby capability, spare parts, water supply, measurement equipment, control equipment, and evaporators are the same as for chlorination although the materials of construction may differ.

2. Sulfite salts may be fed in dry form with dry chemical feeders or they can be made up as a solution and fed with a diaphragm pump. With either method, proper feed controls shall be provided. Equipment capacity shall be adequate to dechlorinate the maximum chlorine residual anticipated on the basis of 1-1/2 parts or more sulfite salt to one part chlorine.

C. Features. Gas and dry feed equipment requirements shall be similar to those used for chlorination.

1. The dose mixing shall occur following the design chlorine contact period. Normally, this will require the use of a separate basin designed to thoroughly mix the dechlorinating agent with the contact tank effluent within a period of approximately one minute.

2. As the dechlorination reaction is essentially instantaneous, no further contact time is needed other than that required for mixing.

3. Piping materials shall be suitable for use with the sulfur chemical utilized.

4. Housing for feed equipment required shall be the same as for chlorination. However, sulfur dioxide feed equipment and storage containers shall be physically separated by sufficient distance, or by partition barriers, from the chlorination equipment and storage containers in order to prevent cross contamination of feed lines and to satisfy fire codes. Sulfite salts should be stored in unopened shipping containers until ready for use.

D. Safety. Handling requirements shall be the same as for chlorination, except for sulfite salts, which are nonhazardous.

E. Monitoring. Monitoring provisions shall be the same as for chlorination, except that facilities shall also be provided for securing a sample after dechlorination.

F. Other methods. Other means of dechlorination will be evaluated based on submission of adequate performance data.

1. Granular activated carbon may be used for dechlorination of high quality effluents. The dechlorination reaction is dependent on the chemical state of the chlorine, chlorine concentration, flow rate, physical characteristics of the carbon, and wastewater characteristics. Design considerations are similar to those utilized for other wastewater processing unit operations.

2. For small facilities with a design flow less than one mgd, dechlorination may be accomplished through the use of a holding pond such as effluent polishing pond or a constructed wetlands.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-860 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-800, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-810 Polishing ponds

A. On-line effluent polishing ponds (OLEPP) can be provided to receive discharges at locations where use of the receiving water requires a degree of performance reliability exceeding that provided by the design, operation and maintenance of the sewage collection system and treatment works. The design and construction of OLEPP's may be similar to that of stabilization ponds.

B. Useage. All sewage treatment works designed to produce a secondary effluent quality of 24 mg/l or more of BOD or suspended solids that discharge to shellfish waters such that shellfish harvesting restrictions may be imposed, shall be provided with an OLEPP, or sufficient off-line emergency storage, unless an exemption is granted by the director subsequent to a public hearing held to discuss the impacts of the discharge. An OLEPP should be required for all sewage treatment works (i) for which the design either does not achieve Class I reliability requirements, or is considered nonconventional in accordance with this chapter; (ii) that discharge to critical waters; or (iii) that are located where water quality conditions dictate the need for maximum protection of public health and welfare.

1. These effluent polishing ponds may be required for any Class I reliability discharge from treatment works that are not daily attended by operational personnel for a minimum period of 16 hours.

2. Those sewage treatment works for which sufficient information is provided to the department verifying that adequate performance reliability will exist in the form of continuously available operational staff and supplemental systems and resources, so that water quality and resources will not be damaged in a manner that produces socio-economic losses, may be granted an exception to the requirements for an OLEPP or emergency storage.

3. An OLEPP can be utilized in instances where an additional removal of BOD₅and suspended solids up to a maximum of 3.0% is desired from the effluent of a properly operated and properly loaded secondary treatment facility.

4. An OLEPP can be utilized to control residual chlorine through natural processes such as oxidation and UV light irradiation. The chlorine dosage applied to the pond influent shall be monitored and controlled.

5. A closure plan shall be provided in accordance with this chapter and standards contained in this chapter, prior to issuance of an operating permit.

6. Effluent from an effluent polishing pond shall be disinfected in accordance with this chapter, unless adequate disinfection can be provided for the pond influent, so that effluent disinfection is not deemed necessary.

7. Adequate disinfection of a three-day capacity effluent-polishing pond influent may require special consideration such as:

a. A minimum flow path length-to-width ratio within contact tanks of 40:1.

b. Expansion of detention volume to 60 minutes residence time.

c. Use of mixing devices for chlorine dosing to replace or supplement standard diffusers.

C. Design. The actual liquid depth of facultative polishing ponds shall not be less than five feet or more than 10 feet. The detention time shall not be less than one day nor more than three days, based on average daily flow.

1. In most cases, it should be necessary to provide postaeration facilities following facultative polishing ponds to meet effluent dissolved oxygen requirements, due to the depletion of oxygen in facultative ponds. If postaeration facilities are not provided, calculations shall be submitted to show that the required effluent dissolved oxygen concentrations can be maintained on a continuous basis. Postaeration shall occur during or following disinfection.

2. The influent line shall discharge below the liquid level of the pond near the edge of the pond embankment. The influent line shall enter the pond at a point opposite the effluent structure to prevent short-circuiting and to provide maximum detention time.

3. The effluent structure can be a single draw-off type with a draw-off point 12 to 18 inches below the normal liquid level or a multiple draw-off structure.

D. Aeration. The selection of aeration equipment shall be consistent with the depth of the lagoon.

1. The aeration equipment shall be sized to provide uniform dissolved oxygen concentration throughout the pond. Surface aerators should provide a minimum horsepower capacity of 0.01 hp per 1,000 gallons or provide equipment for which existing performance data has shown it to be sufficient to maintain solids in suspension and capable of dispersing the required level of oxygen uniformly. Diffused aeration systems must be adequately located and sized to provide uniform oxygen dispersion and maintain solids in suspension.

2. The number of surface aerators required shall be determined by the circle of influence of the aerator. The circle of influence shall encompass the entire pond and is defined as the area in which the return velocity is greater than 0.15 feet per second as certified by performance data. Without supporting data, the following may be used as a guide.

| | Nameplate Horsepower | Radius in feet | | --- | --- | --- | | | 5 | 35 | | | 10-25 | 50 | | | 40-60 | 50-100 | | | 75 | 60-100 | | | 100 | 100 |

E. Features. For aerated OLEPP's the influent sewer shall discharge near one of the mechanical surface aerators. The outlet should be arranged to withdraw effluent from a point at or near the surface. In-pond baffling may be considered to improve hydraulics.

1. A sedimentation zone that has at least 1-1/2 hours of design detention or settling period and a surface loading not to exceed 700 gallons per square foot per day shall be provided. Provisions for sludge removal from the OLEPP, as necessary, shall be addressed in the final design.

2. Either concrete bottom, walls, or embankment walls, or soils-cement stabilization of bottom, walls and embankments should be evaluated in the final design. Earthen embankment walls one foot above and one foot below the normal water level shall be riprapped or stabilized with other suitable material to prevent erosion from wave action.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-870 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-810, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-820 Postaeration

A. Postaeration design may involve mechanical aeration, diffused air injection, or cascade type aeration. Other methods may be utilized and will be evaluated on a case-by-case basis by the department.

B. Mechanical aeration. Multiple aeration basins for continuous operability should be provided at all treatment works with a design flow of 40,000 gallons per day or more, unless other means of maintaining an adequate level of dissolved oxygen (D.O.) in the effluent are available.

1. The aeration equipment transfer efficiency shall be determined utilizing the manufacturer's certified rating for the particular equipment being considered. The transfer efficiency shall be adjusted to reflect anticipated field conditions of temperature, atmospheric pressure, initial D.O., and composition of the wastewater being oxygenated. When the detention time within the aeration basin exceeds 30 minutes, consideration shall be given to oxygen requirements resulting from biological activity in the postaeration basin. For aeration basins equipped with a single mechanical aeration unit, a minimum of one mechanical aeration unit shall be maintained in storage at the treatment works site for immediate installation.

2. Aeration basins shall be designed to minimize short circuiting of flow and the occurrence of dead spaces. Vortexing shall be prevented.

C. Diffused aeration. Multiple aeration basins shall be provided for continuous operability of treatment works having a design flow capacity of 40,000 gallons per day or greater, except where diffusers may be removed from the basin for maintenance.

1. Diffused aeration basins shall be designed to eliminate short-circuiting and the occurrence of dead spaces. For maximum efficiencies, sufficient detention time shall be provided to allow the air bubbles to rise to the surface of the wastewater prior to discharge from the basin.

2. When the detention time in the aeration basin exceeds 30 minutes, consideration shall be given to the oxygen requirements resulting from biological activity in the aeration unit.

3. Diffused air aeration systems shall be designed utilizing Fick's Law (the rate of molecular diffusion of a dissolved gas in a liquid) in the determination of oxygen requirements. Supporting experimental data shall be included with the submission of any proposal for the use of diffusers which are considered nonconventional. Such proposals will be evaluated on a case-by-case basis by the department.

4. Blower design shall be such that with any single unit out of operation, the oxygen requirements will be provided for maintaining effluent D.O. A minimum of one standby blower shall be stored at treatment works where single aeration basins are utilized.

D. Cascade type. Effluent aeration may be achieved through a turbulent liquid-air interface established by passing the effluent downstream over either a series of constructed steps, or a rough surface that produces a similar opportunity for transfer of dissolved oxygen to the effluent.

1. The following equation shall be used in the design of cascade type aerators:

| | rⁿ = (C_s-C_a)/(C_s-C_b) | | | --- | --- | --- | | | where: r = | Deficit ratio | | | C_s = | Dissolved oxygen saturation (mg/l) | | | C_a = | Dissolved oxygen concentration above the weir, assumed to be 0.0 mg/l. | | | C_b = | Dissolved oxygen concentration in the effluent from the last or preceding step | | | n = | The number of equal size steps | | | r = 1 + (0.11) (ab) (1 + 0.046 T) (h) | | | | where: T = | Water temperature (°C) | | | h = | Height of one step (ft) | | | a = | 1.0 for effluents (BOD of 15 mg/l or less) | | | = | 0.8 for effluents (BOD of 15 mg/l to 30 mg/l) | | | b = | 1.0 for free fall and 1.3 for step weirs |

2. The equation for determining the number of steps is dependent upon equidistant steps; and, if unequal steps are used, transfer efficiencies must be determined for each separate step.

3. The effluent discharge to a cascade type aerator shall be over a sharp weir to provide for a thin sheet of wastewater. Consideration shall be given to prevention of freezing.

4. The final step of the cascade type aerator shall be above normal stream flow elevation and the cascade aerator shall be protected from erosion damage due to storm water drainage or flood/wave action.

5. When pumping is necessary prior to discharge over the cascade aerator, multiple, variable speed pumps must be provided except when preceded by flow equalization.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-880 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-820, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 8 Advanced Treatment

9VAC25-790-830 Flow equalization

Article 8 Advanced Treatment

A. Flow equalization is a unit process whereby the variability of wastewater flows, in terms of volume and strength, is lessened. Where flow equalization is utilized within a sewerage system or treatment works to reduce the peak flow conveyed to, or processed by, the treatment works, the performance of the treatment process should be improved in relation to the estimated conventional effluent values. The ability of a treatment works that is provided with flow equalization to meet permit or certificate effluent limitations shall be evaluated on a case-by-case basis.

B. Usage. Flow equalization shall be provided in the flow scheme ahead of advanced chemical-physical processes, unless engineering analysis shows that absence of flow equalization is more cost effective while maintaining the same degree of reliability and operational control.

1. Flow equalization should be provided upstream of biological treatment works designed to process a mean daily flow of 0.1 mgd or less, and receiving hourly peak flows in excess of twice the design flow, if such peak flows will occur daily in excess of 50 times annually.

2. Flow equalization shall be provided upstream of biological treatment works designed to process a mean daily flow of 0.1 mgd or less that are permitted with effluent limitations less than 20 mg/l of BOD₅ or TSS, or a TKN of less than 5 mg/l, or a total phosphorus of less than 2 mg/l, unless approved downstream unit operations are also provided.

C. Design. The design of an equalization basin shall incorporate the evaluation and selections of a number of features as follows:

a. On-line versus off-line basins.

b. Basin volume providing for a total storage detention of one-third or more of the daily design flow.

c. Degree of compartmentalization relative to dry weather and wet weather peak flows.

d. Type of construction: earthen, concrete or steel.

e. Aeration and mixing equipment.

f. Pumping and control in order to uniformly introduce flow into the treatment process at approximately the daily design flow rate during peak flow events.

g. Location in treatment system to provide uniform loadings on downstream unit operations.

The design decisions shall be based on the nature and extent of the treatment processes used, the benefits desired and local site conditions and constraints.

1. The minimum mixing requirements for equalization basins receiving raw or untreated domestic wastewaters or sewage containing an average suspended solids concentration exceeding 45 mg/l, shall equal or exceed 0.02 hp/1,000 gallons at a depth providing at least one-third of the maximum storage volume. Oxygen shall be supplied at a rate of 15 pounds per hour per gallon. Multiple mixing and aeration units shall be provided for continuous operability.

2. Flow equalization basins receiving treated wastewater or sewage with an average suspended solids concentration of 45 mg/l or less shall be provided with a means of sludge removal or mixing equipment that shall have a minimum power input of 0.01 hp/1,000 gallons of maximum storage volume. Aerobic conditions shall be maintained. Multiple mixing and aeration units shall be provided for continuous operability.

3. Sufficient storage shall be provided to allow subsequent downstream unit operations that follow equalization to operate at or less than their ted design capacity.

a. Storage capacity shall be determined from flow data when available. Basin volume for equalization shall at a minimum be determined from an inflow mass hydrograph of the hourly fluctuations for a typical daily wastewater flow, where typical daily wastewater flow is defined as the desired flow rate out of the equalization basin. Additional equalization basin volume shall be provided to accommodate:

(1) Continuous operation of aeration and mixing equipment.

(2) Anticipated concentrated treatment works recycle flows.

(3) Unforeseen changes in diurnal flow.

b. An evaluation of infiltration/inflow shall be conducted where influent flow data are not available. The minimum detention time shall be eight hours of the estimated daily maximum flow as determined by the study.

4. Flow equalization basins with a storage capacity exceeding 20,000 gallons should be constructed as compartmentalized or as multiple basins. Single basin installation with a bypass to downstream treatment units may be used for treatment works with capacities less than 200,000 gpd that are not located in critical water areas. The storage basins shall be provided with the means to be dewatered.

5. Basins designed for a combination of storage of wet weather flows and equalization shall be compartmentalized to allow for utilization of a portion of the basins for dry weather flow equalization. Floating surface aerators shall have provisions to protect the units from damage when the tank is dewatered.

6. Multiple pumping units shall be provided that are capable of delivering flow to an overflow device so that the desired flow rate can be maintained from the equalization basin with the largest pumping unit out of service, unless a suitable gravity flow system is provided. Gravity discharge from equalization shall be regulated by an automatically controlled flow-regulating device. If a flow-measuring device is provided downstream of the basin to monitor and control the equalization discharge, then a raw sewage influent flow meter will not be required in accordance with this chapter.

7. Equalization shall be preceded with screening and should be preceded by grit removal. Facilities shall be provided to flush solids and grease accumulations from the basin walls. A high-water-level takeoff shall be provided for withdrawing floating material and foam.

8. An overflow shall be provided for equalization basins so that such basins are not flooded, and these overflows are transmitted to downstream treatment units prior to the disinfection unit operation.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-890 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-830, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-840 Chemical treatment

A. Usage. Chemicals shall be compatible with the treatment works unit operation and have no detrimental effect upon receiving waters. Pilot plant studies or data from unit operations treating design flows of sewage or domestic wastewaters of similar characteristics (organic levels, metal concentrations, etc., within 25% of proposed design) shall be required to determine appropriate chemicals and feed ranges.

1. Space shall be provided where at least 30 days of chemical supply can be stored in dry storage conditions at a location that is convenient for efficient handling, unless local suppliers and conditions indicate that such storage can be reduced without limiting the supply.

2. Liquid chemical storage tanks must:

a. Have a liquid level indicator.

b. Have an overflow and a receiving basin or drain capable of receiving accidental spills or overflows.

3. Powdered activated carbon shall be stored in an isolated fireproof area, and explosion proof electrical outlets, lights and motors shall be used in all storage and handling areas in accordance with local, state and federal requirements.

4. Chemicals shall be stored in covered or unopened shipping containers, unless the chemical is transferred into an approved covered storage unit.

5. Solution storage or day tanks feeding directly should have sufficient capacity for 24-hour operation at design flow.

6. Acid storage tanks shall be vented to the outside atmosphere, but not through vents in common with day tanks.

B. Features. Provisions shall be made for measuring quantities of chemicals used to prepare feed solutions. Storage tanks, pipelines, and equipment for liquid chemicals shall be specific to the chemicals and not for alternates.

1. Chemicals that are incompatible (i.e., strong oxidants and reductants) shall not be fed, stored or handled in such a manner that intermixing of such compounds could occur during routine treatment operations.

2. Provisions shall be made for the proper transfer of dry chemicals from shipping containers to storage bins or hoppers in such a way as to minimize the quantity of dust that may enter the room in which the equipment is installed. Control shall be provided by use of:

a. Vacuum pneumatic equipment or closed conveyor systems;

b. Facilities for emptying shipping containers in special enclosures; or

c. Exhaust fans and dust filters that put the hoppers or bins under negative pressure in accordance with federal and state requirements.

3. Concentrated acid solutions or dry powder shall be kept in closed, acid-resistant shipping containers or storage units. Concentrated liquid acids shall not be handled in open vessels, but should be pumped in undiluted form from original containers to the point of treatment or to a covered day or storage tank.

4. For the handling of toxic chemicals, suitable carts, lifting devices, and other appropriate means shall be provided in accordance with the material safety data sheets and applicable state and federal requirements.

a. Provisions shall be made for disposing of empty containers by an approved procedure that will minimize exposure to the chemical.

b. The transfer of toxic materials shall be controlled by positive actuating devices.

5. Structures, rooms, and areas accommodating chemical feed equipment shall provide convenient access for servicing, repair, and observation of operation.

a. Floor surfaces shall be smooth but slip resistant, impervious, and well drained with a slope of 1/8-inch per foot minimum.

b. Open basins, tanks and conduits shall be protected from chemical spills or accidental drainage.

6. A minimum of two chemical feeders shall be provided for continuous operability. A standby unit or combination of units of sufficient capacity shall be available to replace the largest unit during shutdowns. The entire feeder system shall be protected against freezing and shall be readily accessible for cleaning.

7. Chemical feeders shall be of such design and capacity to meet the following requirements:

a. Feeders shall be able to supply, at all times, the necessary amounts of chemicals at an accurate rate throughout the range of feed.

b. Proportioning of chemical feed to the rate of flow shall be provided where the flow rate is not constant.

c. Diaphragm or piston type positive displacement type solution feed pumps should not be used to feed chemical slurries.

d. The treatment works service potable water supply shall be protected from contamination by chemical solutions or sewage by providing either an air gap between the portable water supply line and solution tank, or a suitable reduced pressure zone, backflow prevention device.

e. Chemical-contact materials and surfaces must be resistant to the aggressiveness of the chemical solutions.

8. Dry chemical feeder systems shall:

a. Measure the chemical volumetrically or gravimetrically.

b. Provide effective mixing and solution of the chemical in the solution pot.

c. Preferably provide gravity feed from solution pots.

d. Completely enclose chemicals and prevent emission of dust to the operation room.

9. Chemical feeders should be reasonably adjacent to points of application to minimize length of feed lines. Chemical feeders shall be readily accessible for servicing, repair and observation. Chemical feeding equipment should be provided with containment barriers or protective curbing so that chemicals from equipment failure, spillage or accidental drainage will be contained. Chemical feed control systems shall provide for both automatic and manual operation including:

a. Feeders that are automatically controlled should provide for reverting to manual control as necessary.

b. The feeders shall be capable or being manually started.

c. Automatic chemical dose or residual analyzers should be considered and, where provided, should include alarms for critical values and recording charts.

10. Solution tank dosing shall provide for uniform strength of solution, consistent with the nature of the chemical solution. Continuous agitation shall be provided to maintain slurries in suspension. Two solution tanks shall be required for a chemical to assure continuity of chemical application during servicing. Tank capacity should provide storage for 24 hours of operation and:

a. Each tank shall be provided with a drain.

b. Means shall be provided to indicate the solution level in the tank.

c. Make-up potable water shall enter the tank through an air gap.

d. Chemical solutions shall be kept covered, with access openings curbed and fitted with tight covers.

11. Subsurface locations for solution tanks shall:

a. Be free from sources of possible contamination.

b. Assure positive drainage for groundwater, accumulated water, chemical spills, and overflows.

c. Be protected from aggressiveness.

12. Solution tank overflow pipes shall:

a. Be turned downward.

b. Have free discharge.

c. Be located where noticeable.

d. Be directed so as not to contaminate the wastewater or receiving stream or be a hazard to operating personnel, in accordance with VOSH requirements.

13. Service water used in the feeder system shall be:

a. From sources acceptable to the department.

b. Protected from contamination by appropriate means.

c. Ample in supply and adequate in pressure.

d. Provided with means for measurement when preparing specific solution concentrations. Where a booster pump is required, duplicate equipment shall be provided.

14. Scales shall be provided as follows:

a. For volumetric dry chemical feeders.

b. Accurate to measure increments of 0.5% of load.

c. For weighing of carboys that are not calibrated volumetrically.

d. For large treatment works, indicating and recording type scales are desirable.

15. Chemical application equipment should:

a. Assure maximum efficiency of treatment.

b. Provide maximum protection of the receiving waters.

c. Provide maximum safety to operators.

d. Assure satisfactory mixing of the chemicals with the wastewater.

e. Provide maximum flexibility of operation through various points of application, when appropriate.

f. Prevent backflow or back-siphonage between multiple points of feed through common manifolds.

g. Provide for the application of pH affecting chemicals to the wastewater prior to the addition of coagulants.

C. Safety. Gases from feeders, storage, and equipment exhaust shall be conveyed to the outside atmosphere, above grade and remote from air intakes in accordance with applicable state and federal requirements.

1. Special provisions should be made as necessary for ventilation of feed and storage rooms in accordance with VOSH and applicable fire code requirements.

2. For each operator who will handle dry chemicals, protective equipment should be provided, including personal protective equipment for eyes, face, head, and extremities, and protective shields and barriers, in accordance with VOSH requirements.

3. Facilities should be provided for eye washing and showering, in accordance with VOSH requirements. Protective equipment and neutralizers shall be stored in the operating area.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-900 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-840, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-850 Chemical clarification

A. General design. Design unit operation detention time shall be estimated as the ratio of the design basin volume to the design flow rate (into that basin) unless adequate test data is made available verifying that a different value of detention time can be utilized. Multiple unit operations for mixing, flocculation and clarification, including duplicate basins and equipment used for chemical feeding, controlled mixing and for final clarification, shall be provided as follows:

1. Advanced treatment works having a rated capacity greater than 40,000 gallons per day.

2. Treatment works consisting of physical-chemical unit operations.

3. Unit operations for controlled mixing shall be in series or parallel.

4. Provisions for unit operations to be taken out of service without disrupting operation shall be included.

5. Multiple stage unit operations shall be provided when a conventional operation cannot be achieved otherwise.

B. Mixing. All treatment works shall provide appropriate mixing unit operations upstream from required chemical clarification and filtration unit operations.

Rapid or high intensity mixing may be accomplished either within basins or in-line within closed channels. Basins should be equipped with mechanical mixing devices; other arrangements, such as baffling, are acceptable only under special conditions. Where mechanical mixing devices are utilized, duplicate mechanical mixing units or spare mixing equipment shall be provided.

The rapid or high intensity detention period (T) should not be less than 10 seconds.

1. The design of the rapid mixing unit operations should be based upon the mean temporal velocity gradient (G) (expressed in inverse units of seconds). Typical values for G and T are:

| | T (Seconds) | G (Seconds^-1) | | --- | --- | --- | | | 10 | 1,100 | | | 20 | 1,000 | | | 30 | 900 | | | 40 | 790 | | | 41 | 700 |

For optimization, the design should establish the proper values of (G) and (T) from appropriate test or performance data.

2. Multiple points of application shall be provided to enable the provision of maximum mixing intensity.

3. The physical configurations of the mixing basin shall be designed to eliminate vortexing.

4. The speed variation of rapid mix equipment should be approximately 50% of the average speed requirement range.

C. Flocculation. Flocculation basins shall be designed to optimize the effects of coagulation through increased opportunity for solids contact, and thus inlet and outlet design shall prevent short-circuiting and destruction of the developed suspended particles or floc.

Flocculation and sedimentation basins shall be as close together as physically possible. The velocity gradient of the flocculated water through pipes or conduits to settling basins shall not be greater than the velocity gradient utilized in flocculating the water. Where velocity gradient is not used as a design parameter, the linear velocity in pipes and conduits from the flocculators to the settling basin shall not exceed 1/2 foot per second. Allowances shall be made to minimize turbulence at bends and changes in direction.

1. A drain and overflow shall be provided for each basin.

2. Multiple unit operations shall be provided for continuous operability for design flows greater than 40,000 gallons per day.

3. Baffling may be used to provide for flocculation in small scale unit operations (less than 2,000 gallons in volume).

4. Flocculation basins shall be provided separately from other unit operations except where a reactor clarifier or clarifiers are provided.

D. Low intensity mixing. The minimum detention time for the low intensity mixed volume shall be 20 minutes, unless acceptable operational or test data establishes that adequate flocculation can be accomplished within a reduced detention time.

1. The design of the low intensity or contact type flocculation units shall be based upon the value of the product of the mean temporal velocity gradient times the detention time (GT), which is ordinarily in the range of 20,000 to 200,000.

2. The design should also establish the optimum value of GT for flocculation from appropriate test data. Variable speed drive units shall be designed to allow speed variation throughout the design range.

3. Successive mixed or contact compartments should be provided. Special attention shall be given to providing properly sized ports effectively located between compartments to minimize short-circuiting.

Tapered flocculation should be provided. Wing walls or stators shall be provided to prevent vortexing in basins utilizing vertical shaft flocculators.

E. Conventional clarifiers. Circular clarifiers of the center feed, peripheral feed and spiral flow type will be considered on an individual basis for gravity settling of coagulated and flocculated sewage effluent (chemical clarification).

1. Multiple basins shall be provided as required for continuous operability of treatment works with design flow capacity of more than 40,000 gallons per day or for treatment works utilizing chemical-physical unit operations.

2. The design surface loading (overflow rate) shall be established on a case-by-case basis as a function of the types of coagulants or use of enhanced settling devices or configurations, such as modular tube-type sections utilized within shallow depth clarifiers. Surface loading rates shall not exceed 600 gpd/square foot for alum sludges, 800 gpd/square foot for iron sludges and 1,000 gpd/square foot for lime sludges, in processes utilizing flocculation, unless adequate pilot plant data is presented verifying that higher loading rates are acceptable.

3. Conventional chemical clarification shall provide a minimum of four hours effective settling time unless adequate operational data is submitted to verify that adequate treatment can be achieved at a reduced value of detention time. Effective settling time will be calculated using the settling zone volume of the basins extending from the inlet entrance to the basins to the submerged effluent orifices or weirs.

4. Rectangular sedimentation basins shall be designed with a length to width ratio of at least four to one.

5. Inlets shall be designed to distribute the wastewater equally and at uniform velocities. Open ports, submerged ports, stilling walls or similar entrance arrangements are required. Where stilling walls are not provided, a baffle shall be constructed across the basin in a manner to redirect flow from the inlet and shall project several feet below the water surface to dissipate inlet velocities and provide uniform flows across the basin settling zone.

6. Outlet devices shall be designed to maintain velocities suitable for settling in the basin and to minimize short-circuiting. The use of submerged orifices or submerged weirs shall be provided where flocculation precedes filtration. The maximum velocity gradient in pipes and conduits from the settling basins to the filters shall not exceed that used in the flocculation. Where velocity gradient is not used as a parameter in the design of outlet devices, the linear velocity in pipes and conduits from settling basins shall not exceed one foot per second.

7. The velocity through settling basins shall not exceed one foot per minute. The basins shall be designed to minimize short circuiting.

8. An overflow weir (or pipe) shall be installed to be compatible with the maximum water level desired above the filter media where filters follow sedimentation. The overflow shall discharge with a free fall at a location where the discharge may be observed.

9. Settling basins used for chemical clarification shall be provided with a means for dewatering. Basin bottoms shall slope toward the drain not less than one foot of fall in 12 feet of length.

10. Automatic continuous sludge removal equipment shall be provided for chemical clarification. Provision shall be made for the operator to observe or sample sludge being withdrawn from the clarifier.

11. Consideration shall be given to the provision of control of climatic factors, such as wind and temperature through use of enclosures or superstructures.

F. Reactor clarifiers. Reactor type flocculation and chemical clarification basins may be considered where wastewater characteristics are evaluated by the department and deemed to be uniform.

Reactor clarifiers shall be designed for the maximum uniform flow rate and shall be adjustable to changes in flow which are less than the design rate.

1. Multiple reactor clarifiers are required to maintain continuous operability.

2. For reactor clarifiers a minimum of 30 minutes shall be provided for flocculation and mixing. The clarification detention time shall be established on the basis of the raw wastewater or sewage characteristics and other local conditions that affect the operation of the unit. Based on design flow rates, the minimum detention time shall be two hours for reactor clarifiers.

3. Reactor clarifiers shall be equipped with orifices if they precede filtration. Orifices shall produce uniform rising or overflow rates over the entire area of the tank and shall provide an exit velocity not to exceed one foot per second. Upflow rates shall not exceed one gallon per minute per square foot of area of the horizontal zone of sludge separation (blanket), for the design mode of operation of the clarifier.

4. The following operating equipment shall be provided:

a. A complete set of necessary tools and accessories.

b. Adequate piping with suitable sampling taps so located as to permit the collection of samples of wastewater from critical portions of the units.

c. Conventional equipment to maintain feeding, mixing, and flocculation operation.

5. Weirs should be designed so that surface water does not travel over 10 feet horizontally to the overflow point or tops of weirs (launders). Weir loading shall not exceed 20 gallons per minute per foot of weir length. Where weirs are used they shall be:

a. Adjustable.

b. At least equivalent in length to the perimeter of the tank.

6. Sludge removal design shall provide that:

a. Sludge pipes shall be not less than three inches in diameter and so arranged as to facilitate cleaning;

b. Entrance to sludge withdrawal piping will prevent clogging;

c. Valves are located outside the tank for accessibility;

d. The operator may observe or sample sludge being withdrawn from the unit;

e. Automatic continuous sludge control shall be provided; gravity control should be utilized.

7. Superstructures. Consideration shall be given to providing a superstructure to enclose the reactor clarifier and associated sampling valves and piping.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-910 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-850, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-860 Filtration

A. Conventional design standards have been established for effluent filtration following unit operations for equalization, coagulation and chemical clarification. For conventional design, an equivalent level of pretreatment shall be provided. Filtration for other wastewater reuse alternatives and the design for nutrient removal will be evaluated by the department based on an evaluation of performance data. The owner shall accompany a proposal for nonconventional filtration design with appropriate pilot plant data or full scale unit operations data demonstrating acceptable treatment of similar wastewater. The average BOD₅ and suspended solids concentrations applied to the filter should not exceed twice the required values of filtrate BOD₅ and suspended solids concentrations in accordance with the issued discharge permit or certificate limitations.

B. General design. Conventional effluent filtration shall be accomplished at a uniform rate of one to five gallons per minute per square foot of surface area through filter media consisting of a specified depth of the following materials, either as a single media, or as an approved combination of multiple layers: (i) sand; (ii) anthracite; (iii) mineral aggregate; and (iv) other filter media considered on a case-by-case basis.

1. Equipment for the application of chemicals to the filter influent shall be provided if necessary, to enhance suspended solids removal and minimize biological growth within the media.

a. Multiple unit operations for filtration shall be provided to allow for continuous operation and operational variability for a system with an average design of 0.04 mgd or greater.

b. The operating head loss shall not exceed 90% of the filter media depth.

c. Each filter shall have a means of individually controlling the filtration rate.

2. The effluent filter walls shall not protrude into the filter media and the incoming flow shall be uniformly applied to flooded media, in such a manner as to prevent media displacement. The height of the filter walls must provide for adequate freeboard above the media surface to prevent overflows.

3. The filter shall be covered by a superstructure if determined necessary under local climatic conditions. There shall be head room or adequate access to permit visual inspection of the operation as necessary for maintenance.

C. Backwashing. The source of backwash water upflow to cleanse the filter media shall be disinfected and may be derived from filtered wastewater effluent, for all treatment works with an average design flow equal to or greater than 0.1 mgd.

A design uniform backwash upflow minimum rate of 20 gallons per square foot per minute, consistent with wastewater temperatures and the specific gravity of the filter media, shall be provided by the underdrain or backwash distribution piping. The backwash rate may be reduced in accordance with the demonstrated capability of other methods, such as air scour, provided for cleaning of filter media.

1. The design backwash flow shall be provided at the required rate by wash water pumps or by gravity backwash supply storage. Two or more backwash pumps shall be provided so that the required backwash flow rate is maintained with any single pump out of service. Duplicate backwash waste pumps, each with a capacity exceeding the design backwash rate by 20%, shall be provided as necessary to return backwash to the upstream unit operations.

2. Sufficient backwash flow shall be provided so that the time of backwash is not less than 15 minutes for treatment works with design flows of 0.1 mgd or more, at the design rate of wash. A reduced capacity can be provided if it can be demonstrated that a backwash period of less than 15 minutes can result in a similar clean media bed headloss and a similar filter operating period or run time.

3. The backwash control, or valves, as provided on the main backwash water line, shall be sized so that the design rate of filter backwash is obtained with the control or valve settings for the individual filters approximately in a full open position. A means for air release shall be provided between the backwash pump and the wash water valve.

4. Air scouring, if provided, should maintain three to five cubic feet per minute per square foot of filter area for two to three minutes preceding backwash at the design rate.

5. The bottom elevation of the channel or top of the weir shall be located above the maximum level of expanded media during back washing. In addition:

a. A backwash withdrawal arrangement for optimizing removal of suspended solids shall be provided.

b. A two-inch filter wall freeboard is to be provided at the maximum depth of backwash flow above the filter media.

c. A level top or edge is required to provide a uniform loading in gpm per foot of channel or weir length.

d. An arrangement of collection channels or weirs to provide uniform withdrawal of the backwash water from across the filter surface shall be provided.

D. Deep bed filters. The deep bed filter structure shall provide a minimum depth of 8-1/2 feet as measured from the normal operating wastewater surface to the bottom of the underdrain system. The structure should provide for a minimum applied wastewater depth of three feet as measured from the normal operating wastewater surface to the surface of the filter media.

1. Porous plate and strainer bottoms are not recommended. The design of manifold type filtrate collection or underdrain systems shall:

a. Minimize loss of head in the manifold and baffles.

b. Assure even distribution of wash water and a uniform rate of filtration over the entire area of the filter.

c. Provide the ratio of the area of the underdrain orifices to the entire surface area of the filter media at about 0.003.

d. Provide the total cross-sectional area of the laterals at about twice the area of the final openings.

e. Provide a manifold which has a minimum cross sectional area that is 1-1/2 times the total area of the laterals.

2. Surface wash means shall be provided unless other means of media agitation are available during backwash. Disinfected, filtered water or wastewater effluent shall be used as surface wash waters. Revolving type surface washers or an equivalent system shall be provided. All rotary surface wash devices shall be designed with:

a. Provisions for minimum wash water pressures of 40 psi.

b. Provisions for adequate surface wash water to provide 0.5 to 1.0 gallon per minute per square foot of filter area.

3. Deep bed filters shall be supplied with:

a. A loss of head gauge.

b. A rate of flow gauge.

c. A rate of flow controller of either the direct acting, indirect acting, constant rate, or declining rate types.

d. If necessary, continuous effluent turbidity monitoring.

e. A rate of flow indicator on the main backwash water line, located so that it can be easily read by the operator during the backwashing process.

E. Rapid rate filters. The conventional design rapid rate of filtration shall not exceed five gallons per minute per square foot of filter surface area. The selected filtration rate shall be based upon the degree of treatment required and filter effluent quality requirements.

1. A filtration media sieve analysis shall be provided by the design consultant. The media shall be clean silica sand having (i) a depth of not less than 27 inches and generally not more than 30 inches after cleaning and scraping and (ii) an effective size of 0.35 millimeters to 0.5 millimeters, depending upon the quality of the applied wastewater, and (iii) a uniformity coefficient not greater than 1.6.

2. A sieve analysis for supporting media shall be provided for the design. A three-inch layer of torpedo sand shall be used as the supporting media for the filter sand. Such torpedo sand shall have (i) an effective size of 0.8 millimeters to 2.0 millimeters and (ii) a uniformity coefficient not greater than 1.7.

3. A sieve analysis of anthracite media shall be provided for the design, if used. Clean crushed anthracite or a combination of sand and anthracite may be considered on the basis of experimental or operational data specific to the project design. Such media shall have (i) an effective size from 0.45 millimeters to 0.8 millimeters and (ii) a uniformity coefficient not greater than 1.7.

4. Gravel used as a supporting media shall consist of hard rounded particles and shall not include flat or elongated particles. The coarsest gravel shall be 2-1/2 inches in size when the gravel rests directly on the strainer system and must extend above the top of the perforated laterals or strainer nozzles. Not less than four layers of gravel shall be provided in accordance with the following size and depth distribution:

| | SIZE | DEPTH | | --- | --- | --- | | | 2-1/2 to 1-1/2 inches | 5 to 8 inches | | | 1-1/2 to 3/4 inches | 3 to 5 inches | | | 3/4 to 1/2 inch | 3 to 5 inches | | | 1/2 to 3/16 inch | 2 to 3 inches | | | 3/16 to 3/32 inch | 2 to 3 inches |

Reduction of gravel depth may be considered upon application to the department and where proprietary filter bottoms are proposed.

F. High rate gravity filters. The highest average filtration rate shall not exceed six gallons per minute per square foot unless the department can verify that a higher rate meets treatment needs based on evaluation of pilot plant studies or operational data. The selected filter rate shall be based upon the filter effluent quality requirements.

The media provided for high rate filtration shall consist of anthracite, silica sand or other suitable sand. Since certain manufacturers are presently utilizing multiple media and homogeneous media that are proprietary in nature, minimum standards are not established for filter media depth, effective size and uniformity coefficient of filter media, or the specific gravity of that media.

G. Shallow bed filters. The shallow bed filtration rate should not exceed 1-1/4 gallons per minute per square foot and shall not exceed two gallons per minute per square foot of filter area at average design flow.

1. Chlorination prior to shallow bed filtration shall be sufficient to maintain a chlorine residual of one mg/l through the filter for a system with average design flow of 0.1 mgd or greater.

2. Multiple unit operations shall be provided to allow for continuous operability and operational variability.

3. The filter media shall consist of a series of up to eight inch filter increments having a minimum total media depth of 11 inches. The sand media shall have an effective size in the range of 0.40 mm to 0.65 mm and a uniformity coefficient of 1.5 or less.

4. Filter inlets shall consist of ports located throughout the length of the filter.

5. The filter underdrainage system shall be provided along the entire length of the filter so that filter effluent is uniformly withdrawn without clogging of the outlet openings provided for collection and backwash.

6. Duplicate backwash pumps, each capable of providing the required backwash flow, shall be provided.

7. Facilities shall be provided for addition of filter aid to strengthen floc prior to filtration.

8. A skimmer shall be provided for each filter.

H. Pressure filtration. Pressure filter rates shall be consistent with those set forth in gravity filtration. Pressure filter media shall be consistent with that set forth in gravity filtration.

1. For pressure filter operation. The design should provide for:

a. Pressure gauges on the inlet and outlet pipes of each filter to determine loss of head.

b. A conveniently located meter or flow indicator with appropriate information to monitor each filter.

c. The means for filtration and backwashing of each filter individually, using a minimally complex arrangement of piping.

d. Flow indicators and controls convenient and accessible for operating the control valves while reading the flow indicators.

e. An air release valve on the highest point of each filter.

2. The top of the wastewater collection channel or weir shall be established at least 18 inches above the surface of the media.

3. An underdrain system to uniformly and efficiently collect filtered wastewater and that distributes the backwash water at a uniform rate, not less than 15 gallons per minute per square foot of filter area, shall be provided. A means to observe the wash water during backwashing should be established.

4. Minimum sidewall heights of five feet shall be provided for each filter. A corresponding reduction in sidewall height is acceptable where proprietary bottoms permit reduction of the gravel depth.

5. An accessible manhole should be provided as required to facilitate inspections and repairs.

I. Traveling bridge. This type of filter is normally equipped with a shallow bed divided into cells with a continuously operated reciprocating cell-by-cell traveling backwash system. This filter system shall comply with applicable design criteria set forth for shallow bed filters. Use of these filters will be evaluated by the department on a case-by-case basis.

J. Microstraining. Microstraining involves the passing of treated effluent through a horizontally mounted, rotating drum with a filtering fabric fixed to its periphery by a porous screen. Microstrainer equipment is typically used to improve treatment of biologically treated wastewater which has received secondary clarification. Thus, biological attached growth can accumulate on the filter fabric. Means to control such biological growth shall be addressed in the design.

1. The most common screen opening (aperture) sizes are 23, 35 and 60 microns, but other sizes may be available. Normally, the larger sizes are used in cases when only the coarser solids are desired to be removed. The type of mesh weave, when considered in conjunction with aperture size, greatly affects the hydraulic capacity of a microstrainer. Screen size selection must be based on the particle type and size to be removed.

2. Screens are made from a variety of woven metals and nonmetals, with stainless steel being the most commonly used material. Nonmetallic filter cloths are especially suitable for those applications where the presence of corrosive chemicals would be harmful to metallic cloths. Chlorination immediately ahead of microstraining units employing metallic cloths should be avoided.

3. The area of the submerged portion of the screening fabric helps to govern the hydraulic capacity. Normal submergence is 2/3 to 3/4 of the drum diameter. The speed of rotation of the drum should be based on particle type size to be removed. Decreasing the speed of rotation causes increased removal efficiencies but has the effect of increasing the head loss through the filter fabric and decreasing the hydraulic capacity of the unit. The design rotational speed should be about seven rpm.

4. The backwash system should be designed to serve the dual function of applying energy in the form of pressurized washwater spray to the screen to dislodge retained particles and to collect and transport the solids-laden washwater away from the microstrainer. The backwash system shall be designed to minimize splash-over (solids-laden backwash spray water that falls short or long of the washwater collector rather than into the collector as intended). The microstrainer design shall provide for solids retained on the screen which fall back into the drum pool. Backwashing shall be continuous. Backwash water requirements should be based on particle type and size to be removed. The volume of wash water required shall be determined on an individual basis. The normal source of backwash water is the microstrainer effluent collector. Normally only one-half of the backwash water volume actually penetrates the screen; the rest, called a splashback, flows into the effluent section. The backup system should minimize splashback. Increasing the backwash flow and pressure has the tendency to decrease the headloss through the screen. Up to 25% of the total throughput volume may be required for backwash purposes, but averages of 1.0% to 5.0% are typical. Adequate backwash waste storage and treatment facilities should be provided to dispose of the removed materials within the design limitations of other system components.

5. The most suitable pressure differential through the screen shall be determined on an individual basis. Usual pressure differential under normal operating conditions is 12 to 18 inches. The pressure applied to the screen affects the flow rate through the screen. The low pressure requirement is one of the microstrainer's advantages. The secondary effluent should not be pumped, but allowed to flow by gravity to the microstrainer unit to minimize the shear force imparted to the fragile biological floc.

6. Hydraulic capacity of the microstrainer is affected by the rate of clogging of the screening fabric. The accumulation or build-up of attached bio-mass on the screen over time must be prevented. The use of ultraviolet light may reduce the rate of such accumulation. Microstrainers shall not be utilized to treat wastewaters containing high grease and oil concentrations, due to their clogging effects. Iron and manganese buildups also tend to clog the screen. Periodically, the screen must be taken out of service and cleaned. Microstraining units shall be provided in sufficient numbers and capacities to maintain 100% operability of the microstraining process. Automatic control of drum speed and backwash pressure based on head loss through the screen shall be utilized to help overcome this sensitivity problem.

7. Pilot plant studies can be conducted to determine the applicability and design of the microstraining unit to the specific wastewater to be treated. The hydraulic capacity of a microstrainer is determined by the following: head applied, concentration of solids, size of solids, nature of solids, rate of clogging, drum rotational speed, drum submergence, mesh weave and aperture size. These factors are interrelated such that a change in any one of them will cause a change in some or all of the remaining factors.

K. Nonfixed beds and upflow. Continuously backwashed and other nonfixed bed filters are considered as nonconventional technology. Conventional design standards may be established through evaluation of performance data as provided for in this chapter.

L. Membrane, ultra and micro. Filtration of treated effluent through membranes and other media involving molecular sized removal is considered nonconventional technology. Application of this technology will be considered based on evaluation of performance data as provided for in this chapter.

M. Carbon adsorption. Carbon adsorption involves the interphase accumulation or concentration of dissolved substances at a surface or solid-liquid interface by an adsorption process. Activated carbon, which is generally a wood or coal char developed from extreme heat, can be used in powdered form (PAC) or granular form (GAC). Generally, carbon adsorption is used as the polishing process to remove dissolved organic material remaining in a wastewater treated to a secondary or advanced level. Activated carbon adsorption can also be used for dechlorination.

1. Parameters with general application to design of carbon adsorption units are carbon properties, contact time, hydraulic loading, carbon particle size, pH, temperature and wastewater composition, including concentrations of suspended solids and other pollutants.

2. The adsorption characteristics of the type of carbon to be used shall be established. Such characteristics may be established using jar test analyses of various activated carbons in reaction with the waste to be treated. Adsorption isotherms for each form of carbon proposed for use shall be determined. The source and availability of replacement carbon, as designed, shall be addressed.

3. Pilot plant studies shall be performed upon the selected carbon using the wastewater to be adsorbed, where industrial and domestic wastes are present to determine: breakpoint, exhaustion rate, contact time to achieve effluent standards; and if applicable, the backwash frequency, pressure drop through the fixed bed columns, and the carbon regeneration capacity required. Where strictly domestic waste is to be treated, data from similar full scale unit operations or pilot plant data will be acceptable.

4. Where carbon regeneration is provided, carbon loss due to transportation between the columns and regeneration furnace in the range of five to 10 percent total carbon usage shall be considered normal for design. The rate at which carbon will lose adsorption capacity with each regeneration should be established.

5. If fixed-bed GAC carbon columns must be backwashed to remove solids entrapped in the carbon material, then backwash facilities shall provide for expansion of the bed by at least 30%.

6. Carbon adsorption unit operations may be provided in parallel or series. Sufficient capacity shall be provided to allow for continuous operability of the carbon adsorption process.

7. Nonfixed bed carbon adsorption unit operations may be operated in the upflow or downflow mode. Duplicate pumping units shall be provided for such unit operations.

8. Carbon adsorption unit operations should provide for purging with chlorine or other oxidants as necessary for odor and bio-mass control.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-920 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-860, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 9 Natural Treatment

9VAC25-790-870 Conventional alternatives

Article 9 Natural Treatment

A conventional land treatment system utilizes a secondary process for pretreatment of sewage followed by irrigation, overland flow, or infiltration-percolation (or combination thereof) methods for applying the treated effluent to an approved site. Other natural treatment alternatives such as aquatic ponds and constructed wetlands may provide conventional sewage treatment. Reuse of treated effluents that meet the quality standards established by the DEQ for the reclamation and reuse of wastewater will be governed by DEQ permitting programs. However, the sewage treatment process that produces the reclaimed water will remain subject to evaluation by the department as prescribed by this chapter.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-930 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-870, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-880 Land treatment

A. Site specific information shall be submitted with the preliminary proposal in accordance with this chapter and standards contained in this chapter.

Land treatment systems shall have adequate land for pretreatment facilities, storage reservoirs, administrative and laboratory buildings, and buffer zones, as well as the application sites (field area). The availability of this land should be determined prior to any detailed site evaluation. Site availability information should be obtained concerning:

1. Availability for acquisition or acceptable control.

2. Present and future land use.

3. Public acceptance.

B. Site design. Conformance to local land use zoning and planning should be resolved between the local government and the owner. Adjacent owners should be contacted by the applicant to establish whether significant opposition to the proposed location, or locations, exists. Concerns of adjacent landowners will be considered in the evaluation of site suitability. Public meetings may be scheduled either during or after the evaluation of final design documents so that the department can discuss the technical issues concerning the system design through public participation procedures. Public hearings may be held as part of the certificate/permit issuance procedures.

1. The estimated established site size should be calculated using a typical maximum annual loading depth of 36 inches for slow rate systems and a maximum depth of 72 inches per year for high rate systems to compute the field area size. In addition, the buffer zone area should be estimated using a typical distance of 200 feet from the extremities of the field areas to adjacent property lines. This total estimated site area should be available and permission obtained to gain access to the site for field investigations.

2. When investigating a potential site for application of wastewater, there are some limiting factors, including topography, soils, and vegetative growth (crop), which shall be evaluated early to determine site suitability for a land treatment system. This evaluation should be made in two phases: a preliminary phase and a field investigation phase.

3. The preliminary phase of site evaluations should include the identification of the proposed location of the land treatment system on a recent U.S.G.S. topographic map (7.5 minute quadrangle) or acceptable reproduction or facsimile thereof. A property line survey map should also be available for use in identifying the site location or locations.

4. The 100-year flood elevation should be identified and the proposed pretreatment unit processes should be roughly located in relation to elevation.

5. Preliminary soils information should include a soil site suitability map and include information to identify soil textures, grades, drainage, erosion potential, suitability for certain crops, etc. Information on soil characteristics may be available from either the National Resources Conservation Service (NRS) Office, the local Cooperative Extension Service Agent, or the Soil and Water Conservation Nutrient Management Specialist.

6. The field area available for effluent application may be estimated using typical criteria based on topography and soil characteristics. Field areas should be delineated on topographic maps of the proposed land treatment site.

7. The land treatment system design consultant should arrange a Preliminary Engineering Conference (PEC), as described in this chapter, as a final step in the preliminary phase of the site evaluation. The requirements for soil borings and backhoe pits as needed to study soils should be established at the PEC. A site visit should be scheduled at the PEC that involves the appropriate regulatory personnel and the owner and design consultant.

8. The land treatment system design consultant may not wish to conduct detailed field investigations of site topography, hydrology and soil characteristics prior to the site visit by regulatory personnel and their advisors. However, the proposed locations of field areas and pretreatment units should be established and identified during the site visit. The location of any existing soil borings, backhoe pits, springs, wells, etc., should also be identified during the site visit. Soil borings and backhoe pits may be excavated prior to, during and following the site visit as required. The requirements for soil permeability and hydraulic conductivity testing should be developed either during or shortly after the site visit.

9. Applicants for development of all land treatment systems shall be required to submit at least the minimum required information as required for the appropriate certificate/permit to be issued.

C. Site features. The soil at a potential site should be identified in terms of its absorption capacity and crop production classification, which is a function of physical and chemical characteristics. Important physical characteristics include texture, structure and soil depth. Chemical characteristics that may be important include pH, ion exchange capacity, nutrient levels, and organic fraction. The absorption capacity of a soil may be directly related to soil texture and structure. Soil color may provide an indication of the movement of moisture through soil. Hydraulic conductivity may be estimated from in-field tests using acceptable infiltrometer devices. In addition, the absorption characteristics of a soil may be related to its hydraulic conductivity as measured by both in situ and laboratory tests using acceptable procedures (Table 9). The conductivity tests should be conducted in the most restrictive layer within the depth affected by the land application system. Soil productivity and nutrient management characteristics are discussed in the Virginia Pollution Abatement Permit Regulation (9VAC25-32).

1. Soil evaluation for a land treatment system should follow a systematic approach of selecting proper locations for borings or excavations based on topographic position, slopes and drainage. The physical characteristics of site soils should then be verified by an acceptable number of recorded observations that include soil depth to horizon changes, restrictive layers and parent material, color, texture and structure, for borings or excavations to a minimum depth of five feet.

2. If the soil characteristics differ substantially between borings or excavations, without a logical technical reason for the variation, then additional boring and excavation locations should be studied to identify the nature and extent of the changes in soil patterns throughout the proposed site.

3. The soil characteristics of the proposed site should be described by a qualified technical specialist knowledgeable in the principles of soil science, agronomy, and nutrient management. The long-term impact of land application of the treated effluent on site soils and vegetation or crops must be evaluated by the land treatment system design consultant. Certain minimum soil depths are required for approval of a land application site. The minimum required depth for field areas will depend on the type of land application system as well as the soil characteristics.

4. Representative soil samples shall be collected for each major soil type identified by the field investigation and analyzed for certain parameters in accordance with this chapter.

5. Detailed information on the geologic conditions of the proposed site shall be provided by a geologist or other technical specialist, or specialists, knowledgeable in geohydrologic principles.

a. Detailed information on the site hydrology and groundwater shall be provided by a geologist, hydrologist or other technical specialist, or specialists, knowledgeable in hydrologic principles and ground water hydrology.

b. The depth to the permanent ground water table below the site shall be determined. The location, depth and extent of perched water tables as well as the estimated seasonal fluctuations shall be established. The effect of the permanent and seasonal water tables on performance of the particular land treatment system shall be evaluated by the design consultant.

c. The characteristics of ground water movement under the proposed site should be established and evaluated using piezometer installations or other acceptable methods. The potential impact of the land treatment system on aquifer hydraulics and water quality shall be predicted through the use of modeling and appropriate monitoring devices.

d. The present and planned uses of the aquifer(s) identified as affected by the land treatment system should be determined by the consultant.

D. Land treatment methods. The following methods, or combinations thereof, as regulated by the appropriate permit or certificate, are considered conventional technology in accordance with this chapter:

1. Irrigation - slow rate. Wastewater may be applied by spraying, flooding, or ridge and furrow methods. Irrigation methods are designed not to discharge to surface waters.

2. Rapid infiltration. Wastewater may be applied by spreading and spraying. The system shall be designed to meet all certificate/permit requirements and groundwater standards.

3. Overland flow. This method of wastewater renovation is best suited for soils with low permeability. Generally, a permit or certificate for a discharge to surface waters must be issued.

E. Other alternatives. Natural treatment systems such as aquatic ponds, constructed wetlands and biological/plant filters and other aquatic plant systems are somewhat related to land treatment technology. Natural treatment involves the use of plants in a constructed but relatively natural environment for the purpose of achieving treatment objectives. The major difference between nonconventional natural and conventional treatment systems is that conventional systems typically use a highly managed and controlled environment for the rapid treatment of the wastewater. In contrast, nonconventional natural systems use a comparatively unmanaged environment in which treatment occurs at a slower rate.

1. The use of natural treatment as a part of a land treatment system may take several forms including ponds called "Aquatic Processing Units" (APU). Floating plants such as water hyacinths and duckweed are often used in APU treatment.

2. Constructed wetlands are defined as areas where the wastewater surface is controlled near (subsurface flow) or above (free water surface) a soil or media surface for long enough each year to maintain saturated conditions and the growth of related vegetation such as cattails, rushes, and reeds.

3. Constructed wetlands must provide for groundwater protection and may be used to provide additional treatment to primary, secondary, or highly treated effluents prior to final discharge.

4. Natural (existing) wetlands are considered as state waters and any discharge to them shall be regulated in accordance with an issued discharge permit or certificate.

F. Features. Biological treatment that will produce an effluent either with a maximum BOD₅ of 60 mg/l or less, or be of such quality that can be adequately disinfected, if necessary, shall be provided prior to natural treatment, including use of conventional unit operations prior to the land application of treated effluent and advanced treatment prior to reuse.

Disinfection may be required following or prior to land application and other natural treatment. If spray irrigation equipment is utilized, adequate aerosol management including pre-disinfection shall be provided.

Buffer zones around field areas shall be provided in accordance with the monitored maximum microbiological content of the applied effluent as follows, with no reduction in required minimum distances to water sources and channels:

| Fecal Coliform Count⁽¹⁾(No./100 mls) | Minimum Buffer Distance, Feet | | --- | --- | | 200 or less | 200⁽²⁾ | | 23 or less | 50⁽³⁾ | | 2.2 or less | None, but no application during occupation of field area⁽³⁾ | | Notes: | | | ⁽¹⁾Exceeded by no more than 10% or less of samples tested. | | | ⁽²⁾No public use of field areas. | | | ⁽³⁾Transient public use may occur after a three-hour drying period following application. | |

1. The owner shall provide sufficient holding time to store all flow during periods either when crop nutrient uptake is limited or nonexistent, the ground is frozen, surface saturation occurs during wet weather, the ground is covered with snow, or the irrigation site or field areas cannot otherwise be operated. The total volume of holding required shall be based on the storage necessary to provide for climatic conditions and the nutrient management requirements of the field area crop. Operational storage necessary for system maintenance shall be provided. Climatic holding periods shall be based on the most adverse conditions of freezing and precipitation, as taken from accurate recorded historical data that are available for the local area (in no case less than 25 years). The storage volume shall be sufficient to prevent any unpermitted discharges to state waters.

2. A minimum holding period of 120 days shall be required when climatic data is not available. System backup storage shall be determined by the complexity of the entire treatment system. An increase or reduction of minimum storage may be considered on a case-by-case basis based on adequate documentation of agronomic crop production and nutrient utilization.

3. The depth of the volume containment for total storage requirements shall be measured above any minimum depth requirements for maintenance.

4. The owner shall provide a minimum reserve area equivalent in size to 25% of the design field area. Additional reserve area may be required as evaluated by the division, if the general conditions of the field area are deemed marginal or in proximity of critical areas or waters. The reserve area shall be capable of being used as a functional area within 30 days of notice.

5. Some allowance for a reduced reserve shall be allowed if additional storage is provided or if there is an alternate treatment mode (e.g., discharge) that can be utilized by the facility.

6. Design criteria for treatment or storage ponds shall be in accordance with this chapter and standards contained in this chapter. In addition, the following requirements shall be met:

a. A minimum operational water depth shall be maintained.

b. Provisions shall be made to allow complete drainage of the pond for maintenance.

c. Duplicate pumps shall be provided if necessary to transport pond flows, with the capacity of each pump sized to handle the maximum rate of flow plus an allowance to deplete stored volumes.

d. Disinfection may be provided either upstream from ponds, or the pond effluent may require disinfection.

e. When chlorination is utilized to disinfect pumped flows, the detention time of the holding pond chlorination facilities shall provide a minimum of 30 minutes of contact time, based on the maximum design pumping rate in accordance with this chapter and standards contained in this chapter.

G. Design loadings. Loading rates shall be based on the most critical value as determined by the liquid and nutrient application rates, or total application amounts for other constituents (such as boron, salts, pH-alkalinity, copper or sodium, etc.), present in such concentrations as could produce pollution of either the soil, cover crop, or water quality. Total weekly application (precipitation plus liquid loading rate) shall not exceed two times the design loading rate. This higher than conventional loading rate shall be used only to balance seasonal water deficits, and groundwater quality standards shall not be exceeded unless a variance to the violated standard has been approved by the department.

1. An overall water balance shall be investigated in accordance with one of the following equations based on design criteria:

a. Irrigation or infiltration

design precipitation + effluent applied = evapotranspiration + hydraulic conductivity.

b. Overland flow

design precipitation + effluent applied = evapotranspiration + hydraulic conductivity + runoff.

2. Design precipitation shall be the wettest year for a 10-year period (return frequency of one year in 10). Minimum time period for this analysis should be 25 years. Average monthly distribution (average percentage of the total annual precipitation that occurs in each month) shall be assumed.

3. Design evapotranspiration (monthly) shall be 75% of average monthly pan evaporation values collected at official weather stations within or contiguous to the Commonwealth of Virginia and should be representative (similar geographically and climatological) of the proposed site.

4. Design hydraulic conductivity shall be a given percentage (see Table 9) of respective laboratory and field measurements that yield the rate at which water passes through the soil under presoaked conditions.

The test methodology should be in accordance with current published procedures made available to the department.

| TABLE 9. DESIGN HYDRAULIC CONDUCTIVITY | | | --- | --- | | Type of Test | Percent of minimum measured value to be used in design | | i. Saturated Vertical Hydraulic Conductivity | 7 | | ii. Basin Infiltration | 12.5 | | iii. Cylinder Infiltrometers | 3 | | iv. Air Entry Permeameter | 3 | | v. (Other--to be evaluated by the department) | |

5. During periods of application, the applied nitrogen shall be accounted for through (i) crop uptake and harvest; (ii) denitrification; (iii) addition to surface water and ground water, or storage in soil. In winter, site loadings for slow rate systems shall not exceed the hydraulic design for those particular months. Winter application of treated effluent may be provided only (i) to cool season grasses (ii) following three consecutive days of minimum daily temperatures in excess of 25°F and maximum in excess of 40°F.

6. The annual liquid loading depth for plant nitrogen requirements shall be determined by the following equation:

L = N/2.7C

Where:

N = Crop nitrogen uptake, lb/acre/yr.

C = Total nitrogen concentration, mg/l

C = TKN + NO2-N + NO3-N

L = Annual liquid loadings depth, ft/yr.

TKN = Total KJELDAHL nitrogen = organic N + NH₃ - N

7. The monthly nitrogen loading rate design should be distributed over the growth cycle of the particular crop, as much as practicable.

8. If other nutrients, organics, or trace elements are present in concentrations critical to either crops, soil, or water quality, then a total mass balance similar to that for nitrogen shall be investigated for each critical element or compound.

9. The land application design average rate shall be determined by the climatic conditions, selected crops, and soil characteristics. However, the maximum application rates in terms of depth of effluent applied to the field area shall be as follows:

a. One-fourth inch per hour.

b. One inch per day.

c. Two inches per week (one inch per week in forest field areas used for year round application).

H. Field area design. Field area is defined as the area of land where renovation of wastewater takes place (area under actual spray or distribution pattern). The field area shall be designed to satisfy the most critical loading parameter (i.e., annual liquid loading depth) according to the following equation:

Field Area (acres) = Q/D*365/(365-S)

Where:

Q = Wastewater flow in (acre-inches/week)

D = Applied depth in inches/week

S = Minimum required storage capacity + annual resting periods during the application season when no waste can be land applied.

1. The minimum storage capacity shall be the average design volume of flow accumulated over a period of 60 days, unless other storage periods are justified by climatic data. It should be noted that the field area equation does not take into consideration the area needed for reserve capacity or future expansion (no less than 25% of design field area).

2. The field area shall be divided into smaller sections for application to allow for rotational use of these sections. Rotational operation shall be designed to provide the maximum resting periods for field areas. The distribution system shall be designed to meet the requirement for alternating application to the field area sections. Minimum resting periods shall be two days, one day and two weeks for irrigation, overland flow and infiltration-percolation, respectively. Maximum wetting period shall not exceed five days, one week, and one day respectively for irrigation, infiltration-percolation, and overland flow, respectively. Resting and wetting periods depend on soil types, climatic conditions, harvesting requirements, etc.

3. The field area or areas shall be adequately enclosed with suitable fencing to prevent access to livestock and the public where necessary. Signs shall be posted at sufficient intervals (100 to 300 feet) around the entire perimeter of field areas to identify the land treatment operation and specify access precautions.

4. A groundwater monitoring system shall be provided in accordance with the permit or certificate requirements. A minimum of one upgradient and two downgradient monitoring wells shall be provided. The well locations, along with typical well construction specifications, shall be submitted with the proposal. Upon installation, the driller's log shall be submitted. Additional monitoring well locations may be required if deemed necessary upon evaluation of monitoring data. The results of any required sampling and testing of groundwater shall be submitted to the department for evaluation in accordance with the operating permit.

5. Representative agriculturally related soil tests are required on crop dependent systems to ensure adequate vegetative cover. The growing and maintaining of a vegetative cover on application sites is a very integral part of the system. The plants prevent soil erosion and utilize nutrients and water. The system design should provide for a proper balance between applied amounts of water and nutrients. The designer may wish to consult with both agronomic and nutrient management specialists on these matters. The design shall address crop and nutrient management.

6. The wastewater application schedule should be worked around the plans for harvesting. A minimum of 30 days shall be required between the last day of application and utilization of all crops. Crops that will be consumed raw by man shall not be grown in land application field areas.

7. Information on the proposed crops and their intended use may be forwarded to the Virginia Department of Agriculture and Consumer Services for evaluation.

I. Low intensity design. The low intensity application or irrigation field area should be as flat as possible with maximum slopes of 5.0% or less. The design of low intensity irrigation of treated effluent shall provide for nutrient management control. When it is necessary to locate field areas on slopes of eight to 12%, special precautions shall be taken to prevent seepage or runoff of sewage effluent to nearby streams. Dikes or terraces can be provided for field areas, together with runoff collection and return pumping equipment. The maximum field area slope should be 12%. The irrigation field area shall be located a minimum distance of 50 feet from all surface waters.

1. Five feet of well-drained loamy soils are preferred. The minimum soil depth to unconsolidated rock should be three feet. The hydraulic conductivity should be between 0.2-6 inches/hour.

2. The minimum depth to the permanent water table should be five feet. The minimum depth to the seasonal water table should be three feet. Where the permanent water table is less than five feet and the seasonal water table is less than three feet, the field area application rate shall be designed to prevent surface saturation. In addition, underdrain and groundwater pumping equipment may be required.

3. The method of applying the liquid to the field shall be designed to best suit prevailing topographic, climatic, and soil conditions. Two methods of application are:

a. Sprinkler systems with low trajectory nozzles or sprinkler heads to uniformly distribute the applied effluent across a specified portion of the field area. Application is to be restricted in high winds that adversely affect the efficiency of distribution and spread aerosol mists beyond the field areas.

b. Ditch irrigation systems that utilize gravity flow of effluent through ditches or furrows, from which effluent percolates into the soil. For uniformity of distribution, the slope of the field area is to be uniform and constant.

4. The height of spray nozzles, pressure at the spray nozzles and spacing of the laterals shall be adequate to provide uniform distribution of the effluent over the field area. The design height and pressure of the spray nozzles shall avoid damage to vegetation and soil.

5. Adequate provisions shall be made to prevent freezing and corrosion of spray nozzles and distribution lines when the system or a section of the system is not in operation.

6. Appropriate vegetation shall be maintained uniformly on all field areas. Usually water tolerant grasses with high nitrogen uptakes are used. Over seeding with cool season grasses may be necessary during the fall season, prior to October 15 of each year. Silviculture sites and reuse irrigation sites may also be used with this type of land treatment.

J. Rapid infiltration. This form of treatment requires the least amount of land. Renovation is achieved by natural, physical, chemical, and biological processes as the applied effluent moves through the soil. Effluent is allowed to infiltrate the soil at a relatively high rate, requiring a field area with coarse grained soils. This system is designed for three main purposes (i) ground water recharge; (ii) recovery of renovated water using wells or underdrains with subsequent reuse, or (iii) discharge and recharge of surface streams by interception of ground water.

1. Five feet of sand or loamy sand is preferred. Soil grain size should be greater than.05 mm in size. The hydraulic conductivity should be greater than two inches/hour.

2. The permanent ground water table shall be a minimum of 15 feet below the land surface. With this method, a recharge mound is not uncommon and shall be properly evaluated by the consultant. A minimum distance of 10 feet should be maintained between the land surface and the apex of the recharge mound (during a worse-case situation). Lesser depths may be acceptable where under drainage is provided.

3. Spreading and spraying are the two main application techniques that are suitable for infiltration-percolation.

4. Design application rates will vary according to the site area, soil, geology, and hydrology characteristics.

5. The buffer distances from extremities of field areas to private wells should be at least 400 feet.

K. Overland flow. Renovation of wastewater is accomplished by physical, chemical, and biological means as applied effluent flows through vegetation on a relatively impermeable sloped surface. Wastewater is sprayed or flooded over the upper reaches of the slope and a percentage of the treated water is collected as runoff at the bottom of the slope, with the remainder lost to evapotranspiration and percolation. Overland systems should be capable of producing effluent at or below secondary level; however, additional treatment units may be needed to achieve the permitted effluent limitations.

1. Soils should have minimal infiltration capacity, such as heavy clays, clay loams or soils underlain by impermeable lenses. The restrictive layers in the soil should be between one to two feet from the surface to maintain adequate vegetation. The hydraulic conductivity should be less than 0.2 inches/hour. Field area slopes shall be less than 8.0%. Monitoring wells shall be provided.

2. Renovated water shall be collected at the toe of the slope in cut off ditches or by similar means and channeled to a monitoring point and disinfected as required.

3. The effluent application method should achieve a sheet flow pattern that will produce maximum contact between the applied wastewater and the soil medium. This can be accomplished by lateral distribution methods, low pressure sprays and moderate to high pressure impact sprinklers discharging onto porous pads or aprons designed to distribute the applied flow while preventing erosion. Maximum application rates in terms of depth of effluent should be less than 10 inches per week.

4. Perennial field area vegetation shall be required. Hydrophilic or water tolerant grasses are usually grown with this type of system.

L. Alternative design. Information submitted for approval of other natural treatment systems and reuse alternatives shall include performance data obtained from either full-scale systems similar to the proposed design, or pilot studies conducted over a testing period exceeding one year, to a period of two years, based on test results.

Special consideration should be given to the following factors in planning and design of natural systems:

1. Many aquatic plants are sensitive to cold temperatures and may require the use of a protected environment or operation on a seasonal basis. Some plants may be considered unacceptable for use and their growth must be controlled.

2. Control of insects, particularly mosquitoes, is normally required for constructed wetlands and aquatic plant systems. The use of mosquito-eating fish and water depth adjustments are recommended.

3. Some constituents which may be present in wastewaters, particularly those having high industrial loads, are toxic to many aquatic plants. Therefore, tests should be conducted to identify possible toxics prior to selection of the aquatic plant species.

4. Natural systems utilize a higher life form of less diversity than found in more conventional biological treatment systems. This lack of biological diversity may reduce treatment performance. Constructed wetland and aquatic plant systems could be more susceptible to long term process upsets. Therefore, the effects of fluctuations in climate and wastewater characteristics is extremely important in the design of natural systems.

5. Some aquatic plant and animal species have the potential to create a nuisance condition if inadvertently released to natural waterways. Federal, state and local restrictions on the use of certain aquatic plants and animals shall be considered.

6. Harvesting and the use or disposal of aquatic plants should result in removal of organics, solids and nutrients such as nitrogen and phosphorous from the APU effluent. Management of residual matter shall be in accordance with this chapter and standards contained in this chapter.

History

• Statutory Authority: § 62.1-44.15 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-940 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-880, Virginia Register Volume 20, Issue 9, eff. February 12, 2004; amended, Virginia Register Volume 24, Issue 6, eff. January 1, 2008; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-790-890 Constructed wetlands

A. Design. These unit operations typically consist of inundated or saturated media supporting flora and fauna typically found in natural wetlands. Two basic designs are referred to as submerged flow systems (SFS) and free water surface systems (FWS). Terms that are also considered synonymous with these systems include (i) rock-plant filters; (ii) marsh-reed filters; (iii) microbial rock-plant filters; and (iv) artificial wetland bio-reactors.

1. The design of constructed wetlands is considered nonconventional technology. Design loading values shall be established in accordance with the type of treatment proposed, established performance data, and site specific features. The use of indigenous wetland flora is recommended provided that those species proposed have been evaluated as suitable for such use by technical experts qualified to make such judgements. Certain flora and fauna may be restricted for use in constructed wetlands.

2. All constructed wetlands shall be preceded by pretreatment of sewage, established as at least equivalent to primary treatment in accordance with this chapter and standards contained in this chapter. Constructed wetlands may be preceded by secondary or better treatment when used for effluent polishing, nutrient reduction, or advanced treatment.

3. The design of individual constructed wetlands shall provide the appropriate features specified for pond treatment systems in accordance with this chapter. Required detention times may vary from one day to 20 days or more, in accordance with the type of pretreatment and the issued permit or certificate effluent limitations.

4. The following factors shall be considered in the selection of the design hydraulic and organic loadings: strength of the influent sewage, effectiveness of primary or secondary treatment, type of media, ambient wastewater temperature for winter conditions, and treatment efficiency required.

5. For design flows of 0.1 mgd or more, the treatment system shall be divided into multiple units that can be operated separately. Each unit shall have the ability to be sufficiently drained for operational maintenance. Design considerations may include parallel treatment streams or trains that can be operated independently of each other.

6. The constructed wetland units shall be designed to operate with plug flow type hydraulics. A proper length to width ratio to achieve this condition should be considered in the design of each system. The inlet design shall provide for proper distribution of the influent.

7. All treatment units shall be provided with outlets that can withdraw flow at various depths (a minimum of three). FWS outlets shall be submerged and be able to exclude floating detrital material and scum.

8. The design shall allow for each unit to be taken out of service at any time and its flows routed to another unit. The treatment system must be capable of treating the daily average flow with the largest unit out of service.

9. All FWS systems shall be situated so as to minimize the adverse effects of the prevailing winds.

10. All systems should maintain a minimum slope along the bottom of at least 0.075% to facilitate draining.

11. Constructed wetland design should allow inlet and outlet depth levels to be raised and lowered in order to (i) vary water levels within the unit basin; (ii) provide the ability to flood the media surface when necessary; and (iii) to drain the unit basin sufficiently for maintenance.

B. Features.

1. SFS systems should be designed to prevent uncontrolled surface ponding of wastewater. Design flow depths exceeding 24 inches shall be justified by evaluation of adequate performance data. The hydraulic loading of these systems should be limited to the effective hydraulic capacity of the media in place. The effective hydraulic capacity will be a function of the clean media's hydraulic capacity reduced by root intrusion, biological slime layer, detritus, algae, and other blockages. Hydraulic loadings exceeding one gallon per day per square feet of total surface area shall be substantiated by evaluation of adequate performance data.

2. FWS systems should be designed to prevent scour, erosion, and plant damage during peak flow periods. Design flow depths exceeding 12 inches shall be justified by an evaluation of adequate performance data. The hydraulic loading of these systems should be limited to the open channel carrying capacity of the unit at full growth. Design organic loadings exceeding 10 pounds of influent BOD₅ per day per acre of surface area shall be substantiated by evaluation of adequate performance data.

3. The flow pattern and depth shall provide for a uniform environment and growth conducive to wetlands.

4. Plants should be placed no greater than 66-inches apart (center to center). All plants to be used should be healthy, insect free, and undamaged. A broad diversity of plant species within any unit is recommended. Harvesting of dead wetland vegetation and detritus plant matter is recommended.

5. The following specifications shall be considered as minimum requirements for material specifications of constructed wetlands rock media:

a. Crushed rock, slag or similar media should not contain more than 5.0% by weight of pieces whose longest dimension is three times its least dimension. The rock media should be free from thin, elongated and flat pieces and should be free from clay, sand, organic material, or dirt. The media should have a Mohs hardness of at least 5.0.

b. Rock media, except for the top planting layer, should conform to the following size distribution and gradation when mechanically graded over a vibrating screen with square openings:

(1) Passing six-inch sieve—100% by weight;

(2) Retained on two-inch sieve—90-100% by weight;

(3) Passing one-inch sieve—<0.1% by weight.

c. Rock media shall be rinsed or washed to remove sediment. This washing should be sufficient to remove any significant amounts of dirt or accumulated debris. The proper placement and installation of media is vital to the success of the system. Undue compaction exerted on the media's surface, as it is installed and after its installation, can fracture and consolidate the media. The introduction of foreign fine particles and fracturing can adversely affect the system's hydraulic conductivity. Therefore, the following guidelines are recommended:

(1) A layer of smaller rock (0.5-1.0 inches) may be used on the top of the unit to ease planting of the vegetation and aid in vector control.

(2) Media should be uniformly placed avoiding compaction.

(3) Compacting operations should not be allowed on the surface of the media after final placement.

(4) Depressions shall be leveled and smoothed over to prevent ponding.

(5) Provisions should be made prior to planting to provide water and nutrients to the plants if the system start-up will be delayed.

6. Other media specifications shall be in accordance with filtration standards as provided in this chapter.

C. Performance.

1. The total suspended solids (TSS) removal efficiency of the constructed wetland units is dependent on the quiescence of the flow through the units. However, if the facility is unable to meet its permitted parameters, alternate means of solids removal must be pursued.

2. Current constructed wetland technology has not demonstrated the ability to consistently nitrify typical domestic strength sewage influent to meet average flow permit limitations below 5 mg/l of ammonia. The design of any constructed wetland to achieve a permit or certificate effluent limitation of 5 mg/l, or less, of ammonia, shall consider the use of a separate nitrification process.

3. The performance of constructed wetlands is a function of the primary or secondary treatment efficiency preceding the units, i.e., fraction of remaining BOD₅ and TSS.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-950 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-890, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 10 Nutrient Control

9VAC25-790-900 Nutrient reduction

Article 10 Nutrient Control

A. The goal of nutrient reduction is to produce an effluent quality to meet effluent limitations for phosphorus, ammonia nitrogen and total Kjeldahl nitrogen (TKN). All designs should be based on pilot plant studies or full scale operating data obtained at design loadings.

The following nutrient control processes will be considered:

1. Natural Systems—Aquatic plant removal (APU) and proper plant management.

2. Suspended growth systems with adequate sludge treatment and management.

3. Attached growth system.

4. Covered anaerobic ponds.

5. Packed bed filters.

B. Aquatic plant systems. This natural treatment process involves three phases: aquatic plant growth, harvesting and management. Design should be based on seasonal climate and available sunlight in accordance with the provisions of this chapter. The basin or channel shall be based on achieving the required removal rate at the minimum encountered liquid temperature and shall include sufficient capacity to achieve permit requirements during periods of low temperatures and little or no sunlight.

1. It has been reported that for maximum nitrogen assimilation, theoretical detention times vary from days to weeks. The detention time is considered directly related to pond immersion temperatures (between 12°C and 25°C) and independent of temperature between 25°C and 33°C. Detention time can be shortened by biomass control.

2. Culture depths should be established to achieve optimum nitrogen assimilation. Adjustments in detention time should be considered for the variation in culture depth. Basin or trench depth should be as shallow as possible and be designed to prevent seasonal performance problems.

3. Facilities should be provided for the addition of nutrients, such as carbon dioxide, iron and phosphorus, as required.

4. Plant harvesting is the primary means of biomass control but can also serve to remove suspended solids and chemical precipitants. Harvesting of aquatic plant biomass is divided into three phases: concentration, dewatering and drying. Biomass concentrations of 1.0% to 2.0% by weight can be achieved by either coagulation, flocculation and sedimentation by various coagulants and by use of gravity filters (e.g., Sandborn Filter) with filtrate return. Further concentration to 10% to 20% solids is possible with dewatering by filtration or by self-cleaning centrifugation. Microscreens and upflow clarifiers are not recommended because of operation problems and design deficiencies.

5. Biomass control can be accomplished by use of fixed scrapers or floating harvesters with water surface barriers, or by providing settling areas in basins or other flow channels from which the plants are harvested.

6. Drying of harvested plants can be accomplished by air drying on asphalt pavement or other suitable pavement that will allow mechanical spreading and collections. Drainage should be returned to the treatment works.

7. Biomass management includes (i) disposal through incineration and landfill (may be subject to permit or certificate issuance); (ii) reuse through processing as a high protein animal food supplement and (iii) agricultural use as a soil conditioner or fertilizer.

C. Biological nutrient removal.

1. Phosphorus removal. Phosphorus control typically involves the use of activated sludge biomass exposed to varying levels of dissolved oxygen. Anaerobic conditions select organisms that release phosphorus and store carbonaceous substrate. Biomass is processed through anaerobic conditions to a combination of anoxic and aerobic conditions. The subsequent exposure to dissolved oxygen results in biological metabolism of stored organics with subsequent uptake and storage of phosphorus by the biomass.

a. Anaerobic conditions are defined as a reactor volume containing less than 0.2 mg/l of both dissolved oxygen and nitrate-nitrogen. This selection may be provided within a reactor or reactors (mainstream processes) utilizing controlled recycling of activated sludge. Processed flows from additional treatment operations (sidestream processes) may also be utilized.

b. The efficiency of biological phosphorus removal is highly dependent on the influent levels of phosphorus and biodegradable substrate (BOD or COD). The optimum ratio of process influent total (five-day) BOD to phosphorus appears to be approximately 20 to achieve final effluent levels of phosphorus of one mg/l or less.

c. It is necessary to reduce dissolved oxygen and nitrate levels within influent and recycled flows to the anaerobic reactor to levels that will not exceed a level of 0.2 mg/l within the anaerobic biomass. The anaerobic reactor should be subdivided into two or more compartments with a total hydraulic retention time of one hour or more. The anaerobic fraction of the process biomass should not be less than 25% of the total. An operating mean cell residence time of 10 days or more should be provided for optimum phosphorus removal.

d. For final effluent limitations requiring less than three mg/l of total phosphorus, the need for effluent filtration, or chemical addition, to remove suspended solids shall be evaluated.

2. Nitrogen removal. This process involves activated sludge biomass subject to anoxic conditions to promote the reduction of nitrate nitrogen to nitrogen gas that escapes to the ambient air.

a. Anoxic conditions are defined as a dissolved oxygen level of 0.2 mg/l or less and a nitrate nitrogen level exceeding 0.2 mg/l.

b. Complete denitrification can recover 15% or more of the dissolved oxygen utilized for complete nitrification. In addition, denitrification can recover approximately one-half of the alkalinity utilized for nitrification.

c. A sufficient level of carbonaceous energy in the form of a biodegradable organic substrate must be provided to the anoxic reactor to achieve the design denitrification potential. The degree of nitrogen removal will be a function of the ratio or the carbonaceous energy level available, to the level of TKN oxidized to nitrate nitrogen. The minimum ratio of influent total (five-day) BOD to TKN appears to be approximately 10 or more to achieve effluent levels of 10 mg/l or less of total nitrogen.

d. Complete denitrification may require at least two anoxic stages with a total hydraulic retention time of one hour or more. The anoxic mass fraction should be based on the specific growth rate of the nitrifying/denitrifying microorganisms and the operating mean cell residence time. However, the anoxic mass fraction should be approximately 25% or more of the system biomass.

e. A flexible operating mean cell residence time should be provided around a typical value of 10 days depending on the wastewater temperature. The capacity to recycle flow of nitrified activated sludge to the anoxic reactor should exceed three times the average daily raw sewage flow.

D. Denitrification. If pilot plant data cannot be obtained for the specific wastewater involved, denitrification reactors should be sized through acceptable kinetic models. The average wastewater characteristics for both raw influent and primary (settled) effluent, if applicable, shall be established as follows:

a. Both the total and soluble BOD and COD and the biodegradable fractions of each parameter.

b. The nitrogen fractions; ammonia, TKN, NO3-N.

c. Total and soluble phosphorus.

d. The specific growth rate of nitrifying bacteria.

e. The design wastewater temperature and pH.

1. A supplemental organic substrate feed to a denitrifying reactor may be utilized to achieve denitrification if the influent and recycled flows from the mainstream process do not provide a sufficient amount of substrate. Methanol is commonly used because of lesser cost and lower sludge yield. Methanol requirements should be computed as follows:

Methanol requirements (mg/l) = (2.47) (Influent Nitrate-Nitrogen (mg/l)) + (1.53) (Influent Nitrite-Nitrogen (mg/l)) + (0.87) (Influent Dissolved Oxygen Concentration).

Chemical feed pumps shall be provided in duplicate. Alternate organic substrate sources may be considered with chemical dosages determined stoichiometrically.

2. The amount of methanol or other organic substrate source feed must be closely controlled because excessive feed would result in a residual BOD in the treatment works effluent. A means of automatically pacing the feed to the incoming nitrate concentration shall be provided. Flow pacing shall not be acceptable because of varying nitrate concentrations.

3. The denitrifying reactor shall be followed with an aerated stabilization tank with sufficient detention time to remove any excess oxygen demand resulting from organic substrate source addition and to polish the treatment works effluent.

4. Clarifiers should be designed with a maximum settling overflow rate of about 1,200 gallons per square foot per hourly day at peak flow. A surface skimming device with provisions for returning scum to the denitrification tank shall be provided. The design should be similar to that of secondary clarifiers as provided in this chapter.

5. Dual return pumps shall be provided, each with the capacity to return a minimum of 100% of average flow upstream of the denitrification reactors. Provisions shall be made to transport sludge from the settling basin to the nitrification system in the event that nitrifying sludge is unavoidably discharged into the denitrification system.

6. Denitrification design should address the following parameters:

a. Sludge yield. 0.15 to 0.25 pounds of cells per pound of methanol; 0.5 pounds of cells per pound of glucose, 0.1 pounds of cells per pound of COD (based on methanol).

b. Sludge age. Minimum sludge age to allow mitosis is one-half day at 20°C to 30°C and two days at 10°C. With a safety factor of seven, a design sludge age of 3.5 to 14 days should be considered for temperatures of 10°C to 30°C, using the wastewater temperature dictating the design values.

c. pH. Satisfactory performance can be obtained at pH values of 5.6 to 9.0. The optimum pH range is 6.5 to 7.5. Facilities for pH adjustment should precede the denitrification reactor if necessary.

d. Mixed liquor volatile suspended solids—1,200 to 2,000 mg/l.

e. Detention time--two to four hours.

7. Ponds utilized for denitrification shall be considered on an experimental basis only. Ponds must be covered to prevent wind mixing and photosynthetic oxygen production. Unsuccessful operation has been reported for temperatures below 14°C.

E. Selector systems. These processes are designed to provide a competitive advantage to maintain a desired group of microorganisms within the process. Systems of this type, which will be accepted on an experimental basis (unless sufficient operating data are made available), are as follows:

1. Activated sludge biomass may be subject to extended aeration conditions to accomplish carbonaceous organic oxidation (oxic) and nitrification without settling. Denitrification may be accomplished by introducing the nitrified effluent from the reactor (the mixed liquor) to established anoxic conditions. The anoxic effluent mixed liquor is settled in a clarifier from which return sludge is recycled to the aeration phase for BOD removal. In this process a supplementary organic carbon source is not used, as endogenous respiration of the mixed liquor suspended solids will satisfy the carbon requirement for biological metabolism.

2. Activated sludge reactors may be utilized in series, followed by a clarifier, with nitrified activated sludge biomass returned to a combination of selectors or anaerobic or anoxic conditions established in separate basins. The anaerobic and anoxic reactors should be mixed at a level sufficient to keep the solids in suspension.

a. Nitrification is achieved under aerobic or oxic conditions and mixed liquor from the aerated basin, or basins, is returned to the anoxic basin, or basins, at rates up to and exceeding three times the average flow rate of the influent.

b. Denitrification is obtained under anoxic conditions. The nitrate contained in the aerobic mixed liquor is reduced by the facultative anaerobic bacteria in the anoxic basins using the influent organic carbon compounds as hydrogen donors. Influent ammonia is not nitrified in the anoxic phase.

F. Attached growth systems. Flooded and submerged fixed film contact reactors or biomass support surfaces can be considered for nitrification and denitrification applications in accordance with the provisions of this chapter and standards contained in this chapter. Such designs shall be verified through submission and evaluation of satisfactory operating data. Possible alternatives include (i) the use of biomass support surfaces located within the downstream sections of suspended growth reactors to provide ammonia oxidation; or (ii) the use of contact reactors for nitrification and denitrification.

1. Packed bed contact reactors should be designed in a manner similar to gravity deep bed filters or pressure filters. Provisions shall be provided for backwashing the reactor. Media may consist of silica, activated carbon, volcanic cinders, and acceptable synthetic materials. The smaller media will result in the retention of bacterial floc in the filter, resulting in increased head, and shortcircuiting of flow may develop through the filter, unless frequent backwashing is provided. Larger media permits operation without frequent backwashing, although contact times are reduced, resulting in an increase in effluent suspended solids. High density media larger than 1/2 inches in effective size could produce backwashing problems and may require additional backwashing capability.

2. Nitrate reduction of greater than 90% can be achieved with fixed film contact times of one hour for one inch aggregate and two hours for two-inch aggregate at temperatures above 12°C. The actual detention time necessary for the chosen media shall be based on pilot studies and should be varied in accordance with the specific surface area of the media and temperatures expected. For well rounded sand of two to three mm diameter, the following guidelines for reactor sizing are suggested when pilot plant data cannot be obtained

| | Wastewater Temperature | Fixed Film Reactor Time (Based on Media Composed of Sand) | | --- | --- | --- | | | 20°C | 10 minutes | | | 15°C | 22 minutes | | | 10°C | 45 minutes | | | 5°C | 90 minutes |

3. Provisions shall be made for feed of a biodegradable carbon source, if necessary, based on the guidelines specified for suspended growth reactors.

4. Additional clarification is not required following the packed bed filter, unless the permit specifies an effluent suspended solids concentration of five mg/l or less.

5. Limited experimental data are available for upflow contactors with fluidized media beds and any design must be supported by operating data obtained from existing installations or from a thorough pilot scale study, including requirements for chemical feed additions.

6. One-inch diameter stone media may be specified for upflow contactor media to allow upflow operation without exceeding the scouring flow rates that could result in backwashing or stripping of attached growth. The disadvantages of large media sizes include a reduction in contact time and increased effluent suspended solids as compared to smaller media such as sand. For one-inch diameter or less media, size should be specified to achieve nitrate nitrogen removals up to 90% with methanol feed at temperatures as low as 12°C. Provisions should be made to remedy any head loss build up during operation.

7. Actual upflow contact time should be provided in the range of one to four hours at flow rates of 0.2 to 0.4 gallons per minute per square foot respectively, for white silica sand media with an effective size of 0.6 mm and a uniformity coefficient of 1.5.

8. A source of carbon, if necessary, shall be applied to upflow contact reactor influent based on guidelines outlined for suspended growth reactors. Design should be based on minimum wastewater temperature and maximum influent nitrogen concentration. Provisions shall be made for conveying nitrogen gas from the system.

9. If the upflow contactor is operated properly, additional clarification should not be required, unless the permit or certificate issued specifies an effluent suspended solids level of 10 mg/l or less.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-960 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-900, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-910 Biological nitrification

A. Biological nitrification is a process whereby autotrophic nitrifying bacteria convert ammonia nitrogen to nitrate nitrogen. This process is capable of removing most of the nitrogenous oxygen demand from domestic wastewater but does not remove the nitrogen itself. Should nitrogen removal be required, denitrification facilities must follow nitrification facilities. Although the nitrification phenomenon has been observed for some time, unit process design for optimum nitrification performances has only recently been employed.

If adequate performance data are not available, pilot plant evaluation for a particular application shall be completed prior to a full scale design proposal for upgrade of existing facilities. The recommended minimum or maximum design capacities are provided as guidelines and should be used if actual performance data or pilot plant evaluations do not provide sufficient design information.

B. Single stage design. Single stage systems should be considered for cases where nitrification must be provided only during periods when wastewater temperatures are above 13°C (55°F). For cases where nitrification must be provided for prolonged periods of temperatures less than 13°C, two stage activated sludge, biological nutrient removal, or combinations with fixed film growth systems should be considered.

1. The reactor design shall prevent short-circuiting. Plug flow basins should be used, with consideration given to dividing the reactor into a series of compartments by installing dividers across the basin width with ports through the dividers.

2. The aeration capacity shall be sized for the peak ammonia load. Where data are not available on ammonia variation, a peak hourly ammonia load (lbs/day) of 2.5 times the average load (lbs/day) should be assumed. The aeration supply should have a capacity determined by the following formula where automated blower controls linked to D.O. probes are provided:

| | Aeration supply = | 800 cu. ft. per total pounds of (BOD₅ +NOD) | | --- | --- | --- | | | where: NOD = | 4.6 x total Kjeldahl nitrogen (TKN) | | | BOD₅ = | 5 day BOD entering the aeration basin |

The peak BOD₅ and NOD must be used to ensure around-the-clock nitrification. The above air quantity should be doubled if automated blower controls are not provided. The design should maintain a D.O. concentration greater than 1.0 mg/l.

3. Aeration basin detention time should be based upon pilot plant data on the specific wastewater involved. Proper control of industrial discharges must be provided to minimize the possibility of biological toxins upsetting the nitrification rates. The following minimum criteria are suggested for municipal wastewaters free of significant industrial wastes and which are subjected to primary settling prior to aeration.

a. Sludge age = 10 days or more and F/M = 0.25 or less

where: F/M = total daily lbs BOD₅ to aeration basin divided by average lbs active biomass in aeration tank.

b. Active biomass is measured by the volatile portion of the suspended solids concentration within the aeration basin (MLVSS).

4. Nitrification will destroy 7.2 lbs of alkalinity per pound of NH3-N oxidized. If the wastewater is deficient in alkalinity, alkaline feed and pH control must be provided. Sufficient alkalinity should be provided to leave a residual of 30-50 mg/l after complete nitrification.

5. The design of final clarifiers will be similar to secondary clarifiers serving suspended growth reactors. The basin shall be equipped with a surface skimming device. A minimum biomass return rate of 25% and a maximum of 100% of the average daily flow shall be provided.

C. Two-stage design. To assure year round nitrification, a two-stage system is considered necessary. Superior performance of the two-stage systems for both BOD and NOD removal is attributed to the selection of an optimum biomass. The BOD₅ entering the second stage should be 50 mg/l or less to prevent a washout of the nitrifying bacteria. Properly operated contactors or high rate activated sludge systems should provide acceptable first stage systems. The second stage activated sludge system should remove at least 50% of the remaining BOD₅ and provide oxidation of 85% to 100% of the ammonia nitrogen.

1. The aeration basin should be of the plug flow type with a minimum of three baffled chambers. The basin should be sized to handle the "design peak" ammonia load at the lowest expected operating temperature and optimum pH.

2. Available information indicates that the optimum pH for nitrification of wastewater ammonia will be in the range of 8.2 to 8.6. Limited research results have indicated that the nitrifying bacteria can acclimate to pH values less than 8.0. It is recommended that the following information be used for guidance until additional operational information is available concerning the effect of pH:

| | pH | Fraction of Optimum Nitrification Rate | | --- | --- | --- | | | 8.4 - 8.6 | 1.00 | | | 8.2 | 0.98 | | | 8.0 | 0.95 | | | 7.8 | 0.88 | | | 7.6 | 0.80 | | | 7.4 | 0.68 | | | 7.2 | 0.58 | | | 7.0 | 0.48 | | | 6.8 | 0.38 | | | 6.6 | 0.30 | | | 6.4 | 0.24 | | | 6.2 | 0.18 | | | 6.0 | 0.13 |

Lime feed capability should be provided to maintain the pH in the aeration basin within optimum range. Quantities of lime needed should be based on (i) pH adjustment of incoming wastewater, (ii) destruction of natural alkalinity of 7.1 lb CaCo₃/lb NH3 oxidized, and (iii) maintaining residual alkalinity of 30-50 mg/l. When adequately buffered wastewaters are treated, it may be more economical to add additional tank capacity in lieu of operation at optimum pH.

3. Where performance data or pilot plant data are not available, the following nitrification rates may be employed in the design of the aeration basin. These rates are established for optimum pH. If the design is based on a pH range other than the optimum range, the nitrification rates should be reduced.

| | Temperature (°C) | Nitrification rate-lbs NH3 N nitrified/day/lb MLVSS | | --- | --- | --- | | | 5°C | .04 | | | 10°C | .08 | | | 15°C | .13 | | | 20°C | .18 | | | 25°C | .24 | | | 30°C | .31 |

A MLVSS concentration of 1,500-2,000 mg/l is recommended.

4. Either diffused air or mechanical aeration may be used. The dissolved oxygen concentration in the aeration basin should be based on obtaining 3.0 mg/l during average conditions but should never fall below 1.0 mg/l during peak flow conditions.

a. The design of the aeration system should incorporate: (i) critical wastewater temperature, (ii) minimum dissolved oxygen concentration, (iii) wastewater oxygen uptake rate, (iv) wastewater dissolved oxygen saturation, (v) altitude elevation of the treatment works, (vi) aerator efficiency.

b. The stoichiometric oxygen requirement of the wastewater can be computed and expressed as daily pounds using the following formula: (O₂ required) = BOD₅ from 1st stage + 4.6 (TKN)

5. This oxygen requirement is somewhat conservative since neither all of the BOD or NOD will be completely satisfied. In order to balance the summer oxygen requirement, provisions for one or more of the following reactor adjustments shall be included:

a. Reduce the MLVSS concentration;

b. Adjust the pH; or

c. Reduce the volume in service and increase the oxygen supply in remaining volume.

6. Design information for optimum settling rates is limited. However, it is recommended that the final clarifier design be similar to secondary clarifiers when operating data or pilot plant information is not available. A sludge return capacity of 100% to 150% of the average flow is recommended. Continuous and intermittent sludge removal capability should be provided. The waste sludge quantities typically will be small in comparison to first stage activated sludge quantities and may be combined with first stage activated sludges for further processing.

D. Fixed film design. Various types of attached growth or fixed film unit operations have been studied to determine their ammonia removal capabilities. Conventional standard rate contactors can provide a significant amount of nitrification during warm months but, in general, do not provide consistent year round nitrification. As in the suspended growth systems, a separate fixed film unit operation for nitrification is also deemed necessary to maintain consistent year round performance. However, the use of fixed film biomass support surfaces within aeration basins have demonstrated effective nitrification. Biomass support surfaces would typically be located in the downstream end of aeration basins, occupying the last one-third of the basin length. One of the major advantages that fixed film nitrification seems to have over suspended growth nitrification appears to be stability. Contactor type reactors used for nitrification typically include synthetic media for enhancing the surface area to volume ratio, which generally exceeds 25 square feet of total surface area per cubic feet of media volume. These fixed film contactors generally may be classified into one of the following types based on media construction:

a. Column or tower (top loaded).

b. Submerged surface (plates or strands).

c. Rotating disc (partially submerged).

1. Numerous variations in features and arrangements of fixed film contactors have been investigated. Significant nitrification should occur through a fixed film reactor, provided that the biomass surface area is properly sized and uniformly loaded with respect to influent levels of soluble BOD and ammonia nitrogen. No specific design loading criteria or guidelines are proposed at this time. A hydraulic loading of one gpm or less per square foot of specific media surface has resulted in efficient nitrification of secondary effluent in previous studies. Results of such studies also indicate that the organic loading should be maintained at or below 10 pounds BOD₅ per day per 1,000 cubic foot of media surface. The results of pilot plant studies for specific applications should provide design loading values. Review of fixed film nitrification design will be approached on a case-by-case basis. Influent wastewater characteristics affecting nitrification performance include:

a. Soluble BOD.

b. Ammonia Nitrogen.

c. Temperature.

d. pH.

e. Alkalinity.

f. Toxicity (nitrifier inhibitors).

2. The values of nitrification performance are valid for wastewater temperatures greater than 16°C (60°F). At a given loading rate, ammonia removal efficiency decreases nonlinearly with decreasing wastewater temperature.

| | Loading Rate (gpm/square foot) | Nitrification Performance % Removal of Ammonia | | --- | --- | --- | | | .50 | 90 | | | .75 | 85 | | | 1.00 | 80 | | | 1.50 | 75 |

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-970 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-910, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-920 Ammonia stripping

Ammonia stripping is the chemical-physical process by which dissolved ammonias are converted to gaseous ammonia and removed from the wastewater by changes in the surface tension of the air-water interface. The removal of ammonia nitrogen in treated effluent is the objective of this treatment unit operation.

1. Ammonia stripping typically involves the addition of lime to treated effluent (secondary or advanced treatment), followed by agitation in the presence of air. Wastewater effluent with an adjusted pH of 10 or more is usually allowed to flow downward through special media. The ammonia gas which develops is stripped out by the passing contact with outside air. These ammonia stripping towers become inoperable at temperatures below freezing (32°F or 0°C wet bulb). Therefore, before consideration can be given to ammonia stripping the minimum air temperature must be determined and provisions made to prevent freezing.

2. For effective conversion of ammonium to ammonia gas the system pH must be maintained at a minimum of 10.5 on a continuous basis. The elevation of the pH of the wastewater for conversion of the ammonium to ammonia should be selected from the ammonia solubility curve versus pH.

Ammonia stripping units may be of countercurrent operation or utilize cross flow air movements. Minimization of scale formation may be obtained by countercurrent operation.

3. The loading applied to the stripping reactor should not exceed 1,250 pounds of wastewater ammonia per hour per square foot of cross-sectional media area. The gas-liquid ratio shall normally be in the range of two to four expressed in terms of pounds per square foot per hour of air, divided by pounds per square foot per hour of wastewater.

4. The reactor media shall be (i) resistant to continuous loading of high pH liquid; (ii) consist of material which can be readily cleaned of scale deposits; and (iii) structurally sound. Facilities shall be provided for media cleaning, consisting of either manual means, or high pressure jets of water, or other approved means. Provisions shall be made for treatment of washdown waters and scale removed from the packing media.

5. In areas where reliability is questionable due to physical restraints of the system, a back-up system for nitrogen removal shall be required. Duplicate pumping units are required where pumping is employed to apply or remove the liquid.

6. Facilities shall be provided for post-pH adjustment.

7. Considerations shall be given to remote locations for stripping reactors in relation to bodies of water. Each proposal shall include sufficient information to substantiate expected plume dispersion areas and, if necessary, removal of ammonia gas from the plume.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-980 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-920, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-930 Ion exchange

Ion exchange may be utilized as a unit operation in which ions are exchanged between two different materials, usually a solid-liquid, but may involve a liquid-liquid exchange. In wastewaters, the exchange usually involves a solid resin material consisting of readily ionized compounds. Treated effluent (secondary or advanced treatment) passes at a controlled rate through a certain volume of resin within a contactor. The removal of 90-95% of the ammonia nitrogen can be achieved by such treatment. Ion exchange may also be utilized for removing heavy metals, nitrates, phosphates, sulfides, phenol, and chlorophenols from wastewaters.

1. The process specifically designed for ammonia nitrogen removal uses a clinoptilolite resin. Many of the design considerations are applicable to other types of ion exchange treatment, including:

a. Flow, total dissolved solids, suspended solids, ion specific concentrations, alkalinity, pH, and resin structure.

b. The rate of exchange based upon selectivity of the resin, the exchange capacity of the resin, waste strength, and the effluent requirements.

c. The exchange capacity and break through point.

d. Certain contaminants which create treatment problems in the operation of ion exchange. Where these contaminants exist, their removal shall be provided for if necessary through the methods of pretreatment listed in Table 10.

| | TABLE 10. METHODS OF PRETREATMENT. | | | | --- | --- | --- | --- | | | Contaminant | Effect | Removal | | | Suspended Solids | Blinds or seals resin media with particles | Coagulation and filtration | | | Organics | Large molecules (e.g. humic acids) will foul strong base | Carbon absorption or use of weak base resins only resins (high pH) | | | Oxidants | Slowly oxidizes resins. Functional groups become liable (unstable) | Avoid prechlorination or neutralize the chlorine. | | | Iron, Manganese, and Dissolved Solids | Coats resin with charged particles. | Chemical clarification or aeration depending on nature of solids. |

2. Clinoptilolite mineral should be crushed and screened resulting in particle sizes in the range of 20 X 50 mesh. Ion exchange capacities and selectivity shall be determined in pilot plant studies for the particular wastewater in question. The pH of the influent to the exchange resin contactor should be in the range of 4-8.

3. The following parameters shall be considered for design of the ion-exchange contactor:

a. Flow rates in the range of five to 15 resin volumes per hour are normal but the specific design loading shall be confirmed by pilot studies or performance data.

b. The contactors may be gravity or pressure type units.

c. A minimum of two units is required. The number of contactors required is governed by the length of cycle which can be achieved while still meeting effluent quality goals. This shall be determined by pilot tests on the specific wastewater involved.

d. The number of contactors shall be adequate to treat the maximum flow rate in compliance with appropriate permit or certificate requirements, with one contactor out of service for maintenance and an appropriate number out of service for regeneration.

e. Means must be provided to uniformly distribute the influent flow and regenerant flow over the entire area of the contactor.

f. Make-up clinoptilolite storage shall be provided, as well as a water slurry transfer system to move the clinoptilolite from storage to the contactor.

g. Facilities to wash the clinoptilolite prior to transfer to the contactor shall be provided. Means to transfer clinoptilolite from a contactor to the storage system for washing should also be provided.

h. The process shall be controlled by a control system which will automatically initiate and program the regeneration cycle and return the contactor to normal service.

i. Each contactor shall have a flow totalizer. Also, each contactor shall have a flow rate controller to maintain equal flows to all contactors.

j. Each contactor shall be equipped with an efficient surface wash device.

4. With a neutral regenerant, provisions shall be made for a contactor backwash supply with minimum capacity equivalent to 10 gpm/sq ft of contactor area. If wastewater temperatures exceed 25°C (72°F) for prolonged periods, a greater capacity may be required. If a high pH regenerant is used, a minimum backwash capacity of 15 gpm/sq ft should be provided.

5. Regeneration facilities shall be provided for the ion exchange resin. Regeneration may be by high pH regenerant or neutral pH regenerant. Supportive data from fully operational units or from a pilot plant shall be provided to demonstrate acceptability of the proposed regeneration method.

6. Treatment or recovery of regenerant shall be provided. The design should provide for removal of ammonia with recovery of the regenerant through either (i) electrolytic treatment at neutral pH, or (ii) air stripping, or (iii) steam stripping, at elevated pH. Supportive data from a fully operational unit or pilot plant shall be provided to demonstrate acceptability of electrolytic treatment at neutral pH and steam stripping at elevated pH.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-990 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-930, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Article 1 Reports

9VAC25-790-940 Preliminary Engineering Report

Article 1 Reports

A. A letter of transmittal consisting of a one-page or more letter typed on the submitting firm's letterhead should be submitted with the Preliminary Engineering Report and should include the following items:

1. Confirmation of a submission of the report to the client;

2. Statement of feasibility of constructing the project; and

3. Identification of all applicable areawide studies project, drainage basin, service area or metropolitan area plans with which the project has been coordinated.

B. A title page shall be included at the beginning of the report and should contain the following information:

1. Title of project and project number;

2. Municipality, county, etc.;

3. Names of officials, managers, superintendents;

4. Name and address of firm preparing report;

5. Seal and signature of appropriate professional in charge of project.

6. Grant number of grant project; and

7. If an expansion, existing certificate or permit number.

C. A table of contents shall be included on the report and should include such listings as:

1. Section headings, chapter headings and subheadings;

2. Maps;

3. Graphs;

4. Illustrations, exhibits;

5. Diagrams; and

6. Appendices.

Number all pages; cross reference by page number.

D. A summary of the findings, conclusions, and recommendations shall be included in the report and should address the following information:

1. Findings. Summarize the findings for the client.

a. Population and design flows--present, design (when), ultimate.

b. Land use and zoning--portion contributed by residential, commercial, industrial, greenbelt, etc.

c. Sewage characteristics and concentrations-portions of total hydraulic, organic, and solids loading attributed to residential, commercial, and industrial fractions and description of sewage nondomestic in character.

d. Sewerage system projects--immediate needs to implement recommended project and deferred needs to complete recommended projects, including pump station, force mains, appurtenances, etc.

e. Selected process--characteristics of process and characteristics of output.

f. Receiving waters--existing water quality and quantity, classifications and downstream water users, and impact of project on receiving water.

g. Total proposed project costs considered for each alternative.

h. Changes—alert client to situations that could alter recommended project.

2. Conclusions. Describe the project as recommended to client for construction.

3. Recommendations. Summarize step-by-step actions, for client to follow to implement conclusions:

a. Official acceptance of report;

b. Adoption of recommended project;

c. Submission of report to regulatory agencies for review and approval;

d. Authorization of engineering services for approved project (construction plans, specifications, contract documents, etc.);

e. Legal services;

f. Enabling ordinances, resolutions, etc., required;

g. Adoption of sewer-use ordinance;

h. Adoption of operating rules and regulations; and

i. Time schedules--implementation, construction, completion dates, reflecting any applicable certificate or permit enforcement actions.

E. An introduction shall be included in the report and should describe the following:

1. Purpose. Reasons for report and circumstances leading up to report.

2. Scope. Coordination of recommended project with area-wide, project, drainage basin, service area or metropolitan area plan and guideline for developing the report.

3. Background: appropriate past history.

a. Existing area, expansion, annexation, intermunicipal service ultimate area.

b. Drainage basin, portion covered.

c. Population growth, trends, increase during design life of facility (graph).

d. Residential, commercial and industrial land use, zoning, population densities, industrial types and concentrations.

e. Topography, general geology and effect on project.

f. Meteorology, precipitation, runoff, flooding, etc., and effect on project.

g. Existing ordinances, rules and regulations, including defects and deficiencies, etc.

h. Recommended amendments, revisions, or cancellation and replacement of local ordinances.

i. Sewer-use ordinance (toxic, aggressive, volatile, etc., substances).

j. Surcharge based on volumes and concentration for industrial waste waters.

k. Existing contracts and agreements (intermunicipal, etc.).

l. Enforcement provision including inspection, sampling, detection, penalties, etc.

F. The report shall include investigative considerations, including an existing facilities evaluation that should address the following as appropriate:

1. Existing sewerage systems:

a. Inventory the existing sewers.

b. Indicate the separation or isolation from water supply wells.

c. Review the collection system capacities and adequacy to meet project needs (structural condition, hydraulic capacity).

d. Tabulate any necessary pipeline or manhole testing, including gauging and infiltration.

e. List any existing points of overflows and required maintenance, repairs and improvements.

f. Outline any necessary rehabilitation, including repair, replacement, and stormwater separation requirements.

g. Establish renovation priorities.

h. Present recommended annual program to renovate sewers.

i. Indicate required annual expenditure.

2. Existing site:

a. Area for expansion.

b. Characteristics of terrain (drainage control).

c. Subsurface conditions.

d. Isolation from habitation (buffer zones).

e. Isolation from water supply structures.

f. Enclosure of unit operations, odor control, noise control.

g. Flood protection.

3. Existing treatment works:

a. Capacities and adequacy of unit operations (tabulate).

b. Relationship or applicability, or both, to proposed project.

c. Age and condition.

d. Adaptability to different usages.

e. Structures to be retained, modified, or demolished.

4. Existing sewage characteristics:

a. Water consumption (from records) (total, unit, industrial).

b. Sewage flow pattern, peaks, total, design flow.

c. Physical, chemical, and biological characteristics, and concentrations.

d. Residential, commercial, industrial, infiltration fractions, considering organic solids, toxic, aggressive, etc., substances (tabulate each fraction separately and summarize).

5. Environmental impact of sewage on receiving waters:

a. Sewage and industrial discharges upstream.

b. Receiving water base flow, min. mean-seven consecutive day drought flow with 10-Year Return Frequency (7Q10).

c. Characteristics (concentrations) of receiving waters.

d. Downstream water uses including water supply, shellfish, recreation, agricultural, industrial, etc.

e. Tabulation of effects on receiving waters.

f. Correlation of treatment works performance versus receiving water requirements.

G. The report shall include a proposed facility evaluation that should address the following as appropriate:

1. Sewerage system.

a. Inventory of proposed additions.

b. Isolation from water supply wells, reservoirs, facilities, etc.

c. Area of service.

d. Unusual construction problems.

e. Utility interruption and traffic interference.

f. Restoration of pavements, lawns, etc.

2. Site requirements. Comparative advantages and disadvantages as to cost, hydraulic requirements, flood control, accessibility, enclosure of unit operations, odor control, landscaping, etc., and isolation with respect to potential nuisances and protection of water supply facilities.

3. Sewage characteristics.

a. Character of sewage necessary to ensure amenability to process selected.

b. Need to pretreat industrial wastewater before discharge to sewers.

c. Portion of residential, commercial, industrial wastewater fractions to comprise projected growth.

d. Impact of proposed discharge on receiving waters--reliability requirements.

e. Tabulation of treatment performance versus receiving water standards.

f. Listing of effluent limitations.

4. Project alternatives.

a. Describe and delineate (line diagrams) each alternative.

b. Preliminary design for cost estimates.

c. Estimates of project's cost (total) (dated, keyed to construction cost index, escalated, etc.).

d. Advantages and disadvantages of each alternative.

e. Individual differences, requirements, limitations.

f. Select preferred alternative.

g. Justify selection and present tabulated comparisons.

h. Characteristics of treatment process performance.

i. Operation and maintenance expenses.

j. Annual expense requirements (tabulation of annual operation, maintenance, personnel, debt obligation).

5. Selected alternative.

a. Construction schedule.

b. Adaptability to future needs.

c. Design flow, variances, and effects on process.

d. Process functions and system backup.

e. Sludge management options.

f. Method of processing of excess combined sewage.

g. Outfall requirements, dispersion, etc.

6. Legal, financing and other considerations.

a. Necessary enabling legislation, ordinances, rules, and regulation.

b. Statutory requirements and limitations.

c. Contractual considerations on intermunicipal cooperation.

d. Public information and education.

e. Effect of state and federal assistance.

f. Exhibit conformance with all applicable federal requirements.

H. The report shall include technical information and design criteria that should address the following as appropriate:

1. Sewerage system.

a. Design tabulations--flow, size, velocities, etc.

b. Regulator or overflow design.

c. Pump station calculations.

d. Special appurtenances.

e. Stream crossings.

f. System map (downstream capacity).

2. Treatment works.

a. Criteria selection and basis of design for principal conventional features and all nonconventional features of the treatment process.

b. Hydraulic and organic loadings, minimum, average, maximum, and effect.

c. Dimensions of unit operations features within treatment process.

d. Rates and velocities of flow through the treatment process.

e. Detention periods provided for unit operations.

f. Concentration values projected for influent and effluent flows.

g. Recycle flows and rates within total treatment process.

h. Chemical additive control methods.

i. Physical control methods for rates of flow, etc.

j. A separate tabulation for performance ratings and treatment efficiencies of unit operations relative to residual solid and liquid processing.

k. Sludge management method.

l. Process configuration, interconnecting piping, processing, flexibility, etc.

m. Hydraulic flow profile.

n. Residual solids or sludge processing, including dewatering.

o. Unit operations flow diagram with capacities, etc.

3. Laboratory.

a. Physical and chemical tests and frequency to control process.

b. Time for testing.

c. Space and equipment requirements.

d. Personnel requirements--number, type, qualifications, salaries, benefits (tabulate).

4. Operation and maintenance.

a. Routine and special maintenance duties.

b. Time requirements.

c. Tools, equipment, vehicles, safety, etc.

d. Personnel requirements--number, type, qualifications, salaries, benefits (tabulate).

e. Processes needing chemical addition.

f. Chemicals and feed equipment.

g. Pump stations or regulator or overflow inspection and repair.

h. Flow gauging.

i. Industrial sampling and surveillance.

j. Ordinance enforcement.

k. Equipment requirements.

l. Trouble-call investigation.

m. Industrial pretreatment permits.

I. Management systems shall be described in the report including the following information as appropriate:

1. Personnel—recommended operator classification.

2. Equipment.

3. Chemicals.

4. Utilities.

5. Outline unusual specifications, construction materials, and construction methods.

6. Maps, photographs, diagrams (report size).

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-1000 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-940, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-950 Contents for an operation and maintenance manual

A. General. This section contains suggested and required contents for an Operations and Maintenance Manual. Items followed by an asterisk (*) should be submitted for treatment works or sewerage systems with design flows greater than or equal to 1.0 mgd.

1. Title page. The manual shall have a cover page that gives the title of the manual, the date the manual was prepared in final form, and the names of the authors of the manual.

2. Table of contents. The manual shall contain a table of contents that lists chapters and provides sufficient subsections in each chapter to permit easy identification of topics.

3. Introduction. The manual shall contain an introduction that briefly describes the organization and purpose of the manual. The introduction shall emphasize that the manual is operational in scope and will be updated so that it is not a static compilation of facts.

4. Definitions and terminology. Terms such as "BOD₅" and "Suspended Solids" shall be defined in this section of the manual.

B. Permit requirements.

1. CTO. The manual shall give the number of the CTO for the particular treatment works or sewerage system. The permit requirements shall be listed and discussed. This discussion should include, but is not limited to the following:

a. The manner, nature, volume, and frequency of the discharge permitted.

b. Procedures for and frequency of any domestic or industrial waste monitoring. This may be referenced to the laboratory testing section, but should include a brief table of testing procedures and sampling frequencies.

c. Requirements for the operators concerned with particular treatment works or sewerage systems as outlined by the State Board for Certification of Operators of Water and Wastewater Works and these regulations.

d. Legal penalties under state and federal law applicable to the operator for improper operations, records, or reports.

e. Any additional conditions or special restrictions specified by the State Water Control Board (SWCB), Department of Environmental Quality (DEQ), or any other concerned regulatory agency.

f. Any changes in treatment works or sewerage system classification due to future upgrading or expansion that may have been included in the original construction plans.

g. Time period for which permit is valid (expiration date) and any required upgrading that may have to be accomplished by the time for renewal.

A copy of the certificate and permit issued shall be included in this section with proper reference made to the appropriate regulations of the SWCB and DEQ.

2. Spill reporting. This section shall include a discussion of the federal/state laws and the SWCB/DEQ regulations and policies requiring reporting of a bypass/spill condition. This discussion should include, but is not limited to, the following:

a. The owner's responsibilities and liabilities;

b. Penalties for violations;

c. Reporting procedures and requirements;

d. Telephone numbers for immediate reporting to regulatory agencies and potentially affected downstream users; and

e. Sample reporting forms and instructions for completing them.

C. Process descriptions.

1. A flow diagram of the treatment works or sewerage system that shows all important components of the system.

2. Main line, recirculated, effluent, and sludge flows, etc., and design average/peak values of such flows.

3. A clear and concise description of each system component and its purpose, function, and type of treatment.

4. The expected influent/effluent concentrations and design efficiencies for unit operations and the treatment process.

5. This section may be combined with the "Operation and Control" section.

D. Operation and control.

1. Unit operation process description. The manual shall provide a general operational description of each unit operation. The descriptions should be brief with appropriate references to more detailed discussions of the unit operations. The description should physically trace the sewage flow through the unit operation and contain information on design efficiency. Pipeline and control schematics, valve location diagrams and operation keys, hydraulic/organic loadings, etc., should be included. Supplementary photographs and/or schematic diagrams should be included.

2. Relationship to adjacent unit operations. The function of unit operations located upstream, downstream or off-line from other unit operations should be described as they relate to other unit operations in the treatment process being considered.

3. Classification and control. Classification of each unit operation as conventional, I/A, etc., shall be included. The manual shall list and discuss the specific operational information and control techniques available for each major unit operation in the treatment process. This section shall be closely correlated with the specific treatment works or sewerage system operation. Process control variables such as recirculation ratios, valve/gate positions, pump controls, chemical feed rates should be included.

4. Common operating problems. Each major unit operation within the treatment works or sewerage system shall be analyzed and potential common operating problems defined. Potential problems that are peculiar to the treatment works or sewerage system under consideration shall be discussed. General problems that are adequately described in other sources shall be listed and properly referenced. Control of operating problems shall address the specific treatment works or sewerage system operation.

5. Laboratory controls. The manual shall list the laboratory tests that furnish information to evaluate and control the performance of the unit operation under consideration. Minimum testing requirements may be included in the operations permit. Expected ranges for the results of these tests shall also be given.

6. Start-up. The manual shall outline the steps for start-up of the unit operation. Information shall be provided on the special monitoring and controlling of the unit operation where treatment objectives are to be met.

7. Specific treatment works or sewerage system operation. The manual shall discuss (i) the normal operation, or the designed conventional loading conditions, of each unit operation, and (ii) alternate operation for unusual conditions for each unit operation. Information provided in this section shall enable the operator to operate the treatment works or sewerage system when it is not in the "normal operation" mode and shall be checked by the designer. It shall include methods and procedures with which to return the treatment works or sewerage system to "normal operation" following the proposed range of alternate operation conditions that may be encountered. It shall also include procedures and a logical decision-making process outline for the modifications of the original design "normal operation" and establishment of alternative operation conditions.

8. Emergency operation and failsafe features. The manual shall list and discuss the emergency operating procedures for the normally expected range of emergencies and failsafe features, particularly flood events, for each sewage treatment unit operation.

9. Process chemicals. A list of process chemicals shall be provided indicating minimum quantities to keep on hand and methods and precautions for storage.

E. Personnel responsibilities.

1. Operational and managerial responsibility. The responsibilities of both the operational personnel and the management personnel shall be clearly defined.

2. Staffing requirements and qualifications. This section is to reflect the personnel qualifications/certification and numbers for the treatment works or sewerage system. This should be formulated considering recommendations from the design engineer and the concerned regulatory agencies. The staffing plans for administration, supervision, operation, and maintenance shall be included. Certain positions in the staffing pattern that require certification by the state law shall be indicated in this section. Attendance requirements and routine work schedules with general responsibilities shall be presented. A delineation of training needs for administration and operational personnel shall be outlined in this section.

F. Laboratory testing.

1. Purpose and discussion. This section of the manual should explain the role of the laboratory in process control in providing an operating record for the treatment works and in analyzing problems within a unit operation.

The tests to be performed should be listed or charted, or both as appropriate, for permit required tests, such as discharge monitoring reports and process control tests. Sampling locations, frequency, etc., and a brief description of the analytical test and purpose should also be given. The detailed discussion of how each type test can be used in controlling or monitoring a specific unit operation shall be given in the "Operation and Control" sections. This portion of the manual should be tailored according to the laboratory staff capabilities of the treatment works under consideration. The following information shall be provided in this chapter.

2. Sampling program. This section of the manual shall include:

a. Sampling methods.

(1) Specific methods for obtaining grab and composite samples.

(2) Locations of all sampling points.

(3) Sampling procedures, including where samples are to be collected, and any special techniques, such as how to make up a composite sample or how to operate automatic samplers if applicable.

(4) Preservation of samples prior to analytical measurements.

(5) Sampling equipment and safety precautions (requirements).

(6) Projected range of test results on influent and effluent samples.

b. Equipment and chemicals.

(1) Lists of necessary laboratory equipment and proper usage noting importance of quality control.

(2) List of laboratory chemicals with common names, chemical names and formulas.

(3) List of suppliers' names, quantities used and shelf lives.

(4) Discussion of laboratory inspection.*

c. Operator/laboratory references. All essential references should be provided for proper laboratory operation. The detailed procedures for performing each test do not have to be included but should be properly referenced to one or more of the laboratory references provided.

d. Interpretation of laboratory tests.

(1) Expected ranges of typical results shall be included with explanation of typical transient differences from typical values.

(2) Detailed discussion in "Operation and Control" chapters.

e. Laboratory records. A brief discussion of the purposes for laboratory records recommended for use by the treatment works should be included.

G. Records and reports.

1. Daily operating log. This section of the manual shall delineate the requirement that operator's worksheets and daily operating logs be maintained. A sample log shall be included in the appendix.

2. Operational parameters. The daily log should outline the routine operational parameters for each unit operation, which shall include the minimum operational control tests required. These shall be adequate to enable proper operation of the units.

3. General information. This section of the manual should explain the operating conditions that should be recorded daily, such as:

a. Unusual conditions (operational and maintenance).

b. Accidents to personnel.

c. Complaints (odor, etc.).

d. Power consumption.

e. Plant visitors.

f. Personnel on duty/call.

4. Laboratory records. An example record sheet shall be included in the appendix. Information on the laboratory record sheet should include the following:

a. All lab tests to be performed with provisions for listing test results and summaries.

b. Wastewater flow and surrounding weather conditions at the time of sampling.

c. Chemicals used.

d. Analyst's name or initials.

e. Laboratory worksheets.

5. Monthly report to state agencies and federal government. The records section of the manual shall explain the responsibilities of the operator to report data to the appropriate agency, the reporting deadlines and how the monthly reports apply to the permit requirements. Sample forms of the monthly operation report, discharge monitoring report, etc., shall be provided in the manual's appendix.

6. Industrial and septage contributors. An inventory of significant industrial waste contributors shall be maintained. All sewage handlers that deposit septage at the treatment works shall be identified with pertinent information recorded, such as name of hauling company, volume deposited, date deposited, and description of the source of the septage.

7. Annual report.

a. This section of the manual shall discuss annual reports and who should prepare the report.*

b. The annual report should include management data relative to cost of operation.

c. Operating data included in the annual report should include average daily flow and average influent and effluent BOD and suspended solids for each month.

d. The annual report should include a graph showing at least 10 years of record (if available); personnel data; and budget data. An example annual report format shall be included in the appendix as applicable.

8. Additional records. The manual shall include specific information where records are available for reference and shall include:*

a. As-built engineering drawings.

b. Copy of construction specifications.

c. Equipment suppliers' manuals.

d. Data cards on all serviceable equipment.

e. Construction photographs.

9. Operating costs and record keeping. The manual shall provide a suggested operating cost breakdown for the treatment works or sewerage system.*

A record system for monitoring the cost shall be recommended.*

10. A personnel records procedure should be recommended that would include training.*

11. A record of emergency conditions affecting the treatment works or sewerage system shall be maintained. A system for maintaining these records shall be recommended.*

H. Maintenance.

1. Equipment record system. The maintenance chapter of the manual shall recommend an equipment record system. The equipment record system shall contain information on each item of operating equipment, such as common name, process function, date of purchase, manufacturer, serial number, availability of spare parts and previous maintenance. Sample equipment record forms and provision that the forms be made a supplemental index to the manual shall be included.

2. Equipment numbering system. A numbering system to identify each item of equipment requiring maintenance shall be provided for easy identification and to help ensure that all equipment receives proper attention.

3. Equipment catalog. A catalog system shall be prepared that lists equipment descriptions, locations and equipment numbers. The catalog shall contain the following data for all major items of equipment. The data shall include, but not be limited to, the following information:

a. Equipment name;

b. Vendor;

c. Model Number;

d. Serial Number;

e. Make or Type;

f. Pertinent mechanical/electrical data; and

g. Source of Supply.

4. Planning and scheduling. The manual shall make recommendations on planning and scheduling maintenance tasks. Documentation showing the lubrication and other preventive maintenance task schedules shall be provided. The manual shall recommend that maintenance records be kept so that a preventive maintenance schedule can be established. The maintenance records shall provide for inclusion of maintenance problems and curative procedures. A work order system could be established to initiate all corrective maintenance tasks.

5. Storeroom and inventory system. The manual shall make recommendations for establishing a storeroom and inventory system. The manual shall contain the spare parts inventory established in accordance with these regulations. The inventory shall list the minimum and maximum quantities of the spare parts, the equipment in which they are used, their storage location, replacement procedures and schedules, reference to addresses of suppliers, and other pertinent information.

6. Costs and budgets for maintenance operations. The section shall provide guidelines for the determination of maintenance cost and the development of maintenance budgets.

7. Housekeeping. The manual shall recommend housekeeping activities to be performed.

8. Special tools and equipment. The manual should provide recommendations or appropriate references on tool room procedures, the use of tool boards and maintenance required for all special tools, where appropriate.

9. Lubrication. The lubrication section of the manual shall appropriately reference each equipment's lubrication specification. An alternate lubricants chart shall be provided in this section. The information required by the above section should be assembled into a lubrication guidebook and be included as an appendix to the manual.

10. Electrical equipment information. The manual shall list each major item of electrical equipment not listed in the equipment catalog.

11. Warranty provision. The manual should provide a listing of all equipment warranties and pertinent features of each replacement guarantee. Copies of the warranties shall be included in the manual's appendix.

12. Service contracts. The manual shall include a listing of all prearranged outside contracts for service and repair work.

13. Equipment reference handbook list. A list of equipment handbooks for reference should be included.

I. Emergency operation and response program.

1. Objectives. The objectives of an Emergency Operating and Response Program include:

a. Eliminating or minimizing adverse effects from emergency situations affecting the treatment works or sewerage system and/or employee welfare.

b. Developing procedures for properly responding to emergencies.

c. Providing instruction for personnel.

d. Providing inventories of available emergency equipment and outlining existing mutual aid agreements and contracts with outside organizations for specialized assistance.

2. Vulnerability analysis*. A vulnerability analysis shall be conducted and reported in the manual. A vulnerability analysis is an estimation of the degree to which the treatment works or sewerage system is adversely affected, in relation to the function it must perform by an emergency condition. Expected natural disasters such as flooding must be investigated and the effects of these disasters must be studied in order to estimate the treatment works' or sewerage system's performance.

3. Methods to reduce vulnerability. Priorities for repair of the treatment works or sewerage system and alternate equipment provisions in case of light or severe damage are to be indicated. To reduce vulnerability, training procedures for emergencies for regular and auxiliary personnel should be included.

4. Emergency equipment inventory. The manual shall require that, using the spare parts inventory and the results of the vulnerability analysis, any additional equipment and supplies needed for emergencies be stockpiled or be available through mutual aid agreements or contracts. These arrangements must be delineated.

5. Preserving system records. The manual shall contain procedures for keeping documents containing pertinent information about the treatment works or sewerage system safe from potential disasters.

6. Auxiliary personnel requirements. Procedures for obtaining trained auxiliary personnel in cases of emergency shall be included in the manual. Procedures for alerting these personnel should be outlined and periodically updated.

7. Emergency equipment testing. A schedule for testing of back-up systems such as standby power should be included.

J. Safety.

1. Requirements. The manual shall inform personnel of the known hazards, preventive measures, and emergency procedures applicable to, but not limited to, the following safety items:

a. Electrical hazards;

b. Mechanical equipment hazards;

c. Explosion and fire hazards;

d. Biohazards, i.e., bacterial type infection;

e. Chlorine hazards;

f. Oxygen deficiency and toxic gases;

g. Laboratory hazards;

h. Safety equipment; and

i. Process chemical handling and storage.

2. Safety references. The manual shall contain a list of safety references of interest to operating personnel. The manual shall provide a list of all emergency telephone numbers. The manual should provide a discussion of the importance of good housekeeping practices in relation to safety, a list of available safety equipment for process units, a list of number and location of first aid kits and manuals, a list of safety rules for process and laboratory equipment, and a key to system piping paint color coding.

K. Utilities*.

1. Requirements. This section shall list the utilities being used, the sizes and capacities of the lines serving the treatment works or sewerage system, emergency cutoff procedures, and the personnel to contact within each utility company to ensure proper response to routine and emergency situations.

2. Electrical. This section shall contain a brief statement on the reliability of electrical service. This statement should be based on studies of past performance and discussions with utility personnel. The discussion should include clearly defined breakpoints in responsibility for service facilities between the utility company and the treatment works or sewerage system owner.

3. Telephone. The telephone system, if used as an alarm system, should be described and a statement made as to "failsafe" capabilities.

4. Natural gas. The natural gas utility company should be named and a description of the service given. A statement of reliability should be made.

5. Water. The water system should be described, and a statement of reliability should be made.

6. Fuel oil. The manual should list the sources for fuel, the capacities of storage facilities and procedures for ensuring adequate supplies year round.

L. Appendices.

1. Requirements. This section of the manual shall include any additional or supplemental material not suitable for inclusion in the text. As stated in 9VAC25-790-950 A, items followed by an asterisk (*) are required only for treatment works or sewerage systems with design flows greater than or equal to 1.0 mgd. The appendix shall begin with an index.

The following do not have to be duplicated in the appendices if included elsewhere in the manual.

a. VPDES permit. A copy of any applicable permit shall be included here if not already included elsewhere in the manual.

b. Example forms. An example of all forms, including state and federal reporting forms, laboratory record forms, etc., to be used shall be included. Instructions for completing each form shall be given.

c. Equipment record example. The equipment record example with location and responsible personnel shall be included.

d. Personnel. Names, addresses and telephone numbers of personnel should be included.

2. Schematics. Any basic flow diagrams, process flow sheets, bypass piping diagrams and hydraulic profiles that are not included in the engineering drawings or manual text shall be placed in an appendix.

3. Valve Indices.* Valve indices shall be included in an appendix. Valve indices shall be one, or a combination, of the following:

a. A complete tabulation of principal valves, each separately numbered and identified as to type, location, and function.

b. A coding system for each type of valve, together with a prefix or suffix identifying its liquid content or process function, and location of each valve coded on the construction drawings.

c. Diagrams for principal valves, clusters of valves, and adjacent piping that are buried.

d. Location through at least two measurements to nearby permanent above-ground objects.

4. Any chemicals used and suppliers shall be listed.

a. Storage considerations shall be discussed.

b. Capacities of dry chemical storage areas and liquid storage tanks shall be described.

5. A list of the lab chemicals by common name, chemical name and the chemical formula shall be provided. Suppliers' names, quantities normally needed, and shelf life of each shall be given. Storage considerations shall be discussed.

6. An appendix shall give the design criteria for all unit operations and processes.*

7. The manual furnished with each piece of equipment shall be bound separately, and the index for these shall be included in an appendix.

8. A list of potential sources for the types of repairs and equipment parts required shall be made and listed in appendix.*

9. A complete and accurate set of as-built engineering drawings with included shop drawings shall be furnished immediately following testing and start-up.*

10. A complete set of engineering drawings shall be furnished sufficiently in advance of start-up to permit proper training of operating and maintenance personnel.*

11. Construction photos shall be taken throughout the construction phase and shall be included or indexed in an appendix. All pictures shall be labeled and dated.*

12. Copies of warranties and performance bonds shall be placed in an appendix.*

13. If there is an existing infiltration ordinance, a copy shall be included.*

14. If there is an existing industrial waste ordinance, a copy shall be included in an appendix.*

15. The coding system selected for use shall be outlined.*

16. The various types of coatings to be used are to be listed with a suggested painting schedule. The manufacturer's trade name and coating number and color shall be specified.*

17. A list of essential references recommended for immediate procurement and a second list giving references that may be obtained at a later date for use in operation and maintenance shall be provided.*

18. The Lubrication Guidebook shall be included.*

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-1010 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-950, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-960 Influent and effluent sampling

A. Sampling tests and frequency. Table C lists the typical recommended minimum sampling program schedules for all sewage treatment works (STW).

B. STW effluent tests and frequency of effluent testing and frequency of other sampling for a treatment works will be provided in the VPDES permit or the VPA permit.

| TABLE C. TYPICAL SAMPLING PROGRAMS FOR SEWAGE TREATMENT WORKS. | | | | | | | --- | --- | --- | --- | --- | --- | | PLANT SIZE | >2.01 MGD | 1.0-2.0 MGD | 0.101-0.999 MGD | 0.401-0.1 MGD | 0.0011-0.04 MGD | | Flow | Totalizing, Indicating & Recording | Totalizing, Indicating & Recording | Totalizing, Indicating & Recording | Totalizing, Indicating & Recording | Estimate | | BOD_5,TSS, TKN | 24- HC 1/ Day | 24- HC 5 Days/ Wk | 8-HC 3 Days/ Wk | 4-HC 1 Day/ Wk | Grab 1/month | | Total Nitrogen* Total Phosphorus* | 24- HC 1/ Week | 24- HC 1/ Week | 8-HC 1/ 2 Weeks | 4-HC 1/ Month | Grab 1/month | | TRC, Contact tank** | Grab 1/2 Hr | 4/Day at 4 Hr.Intervals | 3/Day at 4 Hr.Intervals | 3/Day at 4 Hr.Intervals | Grab 1/Day | | Fecal Coliform** | Grab 1/Day 10am-4pm | Grab 5 Days/Wk 10am-4pm | Grab 3 Days/Wk 10am-4pm | Grab 1/Week 10am-4pm | Grab 1/Month 10am-4pm | | pH, DO, TRC Effluent | Grab 1/Day | Grab 1/Day | Grab 1/Day | Grab 1/Day | Grab 1/Day | | WQS Parameters (Toxics) | 1/8,24 HC or 1/month | 1/8,24 HC or 1/month | 1/8, 8HC or 1/month | 1/8, 4HC or 1/month | Grab 1/month |

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-1020 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-960, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-970 Operational testing and control

A. Minimum tests and frequency. Table D-l contains the typical minimum sampling and testing program for operational control of treatment works greater than 40,000 gallons per day.

B. Sampling instructions. The following sampling instructions should be followed when taking samples:

1. When samples are taken for BOD₅, COD, volatile suspended solids, and suspended solids on influent and effluent streams, they should be composite samples.

2. All other samples should be grab samples.

| TABLE D-1. RECOMMENDED OPERATIONAL AND CONTROL TESTING. | | | | --- | --- | --- | | Unit Process Parameters | Testing Location/Frequencies (see key for description) | | | 1. Primary | | | | | a) DOB₅/TSS/TVS | 1/bw; 2,3/2 | | | b) settleable solids | 2, 3/d | | | c) pH | 2,3,8/d | | 2. Suspended Growth Reactor | | | | | a) BOD₅/nutrients | 1/bw; 2/w; 3/bw | | | b) TSS/TVSS | 6/d; 13/w | | | c) 30 minute SSV/pH/DO | 6/d | | | d) microscopic exam. | 6/w | | 3. Attached Growth Reactors | | | | | a) BOD₅/nutrients | 1/bw; 2/w; 3/bw | | | b) TSS/TVS/microscopic exam. | 14/w | | | c) pH, DO | 1/d; 2/w | | 4. Ponds of Lagoons | | | | | a) BOD₅/nutrients | 1/w; 2/w | | | b) TSS/microscopic exam. | 1/w; 2/w; 7/w | | | c) pH/DO/temperature | 1/d; 7/d | | 5. Anaerobic Digestion | | | | | a) TS/TVS | 6,11,12/w; 8,9,10,13/bw | | | b) pH/alkalinity/temp. | 6,12/d; 11,15/bw; 6/w; 13/bw | | 6. Aerobic Digestion | | | | | a) TS/TVS | 6,11,12/w; 13/bw | | | b) settleable solids | 6/d | | | c) pH/temperature | 6/d; 15/bw | | | d) microscopic exam. | 6/w; 13/bw | | 7. Sludge Thickening | | | | | a) TS/TVS | 1,2/d | | | b) settleable solids | 6/d | | 8. Sludge Dewatering | | | | | a) TS/TVS | 1,2,4,12/q | | | b) pH/alkalinity | 15/q | | 9. Chemical Clarification | | | | | a) BOD₅/COD/TSS/TYS | 1,2/w | | | pH/alkalinity | 1,2,3,4,6/d | | | b) settleable solids/flocculation | 1,2,6/d | | | c) nutrients | 1,2/q | | 10. Tertiary Filtration | | | | | a) BOD₅/TSS | 1,2/w | | | b) pH/alkalinity | 1,2/d | | | c) nutrients | 1,2/q | | TABLE D-1 - KEY | | | | FREQUENCY | SAMPLING LOCATION | | | d - Daily | 1. Process Influent | | | w - Weekly | 2. Process Effluents | | | bw - Biweekly | 3. Influent plus Return Waste Streams | | | q - Daily when in operation | 4. Following Chemical Addition | | | | 5. Filtered Effluent | | | CONVENTIONAL PARAMETERS | 6. Contents of Reactor | | | BOD₅ - 5-day biochemical oxygen demand | 7. All Cells of Each Lagoon or Pond | | | SS - Suspended solids | 8. Raw Sludge | | | TS - Total solids | 9. Primary Sludge | | | VS - Volatile solids | 10. Secondary Sludge | | | DO - Dissolved oxygen | 11. Digester Influent | | | NUTRIENTS - Forms of phosphorus and nitrogen as required by the certificate CTO issued. | 12. Treated Sludge | | | 13. Return Sludge | | | | 14. Attached Growth | | | | 15. Process Supernatant | | |

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-1030 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-970, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-980 Factors for oxygen transfer

A. Design. The oxygen supply requirements for diffused aeration systems serving suspended growth biological reactors should be established from the Alpha factor and the Beta factor (9VAC25-790-690 E 6).

B. Alpha factor. The alpha factor was once considered to be related only to wastewater characteristics, primarily surfactants. Additional investigations have shown that the alpha factor varies with other process conditions including mixing intensity, suspended solids concentration, and other factors, particularly the method of aeration. The alpha factor is unique for a particular wastewater treatment facility but is difficult to accurately determine; however, standards of practice for measuring the alpha factor have been proposed.

Reported observations on the variations of the alpha factor with diffuser type are as follows:

| | Bubble Size | Range of Alpha | | --- | --- | --- | | | Fine | 0.4 - 0.55 | | | Medium | 0.7 - 0.8 | | | Coarse | 0.8 - 0.9 |

Other studies have similarly indicated lower alpha factors for fine bubble diffusers in comparison to coarse bubble diffusers. Summaries of reported values for alpha factors for mechanical aerators indicate a general range of 0.8 to greater than 1.0 with some values as low as 0.6. Increasing mixing intensity tends to increase the alpha factor.

C. Beta factor. The beta factor has been observed to vary over a moderate range, although the variations are generally less than observed variations of the alpha factor. One method proposed for estimating the beta factor uses the TDS concentration of the wastewater and the Standard Methods chart for saturation dissolved oxygen concentrations at various chloride levels in which

Beta Factor = C_STC/C_ST,

where

C_STC-saturation dissolved oxygen concentration at temperature, T and chloride concentration, C

(Substitute chloride conc. for TDS conc. when using chart)

and

C_ST = saturation dissolved oxygen concentration at temperature, T and chloride concentration of 0.

Values reported for the beta factor for domestic wastewater are generally about 0.95 but considerable deviations from this value have been observed for industrial wastewater.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-1040 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-980, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-985 Onsite sewage systems connected to sewerage systems

On or before February 1, 2027, and annually thereafter, every permitted sewage treatment works within the Chesapeake Bay Watershed shall report to the department, to the best of the permitted sewage treatment works' knowledge, the number of onsite sewage systems taken offline permanently and connected to sewerage systems that convey sewage to the permitted sewage treatment works' facility during the previous calendar year.

History

• Statutory Authority: §§ 62.1-44.15 and 62.1-44.19 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 41, Issue 23, eff. July 30, 2025.

Article 2 Forms and Agreements

9VAC25-790-990 Portable equipment for sewage pump stations

Article 2 Forms and Agreements

A. Compliance information. The following information is being provided to demonstrate to the department that the owner* will remain in compliance, after the addition of the proposed pumping station indicated below:

1. Name and location of proposed pump station;

2. Owner of proposed pump station (when placed into operation);

3. Number of pumping stations in owner's sewerage system using portable equipment for continuous operability (existing, approved, plus proposed in this project);

4. Number of portable pumps/generators required:**

a. Maximum number of stations on radial extremity:

b. Five percent of total number of stations (subdivision A 3 of this section):

5. Number of portable pumps or generators*** owned by owner:

Note: *When the proposed pump station will be transferred to city ownership and operation, then this analysis will be made for the city-wide system. If the pump station is to remain under a private owner's control, then the analysis will be performed for that owner's system only.

**The number of portable pumps/generators required is the larger number of either A 4 a or A 4 b of this form.

***Portable equipment, either singly or in combination, shall be capable of operating the largest pump station included in the total for A 3 of this form.

B. Compliance agreement. This agreement certifies that:

1. At the design peak flow the overflow time* is . The owner certifies that his standard response time** as detailed in his current service area response plan for a station at the proposed location is shorter than the overflow time noted above.

2. This station and associated portable equipment will be maintained and operated in accordance with the owner's approved operation and maintenance program.

Name

Title

Date

Note: *Time transpiring between high liquid level alarm and the time that an overflow or backup and subsequent discharge occurs (to be determined at peak design flow).

**Time transpiring between high liquid level alarm and connection and starting of portable equipment.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-1050 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-990, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

9VAC25-790-1000 General jurisdictional responsibilities for sewerage systems connections

The following diagrams illustrate variations in sewer service connections and indicate the regulation jurisdiction (Uniform Statewide Building Code, Sewage Handling and Disposal Regulations, and the Sewage Collection and Treatment Regulations) for review and approval for construction and operation:

A. Gravity sewer:

1. Building with flow by gravity:

2. Jurisdiction: Uniform Statewide Building Code (Code).

B. Pump within building:

1. Building with Pumped flow:

P—Pump within the building served.

2. Jurisdiction: Code when pumped flow is less than 2000 GPD. Sewage Collection and Treatment Regulations when pumped flow is equal or greater than 2000 GPD.

C. Pump remote from building

1. Building with remote pumped flow

P—Pump separate from the building served.

2. Jurisdiction: Sewage Collection and Treatment Regulations when pumped flow is equal to or greater than 2000 GPD. Code when pumped flow is less than 2000 GPD.

D. Central pressure or vacuum system

1. Building with pump or remote vacuum valve.

*P—Pump may or may not be provided.

—Shows vacuum valve in service connection.

2. Jurisdiction: Sewage Collection and Treatment Regulations.

E. Gravity or pumped flow to an on-site disposal system.

1. Building served by on-site pretreatment units and drainfield (may or may not be provided) or other subsurface disposal.

P*—Pump that may or may not be provided.

PT*—Pretreatment may be provided.

2. Jurisdiction: Code applies to building service connection and pump if provided. Sewage Handling and Disposal Regulations applies to building sewer and on-site disposal system (alternative discharging systems subject to separate regulations).

J.2 The following notes explain symbols used in the diagrams:

i. Building drain (up to 5 feet beyond foundation of building or structure)

ii. Sewage pump (grinder or nonclogging type)

iii. Building sewer or force main

iv. < v >Vacuum valve for vacuum system

v. ¦ PT ¦ Pretreatment units including septic tanks, aerobic package plants, constructed wetlands, etc.

History

• Statutory Authority: § 62.1-44.19 of the Code of Virginia.
• Historical Notes: Former 12VAC5-581-1060 derived from Virginia Register Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-1000, Virginia Register Volume 20, Issue 9, eff. February 12, 2004.

Chapter 830 Chesapeake Bay Preservation Area Designation and Management Regulations

Part I Introduction

9VAC25-830-10 Application

The board is charged with the development of regulations which establish criteria that will provide for the protection of water quality, and that also will accommodate economic development. All counties, cities and towns in Tidewater Virginia shall comply with this chapter. Other local governments not in Tidewater Virginia may use the criteria and conform their ordinances as provided in this chapter to protect the quality of state waters in accordance with § 62.1-44.15:75 of the Code of Virginia.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-10 and 9VAC10-20-10 derived from VR173-02-01 § 1.1, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; amended and renumbered Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-20 Authority for chapter

This chapter is issued under the authority of § 62.1-44.15:72 of the Code of Virginia (the Chesapeake Bay Preservation Act, hereinafter "the Act").

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-20 and 9VAC10-20-20, derived from VR173-02-01 § 1.2, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; amended and renumbered Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-30 Purpose of chapter

A. The purpose of this chapter is to protect and improve the water quality of the Chesapeake Bay, its tributaries, and other state waters by minimizing the effects of human activity upon these waters and implementing the Act, which provides for the definition and protection of certain lands called Chesapeake Bay Preservation Areas, which if improperly used or developed may result in substantial damage to the water quality of the Chesapeake Bay and its tributaries.

B. This chapter establishes the criteria that counties, cities and towns (hereinafter "local governments") shall use to determine the extent of the Chesapeake Bay Preservation Areas within their jurisdictions. This chapter establishes criteria for use by local governments in granting, denying or modifying requests to rezone, subdivide, or to use and develop land in Chesapeake Bay Preservation Areas. This chapter identifies the requirements for changes which local governments shall incorporate into their comprehensive plans, zoning ordinances and subdivision ordinances and employ to ensure that the use and development of land in Chesapeake Bay Preservation Areas shall be accomplished in a manner that protects the quality of state waters pursuant to §§ 62.1-44.15:74 and 62.1-44.15:76 of the Act.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-30 and 9VAC10-20-30 derived from VR173-02-01 § 1.3, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-40 Definitions

The following words and terms used in this chapter have the following meanings, unless the context clearly indicates otherwise. In addition, some terms not defined herein are defined in § 62.1-44.15:68 of the Act.

"Act" means the Chesapeake Bay Preservation Act, Article 2.5 (§ 62.1-44.15:67 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Adaptation measure" means a project, practice, or approach to mitigate or address an impact of climate change including sea-level rise, storm surge, and flooding including increased or recurrent flooding.

"Best management practice" means a practice, or combination of practices, that is determined by a state or designated area-wide planning agency to be the most effective, practicable means of preventing or reducing the amount of pollution generated by nonpoint sources to a level compatible with water quality goals.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Buffer area" means an area of natural or established vegetation managed to protect other components of a Resource Protection Area and state waters from significant degradation due to land disturbances.

"Canopy tree" means a tree that typically reaches 35 feet in height or taller when mature.

"Chesapeake Bay Preservation Area" means any land designated by a local government pursuant to Part III (9VAC25-830-70 et seq.) of this chapter and § 62.1-44.15:74 of the Act. A Chesapeake Bay Preservation Area shall consist of a Resource Protection Area and a Resource Management Area.

"Daylighted stream" means a stream that had been previously diverted into an underground drainage system and has been redirected into an aboveground channel using natural channel design concepts as defined in § 62.1-44.15:51 of the Code of Virginia, and where the adjacent lands would meet the criteria for being designated as a Resource Protection Area (RPA) as defined by the department under this chapter.

"Department" or "DEQ" means the Department of Environmental Quality.

"Development" means the construction or substantial alteration of residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures.

"Director" means the Director of the Department of Environmental Quality.

"Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program" means Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Floodplain" means all lands that would be inundated by flood water as a result of a storm event of a 100-year return interval.

"Highly erodible soils" means soils (excluding vegetation) with an erodibility index (EI) from sheet and rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T, where K is the soil susceptibility to water erosion in the surface layer; R is the rainfall and runoff; LS is the combined effects of slope length and steepness; and T is the soil loss tolerance.

"Highly permeable soils" means soils with a given potential to transmit water through the soil profile. Highly permeable soils are identified as any soil having a permeability equal to or greater than six inches of water movement per hour in any part of the soil profile to a depth of 72 inches (permeability groups "rapid" and "very rapid") as found in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resources Conservation Service.

"Impervious cover" means a surface composed of any material that significantly impedes or prevents natural infiltration of water into the soil. Impervious surfaces include roofs, buildings, streets, parking areas, and any concrete, asphalt or compacted gravel surface.

"Infill" means utilization of vacant land in previously developed areas.

"Intensely Developed Areas" means those areas designated by the local government pursuant to 9VAC25-830-100.

"Local governments" means counties, cities, and towns. This chapter applies to local governments in Tidewater Virginia, as defined in § 62.1-44.15:68 of the Act, but the provisions of this chapter may be used by other local governments.

"Local program" means the measures by which a local government complies with the Act and this chapter.

"Local program adoption date" means the date a local government meets the requirements of subdivisions 1 and 2 of 9VAC25-830-60.

"Mature tree" means a canopy tree with a diameter at breast height (DBH) of 12 inches or greater or an understory tree with a DBH of four inches or greater.

"Nature-based solution" means an approach that reduces the impacts of sea-level rise, flooding and storm events through the use of environmental processes and natural systems.

"Nontidal wetlands" means those wetlands other than tidal wetlands that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the federal Clean Water Act in 33 CFR 328.3b.

"Plan of development" means any process for site plan review in local zoning and land development regulations designed to ensure compliance with § 62.1-44.15:74 of the Act and this chapter, prior to issuance of a building permit.

"Public road" means a publicly owned road designed and constructed in accordance with water quality protection criteria at least as stringent as requirements applicable to the Virginia Department of Transportation, including regulations promulgated pursuant to (i) the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program and (ii) the Virginia Erosion and Stormwater Management Act. This definition includes those roads where the Virginia Department of Transportation exercises direct supervision over the design or construction activities, or both, and cases where secondary roads are constructed or maintained, or both, by a local government in accordance with the standards of that local government.

"Redevelopment" means the process of developing land that is or has been previously developed.

"Resource Management Area" means that component of the Chesapeake Bay Preservation Area that is not classified as the Resource Protection Area.

"Resource Protection Area" means that component of the Chesapeake Bay Preservation Area comprised of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts that may result in significant degradation to the quality of state waters.

"Silvicultural activities" means forest management activities, including the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation that are conducted in accordance with the silvicultural best management practices developed and enforced by the State Forester pursuant to § 10.1-1105 of the Code of Virginia and are located on property defined as real estate devoted to forest use under § 58.1-3230 of the Code of Virginia.

"Substantial alteration" means expansion or modification of a building or development that would result in a disturbance of land exceeding an area of 2,500 square feet in the Resource Management Area only.

"Tidal shore" or "shore" means land contiguous to a tidal body of water between the mean low water level and the mean high water level.

"Tidal wetlands" means vegetated and nonvegetated wetlands as defined in § 28.2-1300 of the Code of Virginia.

"Tidewater Virginia" means those jurisdictions named in § 62.1-44.15:68 of the Act.

"Understory tree" means a tree that typically reaches 12 feet to 35 feet in height when mature.

"Use" means an activity on the land other than development including agriculture, horticulture and silviculture.

"Virginia Erosion and Stormwater Management Act" means Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Water-dependent facility" means a development of land that cannot exist outside of the Resource Protection Area and must be located on the shoreline by reason of the intrinsic nature of its operation. These facilities include (i) ports; (ii) the intake and outfall structures of power plants, water treatment plants, sewage treatment plants, and storm sewers; (iii) marinas and other boat docking structures; (iv) beaches and other public water-oriented recreation areas; and (v) fisheries or other marine resources facilities.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-40 and 9VAC10-20-40 derived from VR173-02-01 § 1.4, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; Errata, 18:13 VA.R. 1763 March 11, 2002; amended and renumbered Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 31, Issue 24, eff. August 26, 2015; Volume 38, Issue 1, eff. September 29, 2021; Volume 38, Issue 25, eff. August 31, 2022; Volume 41, Issue 1, eff. September 25, 2024.

Part II Local Government Programs

9VAC25-830-50 Local program development

Local governments shall develop measures (hereinafter called "local programs") necessary to comply with the Act and this chapter. Counties and towns are encouraged to cooperate in the development of their local programs. In conjunction with other state water quality programs, local programs shall encourage and promote: (i) protection of existing high quality state waters and restoration of all other state waters to a condition or quality that will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, which might reasonably be expected to inhabit them; (ii) safeguarding the clean waters of the Commonwealth from pollution; (iii) prevention of any increase in pollution; (iv) reduction of existing pollution; and (v) promotion of water resource conservation in order to provide for the health, safety and welfare of the present and future citizens of the Commonwealth.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-50 and 9VAC10-20-50 derived from VR173-02-01 § 2.1, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-60 Elements of program

A. Local programs shall contain the elements listed below.

1. A map delineating Chesapeake Bay Preservation Areas.

2. Performance criteria applying in Chesapeake Bay Preservation Areas that employ the requirements in Part IV (9VAC25-830-120 et seq.) of this chapter.

3. A comprehensive plan or revision that incorporates the protection of Chesapeake Bay Preservation Areas and of the quality of state waters, in accordance with criteria set forth in Part V (9VAC25-830-160 et seq.) of this chapter.

4. A zoning ordinance or revision that (i) incorporates measures to protect the quality of state waters in Chesapeake Bay Preservation Areas, as set forth in Part VI (9VAC25-830-180 et seq.) of this chapter, and (ii) requires compliance with all criteria set forth in Part IV (9VAC25-830-120 et seq.) of this chapter.

5. A subdivision ordinance or revision that (i) incorporates measures to protect the quality of state waters in Chesapeake Bay Preservation Areas, as set forth in Part VI (9VAC25-830-180 et seq.) of this chapter, and (ii) assures that all subdivisions in Chesapeake Bay Preservation Areas comply with the criteria set forth in Part IV (9VAC25-830-120 et seq.) of this chapter.

6. A plan of development process prior to the issuance of a building permit to assure that use and development of land in Chesapeake Bay Preservation Areas is accomplished in a manner that protects the quality of state waters.

B. Each local government in Tidewater Virginia shall publish on its website the elements and criteria adopted to implement the local government's local plan, including those elements and criteria required by subsection A of this section.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-60 and 9VAC10-20-60 derived from VR173-02-01 § 2.2, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

Part III Chesapeake Bay Preservation Area Designation Criteria

9VAC25-830-70 Purpose

The criteria in this part provide direction for local government designation of the ecological and geographic extent of Chesapeake Bay Preservation Areas. Chesapeake Bay Preservation Areas are divided into Resource Protection Areas and Resource Management Areas that are subject to the criteria in Part IV (9VAC25-830-120 et seq.) and the requirements in Part V (9VAC25-830-160 et seq.) of this chapter. In addition, the criteria in this part provide guidance for local government identification of areas suitable for redevelopment that are subject to the redevelopment criteria in Part IV of this chapter.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-70 and 9VAC10-20-70 derived from VR173-02-01 § 3.1, eff. September 1, 1989; amended Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-80 Resource Protection Areas

A. At a minimum, Resource Protection Areas shall consist of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts which may cause significant degradation to the quality of state waters. In their natural condition, these lands provide for the removal, reduction or assimilation of sediments, nutrients and potentially harmful or toxic substances in runoff entering the bay and its tributaries, and minimize the adverse effects of human activities on state waters and aquatic resources.

B. The Resource Protection Area shall include:

1. Tidal wetlands;

2. Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow;

3. Tidal shores; and

4. Such other lands considered by the local government to meet the provisions of subsection A of this section and to be necessary to protect the quality of state waters.

5. A buffer area not less than 100 feet in width located adjacent to and landward of the components listed in subdivisions 1 through 4 of this subsection, and along both sides of any water body with perennial flow. The full buffer area shall be designated as the landward component of the Resource Protection Area notwithstanding the presence of permitted uses, encroachments, and permitted vegetation clearing in compliance with Part IV (9VAC25-830-120 et seq.) of this chapter.

C. Designation of the components listed in subdivisions 1 through 4 of subsection B of this section shall not be subject to modification unless based on reliable, site-specific information as provided for in 9VAC25-830-110 and subdivision 6 of 9VAC25-830-140.

D. For the purpose of generally determining whether water bodies have perennial flow, local governments may use one of the following methods as long as the methodology is adopted into the local program and applied consistently: (i) designation of water bodies depicted as perennial on the most recent U.S. Geological Survey 7-1/2 minute topographic quadrangle map (scale 1:24,000) or (ii) use of a scientifically valid system of in-field indicators of perennial flow. However, site-specific determinations shall be made or confirmed by the local government pursuant to 9VAC25-830-110.

E. A locality is not required to designate a Resource Protection Area adjacent to a daylighted stream. However, a locality that elects not to designate a Resource Protection Area adjacent to a daylighted stream shall use a water quality assessment as identified in subdivision 6 of 9VAC25-830-140 to ensure that proposed development on properties adjacent to the daylighted stream do not result in the degradation of the stream. The objective of this assessment is to ensure that practices on properties adjacent to daylighted streams are effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-80 and 9VAC10-20-80 derived from VR173-02-01 § 3.2, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 31, Issue 24, eff. August 26, 2015.

9VAC25-830-90 Resource Management Areas

A. Resource Management Areas shall include land types that, if improperly used or developed, have a potential for causing significant water quality degradation or for diminishing the functional value of the Resource Protection Area.

B. A Resource Management Area shall be provided contiguous to the entire inland boundary of the Resource Protection Area. The following land categories shall be considered for inclusion in the Resource Management Area and, where mapping resources indicate the presence of these land types contiguous to the Resource Protection Area, should be included in designations of Resource Management Areas:

1. Floodplains;

2. Highly erodible soils, including steep slopes;

3. Highly permeable soils;

4. Nontidal wetlands not included in the Resource Protection Area; and

5. Such other lands considered by the local government to meet the provisions of subsection A of this section and to be necessary to protect the quality of state waters.

C. Resource Management Areas shall encompass a land area large enough to provide significant water quality protection through the employment of the criteria in Part IV (9VAC25-830-120 et seq.) and the requirements in Parts II (9VAC25-830-50 et seq.) and V (9VAC25-830-160 et seq.) of this chapter.

1. Local governments with few or no Resource Management Area land types evident from available mapping resources should evaluate the relationships of the following land categories to water quality protection in making their Resource Management Area designations. The department will consider the degree to which these land categories are included when evaluating the consistency of a locality's Resource Management Area designation for achievement of significant water quality protection:

a. Known Resource Management Area land types;

b. Developable land within the jurisdiction;

c. Areas targeted for redevelopment; and

d. Areas served by piped or channelized stormwater drainage systems which provide no treatment of stormwater discharges.

2. Localities with no mapping resources or with mapping resources for only portions of their jurisdiction should evaluate the relationships of the following land categories to water quality protection in making their Resource Management Area designations. The department will consider the degree to which these land categories are included when evaluating the consistency of a local government's Resource Management Area designation for achievement of significant water quality protection. Furthermore, such designations may be considered an interim designation until such time as appropriate mapping resources become available if such resources are considered by the department to be useful in determining the Resource Management Area boundaries, in which case the department will reevaluate the interim Resource Management Area designations at a later date:

a. Known Resource Management Area land types;

b. Developable land within the jurisdiction;

c. Areas targeted for redevelopment; and

d. Areas served by piped or channelized stormwater drainage systems which provide no treatment of stormwater discharges.

3. Local governments should consider extending the Resource Management Area boundary to the remainder of the lot, parcel, or development project upon which Resource Management Area-type features are present.

4. Local governments shall demonstrate how significant water quality protection will be achieved within designated Resource Management Areas, as well as by each local program as a whole, and to explain the rationale for excluding eligible Resource Management Area components that are not designated.

5. It is not the intent of the board, nor is it the intent of the Act or this chapter, to require that local governments designate all lands within their jurisdiction as Chesapeake Bay Preservation Areas. It is also not the intent of the board to discourage or preclude jurisdiction-wide designations of Resource Management Areas when the local government considers such designations appropriate, recognizing that greater water quality protection will result from more expansive implementation of the performance criteria. The extent of the Resource Management Area designation should always be based on the prevalence and relation of Resource Management Area land types and other appropriate land areas to water quality protection.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-90 and 9VAC10-20-90 derived from VR173-02-01 § 3.3, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

9VAC25-830-100 Intensely Developed Areas

A. At their option, local governments may designate Intensely Developed Areas as an overlay of Chesapeake Bay Preservation Areas within their jurisdictions. For the purposes of this chapter, Intensely Developed Areas shall serve as redevelopment areas in which development is concentrated as of the local program adoption date. Areas so designated shall comply with the performance criteria for redevelopment in Part IV (9VAC25-830-120 et seq.) of this chapter.

B. Local governments exercising this option shall examine the pattern of residential, commercial, industrial and institutional development within Chesapeake Bay Preservation Areas. Areas of existing development and infill sites where little of the natural environment remains may be designated as Intensely Developed Areas provided at least one of the following conditions existed at the time the local program was originally adopted:

1. Development has severely altered the natural state of the area such that it has more than 50% impervious surface;

2. Public sewer and water systems, or a constructed stormwater drainage system, or both, have been constructed and served the area by the original local program adoption date. This condition does not include areas planned for public sewer and water or constructed stormwater drainage systems; or

3. Housing density is equal to or greater than four dwelling units per acre.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-100 and 9VAC10-20-100 derived from VR173-02-01 § 3.4, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-110 Site-specific refinement of Chesapeake Bay Preservation Area boundaries

Local governments shall, as part of their plan of development review process pursuant to subdivision 1 e of 9VAC25-830-240 or during their review of a water quality impact assessment pursuant to subdivision 6 of 9VAC25-830-140, ensure or confirm that (i) a reliable, site-specific evaluation is conducted to determine whether water bodies on or adjacent to the development site have perennial flow and (ii) Resource Protection Area boundaries are adjusted, as necessary, on the site, based on this evaluation of the site. Local governments may accomplish this by either conducting the site evaluations themselves or requiring the person applying to use or develop the site to conduct the evaluation and submit the required information for review.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-110 and 9VAC10-20-105 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

Part IV Land Use and Development Performance Criteria

9VAC25-830-120 Purpose

A. The purpose of this part is to achieve the goals of the Act and 9VAC25-830-50 by establishing criteria to implement the following objectives: prevent a net increase in nonpoint source pollution from new development and development on previously developed land where the runoff was treated by a water quality protection best management practice, achieve a 10% reduction in nonpoint source pollution from development on previously developed land where the runoff was not treated by one or more water quality best management practices, and achieve a 40% reduction in nonpoint source pollution from agricultural and silvicultural uses.

B. In order to achieve these goals and objectives, the criteria in this part establish performance standards to minimize erosion and sedimentation potential, reduce land application of nutrients and toxics, maximize rainwater infiltration, and ensure the long-term performance of the measures employed.

C. The criteria in this part become mandatory upon the local program adoption date. They are supplemental to the various planning and zoning concepts employed by local governments in granting, denying, or modifying requests to rezone, subdivide, or to use and develop land in Chesapeake Bay Preservation Areas.

D. Local governments shall incorporate the criteria in this part into their comprehensive plans, zoning ordinances and subdivision ordinances, and may incorporate the criteria in this part into such other ordinances and regulations as may be appropriate, in accordance with §§ 62.1-44.15:74 and 62.1-44.15:76 of the Act and Parts V (9VAC25-830-160 et seq.), VI (9VAC25-830-180 et seq.), and VII (9VAC25-830-200 et seq.) of this chapter. The criteria may be employed in conjunction with other planning and zoning concepts to protect the quality of state waters.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-120 and 9VAC10-20-110 derived from VR173-02-01 § 4.1, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-130 General performance criteria

Through their applicable land use ordinances, regulations, and enforcement mechanisms, local governments shall require that any use, development, or redevelopment of land in Chesapeake Bay Preservation Areas meets the following performance criteria:

1. No more land shall be disturbed than is necessary to provide for the proposed use or development.

2. Indigenous vegetation shall be preserved to the maximum extent practicable, consistent with the use or development proposed. Mature trees shall be protected during development and only removed where necessary, including to provide for the proposed use or development.

A locality which has an ordinance providing for the conservation, planting, and replacement of trees during the land development process pursuant to § 15.2-961 or 15.2-961.1 of the Code of Virginia may rely on such ordinance for demonstrating compliance with this requirement related to mature trees in Resource Management Areas.

3. All development exceeding 2,500 square feet of land disturbance shall be accomplished through a plan of development review process consistent with § 15.2-2286 A 8 of the Code of Virginia and subdivision 1 e of 9VAC25-830-240.

4. Land development shall minimize impervious cover consistent with the proposed use or development.

5. Any land-disturbing activity that exceeds an area of 2,500 square feet (including construction of all single family houses, septic tanks, and drainfields, but otherwise as defined in § 62.1-44.15:24 or 62.1-44.15:51 of the Code of Virginia) shall comply with the requirements of the local erosion and sediment control program ordinance or erosion and stormwater management program ordinance. Enforcement for noncompliance with the erosion and sediment control requirements referenced in this criterion shall be conducted under the provisions of the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia) and attendant regulations.

6. Land-disturbing activities in a Chesapeake Bay Preservation Area that are equal to or greater than 2,500 square feet but less than one acre shall comply with the requirements of 9VAC25-875-740 and 9VAC25-875-750.

7. Onsite sewage treatment systems not requiring a Virginia Pollutant Discharge Elimination System (VPDES) permit shall:

a. Have pump-out accomplished for all such systems at least once every five years.

(1) If deemed appropriate by the local health department and subject to conditions the local health department may set, local governments may offer to the owners of such systems, as an alternative to the mandatory pump-out, the option of having a plastic filter installed and maintained in the outflow pipe from the septic tank to filter solid material from the effluent while sustaining adequate flow to the drainfield to permit normal use of the septic system. Such a filter should satisfy standards established in the Sewage Handling and Disposal Regulations (12VAC5-610) administered by the Virginia Department of Health.

(2) Furthermore, in lieu of requiring proof of septic tank pump-out every five years, local governments may allow owners of onsite sewage treatment systems to submit documentation every five years, certified by an operator or onsite soil evaluator licensed or certified under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia as being qualified to operate, maintain, or design onsite sewage systems, that the septic system has been inspected, is functioning properly, and the tank does not need to have the effluent pumped out of it.

(3) Effective July 1, 2023, requirements of this section directly related to compliance with onsite sewage system pump-outs shall be managed and enforced by the Virginia Department of Health in Accomack, Essex, Gloucester, King and Queen, King William, Lancaster, Mathews, Middlesex, Northampton, Northumberland, Richmond, and Westmoreland Counties, and the incorporated towns within those counties.

b. For new construction, provide a reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site. This reserve sewage disposal site requirement shall not apply to any lot or parcel recorded prior to October 1, 1989, if the lot or parcel is not sufficient in capacity to accommodate a reserve sewage disposal site, as determined by the local health department. Building shall be prohibited on the area of all sewage disposal sites until the structure is served by public sewer or an onsite sewage treatment system that operates under a permit issued by the department. All sewage disposal site records shall be administered to provide adequate notice and enforcement. As an alternative to the 100% reserve sewage disposal site, local governments may offer the owners of such systems the option of installing an alternating drainfield system meeting the following conditions:

(1) Each of the two alternating drainfields in the system shall have, at a minimum, an area not less than 50% of the area that would otherwise be required if a single primary drainfield were constructed.

(2) An area equaling 50% of the area that would otherwise be required for the primary drainfield site must be reserved for subsurface absorption systems that utilize a flow diversion device, in order to provide for future replacement or repair to meet the requirements for a sewage disposal system. Expansion of the primary system will require an expansion of this reserve area.

(3) The two alternating drainfields shall be connected by a diversion valve, approved by the local health department, located in the pipe between the septic (aerobic) tank and the distribution boxes. The diversion valve shall be used to alternate the direction of effluent flow to one drainfield or the other at a time. However, diversion valves shall not be used for the following types of treatment systems:

(a) Sand mounds;

(b) Low-pressure distribution systems;

(c) Repair situations when installation of a valve is not feasible; and

(d) Any other approved system for which the use of a valve would adversely affect the design of the system, as determined by the local health department.

(4) The diversion valve shall be a three-port, two-way valve of approved materials (i.e., resistant to sewage and leakproof and designed so that the effluent from the tank can be directed to flow into either one of the two distribution boxes).

(5) There shall be a conduit from the top of the valve to the ground surface with an appropriate cover to be level with or above the ground surface.

(6) The valve shall not be located in driveways, recreational courts, parking lots, or beneath sheds or other structures.

(7) In lieu of the aforementioned diversion valve, any device that can be designed and constructed to conveniently direct the flow of effluent from the tank into either one of the two distribution boxes may be approved if plans are submitted to the local health department and found to be satisfactory.

(8) The local government shall require that the owner alternate the drainfields every 12 months to permit the yearly resting of half of the absorption system.

(9) The local government shall ensure that the owner are notified annually of the requirement to switch the valve to the opposite drainfield.

8. Land upon which agricultural activities are being conducted, including crop production, pasture, and dairy and feedlot operations, or lands otherwise defined as agricultural land by the local government, shall have a soil and water quality conservation assessment conducted that evaluates the effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management, and management of pesticides, and, where necessary, results in a plan that outlines additional practices needed to ensure that water quality protection is being accomplished consistent with the Act and this chapter.

a. Recommendations for additional conservation practices need address only those conservation issues applicable to the tract or field being assessed. Any soil and water quality conservation practices that are recommended as a result of such an assessment and are subsequently implemented with financial assistance from federal or state cost-share programs must be designed, consistent with cost-share practice standards effective in January 1999 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service or the June 2000 edition of the "Virginia Agricultural BMP Manual" of the Virginia Department of Conservation and Recreation, respectively. Unless otherwise specified in this section, general standards pertaining to the various agricultural conservation practices being assessed shall be as follows:

(1) For erosion and sediment control recommendations, the goal shall be, where feasible, to prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service. However, in no case shall erosion exceed the soil loss consistent with an Alternative Conservation System, referred to as an "ACS", as defined in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service.

(2) For nutrient management, whenever nutrient management plans are developed, the operator or landowner must provide soil test information, consistent with the Virginia Nutrient Management Training and Certification Regulations (4VAC50-85).

(3) For pest chemical control, referrals shall be made to the local cooperative extension agent or an Integrated Pest Management Specialist of the Virginia Cooperative Extension Service. Recommendations shall include copies of applicable information from the "Virginia Pest Management Guide" or other Extension materials related to pest control.

b. A higher priority shall be placed on conducting assessments of agricultural fields and tracts adjacent to Resource Protection Areas. However, if the landowner or operator of such a tract also has Resource Management Area fields or tracts in his operation, the assessment for that landowner or operator may be conducted for all fields or tracts in the operation. When such an expanded assessment is completed, priority must return to Resource Protection Area fields and tracts.

c. The findings and recommendations of such assessments and any resulting soil and water quality conservation plans will be submitted to the local Soil and Water Conservation District Board, which will be the plan-approving authority.

9. Silvicultural activities in Chesapeake Bay Preservation Areas are exempt from this chapter provided that silvicultural operations adhere to water quality protection procedures prescribed by the Virginia Department of Forestry in the Fifth Edition (March 2011) of "Virginia's Forestry Best Management Practices for Water Quality Technical Manual." The Virginia Department of Forestry will oversee and document installation of best management practices and will monitor in-stream impacts of forestry operations in Chesapeake Bay Preservation Areas.

10. Local governments shall require evidence of all wetlands permits required by law prior to authorizing grading or other onsite activities to begin.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-130 and 9VAC10-20-120 derived from VR173-02-01 § 4.2, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; Volume 24, Issue 22, eff. August 6, 2008; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 23, eff. August 27, 2014; Volume 38, Issue 1, eff. September 29, 2021; Volume 38, Issue 25, eff. August 31, 2022; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-830-140 Development criteria for Resource Protection Areas

In addition to the general performance criteria set forth in 9VAC25-830-130, the criteria in this section are applicable in Resource Protection Areas.

1. Land development may be allowed in the Resource Protection Area, subject to approval by the local government, only if it (i) is water dependent; (ii) constitutes redevelopment; (iii) constitutes development or redevelopment within a designated Intensely Developed Area; (iv) is a new use established pursuant to subdivision 4 a of this section; (v) is a road or driveway crossing satisfying the conditions set forth in subdivision 1 d of this section; or (vi) is a flood control or stormwater management facility satisfying the conditions set forth in subdivision 1 e of this section.

a. A water quality impact assessment in accordance with subdivision 6 of this section shall be required for any proposed land disturbance.

b. A new or expanded water-dependent facility may be allowed provided that the following criteria are met:

(1) It does not conflict with the comprehensive plan;

(2) It complies with the performance criteria set forth in 9VAC25-830-130;

(3) Any nonwater-dependent component is located outside of Resource Protection Areas; and

(4) Access to the water-dependent facility will be provided with the minimum disturbance necessary. Where practicable, a single point of access will be provided.

c. Redevelopment outside locally designated Intensely Developed Areas shall be permitted in the Resource Protection Area only if there is no increase in the amount of impervious cover and no further encroachment within the Resource Protection Area, and it shall conform to applicable erosion and sediment control and stormwater management criteria set forth in the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program and the Virginia Erosion and Stormwater Management Act and their attendant regulations, as well as all applicable stormwater management requirements of other state and federal agencies.

d. Roads and driveways not exempt under subdivision B 1 of 9VAC25-830-150 and which, therefore, must comply with the provisions of this chapter, may be constructed in or across Resource Protection Areas if each of the following conditions is met:

(1) The local government makes a finding that there are no reasonable alternatives to aligning the road or driveway in or across the Resource Protection Area;

(2) The alignment and design of the road or driveway are optimized, consistent with other applicable requirements, to minimize (i) encroachment in the Resource Protection Area and (ii) adverse effects on water quality;

(3) The design and construction of the road or driveway satisfy all applicable criteria of this chapter, including submission of a water quality impact assessment; and

(4) The local government reviews the plan for the road or driveway proposed in or across the Resource Protection Area in coordination with local government site plan, subdivision and plan of development approvals.

e. Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in Resource Protection Areas provided such facilities are allowed and constructed in accordance with the Virginia Erosion and Stormwater Management Act and its attendant regulations, and provided that (i) the local government has conclusively established that location of the facility within the Resource Protection Area is the optimum location; (ii) the size of the facility is the minimum necessary to provide necessary flood control or stormwater treatment, or both; (iii) the facility must be consistent with a comprehensive stormwater management plan developed and approved in accordance with 9VAC25-875-660; (iv) all applicable permits for construction in state or federal waters must be obtained from the appropriate state and federal agencies, such as the U.S. Army Corps of Engineers, the department, and the Virginia Marine Resources Commission; (v) approval must be received from the local government prior to construction; and (vi) routine maintenance is allowed to be performed on such facilities to assure that they continue to function as designed. It is not the intent of this subdivision to allow a best management practice that collects and treats runoff from only an individual lot or some portion of the lot to be located within a Resource Protection Area.

2. Exemptions in Resource Protection Areas. The following land disturbances in Resource Protection Areas may be exempt from the criteria of this part provided that they comply with subdivisions a and b of this subdivision 2: (i) water wells; (ii) passive recreation facilities such as boardwalks, trails, and pathways; and (iii) historic preservation and archaeological activities:

a. Local governments shall establish administrative procedures to review such exemptions.

b. Any land disturbance exceeding an area of 2,500 square feet shall comply with the erosion and sediment control criteria in subdivision 5 of 9VAC25-830-130.

3. Buffer area requirements. The 100-foot wide buffer area shall be the landward component of the Resource Protection Area as set forth in subdivision B 5 of 9VAC25-830-80. Notwithstanding permitted uses, encroachments, and vegetation clearing, as set forth in this section, the 100-foot wide buffer area is not reduced in width. To minimize the adverse effects of human activities on the other components of the Resource Protection Area, state waters, and aquatic life, a 100-foot wide buffer area of vegetation that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be retained if present and established where it does not exist. Where such buffer must be established, the planting of trees shall be incorporated as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.

a. The 100-foot wide buffer area shall be deemed to achieve a 75% reduction of sediments and a 40% reduction of nutrients.

b. Where land uses such as agriculture or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses, the full 100-foot wide buffer shall be reestablished. In reestablishing the buffer, management measures shall be undertaken to provide woody vegetation that assures the buffer functions set forth in this chapter. Where such buffer must be reestablished, the planting of trees shall be incorporated as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.

4. Permitted encroachments into the buffer area.

a. When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded prior to October 1, 1989, encroachments into the buffer area may be allowed through an administrative process in accordance with the following criteria:

(1) Encroachments into the buffer area shall be the minimum necessary to achieve a reasonable buildable area for a principal structure and necessary utilities.

(2) Where practicable, a vegetated area that will maximize water quality protection, mitigate the effects of the buffer encroachment, and is equal to the area of encroachment into the buffer area shall be established elsewhere on the lot or parcel. Such vegetated area where established shall include the planting of trees as appropriate to site conditions. Inclusion of native species in tree planting is preferred.

(3) The encroachment may not extend into the seaward 50 feet of the buffer area.

b. When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded between October 1, 1989, and March 1, 2002, encroachments into the buffer area may be allowed through an administrative process in accordance with the following criteria:

(1) The lot or parcel was created as a result of a legal process conducted in conformity with the local government's subdivision regulations;

(2) Conditions or mitigation measures imposed through a previously approved exception shall be met;

(3) If the use of a best management practice (BMP) was previously required, the BMP shall be evaluated to determine if it continues to function effectively and, if necessary, the BMP shall be reestablished or repaired and maintained as required; and

(4) The criteria in subdivision 4 a of this section shall be met.

5. Permitted modifications of the buffer area.

a. In order to maintain the functional value of the buffer area, existing vegetation may be removed, subject to approval by the local government, only to provide for reasonable sight lines, access paths, general woodlot management, and best management practices, including those that prevent upland erosion and concentrated flows of stormwater, as follows:

(1) Trees may be pruned or removed as necessary to provide for sight lines and vistas, provided that where removed, they shall be replaced with other vegetation that is equally effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff. Mature trees shall be preserved and trimmed or pruned in lieu of removal as site conditions permit and any removal should be limited to the fewest number of trees feasible. When trees are removed to provide for sight lines and vista, they shall be replaced with trees as appropriate to site conditions and in such a manner as to maximize the buffer function and to protect the quality of state waters. Inclusion of native species in tree replanting is preferred.

(2) Any path shall be constructed and surfaced so as to effectively control erosion.

(3) Dead, diseased, or dying trees or shrubbery and noxious weeds (such as Johnson grass, kudzu, and multiflora rose) may be removed and thinning of trees may be allowed pursuant to sound horticultural practice incorporated into locally-adopted standards.

(4) For shoreline erosion control projects, trees and woody vegetation may be removed, necessary control techniques employed, and appropriate vegetation established to protect or stabilize the shoreline in accordance with the best available technical advice and applicable permit conditions or requirements. Mature trees shall be removed only as necessary for the installation and maintenance of the projects consistent with the best available technical advice project plans, and applicable permit conditions or requirements. Trees shall be utilized in the project when vegetation is being established as appropriate to the site conditions and the project specifications. Inclusion of native species in tree planting is preferred.

b. On agricultural lands the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area and appropriate measures may be taken to prevent noxious weeds (such as Johnson grass, kudzu, and multiflora rose) from invading the buffer area. Agricultural activities may encroach into the buffer area as follows:

(1) Agricultural activities may encroach into the landward 50 feet of the 100-foot wide buffer area when at least one agricultural best management practice which, in the opinion of the local soil and water conservation district board, addresses the more predominant water quality issue on the adjacent land—erosion control or nutrient management—is being implemented on the adjacent land, provided that the combination of the undisturbed buffer area and the best management practice achieves water quality protection, pollutant removal, and water resource conservation at least the equivalent of the 100-foot wide buffer area. If nutrient management is identified as the predominant water quality issue, a nutrient management plan, including soil tests, must be developed consistent with the Nutrient Management Training and Certification Regulations (4VAC50-85) administered by the Virginia Soil and Water Conservation Board.

(2) Agricultural activities may encroach within the landward 75 feet of the 100-foot wide buffer area when agricultural best management practices which address erosion control, nutrient management, and pest chemical control, are being implemented on the adjacent land. The erosion control practices must prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service. A nutrient management plan, including soil tests, must be developed, consistent with the Nutrient Management Training and Certification Regulations (4VAC50-85) administered by the Virginia Soil and Water Conservation Board. In conjunction with the remaining buffer area, this collection of best management practices shall be presumed to achieve water quality protection at least the equivalent of that provided by the 100-foot wide buffer area.

(3) The buffer area is not required to be designated adjacent to agricultural drainage ditches if at least one best management practice which, in the opinion of the local soil and water conservation district board, addresses the more predominant water quality issue on the adjacent land—either erosion control or nutrient management—is being implemented on the adjacent land.

(4) If specific problems are identified pertaining to agricultural activities that are causing pollution of the nearby water body with perennial flow or violate performance standards pertaining to the vegetated buffer area, the local government, in cooperation with soil and water conservation district, shall recommend a compliance schedule to the landowner and require the problems to be corrected consistent with that schedule. This schedule shall expedite environmental protection while taking into account the seasons and other temporal considerations so that the probability for successfully implementing the corrective measures is greatest.

(5) In cases where the landowner or the landowner's agent or operator has refused assistance from the local soil and water conservation district in complying with or documenting compliance with the agricultural requirements of this chapter, the district shall report the noncompliance to the local government. The local government shall require the landowner to correct the problems within a specified period of time not to exceed 18 months from their initial notification of the deficiencies to the landowner. The local government, in cooperation with the district, shall recommend a compliance schedule to the landowner. This schedule shall expedite environmental protection while taking into account the seasons and other temporal considerations so that the probability for successfully implementing the corrective measures is greatest.

6. Water quality impact assessment. A water quality impact assessment shall be required for any proposed development within the Resource Protection Area consistent with this part and for any other development in Chesapeake Bay Preservation Areas that may warrant such assessment because of the unique characteristics of the site or intensity of the proposed use or development.

a. The purpose of the water quality impact assessment is to identify the impacts of proposed development on water quality and lands in the Resource Protection Areas consistent with the goals and objectives of the Act, this chapter, and local programs, and to determine specific measures for mitigation of those impacts. The specific content and procedures for the water quality impact assessment shall be established by each local government. Local governments should notify the department of all development requiring such an assessment.

b. The water quality impact assessment shall be of sufficient specificity to demonstrate compliance with the criteria of the local program.

7. Buffer area requirements for Intensely Developed Areas. In Intensely Developed Areas the local government may exercise discretion regarding whether to require establishment of vegetation in the 100-foot wide buffer area. However, while the immediate establishment of vegetation in the buffer area may be impractical, local governments shall give consideration to implementing measures that would establish vegetation in the buffer in these areas over time in order to maximize water quality protection, pollutant removal, and water resource conservation. In considering such measures, local governments shall consider the planting of trees as a component of any such measure. Inclusion of native species in tree planting is preferred.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-140 and 9VAC10-20-130 derived from VR173-02-01 § 4.3, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; Errata, 18:13 VA.R. 1763 March 11, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 1, eff. September 29, 2021; Volume 38, Issue 25, eff. August 31, 2022; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-830-150 Nonconformities, exemptions, and exceptions

A. Nonconforming uses and noncomplying structures.

1. Local governments may permit the continued use, but not necessarily the expansion, of any structure in existence on the date of local program adoption. Local governments may establish an administrative review procedure to waive or modify the criteria of this part for structures on legal nonconforming lots or parcels provided that:

a. There will be no net increase in nonpoint source pollutant load; and

b. Any development or land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of this part.

2. This chapter shall not be construed to prevent the reconstruction of pre-existing structures within Chesapeake Bay Preservation Areas from occurring as a result of casualty loss unless otherwise restricted by local government ordinances.

B. Public utilities, railroads, public roads, and facilities exemptions.

1. Construction, installation, operation, and maintenance of electric, natural gas, fiber-optic, and telephone transmission lines, railroads, and public roads and their appurtenant structures in accordance with (i) regulations promulgated pursuant to the Virginia Erosion and Stormwater Management Act, (ii) an erosion and sediment control plan and a stormwater management plan approved by the department, or (iii) local water quality protection criteria at least as stringent as the above state requirements will be deemed to constitute compliance with this chapter. The exemption of public roads is further conditioned on the following:

a. Optimization of the road alignment and design, consistent with other applicable requirements, to prevent or otherwise minimize (i) encroachment in the Resource Protection Area and (ii) adverse effects on water quality; and

b. Local governments may choose to exempt (i) all public roads as defined in 9VAC25-830-40, or (ii) only those public roads constructed by the Virginia Department of Transportation.

2. Construction, installation and maintenance of water, sewer, natural gas, and underground telecommunications and cable television lines owned, permitted, or both, by a local government or regional service authority shall be exempt from the criteria in this part provided that:

a. To the degree possible, the location of such utilities and facilities should be outside Resource Protection Areas;

b. No more land shall be disturbed than is necessary to provide for the proposed utility installation;

c. All such construction, installation and maintenance of such utilities and facilities shall be in compliance with all applicable state and federal permits and designed and conducted in a manner that protects water quality; and

d. Any land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of this part.

C. Exceptions.

1. Exceptions to the requirements of 9VAC25-830-130 and 9VAC25-830-140 may be granted, provided that a finding is made that:

a. The requested exception to the criteria is the minimum necessary to afford relief;

b. Granting the exception will not confer upon the applicant any special privileges that are denied by this part to other property owners who are subject to its provisions and who are similarly situated;

c. The exception is in harmony with the purpose and intent of this part and is not of substantial detriment to water quality;

d. The exception request is not based upon conditions or circumstances that are self-created or self-imposed;

e. Reasonable and appropriate conditions are imposed, as warranted, that will prevent the allowed activity from causing a degradation of water quality; and

f. Other findings, as appropriate and required by the local government, are met.

2. Each local government shall design and implement an appropriate process or processes for the administration of exceptions. The process to be used for exceptions to 9VAC25-830-140 shall include, but not be limited to, the following provisions:

a. An exception may be considered and acted upon only by the local legislative body; the local planning commission; or a special committee, board or commission established or designated by the local government to implement the provisions of the Act and this chapter.

b. Local governments implementing this chapter through the local zoning code may provide for specific provisions that allow for consideration of exceptions that comply with subdivision 2 of this subsection.

c. The provision of subdivision 2 b of this subsection notwithstanding, no exception shall be authorized except after notice and a hearing, as required by § 15.2-2204 of the Code of Virginia, except that only one hearing shall be required. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the notice may be given by first-class mail rather than by registered or certified mail.

3. Exceptions to other provisions of this part may be granted, provided that:

a. Exceptions to the criteria shall be the minimum necessary to afford relief; and

b. Reasonable and appropriate conditions upon any exception granted shall be imposed, as necessary, so that the purpose and intent of the Act is preserved.

4. Notwithstanding the provisions of subdivisions 2 a through 2 c of this subsection, additions and modifications to existing legal principal structures may be processed through an administrative review process, as allowed by subsection A of this section, subject to the findings required by subdivision 1 of this subsection but without a requirement for a public hearing. This provision shall not apply to accessory structures.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-150 and 9VAC10-20-150 derived from VR173-02-01 § 4.5, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-830-155 Climate change resilience and adaptation criteria

A. Pursuant to § 62.1-44.15:72 of the Code of Virginia, this section provides criteria and requirements to address coastal resilience and adaptation to sea-level rise and climate change. Adaptation measures may be allowed in the Chesapeake Bay Preservation Areas subject to approval by the local government, in accordance with the conditions set forth in this chapter.

This section applies in addition to 9VAC25-830-130 and 9VAC25-830-140. Local governments shall incorporate the requirements of this section into all relevant ordinances and ensure their enforcement through implementation of appropriate processes and documentation for oversight and enforcement. In doing so, local governments shall ensure that the incorporation is consistent with the water quality protections of the Act.

B. Local governments shall assess the impacts of climate change and sea-level rise on any proposed land development in the Resource Protection Area during the plan of development or project review process. Such assessment shall be based on the Resource Protection Area as delineated at the time of the proposed land development Such assessment shall at a minimum:

1. Be based upon a potential impact range of 30 years or the lifespan of the project if less than 30 years;

2. Utilize a model or forecast developed by or on behalf of the Commonwealth;

3. Identify potential impacts:

a. From projected sea-level rise using the 2017 National Oceanographic and Atmospheric Administration (NOAA) Intermediate–High scenario projection curve or any subsequently updated version thereof, on the project site;

b. From storm surge based upon the most updated NOAA hydrodynamic Sea, Lake, and Overland Surges from Hurricanes model on the project site; and

c. From flooding based upon the most updated Special Flood Hazard Area and the Limit of Moderate Wave Action on the project site. Such assessment of flooding should be in conjunction with the requirements and application of floodplain management requirements and programs.

4. Assess the potential impacts in light of the proposed land development on buffer function including loss of riparian buffer vegetation and vegetation migration; water migration; as well as the potential impacts resulting in additional future land disturbance or development in the Resource Protection Area connected to the proposed land development.

5. Identify conditions, alterations, or adaptation measures for the proposed land development to address these potential impacts as necessary and appropriate based upon site conditions; nature, type, and size of proposed land development including whether such proposed land development is in an Intensely Developed Area overlay; extent of potential impacts; and the necessity to minimize future land disturbance.

6. Local governments may require this assessment to be submitted as part of a Water Quality Impact Assessment. The specific content and procedures for the assessment shall be established by each local government and shall be of sufficient specificity to demonstrate compliance with this requirement.

7. Based upon the assessment, local governments shall, as necessary and appropriate, require conditions, alterations, or the installation of adaptation measures as part of the proposed land development consistent with the requirements of the Act and this chapter.

C. Local governments may allow adaptation measures within the Resource Protection Area subject to the following criteria and requirements, which shall apply in addition to those found in 9VAC25-830-130 and 9VAC25-830-140 including the requirement for a Water Quality Impact Assessment pursuant to subdivision 6 of 9VAC25-830-140. The adaptation measure shall:

1. Be a nature-based solution adaptation measure that uses environmental processes, natural systems, or natural features, is appropriate for site conditions, and is:

a. A Best Management Practice approved by the Chesapeake Bay Program Partnership;

b. An approved Virginia Stormwater Best Management Practice listed in the Virginia Stormwater Best Management Practice Clearinghouse;

c. An approved Shoreline Protection Strategy in accordance with the Tidal Wetlands Guidelines as determined by the Virginia Marine Resource Commission; or

d. A project that is an eligible activity for funding by the Virginia Community Flood Preparedness Fund as determined by the Virginia Department of Conservation and Recreation.

2. Be designed, installed, and maintained in accordance with the applicable adaptation measure specifications in accordance with the type of the adaptation measure identified in 9VAC25-830-155 C 1.

3. Allow for the use of fill only under the following conditions:

a. The grading and slope created by the use of fill shall be no greater than necessary based upon the project specifications and implemented in a manner that minimizes the impact of run-off;

b. The fill must have the necessary biogeochemical characteristics, including sufficient organic content, to support the growth of vegetation and adequate permeability to allow infiltration consistent with the project specifications;

c. The use of fill shall not enhance stormwater runoff from the Resource Protection Area, and any lateral flow onto adjacent properties shall be controlled;

d. Any impacts on the management of stormwater upland of the Resource Protection Area created by the use of fill shall be mitigated as necessary;

e. The use of fill shall not negatively impact septic systems and drainfields; and

f. The use of fill shall be consistent with any applicable federal or state law, including floodplain management requirements in 44 CFR Part 60.

4. Maximize preservation of existing natural vegetation including mature trees and minimize land disturbance consistent with the adaptation measure specifications.

5. Comply with all federal, state, and local requirements including any required permits and conditions.

6. Nothing in this provision shall be construed to authorize approval or allowance of an adaptation measure in contravention of floodplain management requirements, including the National Flood Insurance Program and established floodplain ordinances, or construed to require a locality to approve or allow an adaptation measure in contravention of its participation in the National Flood Insurance Program Community Rating System.

D. Local governments shall ensure that any activity in the Resource Protection Area is consistent with Chapter 13 Title 28.2, Code of Virginia, and the accompanying Tidal Wetlands Guidelines which provide for "minimum standards for the protection and conservation of wetlands," and "ensure protection of shorelines and sensitive coastal habitat from sea level rise and coastal hazard." Shoreline management and alteration projects should be coordinated to address the requirements of the most updated Tidal Wetlands Guidelines in conjunction with the requirements of this chapter, including subdivision 5 a (4) of 9VAC25-830-140.

E. For a living shoreline, as defined in § 28.2-104.1 of the Code of Virginia, where the locality otherwise approves of the project, the project minimizes land disturbance and maintains or establishes a vegetative buffer inland of the living shoreline, complies with the fill conditions in subdivision C 3 of this section, and receives approval from the Virginia Marine Resources Commission or the local wetlands board as applicable, the locality may exempt it from additional performance criteria requirements, including a Water Quality Impact Assessment.

F. Local governments shall not grant exceptions to the requirements of 9VAC25-830-130, 9VAC25-830-140, or this section where:

1. The assessment of climate change and sea-level rise as outlined in subsection B of this section has not occurred; or

2. The proposed adaptation measure allows for the use of fill in a Resource Protection Area contravention of the requirements of 9VAC25-830-155 C 3.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 38, Issue 1, eff. September 29, 2021.

Part V Comprehensive Plan Criteria

9VAC25-830-160 Purpose

The purpose of this part is to assist local governments in the development of a comprehensive plan or plan component that is consistent with the Act, and to establish guidelines for determining the consistency of the local comprehensive plan or plan component with the Act.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-160 and 9VAC10-20-170 derived from VR173-02-01 § 5.1, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-170 Comprehensive plans

Local governments shall review and revise their comprehensive plans, as necessary, for compliance with § 62.1-44.15:74 of the Act and this chapter. As a minimum, the comprehensive plan or plan component shall consist of the following basic elements: (i) a summary of data collection; (ii) analysis and policy discussion(s); (iii) land use plan map(s); and (iv) implementing measures, including specific objectives and a time frame for accomplishment.

1. Local governments shall establish and maintain, as appropriate, an information base from which policy choices are made about future land use and development that will protect the quality of state waters. This element of the plan should be based upon the following, as applicable to the locality:

a. The location and extent of Chesapeake Bay Preservation Areas;

b. Physical constraints to development, including soil limitations;

c. The character and location of commercial and recreational fisheries and other aquatic resources;

d. Shoreline and streambank erosion problems;

e. Existing and proposed land uses;

f. Catalog of existing and potential water pollution sources;

g. Public and private waterfront access areas, including the general locations of or information about docks, piers, marinas, boat ramps, and similar water access facilities;

h. A map or map series accurately representing the above information.

2. As part of the comprehensive plan, local governments shall clearly indicate local policy on land use issues relative to water quality protection based on an analysis of the data referred to in subdivision 1 of this section. Local governments shall ensure consistency among the policies developed.

a. Local governments shall discuss each component of Chesapeake Bay Preservation Areas in relation to the types of land uses considered appropriate and consistent with the goals and objectives of the Act, this chapter, and their local programs.

b. As a minimum, local governments shall prepare policy statements for inclusion in the plan on the following issues, as applicable to the locality:

(1) Physical constraints to development, including a discussion of the relationship between soil limitations and existing and proposed land use, with an explicit discussion of soil suitability for septic tank use;

(2) Protection of potable water supply, including groundwater resources and threats to the water supply or groundwater resources from existing and potential pollution sources;

(3) Relationship of land use to commercial and recreational fisheries and other aquatic resources;

(4) Siting of docks and piers;

(5) Public and private access to waterfront areas and effect on water quality;

(6) Mitigation of the impacts of land use and its associated pollution upon water quality;

(7) Shoreline and streambank erosion problems; and

(8) Potential water quality improvement through reduction of existing pollution sources and the redevelopment of Intensely Developed Areas and other areas targeted for redevelopment.

c. For each of the policy issues listed above, the plan shall contain a discussion of the scope and importance of the issue, the policy adopted by the local government for that issue, and a description of how the local policy will be implemented.

d. Within the policy discussion, local governments shall address the relationship between the plan, existing and proposed land use, public services, and capital improvement plans and budgets to ensure a consistent local policy.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-170 and 9VAC10-20-171 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

Part VI Land Development Ordinances

9VAC25-830-180 Purpose

The purpose of this part is to assist local governments in the preparation of land use and development ordinances and regulations adopted pursuant to § 62.1-44.15:74 and Articles 1 (§ 15.2-2200 et seq.), 2 (§ 15.2-2210 et seq.), 4 (§ 15.2-2233 et seq.), 5 (§ 15.2-2239), 6 (§ 15.2-2240 et seq.), and 7 (§ 15.2-2280 et seq.) of Chapter 22 of Title 15.2 of the Code of Virginia that are consistent with the Act and this chapter, and to establish guidelines for determining the consistency of such ordinances and regulations with the Act and this chapter. Such ordinances and regulations include, but are not limited to, subdivision ordinances and zoning ordinances.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-180 and 9VAC10-20-181 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; Errata, 18:13 VA.R. 1763 March 11, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-190 Land development ordinances, regulations, and procedures

A. Local governments shall review and revise their land development regulations, as necessary, to comply with § 62.1-44.15:74 of the Act. To achieve this:

1. Local zoning ordinances shall ensure that the uses permitted by the local zoning regulations are consistent with the Act and this chapter;

2. Local land development ordinances and regulations shall incorporate either explicitly or by direct reference the performance criteria in Part IV (9VAC25-830-120 et seq.) of this chapter. Specific development standards that implement the performance criteria from subdivisions 1, 2 and 4 of 9VAC25-830-130 (minimizing land disturbance and impervious cover and preserving existing vegetation) shall be included;

3. Local land development ordinances and regulations shall protect the integrity of Chesapeake Bay Preservation Areas by incorporating standards to ensure (i) the protection of water quality; (ii) the preservation of Resource Protection Area land categories, as set forth in 9VAC25-830-80, including the 100-foot wide buffer area; and (iii) the compatibility of development with Resource Management Area land categories, as set forth in 9VAC25-830-90;

4. Local land development ordinances and regulations shall provide for (i) depiction of Resource Protection Area and Resource Management Area boundaries on plats and site plans, including a notation on plats of the requirement to retain an undisturbed and vegetated 100-foot wide buffer area, as specified in subdivision 3 of 9VAC25-830-140; (ii) a plat notation of the requirement for pump-out and 100% reserve drainfield sites for onsite sewage treatment systems, when applicable; and (iii) a plat notation of the permissibility of only water dependent facilities or redevelopment in Resource Protection Areas, including the 100-foot wide buffer area; and

5. Local governments shall require, during the plan of development review process, the delineation of the buildable areas that are allowed on each lot. The delineation of buildable areas shall be based on the performance criteria specified in Part IV (9VAC25-830-120 et seq.) of this chapter, local front and side yard setback requirements, and any other relevant easements or limitations regarding lot coverage.

B. Local governments shall undertake the following as necessary, to comply with § 62.1-44.15:74 of the Act:

1. Local governments shall evaluate the relationship between the submission requirements, performance standards, and permitted uses in local land development ordinances and regulations to identify any obstacles to achieving the water quality goals of the Act and this chapter as set forth in § 62.1-44.15:74 B of the Act, 9VAC25-830-50 and 9VAC25-830-120. Local governments shall revise these ordinances and regulations, as necessary, to eliminate any obstacles identified in the submission requirements or development standards.

2. Local governments shall review and revise their land development ordinances and regulations adopted pursuant to § 62.1-44.15:74 and Articles 1 (§ 15.2-2200 et seq.), 2 (§ 15.2-2210 et seq.), 4 (§ 15.2-2233 et seq.), 5 (§ 15.2-2239), 6 (§ 15.2-2240 et seq.), and 7 (§ 15.2-2280 et seq.) of Chapter 22 of Title 15.2 of the Code of Virginia to assure that their subdivision ordinances, zoning ordinances, and all other components of their local Chesapeake Bay Preservation Act programs are consistent in promoting and achieving the protection of state waters. In addition, local governments shall identify and resolve any conflicts among the components of the local programs and with other local ordinances, regulations and administrative policies, to assure that the intent of the Act and this chapter is fulfilled.

3. Local governments shall review and revise their land development ordinances and regulations to ensure consistency with the water quality protection goals, objectives, policies, and implementation strategies identified in the local comprehensive plan.

C. Local governments shall update and amend their ordinances and regulations to adopt and incorporate updated requirements in Part IV (9VAC25-830-120 et seq.) of this chapter based upon statutory revisions to Virginia Code § 62.1-44.15:72. by September 29, 2024.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-190 and 9VAC10-20-191 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; Errata, 18:13 VA.R. 1763 March 11, 2002.; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 1, eff. September 29, 2021.

Part VII Local Assistance and Local Program Consistency Review Process

9VAC25-830-200 Purpose

The purpose of this part is to assist local governments in the timely preparation of local programs to implement the Act and to establish an administrative procedure for determining local program consistency with the Act.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-200 and 9VAC10-20-211 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-210 Local assistance guidance

A. The department will prepare guidance to assist local governments in the administration of local programs in order to implement the Act and this chapter. The guidance will be updated periodically to reflect the most current planning and zoning techniques, effective best management practices, and amendments to the Act or regulations. The guidance will be made available to the public.

B. The guidance will recommend a schedule for the completion of local program elements and their submission to the department for its information to ensure timely achievement of the requirements of the Act and timely receipt of assistance. The department will consider compliance with the schedule in allocating financial and technical assistance.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-210 and 9VAC10-20-215 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

9VAC25-830-220 Department to establish liaison

The department will establish liaison with each local government to assist the local government in developing and implementing its local program, in obtaining technical and financial assistance, and in complying with the Act and this chapter.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-220 and 9VAC10-20-221 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

9VAC25-830-230 Planning district comments

Local governments are encouraged to enlist the assistance and comments of regional planning district agencies in the management of their local programs.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-230 and 9VAC10-20-225 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.

9VAC25-830-240 Preparation and submission of management program

Local governments must adopt the full management program, which will consist of Phases I-III as defined in this section and including any revisions to comprehensive plans, zoning ordinances, subdivision ordinances, and other local authorities necessary to implement the Act. Prior to adoption, local governments may submit any proposed revisions to the department for comments. Criteria are provided below for local government use in preparing local programs and the department's use in determining local program consistency.

1. Phase I shall consist of the designation of Chesapeake Bay Preservation Areas and adoption of the performance criteria. This phase of designating Chesapeake Bay Preservation Areas as an element of the local program should include:

a. Utilizing existing data and mapping resources to identify and describe tidal wetlands, nontidal wetlands, tidal shores, water bodies with perennial flow, flood plains, highly erodible soils including steep slopes, highly permeable areas, and other sensitive environmental resources as necessary to comply with Part III (9VAC25-830-70 et seq.) of this chapter;

b. Determining, based upon the identification and description, the extent of Chesapeake Bay Preservation Areas within the local jurisdiction;

c. Preparing an appropriate map or maps delineating Chesapeake Bay Preservation Areas;

d. Preparing amendments to local ordinances that incorporate the performance criteria of Part IV (9VAC25-830-120 et seq.) of this chapter or the model ordinance prepared by the department;

e. Establishing, if necessary, and incorporating a plan of development review process. Local governments shall make provisions as necessary to ensure that any development of land within Chesapeake Bay Preservation Areas shall be accomplished through a plan of development procedure pursuant to § 15.2-2286 A 8 of the Code of Virginia to ensure compliance with the Act and this chapter. Any exemptions from those review requirements shall be established and administered in a manner that ensures compliance with this chapter.

f. Conducting a public hearing. Prior to adopting Chesapeake Bay Preservation Areas and the performance criteria, each local government shall hold a public hearing to solicit public comment regarding these local program components.

g. Providing copies of the adopted program documents and subsequent changes thereto to the department for consistency review, as set forth in subdivision 5 of this section.

2. Phase II shall consist of local governments reviewing and revising their comprehensive plans, as necessary, for compliance with § 62.1-44.15:74 of the Act, in accordance with the provisions set forth in Part V (9VAC25-830-160 et seq.) of this chapter.

3. Phase III shall consist of local governments reviewing and revising their land development regulations and processes, which include but are not limited to zoning ordinances, subdivision ordinances, and the plan of development review process, as necessary, to comply with § 62.1-44.15:74 of the Act and to be consistent with the provisions set forth in Part VI (9VAC25-830-180 et seq.) of this chapter.

4. Consistent with §§ 62.1-44.15:73, 62.1-44.15:74, and 62.1-44.15:77 of the Act local governments may use civil penalties to enforce compliance with the requirements of local programs.

5. Review by the department.

a. The department will review proposed elements of a program phase within 60 days according to review policies adopted by the department. If the proposed program phase is consistent with the Act, the department will schedule a conference with the local government to determine what additional technical and financial assistance may be needed and available to accomplish the proposed program phase. If the proposed program phase or any part thereof is not consistent, the department will notify the local government in writing, stating the reasons for a determination of inconsistency and specifying needed changes. Copies of the adopted program documents and subsequent changes thereto shall be provided to the department.

b. The department will review locally adopted elements of a program phase according to review policies adopted by the board and as set forth in 9VAC25-830-260.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-240 and 9VAC10-20-231 derived from Virginia Register Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

Part VIII Implementation and Enforcement

9VAC25-830-250 Applicability

The Act requires that the department ensure that local governments comply with the Act and regulations and that their comprehensive plans, zoning ordinances and subdivision ordinances are in accordance with the Act. To satisfy these requirements, the board has adopted this chapter, and the department will monitor each local government's compliance with the Act and this chapter.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-250 and 9VAC10-20-240 derived from VR173-02-01 § 6.1, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

9VAC25-830-260 Administrative proceedings

Subdivision 8 of § 62.1-44.15:69 and § 62.1-44.15:71 of the Act provide that the department shall ensure that local government comprehensive plans, subdivision ordinances and zoning ordinances are in accordance with the provisions of the Act, and that it shall determine such compliance in accordance with the provisions of the Administrative Process Act. The Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall govern the review activities and proceedings of the department and the judicial review thereof. The department will provide a copy of its decision to the local government. If any deficiencies are found, the department will establish a schedule for the local government to come into compliance.

1. In order to carry out its mandated responsibilities under subdivision 10 of § 62.1-44.15:69 and § 62.1-44.15:71 of the Act, the department will:

a. Require that each Tidewater local government submit an annual implementation report outlining the implementation of the local program. The department will develop reporting criteria which outline the information to be included in the reports and the time frame for their submission. The department will use the information in these reports to assess local patterns of compliance with the Act and this chapter and to evaluate the need for an administrative proceeding to more closely review any individual local government's compliance. All proceedings of this nature will be developed and conducted in accordance with this section.

b. Develop a compliance review process. Reviews will occur on a five-year cycle, and, when feasible, will be conducted as part of the local government's comprehensive plan review and update process. The department may also conduct a comprehensive or partial program compliance review and evaluation of a local government program more frequently than the standard schedule. The review process shall consist of a self-evaluation by each local government of local program implementation and enforcement as well as an evaluation by department staff. Based on these evaluations, the department may find the program compliant or, if deficiencies are found, the department will establish a corrective action plan and a schedule for the local government to come into compliance. The department shall provide a copy of its decision to the local government that specifies the deficiencies, actions needed to be taken, and the approved compliance schedule. If the local government has not implemented the necessary compliance actions identified by the department within the schedule established by the department, or such additional period as is granted to complete the implementation of the compliance actions, then the department shall have the authority to issue a special order to any local government imposing a civil penalty not to exceed $5,000 per day with the maximum amount not to exceed $20,000 per day per violation for noncompliance with the state program, to be paid into the state treasury and deposited into the Virginia Stormwater Management Fund established by § 62.1-44.15:29 of the Code of Virginia.

(1) The self-evaluation shall be conducted by each local government according to procedures developed by the department.

(2) At a minimum, the department staff's evaluation will include a review of previous annual reports and site visits.

2. Certification of a local program. Upon a satisfactory finding resulting from the compliance review process, the department will certify that the local program is being implemented and enforced by the local government consistent with the Act and this chapter and is, therefore, in compliance. Such a certification shall be valid for a period of five years until the local government's next scheduled review, unless the department finds a pattern of noncompliance during the interim period of time, pursuant to subdivision 1 of this section.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-260 and 9VAC10-20-250 derived from VR173-02-01 § 6.2, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002 amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

9VAC25-830-270 Legal proceedings

Subdivision 10 of § 62.1-44.15:69 and § 62.1-44.15:71 of the Act provide that the department shall take administrative and legal actions to ensure compliance by local governments with the provisions of the Act. Before taking legal action against a local government to ensure compliance, the department shall, unless it finds extraordinary circumstances, initiate a proceeding under the Act and 9VAC25-830-260 to obtain such compliance and give the local government at least 15 days notice of the time and place at which it will decide whether or not to take legal action. If it finds extraordinary circumstances, the department may proceed directly to request the Attorney General to enforce compliance with the Act and this chapter. Administrative actions will be taken pursuant to 9VAC25-830-260.

History

• Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
• Historical Notes: Former 4VAC50-90-270 and 9VAC10-20-260 derived from VR173-02-01 § 6.3, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022.

Part IX Miscellaneous

9VAC25-830-280 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 38, Issue 25, eff. August 31, 2022.

Chapter 870 Virginia Stormwater Management Program (VSMP) Regulation [Repealed]

Part I Definitions, Purpose, and Applicability [Repealed]

9VAC25-870-10 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-10 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 24, Issue 20, eff. July 9, 2008; Volume 27, Issue 26, eff. September 13, 2011; Volume 29, Issue 4, eff. November 21, 2012; Errata, 29:8 VA.R. 1382 December 17, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 33, Issue 22, eff. July 26, 2017; Volume 35, Issue 4, eff. November 14, 2018; Volume 37, Issue 5, eff. November 25, 2020; Volume 38, Issue 25, eff. August 31, 2022; Volume 40, Issue 4, eff. November 8, 2023; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-15 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 33, Issue 22, eff. July 26, 2017; Volume 34, Issue 19, eff. June 13, 2018; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-20 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-20, derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 27, Issue 26, eff. September 13, 2011; Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-30 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-30 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 27, Issue 26, eff. September 13, 2011; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered0, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part II Administrative and Technical Criteria for Land-Disturbing Activities [Repealed]

9VAC25-870-40 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-40 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 27, Issue 26, eff. September 13, 2011; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-45 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-45 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-46 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-46 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-47 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-47 and 4VAC50-60-47.1 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Volume 30, Issue 11, eff. February 26, 2014; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-48 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-48 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Volume 30, Issue 11, eff. February 26, 2014; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-51 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-51 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 35, Issue 4, eff. November 14, 2018; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-52 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 35, Issue 4, eff. November 14, 2018; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part II A General Administrative Criteria for Regulated Land-Disturbing Activities [Repealed]

9VAC25-870-53 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-53 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-54 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-54 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-55 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-55 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Volume 30, Issue 11, eff. February 26, 2014; Volume 30, Issue 24, eff. July 1, 2014; Volume 34, Issue 19, eff. June 13, 2018; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-56 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-56 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-57 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-57 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-58 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-58 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-59 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-59 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 40, Issue 4, eff. November 8, 2023; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part II B Technical Criteria for Regulated Land-Disturbing Activities [Repealed]

9VAC25-870-62 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-62 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-63 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-63 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-65 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-65 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 37, Issue 5, eff. November 25, 2020; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-66 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-66 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 35, Issue 4, eff. November 14, 2018; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-69 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-69 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-72 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-72 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-74 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-74 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-76 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-76, derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-85 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-85 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-92 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-92 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part II C Technical Criteria for Regulated Land-Disturbing Activities: Grandfathered Projects and Projects Subject to the Provisions of 9VAC25-870-47 B [Repealed]

9VAC25-870-93 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-93.1 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-94 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-94 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-95 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-95 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-96 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-96 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-97 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-97 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-98 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-98 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-99 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-99 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part III General Provisions Applicable to VSMPs and VSMP Authorities [Repealed]

9VAC25-870-100 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-100 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-102 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-102 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-103 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-103 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 35, Issue 4, eff. November 14, 2018; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part III A Programs Operated by a VSMP Authority [Repealed]

9VAC25-870-104 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-104 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-106 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-106 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-108 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-108 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-112 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-112 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 37, Issue 5, eff. November 25, 2020; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-114 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-114 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-116 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-116 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-118 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-118 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-122 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-122 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-126 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-126 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part III B Department of Environmental Quality Procedures for Review of VSMPs [Repealed]

9VAC25-870-142 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-142 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-144 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-144 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part III C Authorization Procedures for Virginia Stormwater Management Programs [Repealed]

9VAC25-870-146 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-146 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-148 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-148 derived from Virginia Register Volume 27, Issue 26, eff. September 13, 2011; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 35, Issue 4, eff. November 14, 2018; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-150 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-150 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 27, Issue 26, eff. September 13, 2011; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 33, Issue 26, eff. September 20, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part IV Technical Criteria and State Permit Application Requirements for State Projects [Repealed]

9VAC25-870-160 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-160 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 34, Issue 19, eff. June 13, 2018; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-170 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-170 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-180 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-180 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-190 (Repealed.)

9VAC25-870-200 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-200 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part V Reporting [Repealed]

9VAC25-870-210 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-210 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-220 (Repealed.)

Part VI General Program Requirements Related to MS4s and Land-Disturbing Activities [Repealed]

9VAC25-870-300 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-300 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-310 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-310 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-320 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-320 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-330 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-330 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; Errata, 29:8 VA.R. 1382 December 17, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-340 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-340 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-350 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-350 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part VII State Permit Applications [Repealed]

9VAC25-870-360 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-360 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-365 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-370 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-370 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-380 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-380 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-390 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-390 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-400 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-400 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-410 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-410 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-420 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-420 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part VIII State Permit Conditions [Repealed]

9VAC25-870-430 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-430 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-440 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-440 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-450 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-450 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-460 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-460 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-470 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-470 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-480 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-480 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-490 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-490 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part IX Public Involvement [Repealed]

9VAC25-870-500 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-500 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-510 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-510 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-520 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-520 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-530 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-530 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-540 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-540 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-550 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-550 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-555 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-556 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-557 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-560 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-560 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-570 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-570 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-580 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-580 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-590 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-590 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-600 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-600 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part X Transfer, Modification, Revocation and Reissuance, and Termination of State Permits [Repealed]

9VAC25-870-610 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-610 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-620 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-620 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-630 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-630 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-640 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-640 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-650 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-650 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 33, Issue 22, eff. July 26, 2017; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part XI Enforcement of State Permits [Repealed]

9VAC25-870-660 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-660 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part XII Miscellaneous [Repealed]

9VAC25-870-670 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-670 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 38, Issue 25, eff. August 31, 2022.

9VAC25-870-680 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-680 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-690 (Repealed.)

Part XIII Fees [Repealed]

9VAC25-870-700 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-700 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-720 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-720 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-730 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-730 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-740 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-740 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-750 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-750 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-760 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-760 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Volume 30, Issue 11, eff. February 26, 2014; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-770 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-770 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-780 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-780 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-790 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-790 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-800 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-800 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-810 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-810 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-820 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-820 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 11, eff. February 26, 2014; Volume 30, Issue 24, eff. July 1, 2014; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-825 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-825 Derived from Virginia Register Volume 26, Issue 9, eff. February 3, 2010; amended, Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 11, eff. February 26, 2014; amended, Volume 30, Issue 24, eff. July 1, 2014; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-870-830 (Repealed.)

History

• Historical Notes: Former 4VAC50-60-830 derived from Virginia Register Volume 21, Issue 3, eff. January 29, 2005; amended, Virginia Register Volume 26, Issue 9, eff. February 3, 2010; Volume 29, Issue 4, eff. November 21, 2012; renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 24, eff. July 1, 2014; Volume 38, Issue 25, eff. August 31, 2022; repealed, Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Chapter 875 Virginia Erosion and Stormwater Management Regulation

Part I Definitions and Applicability for Virginia Erosion and Stormwater Management Programs and Virginia Erosion and Sediment Control Programs

9VAC25-875-10 General

For the purpose of applying this chapter, the words and terms shall have the meanings given to them in 9VAC25-875-20. The words and terms defined in Part II (9VAC25-875-40 et seq.), Part III (9VAC25-875-210 et seq.), Article 4 (9VAC25-875-670 et seq.)of Part V (9VAC25-875-470 et seq.), and Part VII (9VAC25-875-850 et seq.) of this chapter are applicable only to the part in which they are defined.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-20 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"10-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedance probability with a 10% chance of being equaled or exceeded in any given year.

"Adequate channel" means a channel that will convey the designated frequency storm event, neither overtopping the channel bank nor causing erosive damage to the channel bed or banks.

"Agreement in lieu of a plan" means a contract between the VESMP authority or the department acting as a VSMP authority and the owner or permittee that specifies methods that shall be implemented to comply with the requirements of VESMA for the construction of a (i) single-family detached residential structure or (ii) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5.0%; such contract may be executed by the VESMP authority in lieu of a soil erosion control and stormwater management plan or by the department acting as a VSMP authority in lieu of a stormwater management plan.

"Applicant" means a person submitting a soil erosion control and stormwater management plan to a VESMP authority, or a stormwater management plan to the department when it is serving as a VSMP authority, for approval in order to obtain authorization to commence a land-disturbing activity.

"Best management practice" or "BMP" means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices, including both structural and nonstructural practices, to prevent or reduce the pollution of surface waters and groundwater systems.

1. "Nonproprietary best management practice" means both structural and nonstructural practices to prevent or reduce the pollution of surface waters and groundwater systems that are in the public domain and are not protected by trademark or patent or copyright.

2. "Proprietary best management practice" means both structural and nonstructural practices to prevent or reduce the pollution of surface waters and groundwater systems that are privately owned and controlled and may be protected by trademark or patent or copyright.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.

"Causeway" means a temporary structural span constructed across a flowing watercourse or wetland to allow construction traffic to access the area without causing erosion damage.

"Certification" means the designation issued by the department, on behalf of the Commonwealth, to individuals who have completed department-approved training programs and met any additional eligibility requirements or in other ways demonstrated adequate knowledge and experience in accordance with the eligibility requirements of 9VAC25-875-410 related to the specified classifications (9VAC25-875-400) within the separate subject areas of ESC or SWM or both.

"Certified inspector" means an employee or agent of a VESCP, VESMP, or VSMP authority who (i) holds a certification from the department in the area of project inspection or (ii) is enrolled in the department's training program for project inspection and successfully completes such program within one year after enrollment.

"Certified plan reviewer" means an employee or agent of a VESCP, VESMP, or VSMP authority who (i) holds a certification from the department in the area of plan review; (ii) is enrolled in the department's training program for plan review and successfully completes such program within one year after enrollment; or (iii) is licensed as a professional engineer, architect, landscape architect, land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia, or professional soil scientist as defined in § 54.1-2200 of the Code of Virginia.

"Certified program administrator" means an employee or agent of a VESCP, VESMP, or VSMP authority who holds a certification from the department in the classification of program administrator.

"Channel" means a natural stream or manmade waterway.

"Chesapeake Bay Preservation Act" means Article 2.5 (§ 62.1-44.15:67 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Chesapeake Bay Preservation Area" means any land designated by a local government pursuant to Part III (9VAC25-830-70 et seq.) of the Chesapeake Bay Preservation Area Designation and Management Regulations and § 62.1-44.15:74 of the Code of Virginia. A Chesapeake Bay Preservation Area shall consist of a Resource Protection Area and a Resource Management Area as defined in the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830).

"Classification" means the four specific certification designations assigned to the roles of program administrator, plan reviewer, inspector, and combined administrator within the areas of ESC, SWM, or both ESC and SWM for a dual classification.

"Clean Water Act" or "CWA" means the federal Clean Water Act (33 USC § 1251 et seq.), formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Public Law 96-483, and Public Law 97-117, or any subsequent revisions thereto.

"Cofferdam" means a watertight temporary structure in a river, lake, or other body of water for keeping the water from an enclosed area that has been pumped dry so that bridge foundations, dams, or other submerged structural pieces may be constructed.

"Combined administrator for ESC" means anyone who is responsible for performing the combined duties of a program administrator, plan reviewer, and inspector of a VESCP authority or the ESC component of a VESMP authority.

"Combined administrator for SWM" means anyone who is responsible for performing the combined duties of a program administrator, plan reviewer, and inspector of a VSMP authority or the SWM component of a VESMP authority.

"Common plan of development or sale" means a contiguous area where separate and distinct construction activities may be taking place at different times on different schedules.

"Comprehensive stormwater management plan" means a plan, which may be integrated with other land use plans or regulations, that specifies how the water quality components, quantity components, or both of stormwater are to be managed on the basis of an entire watershed or a portion thereof. The plan may also provide for the remediation of erosion, flooding, and water quality and quantity problems caused by prior development.

"Construction activity" means any clearing, grading, or excavation associated with large construction activity or associated with small construction activity.

"Control measure" means any BMP, stormwater facility, or other method used to minimize the discharge of pollutants to state waters.

"Controversial permit" means a water permitting action for which a public hearing has been granted pursuant to 9VAC25-875-1120 and 9VAC25-875-1130.

"CWA and regulations" means the Clean Water Act and applicable regulations published in the Code of Federal Regulations promulgated thereunder. For the purposes of this chapter, it includes state program requirements.

"Dam" means a barrier to confine or raise water for storage or diversion, to create a hydraulic head, to prevent gully erosion, or to retain soil, rock, or other debris.

"Denuded" means a term applied to land that has been physically disturbed and no longer supports vegetative cover.

"Department" means the Department of Environmental Quality.

"Dike" means an earthen embankment constructed to confine or control water, especially one built along the banks of a river to prevent overflow of lowlands; levee.

"Director" means the Director of the Department of Environmental Quality or the director's designee.

"Discharge," when used without qualification, means the discharge of a pollutant.

"Discharge of a pollutant" means:

1. Any addition of any pollutant or combination of pollutants to state waters from any point source; or

2. Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft that is being used as a means of transportation.

This definition includes additions of pollutants into surface waters from surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger.

"District" or "soil and water conservation district" means a political subdivision of the Commonwealth organized in accordance with the provisions of Article 3 (§ 10.1-506 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia.

"Diversion" means a channel with a supporting ridge on the lower side constructed across or at the bottom of a slope for the purpose of intercepting surface runoff.

"Dormant" means denuded land that is not actively being brought to a desired grade or condition.

"Drainage area" means a land area, water area, or both from which runoff flows to a common point.

"Dual combined administrator for ESC and SWM" means anyone who is responsible for performing the combined duties of a program administrator, plan reviewer, and inspector of a VESMP authority.

"Energy dissipator" means a nonerodible structure that reduces the velocity of concentrated flow to reduce its erosive effects.

"Environmental Protection Agency" or "EPA" means the U.S. Environmental Protection Agency.

"Erosion and sediment control plan" means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

"Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program" or “ESCL” means Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Erosion impact area" means an area of land that is not associated with a current land-disturbing activity but is subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.

"ESC" means erosion and sediment control.

"Farm building or structure" means the same as that term is defined in § 36-97 of the Code of Virginia and also includes any building or structure used for agritourism activity, as defined in § 3.2-6400 of the Code of Virginia, and any related impervious services, including roads, driveways, and parking areas.

"Flood fringe" means the portion of the floodplain outside the floodway that is usually covered with water from the 100-year flood or storm event. This includes the flood or floodway fringe designated by the Federal Emergency Management Agency.

"Flooding" means a volume of water that is too great to be confined within the banks or walls of the stream, water body, or conveyance system and that overflows onto adjacent lands, thereby causing or threatening damage.

"Floodplain" means the area adjacent to a channel, river, stream, or other water body that is susceptible to being inundated by water normally associated with the 100-year flood or storm event. This includes the floodplain designated by the Federal Emergency Management Agency.

"Flood-prone area" means the component of a natural or restored stormwater conveyance system that is outside the main channel. Flood-prone areas may include the floodplain, the floodway, the flood fringe, wetlands, riparian buffers, or other areas adjacent to the main channel.

"Floodway" means the channel of a river or other watercourse and the adjacent land areas, usually associated with flowing water, that must be reserved in order to discharge the 100-year flood or storm event without cumulatively increasing the water surface elevation more than one foot. This includes the floodway designated by the Federal Emergency Management Agency.

"Flume" means a constructed device lined with erosion-resistant materials intended to convey water on steep grades.

"General permit" means a permit authorizing a category of discharges under the CWA and the VESMA within a geographical area.

"Hydrologic Unit Code" or "HUC" means a watershed unit established in the most recent version of Virginia's 6th Order National Watershed Boundary Dataset unless specifically identified as another order.

"Impervious cover" means a surface composed of material that significantly impedes or prevents natural infiltration of water into soil.

"Incorporated place" means a city, town, township, or village that is incorporated under the Code of Virginia.

"Inspection" means an onsite review of the project's compliance with any applicable design criteria, or an onsite review to obtain information or conduct surveys or investigations necessary in the implementation or enforcement of the VESMA, ESCL, and applicable regulations.

"Inspector" means the individual who, as a representative of a VESCP authority, a VESMP authority, or a VSMP authority, is responsible for periodically examining the ESC, SWM, or both ESC and SWM activities and premises of a land-disturbing activity for compliance with the ESCL VESMA, and associated regulations as may be applicable.

"Karst area" means any land area predominantly underlain at the surface or shallow subsurface by limestone, dolomite, or other soluble bedrock regardless of any obvious surface karst features.

"Karst features" means sinkholes, sinking and losing streams, caves, large flow springs, and other such landscape features found in karst areas.

"Land disturbance" or “land-disturbing activity” means a manmade change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, or filling of land.

"Land-disturbance approval" means an approval allowing a land-disturbing activity to commence issued by (i) a VESMP or VSMP authority after the requirements of § 62.1-44.15:34 of the Code of Virginia have been met or (ii) a VESCP authority after the requirements of § 62.1-44.15:55 of the Code of Virginia have been met.

"Large construction activity" means construction activity, including clearing, grading, and excavation, except operations that result in the disturbance of less than five acres of total land area. "Large construction activity" also includes the disturbance of less than five acres of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more. "Large construction activity" does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.

"Linear development project" means a land-disturbing activity that is linear in nature, such as but not limited to (i) the construction of electric and telephone utility lines and natural gas pipelines; (ii) construction of tracks, rights-of-way, bridges, communication facilities, and other related structures of a railroad company; (iii) highway construction projects; (iv) construction of stormwater channels and stream restoration activities; and (v) water and sewer lines. Private subdivision roads or streets shall not be considered linear development projects.

"Live watercourse" means a definite channel with bed and banks within which concentrated water flows continuously.

"Locality" means a county, city, or town.

"Localized flooding" means smaller scale flooding that may occur outside of a stormwater conveyance system. This may include high water, ponding, or standing water from stormwater runoff, which is likely to cause property damage or unsafe conditions.

"Main channel" means the portion of the stormwater conveyance system that contains the base flow and small frequent storm events.

"Major modification" means the modification or amendment of an existing MS4 individual permit before its expiration that is not a minor modification as defined in this chapter.

"Manmade" means constructed by man.

"Minimize" means to reduce or eliminate the discharge of pollutants to the extent achievable using stormwater controls that are technologically available and economically practicable.

"Minor modification" means, for the purposes of this chapter, minor modification or amendment of an existing permit before its expiration for the reasons listed at 40 CFR 122.63 and as specified in 9VAC25-875-1240. "Minor modification" for the purposes of this chapter also means other modifications and amendments not requiring extensive review and evaluation, including changes in EPA promulgated test protocols, increasing monitoring frequency requirements, changes in sampling locations, and changes to compliance dates within the overall compliance schedules. A minor permit modification or amendment does not substantially alter permit conditions, substantially increase or decrease the amount of surface water impacts, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.

"Municipal separate storm sewer system" or "MS4" means the same as the term "municipal separate storm sewer" is defined in § 62.1-44.3 of the Code of Virginia.

"Municipal Separate Storm Sewer System Management Program" or "MS4 Program" means a management program covering the duration of a permit for a MS4 that includes a comprehensive planning process that involves public participation and intergovernmental coordination to reduce the discharge of pollutants to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA and regulations and the VESMA and its attendant regulations, using management practices, control techniques, and system, design, and engineering methods, and such other provisions that are appropriate.

"Natural channel design concepts" means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain.

"Natural stream" means a tidal or nontidal watercourse that is part of the natural topography. It usually maintains a continuous or seasonal flow during the year and is characterized as being irregular in cross-section with a meandering course. Constructed channels, such as drainage ditches or swales, shall not be considered natural streams; however, channels designed utilizing natural channel design concepts may be considered natural streams.

"Nonerodible" means a material, for example, riprap, concrete, or plastic, that will not experience surface wear due to natural forces.

"Nonpoint source pollution" means pollution such as sediment, nitrogen, phosphorous, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater.

"Operator" means the owner or operator of any facility or activity subject to the VESMA and this chapter. In the context of stormwater associated with a large or small construction activity, "operator" means any person associated with a construction project that meets either of the following two criteria: (i) the person has direct operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications or (ii) the person has day-to-day operational control of those activities at a project that are necessary to ensure compliance with a stormwater pollution prevention plan for the site or other permit or VESMP authority permit conditions (i.e., the person is authorized to direct workers at a site to carry out activities required by the stormwater pollution prevention plan or comply with other permit conditions). In the context of stormwater discharges from an MS4, "operator" means the operator of the regulated MS4 system.

"Owner" means the same as that term is defined in § 62.1-44.3 of the Code of Virginia. For a regulated land-disturbing activity that does not require a permit, "owner" also means the owner of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.

"Peak flow rate" means the maximum instantaneous flow from a prescribed design storm at a particular location.

"Percent impervious" means the impervious area within the site divided by the area of the site multiplied by 100.

"Permit" means a VPDES permit issued by the department pursuant to § 62.1-44.15 of the Code of Virginia for stormwater discharges from a land-disturbing activity or MS4.

"Permittee" means the person to whom the permit is issued.

"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity.

"Plan reviewer" means anyone who is responsible for reviewing and evaluating ESC, SWM, or ESM plans and supporting documents for approval by a VESCP authority in the area of ESC, a VSMP authority in the area of SWM, or a VESMP authority in the areas of both ESC and SWM.

"Point of discharge" means a location at which concentrated stormwater runoff is released.

"Point source" means any discernible, confined, and discrete conveyance including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff.

"Pollutant discharge" means the average amount of a particular pollutant measured in pounds per year or other standard reportable unit as appropriate, delivered by stormwater runoff.

"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (i) harmful or detrimental or injurious to the public health, safety, or welfare, or to the health of animals, fish, or aquatic life; (ii) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (a) an alteration of the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial wastes, or other wastes to state waters by any owner that by itself is not sufficient to cause pollution, but that, in combination with such alteration of or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (b) the discharge of untreated sewage by any owner into state waters; and (c) contributing to the contravention of standards of water quality duly established by the State Water Control Board, are "pollution" for the terms and purposes of this chapter.

"Post-development" refers to conditions that reasonably may be expected or anticipated to exist after completion of the land development activity on a specific site or tract of land.

"Predevelopment" refers to the conditions that exist at the time that plans for the land-disturbing activity are submitted to the VESCP, VESMP, or VSMP authority. Where phased development or plan approval occurs (e.g., preliminary grading, demolition of existing structures, or roads and utilities), the existing conditions at the time prior to the commencement of land-disturbing activity shall establish predevelopment conditions.

"Prior developed lands" means land that has been previously utilized for residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures and that will have the impervious areas associated with those uses altered during a land-disturbing activity.

"Program administrator" means the individual responsible for administering and enforcing the program of a VESCP authority in the area of ESC, the program of a VSMP authority in the area of SWM, or the program of a VESMP authority in the areas of both ESC and SWM.

"Qualified personnel" means a person knowledgeable in the principles and practices of erosion and sediment and stormwater management controls who possesses the skills to assess conditions at the construction site for the operator that could impact stormwater quality and quantity and to assess the effectiveness of any sediment and erosion control measures or stormwater management facilities selected to control the quality and quantity of stormwater discharges from the construction activity.

"Responsible land disturber" or "RLD" means an individual holding a certificate issued by the department who is responsible for carrying out the land-disturbing activity in accordance with the approved erosion and sediment control plan. The RLD may be the owner, applicant, permittee, designer, superintendent, project manager, contractor, or any other project or development team member. The RLD must be designated on the erosion and sediment control plan or permit as defined in this chapter as a prerequisite for engaging in land disturbance.

"Runoff" or "stormwater runoff" means that portion of precipitation that is discharged across the land surface or through conveyances to one or more waterways.

"Runoff characteristics" means maximum velocity, peak flow rate, volume, and flow duration.

"Runoff volume" means the volume of water that runs off the land development project from a prescribed storm event.

"Rural Tidewater locality" means any locality that is (i) subject to the provisions of the Chesapeake Bay Preservation Act and (ii) eligible to join the Rural Coastal Virginia Community Enhancement Authority established by Chapter 76 (§ 15.2-7600 et seq.) of Title 15.2 of the Code of Virginia.

"Sediment basin" means a temporary impoundment built to retain sediment and debris with a controlled stormwater release structure.

"Sediment trap" means a temporary impoundment built to retain sediment and debris that is formed by constructing an earthen embankment with a stone outlet.

"Sheet flow" or "overland flow" means shallow, unconcentrated, and irregular flow down a slope. The length of strip for overland flow usually does not exceed 200 feet under natural conditions.

"Shoreline erosion control project" means an erosion control project approved by local wetlands boards, the Virginia Marine Resources Commission, the department, or the U.S. Army Corps of Engineers and located on tidal waters and within nonvegetated or vegetated wetlands as defined in Title 28.2 of the Code of Virginia.

"Site" means the land or water area where any facility or land-disturbing activity is physically located or conducted, including adjacent land used or preserved in connection with the facility or land-disturbing activity. Areas channelward of mean low water in tidal Virginia shall not be considered part of a site.

"Site hydrology" means the movement of water on, across, through, and off the site as determined by parameters including soil types, soil permeability, vegetative cover, seasonal water tables, slopes, land cover, and impervious cover.

"Slope drain" means tubing or conduit made of nonerosive material extending from the top to the bottom of a cut or fill slope with an energy dissipator at the outlet end.

"Small construction activity" means:

1. Construction activities including clearing, grading, and excavating that results in land disturbance of equal to or greater than one acre and less than five acres. "Small construction activity" also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five acres. "Small construction activity" does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. The department may waive the otherwise applicable requirements in a general permit for a stormwater discharge from construction activities that disturb less than five acres where stormwater controls are not needed based on an approved total maximum daily load (TMDL) that addresses the pollutants of concern or, for nonimpaired waters that do not require TMDLs, an equivalent analysis that determines allocations for small construction sites for the pollutants of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety. For the purpose of this subdivision, the pollutants of concern include sediment or a parameter that addresses sediment (such as total suspended solids, turbidity, or siltation) and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity. The operator shall certify to the department that the construction activity will take place, and stormwater discharges will occur, within the drainage area addressed by the TMDL or provide an equivalent analysis. As of the start date in Table 1 of 9VAC25-31-1020, all certifications submitted in support of the waiver shall be submitted electronically by the owner or operator to the department in compliance with this subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit.

2. Any other construction activity designated by either the department or the EPA regional administrator, based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to surface waters.

"Soil erosion" means the movement of soil by wind or water into state waters or onto lands in the Commonwealth.

"Soil erosion control and stormwater management plan," "erosion control and stormwater management plan," or "ESM plan" means a document describing methods for controlling soil erosion and managing stormwater in accordance with the requirements adopted pursuant to the VESMA. The ESM plan may consist of aspects of the erosion and sediment control plan and the stormwater management plan as each is described in this chapter.

"Stabilized" means land that has been treated to withstand normal exposure to natural forces without incurring erosion damage.

"State" means the Commonwealth of Virginia.

"State application" or "application" means the standard forms, including any additions, revisions, or modifications to the forms, approved by the administrator and the department for applying for a permit.

"State project" means any land development project that is undertaken by any state agency, board, commission, authority, or any branch of state government, including state-supported institutions of higher learning.

"State Water Control Law" means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Storm sewer inlet" means a structure through which stormwater is introduced into an underground conveyance system.

"Stormwater," for the purposes of the VESMA, means precipitation that is discharged across the land surface or through conveyances to one or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage.

"Stormwater conveyance system" means a combination of drainage components that are used to convey stormwater discharge, either within or downstream of the land-disturbing activity. This includes:

1. "Manmade stormwater conveyance system" means a pipe, ditch, vegetated swale, or other stormwater conveyance system constructed by man except for restored stormwater conveyance systems;

2. "Natural stormwater conveyance system" means the main channel of a natural stream and the flood-prone area adjacent to the main channel; or

3. "Restored stormwater conveyance system" means a stormwater conveyance system that has been designed and constructed using natural channel design concepts. "Restored stormwater conveyance system" includes the main channel and the flood-prone area adjacent to the main channel.

"Stormwater detention" means the process of temporarily impounding runoff and discharging it through a hydraulic outlet structure to a downstream conveyance system.

"Stormwater management facility" means a control measure that controls stormwater runoff and changes the characteristics of that runoff including the quantity and quality, the period of release or the velocity of flow.

"Stormwater management plan" means a document containing material describing methods for complying with the requirements of a VESMP or VSMP.

"Stormwater Pollution Prevention Plan" or "SWPPP" means a document that is prepared in accordance with good engineering practices and that identifies potential sources of pollutants that may reasonably be expected to affect the quality of stormwater discharges. A SWPPP required under a VESMP or VSMP for construction activities shall identify and require the implementation of control measures and shall include or incorporate by reference an approved erosion and sediment control plan, an approved stormwater management plan, and a pollution prevention plan.

"Subdivision" means the same as defined in § 15.2-2201 of the Code of Virginia.

"Surface waters" means:

1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a. That are or could be used by interstate or foreign travelers for recreational or other purposes;

b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c. That are used or could be used for industrial purposes by industries in interstate commerce;

4. All impoundments of waters otherwise defined as surface waters under this definition;

5. Tributaries of waters identified in subdivisions 1 through 4 of this definition;

6. The territorial sea; and

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subdivisions 1 through 6 of this definition.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA and the law, are not surface waters. Surface waters do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other agency, for the purposes of the CWA, the final authority regarding the CWA jurisdiction remains with EPA.

"SWM" means stormwater management.

"Temporary vehicular stream crossing" means a temporary nonerodible structural span installed across a flowing watercourse for use by construction traffic. Structures may include bridges, round pipes, or pipe arches constructed on or through nonerodible material.

"Total maximum daily load" or "TMDL" means the sum of the individual wasteload allocations for point sources, load allocations (LAs) for nonpoint sources, natural background loading, and a margin of safety. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. The TMDL process provides for point versus nonpoint source trade-offs.

"TMDL Action Plan" means the scheduled steps of activities that the MS4 operator will take to address the assumptions and requirements of the TMDL wasteload allocation. TMDL action plans may be implemented in multiple phases over more than one permit cycle.

"Town" means an incorporated town.

"Two-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedance probability with a 50% chance of being equaled or exceeded in any given year.

"Virginia Erosion and Sediment Control Program" or "VESCP" means a program approved by the department that is established by a VESCP authority for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources and shall include such items where applicable as local ordinances, rules, policies and guidelines, technical materials, and requirements for plan review, inspection, and evaluation consistent with the requirements of the ESCL.

"Virginia Erosion and Sediment Control Program authority" or "VESCP authority" means a locality that is approved by the department to operate a Virginia Erosion and Sediment Control Program in accordance with Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia. Only a locality for which the department administered a Virginia Stormwater Management Program as of July 1, 2017, is authorized to choose to operate a VESCP pursuant to Article 2.4 (§ 62.1-44.15:51 et seq. of the Code of Virginia). A locality that has chosen not to establish a VESMP pursuant to subdivision B 3 of § 62.1-44.15:27 of the Code of Virginia is required to become a VESCP authority in accordance with the ESCL.

"Virginia Erosion and Stormwater Management Act" or "VESMA" means Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1, State Water Control Law, of Title 62.1 of the Code of Virginia.

"Virginia Erosion and Stormwater Management Program" or "VESMP" means a program established by a VESMP authority for the effective control of soil erosion and sediment deposition and the management of the quality and quantity of runoff resulting from land-disturbing activities to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. The program shall include such items as local ordinances, rules, requirements for permits and land-disturbance approvals, policies and guidelines, technical materials, and requirements for plan review, inspection, and enforcement consistent with the requirements of the VESMA.

"Virginia Erosion and Stormwater Management Program authority" or "VESMP authority" means the department or a locality approved by the department to operate a VESMP. For state agency or federal entity land-disturbing activities and land-disturbing activities subject to approved standards and specifications, the department shall serve as the VESMP authority.

"Virginia Pollutant Discharge Elimination System permit" or "VPDES permit" means a document issued by the department pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters.

"Virginia Stormwater BMP Clearinghouse" means a collection that contains detailed design standards and specifications for control measures that may be used in Virginia to comply with the requirements of the VESMA and associated regulations.

"Virginia Stormwater Management Handbook" means a collection of pertinent information that provides general guidance for compliance with the VESMA and associated regulations and is developed by the department with advice from a stakeholder advisory committee.

"Virginia Stormwater Management Program" or "VSMP" means a program established by the department pursuant to § 62.1-44.15:27.1 of the Code of Virginia on behalf of a locality on or after July 1, 2014, to manage the quality and quantity of runoff resulting from any land-disturbing activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or more of land disturbance.

"Virginia Stormwater Management Program authority" or "VSMP authority" means the department when administering a VSMP on behalf of a locality that, pursuant to subdivision B 3 of § 62.1-44.15:27 of the Code of Virginia, has chosen not to adopt and administer a VESMP.

"Wasteload allocation" or "wasteload" means the portion of a receiving surface water's loading or assimilative capacity allocated to one of its existing or future point sources of pollution. Wasteload allocations are a type of water quality-based effluent limitation.

"Water quality technical criteria" means standards set forth in regulations adopted pursuant to the VESMA that establish minimum design criteria for measures to control nonpoint source pollution.

"Water quantity technical criteria" means standards set forth in regulations adopted pursuant to the VESMA that establish minimum design criteria for measures to control localized flooding and stream channel erosion.

"Watershed" means a defined land area drained by a river or stream, karst system, or system of connecting rivers or streams such that all surface water within the area flows through a single outlet. In karst areas, the karst feature to which water drains may be considered the single outlet for the watershed.

"Wetlands" means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-30 Applicability of incorporated by references based on the dates that they became effective

Except as noted, when a regulation of the United States set forth in the Code of Federal Regulations (CFR) is referenced and incorporated in this chapter, that regulation shall be as it exists and has been published in the July 1, 2022, update; however, references to 40 CFR Part 136 are incorporated as published in the July 1, 2024, update.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 7, eff. December 18, 2024.

Article 1 Definitions, Purpose, and Applicability

9VAC25-875-40 Definitions

For the purposes of this part only, the following words and terms have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Erosion and Stormwater Management Act (VESMA), Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Development" means land disturbance and the resulting landform associated with the construction of residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures or the clearing of land for nonagricultural or nonsilvicultural purposes. The regulation of discharges from development, for purposes of stormwater management, does not include the exclusions found in 9VAC25-875-860.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-50 Purpose

The purpose of this part is to provide the framework for the administration, implementation, and enforcement of the VESMA. This part delineates the roles and responsibilities associated with a locality's VESMP and the department's VSMP. This part also establishes the department’s procedures for approving the administration of a VESMP authority and includes the department’s oversight authority over a VESMP.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-60 Applicability

This part is applicable to:

1. Any local government that administers a VESMP;

2. The department that administers a VESMP and VSMP; and

3. The department in its administrative oversight of VESMPs.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 2 Land-Disturbing Activities

9VAC25-875-70 Regulated land-disturbing activities

A. Land-disturbing activities that meet one of the criteria in this subsection are regulated as follows:

1. Land-disturbing activity that disturbs 10,000 square feet or more, although the locality may reduce this regulatory threshold to a smaller area of disturbed land, is less than one acre, not in an area of a locality designated as a Chesapeake Bay Preservation Area, and not part of a common plan of development or sale, is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter.

2. Land-disturbing activity that disturbs 2,500 square feet or more, although the locality may reduce this regulatory threshold to a smaller area of disturbed land, is less than one acre, and in an area of a locality designated as a Chesapeake Bay Preservation Area is subject to criteria defined in Article 2 and Article 5 (9VAC25-875-740 et seq.)of Part V of this chapter, unless Article 4 (9VAC25-875-670 et seq.)of Part V of this chapter is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490. For land-disturbing activities for single-family detached residential structures, Article 2 of Part V of this chapter and water quantity technical criteria, 9VAC25-875-600, shall apply to any land-disturbing activity that disturbs 2,500 square feet or more of land, and the locality also may require compliance with the water quality technical criteria, 9VAC25-875-580 and 9VAC25-875-590.

3. Land-disturbing activity that disturbs less than one acre but is part of a larger common plan of development or sale that disturbs one acre or more is subject to criteria defined in Article 2 and Article 3 of Part V of this chapter, unless Article 4 of Part V of this chapter is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490.

4. Land-disturbing activity that disturbs one acre or more is subject to criteria defined in Article 2 and Article 3 of Part V of this chapter, unless Article 4 of Part V of this chapter is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490.

B. A locality may, by local ordinance adopted pursuant to § 62.1-44.15:33 or 62.1-44.15:65 of the Code of Virginia, adopt more stringent local requirements.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-80 Land-disturbing activities in a Chesapeake Bay Preservation Area

A. Localities subject to the Chesapeake Bay Preservation Act shall regulate runoff associated with land-disturbing activities in a Chesapeake Bay Preservation Area that are equal to or greater than 2,500 square feet but less than one acre in accordance with the following:

1. After June 30, 2014, such land-disturbing activities shall not require completion of a registration statement or require coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities (9VAC25-880 et seq.) but shall be subject to the technical criteria and program and administrative requirements set out in 9VAC25-875-740.

2. A local land disturbance approval, as applicable, shall be provided for the land-disturbing activity.

3. The locality shall regulate such land-disturbing activities in compliance with the:

a. Program requirements in 9VAC25-875-100;

b. Plan review requirements in 9VAC25-875-110 with the exception of subsection D of 9VAC25-875-110 or as allowed in subsection A of 9VAC25-875-750;

c. Long-term stormwater management facility requirements of 9VAC25-875-130;

d. Inspection requirements of 9VAC25-875-140 with the exception of subdivisions A 3 and A 4 of 9VAC25-875-140;

e. Enforcement components of 9VAC25-875-150;

f. Hearing procedures in effect in the locality;

g. Exception conditions of 9VAC25-875-170, excluding subsection A of 9VAC25-875-170, which is not applicable; and

h. Reporting and recordkeeping requirements of 9VAC25-875-180 with the exception of subdivision B 3 of 9VAC25-875-180.

B. A locality subject to the Chesapeake Bay Preservation Act shall adopt an ordinance that incorporates the components of this section.

C. As authorized by § 62.1-44.15:28 of the Code of Virginia, a locality may collect a fee as specified in 9VAC25-875-1400.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-90 Activities not required to comply with the VESMA

A. Notwithstanding any other provisions of the VESMA, the following activities are not required to comply with the requirements of the VESMA unless otherwise required by federal law:

1. Minor land-disturbing activities, including home gardens and individual home landscaping, repairs, and maintenance work;

2. Installation, maintenance, or repair of any individual service connection;

3. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;

4. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;

5. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.2 of the Code of Virginia;

6. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the board in regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1 of the Code of Virginia or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163 of the Code of Virginia;

7. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;

8. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Virginia Marine Resources Commission, or the U.S. Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to the VESMA and the regulations adopted pursuant thereto;

9. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company;

10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VESMP or VSMP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and compliance with the administrative requirements of 9VAC25-875-530 is required within 30 days of commencing the land-disturbing activity; and

11. Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity.

B. Notwithstanding any other provision of the VESMA, the following activities are required to comply with the soil erosion control requirements but are not required to comply with the water quantity and water quality technical criteria, unless otherwise required by federal law:

1. Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use;

2. Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of the project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection; and

3. Discharges from a land-disturbing activity to a sanitary sewer or a combined sewer system.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 3 Programs Operated by a VESMP Authority

9VAC25-875-100 Criteria for programs operated by a VESMP authority

A. Each locality that operates a regulated MS4 or that chooses to administer a VESMP shall, by ordinance, establish a VESMP that shall be administered in conjunction with a local MS4 management program, if applicable, and that shall include the following:

1. Ordinances, policies, and technical materials consistent with regulations adopted in accordance with the VESMA;

2. Requirements for land-disturbance approvals;

3. Requirements for plan review, inspection, and enforcement consistent with the requirements of the VESMA, including provisions requiring periodic inspections of the installation of stormwater management measures. A VESMP authority may require monitoring and reports from the person responsible for meeting the permit conditions to ensure compliance with the permit and to determine whether the measures required in the permit provide effective stormwater management;

4. Provisions charging each applicant a reasonable fee to defray the cost of program administration for a regulated land-disturbing activity that does not require permit coverage. Such fee may be in addition to any fee charged pursuant to the statewide fee schedule established in accordance with subdivision 9 of § 62.1-44.15:28 of the Code of Virginia, although payment of fees may be consolidated in order to provide greater convenience and efficiency for those responsible for compliance with the program. A VESMP authority shall hold a public hearing prior to establishing such fees. The fee shall not exceed an amount commensurate with the services rendered, taking into consideration the time, skill, and the VESMP authority's expense involved;

5. Provisions for long-term responsibility for and maintenance of stormwater management control devices and other techniques specified to manage the quality and quantity of runoff; and

6. Provisions for the coordination of the VESMP with flood insurance, flood plain management, and other programs requiring compliance prior to authorizing land disturbance in order to make the submission and approval of plans, issuance of land-disturbance approvals, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs.

B. A VESMP authority may enter into agreements or contracts with the department, soil and water conservation districts, adjacent localities, planning district commissions, or other public or private entities to carry out or assist with plan review and inspections.

C. A VESMP authority shall obtain evidence of permit coverage from the department's online reporting system, where such coverage is required, prior to providing land-disturbance approval.

D. The VESMP authority responsible for regulating the land-disturbing activity shall require compliance with its applicable ordinances and the conditions of its land-disturbance approval and plan specifications.

E. A locality serving as a VESMP authority is authorized to adopt more stringent soil erosion control or stormwater management ordinances than those necessary to ensure compliance with the board's minimum regulations when adopted in accordance with § 62.1-44.15:33 of the Code of Virginia.

F. Nothing in this part shall be construed as authorizing a locality to regulate, or to require prior approval by the locality for, a state or federal project, unless authorized by separate statute.

G. A VESMP authority may require, excluding state agencies and federal entities, the submission of a reasonable performance bond or other financial surety and provide for the release of such sureties in accordance with the criteria set forth in § 62.1-44.15:34 of the Code of Virginia.

H. A VESMP authority shall have provisions for collection, distribution to the state if required, and expenditure of permit fees.

I. Notice of termination of general permit coverage.

1. A VESMP authority shall recommend that the department terminate coverage under a General VPDES Permit for Discharges of Stormwater from Construction Activities (Construction General Permit) within 60 days of receiving a complete notice of termination from the operator of the construction activity.

2. Coverage under a Construction General Permit shall be deemed to be terminated 90 days after the receipt by the VESMP authority of a complete notice of termination from the operator of the construction activity.

3. If a VESMP authority receives a notice of termination of a Construction General Permit that it determines to be incomplete, the VESMP authority shall, within a reasonable time, inform the operator of the construction activity of such incompleteness and provide the operator with a detailed list itemizing the elements of information that are missing from the notice.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-110 Plan review requirements

A. A VESMP authority shall review and approve soil erosion control and stormwater management (ESM) plans, except for activities not required to comply with the requirements of the VESMA, pursuant to § 62.1-44.15:34 of the Code of Virginia. Activities not required to comply with VESMA are defined in 9VAC25-875-90.

B. Section 62.1-44.15:34 of the Code of Virginia and 9VAC25-875-530 state that a person shall not conduct any land-disturbing activity until (i) that person has submitted to the appropriate VESMP authority an application that includes a permit registration statement, if required, a soil erosion control and stormwater management plan or an executed agreement in lieu of a plan, if required; and (ii) the VESMP authority has issued its land-disturbance approval. In addition, as a prerequisite to engaging in an approved land-disturbing activity, the name of the individual who will be assisting the owner in carrying out the activity and holds a Responsible Land Disturber Certificate pursuant to § 62.1-44.15:30 of the Code of Virginia shall be submitted to the VESMP authority. Any VESMP authority may waive the Responsible Land Disturber Certificate requirement for an agreement in lieu of a plan; however, if a violation occurs during the land-disturbing activity, then the owner shall correct the violation and provide the name of the individual holding a Responsible Land Disturber Certificate as provided by § 62.1-14:30 of the Code of Virginia. Failure to provide the name of an individual holding a Responsible Land Disturber Certificate prior to engaging in land-disturbing activities may result in revocation of the land-disturbance approval and shall subject the owner to the penalties provided by the VESMA.

C. A VESMP authority shall approve or disapprove an ESM plan according to the following:

1. A VESMP authority shall determine the completeness of any application within 15 days after receipt, and shall act on any application within 60 days after it has been determined to be complete.

2. The VESMP authority shall issue either land-disturbance approval or denial and provide written rationale for any denial.

3. Prior to issuing a land-disturbance approval, a VESMP authority shall be required to obtain evidence of permit coverage when such coverage is required.

4. The VESMP authority shall act on the resubmitted application within 45 days after receipt including determination of completeness within the first 15 days.

D. Prior to issuance of any land-disturbance approval, the VESMP authority may also require an applicant, excluding state agencies and federal entities, to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the VESMP authority, to ensure that measures could be taken by the VESMP authority at the applicant's expense should the applicant fail, after proper notice, within the time specified to comply with the conditions imposed by the VESMP authority as a result of the applicant's land-disturbing activity. If the VESMP authority takes such action upon such failure by the applicant, the VESMP authority may collect from the applicant the difference should the amount of the reasonable cost of such action exceed the amount of the security held. Within 60 days of the completion of the VESMP authority's conditions, such bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated.

E. The VESMP authority may require changes to an approved ESM plan in the following cases:

1. Where inspection has revealed that the plan is inadequate to satisfy applicable regulations or ordinances; or

2. Where the owner finds that because of changed circumstances or for other reasons the plan cannot be effectively carried out, and proposed amendments to the plan consistent with the requirements of the Act are agreed to by the VESMP authority and the owner.

F. In order to prevent further erosion, a VESMP authority may require approval of an erosion and sediment control plan and a stormwater management plan for any land identified as an erosion impact area by the VESMP authority.

G. A VESMP authority may enter into an agreement with an adjacent VESMP authority regarding the administration of multijurisdictional projects, specifying who shall be responsible for all or part of the administrative procedures. Should adjacent VESMP authorities fail to reach such an agreement, each shall be responsible for administering the area of the multijurisdictional project that lies within its jurisdiction.

H. No VESMP authority may grant an exception to, or waiver of, post-development nonpoint nutrient runoff compliance requirements unless offsite options have been considered and found not available in accordance with subsection D of § 62.1-44.15:35 of the Code of Virginia.

I. A VESMP authority is authorized to cooperate and enter into agreements with any federal or state agency in connection with the requirements for land-disturbing activities in accordance with § 62.1-44.15:50 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-120 Plan review coordination with the department

A. A VESCP authority that chooses to become a VESMP authority may opt to coordinate the plan review component of its program with the department through an executed agreement pursuant to § 62.1-44.15:27 B 2 of the Code of Virginia. The department may recover the cost of the plan review service from the VESMP authority.

B. A VESMP authority implementing its program in coordination with the department pursuant to § 62.1-44.15:27 B 2 of the Code of Virginia shall determine the completeness of any application within 15 days after receipt, and shall:

1. Act on any application within 60 days after it has been determined by the VESMP authority to be complete;

2. Forward a soil erosion control and stormwater management plan to the department for review within five days of receipt. If the plan is incomplete, the department shall return the plan to the locality immediately and the application process shall start over. If the plan is complete, the department shall review the plan for compliance with the water quality and water quantity technical criteria and provide the department's recommendation to the VESMP authority; and

3. Either (i) issue the land-disturbance approval or (ii) issue a denial and provide a written rationale for the denial. In no case shall a locality have more than 60 days for its decision on an application after the application has been determined to be complete. Prior to issuing a land-disturbance approval, a VESMP authority shall be required to obtain evidence of permit coverage when such coverage is required.

C. The VESMP authority also shall forward to the department any resubmittal of a previously disapproved application within five days after receipt, and the VESMP authority shall determine whether the plan is complete within 15 days of its receipt of the plan. The department shall review the plan for compliance with the water quality and water quantity technical criteria and provide its recommendation to the VESMP authority, and the VESMP authority shall act on the resubmitted application within 45 days after receipt.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-130 Long-term maintenance of stormwater management facilities

A. As required in 9VAC25-875-535, the operator shall submit a construction record drawing for permanent stormwater management facilities to the VESMP authority. The record drawing shall contain a statement signed by a professional registered in the Commonwealth of Virginia pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, stating that to the best of the professional's knowledge, the construction record drawing shows all adjustments and revisions to the stormwater management plan made during construction and serve as a permanent record of the actual location of all constructed elements.

B. The provision of long-term responsibility for and maintenance of stormwater management facilities and other techniques specified to manage the quality or quantity of runoff is required. Such requirements shall be set forth in an instrument recorded in the local land records prior to permit termination or earlier as required by the authority and shall at a minimum:

1. Be submitted to the authority for review and approval prior to the approval of the stormwater management plan;

2. Be stated to run with the land;

3. Provide for all necessary access to the property for purposes of maintenance and regulatory inspections;

4. Provide for inspections and maintenance and the submission of inspection and maintenance reports to the VESCP, VESMP, or VSMP authority; and

5. Be enforceable by all appropriate governmental parties.

C. At the discretion of the VESMP authority, such recorded instruments need not be required for stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which such facilities are located, provided it is demonstrated to the satisfaction of the authority that future maintenance of such facilities will be addressed through an enforceable mechanism at the discretion of the authority.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-140 Inspections

A. The VESMP authority shall inspect the land-disturbing activity during construction for:

1. Compliance with the approved erosion and sediment control plan;

2. Compliance with the approved stormwater management plan;

3. Development, updating, and implementation of a pollution prevention plan; and

4. Development and implementation of any additional control measures necessary to address a TMDL.

B. The VESMP authority shall conduct periodic inspections on all projects during construction. The VESMP authority shall either:

1. Provide for an inspection during or immediately following initial installation of erosion and sediment controls, at least once in every two-week period, within 48 hours following any runoff producing storm event, and at the completion of the project prior to the release of any performance bonds; or

2. Establish an alternative inspection program that ensures compliance with the approved erosion and sediment control plan. Any alternative inspection program shall be:

a. Approved by the department prior to implementation;

b. Established in writing;

c. Based on a system of priorities that, at a minimum, address the amount of disturbed project area, site conditions, and stage of construction; and

d. Documented by inspection records.

C. The VESMP authority shall establish an inspection program that ensures that permanent stormwater management facilities are being adequately maintained as designed after completion of land-disturbing activities. Inspection programs shall:

1. Be approved by the department;

2. Ensure that each stormwater management facility is inspected by the VESMP authority or the VESMP authority's designee, not to include the owner, except as provided in subsections D and E of this section, at least once every five years; and

3. Be documented by records.

D. The VESMP authority may utilize the inspection reports of the owner of a stormwater management facility as part of an inspection program established in subsection C of this section if the inspection is conducted by a person who is licensed as a professional engineer, architect, landscape architect, or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the code of Virginia; a person who works under the direction and oversight of the licensed professional engineer, architect, landscape architect, or land surveyor; or a person who holds an appropriate certificate of competence from the department.

E. If a recorded instrument is not required pursuant to 9VAC25-875-130, a VESMP authority shall develop a strategy for addressing maintenance of stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located. Such a strategy may include periodic inspections, homeowner outreach and education, or other method targeted at promoting the long-term maintenance of such facilities. Such facilities shall not be subject to the requirement for an inspection to be conducted by the VESMP authority.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-150 Enforcement

A. A locality's VESMP authority shall incorporate components from subdivisions 1 and 2 of this subsection into its ordinance.

1. Informal and formal administrative enforcement procedures may include:

a. Right of entry in accordance with § 62.1-44.15:39 of the Code of Virginia.

b. Verbal warnings and inspection reports;

c. Notices of corrective action;

d. Notices to comply in accordance with § 62.1-44.15:37 of the Code of Virginia;

e. Stop work orders in accordance with § 62.1-44.15:37 of the Code of Virginia;

f. Special orders in accordance with §§ 62.1-44.15:25.1 and 62.1-44.15:48 of the Code of Virginia;

g. Consent orders in accordance with §§ 62.1-44.15:25.1 and 62.1-44.15:48 of the Code of Virginia; and

h. Public notice and comment periods.

2. Civil and criminal judicial enforcement procedures may include:

a. Schedule of civil penalties in accordance with §§ 62.1-44.15:25.1 and 62.1-44.15:48 of the Code of Virginia;

b. Criminal penalties in accordance with § 62.1-44.15:48 of the Code of Virginia; and

c. Injunctions in accordance with § 62.1-44.15:48 of the Code of Virginia.

B. A locality's VESMP authority shall develop policies and procedures that outline the steps to be taken regarding enforcement actions under the VESMA and attendant regulations and local ordinances.

C. Each locality subject to an MS4 permit shall adopt an ordinance to implement a municipal separate storm sewer system management program that is consistent with this chapter and that contains provisions as required to comply with an MS4 permit. Such locality may utilize the civil penalty provisions in subdivision A 2 of § 62.1-44.15:48 of the Code of Virginia, the injunctive authority as provided for in subsection C of § 62.1-44.15:48 of the Code of Virginia, the civil charges as authorized in § 62.1-44.15:25.1 of the Code of Virginia, and the criminal provisions in § 62.1-44.32 of the Code of Virginia, to enforce the ordinance. At the request of another MS4, the locality may apply the penalties provided for in this section to direct or indirect discharges to any MS4 located within its jurisdiction in accordance with § 62.1-44.15:49 of the Code of Virginia.

D. Penalties imposed in accordance with § 62.1-44.15:48 of the Code of Virginia may reflect the degree of harm caused by the violation and take into account the economic benefit to the violator from noncompliance.

E. Pursuant to subsection L of § 62.1-44.15:27 of the Code of Virginia, authorization to administer a VESMP program shall not remove from the department the authority to enforce the provisions of the VESMA and attendant regulations.

F. The department may terminate permit coverage during its term and require application for an individual permit or deny a permit renewal application for failure to comply with permit conditions or on its own initiative in accordance with the VESMA and this chapter.

G. Pursuant to § 62.1-44.15:48 of the Code of Virginia, civil penalties recovered by a locality's VESMP authority shall be paid into the treasury of the locality in which the violation occurred and are to be used solely for stormwater management capital projects.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-160 Hearings

Any permit applicant, permittee, or person subject to permit requirements under the VESMA aggrieved by any action of the department taken without a formal hearing may demand in writing a formal hearing pursuant to § 62.1-44.25 of the Code of Virginia and shall ensure that all hearings held under this chapter shall be conducted in a manner consistent with § 62.1-44.26 of the Code of Virginia or as otherwise provided by law. A locality holding hearings under this chapter shall do so in a manner consistent with local hearing procedures. The provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall not apply to decisions rendered by localities. Appeals of decisions rendered by localities shall be conducted in accordance with local appeal procedures and shall include an opportunity for judicial review in the circuit court of the locality in which the land disturbance occurs or is proposed to occur. Unless otherwise provided by law, the circuit court shall conduct such review in accordance with the standards established in § 2.2-4027 of the Code of Virginia, and the decisions of the circuit court shall be subject to review by the Court of Appeals, as in other cases under this chapter.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-170 Variances and exceptions

A. A VESMP authority may grant variances to waive or modify any of the erosion and sediment control requirements of Article 2 (9VAC25-875-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter that are deemed inappropriate or too restrictive for site conditions may be requested from the VESMP authority under these conditions:

1. At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the authority shall be documented in the plan.

2. During construction, the person responsible for implementing the approved plan may request a variance in writing from the authority. The authority shall respond in writing either approving or disapproving such a request. If the authority does not approve a variance within 10 days of receipt of the request, the request shall be considered to be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation.

B. A VESMP authority may grant exceptions to the provisions of Article 3 (9VAC25-875-570 et seq.) of Part V of this chapter. An exception may be granted provided that (i) the exception is the minimum necessary to afford relief, (ii) reasonable and appropriate conditions shall be imposed as necessary upon any exception granted so that the intent of the VESMA and this chapter are preserved, (iii) granting the exception will not confer any special privileges that are denied in other similar circumstances, and (iv) exception requests are not based upon conditions or circumstances that are self-imposed or self-created.

C. Economic hardship alone is not a sufficient reason to grant an exception from the requirements of this chapter.

D. Under no circumstance shall the authority (i) grant an exception to the requirement that the land-disturbing activity obtain required permits, or (ii) approve the use of a BMP not found through the Virginia Stormwater BMP Clearinghouse, except where allowed under Article 4 (9VAC25-875-670 et seq.) of Part V of this chapter.

E. Exceptions to requirements for phosphorus reductions shall not be allowed unless offsite options available through 9VAC25-875-610 have been considered and found not available.

F. A record of all exceptions granted shall be maintained by the authority in accordance with 9VAC25-875-180.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-180 Reports and recordkeeping

A. On a fiscal year basis (July 1 to June 30), a VESMP authority shall report to the department by October 1 of each year in a format provided by the department. The information to be provided shall include the following:

1. Information, not previously reported to the department through other reporting requirements, on each permanent stormwater management facility completed during the fiscal year to include type of stormwater management facility, geographic coordinates, acres treated, and the surface waters or karst features into which the stormwater management facility will discharge;

2. A listing of each land-disturbing activity for which a plan has been approved by the VESMP authority;

3. Number and type of enforcement actions during the fiscal year; and

4. Number of exceptions granted during the fiscal year.

B. A VESMP authority shall keep records in accordance with the following:

1. Project records, including approved soil erosion control and stormwater management plans, shall be kept for three years after permit termination or project completion;

2. Stormwater management facility inspection records shall be documented and retained for at least five years from the date of inspection;

3. Construction record drawings shall be maintained in perpetuity or until a stormwater management facility is removed; and

4. All registration statements submitted in accordance with 9VAC25-875-530 shall be documented and retained for at least three years from the date of project completion or permit termination.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 4 Authorization and Review Procedures for VESMPs

9VAC25-875-190 Review and evaluation of VESMPs

A. The department shall review each approved VESMP at least once every five years on a review schedule approved by the department. The department may review a VESMP on a more frequent basis if deemed necessary and shall notify the VESMP authority if such review is scheduled.

B. The review of an approved VESMP shall consist of the following:

1. Consultation with the VESMP administrator or designee;

2. A review of the local ordinances and other applicable documents;

3. A review of a subset of the plans approved by the VESMP authority for consistency of application, including exceptions granted and calculations or other documentation that demonstrates that all erosion and sediment control minimum standards are met and required nutrient reductions are achieved using appropriate onsite and offsite compliance options;

4. Inspections of regulated activities; and

5. A review of enforcement actions and an accounting of amounts recovered through enforcement actions where applicable.

C. The department shall coordinate the once per five year review with the department's other program reviews for the same entity to avoid redundancy.

D. The department shall determine if the VESMP and ordinances where applicable are consistent with the VESMA and this chapter and notify the VESMP authority of its findings. The Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall govern the review activities and proceedings of the department and the judicial review thereof.

E. If the department determines that the deficiencies noted in the review will cause the VESMP to be out of compliance with the VESMA and attendant regulations, the department shall notify the VESMP authority concerning the deficiencies and provide a reasonable period of time in accordance with subdivision 19 of § 62.1-44.15 of the Code of Virginia for corrective action to be taken. If the VESMP authority agrees to the corrective action approved by the department, the VESMP will be considered to be conditionally compliant with the VESMA and attendant regulations until a subsequent finding of compliance is issued by the department. If the VESMP authority fails to implement the necessary compliance actions identified by the department within the specified time, the department may take action pursuant to subdivision 19 of § 62.1-44.15 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 5 VSMP Operated by the Department

9VAC25-875-200 Criteria for a VSMP

A. The department shall administer a VSMP on behalf of any locality that notifies the department that the locality has chosen to not administer a VESMP as provided by § 62.1-44.15:27 B 3 of the Code of Virginia.

B. Per § 62.1-44.15:27.1 B of the Code of Virginia, the department shall administer a VSMP consistent with the stormwater management requirements defined for a VESMP.

C. The department shall review and approve stormwater management plans by the schedule defined in 9VAC25-875-110, except for activities not required to comply with the requirements of the VESMA, pursuant to § 62.1-44.15:34 of the Code of Virginia and 9VAC25-875-90.

D. The director or the director's designee may perform any act of the department provided under the VESMA and this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 1 Definitions, Purpose, and Applicability

9VAC25-875-210 Definitions

For the purposes of this part only, the following words and terms have the following meanings unless the context clearly indicates otherwise:

"Act" means the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program (ESCL), Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Agreement in lieu of a plan" means a contract between the VESCP authority and the owner that specifies conservation measures that must be implemented in the construction of a (i) single-family detached residential structure or (ii) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5.0%; this contract may be executed by the VESCP authority in lieu of a formal site plan.

"Applicant" means any person submitting an erosion and sediment control plan for approval in order to obtain authorization for land-disturbing activities to commence.

"Development" means a tract or parcel of land developed or to be developed as a single unit under single ownership or unified control that is to be used for any business or industrial purpose or is to contain three or more residential dwelling units.

"Land disturbance" or "land-disturbing activity" means any manmade change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including the clearing, grading, excavating, transporting, and filling of land.

"Owner" means the same as provided in § 62.1-44.3 of the Code of Virginia. For a land-disturbing activity that is regulated under the ESCL, "owner" also includes the owner of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-220 Purpose

The purpose of this part is to provide the framework for the administration, implementation, and enforcement of the Virginia Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program (ESCL). This part delineates the roles associated with a VESCP. This part also establishes the department's procedures for approving the administration of a VESCP authority and includes the department's oversight authority over a VESCP.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-230 Applicability

This part is applicable to:

1. Any local government that administers a VESCP;

2. The department that administers a VESCP; and

3. The department in its administrative oversight of VESCPs.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 2 Land-Disturbing Activities

9VAC25-875-240 Criteria for determining status of land-disturbing activity

A. The program administrator shall determine the validity of a claim of exempt status by a property owner who disturbs 10,000 square feet or more or 2,500 square feet or more in all areas of jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830). As soon as a nonexempt status is determined, the requirements of the ESCL shall be immediately enforced.

B. Should a land-disturbing activity not begin during the 180-day period following approval of the erosion and sediment control plan or cease for more than 180 days, the VESCP authority may evaluate the existing approved erosion and sediment control plan to determine whether the plan still satisfies local and state erosion and sediment control criteria and to verify that all design factors are still valid. If the VESCP authority finds the previously filed plan to be inadequate, a modified plan shall be submitted and approved prior to the resumption of land-disturbing activity.

C. Shoreline erosion control projects are not subject to Part V (9VAC25-875-470 et seq.) of this chapter. However, land-disturbing activity immediately outside the limits of the shoreline erosion project is subject to the ESCL and Part V of this chapter.

D. Whenever land-disturbing activity involves activity at a separate location, including borrow and disposal areas, the VESCP authority may either:

1. Consider the offsite activity as being part of the proposed land-disturbing activity; or

2. If the offsite activity is already covered by an approved erosion and sediment control plan, the VESCP authority may require the applicant to provide proof of the approval and to certify that the plan will be implemented in accordance with the ESCL and Part V of this chapter.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-250 Regulated land-disturbing activities

A. Land-disturbing activities that meet one of the criteria in this subsection are regulated as follows:

1. Land-disturbing activity that disturbs 10,000 square feet or more, although the locality may reduce this regulatory threshold to a smaller area of disturbed land, and is not in an area of a locality designated as a Chesapeake Bay Preservation Area is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter.

2. Land-disturbing activity that disturbs 2,500 square feet or more, although the locality may reduce this regulatory threshold to a smaller area of disturbed land, and is in an area of a locality designated as a Chesapeake Bay Preservation Area is subject to criteria defined in Article 2 and Article 5 (9VAC25-875-740 et seq.) of Part V of this chapter.

B. A locality may, by local ordinance adopted pursuant to § 62.1-44.15:65 of the Code of Virginia, adopt more stringent local requirements.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-260 Land-disturbing activities in Chesapeake Bay Preservation Areas

A. Localities subject to the Chesapeake Bay Preservation Act shall regulate runoff associated with land-disturbing activities in a Chesapeake Bay Preservation Area equal to or greater than 2,500 square feet but less than one acre in accordance with the following:

1. The technical criteria and program and administrative requirements set out in 9VAC25-875-740;

2. A local land disturbance approval, as applicable, shall be provided for the land-disturbing activity;

3. The locality shall regulate such land-disturbing activities in compliance with the:

a. Program requirements in 9VAC25-875-100;

b. Plan review requirements in 9VAC25-875-110 with the exception of subsection D of 9VAC25-875-110 or as allowed in subsection A of 9VAC25-875-750;

c. Long-term stormwater management facility requirements of 9VAC25-875-130;

d. Inspection requirements of 9VAC25-875-140 with the exception of subdivisions A 3 and A 4 of 9VAC25-875-140;

e. Enforcement components of 9VAC25-875-150;

f. Hearing procedures in effect in the locality;

g. Exception conditions of 9VAC25-875-170, excluding subsection A of 9VAC25-875-170, which is not applicable; and

h. Reporting and recordkeeping requirements of 9VAC25-875-180 with the exception of subdivision B 3 of 9VAC25-875-180.

B. A locality subject to the Chesapeake Bay Preservation Act shall adopt an ordinance that incorporates the components of this section.

C. As authorized by § 62.1-44.15:28 of the Code of Virginia, a locality may collect a fee as specified in 9VAC25-875-1400.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-270 State agency land-disturbing activities

A. All state agency land-disturbing activities that are not exempt and that have commenced without an approved erosion and sediment control plan shall immediately cease until the state agency has either (i) submitted standards and specifications for its conduct of land-disturbing activities that has been reviewed and approved by the department as being consistent with the ESCL and attendant regulations, or (ii) an erosion and sediment control plan has been submitted to and approved by the department. A formal "Notice of Plan Requirement" will be sent to the state agency under whose purview the project lies since that agency is responsible for compliance with the ESCL and this chapter.

B. Where inspections by department personnel reveal deficiencies in carrying out an approved plan, the person responsible for carrying out the plan, as well as the state agency responsible, will be issued a notice to comply with specific actions and the deadlines that shall be met. Failure to meet the prescribed deadlines can result in the issuance of a stop work order for all land-disturbing activities on the project at the discretion of the department. The stop work order will be lifted once the required erosion and sediment control measures are in place and inspected by department staff.

C. Whenever the Commonwealth or any of its agencies fails to comply within the time provided in an appropriate final order, the director of the department may petition for compliance as follows: For violations in the Natural and Historic Resources Secretariat, to the Secretary of Natural and Historic Resources; for violations in other secretariats, to the appropriate secretary; for violations in other state agencies, to the head of such agency. Where the petition does not achieve timely compliance, the director shall bring the matter to the Governor for resolution. The department may also pursue enforcement as provided by § 62.1-44.15:63 of the Code of Virginia.

D. Where compliance will require the appropriation of funds, the director shall cooperate with the appropriate agency head in seeking such an appropriation; where the director determines that an emergency exists, the director shall petition the Governor for funds from the Civil Contingency Fund or other appropriate source.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-280 Activities not required to comply with the ESCL

Notwithstanding any other provisions of the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program (ESCL), the following activities are not required to comply with the ESCL unless otherwise required by federal law:

1. Disturbance of a land area of less than 10,000 square feet in size or less than 2,500 square feet in an area designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq. of the Code of Virginia). However, the governing body of the program authority may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;

2. Minor land-disturbing activities such as home gardens and individual home landscaping, repairs, and maintenance work;

3. Installation, maintenance, or repair of any individual service connection;

4. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;

5. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;

6. Permitted surface or deep mining operations and projects or oil and gas operations and projects conducted pursuant to Title 45.2 of the Code of Virginia;

7. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the board in regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1 of the Code of Virginia or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163 of the Code of Virginia;

8. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;

9. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Virginia Marine Resources Commission, or the U.S. Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to the ESCL and this chapter;

10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VESCP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and compliance with the administrative requirements of Article 2 (9VAC25-875-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter is required within 30 days of commencing the land-disturbing activity;

11. Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity; and

12. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

Article 3 Programs Operated by a VESCP Authority

9VAC25-875-290 Criteria for programs operated by a VESCP authority

A. At a minimum, a VESCP shall provide that (i) an erosion and sediment control plan shall be reviewed and approved by a certified plan reviewer; (ii) inspections of land-disturbing activities shall be conducted by a certified inspector; and (iii) a VESCP shall contain a certified program administrator, a certified plan reviewer, and a certified project inspector, who may be the same person pursuant to § 62.1-44.15:53 of the Code of Virginia. The requirements for each position identified in this subsection are specified in Part IV (9VAC25-875-380 et seq.) of this chapter.

B. A VESCP authority may enter into agreements or contracts with soil and water conservation districts, adjacent localities, or other public or private entities to assist with carrying out the provisions of this chapter, including the review and determination of adequacy of erosion and sediment control plans submitted for land-disturbing activities on units of land as well as for monitoring, reports, inspections, and enforcement of such land-disturbing activities.

C. The VESCP operated by a county, city, or town shall include provisions for the coordination of the VESCP with flood insurance, flood plain management, and other programs requiring compliance prior to authorizing a land-disturbing activity in order to make the submission and approval of plans, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs pursuant to § 62-1.44-15:54 of the Code of Virginia.

D. A VESCP authority may enter into an agreement with an adjacent VESCP or VESMP authority regarding the administration of multijurisdictional projects specifying who shall be responsible for all or part of the administrative procedures. Should adjacent authorities fail to come to such an agreement, each shall be responsible for administering the area of the multijurisdictional project that lies within its jurisdiction.

E. Where the land-disturbing activity results from the construction of a (i) single-family detached residential structure or (ii) a farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5.0%, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the VESCP authority pursuant to § 62-1.44-15:55 A of the Code of Virginia. For a single-family detached residential structure with less than one acre of land disturbance, an agreement in lieu of a plan may be used when either (a) it is located within a common plan of development or sale with an approved stormwater pollution prevention plan consistent with 9VAC25-875-500 and a permit, if required; or (b) the single-family detached residential is located outside of a common plan of development or sale.

F. A VESCP authority may adopt more stringent soil erosion and sediment control ordinances pursuant to § 62.1-44.15:65 of the Code of Virginia.

G. Any VESCP authority that administers a VESCP may charge applicants a reasonable fee to defray the costs of program administration. A VESCP authority shall hold a public hearing prior to establishing a schedule of fees. The fee shall not exceed an amount commensurate with the services rendered, taking into consideration the time, skill, and the VESCP authority's expense involved.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-300 Plan review requirements

A. The VESCP authority shall review erosion and sediment control plans prepared in accordance with 9VAC25-875-550 that detail the criteria, techniques, and methods as defined in 9VAC25-875-560. Activities not required to comply with VESCL are defined in 9VAC25-875-280.

B. When the VESCP authority determines that the plan meets the minimum criteria, techniques, and methods as defined in 9VAC25-875-560, the VESCP authority shall review erosion and sediment control plans submitted and grant written approval within 60 days of the receipt of the plan.

C. When the VESCP authority determines a plan is inadequate, written notice stating the specific reasons for disapproval shall be communicated to the applicant within 45 days. The notice shall specify the modifications, terms, and conditions that are necessary for approval of the plan. If no action is taken by the VESCP authority within 45 days, the plan shall be deemed approved and the proposed activity authorized. The VESCP authority shall act on any erosion and sediment control plan that has been previously deemed inadequate within 45 days after receipt of a revised plan if deemed adequate.

D. For sites requiring coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities, the VESCP authority shall obtain evidence of such permit coverage from the department's online reporting system prior to issuing a land-disturbance approval.

E. The person responsible for carrying out the plan shall provide to the VESCP authority the name of an individual holding a certificate who will be in charge of and responsible for carrying out the land-disturbing activity. However, the VESCP authority may waive the Responsible Land Disturber Certificate requirement for an agreement in lieu of a plan in accordance with § 62.1-44.15.55 of the Code of Virginia.

F. The VESCP authority may require approval of an erosion and sediment control plan for any land identified as an erosion impact area in accordance with § 62.1-44.15.55 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024; Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-310 Plan review coordination with the department for solar projects

A. Any VESCP authority that does not operate a regulated municipal separate storm sewer system and for which the department did not administer a Virginia Stormwater Management Program as of July 1, 2020, shall notify the department if it decides to have the department provide the VESCP authority with (i) review of the erosion and sediment control plan required by § 62.1-44.15:55 A of the Code of Virginia and (ii) a recommendation on the plan's compliance with the requirements of Part V (9VAC25-875-470 et seq.) of this chapter for any solar project and its associated infrastructure with a rated electrical generation capacity exceeding five megawatts.

B. Any VESCP authority that notifies the department pursuant to this section shall within five days of receiving the erosion and sediment control plan forward the plan to the department for review. If the plan forwarded to the department is incomplete, the department shall return the plan to the VESCP authority immediately, and the application process shall start over. If the plan forwarded to the department is complete, the department shall review the plan for compliance with the requirements of Part V of this chapter and provide a recommendation to the VESCP authority. The VESCP authority shall then (i) grant written approval of the plan or (ii) provide written notice of disapproval of the plan in accordance with § 62.1-44.15:55 B of the Code of Virginia.

C. Any VESCP authority that notifies the department pursuant to this section shall within five days of receiving the resubmittal of a previously disapproved erosion and sediment control plan forward the resubmitted plan to the department for review. The department shall review the resubmitted plan for compliance with the requirements of Part V of this chapter and provide a recommendation to the VESCP authority. The VESCP authority shall then (i) grant written approval of the plan or (ii) provide written notice of disapproval of the plan in accordance with § 62.1-44.15:55 B of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-320 Long-term maintenance of stormwater management facilities

A. A recorded instrument shall be submitted to the VESCP authority in accordance with 9VAC25-875-535.

B. The department shall enforce permits and require compliance with its applicable regulations, including when serving as a VSMP authority in a locality that chose not to adopt a VESMP in accordance with § 62.1-44.15:27 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-330 Inspections

A. The VESCP authority (i) shall provide for periodic inspections of the land-disturbing activity and require that an individual holding a certificate, as provided by § 62.1-44.15:52 of the Code of Virginia, will be in charge of and responsible for carrying out the land-disturbing activity and (ii) may require monitoring and reporting from the person responsible for carrying out the erosion and sediment control plan, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment. However, any VESCP authority may waive the certificate requirement for an agreement in lieu of a plan.

B. Periodic inspections by the VESCP authority are required on all projects. The VESCP authority shall either:

1. Provide for an inspection during or immediately following initial installation of erosion and sediment controls, at least once in every two-week period, within 48 hours following any runoff producing storm event, and at the completion of the project prior to the release of any performance bonds; or

2. Establish an alternative inspection program that ensures compliance with the approved erosion and sediment control plan. Any alternative inspection program shall be:

a. Approved by the department prior to implementation;

b. Established in writing;

c. Based on a system of priorities that, at a minimum, address the amount of disturbed project area, site conditions, and stage of construction; and

d. Documented by inspection records.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-340 Enforcement

A. Each VESCP authority shall incorporate components from subdivisions 1 and 2 of this subsection.

1. Informal and formal administrative enforcement procedures may include:

a. Right of entry in accordance § 62.1-44.15:60 of the Code of Virginia.

b. Verbal warnings and inspection reports;

c. Notices of corrective action;

d. Notices to comply in accordance with § 62.1-44.15:58 of the Code of Virginia;

e. Consent special orders and civil charges in accordance § 62.1-44.15:63 of the Code of Virginia;

f. Stop work orders in accordance with of § 62.1-44.15:58 of the Code of Virginia; and

g. Public notice and comment periods for proposed settlements and consent special orders.

2. Civil and judicial enforcement procedures may include:

a. Schedule of civil penalties in accordance with §§ 62.1-44.15:54 and 62.1-44.15:63 of the Code of Virginia; and

b. Injunctions in accordance §§ 62.1-44.15:58 and 62.1-44.15:63 of the Code of Virginia.

B. Each VESCP authority shall develop policies and procedures that outline the steps to be taken regarding enforcement actions under the ESCL and attendant regulations and local ordinances.

C. Penalties imposed in accordance with §§ 62.1-44.15:54 and 62.1-44.15:63 of the Code of Virginia may reflect the degree of harm caused by the violation and take into account the economic benefit to the violator from noncompliance.

D. Pursuant to § 62.1-44.15:25 of the Code of Virginia, authorization to administer a VESCP program shall not remove from the department the authority to enforce the provisions of the ESCL and attendant regulations.

E. The department may terminate permit coverage during the permit's term and require application for an individual permit or deny a permit renewal application for failure to comply with permit conditions or on the department's own initiative in accordance with the ESCL and this chapter.

F. Pursuant to § 62.1-44.15:63 A of the Code of Virginia, civil penalties recovered by a VESCP authority shall be paid into the treasury of the locality in which the violation occurred and are to be used solely for stormwater management capital projects.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-350 Variances

A variance to waive or modify any of the erosion and sediment control requirements of Article 2 (9VAC25-874-540 et seq.) of Part V (9VAC25-875-470 et seq.) of this chapter that are deemed inappropriate or too restrictive for site conditions may be requested from the VESCP authority under these conditions:

1. At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the authority shall be documented in the plan; or

2. During construction, the person responsible for implementing the approved plan may request a variance in writing from the authority. The authority shall respond in writing either approving or disapproving such a request. If the authority does not approve a variance within 10 days of receipt of the request, the request shall be considered to be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-360 VESCP reporting and record keeping requirements

Each VESCP authority shall report to the department, at least monthly, in a method such as an online reporting system and on a time schedule established by the department, a listing of each land-disturbing activity for which a plan has been approved by the VESCP authority under the ESCL and this part.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 4 Review Procedures for VESCPs

9VAC25-875-370 Review and evaluation of VESCPs

A. This section sets forth the criteria that will be used by the department to determine whether a locality operating a VESCP under authority of the ESCL, a "VESCP authority," satisfies minimum standards of effectiveness, as follows.

Each VESCP must contain an ordinance or other appropriate document adopted by the VESCP authority. Such document must be consistent with the ESCL and Part III (9VAC25-875-210 et seq.) of this chapter, including the following criteria:

1. The document shall include or reference the definition of land-disturbing activity, including exemptions as well as any other significant terms, as necessary to produce an effective VESCP;

2. The document shall identify the VESCP authority and any soil and water conservation district, adjacent locality, or other public or private entities that the VESCP authority entered into agreements or contracts with to assist with carrying out the provisions of the ESCL and Part III of this chapter and must include the requirements and design standards to be used in the program;

3. The document shall include procedures for submission and approval of plans, issuance of permits, monitoring, and inspections of land-disturbing activities. The position, agency, department, or other party responsible for conducting inspections shall be identified. The VESCP authority shall maintain, either onsite or in VESCP files, a copy of the approved plan and a record of inspections for each active land-disturbing activity;

4. Each VESCP operated by a county, city, or town shall include provisions for the integration of the VESCP with flood insurance, flood plain management, and other programs requiring compliance prior to authorizing a land-disturbing activity in order to make the submission and approval of plans, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs; and

5. The VESCP authority must take appropriate enforcement actions, where authorized to do so, to achieve compliance with the program and maintain a record of enforcement actions for all active land-disturbing activities.

B. The department shall periodically conduct a comprehensive review and evaluation of each VESCP authority pursuant to subdivision (19) of § 62.1-44.15 of the Code of Virginia. The department will coordinate the review with its other program reviews for the same entity to avoid redundancy. The review and evaluation of a VESCP authority shall consist of the following: (i) consultation with the local program administrator or designee; (ii) review of the local ordinance and other applicable documents; (iii) review of plans approved by the VESCP authority; (iv) inspection of regulated activities; and (v) review of enforcement actions where authorized to do so. The department is also authorized to conduct a partial VESCP compliance review.

C. Each VESCP authority shall be reviewed and evaluated by the department for effectiveness in carrying out the ESCL and Part III of this chapter using the criteria in this section.

D. If deficiencies noted in the review will cause the VESCP to be inconsistent with the ESCL or this chapter, the department shall provide the VESCP authority with a copy of the department's decision that specifies the deficiencies, action needed to be taken, and an approved corrective action plan and schedule required to attain the minimum standard of effectiveness. If the VESCP authority fails to bring its program into compliance in accordance with the compliance schedule, then the department is authorized to (i) issue a special order to any locality imposing a civil penalty, not to exceed $5,000 per violation with the maximum amount not to exceed $50,000 per order for noncompliance with the state program, to be paid into the state treasury and deposited in the Stormwater Local Assistance Fund established in § 62.1-44.15:29.1 of the Code of Virginia or (ii) with the consent of the locality, provide in an order issued against the locality for the payment of civil charges for violations in lieu of civil penalties, in specific sums not to exceed the limit stated in this subsection. The Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and Article 5 (§ 62.1-44.20 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia shall govern the review activities and proceedings of the department and the judicial review thereof. In lieu of issuing a special order or revoking the program, the department is authorized to take legal action against a VESCP authority to ensure compliance.

E. Review and evaluation of VESCPs shall be conducted according to a schedule adopted by the department in accordance with subdivision (19) of § 62.1-44.15 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

Part IV Certification of VESCP, VSMP, and VESMP Personnel

9VAC25-875-380 Purpose

The purpose of this part is to guide the issuance of certifications required by §§ 62.1-44.15:52 E and 62.1-44.15:53 of the Code of Virginia (ESCL) and § 62.1-44.15:30 of the Code of Virginia (VESMA).

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-390 Applicability

This part is applicable to:

1. Every VESCP authority, VESMP authority, or VSMP authority that administers a VESCP, VESMP, or VSMP as may be applicable. Staff of a VESCP authority must be certified in accordance with §§ 62.1­-44.15:52 E and 62.1-44.15:53 of the ESCL. Staff of a VESMP authority or VSMP authority must be certified in accordance with § 62.1-44.15:30 of the VESMA.

2. Anyone who is contracted by a VESCP authority, a VESMP authority, or a VSMP authority to perform any or all of the functions of that authority as may be applicable. This person will be subject to the same certification requirements as the authority.

3. Any state agency, federal entity, or public or private entity authorized under § 62.1-44.15:31 of the Code of Virginia to implement approved standards and specifications. Personnel implementing approved standards and specifications pursuant to subsection D.5 of § 62.1-44.15:31 of the Code of Virginia must obtain certifications or qualifications comparable to those required for VESMP personnel pursuant to subsection C of § 62.1-44.15:30 of the Code of Virginia.

4. Anyone voluntarily seeking certifications or certificates from the department for classifications described in 9VAC25-875-400.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-400 Certificates and certifications

A. Certifications shall be issued by the department to individuals who successfully complete the department-approved training program, which includes obtaining a passing score on the applicable certification examination or otherwise fulfilling the requirements of 9VAC25-875-410 for the following classifications:

1. Program administrator for ESC. This classification applies to individuals who administer the program in the area of ESC pursuant to this chapter. This certification is a requirement for any individual employed to perform the duties of a program administrator for ESC by a VESCP or VESMP authority, or an agent of a VESCP or VESMP authority. This certification also serves as the ESC component required for the dual program administrator certification.

2. Inspector for ESC. This classification applies to individuals who perform inspections of land-disturbing activities in the area of ESC pursuant to this chapter. This certification is a requirement for any individual employed as an inspector for ESC by a VESCP or VESMP authority, or an agent of a VESCP or VESMP authority. This certification also serves as the ESC component required for the dual inspector certification.

3. Plan reviewer for ESC. This classification applies to individuals who review plans in the area of ESC for approval by a VESCP or VESMP authority pursuant to this chapter. This certification is a requirement for any individual employed as a plan reviewer for ESC by a VESCP or VESMP authority, or an agent of a VESCP or VESMP authority. This certification also serves as the ESC component required for the dual plan reviewer certification.

4. Combined administrator for ESC. This classification applies to individuals who perform the combined duties of Program Administrator, Inspector, and Plan Reviewer in the area of ESC pursuant to this chapter. This certification is a requirement for any individual employed as a combined administrator for ESC by a VESCP or VESMP authority, or an agent of a VESCP or VESMP authority. This certification also serves as the ESC component required for the dual combined administrator certification.

5. Program administrator for SWM. This classification applies to individuals who administer the program in the area of SWM pursuant to this chapter. This certification is a requirement for any individual employed to perform the duties of a program administrator for SWM by a VSMP or VESMP authority, or an agent of a VSMP or VESMP authority. This certification also serves as the SWM component required for the dual program certification.

6. Inspector for SWM. This classification applies to individuals who conduct inspections in the area of SWM pursuant to this chapter. This certification is a requirement for any individual employed to perform the duties of an inspector for SWM by a VSMP or VESMP authority, or an agent of a VSMP or VESMP authority. This certification also serves as the SWM component required for the dual inspector certification.

7. Plan reviewer for SWM. This classification applies to individuals who review plans in the area of SWM pursuant to this chapter. This certification is a requirement for any individual employed to perform the duties of a plan reviewer for SWM by a VSMP or VESMP authority, or an agent of a VSMP or VESMP authority. This certification also serves as the SWM component required for the dual plan reviewer certification.

8. Combined administrator for SWM. This classification applies to individuals who perform the combined duties of program administrator, inspector, and plan reviewer in the area of SWM pursuant to this chapter. This certification is a requirement for any individual employed to perform the duties of a combined administrator for SWM by a VSMP or VESMP authority, or an agent of a VSMP or VESMP authority. This certification also serves as the SWM component required for the dual combined administrator certification.

9. Dual program administrator. This classification applies to individuals who administer the program in the areas of ESC and SWM pursuant to this chapter. This certification satisfies the requirement for any individual employed as a dual program administrator for ESC and SWM by a VESMP authority, an agent of a VESMP authority, or for personnel implementing department-approved standards and specifications pursuant to § 62.1-44.15:31 of the Code of Virginia and attendant regulations.

10. Dual inspector. This classification applies to individuals who conduct inspections in the areas of ESC and SWM pursuant to this chapter. This certification satisfies the requirement for any individual employed as a dual inspector for ESC and SWM by a VESMP authority, an agent of a VESMP authority, or for personnel implementing department-approved standards and specifications pursuant to § 62.1-44.15:31 of the Code of Virginia and attendant regulations.

11. Dual plan reviewer. This classification applies to individuals who review plans in the areas of ESC and SWM for approval by a VESMP authority pursuant to this chapter. This certification satisfies the requirement for any individual employed as a dual plan reviewer for ESC and SWM by a VESMP authority, an agent of a VESMP authority, or for personnel implementing department-approved standards and specifications pursuant to § 62.1-44.15:31 of the Code of Virginia and attendant regulations.

12. Dual combined administrator. This classification applies to individuals who perform the combined duties of program administrator, inspector, and plan reviewer in the areas of ESC and SWM pursuant to this chapter. This certification satisfies the requirement for any individual employed as a dual combined administrator for ESC and SWM by a VESMP authority, an agent of a VESMP authority, or for personnel implementing department-approved standards and specifications pursuant to § 62.1-44.15:31 of the Code of Virginia and attendant regulations.

B. The classifications in subdivisions A 1 through A 8 of this section may be used to serve as the ESC or SWM components required for personnel implementing department-approved standards and specifications pursuant to § 62.1-44.15:31 of the Code of Virginia and attendant regulations.

C. A certificate shall be issued by the department for the responsible land disturber.

D. Any individual employed as a plan reviewer who is licensed as a professional engineer, architect, landscape architect, land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia, or professional soil scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia shall qualify as a certified plan reviewer for ESC and will not require a certification from the department. In lieu of an individual holding this department certification, such individual shall produce a current professional license or certification upon request of the department.

E. Any individual who holds a valid and unexpired certification issued by the department in the classification of ESC or SWM, or who obtains such certification, and who later successfully obtains an additional certification from the department in the parallel ESC or SWM classification may surrender both certifications to the department for issuance of a dual certification in both ESC and SWM. Such a request must be made while both of the ESC and SWM certifications obtained are valid and unexpired. The expiration date of the dual certification shall be three years from the date of expiration of the additional certification acquired.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-410 Eligibility requirements

A. Certification may be achieved by:

1. Obtaining a total of 800 hours of experience as an ESC, SWM, or a dual program administrator, plan reviewer, inspector, or combined administrator and obtaining a passing score on the certification examination administered by the department in the applicable ESC or SWM area; or both ESC and SWM for the dual certification; or

2. Completing a department-approved training program in the classifications of program administrator, plan reviewer, inspector, or combined administrator and, within one year of completing the training program, obtain a passing score on the certification examination administered by the department in the applicable ESC or SWM area, or both ESC and SWM for the dual certification.

a. Combined administrators must complete the training program for program administrator, inspector, and plan reviewer within the applicable area of ESC or SWM.

b. Dual combined administrators must complete the training program for program administrator, inspector, and plan reviewer within both areas of ESC and SWM.

B. Certification and recertification shall be valid for three years except as otherwise set out in 9VAC25-875-400 D or 9VAC25-875-460.

C. Recertification may be obtained for classifications outlined in 9VAC25-875-400 of this part prior to the expiration date of a certification by:

1. Completing continuing education contact hours in accordance with department guidance and paying the required fee for recertification;

2. Being a professional registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia or a professional soil scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia, and paying the required fee for recertification. Such professionals shall be deemed to satisfy the provisions of this subsection for ESC classifications in subdivisions A 1 through A 4 of 9VAC25-875-400. However, such professionals when in the classification of plan reviewer for ESC shall be exempt from the recertification requirements and fees of this part provided they maintain their professional license;

3. Being a professional registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia and paying the required fee for recertification. Such professionals shall be deemed to satisfy the provisions of this subsection for SWM and dual classifications in subdivisions A 5 through A 12 of 9VAC25-875-400;

4. Successfully completing a department-approved training program and paying the required fee for recertification; or

5. Obtaining a passing score on the recertification examination.

D. Responsible Land Disturber (RLD) Certificate may be obtained by completing a department-approved training program for RLDs for ESC.

1. The RLD Certificate and any renewal thereof shall be valid for three years.

2. Renewal of the RLD Certificate may be obtained by completing a department-approved training program for RLDs.

3. Being a professional registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia or a professional soil scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia shall be deemed to satisfy the provisions of this subsection for an RLD Certificate in subsection C of 9VAC25-875-400 or any renewal thereof.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-420 Classification acknowledgment for the purposes of program compliance reviews

For the purposes of VESCP or VESMP compliance reviews and evaluations, the certification requirements of §§ 62.1-44.15:53 and 62.1-44.15:30 of the Code of Virginia shall be deemed to have been met if the VESCP or VESMP authority has an individual enrolled in the department's ESC or SWM training programs set forth in 9VAC25-875-410 A 2 a and A 2 b for the necessary classifications and such individual obtains certification within one year of completing the necessary training programs.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-430 Certification program fees

A. Certification, recertification, dual certification, and RLD Certificate issuance and reissuance fees shall be collected to cover the administrative cost for the certification program.

B. A fee will also be charged to present education and training programs that support the certification program.

C. Fees are nonrefundable, except as authorized by the department and shall not be prorated.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-440 Examination

A. A department-approved examination shall be administered by the department.

B. An applicant may take the certification examination for the desired certification after fulfilling the prerequisite experience requirement or completing a department-approved training program.

C. An applicant who is unsuccessful in passing an examination will be allowed to pay the appropriate fee and retake the appropriate examination.

D. A minimum passing score of 70% will be required on the appropriate certification examination.

E. All applicants will be notified of the results within 60 days of the examination.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-450 Reserved

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-460 Discipline for certified personnel

The department may suspend, revoke, or refuse to grant or renew the certification or certificate of any individual if the department, in an informal fact finding under § 2.2-4019 of the Code of Virginia, finds that:

1. The certification or certificate was obtained or renewed through fraud or misrepresentation;

2. The individual who holds a certification or certificate has violated or cooperated with others in violating any provision of this part;

3. The individual who holds a certification or certificate has not demonstrated reasonable care, judgment, or application of knowledge and ability in the performance of duties; or

4. The individual who holds a certification or certificate has made any material misrepresentation in the course of performing duties.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 1 Administrative Criteria

9VAC25-875-470 Applicability

A. Land-disturbing activities that meet one of the criteria in this subsection are regulated as follows:

1. Land-disturbing activity that disturbs 10,000 square feet or more, although a locality may reduce this regulatory threshold to a smaller area of disturbed land, is less than one acre, not in an area of a locality designated as a Chesapeake Bay Preservation Area, and not part of a common plan of development or sale, is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) of this part.

2. Land-disturbing activity that disturbs 2,500 square feet or more, although a locality may reduce this regulatory threshold to a smaller area of disturbed land, is less than one acre, and in an area of a locality designated as a Chesapeake Bay Preservation Area is subject to criteria defined in Article 2 and Article 5 (9VAC25-875-740 et seq.)of this part, unless Article 4 (9VAC25-875-670 et seq.)of this part is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490. For land-disturbing activities for single-family detached residential structures, Article 2 of this part and water quantity technical criteria, 9VAC25-875-600, shall apply to any land-disturbing activity that disturbs 2,500 square feet or more of land, and the locality also may require compliance with the water quality technical criteria, 9VAC25-875-580 and 9VAC25-875-590.

3. Land-disturbing activity that disturbs less than one acre but is part of a larger common plan of development or sale that disturbs one acre or more is subject to criteria defined in Article 2 and Article 3 of this part, unless Article 4 of this part is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490.

4. Land-disturbing activity that disturbs one acre or more is subject to criteria defined in Article 2 and Article 3 of this part, unless Article 4 of this part is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490.

B. A locality may, by local ordinance adopted pursuant to § 62.1-44.15:33 or 62.1-44.15:65 of the Code of Virginia, adopt more stringent local requirements.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-480 Applicability of other laws and regulations; time limits on applicability of approved design criteria

A. Nothing in this chapter shall be construed as limiting the applicability of other laws and regulations, including, the Clean Water Act, VESMA, ESCL, and the Chesapeake Bay Preservation Act, and all applicable regulations adopted in accordance with those laws, or the rights of other federal agencies, state agencies, or local governments to impose more stringent technical criteria or other requirements as allowed by law.

B. Land-disturbing activities that obtain an initial permit or commence land disturbance prior to July 1, 2014, shall be conducted in accordance with the technical criteria of Article 4 (9VAC25-875-670 et seq.)of this part. Such projects shall remain subject to the technical criteria of Article 4of this part for two additional permit cycles. After such time, portions of the project not under construction shall become subject to any new technical criteria adopted by the board.

C. Land-disturbing activities that obtain an initial permit on or after July 1, 2014, shall be conducted in accordance with the technical criteria of Article 3 (9VAC25-875-570 et seq.)of this part, except as provided for in 9VAC25-875-490. Land-disturbing activities conducted in accordance with the technical criteria of Article 3of this part shall remain subject to the technical criteria of Article 3 of this part for two additional permit cycles. After such time, portions of the project not under construction shall become subject to any new technical criteria adopted by the board.

D. Nothing in this section shall preclude an operator from constructing to a more stringent standard at the operator's discretion.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-490 Grandfathering

A. Any land-disturbing activity shall be considered grandfathered by the VESMP authority and shall be subject to the technical criteria of Article 4 (9VAC25-875-670 et seq.) of this part provided:

1. A proffered or conditional zoning plan, zoning with a plan of development, preliminary or final subdivision plat, preliminary or final site plan, or any document determined by the locality to be equivalent thereto (i) was approved by the locality prior to July 1, 2012; (ii) provided a layout as defined in 9VAC25-875-670; (iii) will comply with the technical criteria of Article 4 of this part; and (iv) has not been subsequently modified or amended in a manner resulting in an increase in the amount of phosphorus leaving each point of discharge and such that there is no increase in the volume or rate of runoff;

2. A permit has not been issued prior to July 1, 2014;

3. Land disturbance did not commence prior to July 1, 2014; and

4. Land disturbance commenced prior to July 1, 2019.

B. Locality, state, and federal projects shall be considered grandfathered by the VESMP authority and shall be subject to the technical criteria of Article 4of this part, provided:

1. There has been an obligation of locality, state, or federal funding, in whole or in part, prior to July 1, 2012, or the department has approved a stormwater management plan prior to July 1, 2012;

2. A permit has not been issued prior to July 1, 2014;

3. Land disturbance did not commence prior to July 1, 2014; and

4. Land disturbance commenced prior to July 1, 2019.

C. Land disturbing activities that are grandfathered under subsection A or B of this section shall remain subject to the technical criteria of Article 4 of this part until construction is completed. To remain subject to the technical criteria of Article 4 of this part, subsequent modifications or amendments to a previously approved stormwater management plan may not result in an increase in the amount of phosphorus leaving each point of discharge or an increase in the volume or rate of runoff. Any modifications or amendments to a previously approved stormwater management plan that result in an increase in the amount of phosphorus leaving any point of discharge or an increase in the volume or rate of runoff, or additional land-disturbing activities not previously authorized, shall comply with the technical criteria in Article 2 (9VAC25-875-540 et seq.), 3 (9VAC25-875-570 et seq.), or 5 (9VAC25-875-740 et seq.) of this part, as applicable.

D. In cases where governmental bonding or public debt financing has been issued for a project prior to July 1, 2012, such project shall be subject to the technical criteria of Article 4 of this part.

E. Nothing in this section shall preclude an operator from constructing to a more stringent standard at the operator's discretion.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-500 Stormwater pollution prevention plan requirements

A. A stormwater pollution prevention plan shall include an approved erosion and sediment control plan, an approved stormwater management plan, a pollution prevention plan for regulated land-disturbing activities, and a description of any additional control measures necessary to address a TMDL pursuant to subsection E of this section.

B. An erosion and sediment control plan consistent with the requirements of 9VAC25-875-550 and 9VAC25-875-560 must be designed and implemented during construction activities. Prior to land disturbance, this plan must be approved by the VESCP authority, VESMP authority, or the department.

C. A stormwater management plan consistent with the requirements of 9VAC25-875-510 must be designed and implemented during construction activities. Prior to land disturbance, this plan must be approved by the VESMP authority or the department.

D. A pollution prevention plan that identifies potential sources of pollutants that may reasonably be expected to affect the quality of stormwater discharges from the construction site and describes control measures that will be used to minimize pollutants in stormwater discharges from the construction site must be developed before land disturbance commences.

E. In addition to the requirements of subsections A through D of this section, if a specific wasteload allocation for a pollutant has been established in an approved TMDL and is assigned to stormwater discharges from a construction activity, additional control measures must be identified and implemented by the operator so that discharges are consistent with the assumptions and requirements of the wasteload allocation.

F. The stormwater pollution prevention plan (SWPPP) must address the following requirements as specified in 40 CFR 450.21, to the extent otherwise required by state law or regulations and any applicable requirements of a permit:

1. Control stormwater volume and velocity within the site to minimize soil erosion;

2. Control stormwater discharges, including both peak flow rates and total stormwater volume, to minimize erosion at outlets and to minimize downstream channel and stream bank erosion;

3. Minimize the amount of soil exposed during construction activity;

4. Minimize the disturbance of steep slopes;

5. Minimize sediment discharges from the site. The design, installation, and maintenance of erosion and sediment controls must address factors such as the amount, frequency, intensity, and duration of precipitation, the nature of resulting stormwater runoff, and soil characteristics, including the range of soil particle sizes expected to be present on the site;

6. Provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal, and maximize stormwater infiltration, unless infeasible;

7. Minimize soil compaction and, unless infeasible, preserve topsoil;

8. Stabilization of disturbed areas must, at a minimum, be initiated immediately whenever any clearing, grading, excavating, or other earth-disturbing activities have permanently ceased on any portion of the site, or temporarily ceased on any portion of the site and will not resume for a period exceeding 14 calendar days. Stabilization must be completed within a period of time determined by the VESMP authority or the department as the VSMP authority. In arid, semi-arid, and drought-stricken areas where initiating vegetative stabilization measures immediately is infeasible, alternative stabilization measures must be employed as specified by the VESMP authority or department; and

9. Utilize outlet structures that withdraw water from the surface, unless infeasible, when discharging from basins and impoundments.

G. The SWPPP shall be amended whenever there is a change in design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to state waters and that has not been previously addressed in the SWPPP. The SWPPP must be maintained at a central location on site. If an onsite location is unavailable, notice of the SWPPP's location must be posted near the main entrance at the construction site.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-510 Stormwater management plan requirements

A. A stormwater management plan shall be developed and submitted to the VESMP authority or the department as the VSMP authority. The stormwater management plan shall be implemented as approved or modified by the VESMP authority or department and shall be developed in accordance with the following:

1. A stormwater management plan for a land-disturbing activity shall apply the stormwater management technical criteria set forth in this part to the entire land-disturbing activity. Individual lots in new residential, commercial, or industrial developments, including those developed under subsequent owners, shall not be considered separate land-disturbing activities.

2. A stormwater management plan shall consider all sources of surface runoff and all sources of subsurface and groundwater flows converted to surface runoff.

B. A complete stormwater management plan shall include the following elements:

1. Information on the type of and location of stormwater discharges, information on the features to which stormwater is being discharged including surface waters or karst features if present, and predevelopment and post-development drainage areas;

2. Contact information including the name, address, telephone number, and email address of the owner and the tax reference number and parcel number of the property or properties affected;

3. A narrative that includes a description of current site conditions and final site conditions or if allowed by the VESMP authority or department, the information provided and documented during the review process that addresses the current and final site conditions;

4. A general description of the proposed stormwater management facilities and the mechanism through which the facilities will be operated and maintained after construction is complete;

5. Information on the proposed stormwater management facilities, including (i) detailed narrative on the conversion to a long-term stormwater management facility if the facility was used as a temporary ESC measure; (ii) the type of facilities; (iii) location, including geographic coordinates; (iv) acres treated; and (v) the surface waters or karst features into which the facility will discharge;

6. Hydrologic and hydraulic computations, including runoff characteristics;

7. Documentation and calculations verifying compliance with the water quality and quantity requirements of this chapter;

8. A map of the site that depicts the topography of the site and includes:

a. All contributing drainage areas;

b. Existing streams, ponds, culverts, ditches, wetlands, other water bodies, and floodplains;

c. Soil types, geologic formations if karst features are present in the area, forest cover, and other vegetative areas;

d. Current land use including existing structures, roads, and locations of known utilities and easements;

e. Sufficient information on adjoining parcels to assess the impacts of stormwater from the site on these parcels;

f. The limits of clearing and grading, and the proposed drainage patterns on the site;

g. Proposed buildings, roads, parking areas, utilities, and stormwater management facilities; and

h. Proposed land use with tabulation of the percentage of surface area to be adapted to various uses, including planned locations of utilities, roads, and easements;

9. If an operator intends to meet the requirements established in 9VAC25-875-580 or 9VAC25-875-600 through the use of offsite compliance options, where applicable, then a letter of availability from the offsite provider must be included; and

10. If payment of a fee is required with the stormwater management plan submission to the VESMP authority or the department, the fee in accordance with Part VIII (9VAC25-875-1290 et seq.) of this chapter must have been submitted.

C. All final plan elements, specifications, or calculations of the stormwater management plans whose preparation requires a license under Chapter 4 (§ 54.1-400 et seq.) or 22 (§ 54.1- 2200 et seq.) of Title 54.1 of the Code of Virginia shall be appropriately signed and sealed by a professional who is licensed to engage in practice in the Commonwealth of Virginia. Nothing in this subsection shall authorize any person to engage in practice outside that person's area of professional competence.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-520 Pollution prevention plans

A. A plan for implementing pollution prevention measures during construction activities shall be developed, implemented, and updated as necessary. The pollution prevention plan shall detail the design, installation, implementation, and maintenance of effective pollution prevention measures as specified in 40 CFR 450.21(d) to minimize the discharge of pollutants. At a minimum, such measures must be designed, installed, implemented, and maintained to:

1. Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and other wash waters. Wash waters must be treated in a sediment basin or alternative control that provides equivalent or better treatment prior to discharge;

2. Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste, and other materials present on the site to precipitation and to stormwater; and

3. Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak prevention and response procedures.

B. The pollution prevention plan shall include effective best management practices to prohibit the following discharges in accordance with 40 CFR 450.21(e):

1. Wastewater from washout of concrete, unless managed by an appropriate control;

2. Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds, and other construction materials;

3. Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance; and

4. Soaps or solvents used in vehicle and equipment washing.

C. Discharges from dewatering activities, including discharges from dewatering of trenches and excavations, are prohibited unless managed by appropriate controls in accordance with 40 CFR 450.21(c).

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-530 Applying for permit coverage

A. The operator must submit a complete and accurate registration statement in accordance with the General VPDES Permit for Discharges of Stormwater from Construction Activities (9VAC25-880) if such statement is required, on the official department form to the VESMP or department as the VSMP authority in order to apply for permit coverage. The registration statement must be signed by the operator in accordance with 9VAC25-875-940. In accordance with § 62.1-44.15:28 of the Code of Virginia, no registration statement is required for coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities (Construction General Permit) for a small construction activity involving a single-family detached residential structure, within or outside a common plan of development or sale.

B. A person shall not conduct any land-disturbing activity until (i) the person has submitted to the appropriate VESMP authority or the department as the VSMP authority an application that includes a permit registration statement, if required, an ESM plan or an executed agreement in lieu of a plan, if required, and (ii) the VESMP authority or department has issued its land-disturbance approval. For a single family detached residential structure with less than one acre of land disturbance, an agreement in lieu of a plan may be used when either (a) it is located within a common plan of development or sale with an approved stormwater pollution prevention plan consistent with 9VAC25-875-500 and a permit, if required; or (b) the single-family detached residential is located outside of a common plan of development or sale.

C. In addition, as a prerequisite to engaging in an approved land-disturbing activity, the name of the individual who will be assisting the owner in carrying out the activity and holds a Responsible Land Disturber Certificate pursuant to § 62.1-44.15:30 of the Code of Virginia shall be submitted to the VESMP authority or department.

D. Any VESMP authority or the department as the VSMP authority may waive the Responsible Land Disturber Certificate requirement for an agreement in lieu of a plan; however, if a violation occurs during the land-disturbing activity, then the owner shall correct the violation and provide the name of the individual holding a Responsible Land Disturber Certificate as provided by § 62.1-14:30 of the Code of Virginia. Failure to provide the name of an individual holding a Responsible Land Disturber Certificate prior to engaging in land-disturbing activities may result in revocation of the land-disturbance approval and shall subject the owner to the penalties provided in the VESMA.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-535 Long-term maintenance of stormwater management facilities

A. The operator shall submit a construction record drawing for permanent stormwater management facilities to the VESMP or VSMP authority based on the locality where the land-disturbing activity will occur. The record drawing shall contain a statement signed by a professional registered in the Commonwealth of Virginia pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, stating that to the best of the professional's knowledge, the construction record drawing shows all adjustments and revisions to the stormwater management plan made during construction and serve as a permanent record of the actual location of all constructed elements.

B. The provision of long-term responsibility for and maintenance of stormwater management facilities and other techniques specified to manage the quality or quantity of runoff is required. Such requirements shall be set forth in an instrument recorded in the local land records prior to permit termination or earlier as required by the authority and shall at a minimum:

1. Be submitted to the authority for review and approval prior to the approval of the stormwater management plan;

2. Be stated to run with the land;

3. Provide for all necessary access to the property for purposes of maintenance and regulatory inspections;

4. Provide for inspections and maintenance and the submission of inspection and maintenance reports to the VESCP, VSMP, or VESMP authority; and

5. Be enforceable by all appropriate governmental parties.

C. At the discretion of the VESMP authority, such recorded instruments need not be required for stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located, provided it is demonstrated to the satisfaction of the authority that future maintenance of such facilities will be addressed through an enforceable mechanism at the discretion of the authority.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 2 Soil Erosion Requirements

9VAC25-875-540 Applicability

A. This article sets forth minimum standards for the effective control of soil erosion, sediment deposition, and nonagricultural runoff.

B. In accordance with Item 360 I1 of Chapter 3 of the 2012 Acts of Assembly, Special Session I, public institutions of higher education, including community colleges, colleges, and universities, shall be subject to project review and compliance for state erosion and sediment control requirements by the VESCP or VESMP authority of the locality within which the land-disturbing activity is located, unless such institution submits standards and specifications to the department in accordance with § 62.1-44.15:31 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-550 Erosion and sediment control plan requirements

A. An erosion and sediment control plan shall be filed for a development and the buildings constructed within, regardless of the phasing of construction. The erosion and sediment control plan shall contain all major conservation decisions to ensure that the entire unit of land will be so treated to achieve the conservation objectives and minimum standards in 9VAC25-875-560. The erosion and sediment control plan may include:

1. Appropriate maps;

2. An appropriate soil and water plan inventory and management information with needed interpretations; and

3. A record of decisions contributing to conservation treatment.

B. The person responsible for carrying out the plan shall provide the name of an individual holding a certificate who will be in charge of and responsible for carrying out the land-disturbing activity to the VESCP or VESMP authority. However, the VESCP or VESMP authority may waive the Responsible Land Disturber Certificate requirement for an agreement in lieu of a plan in accordance with § 62.1-44.15:34 or 62.1-44.15:55 of the Code of Virginia.

C. If individual lots or sections in a residential development are being developed by different property owners, all land-disturbing activities related to the building construction shall be covered by an erosion and sediment control plan or an agreement in lieu of a plan signed by the property owner.

D. Land-disturbing activity of less than 10,000 square feet on individual lots in a residential development shall not be considered exempt from the provisions of the VESMA, ESCL, or this chapter if the total land-disturbing activity in the development is equal to or greater than 10,000 square feet.

E. All erosion and sediment control structures and systems shall be maintained, inspected, and repaired as needed to ensure continued performance of intended function. A statement describing the maintenance responsibilities of the individual responsible for carrying out the land-disturbing activity shall be included in the approved erosion and sediment control plan.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-560 Erosion and sediment control criteria, techniques, and methods: minimum standards

A. An erosion and sediment control plan consistent with the following criteria, techniques, and methods shall be submitted to the VESMP authority or VESCP authority for review and approval:

1. Permanent or temporary soil stabilization shall be applied to denuded areas within seven days after final grade is reached on any portion of the site. Temporary soil stabilization shall be applied within seven days to denuded areas that may not be at final grade but will remain dormant for longer than 14 days. Permanent stabilization shall be applied to areas that are to be left dormant for more than one year.

2. During construction of the project, soil stockpiles and borrow areas shall be stabilized or protected with sediment trapping measures. The applicant is responsible for the temporary protection and permanent stabilization of all soil stockpiles on site as well as borrow areas and soil intentionally transported from the project site.

3. A permanent vegetative cover shall be established on denuded areas not otherwise permanently stabilized. Permanent vegetation shall not be considered established until a ground cover is achieved that is uniform, is mature enough to survive, and will inhibit erosion.

4. Sediment basins and traps, perimeter dikes, sediment barriers, and other measures intended to trap sediment shall be constructed as a first step in any land-disturbing activity and shall be made functional before upslope land disturbance takes place.

5. Stabilization measures shall be applied to earthen structures such as dams, dikes, and diversions immediately after installation.

6. Sediment traps and sediment basins shall be designed and constructed based upon the total drainage area to be served by the trap or basin.

a. The minimum storage capacity of a sediment trap shall be 134 cubic yards per acre of drainage area and the trap shall only control drainage areas less than three acres.

b. Surface runoff from disturbed areas that is comprised of flow from drainage areas greater than or equal to three acres shall be controlled by a sediment basin. The minimum storage capacity of a sediment basin shall be 134 cubic yards per acre of drainage area. The outfall system shall, at a minimum, maintain the structural integrity of the basin during a 25-year storm of 24-hour duration. Runoff coefficients used in runoff calculations shall correspond to a bare earth condition or those conditions expected to exist while the sediment basin is utilized.

7. Cut and fill slopes shall be designed and constructed in a manner that will minimize erosion. Slopes that are found to be eroding excessively within one year of permanent stabilization shall be provided with additional slope stabilizing measures until the problem is corrected.

8. Concentrated runoff shall not flow down cut or fill slopes unless contained within an adequate temporary or permanent channel, flume, or slope drain structure.

9. Whenever water seeps from a slope face, adequate drainage or other protection shall be provided.

10. All storm sewer inlets that are made operable during construction shall be protected so that sediment-laden water cannot enter the conveyance system without first being filtered or otherwise treated to remove sediment.

11. Before newly constructed stormwater conveyance channels or pipes are made operational, adequate outlet protection and any required temporary or permanent channel lining shall be installed in both the conveyance channel and receiving channel.

12. When work in a live watercourse is performed, precautions shall be taken to minimize encroachment, control sediment transport, and stabilize the work area to the greatest extent possible during construction. Nonerodible material shall be used for the construction of causeways and cofferdams. Earthen fill may be used for these structures if armored by nonerodible cover materials.

13. When a live watercourse must be crossed by construction vehicles more than twice in any six-month period, a temporary vehicular stream crossing constructed of nonerodible material shall be provided.

14. All applicable federal, state, and local requirements pertaining to working in or crossing live watercourses shall be met.

15. The bed and banks of a watercourse shall be stabilized immediately after work in the watercourse is completed.

16. Underground utility lines shall be installed in accordance with the following standards in addition to other applicable criteria:

a. No more than 500 linear feet of trench may be opened at one time.

b. Excavated material shall be placed on the uphill side of trenches.

c. Effluent from dewatering operations shall be filtered or passed through an approved sediment trapping device, or both and discharged in a manner that does not adversely affect flowing streams or off-site property.

d. Material used for backfilling trenches shall be properly compacted in order to minimize erosion and promote stabilization.

e. Restabilization shall be accomplished in accordance with this chapter.

f. Applicable safety requirements shall be complied with.

17. Where construction vehicle access routes intersect paved or public roads, provisions shall be made to minimize the transport of sediment by vehicular tracking onto the paved surface. Where sediment is transported onto a paved or public road surface, the road surface shall be cleaned thoroughly at the end of each day. Sediment shall be removed from the roads by shoveling or sweeping and transported to a sediment control disposal area. Street washing shall be allowed only after sediment is removed in this manner. This provision shall apply to individual development lots as well as to larger land-disturbing activities.

18. All temporary erosion and sediment control measures shall be removed within 30 days after final site stabilization or after the temporary measures are no longer needed, unless otherwise authorized by the VESCP or VESMP authority. Trapped sediment and the disturbed soil areas resulting from the disposition of temporary measures shall be permanently stabilized to prevent further erosion and sedimentation.

19. Properties and waterways downstream from development sites shall be protected from sediment deposition, erosion, and damage due to increases in volume, velocity, and peak flow rate of stormwater runoff for the stated frequency storm of 24-hour duration in accordance with the following standards and criteria. Stream restoration and relocation projects that incorporate natural channel design concepts are not manmade channels and shall be exempt from any flow rate capacity and velocity requirements for natural or manmade channels:

a. Concentrated stormwater runoff leaving a development site shall be discharged directly into an adequate natural or manmade receiving channel, pipe, or storm sewer system. For those sites where runoff is discharged into a pipe or pipe system, downstream stability analyses at the outfall of the pipe or pipe system shall be performed.

b. Adequacy of all channels and pipes shall be verified in the following manner:

(1) The applicant shall demonstrate that the total drainage area to the point of analysis within the channel is 100 times greater than the contributing drainage area of the project in question; or

(2) (a) Natural channels shall be analyzed by the use of a two-year storm to verify that stormwater will not overtop channel banks nor cause erosion of channel bed or banks;

(b) All previously constructed manmade channels shall be analyzed by the use of a 10-year storm to verify that stormwater will not overtop the stormwater's banks and by the use of a two-year storm to demonstrate that stormwater will not cause erosion of channel bed or banks; and

(c) Pipes and storm sewer systems shall be analyzed by the use of a 10-year storm to verify that stormwater will be contained within the pipe or system.

c. If existing natural receiving channels or previously constructed manmade channels or pipes are not adequate, the applicant shall:

(1) Improve the channels to a condition where a 10-year storm will not overtop the banks and a two-year storm will not cause erosion to the channel, the bed, or the banks;

(2) Improve the pipe or pipe system to a condition where the 10-year storm is contained within the appurtenances;

(3) Develop a site design that will not cause the predevelopment peak runoff rate from a two-year storm to increase when runoff outfalls into a natural channel or will not cause the predevelopment peak runoff rate from a 10-year storm to increase when runoff outfalls into a manmade channel; or

(4) Provide a combination of channel improvement, stormwater detention, or other measures that is satisfactory to the VESCP or VESMP authority to prevent downstream erosion.

d. The applicant shall provide evidence of permission to make the improvements.

e. All hydrologic analyses shall be based on the existing watershed characteristics and the ultimate development condition of the subject project.

f. If the applicant chooses an option that includes stormwater detention, the applicant shall obtain approval from the VESCP or VESMP authority for a plan for maintenance of the detention facilities. The plan shall set forth the maintenance requirements of the facility and the person responsible for performing the maintenance.

g. Outfall from a detention facility shall be discharged to a receiving channel, and energy dissipators shall be placed at the outfall of all detention facilities as necessary to provide a stabilized transition from the facility to the receiving channel.

h. All onsite channels must be verified to be adequate.

i. Increased volumes of sheet flows that may cause erosion or sedimentation on adjacent property shall be diverted to a stable outlet, adequate channel, pipe, or pipe system or to a detention facility.

j. In applying these stormwater management criteria, individual lots or parcels in a residential, commercial, or industrial development shall not be considered to be separate development projects. Instead, the development as a whole shall be considered to be a single development project. Hydrologic parameters that reflect the ultimate development condition shall be used in all engineering calculations.

k. All measures used to protect properties and waterways shall be employed in a manner that minimizes impacts on the physical, chemical, and biological integrity of rivers, streams, and other waters of the state.

l. Any plan approved prior to July 1, 2014, that provides for stormwater management that addresses any flow rate capacity and velocity requirements for natural or manmade channels shall satisfy the flow rate capacity and velocity requirements for natural or manmade channels if the practices are designed to (i) detain the water quality volume and to release it over 48 hours; (ii) detain and release over a 24-hour period the expected rainfall resulting from the one year, 24-hour storm; and (iii) reduce the allowable peak flow rate resulting from the 1.5-year, two-year, and 10-year 24-hour storms to a level that is less than or equal to the peak flow rate from the site assuming the site was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when the site was in a good forested condition divided by the runoff volume from the site in the site's proposed condition, and shall be exempt from any flow rate capacity and velocity requirements for natural or manmade channels as defined in any regulations promulgated pursuant to § 62.1-44.15:28 of the Code of Virginia (VESMA) or § 62.1-44.15:54 or 62.1-44.15:65 of the Code of Virginia (ESCL).

m. For plans approved on and after July 1, 2014, the flow rate capacity and velocity requirements of § 62.1-44.15:52 A of the Code of Virginia (ESCL) and this subdivision 19 shall be satisfied by compliance with water quantity requirements in the VESMA and attendant regulations, unless such land-disturbing activities (i) are in accordance with provisions for time limits on applicability of approved design criteria in 9VAC25-875-480 or grandfathering in 9VAC25-875-490, in which case the flow rate capacity and velocity requirements of § 62.1-44.15:52 A of the Code of Virginia (ESCL) shall apply; or (ii) are exempt pursuant to § 62.1-44.15:34 G 2 of the Code of Virginia (VESMA).

n. Compliance with the water quantity minimum standards set out in 9VAC25-875-600 shall be deemed to satisfy the requirements of this subdivision 19.

B. All land-disturbing activities shall be conducted in a manner that is consistent with the applicable requirements of subsection A of this section.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

Article 3 Water Quantity and Water Quality Technical Criteria

9VAC25-875-570 Applicability

In accordance with the board's authority and except as provided in 9VAC25-875-490, this article establishes the minimum technical criteria that shall be employed to protect the quality and quantity of state waters from the potential harm of unmanaged stormwater runoff resulting from land-disturbing activities.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-580 Water quality design criteria requirements

A. In order to protect the quality of state waters and to control the discharge of stormwater pollutants from regulated activities, the following minimum design criteria and statewide standards for stormwater management shall be applied to the site.

1. New development. For plans submitted on or after July 1, 2025, the total phosphorus load of new development projects shall not exceed 0.26 pounds per acre per year, as calculated pursuant to 9VAC25-875-590.

2. Development on prior developed lands.

a. For land-disturbing activities disturbing greater than or equal to one acre that result in no net increase in impervious cover from the predevelopment condition, the total phosphorus load shall be reduced at least 20% below the predevelopment total phosphorus load.

b. For regulated land-disturbing activities disturbing less than one acre that result in no net increase in impervious cover from the predevelopment condition, the total phosphorus load shall be reduced at least 10% below the predevelopment total phosphorus load.

c. For land-disturbing activities that result in a net increase in impervious cover over the predevelopment condition, the design criteria for new development shall be applied to the increased impervious area. Depending on the area of disturbance, the criteria of subdivision 2 a or 2 b of this subsection shall be applied to the remainder of the site.

d. In lieu of subdivision 2 c of this subsection, the total phosphorus load of a linear development project occurring on prior developed lands shall be reduced 20% below the predevelopment total phosphorus load.

e. The total phosphorus load shall not be required to be reduced to below the applicable standard for new development unless a more stringent standard has been established by a locality.

B. Compliance with subsection A of this section shall be determined in accordance with 9VAC25-875-590.

C. For plans submitted and deemed complete pursuant to 9VAC25-875-110 before July 1, 2025, the total phosphorus load of new development projects shall not exceed 0.41 pounds per acre per year, as calculated using the Virginia Runoff Reduction Method Version 3.0, May 2, 2016, or another equivalent methodology that is approved by the department.

D. For plans submitted and deemed complete pursuant to 9VAC25-875-110 before July 1, 2025, for land-disturbing activities on prior developed lands, compliance with subsection A 2 of this section shall be determined using the Virginia Runoff Reduction Method Version 3.0, May 2, 2016, 9VAC25-875-590, or another equivalent methodology that is approved by the department.

E. Nothing in this section shall prohibit a VESMP authority from establishing more stringent water quality design criteria requirements in accordance with § 62.1-44.15:33 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 10, eff. July 1, 2025; Volume 41, Issue 23, eff. August 14, 2025.

9VAC25-875-590 Water quality compliance

A. Compliance with the water quality design criteria set out in subdivisions A 1 and A 2 of 9VAC25-875-580 shall be determined by utilizing the Virginia Runoff Reduction Method, effective April 27, 2024, which is hereby incorporated by reference or another equivalent methodology that is approved by the department.

B. The BMPs listed in the Virginia Stormwater Management Handbook (https://online.encodeplus.com/regs/deq-va/index.aspx) are approved for use as necessary to effectively reduce the phosphorus load and runoff volume in accordance with the Virginia Runoff Reduction Method, April 27, 2024. Other approved BMPs found through the Virginia Stormwater BMP Clearinghouse ( https://www.deq.virginia.gov/water/stormwater/stormwater-construction/bmp-clearinghouse) may also be utilized. Design specifications and the pollutant removal efficiencies for all approved BMPs are found through the Virginia Stormwater Management Handbook and the Virginia Stormwater BMP Clearinghouse.

C. Nonproprietary BMPs differing from those referenced in subsection B of this section shall be reviewed and approved by the director in accordance with procedures established by the department.

D. Proprietary BMPs listed through the Virginia Stormwater BMP Clearinghouse are approved for use in accordance with the Virginia Runoff Reduction Method, April 27, 2024. Any proprietary BMP approved for use after July 1, 2020, must meet the requirements of § 62.1-44.15:28 A 9 of the Code of Virginia.

E. A VESMP authority may establish limitations on the use of specific BMPs in accordance with § 62.1-44.15:33 of the Code of Virginia.

F. The VESMP authority or department as the VSMP authority shall have the discretion to allow for application of the design criteria to each drainage area of the site. However, where a site drains to more than one HUC, the pollutant load reduction requirements shall be applied independently within each HUC unless reductions are achieved in accordance with a comprehensive watershed stormwater management plan in accordance with 9VAC25-875-660.

G. Offsite alternatives where allowed in accordance with 9VAC25-875-610 may be utilized to meet the design criteria of subsection A of 9VAC25-875-580.

H. Any publicly owned treatment works that is permitted under the watershed general VPDES permit pursuant to § 62.1-44.19:14 of the Code of Virginia and is constructing or expanding the treatment works, wastewater collection system, or other facility used for public wastewater utility operations may, in accordance with § 62.1-44.19:21.2 C of the Code of Virginia, permanently retire a portion of the publicly owned treatment work's wasteload allocation to meet the design criteria of subsection A of 9VAC25-875-580. Notice shall be given by such applicant to the VESMP authority and to the department.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 10, eff. July 1, 2025; Volume 42, Issue 6, eff. November 3, 2025.

9VAC25-875-600 Water quantity

A. Channel protection and flood protection shall be addressed in accordance with the minimum standards set out in this section, which are established pursuant to the requirements of § 62.1-44.15:28 of the Code of Virginia or as permitted in accordance with § 62.1-44.15:27.2 of the Code of Virginia. Nothing in this section shall prohibit a locality's VESMP authority from establishing a more stringent standard in accordance with § 62.1- 44.15:33 of the Code of Virginia especially where more stringent requirements are necessary to address total maximum daily load requirements or to protect exceptional state waters. Compliance with the minimum standards set out in this section shall be deemed to satisfy the requirements of subdivision 19 of 9VAC25-875-560.

B. Channel protection. Concentrated stormwater flow shall be released into a stormwater conveyance system and shall meet the criteria in subdivision 1, 2, or 3 of this subsection, where applicable, from the point of discharge to a point to the limits of analysis in subdivision 4 of this subsection.

1. Manmade stormwater conveyance systems. When stormwater from a development is discharged to a manmade stormwater conveyance system, following the land-disturbing activity, either:

a. The manmade stormwater conveyance system shall convey the post-development peak flow rate from the two-year 24-hour storm event without causing erosion of the system. Detention of stormwater or downstream improvements may be incorporated into the approved land-disturbing activity to meet this criterion, at the discretion of the VESMP authority or department as the VSMP authority; or

b. The peak discharge requirements for concentrated stormwater flow to natural stormwater conveyance systems in subdivision 3 of this subsection shall be met.

2. Restored stormwater conveyance systems. When stormwater from a development is discharged to a restored stormwater conveyance system that has been restored using natural design concepts, following the land-disturbing activity, either:

a. The development shall be consistent, in combination with other stormwater runoff, with the design parameters of the restored stormwater conveyance system that is functioning in accordance with the design objectives; or

b. The peak discharge requirements for concentrated stormwater flow to natural stormwater conveyance systems in subdivision 3 of this subsection shall be met.

3. Natural stormwater conveyance systems. When stormwater from a development is discharged to a natural stormwater conveyance system, the maximum peak flow rate from the one-year 24-hour storm following the land-disturbing activity shall be calculated either:

a. In accordance with the following methodology:

Q_Developed≤ I.F.(Q_{Pre-developed} RV_{Pre-Developed})/RV_Developed

Under no condition shall Q_Developed be greater than Q_{Pre-Developed}nor shall Q_Developed be required to be less than that calculated in the equation (Q_Forest * RV_Forest)/RV_Developed; where

I.F. (Improvement Factor) equals 0.8 for sites > 1 acre or 0.9 for sites ≤ 1 acre.

Q_Developed = The allowable peak flow rate of runoff from the developed site.

RV_Developed = The volume of runoff from the site in the developed condition.

Q_{Pre-Developed}= The peak flow rate of runoff from the site in the pre-developed condition.

RV_{Pre-Developed}= The volume of runoff from the site in pre-developed condition.

Q_Forest = The peak flow rate of runoff from the site in a forested condition.

RV_Forest = The volume of runoff from the site in a forested condition; or

b. In accordance with another methodology that is demonstrated by the VESMP authority to achieve equivalent results and is approved by the department.

4. Limits of analysis. Unless subdivision 3 of this subsection is utilized to show compliance with the channel protection criteria, stormwater conveyance systems shall be analyzed for compliance with channel protection criteria to a point where either:

a. Based on land area, the site's contributing drainage area is less than or equal to 1.0% of the total watershed area; or

b. Based on peak flow rate, the site's peak flow rate from the one-year 24-hour storm is less than or equal to 1.0% of the existing peak flow rate from the one-year 24-hour storm prior to the implementation of any stormwater quantity control measures.

C. Flood protection. Concentrated stormwater flow shall be released into a stormwater conveyance system and shall meet one of the following criteria as demonstrated by use of acceptable hydrologic and hydraulic methodologies:

1. Concentrated stormwater flow to stormwater conveyance systems that currently do not experience localized flooding during the 10-year 24-hour storm event: The point of discharge releases stormwater into a stormwater conveyance system that, following the land-disturbing activity, confines the post-development peak flow rate from the 10-year 24-hour storm event within the stormwater conveyance system. Detention of stormwater or downstream improvements may be incorporated into the approved land-disturbing activity to meet this criterion, at the discretion of the VESMP authority.

2. Concentrated stormwater flow to stormwater conveyance systems that currently experience localized flooding during the 10-year 24-hour storm event: The point of discharge either:

a. Confines the post-development peak flow rate from the 10-year 24-hour storm event within the stormwater conveyance system to avoid the localized flooding. Detention of stormwater or downstream improvements may be incorporated into the approved land-disturbing activity to meet this criterion at the discretion of the VESMP authority or department as the VSMP authority; or

b. Releases a post-development peak flow rate for the 10-year 24-hour storm event that is less than the predevelopment peak flow rate from the 10-year 24-hour storm event. Downstream stormwater conveyance systems do not require any additional analysis to show compliance with flood protection criteria if this option is utilized.

3. Limits of analysis. Unless subdivision 2 b of this subsection is utilized to comply with the flood protection criteria, stormwater conveyance systems shall be analyzed for compliance with flood protection criteria to a point where:

a. The site's contributing drainage area is less than or equal to 1.0% of the total watershed area draining to a point of analysis in the downstream stormwater conveyance system;

b. Based on peak flow rate, the site's peak flow rate from the 10-year 24-hour storm event is less than or equal to 1.0% of the existing peak flow rate from the 10-year 24-hour storm event prior to the implementation of any stormwater quantity control measures; or

c. The stormwater conveyance system enters a mapped floodplain or other flood-prone area, adopted by ordinance, of any locality.

D. Increased volumes of sheet flow resulting from pervious or disconnected impervious areas or from physical spreading of concentrated flow through level spreaders shall be identified and evaluated for potential impacts on down-gradient properties or resources. Increased volumes of sheet flow that will cause or contribute to erosion, sedimentation, or flooding of down gradient properties or resources shall be diverted to a stormwater management facility or a stormwater conveyance system that conveys the runoff without causing down-gradient erosion, sedimentation, or flooding. If all runoff from the site is sheet flow and the conditions of this subsection are met, no further water quantity controls are required.

E. For purposes of computing predevelopment runoff, all pervious lands on the site shall be assumed to be in good hydrologic condition in accordance with the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) standards, regardless of conditions existing at the time of computation. Predevelopment runoff calculations utilizing other hydrologic conditions may be utilized provided that it is demonstrated to and approved by the VESMP authority that actual site conditions warrant such considerations.

F. Predevelopment and post-development runoff characteristics and site hydrology shall be verified by site inspections, topographic surveys, available soil mapping or studies, and calculations consistent with good engineering practices. Guidance provided in the Virginia Stormwater Management Handbook and the Virginia Stormwater BMP Clearinghouse shall be considered appropriate practices.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-610 Offsite compliance options

A. No offsite option shall be used in contravention of local water quality-based limitations (i) determined pursuant to subsection B of § 62.1-44.19:14 of the Code of Virginia, (ii) adopted pursuant to § 62.1-44.15:33 of the Code of Virginia or other applicable authority, (iii) deemed necessary to protect public water supplies from demonstrated adverse nutrient impacts, or (iv) as otherwise may be established or approved by the department. Where such a limitation exists, offsite options may be used provided that such options do not preclude or impair compliance with the local limitation.

B. Unless prohibited by subsection A of this section, a VESMP authority or the department as the VSMP authority:

1. May allow the use of offsite options for compliance with water quality and water quantity technical criteria established pursuant to § 62.1-44.15:28 of the Code of Virginia, in whole or in part; and

2. Shall allow the use of nutrient credits for compliance with the water quality technical criteria when:

a. Less than five acres of land will be disturbed;

b. The phosphorous water quality reduction requirement is less than 10 pounds per year; or

c. It is demonstrated to the satisfaction of the VESMP authority or department as the VSMP authority that (i) alternative site designs have been considered that may accommodate onsite best management practices, (ii) onsite best management practices have been considered in alternative site designs to the maximum extent practicable, (iii) appropriate onsite best management practices will be implemented, and (iv) compliance with quality technical criteria cannot practicably be met onsite. The requirements of clauses (i) through (iv) of this subdivision shall be deemed to have been met if it is demonstrated that onsite control of at least 75% of the required phosphorous water quality reduction will be achieved.

C. The VESMP authority or department as the VSMP authority shall require that offsite options approved by the department or applicable state board achieve the necessary phosphorous water quality reductions prior to the commencement of the land-disturbing activity. In the case of a phased project, the land disturber may acquire or achieve the offsite nutrient reductions prior to the commencement of each phase of the land-disturbing activity in an amount sufficient for each such phase.

D. Nutrient credits shall not be used to address water quantity technical criteria.

E. Nutrient credits shall be generated in the same or adjacent fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset, as the land-disturbing activity. If no credits are available within these subbasins when the VESMP or department as the VSMP authority accepts the final site design, credits available within the same tributary may be used. The following requirements apply to the use of nutrient credits:

1. Documentation of the acquisition of nutrient credits shall be provided to the VESMP authority and the department or the department as the VSMP authority in a certification from the credit provider documenting the number of phosphorus nutrient credits acquired and the associated ratio of nitrogen nutrient credits at the credit-generating entity.

2. Application fees are provided in Certification of Nonpoint Source Nutrient Credits (9VAC25-900). Fees shall be deposited into the Virginia Stormwater Management Fund established by § 62.1-44.15:29 of the Code of Virginia.

3. For that portion of a site's compliance with water quality technical criteria being obtained through nutrient credits, the land disturber shall (i) comply with a one-to-one ratio of the nutrient credits to the site's remaining post-development nonpoint nutrient runoff compliance requirement being met by credit use and (ii) use credits certified as perpetual credits pursuant to Article 4.02 (§ 62.1-44.19:12 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

4. A VESMP or the department as the VSMP authority shall allow the full or partial substitution of perpetual nutrient credits for existing onsite nutrient controls when (i) the nutrient credits will compensate for 10 or fewer pounds of the annual phosphorous requirement associated with the original land-disturbing activity or (ii) existing onsite controls are not functioning as anticipated after reasonable attempts to comply with applicable maintenance agreements or requirements and the use of nutrient credits will account for the deficiency. Upon determination by the VESMP or department that the conditions established by clause (i) or (ii) of this subdivision have been met, the party responsible for maintenance shall be released from maintenance obligations related to the onsite phosphorous controls for which the nutrient credits are substituted.

F. Exchange of a credit released by the department is subject to the provisions of § 62.1-44.15:35, 62.1-44.19:15, or 62.1-44.19:21 of the Code of Virginia. Where necessary to ensure compliance with local water quality requirements, the exchange of a credit released by the department is conditioned by 9VAC25-900-91 B and C.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-620 Design storms and hydrologic methods

A. Unless otherwise specified, the prescribed design storms are the one-year, two-year, and 10-year 24-hour storms using the site-specific rainfall precipitation frequency data recommended by the U.S. National Oceanic and Atmospheric Administration (NOAA) Atlas 14. Partial duration time series shall be used for the precipitation data.

B. Unless otherwise specified, all hydrologic analyses shall be based on the existing watershed characteristics and how the ultimate development condition of the subject project will be addressed.

C. The U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) synthetic 24-hour rainfall distribution and models, including TR-55 and TR-20; hydrologic and hydraulic methods developed by the U.S. Army Corps of Engineers; or other standard hydrologic and hydraulic methods shall be used to conduct the analyses described in this part.

D. For drainage areas of 200 acres or less, the VESMP authority or department as the VSMP authority may allow for the use of the Rational Method for evaluating peak discharges.

E. For drainage areas of 200 acres or less, the VESMP authority or department as the VSMP authority may allow for the use of the Modified Rational Method for evaluating volumetric flows to stormwater conveyances.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-630 Stormwater harvesting

In accordance with § 62.1-44.15:28 of the Code of Virginia, stormwater harvesting is encouraged for the purposes of landscape irrigation systems, fire protection systems, flushing water closets and urinals, and other water handling systems to the extent such systems are consistent with federal, state, and local regulations.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-640 Linear development projects

Linear development projects shall control post-development stormwater runoff in accordance with a site-specific stormwater management plan or a comprehensive watershed stormwater management plan developed in accordance with this chapter.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-650 Stormwater management impoundment structures or facilities

A. Stormwater management wet ponds and extended detention ponds that are not covered by the Impounding Structure Regulations (4VAC50-20) shall, at a minimum, be engineered for structural integrity for the 100-year storm event.

B. Construction of stormwater management impoundment structures or facilities may occur in karst areas only after a study of the geology and hydrology of the area has been conducted to determine the presence or absence of karst features that may be impacted by stormwater runoff and BMP placement.

C. Discharge of stormwater runoff to a karst feature shall meet the water quality criteria set out in 9VAC25-875-580 and the water quantity criteria set out in 9VAC25-875-600. Permanent stormwater management impoundment structures or facilities shall only be constructed in karst features after completion of a geotechnical investigation that identifies any necessary modifications to the BMP to ensure its structural integrity and maintain its water quality and quantity efficiencies. The person responsible for the land-disturbing activity is encouraged to screen for known existence of heritage resources in the karst features.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-660 Comprehensive stormwater management plans

A VESMP authority may develop comprehensive stormwater management plans to be approved by the department that meet the water quality objectives, quantity objectives, or both of this part:

1. Such plans shall ensure that offsite reductions equal to or greater than those that would be required on each contributing site are achieved within the same HUC or within another locally designated watershed. Pertaining to water quantity objectives, the plan may provide for implementation of a combination of channel improvement, stormwater detention, or other measures that are satisfactory to the locality's VESMP authority to prevent downstream erosion and flooding.

2. If the land use assumptions upon which the plan was based change or if any other amendments are deemed necessary by the locality's VESMP authority, such authority shall provide plan amendments to the department for review and approval.

3. During the plan's implementation, the locality's VESMP authority shall document nutrient reductions credited to the BMPs specified in the plan.

4. State agencies and federal entities may develop comprehensive stormwater management plans and may participate in locality-developed comprehensive stormwater management plans where practicable and permitted by the locality's VESMP authority.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 4 Water Quantity and Water Quality Technical Criteria for Grandfathered Projects and Time Limits of Applicability Projects

9VAC25-875-670 Definitions

For the purposes of this article only, the following words and terms have the following meanings unless the context clearly indicates otherwise:

"Aquatic bench" means a 10-foot to 15-foot wide bench around the inside perimeter of a permanent pool that ranges in depth from zero to 12 inches. Vegetated with emergent plants, the bench augments pollutant removal, provides habitats, conceals trash and water level fluctuations, and enhances safety.

"Average land cover condition" means a measure of the average amount of impervious surfaces within a watershed, assumed to be 16% or a calculated watershed-specific value for the average land cover condition as approved by the Chesapeake Bay Local Assistance Board prior to September 13, 2011.

"Bioretention basin" means a water quality BMP engineered to filter the water quality volume (i) through an engineered planting bed consisting of a vegetated surface layer (vegetation, mulch, ground cover), planting soil, and sand bed and (ii) into the in-situ material.

"Bioretention filter" means a bioretention basin with the addition of a sand filter collector pipe system beneath the planting bed.

"Constructed wetlands" means areas intentionally designed and created to emulate the water quality improvement function of wetlands for the primary purpose of removing pollutants from stormwater.

"Development" means a tract of land developed or to be developed as a unit under single ownership or unified control that is to be used for any business or industrial purpose or is to contain three or more residential dwelling units.

"Grassed swale" means an earthen conveyance system that is broad and shallow with erosion resistant grasses and check dams, engineered to remove pollutants from stormwater runoff by filtration through grass and infiltration into the soil.

"Infiltration facility" means a stormwater management facility that temporarily impounds runoff and discharges it via infiltration through the surrounding soil. While an infiltration facility may also be equipped with an outlet structure to discharge impounded runoff, such discharge is normally reserved for overflow and other emergency conditions. Since an infiltration facility impounds runoff only temporarily, it is normally dry during nonrainfall periods. Infiltration basin, infiltration trench, infiltration dry well, and porous pavement shall be considered infiltration facilities.

"Layout" means a conceptual drawing sufficient to provide for the specified stormwater management facilities required at the time of approval.

"Nonpoint source pollutant runoff load" or "pollutant discharge" means the average amount of a particular pollutant measured in pounds per year, delivered in a diffuse manner by stormwater runoff.

"Planning area" means a designated portion of the parcel on which the land development project is located. Planning areas shall be established by delineation on a master plan. Once established, planning areas shall be applied consistently for all future projects.

"Sand filter" means a contained bed of sand that acts to filter the first flush of runoff. The runoff is then collected beneath the sand bed and conveyed to an adequate discharge point or infiltrated into the in-situ soils.

"Shallow marsh" means a zone within a stormwater extended detention basin that exists from the surface of the normal pool to a depth of six to 18 inches, and has a large surface area and, therefore, requires a reliable source of baseflow, groundwater supply, or a sizeable drainage area to maintain the desired water surface elevations to support emergent vegetation.

"Stormwater detention basin" or "detention basin" means a stormwater management facility that temporarily impounds runoff and discharges it through a hydraulic outlet structure to a downstream conveyance system. While a certain amount of outflow may also occur via infiltration through the surrounding soil, such amounts are negligible when compared to the outlet structure discharge rates and are, therefore, not considered in the facility's design. Since a detention facility impounds runoff only temporarily, it is normally dry during nonrainfall periods.

"Stormwater extended detention basin" or "extended detention basin" means a stormwater management facility that temporarily impounds runoff and discharges it through a hydraulic outlet structure over a specified period of time to a downstream conveyance system for the purpose of water quality enhancement or stream channel erosion control. While a certain amount of outflow may also occur via infiltration through the surrounding soil, such amounts are negligible when compared to the outlet structure discharge rates and, therefore, are not considered in the facility's design. Since an extended detention basin impounds runoff only temporarily, it is normally dry during nonrainfall periods.

"Stormwater extended detention basin-enhanced" or "extended detention basin-enhanced" means an extended detention basin modified to increase pollutant removal by providing a shallow marsh in the lower stage of the basin.

"Stormwater retention basin" or "retention basin" means a stormwater management facility that includes a permanent impoundment, or normal pool of water, for the purpose of enhancing water quality and, therefore, is normally wet even during nonrainfall periods. Storm runoff inflows may be temporarily stored above this permanent impoundment for the purpose of reducing flooding or stream channel erosion.

"Stormwater retention basin I" or "retention basin I" means a retention basin with the volume of the permanent pool equal to three times the water quality volume.

"Stormwater retention basin II" or "retention basin II" means a retention basin with the volume of the permanent pool equal to four times the water quality volume.

"Stormwater retention basin III" or "retention basin III" means a retention basin with the volume of the permanent pool equal to four times the water quality volume with the addition of an aquatic bench.

"Vegetated filter strip" means a densely vegetated section of land engineered to accept runoff as overland sheet flow from upstream development. It shall adopt any natural vegetated form, from grassy meadow to small forest. The vegetative cover facilitates pollutant removal through filtration, sediment deposition, infiltration, and absorption and is dedicated for that purpose.

"Water quality volume" means the volume equal to the first 1/2-inch of runoff multiplied by the impervious surface of the land development project.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-680 Applicability

This part specifies the technical criteria for regulated land-disturbing activities that are not subject to the technical criteria of Article 3 (9VAC25-875-570 et seq.)of this part in accordance with 9VAC25-875-490.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-690 General

A. Determination of flooding and channel erosion impacts to receiving streams due to land-disturbing activities shall be measured at each point of discharge from the land disturbance and such determination shall include any runoff from the balance of the watershed that also contributes to that point of discharge.

B. The specified design storms shall be defined as either a 24-hour storm using the rainfall distribution recommended by the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) when using NRCS methods or as the storm of critical duration that produces the greatest required storage volume at the site when using a design method such as the Modified Rational Method.

C. For purposes of computing runoff, all pervious lands in the site shall be assumed prior to development to be in good condition (if the lands are pastures, lawns, or parks), with good cover (if the lands are woods), or with conservation treatment (if the lands are cultivated); regardless of conditions existing at the time of computation.

D. Construction of stormwater management facilities or modifications to channels shall comply with all applicable laws, regulations, and ordinances. Evidence of approval of all necessary permits shall be presented.

E. Impounding structures that are not covered by the Impounding Structure Regulations (4VAC50-20) shall be engineered for structural integrity during the 100-year storm event.

F. Predevelopment and post-development runoff rates shall be verified by calculations that are consistent with good engineering practices.

G. Outflows from a stormwater management facility or stormwater conveyance system shall be discharged to an adequate channel.

H. Proposed residential, commercial, or industrial subdivisions shall apply these stormwater management criteria to the land disturbance as a whole. Individual lots in new subdivisions shall not be considered separate land-disturbing activities, but rather the entire subdivision shall be considered a single land development project. Hydrologic parameters shall reflect the ultimate land disturbance and shall be used in all engineering calculations.

I. All stormwater management facilities shall have an inspection and maintenance plan that identifies the owner and the responsible party for carrying out the inspection and maintenance plan.

J. Construction of stormwater management impoundment structures within a Federal Emergency Management Agency (FEMA) designated 100-year floodplain shall be avoided whenever possible. When this is unavoidable, all stormwater management facility construction shall be in compliance with all applicable regulations under the National Flood Insurance Program (44 CFR Part 59).

K. Natural channel characteristics shall be preserved to the maximum extent practicable.

L. Land-disturbing activities shall comply with the ESCL or VESMA, as applicable, and attendant regulations.

M. Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in Resource Protection Areas defined in the Chesapeake Bay Preservation Act provided such facilities are allowed and constructed in accordance with the VESMA and this chapter, and provided that (i) the local government has conclusively established that the location of the facility within the Resource Protection Area is the optimum location; (ii) the size of the facility is the minimum necessary to provide necessary flood control, stormwater treatment, or both; (iii) the facility must be consistent with a comprehensive stormwater management plan developed and approved in accordance with 9VAC25-875-660 or with a stormwater management plan that has been approved prior to July 1, 2012, by the department, the Chesapeake Bay Local Assistance Board prior to its abolishment on July 1, 2012, or the Board of Conservation and Recreation; (iv) all applicable permits for construction in state or federal waters must be obtained from the appropriate state and federal agencies; (v) approval must be received from the local government prior to construction; and (vi) routine maintenance is allowed to be performed on such facilities to ensure that they continue to function as designed. It is not the intent of this subsection to allow a best management practice that collects and treats runoff from only an individual lot or some portion of the lot to be located within a Resource Protection Area.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-700 Water quality

A. Compliance with the water quality criteria may be achieved by applying the performance-based criteria or the technology-based criteria to either the site or a planning area.

B. Performance-based criteria. For land-disturbing activities, the calculated post-development nonpoint source pollutant runoff load shall be compared to the calculated predevelopment load based upon the average land cover condition or the existing site condition. A BMP shall be located, designed, and maintained to achieve the target pollutant removal efficiencies specified in Table 1 of this section to effectively reduce the pollutant load to the required level based upon the following four applicable land development situations for which the performance criteria apply:

1. Situation 1 consists of land-disturbing activities where the existing percent impervious cover is less than or equal to the average land cover condition and the proposed improvements will create a total percent impervious cover that is less than the average land cover condition.

Requirement: No reduction in the after disturbance pollutant discharge is required.

2. Situation 2 consists of land-disturbing activities where the existing percent impervious cover is less than or equal to the average land cover condition and the proposed improvements will create a total percent impervious cover that is greater than the average land cover condition.

Requirement: The pollutant discharge after disturbance shall not exceed the existing pollutant discharge based on the average land cover condition.

3. Situation 3 consists of land-disturbing activities where the existing percent impervious cover is greater than the average land cover condition.

Requirement: The pollutant discharge after disturbance shall not exceed (i) the pollutant discharge based on existing conditions less 10% or (ii) the pollutant discharge based on the average land cover condition, whichever is greater.

4. Situation 4 consists of land-disturbing activities where the existing percent impervious cover is served by an existing stormwater management BMP that addresses water quality.

Requirement: The pollutant discharge after disturbance shall not exceed the existing pollutant discharge based on the existing percent impervious cover while served by the existing BMP. The existing BMP shall be shown to have been designed and constructed in accordance with proper design standards and specifications and to be in proper functioning condition.

C. Technology-based criteria. For land-disturbing activities, the post-developed stormwater runoff from the impervious cover shall be treated by an appropriate BMP as required by the post-developed condition percent impervious cover as specified in Table 1 of this section. The selected BMP shall be located, designed, and maintained to perform at the target pollutant removal efficiency specified in Table 1 or those found in 9VAC25-875-590.

D. Design standards and specifications for the BMPs in Table 1 of this section that meet the required target pollutant removal efficiency are available in the Virginia Stormwater Management Handbook. Other approved BMPs available through the Virginia Stormwater BMP Clearinghouse may also be utilized.

| Table 1 | | | | --- | --- | --- | | Water Quality BMP* | Target Phosphorus Removal Efficiency | Percent Impervious Cover | | Vegetated filter strip Grassed swale | 10% 15% | 16-21% | | Constructed wetlands Extended detention (2 x WQ Vol) Retention basin I (3 x WQ Vol) | 20% 35% 40% | 22-37% | | Bioretention basin Bioretention filter Extended detention basin-enhanced Retention basin II (4 x WQ Vol) Infiltration (1 x WQ Vol) | 50% 50% 50% 50% 50% | 38-66% | | Sand filter Infiltration (2 x WQ Vol) Retention basin III (4 x WQ Vol with aquatic bench) | 65% 65% 65% | 67-100% | | *Innovative or alternate BMPs not included in this table may be allowed at the discretion of the local program administrator or the department. Innovative or alternate BMPs not included in this table that target appropriate nonpoint source pollution other than phosphorous may be allowed at the discretion of the local program administrator or the department | | |

E. The VESMP authority or department as the VSMP authority may allow the use of offsite nutrient credits under Article 4 (9VAC25-875-670 et seq.) of this part in accordance with 9VAC25-875-610.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-710 Stream channel erosion

A. Properties and receiving waterways downstream of any land-disturbing activity shall be protected from erosion and damage due to changes in runoff rate of flow and hydrologic characteristics, including changes in volume, velocity, frequency, duration, and peak flow rate of stormwater runoff in accordance with the minimum design standards set out in this section.

B. The VESMP authority or department as the VSMP authority shall require compliance with subdivision 19 of 9VAC25-875-560.

C. The locality's VESMP authority may determine that some watersheds or receiving stream systems require enhanced criteria in order to address the increased frequency of bankfull flow conditions (top of bank) brought on by land-disturbing activities or where more stringent requirements are necessary to address total maximum daily load requirements or to protect exceptional waters. Therefore, in lieu of the reduction of the two-year post-developed peak rate of runoff as required in subsection B of this section, the land development project being considered shall provide 24-hour extended detention of the runoff generated by the one-year, 24-hour duration storm.

D. In addition to subsections B and C of this section, a locality's VESMP authority by local ordinance may in accordance with § 62.1-44.15:33 of the Code of Virginia, or the board by state regulation may adopt more stringent channel analysis criteria or design standards to ensure that the natural level of channel erosion, to the maximum extent practicable, will not increase due to the land-disturbing activities. These criteria may include the following:

1. Criteria and procedures for channel analysis and classification.

2. Procedures for channel data collection.

3. Criteria and procedures for the determination of the magnitude and frequency of natural sediment transport loads.

4. Criteria for the selection of proposed natural or manmade channel linings.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-720 Flooding

A. Downstream properties and waterways shall be protected from damages from localized flooding due to changes in runoff rate of flow and hydrologic characteristics, including changes in volume, velocity, frequency, duration, and peak flow rate of stormwater runoff in accordance with the minimum design standards set out in this section.

B. The 10-year post-developed peak rate of runoff from the development site shall not exceed the 10-year predeveloped peak rate of runoff.

C. In lieu of subsection B of this section, localities may, by ordinance in accordance with § 62.1-44.15:33 of the Code of Virginia, adopt alternate design criteria based upon geographic, land use, topographic, geologic factors, or other downstream conveyance factors as appropriate.

D. Linear development projects shall not be required to control post-developed stormwater runoff for flooding, except in accordance with a watershed or regional stormwater management plan.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-730 Regional (watershed-wide) stormwater management plans

Water quality requirements and where allowed, water quantity requirements, may be achieved in accordance with sections 9VAC25-875-610 and 9VAC25-875-660.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 5 Criteria for Land-Disturbing Activities in Chesapeake Bay Preservation Areas

9VAC25-875-740 Land-disturbing activities in Chesapeake Bay Preservation Areas

A. In order to protect the quality of state waters and to control the discharge of stormwater pollutants from land-disturbing activities, runoff associated with land-disturbing activities in Chesapeake Bay Preservation Areas that are equal to or greater than 2,500 square feet but less than one acre shall be regulated by localities subject to the Chesapeake Bay Preservation Act or, in the case of state and federal agency projects, the department. In regulating such land-disturbing activities in accordance with subsection B of this section, localities shall have the same authority and responsibilities as set forth for VESCP and VESMP authorities.

B. After June 30, 2014, such land-disturbing activities shall not require completion of a registration statement or require coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities but shall be subject to the following technical criteria and program and administrative requirements unless excluded under 9VAC25-875-90 and 9VAC25-875-280:

1. An erosion and sediment control plan consistent with the requirements of 9VAC25-875-550 must be designed and implemented during land-disturbing activities. Prior to land disturbance, this plan must be approved by either the VESCP or VESMP authority in accordance with this chapter;

2. A stormwater management plan consistent with the requirements of 9VAC25-875-510 must be designed and implemented during the land-disturbing activity. The stormwater management plan shall be developed and submitted in accordance with 9VAC25-875-510. Prior to land disturbance, this plan must be approved by the VESCP or VESMP authority;

3. Exceptions may be requested in accordance with 9VAC25-875-170;

4. Long-term maintenance of stormwater management facilities shall be provided for and conducted in accordance with 9VAC25-875-535;

5. Water quality design criteria in 9VAC25-875-580 shall be applied to the site;

6. Water quality compliance shall be achieved in accordance with 9VAC25-875-590;

7. Channel protection and flood protection shall be achieved in accordance with 9VAC25-875-600 or as permitted by subsection B of 9VAC25-875-750;

8. Offsite compliance options in accordance with 9VAC25-875-610 shall be available to land-disturbing activities in Chesapeake Bay Preservation Areas that are equal to or greater than 2,500 square feet but less than one acre; and

9. Such land-disturbing activities shall be subject to the design storm and hydrologic methods set out in 9VAC25-875-620, linear development controls in 9VAC25-875-640, and criteria associated with stormwater impoundment structures or facilities in 9VAC25-875-650.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-750 Land-disturbing activities in Chesapeake Bay Preservation Areas in rural Tidewater localities

A. Acceptance of signed and sealed plans in lieu of local plan review. In lieu of a local plan review or retaining a local certified plan reviewer, a rural Tidewater locality may accept plans and supporting calculations for erosion and sediment control and stormwater management for any land-disturbing activity equal to or greater than 2,500 square feet but less than one acre if the following criteria are met:

1. The plans are prepared and submitted by a professional licensed to engage in practice in the Commonwealth under Chapter 4 (§ 54.1-400 et seq.) or 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia and who shall hold a certificate of competence in the appropriate subject area, as provided in § 62.1-44.15:30 of the Code of Virginia; and

2. The plan and supporting calculations are appropriately signed and sealed by the professional with a certification that states: "This plan is designed in accordance with applicable state law and regulations."

B. For determining the water quantity technical criteria applicable to a land disturbance equal to or greater than 2,500 square feet, but less than one acre, any rural Tidewater locality may elect to use certain tiered water quantity control standards based on the percentage of impervious cover in the watershed as provided in § 62.1-44.15:27.2 of the Code of Virginia.

C. Tiered approach to water quantity technical criteria compliance.

1. A rural Tidewater locality may adopt the following tiered approach to water quantity management based on the percent impervious cover of the watershed in accordance with this subsection for land-disturbing activities that disturb an area of 2,500 square feet or more but less than one acre:

a. For less than 5.0% impervious cover, apply the Virginia Erosion and Sediment Control Minimum Standard 19 in effect prior to July 1, 2014, for the protection of downstream properties and waterways from sediment deposition, erosion, and damage due to increases in volume, velocity, and peak flow rate of stormwater runoff for the stated frequency storm of 24-hour duration.

b. For 5.0% or more impervious cover but less than 7.5%, detain and release over a 24-hour period the expected rainfall resulting from the one year, 24-hour storm, which practices shall be exempt from any flow rate capacity and velocity requirements for natural or manmade channels.

c. For 7.5% impervious cover or more, apply the water quantity technical criteria in accordance with 9VAC25-875-600.

2. The establishment and conduct of the tiered approach by the locality pursuant to this section shall be subject to review by the department.

3. Prior to the adoption and implementation of the tiered approach to water quantity management, the local governing body shall:

a. Develop a watershed map that includes the following:

(1) The boundaries of the locality and each watershed located partially or wholly within the locality based on the most recent version of Virginia's 6th order National Watershed Boundary Dataset;

(2) The percentage of impervious cover within each watershed. Data provided by the Virginia Geographic Information Network (VGIN) shall be sufficient for the initial determination of impervious cover percentage at the time of the initial adoption of the map; and

(3) The locations at which the governing body expects or proposes that development should occur and may indicate the projected future percentage of impervious cover based on proposed development. The governing body may designate certain areas within a watershed in which it proposes that denser-than-average development shall occur and may designate environmentally sensitive areas in which the water quantity technical criteria in 9VAC25-875-600 shall apply.

b. After the watershed map has been developed, the governing body may then approve and adopt the map by a majority vote of its membership and publish it as the official watershed map of the locality. No official watershed map shall be adopted by the governing body or have any effect until it is approved by an ordinance duly passed by the governing body of the locality after a public hearing, preceded by public notice as required by § 15.2-2204 of the Code of Virginia. Within 30 days after adoption of the official watershed map, the governing body shall file the watershed map in the office of the clerk of the circuit court.

4. At least once per year, the governing body shall by majority vote make additions to or modifications of the official watershed map to reflect actual development projects. The governing body shall change the indication on the map of the impervious cover percentage within a watershed where the percentage has changed and shall update the map and supporting datasets with actual development project information, including single-family housing projects and any projects covered by the General VPDES Permit for Discharges of Stormwater from Construction Activities (9VAC25-880) and administered by the department for opt-out localities pursuant to § 62.1-44.15:27 of the Code of Virginia. The governing body may incorporate into the official watershed map the most recent VGIN data, including data on state and federal projects that are not reviewed or approved by the locality. The governing body shall keep current its impervious cover percentage for each watershed located within the locality as reflected in the official watershed map and shall make the map and such percentages available to the public.

5. The locality shall notify the department and update the official watershed map within 12 months of the approval of the development plan for any project that exceeds the percent impervious cover percentage of the watershed in which it is located and causes the impervious cover percentage for the watershed to increase such that the watershed percent impervious cover is categorized by the next higher tier pursuant to subdivision 1 of this subsection.

6. No official watershed map or its adopting or amending ordinance shall take precedence over any duly adopted zoning ordinance, comprehensive plan, or other local land-use ordinance, and in the case of a conflict, the official watershed map or ordinance shall yield to such land-use ordinance.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 6 Additional Criteria and Requirements for Land-Disturbing Activities by State Agencies and Federal Entities

9VAC25-875-760 Soil erosion control and stormwater management for land-disturbing activities

The department shall act as a VESMP where state agencies and federal entities have not submitted standards and specifications to the department for approval. When a state agency or federal entity submits a soil erosion control and stormwater management plan (ESM plan) for a project, land disturbance shall not commence until the department has reviewed and approved the plan and has issued permit coverage when it is required in accordance with § 62.1-44.15:34 of the Code of Virginia.

1. The department shall not approve an ESM plan submitted by a state agency or federal entity for a project involving a land-disturbing activity (i) in any locality that has not adopted a local program with more stringent ordinances than those of the state program or (ii) in multiple jurisdictions with separate local programs, unless the plan is consistent with the requirements of the state program.

2. The department shall not approve an ESM plan submitted by a state agency or federal entity for a project involving a land-disturbing activity in one locality with a local program with more stringent ordinances than those of the state program, unless the plan is consistent with the requirements of the local program.

3. If onsite changes occur, the state agency or federal entity shall submit an amended ESM plan to the department.

4. The state agency or federal entity responsible for the land-disturbing activity shall ensure compliance with the approved ESM plan. As necessary, the department shall provide project oversight and enforcement.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-770 State agency land-disturbing activities

A. All state agency land-disturbing activities that are not exempt and that have commenced without an approved erosion and sediment control plan shall immediately cease until the state agency has either submitted standards and specifications for its conduct of land-disturbing activities which has been reviewed and approved by the department as being consistent with the VESMA and attendant regulations or an erosion and sediment control plan has been submitted to and approved by the department. A formal Notice of Plan Requirement will be sent to the state agency under whose purview the project lies since that agency is responsible for compliance with the State Water Control Law and this chapter.

B. Where inspections by department personnel reveal deficiencies in carrying out an approved plan, the person responsible for carrying out the plan, as well as the state agency responsible, will be issued a notice to comply with specific actions and the deadlines that shall be met. Failure to meet the prescribed deadlines can result in the issuance of a stop work order for all land-disturbing activities on the project at the discretion of the department. The stop work order will be lifted once the required erosion and sediment control measures are in place and inspected by department staff.

C. Whenever the Commonwealth or any of its agencies fails to comply within the time provided in an appropriate final order, the director of the department may petition for compliance as follows: For violations in the Natural and Historic Resources Secretariat, to the Secretary of Natural and Historic Resources; for violations in other secretariats, to the appropriate Secretary; for violations in other state agencies, to the head of such agency. Where the petition does not achieve timely compliance, the director shall bring the matter to the Governor for resolution. The department may also pursue enforcement as provided by § 62.1-44.15:48 of the Code of Virginia and Article 5 (§ 62.1- 44.20 et seq.) of the State Water Control Law.

D. Where compliance will require the appropriation of funds, the director shall cooperate with the appropriate agency head in seeking such an appropriation; where the director determines that an emergency exists, the director shall petition the Governor for funds from the Civil Contingency Fund or other appropriate source.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-780 Stormwater management permit applications

A. Approval of a permit application (registration statement) for a land-disturbing activity by a state agency or federal entity shall be subject to the following conditions:

1. The state agency or federal entity shall comply with all applicable requirements of the permit (9VAC25-880) and shall certify that all land clearing, construction, land development, and drainage will be done according to the permit.

2. The land development shall be conducted only within the area specified in the approved plan and covered by the permit.

3. No changes may be made to a plan for which a permit has been issued without review and written approval by the department.

4. The department shall be notified at least one week prior to the preconstruction meeting and at least one week prior to the commencement of land-disturbing activity.

5. The department shall conduct random inspections of the project to ensure compliance with the permit.

6. The department shall require inspections and reports from the state agency or federal entity responsible for compliance with the permit and to determine if the measures required in the permit provide effective stormwater management.

B. Compliance with the permit shall be subject to the following conditions:

1. Where inspection by the responsible state agency or federal entity reveals deficiencies in carrying out a permitted activity, the responsible state agency or federal entity shall ensure compliance with the issued permit, permit conditions, and plan specifications.

2. Where inspections by department personnel reveal deficiencies in carrying out the permit, the responsible state agency or federal entity shall be issued a notice to comply, with corrective actions specified and the deadline within which the work shall be performed.

3. Whenever the Commonwealth or any of its state agencies fail to comply within the time provided in a notice to comply, the director may petition the secretary of a given secretariat or an agency head for a given state agency for compliance. Where the petition does not achieve timely compliance, the director shall bring the matter to the Governor for resolution.

4. Where compliance for a state agency will require the appropriation of funds, the director shall cooperate with the appropriate agency head in seeking such an appropriation; where the director determines that an emergency exists, the director shall petition the Governor for funds from the Civil Contingency Fund or other appropriate source.

5. The department may also seek compliance through other means specified in the State Water Control Law.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-790 Maintenance and inspections

A. Responsibility for the operation and maintenance of stormwater management facilities shall remain with the state agency or federal entity and shall pass to any successor or owner. If portions of the land are to be sold, legally binding arrangements shall be made to pass the basic responsibility to successors in title. These arrangements shall designate for each project the property owner, governmental agency, or other legally established entity to be permanently responsible for maintenance.

B. At a minimum, a stormwater management facility shall be inspected by the responsible state agency or federal entity on an annual basis and after any storm which causes the capacity of the facility principal spillway to be exceeded.

C. During construction of the stormwater management facilities, the department shall make inspections on a random basis.

D. The department shall require inspections and reports from the state agency or federal entity responsible for ensuring compliance with the permit and to determine if the measures required in the permit provide effective stormwater management.

E. Inspection reports shall be maintained as part of the land disturbance project file.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-800 Reporting on stormwater management

State agencies shall report annually, on a schedule to be specified, to the department on the extent to which stormwater management programs have reduced nonpoint source pollution to the Commonwealth's waters and mitigated the effects of localized flooding. The report shall provide the following: data on the number and types of stormwater management facilities installed in the preceding year; the drainage area or watershed size served; the receiving stream or hydrologic unit; a summary of monitoring data, if any; and other data useful in determining the effectiveness of the programs and BMP technologies in current use.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-810 Technical criteria and requirements for state or federal projects

A. Erosion and sediment control and stormwater management plans prepared for state projects shall comply with the technical criteria outlined in this part and any locality's VESCP or VESMP authority's technical requirements adopted pursuant to §§ 62.1-44.15:28 and 62.1-44.15:52 of the Code of Virginia.

B. The department may establish criteria for selecting either the site or a planning area on which to apply the water quality criteria.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part VI Standards and Specifications Program

9VAC25-875-820 Applicability

This part is applicable to any state agency, federal entity, or public or private entity that is authorized to submit standards and specifications to the department in accordance with § 62.1-44.15:31 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-830 Standards and specifications for state agencies, federal entities, and other specified entities

A. The program requirements in Part V (9VAC25-875-470 et seq.) shall be implemented by a state agency or federal entity, and other specified entities with department-approved standards and specifications.

B. As an alternative to submitting soil erosion control and stormwater management plans for its land-disturbing activities, the Virginia Department of Transportation shall and any other state agency or federal entity may submit standards and specifications for its conduct of land-disturbing activities for department approval. Approved standards and specifications shall be consistent with the VESMA. The department shall have 60 days after receipt in which to act on any standards and specifications submitted or resubmitted to the department for approval.

C. As an alternative to submitting soil erosion control and stormwater management plans, electric, natural gas, and telephone utility companies; interstate and intrastate natural gas pipeline companies; railroad companies; and authorities created pursuant to § 15.2-5102 of the Code of Virginia may submit standards and specifications for department approval that describe how land-disturbing activities shall be conducted. Such standards and specifications may be submitted for the following types of projects:

1. Construction, installation, or maintenance of electric transmission and distribution lines, oil or gas transmission and distribution pipelines, communication utility lines, and water and sewer lines; and

2. Construction of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company.

The department shall have 60 days after receipt in which to act on any standards and specifications submitted or resubmitted to it for approval. A linear project not included in subdivision 1 or 2 of this subsection, or for which the owner chooses not to submit standards and specifications, shall comply with the requirements of the VESMP or the VESCP and VSMP, as appropriate, in any locality within which the project is located.

D. As an alternative to submitting soil erosion control and stormwater management plans, any person engaging in more than one jurisdiction in the creation and operation of a wetland mitigation or stream restoration bank that has been approved and is operated in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of a wetlands mitigation or stream restoration bank, pursuant to a mitigation banking instrument signed by the department, the Virginia Marine Resources Commission, or the U.S. Army Corps of Engineers, may submit standards and specifications for department approval that describe how land-disturbing activities shall be conducted. The department shall have 60 days after receipt in which to act on standards and specifications submitted to it or resubmitted to it for approval.

E. All standards and specifications submitted to the department shall be periodically updated according to a schedule to be established by the department and shall be consistent with the requirements of the VESMA. Approval of standards and specifications by the department does not relieve the owner or operator of the duty to comply with any other applicable local ordinances or regulations. Standards and specifications shall include:

1. Technical criteria to meet the requirements of the VESMA and regulations developed under it;

2. Provisions for the long-term responsibility and maintenance of any stormwater management control devices and other techniques specified to manage the quantity and quality of runoff;

3. Provisions for administration of the standards and specifications program, project-specific plan design, plan review and plan approval, and construction inspection and compliance;

4. Provisions for ensuring that personnel and contractors assisting the owner in carrying out the land-disturbing activity obtain training or qualifications for soil erosion control and stormwater management as set forth in Part IV (9VAC25-875-380 et seq.) of this chapter;

5. Provisions for ensuring that personnel implementing approved standards and specifications pursuant to this section obtain certifications or qualifications comparable to those required for VESMP personnel pursuant to subsection C of § 62.1-44.15:30 of the Code of Virginia;

6. Implementation of a project tracking system that ensures notification to the department of all land-disturbing activities covered under the VESMA; and

7. Requirements for documenting onsite changes as they occur to ensure compliance with the requirements of the VESMA.

F. The department shall perform random site inspections or inspections in response to a complaint to ensure compliance with the VESMA and this chapter.

G. The department shall assess an administrative charge to cover the costs of services rendered associated with its responsibilities pursuant to this section, including standards and specifications review and approval, project inspections, and compliance. The department may take enforcement actions in accordance with the VESMA and related regulations.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-840 Reserved

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Volume 40, Issue 8, eff. July 1, 2024.

Article 1 Definitions

9VAC25-875-850 Definitions

For the purposes of this part only, the following words and terms have the following meanings unless the context clearly indicates otherwise:

"Administrator" means the Administrator of the U.S. Environmental Protection Agency or an authorized representative.

"Applicable standards and limitations" means all state, interstate, and federal standards and limitations to which a discharge or a related activity is subject under the Clean Water Act (CWA) (33 USC § 1251 et seq.) and VESMA, including effluent limitations, water quality standards, standards of performance, toxic effluent standards or prohibitions, best management practices, and standards for sewage sludge use or disposal under §§ 301, 302, 303, 304, 306, 307, 308, 403, and 405 of the CWA.

"Approved program" or "approved state" means a state or interstate program that has been approved or authorized by EPA under 40 CFR Part 123.

"Bypass" means the intentional diversion of waste streams from any portion of a treatment facility.

"Contiguous zone" means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone (37 FR 11906 June 15, 1972).

"Continuous discharge" means a discharge that occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

"Co-permittee" means a permittee to a VPDES permit that is only responsible for permit conditions relating to the discharge for which it is the operator.

"Daily discharge" means the discharge of a pollutant measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.

"Discharge" when used without qualification, means the discharge of a pollutant.

"Discharge of a pollutant" means:

1. Any addition of any pollutant or combination of pollutants to state waters from any point source; or

2. Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft that is being used as a means of transportation.

This definition includes additions of pollutants into surface waters from surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger.

"Discharge Monitoring Report" or "DMR" means the form supplied by the department, or an equivalent form developed by the operator and approved by the department, for the reporting of self-monitoring results by operators.

"Draft permit" means a document indicating the department's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue an individual or general permit. A notice of intent to deny an individual or general permit is a type of draft permit. A denial of a request for modification, revocation and reissuance, or termination is not a draft permit.

"Effluent limitation" means any restriction imposed by the board on quantities, discharge rates, and concentrations of pollutants that are discharged from point sources into surface waters, the waters of the contiguous zone, or the ocean.

"Effluent limitations guidelines" means a regulation published by the administrator under § 304(b) of the CWA to adopt or revise effluent limitations.

"Existing permit" means a permit issued by the department and currently held by a permit applicant.

"Existing source" means any source that is not a new source or a new discharger.

"Facilities or equipment" means buildings, structures, process or production equipment, or machinery that form a permanent part of a new source and that will be used in its operation if these facilities or equipment are of such value as to represent a substantial commitment to construct. The term excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the new source or water pollution treatment for the new source.

"Facility or activity" means any VPDES point source or treatment works treating domestic sewage or any other facility or activity, including land or appurtenances thereto, that is subject to regulation under the VPDES program.

"Hazardous substance" means any substance designated under the Code of Virginia or 40 CFR Part 116 pursuant to § 311 of the CWA.

"Illicit discharge" means any discharge to a municipal separate storm sewer that is not composed entirely of stormwater, except discharges pursuant to a separate VPDES or permit (other than the permit for discharges from the municipal separate storm sewer), discharges resulting from firefighting activities, and discharges identified by and in compliance with 9VAC25-875-970 D 2 c (3).

"Indian country" means (i) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (ii) all dependent Indian communities within the borders of the United States whether within the originally or subsequently acquired territory thereof, and whether within or without the limits of a state; and (iii) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

"Indirect discharger" means a nondomestic discharger introducing "pollutants" to a "publicly owned treatment works" or "(POTW)."

"Large municipal separate storm sewer system" means all municipal separate storm sewers that are either:

1. Located in an incorporated place with a population of 250,000 or more as determined by the 1990 decennial census by the Bureau of Census (40 CFR Part 122 Appendix F);

2. Located in the counties listed in 40 CFR Part 122 Appendix H, except municipal separate storm sewers that are located in the incorporated places, townships, or towns within such counties;

3. Owned or operated by a municipality other than those described in subdivision 1 or 2 of this definition and that are designated by the department as part of the large or medium municipal separate storm sewer system due to the interrelationship between the discharges of the designated storm sewer and the discharges from municipal separate storm sewers described under subdivision 1 or 2 of this definition. In making this determination the department may consider the following factors:

a. Physical interconnections between the municipal separate storm sewers;

b. The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in subdivision 1 of this definition;

c. The quantity and nature of pollutants discharged to surface waters;

d. The nature of the receiving surface waters; and

e. Other relevant factors; or

4. The department may, upon petition, designate as a large municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a stormwater management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in this definition.

"Major facility" means any facility or activity classified as such by the regional administrator in conjunction with the board.

"Major municipal separate storm sewer outfall" or "major outfall" means a municipal separate storm sewer outfall that discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent (discharge from a single conveyance other than circular pipe which is associated with a drainage area of more than 50 acres); or for municipal separate storm sewers that receive stormwater from lands zoned for industrial activity (based on comprehensive zoning plans or the equivalent), with an outfall that discharges from a single pipe with an inside diameter of 12 inches or more or from its equivalent (discharge from other than a circular pipe associated with a drainage area of two acres or more).

"Maximum daily discharge limitation" means the highest allowable daily discharge.

"Maximum extent practicable" or "MEP" means, in the context of a municipal separate stormwater sewer system, the technology-based discharge standard for municipal separate storm sewer systems established by CWA § 402(p). MEP is achieved, in part, by selecting and implementing effective structural and nonstructural best management practices (BMPs) and rejecting ineffective BMPs and replacing them with effective best management practices (BMPs). MEP is an iterative standard, which evolves over time as urban runoff management knowledge increases. As such, the operator's MS4 program must continually be assessed and modified to incorporate improved programs, control measures, and BMPs to attain compliance with water quality standards.

"Medium municipal separate storm sewer system" means all municipal separate storm sewers that are either:

1. Located in an incorporated place with a population of 100,000 or more but less than 250,000 as determined by the 1990 decennial census by the Bureau of Census (40 CFR Part 122 Appendix G);

2. Located in the counties listed in 40 CFR Part 122 Appendix I, except municipal separate storm sewers that are located in the incorporated places, townships, or towns within such counties;

3. Owned or operated by a municipality other than those described in subdivision 1 or 2 of this definition and that are designated by the department as part of the large or medium municipal separate storm sewer system due to the interrelationship between the discharges of the designated storm sewer and the discharges from municipal separate storm sewers described under subdivision 1 or 2 of this definition. In making this determination the department may consider the following factors:

a. Physical interconnections between the municipal separate storm sewers;

b. The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in subdivision 1 of this definition;

c. The quantity and nature of pollutants discharged to surface waters;

d. The nature of the receiving surface waters; or

e. Other relevant factors; or

4. The department may, upon petition, designate as a medium municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a stormwater management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in subdivisions 1, 2, and 3 of this definition.

"Municipality" means a city, town, county, district, association, or other public body created by or under state law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes or an Indian tribe or an authorized Indian tribal organization or a designated and approved management agency under § 208 of the CWA.

"New discharger" means any building, structure, facility, or installation:

1. From which there is or may be a discharge of pollutants;

2. That did not commence the discharge of pollutants at a particular site prior to August 13, 1979;

3. That is not a new source; and

4. That has never received a finally effective separate VPDES or permit for discharges at that site.

This definition includes an indirect discharger that commences discharging into surface waters after August 13, 1979. It also includes any existing mobile point source (other than an offshore or coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a seafood processing rig, seafood processing vessel, or aggregate plant that begins discharging at a site for which it does not have a separate VPDES or permit, and any offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas developmental drilling rig that commences the discharge of pollutants after August 13, 1979.

"New source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

1. After promulgation of standards of performance under § 306 of the CWA that are applicable to such source; or

2. After proposal of standards of performance in accordance with § 306 of the CWA that are applicable to such source, but only if the standards are promulgated in accordance with § 306 of the CWA within 120 days of their proposal.

"Oil and gas exploration, production, processing, or treatment operations or transmission facilities" means all field activities or operations associated with exploration, production, or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activity. (33 USC § 1362(24))

"Outfall," when used in reference to municipal separate storm sewers, means a point source at the point where a municipal separate storm sewer discharges to surface waters and does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels, or other conveyances that connect segments of the same stream or other surface waters and are used to convey surface waters.

"Overburden" means any material of any nature, consolidated or unconsolidated, that overlies a mineral deposit, excluding topsoil or similar naturally occurring surface materials that are not disturbed by mining operations.

"Permit" means a VPDES permit issued by the department pursuant to § 62.1-44.15 of the Code of Virginia for stormwater discharges from a land-disturbing activity or MS4.

"Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. It does not mean:

1. Sewage from vessels; or

2. Water, gas, or other material that is injected into a well to facilitate production of oil or gas or water derived in association with oil and gas production and disposed of in a well if the well is used either to facilitate production or for disposal purposes is approved by the department and if the department determines that the injection or disposal will not result in the degradation of groundwater or surface water resources.

"Privately owned treatment works" or "PVOTW" means any device or system that is (i) used to treat wastes from any facility whose operator is not the operator of the treatment works and (ii) not a POTW.

"Publicly owned treatment works" or "POTW" means a treatment works as defined by § 212 of the CWA that is owned by a state or municipality (as defined by § 502(4) of the CWA). This definition includes any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature. It also includes sewers, pipes, and other conveyances only if they convey wastewater to a POTW treatment plant. The term also means the municipality as defined in § 502(4) of the CWA, that has jurisdiction over the indirect discharges to and the discharges from such a treatment works.

"Recommencing discharger" means a source that recommences discharge after terminating operations.

"Regional administrator" means the Regional Administrator of Region III of the Environmental Protection Agency or the authorized representative of the regional administrator.

"Revoked" means an existing VPDES permit that is terminated by the department before its expiration.

"Runoff coefficient" means the fraction of total rainfall that will appear at a conveyance as runoff.

"Schedule of compliance" means a schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the VESMA, the CWA, and regulations.

"Secretary" means the Secretary of the Army, acting through the Chief of Engineers.

"Severe property damage" means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

"Significant materials" means but is not limited to raw materials; fuels; materials such as solvents, detergents, and plastic pellets; finished materials such as metallic products; raw materials used in food processing or production; hazardous substances designated under § 101(14) of CERCLA (42 USC § 9601(14)); any chemical the facility is required to report pursuant to § 313 of Title III of SARA (42 USC § 11023); fertilizers; pesticides; and waste products such as ashes, slag, and sludge that have the potential to be released with stormwater discharges.

"Small municipal separate storm sewer system" or "small MS4" means all separate storm sewers that are (i) owned or operated by the United States, a state, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to state law) having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including special districts under state law such as a sewer district, flood control district or drainage district, or similar entity or an Indian tribe or an authorized Indian tribal organization or a designated and approved management agency under § 208 of the CWA that discharges to surface waters and (ii) not defined as "large" or "medium" municipal separate storm sewer systems or designated under 9VAC25-875-950 A 1. This term includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highways and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings.

"Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

"Stormwater discharge associated with construction activity" means a discharge of stormwater runoff from areas where land-disturbing activities (e.g., clearing, grading, or excavation); construction materials or equipment storage or maintenance (e.g., fill piles, borrow area, concrete truck washout, fueling); or other industrial stormwater directly related to the construction process (e.g., concrete or asphalt batch plants) are located.

"Stormwater discharge associated with large construction activity" means the discharge of stormwater from large construction activities.

"Stormwater discharge associated with small construction activity" means the discharge of stormwater from small construction activities.

"Total dissolved solids" means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136.

"Toxic pollutant" means any pollutant listed as toxic under § 307(a)(1) of the CWA or, in the case of sludge use or disposal practices, any pollutant identified in regulations implementing § 405(d) of the CWA.

"Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the operator. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

"Variance" means any mechanism or provision under § 301 or 316 of the CWA or under 40 CFR Part 125, or in the applicable federal effluent limitations guidelines that allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of the CWA. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on § 301(c), (g), (h), or (i), or 316(a) of the CWA.

"Virginia Pollutant Discharge Elimination System permit" or "VPDES permit" means a document issued by the department pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters.

"Water quality standards" or "WQS" means provisions of state or federal law that consist of designated uses for the waters of the Commonwealth and water quality criteria for such waters based on such uses. Water quality standards are to protect the public health or welfare, enhance the quality of water, and serve the purposes of the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), the VESMA (§ 62.1-44.15:24 et seq. of the Code of Virginia), and the CWA (33 USC § 1251 et seq.).

"Whole effluent toxicity" means the aggregate toxic effect of an effluent measured directly by a toxicity test.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 23, eff. August 14, 2025.

Article 2 General Program Requirements Related to MS4s and Land-Disturbing Activities

9VAC25-875-860 Exclusions

The following discharges do not require permits:

1. Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion neither applies to rubbish, trash, garbage, or other such materials discharged overboard nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when used as an energy or mining facility, a storage facility, or a seafood processing facility or when secured to a storage facility or a seafood processing facility or when secured to the bed of the ocean, contiguous zone, or surface waters for the purpose of mineral or oil exploration or development.

2. Discharges of dredged or fill material into surface waters that are regulated under § 404 of the CWA.

3. The introduction of sewage, industrial wastes, or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to surface waters are eliminated. This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other party not leading to treatment works.

4. Any discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 CFR Part 300 (The National Oil and Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous Substances).

5. Any introduction of pollutants from nonpoint source agricultural and silvicultural activities, including stormwater runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations, discharges from concentrated aquatic animal production facilities, discharges to aquaculture projects, and discharges from silvicultural point sources.

6. Return flows from irrigated agriculture.

7. Discharges into a privately owned treatment works, except as the department may otherwise require.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-870 Prohibitions

A. Except in compliance with a permit issued by the department pursuant to the Virginia Erosion and Stormwater Management Act, it shall be unlawful for any person to discharge stormwater into state waters from municipal separate storm sewer systems or land-disturbing activities.

B. Any person in violation of subsection A of this section that discharges or causes or allows a discharge of stormwater into or upon state waters from municipal separate storm sewer systems or land-disturbing activities or that discharges or causes or allows a discharge that may reasonably be expected to enter state waters in violation of subsection A of this section, shall notify the department of the discharge immediately upon discovery of the discharge but in no case later than 24 hours after said discovery. A written report of the unauthorized discharge shall be submitted by the owner to the department within five days of discovery of the discharge. The written report shall contain:

1. A description of the nature and location of the discharge;

2. The cause of the discharge;

3. The date on which the discharge occurred;

4. The length of time that the discharge continued;

5. The volume of the discharge;

6. If the discharge is continuing, how long it is expected to continue;

7. If the discharge is continuing, what the expected total volume of the discharge will be; and

8. Any steps planned or taken to reduce, eliminate, and prevent a recurrence of the present discharge or any future discharges not authorized by the permit.

C. No permit may be issued:

1. When the conditions of the permit do not provide for compliance with the applicable requirements of the CWA or the State Water Control Law or regulations promulgated under the CWA or the State Water Control Law;

2. When the permit applicant is required to obtain a state or other appropriate certification under § 401 of the CWA and that certification has not been obtained or waived;

3. When the regional administrator has objected to issuance of the permit;

4. When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states;

5. When, in the judgment of the Secretary of the Army, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge;

6. For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

7. For any discharge inconsistent with a plan or plan amendment approved under § 208(b) of the CWA;

8. For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the following circumstances:

a. Before the promulgation of guidelines under § 403(c) of the CWA (for determining degradation of the waters of the territorial seas, the contiguous zone, and the oceans) unless the department determines permit issuance to be in the public interest; or

b. After promulgation of guidelines under § 403(c) of the CWA, when insufficient information exists to make a reasonable judgment whether the discharge complies with them.

9. To a new source or a new discharger if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment that does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by the State Water Control Law and § 301(b)(1)(A) and (b)(1)(B) of the CWA, and for which the department has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:

a. There are sufficient remaining pollutant load allocations to allow for the discharge; and

b. The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The department may waive the submission of information by the new source or new discharger required by this subdivision 9 b if the department determines that it already has adequate information to evaluate the request. An explanation of the development of limitations to meet the criteria of this subdivision 9 b is to be included in the fact sheet to the permit under 9VAC25-875-1090.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-880 Effect of a permit

A. Except for any toxic effluent standards and prohibitions imposed under § 307 of the CWA and standards for sewage sludge use or disposal under § 405(d) of the CWA, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with the State Water Control Law and with §§ 301, 302, 306, 307, 318, 403, and 405(a) through (b) of the CWA. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in this chapter.

B. The issuance of a permit does not convey any property rights of any sort or any exclusive privilege.

C. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights or any infringement of state or local law or regulations.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-890 Continuation of expiring permits

A. The permit shall expire at the end of its term, except that the conditions of an expired permit continue in force until the effective date of a new permit if:

1. The permittee has submitted a timely application as required by this chapter, which is a complete application for a new permit; and

2. The department, through no fault of the permittee, does not issue a new permit with an effective date on or before the expiration date of the previous permit.

B. Permits continued under this section remain fully effective and enforceable.

C. When the permittee is not in compliance with the conditions of the expiring or expired permit, the department may choose to do any or all of the following:

1. Initiate enforcement action based upon the permit which has been continued;

2. Issue a notice of intent to deny the new permit. If the permit is denied, the owner or operator would then be required to cease the activities authorized by the continued permit or be subject to enforcement action for operating without a permit;

3. Issue a new permit with appropriate conditions; or

4. Take other actions authorized by this chapter.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-900 Confidentiality of information

A. The department or the VESMP authority may require every permit applicant or permittee to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to determine the effect of permit applicant's or permittee's discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the State Water Control Law and this chapter. Any personal information shall not be disclosed except to an appropriate official of the department or VESMP authority or as may be authorized pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia). However:

1. Disclosure of records of the department or the VESMP authority relating to (i) active federal environmental enforcement actions that are considered confidential under federal law and (ii) enforcement strategies, including proposed sanctions for enforcement actions, is prohibited. Upon request, such records shall be disclosed after a proposed sanction resulting from the investigation has been determined by the department or the VESMP authority.

2. Any secret formula, secret processes, or secret methods other than effluent data submitted to the department pursuant to this chapter may be claimed as confidential by the submitter in accordance with 40 CFR 122.7. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words "secret formulae," "secret processes," or "secret methods" on each page containing such information. If no claim is made at the time of submission, the department may make the information available to the public without further notice. If a claim is asserted, the information will be treated in accordance with the procedures in the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

3. This section shall not be construed to prohibit the disclosure of records related to inspection reports, notices of violation, and documents detailing the nature of any land-disturbing activity that may have occurred, or similar documents.

B. Claims of confidentiality for the following information will be denied:

1. The name and address of any permit applicant or permittee; and

2. Permit applications, permits, and effluent data.

C. Information required by permit application forms provided by the department may not be claimed confidential. This includes information submitted on the forms themselves and any attachments used to supply information required by the forms.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-910 Guidance documents

The department may develop and use guidance, as appropriate, to implement technical and regulatory details of the VPDES permit program. Such guidance is distinguished from regulation by the fact that it is not binding on either the department or permittees. If a more appropriate methodology than that called for in guidance is available in a given situation, the more appropriate methodology shall be used to the extent it is consistent with applicable regulations and the Virginia Erosion and Stormwater Management Act.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 3 Permit Applications

9VAC25-875-920 Application for a permit

A. Duty to apply. Any person who discharges or proposes to discharge stormwater into or upon state waters from municipal separate storm sewer systems or land-disturbing activities and who does not have an effective permit, except persons covered by general permits, excluded from the requirement for a permit by this chapter, shall submit a complete application in accordance with this section.

B. Who applies. When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

C. Time to apply. Any person proposing a new discharge shall submit an application at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the department. Stormwater discharges from large construction activities and stormwater discharges associated with small construction activities shall submit applications at least 90 days before the date on which construction is to commence. Different submittal dates may be required under the terms of applicable general permits. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 90-day or 180-day requirements to avoid delay.

D. Duty to reapply. All permittees with a currently effective permit shall submit a new application at least 180 days before the expiration date of the existing permit unless permission for a later date has been granted by the department. The department shall not grant permission for applications to be submitted later than the expiration date of the existing permit.

E. Completeness. The department shall not issue a permit before receiving a complete application for a permit except for general permits. An application for a permit is complete when the department receives an application form and any supplemental information which are completed to its satisfaction. The completeness of any application for a permit shall be judged independently of the status of any other permit application or permit for the same facility or activity.

F. Information requirements. All applicants for permits shall provide the following information using the application form provided by the department:

1. The activities conducted by the permit applicant which require it to obtain a permit;

2. Name, mailing address, and location of the facility for which the application is submitted;

3. Up to four SIC codes which best reflect the principal products or services provided by the facility;

4. The operator's name, address, telephone number, email address, ownership status, and status as federal, state, private, public, or other entity;

5. Whether the facility is located on Indian lands;

6. A listing of all permits or construction approvals received, applied for, or to be applied for under any of the following programs:

a. Hazardous Waste Management program under the Resource Conservation and Recovery Act (RCRA) (42 USC § 6921);

b. Underground Injection Control (UIC) program under the Safe Drinking Water Act (SDWA) (42 USC § 300h);

c. VPDES program under the CWA and the State Water Control Law;

d. Prevention of Significant Deterioration (PSD) program under the Clean Air Act (42 USC § 4701 et seq.);

e. Nonattainment program under the Clean Air Act (42 USC § 4701 et seq.);

f. National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act (42 USC § 4701 et seq.);

g. Ocean dumping permits under the Marine Protection Research and Sanctuaries Act (33 USC § 14 et seq.);

h. Dredge or fill permits under § 404 of the CWA;

i. A permit under the CWA and the Virginia Erosion and Stormwater Management Act; and

j. Other relevant environmental permits;

7. A topographic map (or other map if a topographic map is unavailable) extending one mile beyond the property boundaries of the source, that depicts: the facility and (i) each of the source's intake and discharge structures; (ii) each of the source's hazardous waste treatment, storage, or disposal facilities; (iii) each well where fluids from the facility are injected underground; and (iv) those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the permit applicant in the map area; and

8. A brief description of the nature of the business.

G. Variance requests. A discharger which is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified in this subsection:

1. Fundamentally different factors.

a. A request for a variance based on the presence of fundamentally different factors from those on which the effluent limitations guideline was based shall be filed as follows:

(1) For a request from best practicable control technology currently available (BPT), by the close of the public comment period for the draft permit; or

(2) For a request from best available technology economically achievable (BAT) or best conventional pollutant control technology (BCT), by no later than 180 days after the date on which an effluent limitation guideline is published in the Federal Register for a request based on an effluent limitation guideline promulgated on or after February 4, 1987.

b. The request shall explain how the requirements of the applicable regulatory or statutory criteria have been met.

2. A request for a variance from the BAT requirements for CWA § 301(b)(2)(F) pollutants (commonly called nonconventional pollutants) pursuant to § 301(c) of the CWA because of the economic capability of the owner or operator, or pursuant to § 301(g) of the CWA (provided, however, that a § 301(g) variance may only be requested for ammonia, chlorine, color, iron, total phenols (when determined by the administrator to be a pollutant covered by § 301(b)(2)(F) of the CWA), and any other pollutant that the administrator lists under § 301(g)(4) of the CWA) must be made as follows:

a. For those requests for a variance from an effluent limitation based upon an effluent limitation guideline by:

(1) Submitting an initial request to the regional administrator, as well as to the department, stating the name of the discharger, the permit number, the outfall number, the applicable effluent guideline, and whether the discharger is requesting a § 301(c) or § 301(g) of the CWA modification, or both. This request must have been filed not later than 270 days after promulgation of an applicable effluent limitation guideline; and

(2) Submitting a completed request no later than the close of the public comment period for the draft permit demonstrating that: (i) all reasonable ascertainable issues have been raised and all reasonably available arguments and materials supporting their position have been submitted; and (ii) that the applicable requirements of 40 CFR Part 125 have been met. Notwithstanding this provision, the complete application for a request under § 301(g) of the CWA shall be filed 180 days before EPA must make a decision (unless the Regional Administrator establishes a shorter or longer period); or

b. For those requests for a variance from effluent limitations not based on effluent limitation guidelines, the request need only comply with subdivision 2 a (2) of this subsection and need not be preceded by an initial request under subdivision 2 a (1) of this subsection.

3. A modification under § 302(b)(2) of the CWA of requirements under § 302(a) of the CWA for achieving water quality related effluent limitations may be requested no later than the close of the public comment period for the draft permit on the permit from which the modification is sought.

4. A variance for alternate effluent limitations for the thermal component of any discharge must be filed with a timely application for a permit under this section, except that if thermal effluent limitations are established on a case-by-case basis or are based on water quality standards the request for a variance may be filed by the close of the public comment period for the draft permit. A copy of the request shall be sent simultaneously to the department.

H. Expedited variance procedures and time extensions.

1. Notwithstanding the time requirements in subsection G of this section, the department may notify a permit applicant before a draft permit is issued that the draft permit will likely contain limitations that are eligible for variances. In the notice the department may require the permit applicant as a condition of consideration of any potential variance request to submit a request explaining how the requirements of 40 CFR Part 125 applicable to the variance have been met and may require its submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance.

2. A discharger who cannot file a timely complete request required under subdivisions G 2 a (2) or G 2 b of this section may request an extension. The extension may be granted or denied at the discretion of the department. Extensions shall be no more than six months in duration.

I. Recordkeeping. Permit applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this section for a period of at least three years from the date the application is signed.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-930 Permit rationale

In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-940 Signatories to permit applications and reports

A. All permit applications shall be signed as follows:

1. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy-making or decision-making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities, provided the manager is authorized to make management decisions that govern the operation of the regulated facility, including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long-term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;

2. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

3. For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

B. All reports required by permits, and other information requested by the department shall be signed by a person described in subsection A of this section, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

1. The authorization is made in writing by a person described in subsection A of this section;

2. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and

3. The written authorization is submitted to the department.

C. If an authorization under subsection B of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subsection B of this section must be submitted to the department prior to or together with any reports, or information to be signed by an authorized representative.

D. Any person signing a document under subsection A or B of this section shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

E. Electronic reporting. If documents described in subsection A or B of this section are submitted electronically by or on behalf of a VPDES-regulated facility, any person providing the electronic signature for such documents shall meet all relevant requirements of this section and shall ensure that all of the relevant requirements of Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D) are met for that submission.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-950 Stormwater discharges

A. Permit requirements.

1. Prior to October 1, 1994, discharges composed entirely of stormwater shall not be required to obtain a permit except:

a. A discharge with respect to which a permit has been issued prior to February 4, 1987;

b. A stormwater discharge associated with large construction activity;

c. A discharge from a large municipal separate storm sewer system;

d. A discharge from a medium municipal separate storm sewer system; or

e. A discharge that either the department or the regional administrator determines to contribute to a violation of a water quality standard or is a significant contributor of pollutants to surface waters. This designation may include a discharge from any conveyance or system of conveyances used for collecting and conveying stormwater runoff or a system of discharges from municipal separate storm sewers, except for those discharges from conveyances that do not require a permit under subdivision 2 of this subsection or agricultural stormwater runoff that is exempted from the definition of point source.

The department may designate discharges from municipal separate storm sewers on a system-wide or jurisdiction-wide basis. In making this determination the department may consider the following factors:

(1) The location of the discharge with respect to surface waters;

(2) The size of the discharge;

(3) The quantity and nature of the pollutants discharged to surface waters; and

(4) Other relevant factors.

2. The department may not require a permit for discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows that are from conveyances or systems of conveyances, including pipes, conduits, ditches, and channels, used for collecting and conveying precipitation runoff and that are not contaminated by contact with or that has not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.

3. a. Permits must be obtained for all discharges from large and medium municipal separate storm sewer systems.

b. The department may either issue one system-wide permit covering all discharges from municipal separate storm sewers within a large or medium municipal storm sewer system or issue distinct permits for appropriate categories of discharges within a large or medium municipal separate storm sewer system, including all discharges owned or operated by the same municipality; located within the same jurisdiction; all discharges within a system that discharge to the same watershed; discharges within a system that are similar in nature; or for individual discharges from municipal separate storm sewers within the system.

c. The operator of a discharge from a municipal separate storm sewer that is part of a large or medium municipal separate storm sewer system must either:

(1) Participate in a permit application (to be a permittee or a state co-permittee) with one or more other operators of discharges from the large or medium municipal storm sewer system that covers all, or a portion of all, discharges from the municipal separate storm sewer system;

(2) Submit a distinct permit application that only covers discharges from the municipal separate storm sewers for which the operator is responsible; or

(3) A regional authority may be responsible for submitting a permit application under the following guidelines:

(a) The regional authority together with permit co-applicants shall have authority over a stormwater management program that is in existence or shall be in existence at the time Part 1 of the application is due;

(b) The permit applicant or co-applicants shall establish their ability to make a timely submission of Part 1 and Part 2 of the municipal application;

(c) Each of the operators of municipal separate storm sewers within large or medium municipal separate storm sewer systems, which are under the purview of the designated regional authority, shall comply with the application requirements of subsection C of this section.

d. One permit application may be submitted for all or a portion of all municipal separate storm sewers within adjacent or interconnected large or medium municipal separate storm sewer systems. The department may issue one system-wide permit covering all or a portion of all municipal separate storm sewers in adjacent or interconnected large or medium municipal separate storm sewer systems.

e. Permits for all or a portion of all discharges from large or medium municipal separate storm sewer systems that are issued on a system-wide, jurisdiction-wide, watershed, or other basis may specify different conditions relating to different discharges covered by the permit, including different management programs for different drainage areas that contribute stormwater to the system.

f. State co-permittees need only comply with permit conditions relating to discharges from the municipal separate storm sewers for which they are operators.

4. In addition to meeting the requirements of subsection B of this section, an operator of a stormwater discharge associated with a large construction activity that discharges through a large or medium municipal separate storm sewer system shall submit to the operator of the municipal separate storm sewer system receiving the discharge no later than May 15, 1991, or 180 days prior to commencing such discharge, the name of the facility; a contact person and telephone number; the location of the discharge; a description, including Standard Industrial Classification, that best reflects the principal products or services provided by each facility; and any existing permit number.

5. The department may issue permits for municipal separate storm sewers that are designated under subdivision A 1 e of this section on a system-wide basis, jurisdiction-wide basis, watershed basis, or other appropriate basis or may issue permits for individual discharges.

6. Conveyances that discharge stormwater runoff combined with municipal sewage are point sources that must obtain separate VPDES permits in accordance with the procedures of 9VAC25-31 and are not subject to the provisions of this section.

7. Whether a discharge from a municipal separate storm sewer is or is not subject to regulation under this subsection shall have no bearing on whether the owner or operator of the discharge is eligible for funding under Title II, Title III, or Title VI of the CWA.

8. a. On and after October 1, 1994, for discharges composed entirely of stormwater, that are not required by subdivision 1 of this subsection to obtain a permit, operators shall be required to obtain a permit only if:

(1) The discharge is from a small MS4 required to be regulated pursuant to 9VAC25-875-970 B;

(2) The discharge is a stormwater discharge associated with small construction activity as defined in 9VAC25-875-20;

(3) The department or the EPA regional administrator determines that stormwater controls are needed for the discharge based on wasteload allocations that are part of total maximum daily loads (TMDLs) that address the pollutants of concern; or

(4) The department or the EPA regional administrator determines that the discharge or category of discharges within a geographic area contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.

b. Operators of small MS4s designated pursuant to subdivisions 8 a (1), (3), and (4) of this subsection shall seek coverage under a permit in accordance with 9VAC25-875-970 C, D, and E. Operators of nonmunicipal sources designated pursuant to subdivisions 8 a (2), (3), and (4) of this subsection shall seek coverage under a permit in accordance with subdivision B 1 of this section.

c. Operators of stormwater discharges designated pursuant to subdivisions 8 a (3) and (4) of this subsection shall apply to the department for a permit within 180 days of receipt of notice, unless permission for a later date is granted by the department.

B. Application requirements for stormwater discharges associated with large and small construction activity. Dischargers of stormwater associated with large and small construction activity are required to apply for an individual permit or seek coverage under a promulgated stormwater general permit. Facilities that are required to obtain an individual permit or any discharge of stormwater that the department is evaluating for designation under subdivision A 1 e of this section and is not a municipal separate storm sewer shall submit a state application in accordance with the requirements of 9VAC25-875-920 as modified and supplemented by the provisions of this subsection.

1. The operator of an existing or new stormwater discharge that is associated with a large or small construction activity shall provide a narrative description of:

a. The location, including a map, and the nature of the construction activity;

b. The total area of the site and the area of the site that is expected to undergo excavation during the life of the permit;

c. Proposed measures, including best management practices, to control pollutants in stormwater discharges during construction, including a brief description of applicable state and VESCP requirements;

d. Proposed measures to control pollutants in stormwater discharges that will occur after construction operations have been completed, including a brief description of applicable state or local VESCPrequirements;

e. An estimate of the runoff coefficient of the site and the increase in impervious area after the construction addressed in the permit application is completed, the nature of fill material and existing data describing the soil, or the quality of the discharge;

f. The name of the receiving water; and

g. The location of Chesapeake Bay Preservation Areas.

2. Permit applicants shall provide such other information the department may reasonably require to determine whether to issue a permit.

C. Application requirements for large and medium municipal separate storm sewer discharges. The operator of a discharge from a large or medium municipal separate storm sewer or a municipal separate storm sewer that is designated by the department under subdivision A 1 e of this section may submit a jurisdiction-wide or system-wide permit application. Where more than one public entity owns or operates a municipal separate storm sewer within a geographic area (including adjacent or interconnected municipal separate storm sewer systems), such operators may be a permit co-applicant to the same application. Permit applications for discharges from large and medium municipal storm sewers or municipal storm sewers designated under subdivision A 1 e of this section shall include;

1. Part 1 of the application shall consist of:

a. The permit applicant's name, address, telephone number, and email address; ownership status; status as a state or local government entity; and the name, address, telephone number, and email address of a contact person;

b. A description of existing legal authority to control discharges to the municipal separate storm sewer system. When existing legal authority is not sufficient to meet the criteria provided in subdivision 2 a of this subsection, the description shall list additional authorities as will be necessary to meet the criteria and shall include a schedule and commitment to seek such additional authority that will be needed to meet the criteria;

c. Source identification.

(1) A description of the historic use of ordinances, guidance, or other controls that limited the discharge of nonstormwater discharges to any publicly owned treatment works serving the same area as the municipal separate storm sewer system.

(2) A USGS 7.5 minute topographic map (or equivalent topographic map with a scale between 1:10,000 and 1:24,000, if cost effective) extending one mile beyond the service boundaries of the municipal storm sewer system covered by the permit application. The following information shall be provided:

(a) The location of known municipal storm sewer system outfalls discharging to surface waters;

(b) A description of the land use activities (e.g., divisions indicating undeveloped, residential, commercial, agricultural, and industrial uses) accompanied with estimates of population densities and projected growth for a 10-year period within the drainage area served by the separate storm sewer. For each land use type, an estimate of an average runoff coefficient shall be provided;

(c) The location and a description of the activities of the facility of each currently operating or closed municipal landfill or other treatment, storage, or disposal facility for municipal waste;

(d) The location and the permit number of any known discharge to the municipal storm sewer that has been issued a permit;

(e) The location of major structural controls for stormwater discharge (retention basins, detention basins, major infiltration devices, etc.); and

(f) The identification of publicly owned parks, recreational areas, and other open lands;

d. Discharge characterization.

(1) Monthly mean rain and snow fall estimates (or summary of weather bureau data) and the monthly average number of storm events.

(2) Existing quantitative data describing the volume and quality of discharges from the municipal storm sewer, including a description of the outfalls sampled, sampling procedures, and analytical methods used.

(3) A list of water bodies that receive discharges from the municipal separate storm sewer system, including downstream segments, lakes, and estuaries, where pollutants from the system discharges may accumulate and cause water degradation and a brief description of known water quality impacts. At a minimum, the description of impacts shall include a description of whether the water bodies receiving such discharges have been:

(a) Assessed and reported in § 305(b) of the CWA reports submitted by the state, the basis for the assessment (evaluated or monitored), a summary of designated use support and attainment of the State Water Control Law and the CWA goals (fishable and swimmable waters), and causes of nonsupport of designated uses;

(b) Listed under § 304(l)(1)(A)(i), (1)(A)(ii), or (l)(1)(B) of the CWA that is not expected to meet water quality standards or water quality goals;

(c) Listed in State Nonpoint Source Assessments required by § 319(a) of the CWA that, without additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or maintain water quality standards due to storm sewers, construction, highway maintenance, and runoff from municipal landfills and municipal sludge adding significant pollution (or contributing to a violation of water quality standards);

(d) Identified and classified according to eutrophic condition of publicly owned lakes listed in state reports required under § 314(a) of the CWA (include the following: a description of those publicly owned lakes for which uses are known to be impaired; a description of procedures, processes, and methods to control the discharge of pollutants from municipal separate storm sewers into such lakes; and a description of methods and procedures to restore the quality of such lakes);

(e) Areas of concern of the Great Lakes identified by the International Joint Commission;

(f) Designated estuaries under the National Estuary Program under § 320 of the CWA;

(g) Recognized by the permit applicant as highly valued or sensitive waters;

(h) Defined by the state or U.S. Fish and Wildlife Service's National Wetlands Inventory as wetlands; and

(i) Found to have pollutants in bottom sediments, fish tissue or biosurvey data.

(4) Results of a field screening analysis for illicit connections and illegal dumping for either selected field screening points or major outfalls covered in the permit application. At a minimum, a screening analysis shall include a narrative description, for either each field screening point or major outfall, of visual observations made during dry weather periods. If any flow is observed, two grab samples shall be collected during a 24-hour period with a minimum period of four hours between samples. For all such samples, a narrative description of the color, odor, turbidity, and the presence of an oil sheen or surface scum, as well as any other relevant observations regarding the potential presence of nonstormwater discharges or illegal dumping shall be provided. In addition, a narrative description of the results of a field analysis using suitable methods to estimate pH, total chlorine, total copper, total phenol, and detergents (or surfactants) shall be provided along with a description of the flow rate. Where the field analysis does not involve analytical methods approved under 40 CFR Part 136, the permit applicant shall provide a description of the method used, including the name of the manufacturer of the test method along with the range and accuracy of the test. Field screening points shall be either major outfalls or other outfall points (or any other point of access such as manholes) randomly located throughout the storm sewer system by placing a grid over a drainage system map and identifying those cells of the grid that contain a segment of the storm sewer system or major outfall. The field screening points shall be established using the following guidelines and criteria:

(a) A grid system consisting of perpendicular north-south and east-west lines spaced 1/4 mile apart shall be overlaid on a map of the municipal storm sewer system, creating a series of cells;

(b) All cells that contain a segment of the storm sewer system shall be identified; one field screening point shall be selected in each cell; major outfalls may be used as field screening points;

(c) Field screening points should be located downstream of any sources of suspected illegal or illicit activity;

(d) Field screening points shall be located to the degree practicable at the farthest manhole or other accessible location downstream in the system, within each cell; however, safety of personnel and accessibility of the location should be considered in making this determination;

(e) Hydrological conditions; total drainage area of the site; population density of the site; traffic density; age of the structures or buildings in the area; history of the area; and land use types;

(f) For medium municipal separate storm sewer systems, no more than 250 cells need to have identified field screening points; in large municipal separate storm sewer systems, no more than 500 cells need to have identified field screening points; cells established by the grid that contain no storm sewer segments will be eliminated from consideration; if fewer than 250 cells in medium municipal sewers are created, and fewer than 500 in large systems are created by the overlay on the municipal sewer map, then all those cells that contain a segment of the sewer system shall be subject to field screening (unless access to the separate storm sewer system is impossible); and

(g) Large or medium municipal separate storm sewer systems that are unable to utilize the procedures described in subdivisions 1 d (4) (a) through (f) of this subsection because a sufficiently detailed map of the separate storm sewer systems is unavailable shall field screen no more than 500 or 250 major outfalls respectively (or all major outfalls in the system, if fewer); in such circumstances, the permit applicant shall establish a grid system consisting of north-south and east-west lines spaced 1/4 mile apart as an overlay to the boundaries of the municipal storm sewer system, thereby creating a series of cells; the permit applicant will then select major outfalls in as many cells as possible until at least 500 major outfalls (large municipalities) or 250 major outfalls (medium municipalities) are selected; a field screening analysis shall be undertaken at these major outfalls.

(5) Information and a proposed program to meet the requirements of subdivision 2 c of this subsection. Such description shall include: the location of outfalls or field screening points appropriate for representative data collection under subdivision 2 c (1) of this subsection, a description of why the outfall or field screening point is representative, the seasons during which sampling is intended, and a description of the sampling equipment. The proposed location of outfalls or field screening points for such sampling should reflect water quality concerns (see subdivision 1 d (3) of this subsection) to the extent practicable;

e. Management programs.

(1) A description of the existing management programs to control pollutants from the municipal separate storm sewer system. The description shall provide information on existing structural and source controls, including operation and maintenance measures for structural controls, that are currently being implemented. Such controls may include procedures to control pollution resulting from construction activities, floodplain management controls, wetland protection measures, best management practices for new subdivisions, and emergency spill response programs. The description may address controls established under state law as well as local requirements.

(2) A description of the existing program to identify illicit connections to the municipal storm sewer system. The description should include inspection procedures and methods for detecting and preventing illicit discharges and describe areas where this program has been implemented; and

f. Fiscal resources. A description of the financial resources currently available to the municipality to complete Part 2 of the permit application. A description of the municipality's budget for existing stormwater programs, including an overview of the municipality's financial resources and budget, including overall indebtedness and assets, and sources of funds for stormwater programs.

2. Part 2 of the application shall consist of:

a. A demonstration that the permit applicant can operate pursuant to legal authority established by statute, ordinance, or series of contracts that authorizes or enables the permit applicant at a minimum to:

(1) Control through ordinance, permit, contract, order, or similar means the contribution of pollutants to the municipal storm sewer by stormwater discharges associated with industrial activity and the quality of stormwater discharged from sites of industrial activity;

(2) Prohibit through ordinance, order, or similar means illicit discharges to the municipal separate storm sewer;

(3) Control through ordinance, order, or similar means the discharge to a municipal separate storm sewer of spills, dumping, or disposal of materials other than stormwater;

(4) Control through interagency agreements among permit co-applicants the contribution of pollutants from one portion of the municipal system to another portion of the municipal system;

(5) Require compliance with conditions in ordinances, permits, contracts, or orders; and

(6) Carry out all inspection, surveillance, and monitoring procedures necessary to determine compliance and noncompliance with permit conditions, including the prohibition on illicit discharges to the municipal separate storm sewer;

b. The location of any major outfall that discharges to surface waters that was not reported under subdivision 1 c (2) (a) of this subsection. Provide an inventory, organized by watershed of the name and address, and a description (such as SIC codes) that best reflects the principal products or services provided by each facility that may discharge, to the municipal separate storm sewer, stormwater associated with industrial activity;

c. When quantitative data for a pollutant are required under subdivision 2 c (1) (c) of this subsection, the permit applicant must collect a sample of effluent in accordance with 9VAC25-875-960 and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136. When no analytical method is approved the permit applicant may use any suitable method but must provide a description of the method. The permit applicant must provide information characterizing the quality and quantity of discharges covered in the permit application, including:

(1) Quantitative data from representative outfalls designated by the department (based on information received in Part 1 of the application, the department shall designate between five and 10 outfalls or field screening points as representative of the commercial, residential, and industrial land use activities of the drainage area contributing to the system or where there are less than five outfalls) covered in the application, the department shall designate all outfalls developed as follows:

(a) For each outfall or field screening point designated under this subsection, samples shall be collected of stormwater discharges from three storm events occurring at least one month apart in accordance with the requirements at 9VAC25-875-960 (the department may allow exemptions to sampling three storm events when climatic conditions create good cause for such exemptions);

(b) A narrative description shall be provided of the date and duration of the storm event or events sampled, rainfall estimates of the storm event that generated the sampled discharge, and the duration between the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event;

(c) For samples collected and described under subdivisions 2 c (1) (a) and (1) (b) of this subsection, quantitative data shall be provided for the organic pollutants listed in Table II; the pollutants listed in Table III (toxic metals, cyanide, and total phenols) of 40 CFR Part 122 Appendix D, and for the following pollutants:

Total suspended solids (TSS)

Total dissolved solids (TDS)

Chemical oxygen demand (COD)

Biochemical oxygen demand (BOD₅)

Oil and grease

Fecal coliform

Fecal streptococcus

pH

Total Kjeldahl nitrogen

Nitrate plus nitrite

Dissolved phosphorus

Total ammonia plus organic nitrogen

Total phosphorus

(d) Additional limited quantitative data required by the department for determining permit conditions (the department may require that quantitative data shall be provided for additional parameters and may establish sampling conditions, such as the location, season of sample collection, form of precipitation (snow melt, rainfall) and other parameters necessary to ensure representativeness);

(2) Estimates of the annual pollutant load of the cumulative discharges to surface waters from all identified municipal outfalls and the event mean concentration of the cumulative discharges to surface waters from all identified municipal outfalls during a storm event (as described under 9VAC25-875-960) for BOD₅, COD, TSS, dissolved solids, total nitrogen, total ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus, cadmium, copper, lead, and zinc. Estimates shall be accompanied by a description of the procedures for estimating constituent loads and concentrations, including any modeling, data analysis, and calculation methods;

(3) A proposed schedule to provide estimates for each major outfall identified in either subdivision 2 b or 1 c (2) (a) of this subsection of the seasonal pollutant load and of the event mean concentration of a representative storm for any constituent detected in any sample required under subdivision 2 c (1) of this subsection; and

(4) A proposed monitoring program for representative data collection for the term of the permit that describes the location of outfalls or field screening points to be sampled (or the location of instream stations), why the location is representative, the frequency of sampling, parameters to be sampled, and a description of sampling equipment;

d. A proposed management program that covers the duration of the permit. It shall include a comprehensive planning process that involves public participation and, where necessary, intergovernmental coordination to reduce the discharge of pollutants to the maximum extent practicable using management practices, control techniques and system, design and engineering methods, and such other provisions that are appropriate. The program shall also include a description of staff and equipment available to implement the program. Separate proposed programs may be submitted by each permit co-applicant. Proposed programs may impose controls on a system wide basis, a watershed basis, a jurisdiction basis, or on individual outfalls. Proposed programs will be considered by the department when developing permit conditions to reduce pollutants in discharges to the maximum extent practicable. Proposed management programs shall describe priorities for implementing controls. Such programs shall be based on:

(1) A description of structural and source control measures to reduce pollutants from runoff from commercial and residential areas that are discharged from the municipal storm sewer system that are to be implemented during the life of the permit, accompanied with an estimate of the expected reduction of pollutant loads and a proposed schedule for implementing such controls. At a minimum, the description shall include:

(a) A description of maintenance activities and a maintenance schedule for structural controls to reduce pollutants (including floatables) in discharges from municipal separate storm sewers;

(b) A description of planning procedures, including a comprehensive master plan to develop, implement, and enforce controls to reduce the discharge of pollutants from municipal separate storm sewers that receive discharges from areas of new development and significant redevelopment. Such plan shall address controls to reduce pollutants in discharges from municipal separate storm sewers after construction is completed. Controls to reduce pollutants in discharges from municipal separate storm sewers containing construction site runoff are addressed in subdivision 2 d (4) of this subsection;

(c) A description of practices for operating and maintaining public streets, roads, and highways and procedures for reducing the impact on receiving waters of discharges from municipal storm sewer systems, including pollutants discharged as a result of deicing activities;

(d) A description of procedures to ensure that flood management projects assess the impacts on the water quality of receiving water bodies and that existing structural flood control devices have been evaluated to determine if retrofitting the device to provide additional pollutant removal from stormwater is feasible;

(e) A description of a program to monitor pollutants in runoff from operating or closed municipal landfills or other treatment, storage, or disposal facilities for municipal waste that shall identify priorities and procedures for inspections and establishing and implementing control measures for such discharges (this program can be coordinated with the program developed under subdivision 2 d (3) of this subsection); and

(f) A description of a program to reduce to the maximum extent practicable, pollutants in discharges from municipal separate storm sewers associated with the application of pesticides, herbicides, and fertilizer that will include, as appropriate, controls such as educational activities, permits, certifications, and other measures for commercial applicators and distributors and controls for application in public right-of-ways and at municipal facilities;

(2) A description of a program, including a schedule to detect and remove (or require the discharger to the municipal separate storm sewer to obtain a separate permit for) illicit discharges and improper disposal into the storm sewer. The proposed program shall include:

(a) A description of a program, including inspections, to implement and enforce an ordinance, orders, or similar means to prevent illicit discharges to the municipal separate storm sewer system; this program description shall address all types of illicit discharges, however the following category of nonstormwater discharges or flows shall be addressed where such discharges are identified by the municipality as sources of pollutants to surface waters: water line flushing, landscape irrigation, diverted stream flows, rising groundwaters, uncontaminated groundwater infiltration to separate storm sewers, uncontaminated pumped groundwater, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water (program descriptions shall address discharges or flows from firefighting only where such discharges or flows are identified as significant sources of pollutants to surface waters);

(b) A description of procedures to conduct on-going field screening activities during the life of the permit, including areas or locations that will be evaluated by such field screens;

(c) A description of procedures to be followed to investigate portions of the separate storm sewer system that, based on the results of the field screen, or other appropriate information, indicate a reasonable potential of containing illicit discharges or other sources of nonstormwater (such procedures may include: sampling procedures for constituents such as fecal coliform, fecal streptococcus, surfactants (Methylene Blue Active Substances - MBAS), residual chlorine, fluorides, and potassium; testing with fluorometric dyes; or conducting in storm sewer inspections where safety and other considerations allow. Such description shall include the location of storm sewers that have been identified for such evaluation.);

(d) A description of procedures to prevent, contain, and respond to spills that may discharge into the municipal separate storm sewer;

(e) A description of a program to promote, publicize, and facilitate public reporting of the presence of illicit discharges or water quality impacts associated with discharges from municipal separate storm sewers;

(f) A description of educational activities, public information activities, and other appropriate activities to facilitate the proper management and disposal of used oil and toxic materials; and

(g) A description of controls to limit infiltration of seepage from municipal sanitary sewers to municipal separate storm sewer systems where necessary.

(3) A description of a program to monitor and control pollutants in stormwater discharges to municipal systems from municipal landfills, hazardous waste treatment, disposal and recovery facilities, industrial facilities that are subject to § 313 of Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA, 42 USC § 11023), and industrial facilities that the municipal permit applicant determines are contributing a substantial pollutant loading to the municipal storm sewer system. The program shall:

(a) Identify priorities and procedures for inspections and establishing and implementing control measures for such discharges;

(b) Describe a monitoring program for stormwater discharges associated with the industrial facilities identified in subdivision 2 d (3) of this subsection, to be implemented during the term of the permit, including the submission of quantitative data on the following constituents: any pollutants limited in effluent guidelines subcategories, where applicable; any pollutant listed in an existing separate VPDES permit for a facility; oil and grease, COD, pH, BOD₅, TSS, total phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite nitrogen, and any information on discharges required under 9VAC25-875-960 G and H; and

(4) A description of a program to implement and maintain structural and nonstructural best management practices to reduce pollutants in stormwater runoff from construction sites to the municipal storm sewer system, which program shall include:

(a) A description of procedures for site planning that incorporate consideration of potential water quality impacts;

(b) A description of requirements for nonstructural and structural best management practices;

(c) A description of procedures for identifying priorities for inspecting sites and enforcing control measures that consider the nature of the construction activity, topography, and the characteristics of soils and receiving water quality; and

(d) A description of appropriate educational and training measures for construction site operators;

e. Estimated reductions in loadings of pollutants from discharges of municipal storm sewer constituents from municipal storm sewer systems expected as the result of the municipal stormwater quality management program. The assessment shall also identify known impacts of stormwater controls on groundwater;

f. For each fiscal year to be covered by the permit, a fiscal analysis of the necessary capital and operation and maintenance expenditures necessary to accomplish the activities of the programs under subdivisions 2 c and d of this subsection. Such analysis shall include a description of the source of funds that are proposed to meet the necessary expenditures, including legal restrictions on the use of such funds;

g. Where more than one legal entity submits an application, the application shall contain a description of the roles and responsibilities of each legal entity and procedures to ensure effective coordination; and

h. Where requirements under subdivisions 1 d (5), 2 b, 2 c (2), and 2 d of this subsection are not practicable or are not applicable, the department may exclude any operator of a discharge from a municipal separate storm sewer that is designated under subdivision A 1 e of this section or that is located in the counties listed in 40 CFR Part 122 Appendix H or Appendix I (except municipal separate storm sewers that are located in the incorporated places, townships, or towns within such counties) from such requirements. The department shall not exclude the operator of a discharge from a municipal separate storm sewer identified in 40 CFR Part 122 Appendix F, G, H, or I from any of the permit application requirements under this subdivision except where authorized under this subsection.

D. Petitions.

1. Any operator of a municipal separate storm sewer system may petition the appropriate authority or the department to require a separate permit for any discharge into the municipal separate storm sewer system.

2. Any person may petition the department to require a permit for a discharge that is composed entirely of stormwater that contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.

3. Any person may petition the department for the designation of a large, medium, or small municipal separate storm sewer system as defined by this chapter.

4. The department shall make a final determination on any petition received under this section within 90 days after receiving the petition with the exception of petitions to designate a small MS4, in which case the department shall make a final determination on the petition within 180 days after the petition's receipt.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-960 Effluent sampling procedures

A. Permit applicants for discharges from large and small municipal storm sewers or municipal storm sewers designated under 9VAC25-875-950 A 1 e shall provide the following information to the department, using application forms provided by the department.

B. Information on stormwater discharges that is to be provided as specified in 9VAC25-875-950. When quantitative data for a pollutant are required, the permit applicant must collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136. When no analytical method is approved the permit applicant may use any suitable method but must provide a description of the method. When a permit applicant has two or more outfalls with substantially identical effluents, the department may allow the permit applicant to test only one outfall and report that the quantitative data also apply to the substantially identical outfalls. The requirements in subsections F and G of this section that a permit applicant must provide quantitative data for certain pollutants known or believed to be present do not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. Grab samples must be used for pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. For all other pollutants, 24-hour composite samples must be used. However, a minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours. In addition, for discharges other than stormwater discharges, the department may waive composite sampling for any outfall for which the permit applicant demonstrates that the use of an automatic sampler is infeasible and that the minimum of four grab samples will be a representative sample of the effluent being discharged.

C. For stormwater discharges, all samples shall be collected from the discharge resulting from a storm event that is greater than 0.1 inch and at least 72 hours from the previously measurable (greater than 0.1 inch rainfall) storm event. Where feasible, the variance in the duration of the event and the total rainfall of the event should not exceed 50% from the average or median rainfall event in that area. For all permit applicants, a flow-weighted composite shall be taken for either the entire discharge or for the first three hours of the discharge. The flow-weighted composite sample for a stormwater discharge may be taken with a continuous sampler or as a combination of a minimum of three sample aliquots taken in each hour of discharge for the entire discharge or for the first three hours of the discharge, with each aliquot being separated by a minimum period of 15 minutes. However, a minimum of one grab sample may be taken for stormwater discharges from holding ponds or other impoundments with a retention period greater than 24 hours. For a flow-weighted composite sample, only one analysis of the composite of aliquots is required. For stormwater discharge samples taken from discharges associated with industrial activities, quantitative data must be reported for the grab sample taken during the first 30 minutes (or as soon thereafter as practicable) of the discharge for all pollutants specified in 9VAC25-875-950 C 1. For all stormwater permit applicants taking flow-weighted composites, quantitative data must be reported for all pollutants specified in 9VAC25-875-950 except pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. The department may allow or establish appropriate site-specific sampling procedures or requirements, including sampling locations, the season in which the sampling takes place, the minimum duration between the previous measurable storm event and the storm event sampled, the minimum or maximum level of precipitation required for an appropriate storm event, the form of precipitation sampled (snow melt or rain fall), protocols for collecting samples under 40 CFR Part 136, and additional time for submitting data on a case-by-case basis. A permit applicant is expected to know or have reason to believe that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant or on any previous analyses for the pollutant. For example, any pesticide manufactured by a facility may be expected to be present in contaminated stormwater runoff from the facility.

D. Every permit applicant must report quantitative data for every outfall for the following pollutants:

Biochemical oxygen demand (BOD₅)

Chemical oxygen demand

Total organic carbon

Total suspended solids

Ammonia (as N)

Temperature (both winter and summer)

pH

E. The department may waive the reporting requirements for individual point sources or for a particular industry category for one or more of the pollutants listed in subsection C of this section if the permit applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements.

F. Each permit applicant with processes in one or more primary industry category (see 40 CFR Part 122 Appendix A) contributing to a discharge must report quantitative data for the following pollutants in each outfall containing process wastewater:

1. The organic toxic pollutants in the fractions designated in Table I of 40 CFR Part 122 Appendix D for the permit applicant's industrial category unless the permit applicant qualifies as a small business. Table II of 40 CFR Part 122 Appendix D lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure that uses gas chromatography or mass spectrometry. A determination that a permit applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the permit applicant's inclusion in that category for any other purposes; and

2. The pollutants listed in Table III of 40 CFR Part 122 Appendix D (the toxic metals, cyanide, and total phenols).

G. 1. Each permit applicant must indicate whether the permit applicant knows or has reason to believe that any of the pollutants in Table IV of 40 CFR Part 122 Appendix D (certain conventional and nonconventional pollutants) is discharged from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator, the permit applicant must report quantitative data. For every pollutant discharged that is not so limited in an effluent limitations guideline, the permit applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged.

2. Each applicant must indicate whether the applicant knows or has reason to believe that any of the pollutants listed in Table II or Table III of 40 CFR Part 122 Appendix D (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under subsection F of this section, is discharged from each outfall. For every pollutant expected to be discharged in concentrations of 10 ppb or greater the permit applicant must report quantitative data. For acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 100 ppb or greater the permit applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb, or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, in concentrations less than 100 ppb, the permit applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. A permit applicant qualifying as a small business is not required to analyze for pollutants listed in Table II of 40 CFR Part 122 Appendix D (the organic toxic pollutants).

H. Each permit applicant must indicate whether the permit applicant knows or has reason to believe that any of the pollutants in Table V of 40 CFR Part 122 Appendix D (certain hazardous substances and asbestos) are discharged from each outfall. For every pollutant expected to be discharged, the permit applicant must briefly describe the reasons the pollutant is expected to be discharged, and report any quantitative data it has for any pollutant.

I. Each permit applicant must report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:

1. Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or

2. Knows or has reason to believe that TCDD is or may be present in an effluent.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-970 Small municipal separate storm sewer systems

A. Objectives of the stormwater regulations for small MS4s.

1. Subsections A through G of this section are written in a "readable regulation" format that includes both rule requirements and guidance. The recommended guidance is distinguished from the regulatory requirements by putting the guidance in a separate subdivision headed by the word "Note."

2. Under the statutory mandate in § 402(p)(6) of the Clean Water Act, the purpose of this portion of the stormwater program is to designate additional sources that need to be regulated to protect water quality and to establish a comprehensive stormwater program to regulate these sources.

3. Stormwater runoff continues to harm the nation's waters. Runoff from lands modified by human activities can harm surface water resources in several ways, including by changing natural hydrologic patterns and by elevating pollutant concentrations and loadings. Stormwater runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-demanding substances, and floatables.

4. The department strongly encourages partnerships and the watershed approach as the management framework for efficiently, effectively, and consistently protecting and restoring aquatic ecosystems and protecting public health.

B. As an operator of a small MS4, am I regulated under the state's stormwater program?

1. Unless you qualify for a waiver under subdivision 3 of this subsection, you are regulated if you operate a small MS4, including systems operated by federal, state, tribal, and local governments, including the Virginia Department of Transportation; and

a. Your small MS4 is located in an urban area with a population of 50,000 or more people as determined by the latest decennial census by the Bureau of the Census (if your small MS4 is not located entirely within an urban area with a population of 50,000 or more people, only the portion that is within the urban area is regulated); or

b. You are designated by the department, including where the designation is pursuant to subdivisions C 3 a and b of this section or is based upon a petition under 9VAC25-875-950 D.

2. You may be the subject of a petition to the department to require a permit for your discharge of stormwater. If the department determines that you need a permit, you are required to comply with subsections C through E of this section.

3. The department may waive the requirements otherwise applicable to you if you meet the criteria of subdivision 4 or 5 of this subsection B. If you receive a waiver under this section, you may subsequently be required to seek coverage under a permit in accordance with subdivision C 1 of this section if circumstances change. (See also subdivision E 2 of this section).

4. The department may waive permit coverage if your MS4 serves a population of less than 1,000 within the urban area identified in subdivision B 1 a of this section and you meet the following criteria:

a. Your system is not contributing substantially to the pollutant loadings of a physically interconnected MS4 that is regulated by the department; and

b. If you discharge any pollutants that have been identified as a cause of impairment of any water body to which you discharge, stormwater controls are not needed based on wasteload allocations that are part of an approved "total maximum daily load" (TMDL) that addresses the pollutants of concern.

5. The department may waive permit coverage if your MS4 serves a population under 10,000 and you meet the following criteria:

a. The department has evaluated all surface waters, including small streams, tributaries, lakes, and ponds, that receive a discharge from your MS4;

b. For all such waters, the department has determined that stormwater controls are not needed based on wasteload allocations that are part of an approved TMDL that addresses the pollutants of concern or, if a TMDL has not been developed or approved, an equivalent analysis that determines sources and allocations for the pollutants of concern;

c. For the purpose of subdivision 5 of this subsection, the pollutants of concern include biochemical oxygen demand (BOD), sediment or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation), pathogens, oil and grease, and any pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from your MS4; and

d. The department has determined that future discharges from your MS4 do not have the potential to result in exceedances of water quality standards, including impairment of designated uses or other significant water quality impacts, including habitat and biological impacts.

C. If I am an operator of a regulated small MS4, how do I apply for a permit and when do I have to apply?

1. If you operate a regulated small MS4 under subsection B of this section, you must seek coverage under a permit issued by the department.

2. You must seek authorization to discharge under a general or individual permit, as follows:

a. If the department has issued a general permit applicable to your discharge and you are seeking coverage under the general permit, you must submit a registration statement that includes the information on your best management practices and measurable goals required by subdivision D 4 of this section. You may file your own registration statement, or you and other municipalities or governmental entities may jointly submit a registration statement. If you want to share responsibilities for meeting the minimum measures with other municipalities or governmental entities, you must submit a registration statement that describes which minimum measures you will implement and identify the entities that will implement the other minimum measures within the area served by your MS4. The general permit will explain any other steps necessary to obtain permit authorization.

b. (1) If you are seeking authorization to discharge under an individual permit and wish to implement a program under subsection D of this section, you must submit an application to the department that includes the information required under 9VAC25-875-920 F and subdivision D 4 of this section, an estimate of square mileage served by your small MS4, and any additional information that the department requests. A storm sewer map that satisfies the requirement of subdivision D 2 c (1) of this section will satisfy the map requirement in 9VAC25-875-920 F 7.

(2) If you are seeking authorization to discharge under an individual permit and wish to implement a program that is different from the program under subsection D of this section, you will need to comply with the permit application requirements of 9VAC25-875-950 C. You must submit both parts of the application requirements in 9VAC25-875-950 C 1 and 2 by March 10, 2003. You do not need to submit the information required by 9VAC25-875-950 C 1 b and C 2 regarding your legal authority, unless you intend for the permit writer to take such information into account when developing your other permit conditions.

(3) If allowed by the department, you and another regulated entity may jointly apply under either subdivision 2 b (1) or (2) of this subsection to be state co-permittees under an individual permit.

c. If your small MS4 is in the same urban area as a medium or large MS4 with a permit and that other MS4 is willing to have you participate in that MS4's stormwater program, you and the other MS4 may jointly seek a modification of the other MS4 permit to include you as a limited state co-permittee. As a limited state co-permittee, you will be responsible for compliance with the permit's conditions applicable to your jurisdiction. If you choose this option you will need to comply with the permit application requirements of 9VAC25-875-950, rather than the requirements of subsection D of this section. You do not need to comply with the specific application requirements of 9VAC25-875-950 C 1 c and d and 9VAC25-875-950 C 2 c (discharge characterization). You may satisfy the requirements in 9VAC25-875-950 C 1 e and 2 d (identification of a management program) by referring to the other MS4's stormwater management program.

d. NOTE: In referencing an MS4's stormwater management program, you should briefly describe how the existing plan will address discharges from your small MS4 or would need to be supplemented in order to adequately address your discharges. You should also explain your role in coordinating stormwater pollutant control activities in your MS4 and detail the resources available to you to accomplish the plan.

3. If you operate a regulated small MS4:

a. Designated under subdivision B 1 a of this section, you must apply for coverage under a permit or apply for a modification of an existing permit under subdivision 2 c of this subsection within 180 days of notice, unless the department grants a later date.

b. Designated under subdivision B 1 b of this section, you must apply for coverage under a permit or apply for a modification of an existing permit under subdivision 2 c of this subsection within 180 days of notice, unless the department grants a later date.

D. As an operator of a regulated small MS4, what will my MS4 permit require?

1. Your MS4 permit will require at a minimum that you develop, implement, and enforce a stormwater management program designed to reduce the discharge of pollutants from your MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act, the Virginia Erosion and Stormwater Management Act, and the State Water Control Law. Your stormwater management program must include the minimum control measures described in subdivision 2 of this subsection unless you apply for a permit under 9VAC25-875-950 C. For purposes of this section, narrative effluent limitations requiring implementation of best management practices (BMPs) are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality. Implementation of best management practices consistent with the provisions of the stormwater management program required pursuant to this section and the provisions of the permit required pursuant to subsection C of this section constitutes compliance with the standard of reducing pollutants to the maximum extent practicable. The department will specify a time period of up to five years from the date of permit issuance for you to develop and implement your program.

2. Minimum control measures.

a. Public education and outreach on stormwater impacts.

(1) You must implement a public education program to distribute educational materials to the community or conduct equivalent outreach activities about the impacts of stormwater discharges on water bodies and the steps that the public can take to reduce pollutants in stormwater runoff.

(2) NOTE: You may use stormwater educational materials provided by the state, your tribe, EPA, environmental, public interest or trade organizations, or other MS4s. The public education program should inform individuals and households about the steps they can take to reduce stormwater pollution, such as ensuring proper septic system maintenance, ensuring the proper use and disposal of landscape and garden chemicals including fertilizers and pesticides, protecting and restoring riparian vegetation, and properly disposing of used motor oil or household hazardous wastes. The department recommends that the program inform individuals and groups how to become involved in local stream and beach restoration activities as well as activities that are coordinated by youth service and conservation corps or other citizen groups. The department recommends that the public education program be tailored, using a mix of locally appropriate strategies, to target specific audiences and communities. Examples of strategies include: distributing brochures or fact sheets, sponsoring speaking engagements before community groups, providing public service announcements, implementing educational programs targeted at school-age children, and conducting community-based projects such as storm drain stenciling, and watershed and beach cleanups. In addition, the department recommends that some of the materials or outreach programs be directed toward targeted groups of commercial, industrial, and institutional entities likely to have significant stormwater impacts. For example, providing information to restaurants on the impact of grease clogging storm drains and to garages on the impact of oil discharges. You are encouraged to tailor your outreach program to address the viewpoints and concerns of all communities, particularly minority and disadvantaged communities, as well as any special concerns relating to children.

b. Public involvement/participation.

(1) You must, at a minimum, comply with state, tribal, and local public notice requirements when implementing a public involvement/participation program.

(2) The department recommends that the public be included in developing, implementing, and reviewing your stormwater management program and that the public participation process should make efforts to reach out and engage all economic and ethnic groups. Opportunities for members of the public to participate in program development and implementation include serving as citizen representatives on a local stormwater management panel, attending public hearings, working as citizen volunteers to educate other individuals about the program, assisting in program coordination with other pre-existing programs, or participating in volunteer monitoring efforts. (Citizens should obtain approval where necessary for lawful access to monitoring sites.)

c. Illicit discharge detection and elimination.

(1) You must develop, implement, and enforce a program to detect and eliminate illicit discharges (as defined in 9VAC25-875-850) into your small MS4.

(2) You must:

(a) Develop, if not already completed, a storm sewer system map, showing the location of all outfalls and the names and location of all surface waters that receive discharges from those outfalls;

(b) To the extent allowable under state, tribal, or local law effectively prohibit, through ordinance or other regulatory mechanism, nonstormwater discharges into your storm sewer system and implement appropriate enforcement procedures and actions;

(c) Develop and implement a plan to detect and address nonstormwater discharges, including illegal dumping, to your system; and

(d) Inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste.

(3) You need to address the following categories of nonstormwater discharges or flows (i.e., illicit discharges) only if you identify them as significant contributors of pollutants to your small MS4: water line flushing, landscape irrigation, diverted stream flows, rising groundwaters, uncontaminated groundwater infiltration (as defined in 40 CFR 35.2005(20)), uncontaminated pumped groundwater, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water. (Discharges or flows from fire-fighting activities are excluded from the effective prohibition against nonstormwater and need only be addressed where they are identified as significant sources of pollutants to surface waters.)

(4) NOTE: The department recommends that the plan to detect and address illicit discharges include the following four components: (i) procedures for locating priority areas likely to have illicit discharges, (ii) procedures for tracing the source of an illicit discharge, (iii) procedures for removing the source of the discharge, and (iv) procedures for program evaluation and assessment. The department recommends visually screening outfalls during dry weather and conducting field tests of selected pollutants as part of the procedures for locating priority areas. Illicit discharge education actions may include storm drain stenciling; a program to promote, publicize, and facilitate public reporting of illicit connections or discharges; and distribution of outreach materials.

d. Construction site stormwater runoff control.

(1) You must develop, implement, and enforce a program to reduce pollutants in any stormwater runoff to your small MS4 from construction activities that result in a land disturbance of greater than or equal to one acre, or equal to or greater than 2,500 square feet in all areas of the jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations adopted pursuant to the Chesapeake Bay Preservation Act. Reduction of stormwater discharges from construction activity disturbing less than one acre must be included in your program if that construction activity is part of a larger common plan of development or sale that would disturb one acre or more. If the department waives requirements for stormwater discharges associated with small construction activity in accordance with the definition in 9VAC25-875-20, you are not required to develop, implement, or enforce a program to reduce pollutant discharges from such sites.

(2) Your program must include the development and implementation of, at a minimum:

(a) An ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under state, tribal, or local law;

(b) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;

(c) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

(d) Procedures for site plan review which incorporate consideration of potential water quality impacts;

(e) Procedures for receipt and consideration of information submitted by the public; and

(f) Procedures for site inspection and enforcement of control measures.

(3) NOTE: Examples of sanctions to ensure compliance include nonmonetary penalties, fines, bonding requirements, or permit denials for noncompliance. The department recommends that procedures for site plan review include the review of individual pre-construction site plans to ensure consistency with erosion and sediment control requirements. Procedures for site inspections and enforcement of control measures could include steps to identify priority sites for inspection and enforcement based on the nature of the construction activity, topography, and the characteristics of soils and receiving water quality. You are encouraged to provide appropriate educational and training measures for construction site operators. You may wish to require a stormwater pollution prevention plan for construction sites within your jurisdiction that discharge into your system. (See 9VAC25-875-1030 L and subdivision E 2 of this section.) The department may recognize that another government entity may be responsible for implementing one or more of the minimum measures on your behalf.

e. Post-construction stormwater management in new development and redevelopment.

(1) You must develop, implement, and enforce a program to address stormwater runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into your small MS4. Your program must ensure that controls are in place that would prevent or minimize water quality impacts.

(2) You must:

(a) Develop and implement strategies that include a combination of structural and nonstructural best management practices (BMPs) appropriate for your community;

(b) Use an ordinance or other regulatory mechanism to address post-construction runoff from new development and redevelopment projects to the extent allowable under state, tribal, or local law; and

(c) Ensure adequate long-term operation and maintenance of BMPs.

(3) NOTE: If water quality impacts are considered from the beginning stages of a project, new development and potentially redevelopment provide more opportunities for water quality protection. The department recommends that the BMPs chosen be appropriate for the local community, minimize water quality impacts, and attempt to maintain pre-development runoff conditions. In choosing appropriate BMPs, the department encourages you to participate in locally based watershed planning efforts that attempt to involve a diverse group of stakeholders, including interested citizens. When developing a program that is consistent with this measure's intent, the department recommends that you adopt a planning process that identifies the municipality's program goals (e.g., minimize water quality impacts resulting from post-construction runoff from new development and redevelopment), implementation strategies (e.g., adopt a combination of structural and nonstructural BMPs), operation and maintenance policies and procedures, and enforcement procedures. In developing your program, you should consider assessing existing ordinances, policies, programs, and studies that address stormwater runoff quality. In addition to assessing these existing documents and programs, you should provide opportunities to the public to participate in the development of the program. Nonstructural BMPs are preventative actions that involve management and source controls such as: (i) policies and ordinances that provide requirements and standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain and increase open space (including a dedicated funding source for open space acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize disturbance of soils and vegetation; (ii) policies or ordinances that encourage infill development in higher density urban areas, and areas with existing infrastructure; (iii) education programs for developers and the public about project designs that minimize water quality impacts; and (iv) measures such as minimization of percent impervious area after development and minimization of directly connected impervious areas. Structural BMPs include: storage practices such as wet ponds and extended-detention outlet structures; filtration practices such as grassed swales, sand filters, and filter strips; and infiltration practices such as infiltration basins and infiltration trenches. The department recommends that you ensure the appropriate implementation of the structural BMPs by considering some or all of the following: pre-construction review of BMP designs; inspections during construction to verify BMPs are built as designed; post-construction inspection and maintenance of BMPs; and penalty provisions for the noncompliance with design, construction, or operation and maintenance. Stormwater technologies are constantly being improved, and the department recommends that your requirements be responsive to these changes, developments, or improvements in control technologies.

f. Pollution prevention/good housekeeping for municipal operations.

(1) You must develop and implement an operation and maintenance program that includes a training component and has the ultimate goal of preventing or reducing pollutant runoff from municipal operations. Using training materials that are available from EPA, state, tribe, or other organizations, your program must include employee training to prevent and reduce stormwater pollution from activities such as park and open space maintenance, fleet and building maintenance, new construction and land disturbances, and stormwater system maintenance.

(2) NOTE: The department recommends that, at a minimum, you consider the following in developing your program: maintenance activities, maintenance schedules, and long-term inspection procedures for structural and nonstructural stormwater controls to reduce floatables and other pollutants discharged from your separate storm sewers; controls for reducing or eliminating the discharge of pollutants from streets, roads, highways, municipal parking lots, maintenance and storage yards, fleet or maintenance shops with outdoor storage areas, salt/sand storage locations and snow disposal areas operated by you, and waste transfer stations; procedures for properly disposing of waste removed from the separate storm sewers and areas listed above (such as dredge spoil, accumulated sediments, floatables, and other debris); and ways to ensure that new flood management projects assess the impacts on water quality and examine existing projects for incorporating additional water quality protection devices or practices. Operation and maintenance should be an integral component of all stormwater management programs. This measure is intended to improve the efficiency of these programs and require new programs where necessary. Properly developed and implemented operation and maintenance programs reduce the risk of water quality problems.

3. If an existing VESMP requires you to implement one or more of the minimum control measures of subdivision 2 of this subsection, the department may include conditions in your permit that direct you to follow that VESMP's requirements rather than the requirements of subdivision 2 of this subsection. A VESMP is a local, state, or tribal municipal stormwater management program that imposes, at a minimum, the relevant requirements of subdivision 2 of this subsection.

4. a. In your permit application (either a registration statement for coverage under a general permit or an individual permit application), you must identify and submit to the department the following information:

(1) The best management practices (BMPs) that you or another entity will implement for each of the stormwater minimum control measures provided in subdivision 2 of this subsection;

(2) The measurable goals for each of the BMPs including, as appropriate, the months and years in which you will undertake required actions, including interim milestones and the frequency of the action; and

(3) The person responsible for implementing or coordinating your stormwater management program.

b. If you obtain coverage under a general permit, you are not required to meet any measurable goals identified in your registration statement in order to demonstrate compliance with the minimum control measures in subdivisions 2 c through f of this subsection unless, prior to submitting your registration statement, EPA or the department has provided or issued a menu of BMPs that addresses each such minimum measure. Even if no regulatory authority issues the menu of BMPs, however, you still must comply with other requirements of the general permit, including good faith implementation of BMPs designed to comply with the minimum measures.

c. NOTE: Either EPA or the department will provide a menu of BMPs. You may choose BMPs from the menu or select others that satisfy the minimum control measures.

5. a. You must comply with any more stringent effluent limitations in your permit, including permit requirements that modify or are in addition to the minimum control measures based on an approved total maximum daily load (TMDL) or equivalent analysis. The department may include such more stringent limitations based on a TMDL or equivalent analysis that determines such limitations are needed to protect water quality.

b. NOTE: The department strongly recommends that until the evaluation of the stormwater program in subsection G of this section, no additional requirements beyond the minimum control measures be imposed on regulated small MS4s without the agreement of the operator of the affected small MS4, except where an approved TMDL or equivalent analysis provides adequate information to develop more specific measures to protect water quality.

6. You must comply with other applicable permit requirements, standards and conditions established in the individual or general permit developed consistent with the provisions of 9VAC25-31-190 through 9VAC25-31-250, as appropriate.

7. Evaluation and assessment.

a. You must evaluate program compliance, the appropriateness of your identified best management practices, and progress towards achieving your identified measurable goals. The department may determine monitoring requirements for you in accordance with monitoring plans appropriate to your watershed. Participation in a group monitoring program is encouraged.

b. You must keep records required by the permit for at least three years. You must submit your records to the department only when specifically asked to do so. You must make your records, including a description of your stormwater management program, available to the public at reasonable times during regular business hours (see 9VAC25-875-900 for confidentiality provision). You may assess a reasonable charge for copying. You may require a member of the public to provide advance notice.

c. Unless you are relying on another entity to satisfy your permit obligations under subdivision E 1 of this section, you must submit annual reports to the department for your first permit term. For subsequent permit terms, you must submit reports in years two and four unless the department requires more frequent reports. As of the start date in Table 1 of 9VAC25-31-1020, all reports submitted in compliance with this subsection shall be submitted electronically by the owner, operator, or the duly authorized representative of the small MS4 to the department in compliance with this section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, the owner, operator, or the duly authorized representative of the small MS4 may be required to report electronically if specified by a particular permit. Your report must include:

(1) The status of compliance with permit conditions, an assessment of the appropriateness of your identified best management practices and progress towards achieving your identified measurable goals for each of the minimum control measures;

(2) Results of information collected and analyzed, including monitoring data, if any, during the reporting period;

(3) A summary of the stormwater activities you plan to undertake during the next reporting cycle;

(4) A change in any identified best management practices or measurable goals for any of the minimum control measures; and

(5) Notice that you are relying on another governmental entity to satisfy some of your permit obligations (if applicable).

E. As an operator of a regulated small MS4, may I share the responsibility to implement the minimum control measures with other entities?

1. You may rely on another entity to satisfy your permit obligations to implement a minimum control measure if:

a. The other entity, in fact, implements the control measure;

b. The particular control measure, or component thereof, is at least as stringent as the corresponding permit requirement; and

c. The other entity agrees to implement the control measure on your behalf. In the reports you must submit under subdivision D 7 c of this section, you must also specify that you rely on another entity to satisfy some of your permit obligations. If you are relying on another governmental entity regulated under the permit program to satisfy all of your permit obligations, including your obligation to file periodic reports required by subdivision D 7 c of this section, you must note that fact in your registration statement, but you are not required to file the periodic reports. You remain responsible for compliance with your permit obligations if the other entity fails to implement the control measure (or component thereof). Therefore, the department encourages you to enter into a legally binding agreement with that entity if you want to minimize any uncertainty about compliance with your permit.

2. In some cases, the department may recognize, either in your individual permit or in a general permit, that another governmental entity is responsible under a permit for implementing one or more of the minimum control measures for your small MS4. Where the department does so, you are not required to include such minimum control measure(s) in your stormwater management program. Your permit may be reopened and modified to include the requirement to implement a minimum control measure if the entity fails to implement it.

F. As an operator of a regulated small MS4, what happens if I don't comply with the application or permit requirements in subsections C through E of this section? Permits are enforceable under the Clean Water Act and the Virginia Erosion and Stormwater Management Act. Violators may be subject to the enforcement actions and penalties described in Clean Water Act §§ 309(b), (c), and (g) and 505 or under §§ 62.1-44.15:39 through 62.1-44.15:48 of the Code of Virginia and Article 5 of the State Water Control Law. Compliance with a permit issued pursuant to § 402 of the Clean Water Act is deemed compliance, for purposes of §§ 309 and 505, with §§ 301, 302, 306, 307, and 403, except any standard imposed under § 307 for toxic pollutants injurious to human health. If you are covered as a state co-permittee under an individual permit or under a general permit by means of a joint registration statement, you remain subject to the enforcement actions and penalties for the failure to comply with the terms of the permit in your jurisdiction except as set forth in subdivision E 2 of this section.

G. Will the small MS4 stormwater program regulations at subsections B through F of this section change in the future? EPA intends to conduct an enhanced research effort and compile a comprehensive evaluation of the NPDES MS4 stormwater program. The board will reevaluate the regulations based on data from the EPA NPDES MS4 stormwater program, from research on receiving water impacts from stormwater, and the effectiveness of best management practices (BMPs), as well as other relevant information sources.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 7, eff. December 18, 2024.

9VAC25-875-980 General permits

A. The department may issue a general permit in accordance with the following:

1. The general permit shall be written to cover one or more categories or subcategories of discharges, except those covered by individual permits, within a geographic area. The area should correspond to existing geographic or political boundaries, such as:

a. Designated planning areas under §§ 208 and 303 of CWA;

b. Sewer districts or sewer authorities;

c. City, county, or state political boundaries;

d. State highway systems;

e. Standard metropolitan statistical areas as defined by the Office of Management and Budget;

f. Urban areas with a population of 50,000 or more people as determined by the latest decennial census by the Bureau of the Census; or

g. Any other appropriate division or combination of boundaries.

2. The general permit may be written to regulate one or more categories within the area described in subdivision 1 of this subsection, where the sources within a covered subcategory of discharges are stormwater point sources.

3. Where sources within a specific category of dischargers are subject to water quality-based limits imposed pursuant to 9VAC25-875-1030, the sources in that specific category or subcategory shall be subject to the same water quality-based effluent limitations.

4. The general permit must clearly identify the applicable conditions for each category or subcategory of dischargers covered by the permit.

5. The general permit may exclude specified sources or areas from coverage.

B. Administration.

1. General permits may be issued, modified, revoked and reissued, or terminated in accordance with applicable requirements of this chapter.

2. Authorization to discharge.

a. Except as provided in subdivisions 2 e and 2 f of this subsection, dischargers seeking coverage under a general permit shall submit to the department a written notice of intent to be covered by the general permit. A discharger who fails to submit a notice of intent in accordance with the terms of the permit is not authorized to discharge, under the terms of the general permit unless the general permit, in accordance with subdivision 2 e of this subsection, contains a provision that a notice of intent is not required or the department notifies a discharger (or treatment works treating domestic sewage) that it is covered by a general permit in accordance with subdivision 2 f of this subsection. A complete and timely notice of intent (NOI) to be covered in accordance with general permit requirements fulfills the requirements for permit applications for the purposes of this chapter. As of the start date in Table 1 of 9VAC25-31-1020, all notices of intent submitted in compliance with this subdivision shall be submitted electronically by the discharger (or treatment works treating domestic sewage) to the department in compliance with this subdivision 2 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, dischargers or treatment works treating domestic sewage may be required to report electronically if specified by a particular permit.

b. The contents of the notice of intent shall be specified in the general permit and shall require the submission of information necessary for adequate program implementation, including at a minimum, the legal name and address of the owner or operator, the facility name and address, type of facility or discharges, and the receiving stream, and other required data elements as identified in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030. All notices of intent shall be signed in accordance with 9VAC25-875-940.

c. General permits shall specify the deadlines for submitting notices of intent to be covered and the date or dates when a discharger is authorized to discharge under the permit.

d. General permits shall specify whether a discharger that has submitted a complete and timely notice of intent to be covered in accordance with the general permit and that is eligible for coverage under the permit is authorized to discharge in accordance with the permit either upon receipt of the notice of intent by the department after a waiting period specified in the general permit on a date specified in the general permit or upon receipt of notification of inclusion by the department. Coverage may be terminated or revoked in accordance with subdivision 3 of this subsection.

e. Stormwater discharges associated with small construction activity may, at the discretion of the department, be authorized to discharge under a general permit without submitting a notice of intent where the department finds that a notice of intent requirement would be inappropriate. In making such a finding, the department shall consider the (i) type of discharge, (ii) expected nature of the discharge, (iii) potential for toxic and conventional pollutants in the discharges, (iv) expected volume of the discharges, (v) other means of identifying discharges covered by the permit, and (vi) estimated number of discharges to be covered by the permit. The department shall provide in the public notice of the general permit the reasons for not requiring a notice of intent.

f. The department may notify a discharger that it is covered by a general permit, even if the discharger has not submitted a notice of intent to be covered. A discharger so notified may request an individual permit under subdivision 3 c of this subsection.

3. Requiring an individual permit.

a. The department may require any discharger authorized by a general permit to apply for and obtain an individual permit. Any interested person may request the department to take action under this subdivision. Cases where an individual permit may be required include the following:

(1) The discharger is not in compliance with the conditions of the general permit;

(2) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;

(3) Effluent limitation guidelines are promulgated for point sources covered by the general permit;

(4) A water quality management plan, established by the department pursuant to 9VAC25-720, containing requirements applicable to such point sources is approved;

(5) Circumstances have changed since the time of the request to be covered so that the discharger is no longer appropriately controlled under the general permit, or either a temporary or permanent reduction or elimination of the authorized discharge is necessary;

(6) The discharge is a significant contributor of pollutants. In making this determination, the department may consider the following factors:

(a) The location of the discharge with respect to surface waters;

(b) The size of the discharge;

(c) The quantity and nature of the pollutants discharged to surface waters; and

(d) Other relevant factors;

b. Permits required on a case-by-case basis.

(1) The department may determine, on a case-by-case basis, that certain stormwater discharges, and certain other facilities covered by general permits that do not generally require an individual permit may be required to obtain an individual permit because of their contributions to water pollution.

(2) Whenever the department decides that an individual permit is required under this subsection, except as provided in subdivision 3 b (3) of this subsection, the department shall notify the discharger in writing of that decision and the reasons for it and shall send an application form with the notice. The discharger must apply for a permit within 60 days of notice, unless permission for a later date is granted by the department. The question whether the designation was proper will remain open for consideration during the public comment period for the draft permit and in any subsequent public hearing.

(3) Prior to a case-by-case determination that an individual permit is required for a stormwater discharge under this subsection, the department may require the discharger to submit a permit application or other information regarding the discharge under the State Water Control Law and § 308 of the CWA. In requiring such information, the department shall notify the discharger in writing and shall send an application form with the notice. The discharger must apply for a permit under 9VAC25-875-950 A 1 within 60 days of notice or under 9VAC25-875-950 A 8 within 180 days of notice, unless permission for a later date is granted by the department. The question whether the initial designation was proper will remain open for consideration during the public comment period for the draft permit and in any subsequent public hearing.

c. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under 9VAC25-875-920 with reasons supporting the request. The request shall be processed under the applicable parts of this chapter. The request shall be granted by issuing of an individual permit if the reasons cited by the owner or operator are adequate to support the request.

d. When an individual permit is issued to an owner or operator otherwise subject to a general permit, the applicability of the general permit to the individual permit permittee is automatically terminated on the effective date of the individual permit.

e. A source excluded from a general permit solely because it already has an individual permit may request that the individual permit be revoked and that it be covered by the general permit. Upon revocation of the individual permit, the general permit shall apply to the source.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 41, Issue 7, eff. December 18, 2024.

9VAC25-875-990 New sources and new discharges

A. Criteria for new source determination.

1. Except as otherwise provided in an applicable new source performance standard, a source is a new source if the source meets the definition of new source in this chapter and

a. The source is constructed at a site at which no other source is located;

b. The source totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

c. The source's processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the department shall consider such factors as the extent to which the new facility is integrated with the existing plant and the extent to which the new facility is engaged in the same general type of activity as the existing source.

2. A source meeting the requirements of subdivision 1 a, b, or c of this subsection is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger.

3. Construction on a site at which an existing source is located results in a permit modification subject to 9VAC25-875-1230 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of subdivision 1 b or c of this subsection but otherwise alters, replaces, or adds to existing process or production equipment.

4. Construction of a new source has commenced if the owner or operator has:

a. Begun, or caused to begin as part of a continuous onsite construction program:

(1) Any placement, assembly, or installation of facilities or equipment; or

(2) Significant site preparation work, including clearing, excavation, or removal of existing buildings, structures, or facilities that is necessary for the placement, assembly, or installation of new source facilities or equipment; or

b. Entered into a binding contractual obligation for the purchase of facilities or equipment that are intended to be used in the new source's operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without substantial loss and contracts for feasibility engineering, and design studies do not constitute a contractual obligation under this subdivision 4 b.

B. Effect of compliance with new source performance standards. The provisions of this subsection do not apply to existing sources that modify the existing sources' pollution control facilities or construct new pollution control facilities and achieve performance standards, but that are neither new sources nor new dischargers or otherwise do not meet the requirements of this subsection.

1. Except as provided in subdivision 2 of this subsection, any new discharger, the construction of which commenced after October 18, 1972, or new source that meets the applicable promulgated new source performance standards before the commencement of discharge may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under § 301(b)(2) of the CWA for the soonest ending of the following periods:

a. 10 years from the date that construction is completed;

b. 10 years from the date the source begins to discharge process or other nonconstruction related wastewater; or

c. The period of depreciation or amortization of the facility for the purposes of § 167 or 169 (or both) of the Internal Revenue Code of 1954 (26 USC § 167 and 26 USC § 169, respectively).

2. The protection from more stringent standards of performance afforded by subdivision 1 of this subsection does not apply to:

a. Additional or more stringent permit conditions that are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under the State Water Control Law and § 307(a) of the CWA; or

b. Additional permit conditions controlling toxic pollutants or hazardous substances that are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.

3. When a separate VPDES or permit issued to a source with a protection period under subdivision 1 of this subsection will expire on or after the expiration of the protection period, that permit shall require the owner or operator of the source to comply with the requirements of § 301 of the CWA and any other then applicable requirements of the CWA and the State Water Control Law immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.

4. The owner or operator of a new source, a new discharger that commenced discharge after August 13, 1979, or a recommencing discharger shall install and have in operating condition and shall start up all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit conditions. The requirements of this subdivision do not apply if the owner or operator is issued a permit containing a compliance schedule under 9VAC25-875-1060 A 2.

5. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 4 Permit Conditions

9VAC25-875-1000 Conditions applicable to all permits

A. The following conditions apply to all permits. Additional conditions applicable to permits are in 9VAC25-875-1010. All conditions applicable to permits shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to this regulation must be given in the permit.

B. The permittee shall comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the State Water Control Law and the CWA, except that noncompliance with certain provisions of the permit may constitute a violation of the State Water Control Law but not the CWA. Permit noncompliance is grounds for enforcement action; for permit termination, revocation and reissuance, modification, or denial of a permit renewal application.

The permittee shall comply with effluent standards or prohibitions established under § 307(a) of the CWA for toxic pollutants within the time provided in the chapters that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.

C. If the permittee wishes to continue an activity regulated by the permit after the expiration date of the permit, the permittee must apply for and obtain a new permit.

D. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

E. The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of the permit that has a reasonable likelihood of adversely affecting human health or the environment.

F. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used by the permittee to achieve compliance with the conditions of the permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems that are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit.

G. Permits may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination or a notification of planned changes or anticipated noncompliance does not stay any permit condition.

H. Permits do not convey any property rights of any sort, or any exclusive privilege.

I. The permittee shall furnish to the department, within a reasonable time, any information that the department may request to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. The department may require the permittee to furnish, upon request, such plans, specifications, and other pertinent information as may be necessary to determine the effect of the wastes from the permittee's discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the Virginia Erosion and Stormwater Management Act. The permittee shall also furnish to the department upon request, copies of records required to be kept by the permit.

J. The permittee shall allow the director, the department, or an authorized representative (including an authorized contractor acting as a representative of the administrator), upon presentation of credentials and other documents as may be required by law, to:

1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted or where records must be kept under the conditions of the permit;

2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

3. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the permit; and

4. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the CWA and the Act, any substances or parameters at any location.

K. Monitoring and records.

1. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

2. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three years from the date of the sample, measurement, report, or application. This period of retention shall be extended automatically during the course of any unresolved litigation regarding the regulated activity or regarding control standards applicable to the permittee, or as requested by the department.

3. Records of monitoring information shall include:

a. The date, exact place, and time of sampling or measurements;

b. The individual who performed the sampling or measurements;

c. The dates analyses were performed;

d. The individual who performed the analyses;

e. The analytical techniques or methods used; and

f. The results of such analyses.

4. Monitoring results must be conducted according to test procedures approved under 40 CFR Part 136 or alternative EPA approved methods, unless other test procedures have been specified in the permit. Analyses performed according to test procedures approved under 40 CFR Part 136 shall be performed by an environmental laboratory certified under regulations adopted by the Department of General Services (1VAC30-45 or 1VAC30-46).

L. All applications, reports, or information submitted to the VESMP authority and department shall be signed and certified as required by 9VAC25-875-940.

M. Reporting requirements.

1. The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:

a. The alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in 9VAC25-875-990 A; or

b. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants that are not subject to effluent limitations in the permit.

2. The permittee shall give advance notice to the department of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.

3. Permits are not transferable to any person except in accordance with 9VAC25-875-1220.

4. Monitoring results shall be reported at the intervals specified in the permit.

a. Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or specified by the department. As of the start date in Table 1 of 9VAC25-31-1020, all reports and forms submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit.

b. If the permittee monitors any pollutant specifically addressed by the permit more frequently than required by the permit using test procedures approved under 40 CFR Part 136 or as otherwise specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR or reporting form specified by the department.

c. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in the permit.

5. Reports of compliance or noncompliance with or any progress reports on interim and final requirements contained in any compliance schedule of the permit shall be submitted no later than 14 days following each schedule date.

6. If any unusual or extraordinary discharge including a bypass or upset should occur from a facility and such discharge enters or could be expected to enter state waters, the permittee shall promptly notify, in no case later than 24 hours, the department by telephone after the discovery of such discharge. This notification shall provide all available details of the incident, including any adverse effects on aquatic life and the known number of fish killed. The permittee shall reduce the report to writing and shall submit it to the department within five days of discovery of the discharge in accordance with subdivision 7 a of this subsection. Unusual and extraordinary discharges include any discharge resulting from:

a. Unusual spillage of materials resulting directly or indirectly from processing operations;

b. Breakdown of processing or accessory equipment;

c. Failure or taking out of service of the treatment plant or auxiliary facilities (such as sewer lines or wastewater pump stations); and

d. Flooding or other acts of nature.

7. Twenty-four hour and five-day reporting.

a. The permittee shall report any noncompliance that may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A report in the format required by the department shall also be provided within five days of the time the permittee becomes aware of the circumstances. The five-day report shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

(1) For noncompliance events related to combined sewer overflows, sanitary sewer overflows, or bypass events, these reports must include the data described in subdivision 7 a of this subsection (with the exception of time of discovery), as well as the type of event (i.e., combined sewer overflows, sanitary sewer overflows, or bypass events); type of sewer overflow structure (e.g., manhole, combine sewer overflow outfall); discharge volumes untreated by the treatment works treating domestic sewage; types of human health and environmental impacts of the sewer overflow event; and whether the noncompliance was related to wet weather.

(2) As of the start date in Table 1 of 9VAC25-31-1020, all reports related to combined sewer overflows, sanitary sewer overflows, or bypass events submitted in compliance with this subdivision 7 shall be submitted electronically by the permittee to the department in compliance with this subdivision 7 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to electronically submit reports related to combined sewer overflows, sanitary sewer overflows, or bypass events under this subdivision 7 by a particular permit.

(3) The director may also require permittees to electronically submit reports not related to combined sewer overflows, sanitary sewer overflows, or bypass events under this subdivision 7.

b. The following shall be reported within 24 hours under this subdivision:

(1) Any unanticipated bypass that exceeds any effluent limitation in the permit.

(2) Any upset that exceeds any effluent limitation in the permit.

(3) Violation of a maximum daily discharge limitation for any of the pollutants listed in the permit to be reported within 24 hours.

c. The department may waive the five-day report on a case-by-case basis for reports under this subdivision if the oral report has been received within 24 hours.

8. The permittee shall report all instances of noncompliance not reported under subdivisions 4, 5, 6, and 7 of this subsection, in the format required by the department, at the time the next monitoring reports are submitted. The reports shall contain the information listed in subdivision 7 of this subsection.

a. For noncompliance events related to combined sewer overflows, sanitary sewer overflows, or bypass events, these reports shall contain the information described in subdivision 7 a of this subsection and the applicable required data in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030.

b. As of the start date in Table 1 of 9VAC25-31-1020, all reports related to combined sewer overflows, sanitary sewer overflows, or bypass events submitted in compliance with this subdivision 8 shall be submitted electronically by the permittee to the department in compliance with this subdivision 8 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to electronically submit reports related to combined sewer overflows, sanitary sewer overflows, or bypass events under this section by a particular permit.

c. The director may also require permittees to electronically submit reports not related to combined sewer overflows, sanitary sewer overflows, or bypass events under this section.

9. Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the department, it shall promptly submit such facts or information.

10. The owner, operator, or the duly authorized representative of an VPDES-regulated entity is required to electronically submit the required information, as specified in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030, to the department.

N. Bypass.

1. The permittee may allow any bypass to occur that does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to ensure efficient operation. These bypasses are not subject to the provisions of subdivisions 2 and 3 of this subsection.

2. Notice.

a. Anticipated bypass. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least 10 days before the date of the bypass. As of the start date in Table 1 of 9VAC25-31-1020, all notices submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit.

b. Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in subdivision M 7 of this section. As of the start date in Table 1 of 9VAC25-31-1020, all notices submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit.

3. Prohibition of bypass.

a. Bypass is prohibited, and the department may take enforcement action against a permittee for bypass, unless:

(1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and

(3) The permittee submitted notices as required under subdivision 2 of this subsection.

b. The department may approve an anticipated bypass, after considering its adverse effects, if the department determines that it will meet the three conditions listed in subdivision 3 a of this subsection.

O. Upset.

1. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology based permit effluent limitations if the requirements of subdivision 2 of this subsection are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.

2. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

a. An upset occurred and that the permittee can identify the cause of the upset;

b. The permitted facility was at the time being properly operated;

c. The permittee submitted notice of the upset as required in subdivision M 7 b (2) of this section (24-hour notice); and

d. The permittee complied with any remedial measures required under subsection E of this section.

3. In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1010 Additional conditions applicable to municipal separate storm sewer system permits

In addition to those conditions set forth in 9VAC25-875-1000, the operator of a large or medium municipal separate storm sewer system or a municipal separate storm sewer that has been designated by the department under 9VAC25-875-950 A 1 e must submit an annual report by a date specified in the permit for such system. As of the start date in Table 1 of 9VAC25-31-1020, all reports submitted in compliance with this section shall be submitted electronically by the owner, operator, or the duly authorized representative of the MS4 to the department in compliance with this section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, the owner, operator, or the duly authorized representative of the small MS4 may be required to report electronically if specified by a particular permit. The report shall include:

1. The status of implementing the components of the stormwater management program that are established as permit conditions;

2. Proposed changes to the stormwater management programs that are established as permit conditions. Such proposed changes shall be consistent with 9VAC25-875-950 C 2 d;

3. Revisions, if necessary, to the assessment of controls and the fiscal analysis reported in the permit application;

4. A summary of data, including monitoring data, that is accumulated throughout the reporting year;

5. Annual expenditures and budget for year following each annual report;

6. A summary describing the number and nature of enforcement actions, inspections, and public education programs; and

7. Identification of water quality improvements or degradation.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1020 Establishing permit conditions

A. In addition to conditions required in all permits, the department shall establish conditions, as required on a case-by-case basis, to provide for and ensure compliance with all applicable requirements of the Virginia Erosion and Stormwater Management Act, the State Water Control Law, the CWA, and attendant regulations. These shall include conditions under 9VAC25-875-1050 (duration of permits), 9VAC25-875-1060 (schedules of compliance), 9VAC25-875-1030 (monitoring), electronic reporting requirements of 40 CFR Part 3, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation.

B. 1. An applicable requirement is a state statutory or regulatory requirement that takes effect prior to final administrative disposition of a permit. An applicable requirement is also any requirement that takes effect prior to the modification or revocation and reissuance of a permit to the extent allowed in Article 6 (9VAC25-875-1210 et seq.) of this part.

2. New or reissued permits, and to the extent allowed under Article 6 of this part modified or revoked and reissued permits, shall incorporate each of the applicable requirements referenced in 9VAC25-875-1030 and 9VAC25-875-1040.

C. All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1030 Establishing limitations, standards, and other permit conditions

A. In addition to the conditions established under 9VAC25-875-1020 A, each permit shall include conditions meeting the following requirements when applicable.

1. Technology-based effluent limitations and standards based on effluent limitations and standards promulgated under § 301 of the CWA, on new source performance standards promulgated under § 306 of CWA, on case-by-case effluent limitations determined under § 402(a)(1) of CWA, or a combination of the three. For new sources or new dischargers, these technology-based limitations and standards are subject to the provisions of 9VAC25-875-990 B (protection period).

2. The department may authorize a discharger subject to technology-based effluent limitations guidelines and standards in a permit to forgo sampling of a pollutant found at 40 CFR Subchapter N if the discharger has demonstrated through sampling and other technical factors that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger. This waiver is good only for the term of the permit and is not available during the term of the first permit issued to a discharger. Any request for this waiver must be submitted when applying for a reissued permit or modification of a reissued permit. The request must demonstrate through sampling or other technical information, including information generated during an earlier permit term, that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger. Any grant of the monitoring waiver must be included in the permit as an express permit condition, and the reasons supporting the grant must be documented in the permit's fact sheet or statement of basis. This provision does not supersede certification processes and requirements already established in existing effluent limitations guidelines and standards.

B. Other effluent limitations and standards under §§ 301, 302, 303, 307, 318, and 405 of the CWA. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under § 307(a) of the CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the department shall institute proceedings under this chapter to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition.

C. Water quality standards and state requirements. Any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under §§ 301, 304, 306, 307, 318, and 405 of the CWA necessary to:

1. Achieve water quality standards established under the State Water Control Law and § 303 of the CWA, including state narrative criteria for water quality.

a. Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) that the department determines are or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any Virginia water quality standard, including Virginia narrative criteria for water quality.

b. When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a Virginia water quality standard, the department shall use procedures that account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.

c. When the department determines, using the procedures in subdivision 1 b of this subsection, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable ambient concentration of a Virginia numeric criteria within a Virginia water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant.

d. Except as provided in this subdivision, when the department determines, using the procedures in subdivision 1 b of this subsection, toxicity testing data, or other information, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative criterion within an applicable Virginia water quality standard, the permit must contain effluent limits for whole effluent toxicity. Limits on whole effluent toxicity are not necessary where the department demonstrates in the fact sheet or statement of basis of the permit, using the procedures in subdivision 1 b of this subsection, that chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative Virginia water quality standards.

e. Where Virginia has not established a water quality criterion for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excursion above a narrative criterion within an applicable Virginia water quality standard, the department must establish effluent limits using one or more of the following options:

(1) Establish effluent limits using a calculated numeric water quality criterion for the pollutant that the department demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criterion may be derived using a proposed Virginia criterion, or an explicit policy or regulation interpreting Virginia's narrative water quality criterion, supplemented with other relevant information that may include EPA's Water Quality Standards Handbook, August 1994, risk assessment data, exposure data, information about the pollutant from the Food and Drug Administration, and current EPA criteria documents;

(2) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under § 307(a) of the CWA, supplemented where necessary by other relevant information; or

(3) Establish effluent limitations on an indicator parameter for the pollutant of concern, provided:

(a) The permit identifies which pollutants are intended to be controlled by the use of the effluent limitation;

(b) The fact sheet required by 9VAC25-875-1090 sets forth the basis for the limit, including a finding that compliance with the effluent limit on the indicator parameter will result in controls on the pollutant of concern that are sufficient to attain and maintain applicable water quality standards;

(c) The permit requires all effluent and ambient monitoring necessary to show that during the term of the permit the limit on the indicator parameter continues to attain and maintain applicable water quality standards; and

(d) The permit contains a reopener clause allowing the department to modify or revoke and reissue the permit if the limits on the indicator parameter no longer attain and maintain applicable water quality standards.

f. When developing water quality-based effluent limits under this subdivision 1 the department shall ensure that:

(1) The level of water quality to be achieved by limits on point sources established under this subsection is derived from and complies with all applicable water quality standards; and

(2) Effluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, or both are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by Virginia and approved by EPA pursuant to 40 CFR 130.7;

2. Attain or maintain a specified water quality through water quality related effluent limits established under the State Water Control Law and § 302 of the CWA;

3. Conform to the conditions of a Virginia Water Protection Permit (VWPP) issued under the State Water Control Law and § 401 of the CWA;

4. Conform to applicable water quality requirements under § 401(a)(2) of the CWA when the discharge affects a state other than Virginia;

5. Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established under the State Water Control Law or regulations in accordance with § 301(b)(1)(C) of the CWA;

6. Ensure consistency with the requirements of a Water Quality Management Plan established by the State Water Control Board pursuant to 9VAC25-720 and approved by EPA under § 208(b) of the CWA;

7. Incorporate § 403(c) criteria under 40 CFR Part 125, Subpart M, for ocean discharges; or

8. Incorporate alternative effluent limitations or standards where warranted by fundamentally different factors, under 40 CFR Part 125, Subpart D.

D. Technology-based controls for toxic pollutants. Limitations established under subsection A, B, or C of this section, to control pollutants meeting the criteria listed in subdivision 1 of this subsection. Limitations will be established in accordance with subdivision 2 of this subsection. An explanation of the development of these limitations shall be included in the fact sheet.

1. Limitations must control all toxic pollutants that the department determines (based on information reported in a permit application or in a notification required by the permit or on other information) are or may be discharged at a level greater than the level that can be achieved by the technology-based treatment requirements appropriate to the permittee; or

2. The requirement that the limitations control the pollutants meeting the criteria of subdivision 1 of this subsection will be satisfied by:

a. Limitations on those pollutants; or

b. Limitations on other pollutants that, in the judgment of the department, will provide treatment of the pollutants under subdivision 1 of this subsection to the levels required by the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and 40 CFR Part 125, Subpart A.

E. A notification level that exceeds the notification level of 9VAC25-31-200, upon a petition from the permittee or on the department's initiative. This new notification level may not exceed the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.

F. Twenty-four-hour reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under 9VAC25-875-1000 M 7 b (3) (24-hour reporting) shall be listed in the permit. This list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

G. Durations for permits, as set forth in 9VAC25-875-1050.

H. Monitoring requirements.

1. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);

2. Required monitoring including type, intervals, and frequency sufficient to yield data that are representative of the monitored activity, including, when appropriate, continuous monitoring;

3. Applicable reporting requirements based upon the impact of the regulated activity and as specified in 9VAC25-875-1000, subdivisions 5 through 8 of this subsection, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Reporting shall be no less frequent than specified in the regulations cited in this subdivision;

4. To ensure compliance with permit limitations, requirements to monitor:

a. The mass (or other measurement specified in the permit) for each pollutant limited in the permit;

b. The volume of effluent discharged from each outfall;

c. Other measurements as appropriate, including pollutants; frequency, rate of discharge, etc., for noncontinuous discharges; pollutants subject to notification requirements; or as determined to be necessary on a case-by-case basis pursuant to the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and § 405(d)(4) of the CWA;

d. According to test procedures approved under 40 CFR Part 136 for the analyses of pollutants having approved methods under that part, or alternative EPA approved methods, and according to a test procedure specified in the permit for pollutants with no approved methods; and

e. With analyses performed according to test procedures approved under 40 CFR Part 136 being performed by an environmental laboratory certified under regulations adopted by the Department of General Services (1VAC30-45 or 1VAC30-46).

5. Except as provided in subdivisions 7 and 8 of this subsection, requirements to report monitoring results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less that once a year. All results shall be electronically reported in compliance with 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation;

6. Requirements to report monitoring results for stormwater discharges associated with industrial activity that are subject to an effluent limitation guideline shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year;

7. Requirements to report monitoring results for stormwater discharges (other than those addressed in subdivision 6 of this subsection) shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge. At a minimum, a permit for such a discharge must require:

a. The discharger to conduct an annual inspection of the facility site to identify areas contributing to a stormwater discharge and evaluate whether measures to reduce pollutant loading identified in a stormwater pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit or whether additional control measures are needed;

b. The discharger to maintain for a period of three years a record summarizing the results of the inspection and a certification that the facility is in compliance with the plan and the permit, and identifying any incidents of noncompliance;

c. Such report and certification be signed in accordance with 9VAC25-875-940; and

8. Permits that do not require the submittal of monitoring result reports at least annually shall require that the permittee report all instances of noncompliance not reported under 9VAC25-875-1000 M 1, 4, 5, 6, and 7 at least annually.

I. Best management practices to control or abate the discharge of pollutants when:

1. Authorized under § 402(p) of the CWA for the control of stormwater discharges;

2. Numeric effluent limitations are infeasible; or

3. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and the CWA.

J. Reissued permits.

1. In the case of effluent limitations established on the basis of § 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under § 304(b) of the CWA subsequent to the original issuance of such permit, to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit. In the case of effluent limitations established on the basis of § 301(b)(1)(C) or § 303(d) or (e) of the CWA, a permit may not be renewed, reissued, or modified to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit except in compliance with § 303(d)(4) of the CWA.

2. Exceptions. A permit with respect to which subdivision 1 of this subsection applies may be renewed, reissued, or modified to contain a less stringent effluent limitation applicable to a pollutant if:

a. Material and substantial alterations or additions to the permitted facility occurred after permit issuance that justify the application of a less stringent effluent limitation;

b. (1) Information is available that was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and that would have justified the application of a less stringent effluent limitation at the time of permit issuance; or

(2) The department determines that technical mistakes or mistaken interpretations of the State Water Control Law were made in issuing the permit under § 402(a)(1)(B) of the CWA;

c. A less stringent effluent limitation is necessary because of events over which the permittee has no control and for which there is no reasonably available remedy;

d. The permittee has received a permit modification under the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and § 301(c), (g), (h), (i), (k), and (n), or 316(a) of the CWA; or

e. The permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the reviewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification).

Subdivision 2 b of this subsection shall not apply to any revised wasteload allocations or any alternative grounds for translating water quality standards into effluent limitations, except where the cumulative effect of such revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters, and such revised allocations are not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of the State Water Control Law or the CWA or for reasons otherwise unrelated to water quality.

3. In no event may a permit with respect to which subdivision 2 of this subsection applies be renewed, reissued, or modified to contain an effluent limitation that is less stringent than required by effluent guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may such a permit to discharge into waters be renewed, issued, or modified to contain a less stringent effluent limitation if the implementation of such limitation would result in a violation of a Virginia water quality standard applicable to such waters.

K. Navigation. Any conditions that the Secretary of the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired in accordance with 9VAC25-875-1170.

L. Qualifying state, tribal, or local programs.

1. For stormwater discharges associated with small construction activity defined in 9VAC25-875-20, the department may include permit conditions that incorporate qualifying state, tribal, or local erosion and sediment control program requirements by reference. Where a qualifying state, tribal, or local program does not include one or more of the elements in this subdivision, then the department must include those elements as conditions in the permit. A qualifying state, tribal, or local erosion and sediment control program is one that includes:

a. Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;

b. Requirements for construction site operators to control waste, such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste, at the construction site that may cause adverse impacts to water quality;

c. Requirements for construction site operators to develop and implement a stormwater pollution prevention plan. A stormwater pollution prevention plan includes site descriptions; descriptions of appropriate control measures; copies of approved state, tribal, or local requirements; maintenance procedures; inspection procedures; and identification of nonstormwater discharges; and

d. Requirements to submit a site plan for review that incorporates consideration of potential water quality impacts.

2. For stormwater discharges from construction activity that does not meet the definition of a small construction activity, the department may include permit conditions that incorporate qualifying state, tribal, or local erosion and sediment control program requirements by reference. A qualifying state, tribal, or local erosion and sediment control program is one that includes the elements listed in subdivision 1 of this subsection and any additional requirements necessary to achieve the applicable technology-based standards of "best available technology" and "best conventional technology" based on the best professional judgment of the permit writer.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1040 Calculating permit conditions

A. Permit effluent limitations, monitoring requirements, standards and prohibitions shall be established for each outfall or discharge point of the permitted facility, except as otherwise provided under 9VAC25-875-1030.

B. All permit effluent limitations, standards, or prohibitions for a metal shall be expressed in terms of total recoverable metal as defined in 40 CFR Part 136 unless:

1. An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent or total form; or

2. In establishing permit limitations on a case-by-case basis under 40 CFR 125.3, it is necessary to express the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the CWA, Virginia Erosion and Stormwater Management Act, and the State Water Control Law; or

3. All approved analytical methods for the metal inherently measure only its dissolved form (e.g., hexavalent chromium).

C. Discharges that are not continuous, as defined in 9VAC25-875-850, shall be particularly described and limited, considering the following factors, as appropriate:

1. Frequency;

2. Total mass;

3. Maximum rate of discharge of pollutants during the discharge; and

4. Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure.

D. Mass limitations.

1. All pollutants limited in permits shall have limitations, standards, or prohibitions expressed in terms of mass except:

a. For pH, temperature, radiation, or other pollutants that cannot appropriately be expressed by mass;

b. When applicable standards and limitations are expressed in terms of other units of measurement; or

c. If in establishing technology-based permit limitations on a case-by-case basis, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of total suspended solids from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment.

2. Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1050 Duration of permits

A. Permits shall be effective for a fixed term not to exceed five years.

B. Except as provided in 9VAC25-875-890, the term of a permit shall not be extended by modification beyond the maximum duration specified in this section.

C. The department may issue any permit for a duration that is less than the full allowable term under this section.

D. A permit may be issued to expire on or after the statutory deadline set forth in § 301(b)(2)(A), (C), and (E) of the CWA, if the permit includes effluent limitations to meet the requirements of § 301(b)(2)(A), (C), (D), (E), and (F) of the CWA, whether or not applicable effluent limitations guidelines have been promulgated or approved.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1060 Schedules of compliance

A. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the Virginia Erosion and Stormwater Management Act, the CWA, and regulations.

1. Any schedules of compliance under this section shall require compliance as soon as possible but not later than the applicable statutory deadline under the CWA.

2. The first permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge.

3. Schedules of compliance may be established in permits for existing sources that are reissued or modified to contain new or more restrictive water quality-based effluent limitations. The schedule may allow a reasonable period of time, not to exceed the term of the permit, for the discharger to attain compliance with the water quality-based limitations.

4. Except as provided in subdivision B 1 b of this section, if a permit establishes a schedule of compliance that exceeds one year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.

a. The time between interim dates shall not exceed one year.

b. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

5. The permit shall be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee shall notify the department in writing of its compliance or noncompliance with the interim or final requirements or submit progress reports if subdivision 4 b of this subsection is applicable.

B. A permit applicant or permittee may cease conducting regulated activities (by termination of direct discharge for sources) rather than continuing to operate and meet permit requirements as follows:

1. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit that has already been issued:

a. The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

b. The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit;

2. If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination that will ensure timely compliance with applicable requirements no later than the statutory deadline;

3. If the permittee is undecided whether to cease conducting regulated activities, the department may issue or modify a permit to contain two schedules as follows:

a. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date that ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;

b. One schedule shall lead to timely compliance with applicable requirements no later than the statutory deadline;

c. The second schedule shall lead to cessation of regulated activities by a date that will ensure timely compliance with applicable requirements no later than the statutory deadline; and

d. Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under subdivision 3 a of this subsection, the permittee shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities and follow the schedule leading to termination if the decision is to cease conducting regulated activities; and

4. The permit applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the department, such as a resolution of the board of directors of a corporation.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 5 Public Involvement

9VAC25-875-1070 Draft permits

A. Once an application for an individual permit is complete, the department shall tentatively decide whether to prepare a draft individual permit or to deny the application.

B. If the department tentatively decides to deny the individual permit application, the owner shall be advised of that decision and of the changes necessary to obtain approval. The owner may withdraw the application prior to department action. If the application is not withdrawn or modified to obtain the tentative approval to issue, the department shall provide public notice and opportunity for a public hearing prior to department action on the application.

C. If the department tentatively decides to issue a general permit, a draft general permit shall be prepared under subsection D of this section.

D. If the department decides to prepare a draft permit, the draft permit shall contain the following information:

1. All conditions under 9VAC25-875-1000 and 9VAC25-875-1020;

2. All compliance schedules under 9VAC25-875-1060;

3. All monitoring requirements under 9VAC25-875-1030; and

4. Effluent limitations, standards, prohibitions, and conditions under 9VAC25-875-1000, 9VAC25-875-1010, and 9VAC25-875-1030, and all variances that are to be included.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1080 Statement of basis

A statement of basis shall be prepared for every draft permit for which a fact sheet under 9VAC25-875-1090 is not prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis shall be sent to the permit applicant and, on request, to any other person.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1090 Fact sheet

A. A fact sheet shall be prepared for every draft individual permit for a major facility or activity for every general permit, for every draft permit that incorporates a variance or requires an explanation under subsection B 8 of this section, and for every draft permit that the department finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The department shall send this fact sheet to the permit applicant and, on request, to any other person.

B. The fact sheet shall include, when applicable:

1. A brief description of the type of facility or activity that is the subject of the draft permit;

2. The type and quantity of wastes, fluids, or pollutants that are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged;

3. A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions;

4. Reasons why any requested variances or alternatives to required standards do or do not appear justified;

5. A description of the procedures for reaching a final decision on the draft permit, including:

a. The beginning and ending dates of the comment period for the draft permit and the address where comments will be received;

b. Procedures for requesting a public hearing and the nature of that hearing; and

c. Any other procedures by which the public may participate in the final decision;

6. Name, telephone number, and email address of a person to contact for additional information;

7. Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions or standards for sewage sludge use or disposal, including a citation to the applicable effluent limitation guideline, performance standard, or standard for sewage sludge use or disposal and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed;

8. When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable:

a. Limitations to control toxic pollutants;

b. Limitations on indicator pollutants;

c. Technology-based limitations set on a case-by-case basis;

d. Limitations to meet the criteria for permit issuance under 9VAC25-875-870; or

e. Waivers from monitoring requirements granted under 9VAC25-875-1030 A; and

9. When appropriate, a sketch or detailed description of the location of the discharge or regulated activity described in the application.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1100 Public notice of draft permit actions and public comment period

A. Scope.

1. The department shall give public notice that the following actions have occurred:

a. A draft permit has been prepared under 9VAC25-875-1070 D;

b. A public hearing has been scheduled under 9VAC25-875-1120; or

c. A new source determination has been made under 9VAC25-875-990.

2. No public notice is required when a request for an individual permit modification, revocation and reissuance, or termination is denied under 9VAC25-875-1210 B. Written notice of that denial shall be given to the requester and to the permittee. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application.

3. Public notices may describe more than one draft permit or draft permit actions.

B. Timing.

1. Public notice of the preparation of a draft permit required under subsection A of this section shall allow at least 30 days for public comment.

2. Public notice of a public hearing shall be given at least 30 days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.

C. Methods. Public notice of activities described in subdivision A 1 of this section shall be given by the following methods:

1. By mailing, either by electronic or postal delivery, a copy of a notice to the following persons (any person otherwise entitled to receive notice under this subdivision may waive the right to receive notice for any classes and categories of permits):

a. The permit applicant (except for general permits when there is no permit applicant);

b. Any other agency that the department knows has issued or is required to issue a VPDES permit;

c. Federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected states (Indian Tribes);

d. Any state agency responsible for plan development under § 208(b)(2) or (b)(4) or 303(e) of the CWA and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service;

e. Persons on a mailing list developed by:

(1) Including those who request in writing to be on the list;

(2) Soliciting persons for area lists from participants in past permit proceedings in that area; and

(3) Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press, and in such publications as EPA regional and state funded newsletters, environmental bulletins, or state law journals. The department may update the mailing list from time to time by requesting written indication of continued interest from those listed. The department may delete from the list the name of any person who fails to respond to such a request; and

f. (1) Any unit of local government having jurisdiction over the area where the facility is proposed to be located; and

(2) Each state agency having any authority under state law with respect to the construction or operation of such facility;

2. By publication once a week for two successive weeks in a newspaper of general circulation in the area affected by the discharge. The cost of public notice shall be paid by the owner; and

3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

D. Contents.

1. All public notices issued under this part shall contain the following minimum information:

a. Name and address of the office processing the permit action for which notice is being given;

b. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of draft general permits;

c. A brief description of the business conducted at the facility or activity described in the individual permit application or the draft permit, for general permits when there is no application;

d. Name, address, telephone number, and email address of a person from whom interested persons may obtain further information, including copies of the draft permit, statement of basis or fact sheet, and the application;

e. A brief description of the procedures for submitting comments and the time and place of any public hearing that will be held, including a statement of procedures to request a public hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final individual or general permit decision;

f. For an individual permit, a general description of the location of each existing or proposed discharge point and the name of the receiving water; and

g. Any additional information considered necessary or proper.

2. In addition to the general public notice described in subdivision 1 of this subsection, the public notice of a public hearing under 9VAC25-875-1120 shall contain the following information:

a. Reference to the date of previous public notices relating to the draft permit;

b. Date, time, and place of the public hearing;

c. A brief description of the nature and purpose of the public hearing, including the applicable rules and procedures; and

d. A concise statement of the issues raised by the persons requesting the public hearing.

E. In addition to the general public notice described in subdivision D 1 of this section, all persons identified in subdivisions C 1 a through 1 d of this section shall be mailed, either by electronic or postal delivery, a copy of the fact sheet or statement of basis, the individual permit application (if any), and the draft permit (if any).

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1110 Public comments and requests for public hearings

During the public comment period provided under 9VAC25-875-1100, any interested person may submit written comments on the draft permit and may request a public hearing, if no public hearing has already been scheduled. A request for a public hearing shall be in writing and shall meet the requirements of 9VAC25-875-1120 and 9VAC25-875-1130. All comments shall be considered in making the final decision and shall be answered as provided in 9VAC25-875-1160.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1120 Public hearings

A. 1. Procedures for public hearings and permits before the department are those set forth in 9VAC25-875-1130.

2. Public notice of the public hearing shall be given as specified in 9VAC25-875-1100.

3. Any public hearing convened pursuant to this section shall be held in the geographical area of the proposed discharge, or in another appropriate area. Related groups of individual permit applications may be considered at any such public hearing.

B. Any person may submit oral or written statements and data concerning the draft individual permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required.

C. A recording or written transcript of the hearing shall be made available to the public.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1130 Criteria for requesting and granting a public hearing in a permit action

A. During the public comment period on a permit action in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest the action or terms and conditions of the permit.

B. Requests for a public hearing shall contain the following information:

1. The name and postal mailing or email address of the requester;

2. The names and addresses of all persons for whom the requester is acting as a representative;

3. The reason for the request for a public hearing;

4. A brief, informal statement setting forth the factual nature and extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and

5. Where possible, specific references to the terms and the conditions of the permit in question, together with suggested revisions and alterations to those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Water Control Board.

C. Upon completion of the public comment period on a permit action, the director shall review all timely requests for public hearing filed during the comment period on the permit action and, within 30 calendar days following the expiration of the time period for the submission of requests, shall grant a public hearing, unless the permittee or applicant agrees to a later date, if the director finds the following:

1. That there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;

2. That the requesters raise substantial disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

3. That the action requested by the interested party is not on its face inconsistent with or in violation of the basic laws of the State Water Control Board for a water permit action, federal law, or any regulation promulgated thereunder.

D. The director shall notify by email or mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.

E. If the request for a public hearing is granted, the director shall:

1. Schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing; and

2. Cause or require the applicant to publish notice of a public hearing to be published once in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located at least 30 days before the hearing date.

F. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.

G. The director may at the director's discretion convene a public hearing in a permit action.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1140 Controversial permits

Before rendering a final decision on a controversial permit, the department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at that time. In making its decision, the department shall consider (i) the verbal and written comments received during the comment period and the public hearing made part of the record, (ii) any commentary of the board, and (iii) the agency files.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1150 Controversial permits reporting

At each regular meeting of the board, the department shall provide an overview and update regarding any controversial permits pending before the department that are relevant. Immediately after such presentation by the department, the board shall have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1160 Response to comments

A. At the time that a final individual or general permit is issued, the department shall issue a response to comments. This response shall:

1. Specify which provisions, if any, of the draft individual or general permit have been changed in the final individual or general permit decision, and the reasons for the change; and

2. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any public hearing.

B. The response to comments shall be available to the public.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1170 Conditions requested by the Corps of Engineers and other government agencies

A. If during the comment period for a draft permit, the district engineer advises the department in writing that anchorage and navigation of any of the waters of the United States would be substantially impaired by the granting of an individual or general permit, the individual or general permit shall be denied and the individual permit applicant so notified. If the district engineer advises the department that imposing specified conditions upon the individual or general permit is necessary to avoid any substantial impairment of anchorage or navigation, then the department shall include the specified conditions in the individual or general permit. Review or appeal of denial of an individual or general permit or of conditions specified by the district engineer shall be made through the applicable procedures of the U.S Army Corps of Engineers and may not be made through the procedures provided in this part. If the conditions are stayed by a court of competent jurisdiction or by applicable procedures of the U.S Army Corps of Engineers, those conditions shall be considered stayed in the individual or general permit for the duration of that stay.

B. If during the comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any other state or federal agency with jurisdiction over fish, wildlife, or public health advises the department in writing that the imposition of specified conditions upon the individual or general permit is necessary to avoid substantial impairment of fish, shellfish, or wildlife resources, the department may include the specified conditions in the individual or general permit to the extent they are determined necessary to carry out the provisions of this regulation, the State Water Control Law, and the CWA.

C. In appropriate cases the department may consult with one or more of the agencies referred to in this section before issuing a draft permit and may reflect their views in the statement of basis, the fact sheet, or the draft permit.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1180 Decisions on variances

A. The department may grant or deny requests for variances requested pursuant to 9VAC25-875-920 G 4, subject to EPA objection. Decisions on these variances shall be made according to the criteria of 40 CFR Part 125, Subpart H.

B. The department may deny, or forward to the regional administrator with a written concurrence, or submit to EPA without recommendation a completed request for:

1. A variance based on the economic capability of the individual permit applicant submitted pursuant to 9VAC25-875-920 G 2; or

2. A variance based on water quality related effluent limitations submitted pursuant to 9VAC25-875-920 G 3.

C. If EPA approves the variance, the department may prepare a draft individual permit incorporating the variance. Any public notice of a draft individual permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision.

D. The department may deny or forward to the administrator with a written concurrence a completed request for:

1. A variance based on the presence of fundamentally different factors from those on which an effluent limitations guideline was based, made according to the criteria and standards of 40 CFR Part 125, Subpart D; or

2. A variance based upon certain water quality factors submitted pursuant to 9VAC25-875-920 G 2.

E. If the administrator approves the variance, the department may prepare a draft individual permit incorporating the variance. Any public notice of a draft individual permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1190 Appeals of variances

When the department issues an individual permit on which EPA has made a variance decision, separate appeals of the individual permit and of the EPA variance decision are possible.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1200 Computation of time

A. Any time period scheduled to begin on the occurrence of an act or event shall begin on the day after the act or event.

B. Any time period scheduled to begin before the occurrence of an act or event shall be computed so that the period ends on the day before the act or event.

C. If the final day of any time period falls on a weekend or legal holiday, the time period shall be extended to the next working day.

D. Whenever a party or interested person has the right or is required to act within a prescribed period after the service of notice or other paper upon the party or interested person by mail or by electronic or postal delivery, three days shall be added to the prescribed time.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 6 Transfer, Modification, Revocation and Reissuance, and Termination of Permits

9VAC25-875-1210 Modification, revocation and reissuance, or termination of permits

A. Permits may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) or upon the department's initiative. When the department receives any information (e.g., inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for modification or revocation and reissuance, or conducts a review of the permit file) it may determine whether one or more of the causes listed in this section for modification or revocation and reissuance, or both exist. However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in 9VAC25-875-1230 or 9VAC25-875-1250. All requests shall be in writing and shall contain facts or reasons supporting the request. If cause does not exist under these sections, the department shall not modify, revoke and reissue, or terminate the permit. If a permit modification satisfies the criteria for minor modifications, the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared and other procedures in Article 5 (9VAC25-875-1070 et seq.) of this part followed.

B. If the department decides the request is not justified, the department shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or public hearings.

C. 1. If the department tentatively decides to modify or revoke and reissue a permit, the department shall prepare a draft permit incorporating the proposed changes. The department may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, the department shall require the submission of a new application.

2. In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued and the permit is reissued for a new term. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

3. Minor modifications as defined in 9VAC25-875-1240 are not subject to the requirements of this section.

D. If the department tentatively decides to terminate a permit under 9VAC25-875-1250, where the permittee objects, the department shall do so in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1220 Transfer of permits

A. Except as provided in subsection B of this section, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued, or a minor modification made, to identify the new permittee and incorporate such other requirements as may be necessary under the Virginia Erosion and Stormwater Management Act and the CWA.

B. Automatic transfers. As an alternative to transfers under subsection A of this section, any permit may be automatically transferred to a new permittee if:

1. The current permittee notifies the department at least 30 days in advance of the proposed transfer date in subdivision 2 of this subsection;

2. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

3. The department does not notify the existing permittee and the proposed new permittee of its intent to modify or revoke and reissue the permit. A modification under this subdivision may also be a minor modification. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in subdivision 2 of this subsection.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1230 Modification or revocation and reissuance of permits

A. Causes for modification. The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees.

1. There are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance that justify the application of permit conditions that are different or absent in the existing permit.

2. The department has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For general permits this cause includes any information indicating that cumulative effects on the environment are unacceptable. For new source or new discharger permits this cause shall include any significant information derived from effluent testing required on the permit application after issuance of the permit.

3. The standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:

a. For promulgation of amended standards or regulations, when:

(1) The permit condition requested to be modified was based on a promulgated effluent limitation guideline, EPA approved, or promulgated water quality standards;

(2) EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based or has approved a state action with regard to a water quality standard on which the permit condition was based; and

(3) A permittee requests modification in accordance with this chapter within 90 days after Federal Register notice of the action on which the request is based;

b. For judicial decisions, a court of competent jurisdiction has remanded and stayed EPA promulgated regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with this chapter within 90 days of judicial remand; or

c. For changes based upon modified state certifications of permits.

4. The department determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage, or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case may a compliance schedule be modified to extend beyond an applicable CWA statutory deadline.

5. When the permittee has filed a request for a variance pursuant to 9VAC25-875-920 G within the time specified in this chapter.

6. When required to incorporate an applicable § 307(a) of the CWA toxic effluent standard or prohibition.

7. When required by the reopener conditions in a permit that are established under 9VAC25-875-1030 B.

8. Upon failure to notify another state whose waters may be affected by a discharge.

9. When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.

10. To establish a notification level as provided in 9VAC25-875-1030 E.

11. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.

12. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under the State Water Control Law and § 402(a)(1) of the CWA and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved but shall not be less stringent than required by a subsequently promulgated effluent limitations guideline.

13. For a small MS4, to include an effluent limitation requiring implementation of a minimum control measure or measures as specified in 9VAC25-875-970 D 2 when:

a. The permit does not include such measures based upon the determination that another entity was responsible for implementation of the requirements; and

b. The other entity fails to implement measures that satisfy the requirements.

B. Causes for modification or revocation and reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit:

1. Cause exists for termination under 9VAC25-875-1250, and the department determines that modification or revocation and reissuance is appropriate; or

2. The department has received notification of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1240 Minor modifications of individual permits

Upon the consent of the permittee, the department may modify an individual permit to make the corrections or allowances for changes in the permitted activity listed in this section, without following the procedures of Article 5 (9VAC25-875-1070 et seq.) of this part. Any individual permit modification not processed as a minor modification under this section must be made for cause and with draft permit and public notice. Minor modifications may only:

1. Correct typographical errors;

2. Require more frequent monitoring or reporting by the permittee;

3. Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing individual permit and does not interfere with attainment of the final compliance date requirement;

4. Allow for a change in ownership or operational control of a facility where the department determines that no other change in the individual permit is necessary, provided that a written agreement containing a specific date for transfer of individual permit responsibility, coverage, and liability between the current and new individual permittees has been submitted to the department;

5. a. Change the construction schedule for a discharger that is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge; or

b. Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits; or

6. Require electronic reporting requirements (to replace paper reporting requirements) including those specified in 40 CFR Part 3 and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1250 Termination of permits

A. The following are causes for terminating a permit during the permit's term or for denying an individual permit or coverage under a general permit renewal application after notice and opportunity for a hearing by the department.

1. The permittee has violated any regulation of the board or order of the department, any order of the VESMP authority, any provision of the State Water Control Law or this chapter, or any order of a court, where such violation results in the unreasonable degradation of properties, water quality, stream channels, and other natural resources, or the violation is representative of a pattern of serious or repeated violations that in the opinion of the department, demonstrates the permittee's disregard for or inability to comply with applicable laws, regulations, permit conditions, orders, rules, or requirements;

2. Noncompliance by the permittee with any condition of the permit;

3. The permittee's failure to disclose fully all relevant material facts, or the permittee's misrepresentation of any relevant material facts in applying for a permit or in any other report or document required under the State Water Control Law or this chapter;

4. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination;

5. A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge controlled by the permit;

6. The activity for which the permit was issued causes unreasonable degradation of properties, water quality, stream channels, and other natural resources; or

7. There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge or land-disturbing activity controlled by the permit necessary to prevent unreasonable degradation of properties, water quality, stream channels, and other natural resources.

B. The department shall follow the applicable procedures in this chapter in terminating any permit under this section, except that if the entire discharge is permanently terminated by elimination of the flow or by connection to a POTW or a PVOTW (but not by land application or disposal into a well), the department may terminate the permit by notice to the permittee. Termination by notice shall be effective 30 days after notice is sent, unless the permittee objects within that time. If the permittee objects during that period, the department shall follow the applicable procedures for termination under 9VAC25-875-1210 D. Expedited permit termination procedures are not available to permittees that are subject to pending state or federal enforcement actions, including citizen suits brought under state or federal law. If requesting expedited permit termination procedures, a permittee must certify that it is not subject to any pending state or federal enforcement actions, including citizen suits brought under state or federal law.

C. Permittees that wish to terminate their permit must submit a notice of termination (NOT) to the department. If requesting expedited permit termination procedures, a permittee must certify in the NOT that it is not subject to any pending state or federal enforcement actions, including citizen suits brought under state or federal law. As of the start date in Table 1 of 9VAC25-31-1020, all NOTs submitted in compliance with this subsection shall be submitted electronically by the permittee to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, the permittee may be required to report electronically if specified by a particular permit.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 7 Enforcement of Permits

9VAC25-875-1260 Enforcement

A. The department may enforce the provisions of this chapter by:

1. Issuing directives in accordance with the State Water Control Law;

2. Issuing special orders in accordance with the State Water Control Law;

3. Issuing emergency special orders in accordance with the State Water Control Law;

4. Seeking injunction, mandamus, or other appropriate remedy as authorized by the State Water Control Law;

5. Seeking civil penalties under the State Water Control Law; or

6. Seeking remedies under the State Water Control Law or the CWA or under other laws, including the common law.

B. The department encourages citizen participation in all its activities, including enforcement. In particular:

1. The department will investigate citizen complaints and provide written response to all signed, written complaints from citizens concerning matters within the department's purview;

2. The department will not oppose intervention in any civil enforcement action when such intervention is authorized by statute or Supreme Court rule; and

3. At least 30 days prior to the final settlement of any civil enforcement action or the issuance of any consent special order, the department will publish public notice of such settlement or order in a newspaper of general circulation in the county, city, or town in which the discharge is located, and in the Virginia Register of Regulations. This notice will identify the owner, specify the enforcement action to be taken, and specify where a copy of the settlement or order can be obtained. A consent special order is a special order issued without a public hearing and with the written consent of the affected owner. For the purpose of this chapter, an emergency special order is not a consent special order. The department shall consider all comments received during the comment period before taking final action.

C. When a permit is amended solely to reflect a new owner, and the previous owner had been issued a consent special order that, at the time of permit amendment was still in full force and effect, a consent special order issued to the new owner does not have to go to public notice provided that:

1. The permit amendment does not have to go to public notice; and

2. The terms of the new consent order are the same as issued to the previous owner.

D. Notwithstanding subdivision B 3 of this subsection, a special order may be issued by agreement without further notice when a hearing has been scheduled to issue a special order to the affected owner, whether or not the hearing is actually held.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Article 8 Miscellaneous

9VAC25-875-1270 Transition

Upon the effective date of this chapter the following will occur:

1. All applications received after the effective date of this chapter will be processed in accordance with these procedures.

2. Permits issued by the Soil and Water Conservation Board allowing the discharge of stormwater into surface waters from municipal separate storm sewer systems or land-disturbing activities that have not expired or been revoked or terminated before or on the program transfer date to the department shall continue to remain in effect until their specified expiration dates.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1280 Operators shall comply with the electronic reporting requirements set forth in Part XI of 9VAC25-31

Operators shall comply with the electronic reporting requirements set forth in Part XI of 9VAC25-31.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

Part VIII Fees

9VAC25-875-1290 Purpose

Sections 62.1-44.15:28 and 62.1-44.15:31 of the Code of Virginia authorize the establishment of a statewide fee schedule, including administrative charges for state agencies, for stormwater management for land-disturbing activities, and for municipal separate storm sewer systems. This part establishes the fee assessment and the collection and distribution systems for those fees. The fees shall be established for individual permits or coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities (permits for stormwater management for land-disturbing activities) to cover all costs associated with the implementation of a VESMP by a VESMP authority that has been approved by the department. Such fee attributes include the costs associated with plan review, registration statement review, permit issuance, state-coverage verification, inspections, reporting, database management, and compliance activities associated with the land-disturbing activities as well as for program oversight costs. Fees shall also be established for permit maintenance, modification, and transfer.

Fees collected pursuant to this part shall be in addition to any general fund appropriations made to the department or other supporting revenue from a VESMP; however, the fees shall be set at a level sufficient for the department and the VESMP authority to fully carry out their responsibilities under the VESMA, this chapter, local ordinances, or standards and specifications where applicable.

When establishing a VESMP, the VESMP authority shall assess the statewide fee schedule and shall have the authority to reduce or increase such fees, and to consolidate such fees with other program-related charges, but in no case shall such fee changes affect the amount established in 9VAC25-875-1400 as available to the department for program oversight responsibilities pursuant to § 62.1-44.15:28 A 9 of the Code of Virginia. Accordingly, should a VESMP authority demonstrate to the department its ability to fully and successfully implement a VESMP without a full implementation of the fees set out in this part, the department may authorize the administrative establishment of a lower fee for that program provided that such reduction shall not reduce the amount of fees due to the department for its program oversight and shall not affect the fee schedules set forth in this part.

A VESMP authority may establish greater fees than those base fees specified by this part should it be demonstrated to the department that such greater fees are necessary to properly administer the VESMP. Any fee increases established by the VESMP authority beyond those base fees established in this part shall not be subject to the fee distribution formula set out in 9VAC25-875-1360. Nothing in this part shall prohibit a locality from establishing other local fees authorized by the Code of Virginia related to stormwater management within their jurisdictions.

A VESMP's portion of the fees shall be used solely to carry out the VESMP's responsibilities under the VESMA, this chapter, ordinances, or standards and specifications.

As part of its program oversight, the department shall periodically assess the revenue generated by both the VESMP authorities and the department to ensure that the fees have been appropriately set and the fees may be adjusted through periodic regulatory actions should significant deviations become apparent.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1300 Authority

The authority for this part is §§ 62.1-44.15:28 and 62.1-44.15:31 of the Code of Virginia.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1310 Applicability

A. This part applies to:

1. All persons seeking coverage of a MS4 under a new permit. The fee due shall be as specified under 9VAC25-875-1380.

2. All operators who request that an existing MS4 individual permit be modified, except as specifically exempt under 9VAC25-875-1320. The fee due shall be as specified under 9VAC25-875-1390.

3. All persons seeking coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities or a person seeking an Individual VPDES Permit for Discharges of Stormwater from Construction Activities. The fee due shall be as specified under 9VAC25-875-1400.

4. All permittees who request modifications to or transfers of their existing registration statement for coverage under a General VPDES Permit for Discharges of Stormwater from Construction Activities or of an Individual VPDES Permit for Discharges of Stormwater from Construction Activities. The fee due shall be as specified under 9VAC25-875-1410 in addition to any additional fees necessary pursuant to 9VAC25-875-1400 due to an increase in acreage.

5. Reinspection fees assessed by the department to recoup the costs associated with each visit to a land-disturbing project site that was necessary to check on the status of project site items noted to be in noncompliance and documented as such on a prior project inspection. The fee due shall be as specified under 9VAC25-875-1370.

6. Business transaction costs assessed associated with processing credit card payments.

B. Persons who are applicants for an individual municipal separate stormwater sewer system permit as a result of existing permit revocation shall be considered an applicant for a new permit. The fee due shall be as specified under 9VAC25-875-1380.

Persons whose coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities has been revoked shall reapply for an Individual VPDES Permit for Discharges of Stormwater from Construction Activities. The fee due shall be as specified under 9VAC25-875-1400.

C. Permit maintenance fees may apply to each permit holder. The fee due shall be as specified under 9VAC25-875-1420.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1320 Exemptions

A. No permit application fees will be assessed to:

1. Permittees who request minor modifications to permits as defined in 9VAC25-875-20 or other minor amendments at the discretion of the VESMP authority.

2. Permittees whose permits are modified or amended at the request of the VESMP authority or department. This does not include errors in the registration statement identified by the VESMP authority or department or errors related to the acreage of the site.

B. Permit modifications at the request of the permittee resulting in changes to stormwater management or ESM plans that require additional review by the VESMP authority shall not be exempt pursuant to this section and shall be subject to fees specified under 9VAC25-875-1410.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1330 Due dates for permits

A. Requests for a permit, permit modification, or general permit coverage shall not be processed until the fees required pursuant to this part are paid in accordance with 9VAC25-875-1340.

B. Individual permit or general permit coverage maintenance fees shall be paid annually to the department or the VESMP authority, as applicable. No permit will be reissued or automatically continued without payment of the required fee. Individual permit or general permit coverage maintenance fees shall be applied until a notice of termination is effective.

Permit maintenance fees for MS4 individual permits or MS4 general permit coverages are due by October 1 of each year. Effective April 1, 2014, any operator whose permit or general permit coverage, including operators whose permits or general permit coverages have been administratively continued, is effective as of April 1 of any given year shall pay the permit maintenance fee or fees to the department or the VESMP authority by October 1 of that same year.

Permit maintenance fees for discharges of stormwater from construction activities pursuant to 9VAC25-875-1420 are due by April 1 of each year. After approval of a VESMP authority, including the department when acting in that capacity, any owner whose permit or general permit coverage authorizing discharges of stormwater from construction activities, including owners whose permits or general permit coverages have been administratively continued, is effective as of the effective date of the VESMP authority shall pay the permit maintenance fee or fees to the department or the VESMP authority by April 1 of that same year.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1340 Method of payment

A. Fees shall be collected utilizing, where practicable, an online payment system. Until such system is operational, fees, as applicable, shall be, at the discretion of the department, submitted electronically or be paid by check, draft, or postal money order payable to:

1. The Treasurer of Virginia for a MS4 individual or general permit or for a coverage issued by the department under the General VPDES Permit for Discharges of Stormwater from Construction Activities or Individual VPDES Permit for Discharges of Stormwater from Construction Activities and must be in United States currency, except that agencies and institutions of the Commonwealth of Virginia may submit interagency transfers for the amount of the fee. The department may provide a means to pay fees electronically. Fees not submitted electronically shall be sent to the Virginia Department of Environmental Quality.

2. The VESMP authority, for VESMP operational costs of the VESMP authority under the General VPDES Permit for Discharges of Stormwater from Construction Activities, and must be in United States currency.

B. When fees are collected electronically pursuant to this part through credit cards, business transaction costs associated with processing such payments may be additionally assessed.

C. Nothing in this part shall prohibit the department and a VESMP authority from entering into an agreement whereby the total fee to be paid by the applicant for coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities is payable to the VESMP authority, and the VESMP authority transmits the department's portion set forth in 9VAC25-875-1400 to the department on a schedule established by the department.

D. Required information for permits or permit coverage. All applicants, unless otherwise specified by the department, shall submit the following information along with the fee payment or utilize the department Permit Application Fee Form:

1. Applicant name, address, and daytime telephone number.

2. The name of the facility or activity and the facility or activity location.

3. The type of permit applied for.

4. Whether the application is for a new permit issuance, permit reissuance, permit maintenance, or permit modification.

5. The amount of fee submitted.

6. The existing permit number, if applicable.

7. Other information as required by the VESMP authority.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1350 Incomplete and late payments

All incomplete payments will be deemed as nonpayments. The department or the VESMP authority, as applicable, shall provide notification to the applicant of any incomplete payments.

Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate.

A 10% late payment fee shall be charged to any delinquent (over 90 days past due) account.

The department and the VESMP authority are entitled to all remedies available under the Code of Virginia in collecting any past due amount.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1360 Deposit and use of fees

A. All fees collected by the department pursuant to this chapter shall be deposited into the Virginia Stormwater Management Fund and shall be used and accounted for as specified in § 62.1-44.15:29 of the Code of Virginia. Fees collected by the department shall be exempt from statewide indirect costs charged and collected by the Department of Accounts.

B. All fees collected by a VESMP authority pursuant to this chapter shall be subject to accounting review and shall be used solely to carry out the VESMP authority's responsibilities pursuant to the VESMA, Article 3 (9VAC25-875-100 et seq.) of Part II (9VAC25-875-40 et seq.) and Part V (9VAC25-875-470 et seq.) of this chapter, local ordinances, or standards and specifications.

Pursuant to subdivision A 9 of § 62.1-44.15:28 of the Code of Virginia, whenever the department has authorized the administration of a VESMP by a VESMP authority, 30% of the total revenue generated by the statewide stormwater management fees collected in accordance with 9VAC25-875-1400 shall be remitted on a schedule determined by the department to the State Treasurer for deposit in the Virginia Stormwater Management Fund unless otherwise collected electronically. If the VESMP authority waives or reduces any fee due in accordance with 9VAC25-875-1400, the VESMP authority shall remit the 30% portion that would be due to the Virginia Stormwater Management Fund if such fee were charged in full. Any fee increases established by the VESMP authority beyond the base fees established in this part shall not be subject to the fee distribution formula.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 42, Issue 12, eff. July 1, 2026.

9VAC25-875-1370 General

The fees for individual permits, general permit coverage, permit or registration statement modification, or permit transfers are considered separate actions and shall be assessed a separate fee, as applicable.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.

9VAC25-875-1375 Fee calculation

A. Fees set forth in sections 9VAC25-875-1380, 9VAC25-875-1400, and 9VAC25-875-1420 shall be adjusted annually by the change in the Consumer Price Index (CPI). The Consumer Price Index, as used for this adjustment, refers to the average Consumer Price Index for all-urban consumers for the 12-month period ending on June 30 of the calendar year preceding the year the fee is due. The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0. The department shall calculate the adjusted fees using the CPI by January 1 each year and the adjusted fees shall be effective beginning July 1 of the same year.

B. The permit fee due shall be calculated according to the following formulas:

Where:

F = the permit fee due (in $).

B = the base fee rate for the type of MS4 or Construction General Permit.

C = the Consumer Price Index adjustment factor.

ΔCPI = the difference between CPI and 309.57, expressed as a proportion of 309.57 (the reference base is 1982-84 = 100; 309.57 is the unadjusted 12-month average CPI for all urban consumers for July 2023 through June 2024).

CPI = the average of the Consumer Price Index for all-urban consumers (CUUR0000SA0) for the 12-month period ending on June 30 of the calendar year preceding the year the fee is due.

For example, if calculating the hypothetical 2027 permit fee (F) for a General / Stormwater Management – Large Construction Activity/Land Clearing permit (> 5 acres < 10 acres):

CPI = 317.67 (hypothetical CPI for the 12-month period ending on June 30, 2026, which would be used for the 2027 permit fee calculation).

ΔCPI = 0.03 for the 2027 permit fee calculation (i.e., (317.67 – 309.57) / 309.57 = (8.10) / 309.57 = 0.03).

C = 1.03 for the 2027 permit fee calculation (i.e., 1 + 0.03 = 1.03).

B = $5,100 (i.e. the fee for a General / Stormwater Management – Large Construction Activity/Land Clearing permit (> 5 acres < 10 acres), taken from subsection A of 9VAC25-875-1400).

F = $5,253 for the hypothetical 2027 permit fee calculation for this General / Stormwater Management – Large Construction Activity/Land Clearing permit (i.e., $5,100 x 1.03 = $5,253.00).

C. Permit fees (F) calculated for each facility or permitted land-disturbing activity shall be rounded to the nearest dollar.

D. The total amount of permit fees collected by the department (permit application fees plus permit maintenance fees) shall not exceed 62% of direct costs for administration, compliance, and enforcement of MS4 permits and VPDES Permits for Discharges of Stormwater from Construction Activities. The director shall take whatever action is necessary to ensure that this limit is not exceeded.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 42, Issue 12, eff. July 1, 2026.

9VAC25-875-1380 Fee schedules for municipal separate storm sewer system new permit issuance

A. The following fee schedule applies to permit applications for issuance of a new individual municipal separate storm sewer system permit or coverage under a MS4 General Permit. All regulated MS4s that apply for joint coverage under an individual permit or general permit registration shall each pay the appropriate fees set out in the following table.

| Municipal Stormwater / MS4 Individual (Large and Medium) | $25,000 | | --- | --- | | Municipal Stormwater / MS4 Individual (Small) | $13,000 | | Municipal Stormwater / MS4 General Permit (Small) | $6,500 |

B. The amount of the permit fee due for a MS4 permit for a specified year as required by subsection A of this section shall be calculated according to the formulas in 9VAC25-875-1375 B.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 42, Issue 12, eff. July 1, 2026.

9VAC25-875-1390 Fee schedules for major modification of MS4 individual permits requested by the operator

The following fee schedule applies to applications for major modification of an individual MS4 permit requested by the permittee:

| Municipal Stormwater / MS4 Individual (Large and Medium) | $8,000 | | --- | --- | | Municipal Stormwater / MS4 Individual (Small) | $4,000 |

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 42, Issue 12, eff. July 1, 2026.

9VAC25-875-1400 Fees for individual permit or coverage under the General Permit for Discharges of Stormwater from Construction Activities

A. The following total fees to be paid by an applicant apply to any operator seeking coverage under a General VPDES Permit for Discharges of Stormwater from Construction Activities or a state agency or federal entity that does not file standards and specifications or an individual permit issued by the department. On and after approval by the department or a VESMP authority for coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities, no more than 50% of the total fee to be paid by an applicant set out in this part shall be due at the time that a stormwater management plan or an initial stormwater management plan is submitted for review in accordance with 9VAC25-875-530. The remaining total fee balance to be paid by an applicant shall be due prior to the issuance of coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities.

When a site is purchased for development within a previously permitted common plan of development or sale, the applicant shall be subject to fees ("total fee to be paid by applicant" column) in accordance with the disturbed acreage of the applicant's site according to the following table.

| Fee type | Total fee to be paid by applicant (includes both VESMP authority and department portions where applicable) | Department portion of "total fee to be paid by applicant" (based on 30% of total fee paid*) | | --- | --- | --- | | Land-Disturbing Activity in a Chesapeake Bay Preservation Area (not subject to General Permit coverage; sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 2,500 square feet and less than one acre) | $290 | $0 | | General / Stormwater Management - Small Construction Activity/Land-Disturbing Activity in a Chesapeake Bay Preservation Area (not subject to General Permit coverage)/Land Clearing (Single-family detached residential structures within or outside a common plan of development or sale with land-disturbance acreage less than five acres) | $209 | $0 | | General / Stormwater Management - Small Construction Activity/Land Clearing (Areas within common plans of development or sale with land-disturbance acreage less than one acre, except for single-family detached residential structures) | $450 | $135 | | General / Stormwater Management - Small Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than one acre and less than five acres) | $4,100 | $1,230 | | General / Stormwater Management - Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than five acres and less than 10 acres) | $5,100 | $1,530 | | General / Stormwater Management - Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 10 acres and less than 50 acres) | $6,800 | $2,040 | | General / Stormwater Management - Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 50 acres and less than 100 acres) | $9,100 | $2,730 | | General / Stormwater Management - Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 100 acres) | $14,300 | $4,290 | | Individual VPDES Permit for Discharges of Stormwater from Construction Activities (This will be administered by the department) | $24,000 | $24,000 | | * If the project is completely administered by the department such as may be the case where the department is the VSMP authority, the VESMP authority for a state or federal project, or projects covered by individual permits, the entire applicant fee shall be paid to the department. | | |

The following fees apply to coverage under the General VPDES Permit for Discharges of Stormwater from Construction Activities issued by the department for a state agency or federal entity that has standards and specifications approved by the department.

| General / Stormwater Management - Phase I Land Clearing (Large Construction Activity - Sites or common plans of development equal to or greater than five acres) | $1,200 | | --- | --- | | General / Stormwater Management - Phase II Land Clearing (Small Construction Activity - Sites or common plans of development equal to or greater than one acre and less than five acres) | $700 |

B. The amount of the permit fee due for a General VPDES Permit for Discharges of Stormwater from Construction Activities for a specified year as required by subsection A of this section shall be calculated according to the formulas in 9VAC25-875-1375 B.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 42, Issue 12, eff. July 1, 2026.

9VAC25-875-1410 Fees for the modification or transfer of individual permits or of registration statements for the General VPDES Permit for Discharges of Stormwater from Construction Activities

The following fees apply to modification or transfer of individual permits or of registration statements for the General VPDES Permit for Discharges of Stormwater from Construction Activities issued by the department. If the permit modifications result in changes to stormwater management plans that require additional review by the VESMP authority or the department as the VSMP or VESMP authority, such reviews shall be subject to the fees set out in this section. The fee assessed shall be based on the total disturbed acreage of the site. In addition to the permit modification fee, modifications resulting in an increase in total disturbed acreage shall pay the difference in the initial permit fee paid and the permit fee that would have applied for the total disturbed acreage in 9VAC25-875-1400. No modification or transfer fee shall be required until such department-approved programs exist. These fees shall only be effective when assessed by a VESMP authority or the department as the VSMP or VESMP authority. No modification fee shall be required for the General VPDES Permit for Discharges of Stormwater from Construction Activities for a state agency or federal entity that is administering a project in accordance with approved standards and specifications but shall apply to all other state or federal agency projects.

| General / Stormwater Management – Small Construction Activity/Land Clearing (Areas within common plans of development or sale with land-disturbance acreage less than one acre, except for single-family detached residential structures) | $30 | | --- | --- | | General / Stormwater Management – Small Construction Activity/Land-Disturbing Activity in a Chesapeake Bay Preservation Area (not subject to General Permit coverage)/Land Clearing (Single-family detached residential structures within or outside a common plan of development or sale with land-disturbance acreage less than five acres where the locality is the VESMP authority) | $20 | | General / Stormwater Management – Small Construction Activity/Land Clearing (Single-family detached residential structures within or outside a common plan of development or sale with land-disturbance acreage less than five acres where the department is the VSMP authority) | $0 | | General / Stormwater Management – Small Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than one and less than five acres) | $320 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than five acres and less than 10 acres) | $400 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 10 acres and less than 50 acres) | $480 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 50 acres and less than 100 acres) | $720 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 100 acres) | $1,120 | | Individual VPDES Permit for Discharges of Stormwater from Construction Activities | $8,000 |

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 42, Issue 12, eff. July 1, 2026.

9VAC25-875-1420 Permit maintenance fees

A. The following annual permit maintenance fees apply to each permit identified below, including expired permits that have been administratively continued. With respect to the General VPDES Permit for Discharges of Stormwater from Construction Activities, these fees shall apply until the permit coverage is terminated and shall only be effective when assessed by a VESMP authority or the department as the VSMP or VESMP authority. No maintenance fee shall be required for the General VPDES Permit for Discharges of Stormwater from Construction Activities for a state agency or federal entity that is administering a project in accordance with approved standards and specifications but shall apply to all other state or federal agency projects. All regulated MS4s that are issued joint coverage under an individual permit or general permit registration shall each pay the appropriate fees set out in the following table:

| Municipal Stormwater / MS4 Individual (Large and Medium) | $14,100 | | --- | --- | | Municipal Stormwater / MS4 Individual (Small) | $9,600 | | Municipal Stormwater / MS4 General Permit (Small) | $4,800 | | Land-Disturbing Activity in a Chesapeake Bay Preservation Area (not subject to General Permit coverage; sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 2,500 square feet and less than one acre) | $80 | | General / Stormwater Management – Small Construction Activity/Land Clearing (Areas within common plans of development or sale with land-disturbance acreage less than one acre, except for single-family detached residential structures) | $80 | | General / Stormwater Management – Small Construction Activity/Land-Disturbing Activity in a Chesapeake Bay Preservation Area (not subject to General Permit coverage)/Land Clearing (Single-family detached residential structures within or outside a common plan of development or sale with land-disturbance acreage less than five acres where the locality is the VESMP authority) | $80 | | General / Stormwater Management – Small Construction Activity/Land Clearing (Single-family detached residential structures within or outside a common plan of development or sale with land-disturbance acreage less than five acres where the department is the VSMP authority) | $0 | | General / Stormwater Management – Small Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance equal to or greater than one acre and less than five acres) | $650 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than five acres and less than 10 acres) | $800 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 10 acres and less than 50 acres) | $1,050 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater than 50 acres and less than 100 acres) | $1450 | | General / Stormwater Management – Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land-disturbance acreage equal to or greater 100 acres) | $2,250 | | Individual VPDES Permit for Discharges from Construction Activities | $4,800 |

B. The amount of the annual permit maintenance fee due for a MS4 permit or permit for discharges of stormwater from construction activities for a specified year as required by subsection A of this section shall be calculated according to the formulas in 9VAC25-875-1375 B.

History

• Statutory Authority: § 62.1-44.15:28 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024; amended, Virginia Register Volume 42, Issue 12, eff. July 1, 2026.

Chapter 900 Certification of Nonpoint Source Nutrient Credits

Part I Definitions

9VAC25-900-10 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"300 animal units" means the term as defined in 9VAC25-192-10.

"Act" means the Chesapeake Bay Watershed Nutrient Credit Exchange Program, Article 4.02 (§ 62.1-44.19:12 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Animal feeding operation" means the term as defined by 9VAC25-31-10.

"Applicant" means the person who submits an application to the department for nutrient credit certification pursuant to this chapter.

"Bankfull event" means the storm event that corresponds with the stream stage at its incipient point of flooding. The bankfull discharge associated with the bankfull event is the flow that transports the majority of a stream's sediment load over time and thereby forms and maintains the channel dimension, pattern, and profile.

"Baseline" means the practices, actions, or levels of reductions that must be in place before credits can be generated. The best management practices to be implemented for achieving baseline are provided in 9VAC25-900-100.

"Best management practice," "practice," or "BMP" means a structural practice, nonstructural practice, or other management practice used to prevent or reduce nutrient loads reaching surface waters or the adverse effects thereof.

"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "Board" means the Department of Environmental Quality.

"Certification of nutrient credits" or "nutrient credit certification" means the approval of nutrient credits issued by the department as specified in 9VAC25-900-80. Nutrient credit certification does not include the certification of point source credits generated by point sources regulated under the Watershed General Virginia Pollutant Discharge Elimination System Permit issued pursuant to § 62.1-44.19:14 of the State Water Control Law.

"Chesapeake Bay Watershed" means the land areas draining to the following Virginia river basins: the Potomac River Basin, the James River Basin, the Rappahannock River Basin, the Chesapeake Bay and small coastal basins, or the York River Basin.

"Concentrated animal feeding operation" means the term as defined by 9VAC25-31-10.

"Cropland" means land that is used for the production of grain, oilseeds, silage or industrial crops not defined as hay or pasture.

"DCR" means the Department of Conservation and Recreation.

"Delivery factor" means the estimated percentage of a total nitrogen or total phosphorus load delivered to tidal waters as determined by the specific geographic location of the nutrient source. For point source discharges the delivery factor accounts for attenuation that occurs during riverine transport between the point of discharge and tidal waters. For nonpoint source loads the delivery factor accounts for attenuation that occurs during riverine transport as well as attenuation between the nutrient source and the edge of the nearest stream. Delivery factors values shall be as specified by the department. In the Chesapeake Bay Watershed, the Chesapeake Bay Program Partnership's approved delivery factors shall be used.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or his designee.

"Exchange" means the transaction in which a person acquires released nutrient credits produced by a nutrient credit-generating project.

"Field office technical guide" or "FOTG" means technical guides about conservation of soil, water, air, and related plant and animal resources and are the primary scientific reference for the U.S. Department of Agriculture's Natural Resource Conservation Service. These guides are used in each field office and are localized so that they apply specifically to the geographic area for which they are prepared.

"Hayland" means land that is used to grow a grass, legume, or other plants such as clover or alfalfa, which is cut and dried for feed.

"Highly erodible soils" means land that is defined as highly erodible by the Sodbuster, Conservation Reserve, and Conservation Compliance parts of the Food Security Act of 1985 (P.L. 99-198) and the Food, Agriculture, Conservation, and Trade Act of 1990 (P.L. 101-624). Lists of highly erodible and potential highly erodible map units are maintained in NRCS field office technical guide.

"HUC" means the hydrologic unit code.

"Impaired waters" means those waters identified as impaired in the 305(b)/303(d) Water Quality Assessment Integrated Report prepared pursuant to § 62.1-44.19:5 of the State Water Control Law.

"Implementation plan" means a plan that has been developed to meet the requirements of 9VAC25-900-120 and is submitted as part of the application.

"Invasive plant species" means non-native plant species that are contained on DCR's Virginia Invasive Plant Species List.

"Innovative practice" means practices or BMPs not approved by the Chesapeake Bay Program Partnership or the Virginia Stormwater BMP Clearinghouse. Nutrient credits generated by innovative practices may only be certified as term credits.

"Landowner" means any person or group of persons acting individually or as a group that owns the parcel on which a nutrient credit-generating project is sited including: (i) the Commonwealth or any of its political subdivisions, including localities, commissions, and authorities; (ii) any public or private institution, corporation, association, firm, or company organized or existing under the laws of this or any other state or country; or (iii) any officer or agency of the United States.

"Land use controls" means legal measures or instruments that restrict the activity, use, and access to property.

"Land use conversion" means a change from a more intensive to less intensive land use resulting in nutrient reductions.

"Management area" means all contiguous parcels deeded to the same landowner that includes the site of the nutrient credit-generating project within its boundaries. The term contiguous means the same or adjacent parcels that may be divided by public or private right-of-way. For a public entity that owns or operates an MS4 and generates credits within the MS4 service area, the management area is the MS4 service area.

"Mitigation" means sequentially avoiding and minimizing impacts to the maximum extent practicable and then compensating for remaining unavoidable impacts of a proposed action.

"Mitigation bank" means a site providing off-site, consolidated compensatory mitigation that is developed and approved in accordance with all applicable federal and state laws or regulations for the establishment, use and operation of mitigation banks and is operating under a signed mitigation banking instrument.

"Mitigation banking instrument" means the legal document for the establishment, operation, and use of a stream or wetland mitigation bank.

"MS4" means a municipal separate storm sewer system as defined in 9VAC25-875-20.

"MS4 service area" means (i) for Phase I MS4 permittees, the service area delineated in accordance with the permit issued pursuant to 9VAC25-875-950 A; and (ii) for Phase II MS4 permittees, the term as described in 9VAC25-890.

"Non-land use conversion" means practices, except for land use conversion, that are used by a nutrient credit-generating project to produce nutrient reductions.

"Nonpoint source pollution" or "nonpoint source" means pollution such as sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater runoff.

"NRCS" mean the U.S. Department of Agriculture's Natural Resource Conservation Service.

"Nutrient credit" or "credit" means a nonpoint source nutrient reduction that is certified pursuant to this chapter and expressed in pounds of phosphorus and nitrogen either (i) delivered to tidal waters when the credit is generated within the Chesapeake Bay Watershed or (ii) as otherwise specified when generated in the Southern Rivers watersheds. Nutrient credit does not include point source nitrogen credits or point source phosphorus credits as defined in § 62.1-44.19:13 of the Code of Virginia.

"Nutrient credit-generating entity" means an entity that implements practices for the generation of nonpoint source nutrient credits.

"Nutrient credit-generating project" or "project" means a project developed to reduce the load of nitrogen and phosphorous nonpoint source pollution in order to generate nutrient credits for certification pursuant to this chapter.

"Nutrient reductions" means the reduction in the load of nitrogen and phosphorous nonpoint source pollution.

"Owner" means the Commonwealth or any of its political subdivisions, including sanitation district commissions and authorities and any public or private institution, corporation, association, firm, or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any nutrient credit-generating project.

"Pasture" means land that supports the grazing of domesticated animals for forages.

"Performance standards" means the minimum objectives or specifications required of a particular management practice by the department in order to assure predicted nutrient reductions will be achieved.

"Perpetual nutrient credits" or "perpetual credits" mean credits that are generated by practices that result in permanent nutrient reductions from baseline and certified as permanent in accordance with this chapter.

"Person" means any individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, governmental body, including a federal, state, or local entity as applicable, any interstate body or any other legal entity.

"Potential nutrient credits" means the possible credits generated by a nutrient credit-generating project as calculated pursuant to 9VAC25-900-110. These potential nutrient credits shall be expressed in terms of the estimated number of phosphorus and nitrogen credits generated.

"Redevelopment" means a project that includes new development on previously developed land.

"Registry" means the online Virginia Nutrient Credit Registry established and maintained by the department in accordance with § 62.1-44.1.19:20 D of the Code of Virginia.

"Released nutrient credit" means credits that the department has determined to be eligible for placement on the Virginia Nutrient Credit Registry.

"Restoration" means the reestablishment of a wetland, stream, or other aquatic resource in an area where it previously existed. Wetland restoration means the reestablishment of wetland hydrology, soils, and vegetation in an area where a wetland previously existed. Stream restoration means the process of converting an unstable, altered, or degraded stream corridor, including adjacent areas and floodplains, to its natural conditions.

"Retrofit" means a project that provides improved nutrient reductions to previously developed land through the implementation of new BMPs or upgrades to existing BMPs.

"Site" means the physical location within the management area where the nutrient credit-generating project and its associated practices, both baseline and credit-generating, are located.

"Site protection instrument" means a deed restriction, conservation easement, or other legal mechanism approved by the department that provides assurance that the credits will be maintained in accordance with this chapter and the certification requirements.

"Southern Rivers watersheds" means the land areas draining to the following river basins: the Albemarle Sound, Coastal; the Atlantic Ocean, Coastal; the Big Sandy River Basin; the Chowan River Basin; the Clinch-Powell River Basin; the New Holston River Basin (Upper Tennessee); the New River Basin; the Roanoke River Basin; or the Yadkin River Basin.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Steward" or "long-term steward" means any person who is responsible for implementation of the long-term management plan of a perpetual nutrient credit-generating project.

"Structural BMPs" means any man-made stormwater control measure or feature that requires routine maintenance in order to function or provide the hydrologic, hydraulic, or water quality benefit as designed. Structural practices include bioretention, infiltration facilities, wet ponds, extended detention, wet and dry swales, permeable pavement, rainwater harvesting, vegetated roofs, underground or surface chambers or filters, and other manufactured treatment devices (MTDs).

"T" means the soil loss tolerance rate as defined by the NRCS.

"Term nutrient credit" or "term credit" means nutrient reduction activities that generate credits for a determined and finite period of at least one year but no greater than five years.

"Total maximum daily load" or "TMDL" means the sum of the individual wasteload allocations (WLAs) for point sources, load allocations (LAs) for nonpoint sources, natural background loading, and a margin of safety. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. The TMDL process provides for point versus nonpoint source trade-offs. TMDLs in Virginia are expressed as both a daily load and an annual load. For nutrient trading, annual loads are most often utilized.

"Tributary" means those river basins for which separate tributary strategies were prepared pursuant to § 2.2-218 of the Code of Virginia and includes the Potomac, Rappahannock, York, and James River basins, and the Eastern Coastal Basin, which encompasses the creeks and rivers of the Eastern Shore of Virginia that are west of Route 13 and drain into the Chesapeake Bay. For areas outside of the Chesapeake Bay Watershed, "tributary" includes the following watersheds: Albemarle Sound, Coastal; Atlantic Ocean, Coastal; Big Sandy; Chowan; Clinch-Powell; New Holston (Upper Tennessee); New River; Roanoke; and Yadkin.

"Urban lands" means lands characterized by developed areas with buildings, asphalt, concrete, suburban gardens, and a systematic street pattern. Classes of urban development include residential, commercial, industrial, institutional, transportation, communications, utilities, and mixed urban. Undeveloped land surrounded by developed areas, such as cemeteries, golf courses, and urban parks is recognized as urban lands.

"VACS BMP Manual" means the Virginia Agricultural Cost Share BMP Manual.

"VESMP authority" means a Virginia erosion and stormwater management program authority as defined in 9VAC25-875-20.

"Virginia Chesapeake Bay TMDL Watershed Implementation Plan," "Watershed Implementation Plan," or "WIP" means the Phase I watershed implementation plan strategy submitted by Virginia and approved by the U.S. Environmental Protection Agency (EPA) in December 2010 to meet the nutrient and sediment allocations prescribed in the Chesapeake Bay Watershed TMDL or any subsequent revision approved of EPA.

"Virginia Erosion and Stormwater Management Program" or "VESMP" means a program established by a VESMP authority for the effective control of soil erosion and sediment deposition and the management of the quality and quantity of runoff resulting from land-disturbing activities to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. The program shall include such items as local ordinances, rules, requirements for permits and land-disturbance approvals, policies and guidelines, technical materials, and requirements for plan review, inspection, and enforcement consistent with the requirements of the Virginia Erosion and Stormwater Management Act (§ 62.1-44.15:24 et seq. of the Code of Virginia).

"Virginia Pollutant Discharge Elimination System permit" or "VPDES permit" means a document issued by the department pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters and the use or disposal of sewage sludge.

"Virginia Stormwater Management Program" or "VSMP" means a program established by the department pursuant to § 62.1-44.15:27.1 of the Code of Virginia on behalf of a locality on or after July 1, 2014, to manage the quality and quantity of runoff resulting from any land-disturbing activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or more of land disturbance.

"Virginia Water Protection permit" or "VWP permit" means an individual or general permit issued by the department under § 62.1-44.15:20 of the Code of Virginia that authorizes activities otherwise unlawful under § 62.1-44.5 of the Code of Virginia or otherwise serves as Virginia's Section 401 certification.

"VPA" means Virginia Pollution Abatement.

"VPDES" means Virginia Pollutant Discharge Elimination System.

"VSMP authority" means a Virginia stormwater management program authority as defined in 9VAC25-875-20.

"VWP" means Virginia Water Protection.

"Water body with perennial flow" means a body of water that flows in a natural or man-made channel year-round during a year of normal precipitation as a result of groundwater discharge or surface runoff. Such water bodies exhibit the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Water Quality Guide" means Virginia's Forestry Best Management Practices for Water Quality.

"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022; Volume 41, Issue 1, eff. September 25, 2024.

Part II General Information

9VAC25-900-20 (Repealed.)

History

• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; repealed, Virginia Register Volume 38, Issue 26, eff. September 14, 2022.

9VAC25-900-30 Purpose and applicability

A. The purpose of this chapter is to establish standards and procedures pertaining to the certification of nutrient credits that will be placed on the registry for exchange.

B. This chapter applies to all persons who submit an application for and to all persons that receive a certification of nutrient credits from the department in accordance with the Act and this chapter.

C. Nutrient credits from stormwater nonpoint nutrient credit-generating projects in receipt of a Nonpoint Nutrient Offset Authorization for Transfer letter from the department prior to September 1, 2020, shall be considered certified nutrient credits and shall not be subject to further nutrient credit certification requirements or to the credit retirement requirements of this chapter. However, such projects shall be subject to all other provisions of this chapter, including registration of nutrient credits under 9VAC25-900-90 and the requirements of Part IV (9VAC25-900-140 et seq.) of this chapter including inspection, reporting, and enforcement.

D. This chapter does not apply to the certification of point source nutrient credits that may be generated from effective nutrient controls or removal practices associated with the types of facilities or practices historically regulated by the board or department, such as water withdrawal and treatment and wastewater collection, treatment, and beneficial reuse.

E. This chapter does not apply to stream or wetland restoration projects constructed prior to July 1, 2005, as no usable nutrient reductions are deemed to be generated from these projects and, therefore, no nutrient credits can be certified.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; Errata, 36:25 VA.R. 2379 August 3, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022.

9VAC25-900-40 Relationship to other laws and regulations

A. Specific requirements regarding the use of nutrient credits are found in the following regulations and statutes:

1. Virginia Erosion and Stormwater Management Regulation ( 9VAC25-875).

a. Individual VPDES Permits for Discharges from Construction Activities. As specified in § 62.1-44.19:21 B of the Act, those applicants required to comply with water quality requirements for land-disturbing activities operating under a construction individual permit issued pursuant to 9VAC25-875 may acquire and use perpetual nutrient credits placed on the registry for exchange.

b. Individual Permits for Municipal Separate Storm Sewer Systems. As specified in § 62.1-44.19:21 A of the Act, an MS4 permittee may acquire, use, and transfer nutrient credits for purposes of compliance with any wasteload allocations established as effluent limitations in an MS4 individual permit issued pursuant to 9VAC25-875. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits and is in accordance with the provisions of § 62.1-44.19:21 A.

2. General VPDES Permit for Discharges of Stormwater from Construction Activities (9VAC25-880). As specified in § 62.1-44.19:21 B of the Act, those applicants required to comply with water quality requirements for land-disturbing activities operating under a general VPDES permit for discharges of stormwater from construction activities issued pursuant to 9VAC50-880 may acquire and use perpetual nutrient credits placed on the registry for exchange.

3. General VPDES Permit for Discharges of Stormwater from Small Municipal Separate Storm Sewer Systems (9VAC25-890). As specified in § 62.1-44.19:21 A of the Act, an MS4 permittee may acquire, use, and transfer nutrient credits for purposes of compliance with any wasteload allocations established as effluent limitations in an MS4 general permit issued pursuant to 9VAC25-890. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits and is in accordance with the provisions of § 62.1-44.19:21 A.

4. Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). As specified in § 62.1-44.19:21 C of the Act, owners of confined or concentrated animal feeding operations issued individual permits pursuant to 9VAC25-31 may acquire, use, and transfer credits for compliance with any wasteload allocations contained in the provisions of a VPDES permit. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits.

5. Virginia Pollutant Discharge Elimination System (VPDES) Permits for Discharges of Storm Water Associated with Industrial Activity. As specified in § 62.1-44.19:21 D of the Act, owners of facilities registered for coverage under 9VAC25-151 for the general VPDES permit or issued a VPDES permit regulating stormwater discharges that requires nitrogen and phosphorus monitoring at the facility may acquire, use, and transfer credits for compliance with any wasteload allocations established as effluent limitations in a VPDES permit. Such method of compliance may be approved by the department following review of a compliance plan submitted by the permittee that includes the use of nutrient credits.

6. General Virginia Pollutant Discharge Elimination System (VPDES) Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia (9VAC25-820). Nutrient credits certified pursuant to this chapter may be acquired to offset mass loads of total nitrogen or total phosphorus discharged by new or expanded facilities regulated by 9VAC25-820.

B. This chapter shall not be construed to limit or otherwise affect the authority of the department to establish and the department to enforce more stringent water quality-based effluent limitations for total nitrogen or total phosphorus in permits where those limitations are necessary to protect local water quality. The exchange or acquisition of credits pursuant to this chapter shall not affect any requirement to comply with such local water quality-based limitations .

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 1, eff. September 29, 2021; Volume 38, Issue 26, eff. September 14, 2022; Errata, 39:2 VA.R. 53 September 12, 2022; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-50 Appeal process

Any person applying to establish a nutrient credit-generating entity or an owner of a nutrient credit-generating entity aggrieved by any action of the department taken in accordance with this chapter, or by inaction of the department, shall have the right to review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-60 Limitations, liability, and prohibitions

A. Except to the extent it may be an owner as defined by this chapter, none of the following shall have responsibility or liability for the performance of practices at a nutrient credit-generating project evaluated using the procedures established in this chapter: (i) the department, (ii) a VESMP authority, or (iii) any political subdivision of the Commonwealth.

B. Those persons with whom the department contracts, including those serving as technical evaluators on an advisory committee, are advisors to the department, and the department remains solely responsible for decisions made regarding implementation of this chapter.

C. For the purposes of this chapter, the certification of nutrient credits that are generated from practices funded in part or in whole by federal or state water quality grant funds is prohibited other than controls and practices under § 62.1-44.19:20 B 1 a of the Act; however, establishing baseline as specified in 9VAC25-900-100 may be achieved through the use of such grants.

D. The option to acquire nutrient credits for compliance purposes shall not eliminate any requirement to comply with local water quality requirements, including such requirements lawfully imposed by a locality or local MS4.

E. The issuance of a nutrient credit certification under this chapter does not convey any property rights of any sort or any exclusive privilege.

F. The issuance of a nutrient credit certification under this chapter does not authorize any injury to persons or property or invasion of other private rights, or any infringement of state or local law or regulations.

G. Nutrient credit certifications are not transferable except in accordance with 9VAC25-900-180. The department may require modification or revocation and reissuance of nutrient credit certifications to change the name of the owner of the nutrient credit-generating project and incorporate such other requirements as may be necessary under the State Water Control Law or the Clean Water Act.

H. No person shall offer for exchange nutrient credits except in compliance with the provisions of this chapter.

I. No nutrient credit shall be generated by practices previously implemented to comply with: (i) the requirements for a VPDES (9VAC25-31), VPA (9VAC25-32), VWP (9VAC25-210), or VPDES construction general permit (9VAC25-880); (ii) erosion and sedimentation control requirements pursuant to 9VAC25-875; or (iii) the requirements of the Chesapeake Bay Preservation Act pursuant to § 62.1-44.15:67-79 of the Code of Virginia.

J. Nutrient credit generation and use shall be contemporaneous with the applicable permit's compliance period.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-70 [Reserved]

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Reserved, Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

Part III Administrative and Technical Criteria

9VAC25-900-80 Procedure for application for certification of nutrient credits

A. An applicant requesting certification of nutrient credits shall submit an application to the department in accordance with this part. Applicants requesting a renewal of a certification of term nutrient credits shall submit an application to the department at least 60 days prior to the expiration of the nutrient credit term. If the renewal application is not received by the department at least 60 days prior to the expiration of the nutrient credit term, the application will be deemed a new application. The application or renewal application shall be in the form required by the department including signature in accordance with 9VAC25-900-130 and shall include the following elements:

1. A brief narrative description of the nutrient credit-generating project.

2. Contact information for the applicant including name, address, and telephone number.

3. Contact information for the nutrient credit-generating project, including the project's mailing address, street address, telephone number, and the contact person's name and email address.

4. Status of the applicant as owner, co-owner, operator, or lessee of the nutrient credit-generating project or the site on which the project is located. The applicant shall provide documentation of the applicant's right to exercise control of the nutrient credit-generating project and the site on which it is located for the purposes of generating and maintaining the proposed nutrient credit-generating project via a title, deed, grant, lease, or easement agreement. Evidence of such documentation must be recorded in the property chain of title and must identify contact information for the applicant or long-term steward for perpetual credits. If the applicant cannot demonstrate control, those parties who singularly or in conjunction with the applicant exercise control over the nutrient credit-generating project or the site on which it is located shall be required to jointly apply for nutrient credit certification with the applicant.

5. The name, mailing address, telephone number, and responsibilities of all known contractors responsible for any operational or maintenance aspects of the nutrient credit-generating project.

6. The number and type of potential nutrient credits to be generated and supporting information including (i) a description of the baseline practices in place within the management area and the nutrient credit-generating project's practices that may result in generation of nutrient credits beyond baseline requirements; (ii) the potential nutrient credit calculation including the efficiencies and factors used; and (iii) the associated documentation supporting the potential nutrient credits calculation. Baseline shall be determined in accordance with the requirements of 9VAC25-900-100. The number of potential nutrient credits shall be as calculated in accordance with 9VAC25-900-110.

7. A topographic map, survey, or another type of map deemed acceptable by the department that delineates the property boundary of the management area and clearly shows the location of all practices, including nutrient credit-generating projects and any baseline practices.

8. A description of current site conditions with photographs.

9. The 8-digit, 10-digit, and 12-digit HUC in which the nutrient credit-generating project is located.

10. For land use conversion projects, documentation of the condition of the land and land use controls in place as of the date specified in 9VAC25-900-100 E noting any changes in the condition of the land or land use controls since that date.

11. An implementation plan that meets the requirements of 9VAC25-900-120.

12. For structural BMPs or restoration projects required to submit and maintain financial assurance in accordance with 9VAC25-900-230, the draft financial assurance documents and financial assurance cost estimate calculated pursuant to Part VI (9VAC25-900-230 et seq.) of this chapter. As required by the schedule of release provisions of subsection B of 9VAC25-900-90, prior to the release of nutrient credits all required financial assurance mechanisms shall be established per Part VI (9VAC25-900-230 et seq.) of this chapter and approved by the department.

13. The appropriate fee required pursuant to Part V (9VAC25-900-190 et seq.) of this chapter.

14. For perpetual credits, a draft of the proposed site protection instrument for the site on which the nutrient credit-generating project is located. If the landowner is not an individual, documentation will be required establishing that the person executing the protection instrument has the authority to do so.

15. A description of other permits and approvals that may be necessary to operate the nutrient credit-generating project.

16. A description of any state or federal water quality grants received for water quality actions in the management area.

17. For perpetual credits, demonstration by the applicant that the site on which the nutrient credit-generating project is located is held with title free from all defects, liens, and encumbrances that would interfere with or be in conflict with the establishment and operation of the nutrient credit-generating project. The demonstration may include documentation of the subordination of property interests (e.g., mineral rights, mortgages, easement) if the department determines that the property interest would interfere with or be in conflict with the establishment and operation of the nutrient credit-generating project.

18. For term credits, the desired term of the credit shall be submitted; however, the term shall not exceed five-years.

19. A tax map showing the management area and adjacent parcels.

20. For nutrient credit-generating projects using innovative practices, the department may request submittal of additional information in order to review the innovative practice. This additional information may include application provisions that are deemed relevant to the innovative practice.

21. Any other information deemed necessary by the department.

B. Applications for certification of nutrient credits based on nutrient reductions from practices other than land conversion shall be processed in accordance with this subsection.

1. Administrative review. Upon receiving an application pursuant to subsection A of this section, the department shall perform a cursory review of the application within 30 calendar days of receipt. If the application does not contain all the necessary elements in accordance with subsection A of this section, the department shall notify the applicant of the missing elements. Otherwise, the department shall notify the applicant that the application will be evaluated for nutrient credit certification.

2. Public notification. After receipt of an application, the department shall post a public notification of the proposed nutrient credit-generating project on its website. The public notification shall include the name of the nutrient credit generating entity that proposes to generate nonpoint source nutrient credits, the location of the nutrient credit-generating project, and a description of the practices utilized. The public notification shall also include the name and contact information for a department staff person.

3. Technical evaluation. Once the application contains all the required elements, the department shall perform a technical evaluation of the application. As part of the evaluation, additional information may be required and the department shall, if warranted, perform a site visit of the proposed nutrient credit-generating project. Additionally, the department may convene a certification advisory committee to provide input regarding the review of an application such as those which incorporate the use of innovative practices by the nutrient credit-generating project. Within 120 days of the department's notification that the application will be evaluated, the department shall notify the applicant of the status of the evaluation of the application and, for innovative practices, provide a projected processing timeline for the application.

4. Completeness. The nutrient credits shall not be certified until the application is complete; however, a determination that an application is complete shall not require the department to issue the nutrient credit certification.

a. An application for nutrient credit certification is complete when the department receives an application in accordance with subsection A of this section, and the application and any supplemental information fulfills the application requirements to the department's satisfaction.

b. For applications for certification of nutrient credits generated from innovative practices, a second public notification shall be provided after the application is complete and prior to the issuance of the nutrient credit certification. The department shall post on its website a public notification of its intent to issue a nutrient credit certification, and the notification shall include the name of the applicant, the location of the nutrient credit-generating project, a description of the innovative practice, and the proposed quantity of term nutrient credits to be certified. The public notification shall also include the name and contact information for a department staff person.

5. Nutrient credit certification. Once the application is deemed complete, the department shall either (i) deny the application and notify the applicant that the nutrient credit-generating project does not qualify for any certified credits pursuant to the requirements of this chapter or (ii) approve the application by issuance of a nutrient credit certification and provide any applicable conditions including the schedule of release and retirement of nutrient credits in accordance with 9VAC25-900-90.

C. Applications for nutrient credit certification based on nutrient reductions solely from land conversion practices shall be processed in accordance with this subsection.

1. Application review. Within 30 days of receipt of an application, the department shall, if warranted, conduct a site visit. Within 45 days of receipt of an application, the department shall either determine that the application is complete or request additional specific information from the applicant. A determination that an application for a land conversion project is complete shall not require the department to issue a nutrient credit certification.

2. Public notification. After receipt of the application, the department shall post a public notification of the proposed nutrient credit-generating project on its website. The public notification shall include the name of the nutrient credit generating entity that proposes to generate nonpoint source nutrient credits, the location of the nutrient credit-generating project, and a description of the land conversion practice. The notification shall also include the name and contact information for the department staff person.

3. Nutrient credit certification. Within 15 days of the department's determination that the application is complete pursuant to subdivision 1 of this subsection, the department shall either (i) deny the application and notify the applicant that the nutrient credit-generating project does not qualify for any certified credits pursuant to the requirements of this chapter or (ii) approve the application by issuance of a nutrient credit certification and provide any applicable conditions including the schedule of release and retirement of nutrient credits in accordance with 9VAC25-900-90.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-90 Nutrient credit release and registration

A. Retirement of credits.

1. Pursuant to the requirements of § 62.1-44.19:20 of the Act, 5.0% of the total credits certified will be retired by the department at the time of nutrient credit certification and will not be placed on the registry for exchange.

2. When phosphorus credits are acquired in accordance with 9VAC25-875-610, the associated nitrogen credits generated by the nutrient credit-generating project will be retired and removed from the registry by the department.

3. When nitrogen credits are acquired for purposes other than compliance with 9VAC25-875-610, the associated phosphorus credits generated by the nutrient credit-generating project shall not be available for compliance under 9VAC25-875-610.

4. Except as limited by this subsection, associated nitrogen and phosphorus credits generated by a nutrient credit-generating project may be exchanged independently.

B. Schedule of release of nutrient credits. The department shall establish a schedule for release of credits as follows:

1. For nutrient credit-generating projects using land use conversion, 25% of the credits will be released by the department after the department has verified completion of the conditions of the nutrient credit certification. For afforestation projects, an additional 25% of credits will be released by the department after the site has been planted with a minimum of 400 woody stems per acre. The remaining balance of credits will be released by the department after it is satisfied that the implementation plan's performance criteria required pursuant to 9VAC25-900-120 has been achieved. When a request for credit release is made concurrently with the application for nutrient credit certification from land conversion practices, the concurrent 25% initial release, and additional 25% release if planting has occurred, shall be processed on the same timeline as the application as provided in 9VAC25-900-80 C. When the request for credit release is from a previously approved land conversion project, the department shall schedule a site visit, if warranted, within 30 days of the request and shall deny, approve, or approve with conditions the release of the remaining 75% of the nutrient credits within 15 days of the site visit or determination that a site visit is not warranted.

2. For nutrient credit-generating projects using wetland or stream restoration, after construction 25% of the credits may be released by the department after the department has verified completion of the conditions of the nutrient credit certification. Every monitoring year thereafter, 25% of the credits may be released if all performance standards are met, the area or channel is stable, and, for streams, evidence is presented that a bankfull event occurred within the monitoring year. For streams, if a bankfull event did not occur, but performance standards are met and the channel is stable, 10% of the credits may be released. No additional credits will be released after the fourth monitoring year until a bankfull event has occurred. After the fourth monitoring year, if a bankfull event occurs, the channel is stable, and all performance standards are met, 25% of the credits may be released that monitoring year, not to exceed the remaining credits available. The schedule for release of credits shall also require, prior to the release of credits, the approval of any required financial assurance mechanism established pursuant to Part VI (9VAC25-900-230 et seq.) of this chapter. The department may accelerate the release of a maximum of 50% of nutrient credits from a stream restoration project based on (i) a determination that the level of risk for restoration failure is low; (ii) the provision of additional financial assurance in an amount adequate to cover the cost of project repair or replacement in the event of failure; and (iii) the experience of the applicant or the applicant's agents who will implement the stream restoration project.

3. For nutrient credit-generating projects using practices other than land use conversion or wetland or stream restoration, the schedule for release of credits will be determined by the department on a case-by-case basis and provided to the applicant with the nutrient credit certification. For projects using structural BMPs, the schedule shall also require, prior to release of credits, the approval of any required financial assurance mechanism established pursuant to Part VI (9VAC25-900-230 et seq.) of this chapter.

C. Registration of nutrient credits. Credits will be placed on the registry and classified as term or perpetual credits by the department. The registry will also indicate the number of credits that have been released for exchange. Only credits released by the department are available for exchange.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 40, Issue 6, eff. December 6, 2023; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-91 Exchange of credits

A. Exchange of a credit released by the department is subject to the provisions of § 62.1-44.15:35, 62.1-44.19:15, or 62.1-44.19:21 of the Code of Virginia.

B. Where necessary to ensure compliance with local water quality requirements, the exchange of a credit released by the department is conditioned as follows:

1. Within the Chesapeake Bay Watershed, the exchange of credits within an area subject to an approved local TMDL for total phosphorus or total nitrogen with allocations more stringent than the Chesapeake Bay Watershed TMDL shall be limited to those credits generated upstream of where the discharge reaches impaired waters.

2. Within the Southern Rivers watersheds, the exchange of credits within an area subject to an approved local TMDL for total phosphorus or total nitrogen shall be limited to those credits generated upstream of where the discharge reaches impaired waters.

3. Within an area with waters impaired for dissolved oxygen, benthic community, chlorophyll-a, or nutrients but with no approved local TMDL, the exchange of credits shall be limited to those credits generated in accordance with the following hierarchy:

a. Upstream of where the discharge reaches impaired waters if credits are available;

b. Within the same 12-digit HUC if credits are available;

c. Within the same 10-digit HUC if credits are available;

d. Within the same 8-digit HUC if credits are available;

e. Within an adjacent 8-digit HUC within the same tributary if credits are available; or

f. Within the same tributary.

C. The hierarchy of subdivision B 3 of this section shall not apply when:

1. The department determines through issuance of a VPDES permit that local water quality cannot be protected unless exchange of credits are restricted to upstream of where the discharge reaches impaired waters; or

2. It has been demonstrated to the department's satisfaction that:

a. The water quality impairment is not likely caused by nutrients; or

b. The use of credits would not reasonably be considered to cause or contribute to the impairment.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Reserved, Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 37, Issue 3, eff. January 1, 2021; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-100 Establishing baseline

A. Practices for establishing baseline must be in place prior to the generation of any credits by a nutrient credit-generating project except in the case of land use conversion as described in subsection E of this section. The practices for establishing baselines, as provided in this section, shall be implemented and properly maintained for each type of operation within the management area. Baselines are applicable statewide for nutrient credit-generating projects including those located in either the Chesapeake Bay Watershed or the Southern Rivers watersheds. Baseline practices are, at a minimum, in accordance with the requirements of the WIP or an approved TMDL, whichever is more stringent.

B. Cropland, hayland, and pastures. Baselines for cropland, hayland, or pastures within the management area shall be established in accordance with subdivision 1, 2, or 3 of this subsection.

1. The owner holds a valid Certificate of Resource Management Plan Implementation for the management area that has been issued pursuant to the Resource Management Plans regulation (4VAC50-70).

2. If the owner does not hold a valid Certificate of Resource Management Plan Implementation for the management area, the owner shall implement the following practices for establishing baseline:

a. Soil conservation. Soil conservation practices for the management area shall be implemented and maintained to achieve a maximum soil loss rate not to exceed "T" and to address gross erosion when it is present as gullies or other severely eroding conditions.

b. Nutrient management. Implementation and maintenance of the nutrient management practices required by the nutrient management plan written by a certified nutrient management planner pursuant to the Nutrient Management Training and Certification Regulations (4VAC50-85).

c. Riparian buffer. A woodland or grass riparian buffer shall be installed and maintained around all water bodies with perennial flow within the management area and shall be installed and maintained along all water bodies with perennial flow bordering the management area. The riparian buffer shall be a minimum width of 35 feet as measured from the top of the channel bank to the edge of the cropland, hayland, or pasture and in accordance with DCR Specifications for NO. FR-3 or DCR Specifications for NO. WQ-1 contained in the VACS BMP Manual.

d. Cover crop. For croplands, cover crops shall be planted to meet the standard planting date and other specifications in accordance with DCR Specifications for NO. SL-8B contained in the VACS BMP Manual. This requirement applies to all croplands where summer annual crops are grown and the summer annual crop receives greater than a total of 50 pounds per acre of nitrogen application from any nutrient source; however, if the cropland is planted to winter cereal crops for harvest in the spring, then cover crops do not need to be planted on these croplands during that production year.

e. Livestock water body exclusion. For pastures or when livestock are present within the management area, livestock exclusion fencing shall be placed around perennial streams, rivers, lakes, ponds, or other water bodies having perennial flow. This exclusionary fencing shall be constructed in accordance with DCR Specification NO. WP-2W contained in the VACS BMP Manual in order to restrict livestock access to the water body. Livestock shall be provided with an alternative watering source. The livestock exclusion fencing shall be placed at least 35 feet from the top of the channel bank and this exclusion zone shall contain the riparian buffer required by subdivision 2 c of this subsection. Access points for livestock watering or crossing over a water body shall be a hardened surface constructed to DCR Specifications for NO. WP-2W contained in the VACS BMP Manual and shall be fenced to limit livestock access to the water body at the crossing point. Ponds that have been specifically built for the purpose of livestock watering and that do not have perennial flow through an overflow pipe or spillway are not required to meet the provisions of this subdivision 2 e.

3. The department may approve a load-based baseline determination equivalent to full implementation of the practices identified in subdivision 2 of this subsection.

C. Agricultural animal feeding operations. Baselines for agricultural animal feeding operations within the management area shall be established in accordance with either subdivision 1 or 2 of this subsection:

1. The animal feeding operation is in compliance with a valid VPDES or VPA permit in compliance with the board's regulations.

2. For animal feeding operations excluded from or not required to hold a VPDES or VPA permit under the board's regulations, the practices for establishing baseline shall be implemented and properly maintained as required in this subdivision 2.

a. Implementation and maintenance of the nutrient management practices required by the nutrient management plan written by a certified nutrient management planner pursuant to the Nutrient Management Training and Certification Regulations (4VAC50-85).

b. For animal feeding operations, except confined poultry operations, a storage facility designed and operated to prevent point source discharges of pollutants to state waters except in the case of a storm event greater than a 25-year/24-hour storm and to provide adequate waste storage capacity to accommodate periods when the ground is frozen or saturated, periods when land application of nutrients should not occur due to limited or nonexistent crop nutrient uptake, and periods when physical limitations prohibit the land application of waste shall be implemented and maintained.

c. For confined poultry operations, storage of poultry waste according to the nutrient management plan and in a manner that prevents contact with surface water and groundwater. Poultry waste that is stockpiled outside of the growing house for more than 14 days shall be kept in a facility or at a location that provides adequate storage. Adequate storage management practices shall meet the following minimum requirements:

(1) The poultry waste shall be covered to protect it from precipitation and wind.

(2) Stormwater shall not run onto or under the area where the poultry waste is stored.

(3) The ground surface of the poultry waste storage area shall have a minimum of two feet separation distance to the seasonal high water table. If poultry waste is stored in an area where the seasonal high groundwater table lies within two feet of the ground surface, the storage area shall be underlain by a low-permeability, hard-surfaced barrier such as concrete or asphalt.

(4) For poultry waste that is not stored inside or under a roofed structure, the storage area must be at least 100 feet from any surface water, intermittent drainage, wells, sinkholes, rock outcrops, and springs.

D. Urban practices. Achievement of baseline for new development, redevelopment, or retrofits to existing development shall be required prior to generation of credits. These baselines are:

1. For new development and redevelopment, baseline shall be achieved through compliance with the post-construction water quality design criteria requirements of the Virginia Erosion and Stormwater Management Regulation under 9VAC25-875-580. Additionally, for development in a locality with a local stormwater management design criteria more stringent than 9VAC25-875-580, baselines shall be achieved through compliance with the local stormwater management ordinance.

2. For retrofits within the Chesapeake Bay Watershed, baseline shall be at a level necessary to achieve the nutrient reduction assigned in the urban sector of the WIP or the approved local TMDL, whichever is more stringent.

3. For retrofits within the Southern Rivers watersheds and within a watershed with an approved TMDL with total phosphorus or total nitrogen allocations, baselines shall be at a level necessary to achieve reductions of the approved TMDL. For all other retrofits within the Southern Rivers watersheds, baseline shall be achieved through compliance with the post-construction water quality design criteria requirements for development on prior developed lands pursuant to 9VAC25-875-580 A 2.

4. No credits may be certified for a nutrient credit-generating project owned by an MS4 permittee and located within the permittee's MS4 service area until the level of nutrient reduction required by the WIP or approved TMDL, whichever is more stringent, is achieved for the entire MS4 service area. MS4 permittees generating credits for exchange shall have an accounting system demonstrating that the exchanged credits are not used to satisfy the MS4 permit requirements.

E. Land use conversions. Baselines for land use conversion shall be established using the preconversion land use. The preconversion land use shall be based on the land use as of (i) July 1, 2005, for a nutrient credit-generating project located within the Chesapeake Bay Watershed; (ii) the date of the approved TMDL for a nutrient credit-generating project located within a TMDL watershed but not within the Chesapeake Bay Watershed; or (iii) July, 1, 2009, for a nutrient credit-generating project not within an approved TMDL watershed or the Chesapeake Bay Watershed.

F. Stream or wetland restoration. Baseline for stream restoration shall be established using the pre-restoration condition of the stream. Baseline for wetland restoration shall be established on a case-by-case basis, depending on the current land use of the proposed wetland restoration area.

G. Other nutrient credit-generating projects. The department shall establish baselines for other nutrient credit-generating projects not otherwise regulated by subsections B through F of this section. The practices necessary for establishing baseline at these other nutrient credit-generating projects shall be in accordance with the requirements of the WIP or the approved TMDL and shall utilize the best available scientific and technical information regarding the practices.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-110 Credit calculation procedures

A. Pursuant to this section, the applicant shall calculate the potential nutrient credits generated by the practices implemented at the nutrient credit-generating projects. The applicable delivery factors, dependent upon the tributary in which the nutrient credit-generating project is located, shall be applied when calculating the potential credits generated.

B. For agricultural practices, except land use conversion, the potential nutrient credits shall be calculated using removal efficiencies for practices approved by the department. In the Chesapeake Bay Watershed, these practices shall be approved by the department based on the efficiencies assigned by the Chesapeake Bay Program. In the Southern Rivers watersheds, these practices shall be approved by the department based on submitted calculations and demonstrations. The standards and specifications for implementation of the practices will be established by the department and shall be in accordance with the VACS BMP Manual or the FOTG, as applicable.

C. For urban practices, the potential nutrient credits shall be calculated using the applicable removal efficiencies pursuant to 9VAC25-875-590 or using the best available scientific and technical information available at the time of nutrient credit certification as approved by the department. Limitations on potential nutrient credits from certain BMPs are:

1. In the Chesapeake Bay Watershed, nutrient load reductions from practices in place prior to July 1, 2005, may not be used to generate credits. Removal efficiencies shall be based upon those efficiencies approved by the Chesapeake Bay Program partnership where applicable. These efficiencies shall be reviewed at the time of certification renewal and adjusted as necessary based upon changes made by the Chesapeake Bay Program Partnership.

2. In the Southern Rivers watersheds, nutrient load reductions from practices in place prior to July 1, 2009, may not be used to generate credits.

D. For land use conversions, conversion of land to a more intensive land use activity will not generate nutrient credits. The number of potential nutrient credits shall be determined by calculating the nutrient credits per acre and multiplying that number by the total acreage that will undergo land use conversion. The nutrient credits per acre is equal to the amount calculated by subtracting the load per acre of nutrient nonpoint source pollution for the proposed land use after conversion from the load per acre for the preconversion land use. The values used for the loadings per acre in this calculation shall be based on the applicable loading levels provided in the WIP or the approved TMDL, where applicable. The preconversion land use shall be based on the land use as of the date specified in 9VAC25-900-100 E. The load per acre for the preconversion land use shall reflect the implementation of any applicable baseline practices necessary to comply with 9VAC25-900-100 B, C, and D. No credits shall be generated from the conversion of land within 35 feet of a water body with perennial water flow as measured from the top of the channel bank.

E. For wetland or stream restoration, an existing conditions assessment survey will be completed prior to restoration activities to use as a pre-restoration condition (baseline pursuant to of 9VAC25-900-100 F) and will be used for comparison to post-restoration conditions. The potential number of credits shall be determined by applying protocols or guidance on a case-by-case basis using the best available scientific and technical information, as approved by the department.

F. For a practice not previously approved by the department, the department will perform a case-by-case review in order to calculate the number of potential nutrient credits generated. The owner shall submit the removal efficiency calculation information for the practice and the calculation of the potential number of credits generated using that efficiency. The department may also request that the submittal include requirements for demonstration projects, the collection of sufficient data to evaluate the results, and any other information the department deems necessary to determine the validity of the credits. In the Chesapeake Bay Watershed, for a practice not approved by the Chesapeake Bay Program Partnership, the department will perform a case-by-case review in order to calculate the number of potential nutrient credits generated on a term basis.

G. In the certification and recertification of credits, the department may substitute a delivery factor that is deemed by the director to be based on the best available scientific and technical information appropriate for the tributaries located outside of the Chesapeake Bay Watershed as an alternative to any delivery factor derived from the application of the Chesapeake Bay Program watershed model.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended Virginia Register Volume 40, Issue 4, eff. November 8, 2023; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-120 Implementation plan

A. The implementation plan submitted pursuant to 9VAC25-900-80 shall provide information detailing how the nutrient credit-generating project will generate credits for the term of the credits. The implementation plan will include the applicable information as required in subsections B through J of this section.

B. For all nutrient credit-generating projects, the implementation plan shall include:

1. An operation and maintenance plan that provides a description and schedule of operation and maintenance requirements and detailed written specifications and process diagrams for the practices used at the nutrient credit-generating project. The plan must be adhered to for the term of the credits and shall include a description of site management activities to be performed after meeting all performance standards to ensure long-term sustainability of the site.

2. The performance standards that shall be used to evaluate whether the nutrient credit-generating project is generating credits as calculated in 9VAC25-900-110.

3. Applicable requirements for the project required pursuant to Part IV (9VAC25-900-140 et seq.) of this chapter.

C. For nutrient credit-generating projects utilizing managed afforestation land use conversion, the implementation plan shall also include:

1. A project plan submitted in the form required by the department and prepared by a person trained in (i) forestry management, (ii) nutrient management, or (iii) other applicable land management training that includes an understanding of whole land management planning. The project plan shall include (i) methods for invasive plant species control and eradication if woody invasive plant species impacts 5.0% or more of the nutrient credit-generating project's acreage; (ii) a requirement that any harvesting of timber shall adhere to best management practices as set forth by Department of Forestry's Water Quality Guide and any other applicable local, state, or federal laws or requirements; (iii) the land management goals; (iv) a statement that no fertilizer is to be used on the nutrient credit-generating project's land conversion acreage for the term of the credit generated; (v) a planting plan to include size, species, and spacing of trees; and (vi) any planting phases planned for the project if the area will not be planted all at one time, but will be planted in different phases. Additionally, if timbering is planned within the land conversion area, a copy of the timbering plan shall be submitted to the department at least 90 days prior to the occurrence of any land disturbance or timbering.

2. Provisions for planting forests to achieve an initial survival density of a minimum of 400 deciduous tree or evergreen tree woody stems per acre including any noninvasive volunteers. Survival of planted deciduous trees shall not be established until the start of the second complete growing season following planting. Survival of planted evergreen trees may be established after completion of the first complete growing season following planting. Survival of mixed specie plantings with a minimum of 200 evergreen trees per acre may be established after completion of the first complete growing season following planting.

3. A description of agricultural baseline requirements implemented in accordance with 9VAC50-900-100 B and C that apply to any remaining portions of the management area that are not undergoing land use conversion.

4. Performance standards and reporting procedures demonstrating ongoing compliance with the baseline requirements of 9VAC25-900-100 B and C.

D. For nutrient credit-generating projects utilizing natural succession land use conversion, the implementation plan shall also include provisions for:

1. Forests to achieve an initial density of a minimum of 400 noninvasive woody stems per acre.

2. Invasive plant species control and eradication if woody invasive plant species impacts 5.0% or more of the nutrient credit-generating project's acreage.

3. A description of agricultural baseline requirements implemented in accordance with 9VAC25-900-100 B and C that apply to any remaining portions of the management area not undergoing land use conversion.

4. Performance standards for demonstrating ongoing compliance with the agricultural baseline requirements of 9VAC25-900-100 B and C.

E. For nutrient credit-generating projects utilizing other land use conversion not subject to either subsection C, D, or G of this section, the implementation plan shall also include:

1. Description of the land use conversion project and its implementation and maintenance criteria.

2. Description of the applicable baseline practices implemented in accordance with 9VAC25-900-100 for the management area including the nutrient credit-generating project.

3. Performance standards and reporting procedures demonstrating ongoing compliance with the baseline practices requirements of 9VAC25-900-100.

F. For nutrient credit-generating projects utilizing non-land use conversion agricultural practices, the implementation plan shall also include:

1. A description of the entire management area. This description shall include (i) the acreage and use including descriptions for the proposed practices of the nutrient credit-generating project and baseline area; (ii) water features including all streams, ponds, lakes, and wetlands; (iii) environmentally sensitive sites as defined in 4VAC50-85-10; (iv) areas with highly erodible soils; and (v) the current agricultural operations, crops, or animal facilities.

2. Copies of the current nutrient management plans developed by a certified nutrient management planner and approved by the department and any soil conservation plans completed by a certified conservation planner.

3. Information on the location and status of all existing and proposed BMPs including implementation schedules, lifespan, and maintenance procedures for each BMP that constitutes the baseline requirements.

G. For nutrient credit-generating projects utilizing approved wetland and stream mitigation projects pursuant to § 62.1-44.15:23 of the Code of Virginia, the implementation plan shall also include:

1. A copy of the approved mitigation banking instrument.

2. A plan view map clearly delineating and labeling areas to be considered for credit conversion.

3. A spreadsheet or table listing each labeled area. For each labeled area, the table shall include:

a. The type of eligible land use conversion or restoration practice;

b. The acreage or linear feet of the area;

c. The available mitigation credits;

d. The potential nutrient credits; and

e. The ratio of mitigation credits to nutrient credits.

4. Documentation that complies with the department-approved procedure to ensure credits are not used for both wetland or stream credit and nutrient credit purposes.

5. Documentation shall include written approval from the Interagency Review Team, which oversees stream and wetland mitigation projects pursuant to 33 CFR 332.8 and § 62.1-44.15:23 of the Code of Virginia, to establish a nutrient credit generating site within an approved mitigation bank.

H. For nutrient credit-generating projects utilizing proposed new wetland or stream restoration projects not subject to 33 CFR 332.8 and § 62.1-44.15:23 of the Code of Virginia, the implementation plan shall also include, where appropriate to the type of restoration and project:

1. Certification that the owner will obtain all appropriate permits or other authorizations needed to construct and maintain the restoration activities, prior to initiating work in state waters.

2. An initial wetland restoration plan, which shall include the following:

a. The goals and objectives in terms of proposed nutrient reductions and restoration activities;

b. A detailed location map (e.g., a U.S. Geologic Survey topographic quadrangle map) including latitude and longitude to the nearest second and the hydrologic unit code (HUC) at the center of the site;

c. A description of the surrounding land use;

d. A hydrologic analysis, including a draft water budget based on expected monthly inputs and outputs that will project water level elevations for a typical year, a dry year, and a wet year;

e. The groundwater elevation data or, if not available, the proposed location of groundwater monitoring wells to collect this data;

f. Wetland delineation confirmation and data sheets and maps for existing surface water areas on the proposed site;

g. A preliminary grading plan;

h. A preliminary wetland planting scheme, including suggested plant species and zonation of each vegetation type proposed;

i. Descriptions of existing soils, including general information on topsoil and subsoil conditions, permeability, and the need for soil amendments;

j. A preliminary design of any water control systems or structures for wetland restoration or establishment;

k. Depiction of any land conversion or other buffer areas associated with the nutrient credit-generating entity;

l. A description of any structures or features necessary for the success of the site; and

m. A preliminary schedule for site construction.

3. An initial stream restoration plan, which shall include the following:

a. The goals and objectives in terms of proposed nutrient reductions and restoration activities;

b. A detailed location map (e.g., a U.S. Geologic Survey topographic quadrangle map), including the latitude and longitude (to the nearest second) and the hydrologic unit code (HUC) at the center of the site;

c. A description of the surrounding land use;

d. The preliminary proposed stream segment restoration locations, including plan view, profile, and cross-section sketches;

e. The existing stream deficiencies that need to be addressed;

f. The proposed restoration measures to be employed, including channel measurements, proposed design flows, types of instream structures, and conceptual planting scheme for streambank plantings;

g. Reference stream data, if available;

h. Depiction of any land conversion or other buffer areas associated with the nutrient credit-generating project; and

i. A preliminary schedule for site construction.

4. Prior to construction of the restoration site, the following final plans shall be submitted where appropriate to the type of restoration:

a. The final wetland restoration plan, which shall include all of the items listed in subdivision H 2 of this section and the following:

(1) A summary of the type and acreage of existing stream and wetland impacts anticipated during the construction of the restoration site and the proposed compensation for these impacts;

(2) A site access plan;

(3) An erosion and sediment control plan meeting the requirements of 9VAC25-875;

(4) The final construction schedule; and

(5) A monitoring plan as detailed in subdivision H 4 c of this section.

b. A final stream restoration plan, which shall include the items listed in subdivision H 3 of this section of this section and the following:

(1) A summary of the type and acreage or linear feet of impacts to state waters anticipated during the construction of the restoration site and the proposed compensation for these impacts;

(2) A detailed plan view, profile, and cross-section sketches with the location of proposed restoration measures;

(3) A site access plan;

(4) An erosion and sediment control plan meeting the requirements of 9VAC25-875;

(5) The final construction schedule; and

(6) A monitoring plan as detailed in subdivision H 4 c of this section.

c. A monitoring plan, which shall include: (i) monitoring goals; (ii) proposed performance standards; (iii) parameters to be monitored; (iv) methods of monitoring; (v) length of monitoring period; (vi) monitoring and reporting schedule; (vii) reporting requirements; and (viii) projects responsible for monitoring and reporting.

(1) Performance standards for wetland or stream restoration shall include specific, measureable parameters for determination of performance in comparison to as-built conditions. For wetland restoration, performance standards may include applicable parameters to demonstrate characteristics of wetland formation and stability for the type of wetland restored, including hydrology, soils, vegetation, and stability of any water control structures or berms. For stream restoration, performance standards may include applicable parameters to demonstrate characteristics of channel stability, including dimension, pattern, profile, materials, and stability of the channel and any structures.

(2) Monitoring methods and parameters shall be selected based on type of wetland or stream restoration, the implementation plan, and performance standards of the nutrient credit-generating project, and will be outlined in the monitoring plan. For wetland restoration, the monitoring plan shall include the location and number of photo stations, monitoring wells, vegetation sampling points, other monitoring equipment, and reference wetlands, if available. For stream restoration, the plan shall include the location and number of stations utilized for photo-monitoring, cross-sections, profiles, pattern measurements, streambank stability measurements, streambank vegetation surveys, bank pins, scour chains, stream gages, rain gages, other monitoring equipment, and reference streams, if available.

(3) The monitoring and reporting schedule shall include an as-built survey conducted directly following construction and at least six monitoring and reporting events over a 10-year monitoring period following construction. All monitoring activities shall occur during the growing season, with the exception that after year three, physical monitoring of stream condition (cross-section, profiles, pattern) may be conducted outside the growing season. For any year in which planting was conducted, monitoring of woody vegetation shall take place no earlier than October and at least six months following planting. If all performance standards have not been met in the 10th year, then a monitoring report shall be required for each consecutive year until two sequential annual reports indicate that all performance standards have been successfully satisfied. The extent of monitoring may be reduced, upon approval by the department, on a case-by-case basis, in response to exceptional attainment of performance standards. Submittal of a final monitoring report, typically prepared the 10th growing season following construction completion, shall be required as a baseline for long-term management.

5. A long-term management plan, which shall include:

a. Restoration projects shall include minimization of active engineering features (e.g., pumps) that require long-term management and appropriate site selection to ensure that natural hydrology and landscape context will support long-term sustainability;

b. Long-term management and maintenance shall include basic management as necessary to ensure long-term sustainability of the nutrient credit-generating project such as long-term repair or replacement, maintenance of water control or other structures, or easement enforcement;

c. The owner shall designate a responsible long-term steward in the plan. The owner of the nutrient credit-generating project is the default long-term steward and is responsible for implementing the long term management plan and management of the financial assurance. However, the owner may transfer the long-term management responsibilities and management of the long-term financial assurance to a long-term steward or land stewardship project, such as a public agency, nongovernmental organization, or private land manager, upon review and approval by the department;

d. Long-term management needs, annual cost estimates for these needs, and identifying the funding mechanism that will be used to meet these needs shall be included.

I. For nutrient credit-generating projects utilizing urban practices, the implementation plan shall also include:

1. A description of the contributing drainage area (CDA) for the proposed nutrient credit-generating project's BMP. This description shall include (i) the acreage and land covers (e.g., impervious, forest or open space, managed turf); (ii) water features including all streams, ponds, lakes, and wetlands; (iii) identification of all impaired waters and approved TMDLs; and (iv) identification or mapping of the soil types within the CDA, by USDA hydrological soil group.

2. A list of all of the current urban nutrient management plans developed by a certified nutrient management planner and being implemented within the CDA.

3. Information on the location and description of existing BMPs within the CDA. For BMPs that constitute the baseline requirements include implementation schedules, lifespan, and maintenance procedures.

4. For development and redevelopment projects, the implementation plan shall include the erosion and sediment control plan and the stormwater management plan developed in accordance 9VAC25-875.

5. For retrofits, the implementation plan shall include relevant credit calculations and documentation as deemed appropriate by the department.

J. For other types of activities or projects not presented in subsections C through I of this section, the implementation plan shall include information as deemed appropriate by the department in order to evaluate the credits for nutrient credit certification.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-130 Signature requirements

A. All applications for certification of nutrient credits shall be signed as follows:

1. For a corporation, the application shall be signed by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function or any other person who performs similar policy-making or decision-making functions for the corporation or the manager of the nutrient credit-generating project provided the manager is authorized to make management decisions that govern the operation of the project;

2. For a partnership or sole proprietorship, the application shall be signed by a general partner or the proprietor, respectively; or

3. For a municipality, state, federal, or other public agency, the application shall be signed by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes the chief executive officer of the agency or a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

B. All reports required by this chapter and other information requested by the department shall be signed by a person described in subsection A of this section or by a duly authorized representative of that person. A person is a duly authorized representative only if:

1. The authorization is made in writing by a person described in subsection A of this section;

2. The authorization specifies either an individual or a position having responsibility for the overall operation of the project; and

3. The written authorization is submitted to the department.

C. If an authorization under subsection B of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the project, a new authorization satisfying the requirements of subsection B of this section shall be submitted to the department prior to or together with any reports or information to be signed by an authorized representative.

D. Any person signing a document under subdivision A or B of this section shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations."

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

Part IV Compliance and Enforcement

9VAC25-900-140 Inspections and information to be furnished

A. The owner of the nutrient credit-generating entity project shall allow the director or an authorized representative, including an authorized contractor acting as a representative of the department, upon presentation of credentials, to:

1. Enter the management area including the premises where the nutrient credit-generating entity project is located and where records are kept in accordance with this chapter or the nutrient credit certification. Records to be retained include the approved implementation plan, operations and maintenance plan, and, if required, confirmation of financial assurance documents.

2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this chapter, the approved plans listed in subdivision A 1 of this section, or as otherwise required by the nutrient credit certification. The owner will make available any records requested by the department that detail nutrient credit-generating entity project operations, status, records of transactions, or other actions that demonstrate the status of credits and operations of the nutrient credit-generating entity project including records required to be kept under any implementation plan, operations and maintenance plan, or financial assurance documents;

3. Inspect at reasonable times any entities projects, equipment, practices, or operations regulated or required under the provisions of this chapter, the approved plans listed in subdivision A 1 of this section, or as otherwise required by the nutrient credit certification; and

4. Sample or monitor at reasonable times, for the purposes of assuring compliance with the provisions of this chapter, the nutrient credit certification, or as otherwise authorized by state law or regulation.

B. For purposes of this section, the time for inspection shall be deemed reasonable during regular business hours. Nothing in this section shall make an inspection unreasonable during an emergency when applicable.

C. The owner of the nutrient credit-generating entity project shall furnish to the department, within a reasonable time, any information that the department may request to determine (i) whether cause exists for suspension of nutrient credit exchange, modifying, revoking and recertifying, or terminating nutrient credit certification or (ii) compliance with the provisions of this chapter or the implementation plan, operations and maintenance plan, or financial assurance approved under this chapter. The department may require the owner of the nutrient credit-generating entity project to furnish, upon request, such plans, specifications, and other pertinent information as may be necessary to determine the effect of the operation of the nutrient credit-generating entity project on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the law. The owner of the nutrient credit-generating entity project shall also furnish to the department, upon request, copies of records required to be kept under the provisions of this chapter or the nutrient credit certification including the approved implementation plan, operations and maintenance plan, or proof of financial assurance records.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-150 Recordkeeping and reporting

A. The owner of the nutrient credit-generating project shall maintain all records relevant to the management, operations, and maintenance of the nutrient credit-generating project, including copies of all reports required by this chapter, the nutrient credit certification or the implementation plan, operations and maintenance plan, or financial assurance approved under this chapter. Records of all data used to complete the application for certification of nutrient credits shall be kept. All records shall be maintained for at least five years following the final exchange of any credits. This period of retention shall be extended automatically during the course of any unresolved litigation regarding the regulated activity or regarding control standards applicable to the owner of the nutrient credit-generating project, or as requested by the department.

B. All applications, reports, or information submitted to the department shall be signed and certified as required by 9VAC25-900-130.

C. Reporting requirements.

1. The owner of the nutrient credit-generating project shall give advance notice to the department as soon as possible of any planned physical alterations or additions to the project when the alteration or addition could change the amount of nutrient reductions generated.

2. The owner of the nutrient credit-generating project shall give advance notice to the department of any planned changes in the project that may result in noncompliance with the Act, this chapter, or the nutrient credit certification.

3. Reports of compliance or noncompliance with or any progress reports on achieving conditions specified in the nutrient credit certification shall be submitted no later than 14 days following each schedule date.

4. Where the owner of the nutrient credit-generating project becomes aware that incorrect information has been submitted in an application for nutrient credit certification or in any report to the department, the owner shall promptly submit the corrected information.

5. Each owner shall submit an annual report on the status of the nutrient credit-generating project operations including credit-generating practices, confirmation of the continued implementation and maintenance of practices required to establish baseline in accordance with 9VAC25-900-100, statement of financial assurances, and an up-to-date credit ledger detailing credits available for exchange, credits exchanged, and associated purchaser information. This report shall contain recent photographs of any structural BMPs implemented to achieve baseline or for nutrient credit generation. The report shall cover the period from July 1 through June 30 of each year and be submitted annually by August 15 unless an alternative reporting period and submittal date are provided for in the nutrient credit certification.

6. In addition to the annual report detailed in subdivision 5 of this subsection, nutrient credit-generating projects utilizing wetland or stream restoration shall conduct post-construction monitoring and submit monitoring reports, according to the monitoring plan approved as part of the implementation plan pursuant to 9VAC25-900-120.

7. Exchange of credits shall be recorded on the registry. The exchange of credits by the owner of the nutrient credit-generating project shall be reported to the department within 14 calendar days of the date of the exchange. This report shall include:

a. The identification for the credits exchanged;

b. The name of and contact information for the buyer;

c. The name of the seller;

d. The amount of credits exchanged; and

e. If applicable, the name of the facility and the associated permit number that shall use the purchased credits.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022.

9VAC25-900-160 Enforcement and penalties

The department may enforce the provisions of this chapter utilizing all applicable procedures under the State Water Control Law.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022.

9VAC25-900-170 Suspension of credit exchange

A. If the department tentatively decides to suspend the ability of an owner of a nutrient credit-generating project to exchange credits, the department shall issue a notice of its tentative decision to the owner. If the department determines that suspension is appropriate, it will also remove the ability for the owner to show credits for exchange on the registry. The ability to exchange credits shall remain suspended until such time as the owner brings the nutrient credit-generating project into compliance with this chapter and the nutrient credit certification to the department's satisfaction.

B. The following are causes for the department to suspend the exchange of credits:

1. Noncompliance by the owner of the nutrient credit-generating project with any condition of the nutrient credit certification or any plans approved under or required by the nutrient credit certification or this chapter;

2. Failure of the owner of the nutrient credit-generating project to disclose fully all relevant material facts or, the misrepresentation of any relevant material facts in applying for certification of nutrient credits or in any other report or document required under the law, this chapter, the nutrient credit certification, or any plans approved or required under the nutrient credit certification;

3. A change in any condition that results in a temporary or permanent elimination of the best management practices approved as part of the nutrient credit certification; or

4. There exists a material change in the basis on which the nutrient credit certification was issued that requires either a temporary or permanent elimination of activities controlled by the nutrient credit certification necessary to protect human health or the environment; however, credit quantities established using the best available scientific and technical information at the time of certification may not be reduced.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-180 Nutrient credit certification transfer, modification, revocation and reissuance, or termination

A. Nutrient credit certifications may be modified, revoked and reissued, or terminated either at the request of the party holding the certification or upon the department's initiative for cause. The filing of a request by the holder of the nutrient credit certification for a modification, revocation and reissuance, or termination of a certification, or a notification of planned changes or anticipated noncompliance with regulatory requirements does not stay any condition of a nutrient credit certification.

B. If the department decides that a request for modification, revocation and reissuance, or termination is not justified, it shall send the requester a brief response giving a reason for the decision.

C. If the department tentatively decides to modify or revoke and reissue a nutrient credit certification, it may request the submission of a new application.

D. If the department tentatively decides to terminate a nutrient credit certification and the owner of the nutrient credit-generating project objects, the department shall issue a notice of intent to terminate and shall contemporaneously notify any known buyers of the project's nutrient credits of its intent to terminate.

E. A certification of nutrient credits may be modified, revoked and reissued, or terminated for cause.

1. Causes for modification. The following are causes for modification, revocation, and reissuance of a certification of nutrient credits:

a. There are material and substantial alterations or additions to the nutrient credit-generating project that occurred after certification of nutrient credits and that justify the application of conditions that are different or absent in the existing nutrient credit certification.

b. The department has received new technical information that would have justified the application of different conditions at the time of issuance; however, credit quantities established using the best available scientific and technical information at the time of certification may not be reduced.

c. The department determines good cause exists for modification of milestones within the nutrient credit certification.

d. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining nutrient credit certification conditions.

e. The department has received notification of a proposed transfer of ownership of the nutrient credit-generating project.

2. Causes for termination. The following are causes for terminating a nutrient credit certification during its term or for denying an application for certification of nutrient credits after notice and opportunity for an informal fact finding proceeding in accordance with § 2.2-4019 of the Administrative Process Act:

a. The owner of the nutrient credit-generating project has violated any regulation or order of the board or department, any provision of the law, or any order of a court, where such violation results in a release of harmful substances into the environment or poses a substantial threat of release of harmful substances into the environment or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations that, in the opinion of the department, demonstrates the owner's disregard for or inability to comply with applicable laws, regulations, or requirements;

b. Noncompliance by the owner of the nutrient credit-generating project with any condition of the nutrient credit certification or any plans approved under or required by the nutrient credit certification or this chapter;

c. Failure of the owner of the nutrient credit-generating project to disclose fully all relevant material facts or the misrepresentation of any relevant material facts in applying for a certification of nutrient credits or in any other report or document required under the law, this chapter, the nutrient credit certification, or any plans approved or required under the nutrient credit certification;

d. A determination that the credit-generating activity endangers human health or the environment and can only be regulated to acceptable levels by modification or termination of the nutrient credit certification;

e. A change in any condition that results in a permanent elimination of any of the best management practices approved as part of the nutrient credit certification; or

f. There exists a material change in the basis on which the nutrient credit certification was issued that requires either a temporary or a permanent elimination of activities controlled by the nutrient credit certification necessary to protect human health or the environment; however, credit quantities established using the best available scientific and technical information at the time of certification may not be reduced.

g. Failure of the owner of the nutrient credit-generating project to operate and maintain the required baseline practices throughout the management area.

F. Except as provided in subsection G of this section, a nutrient credit certification may be transferred to a new owner or operator only if the certification has been modified or revoked and reissued to identify the new owner or operator and incorporate such other requirements as may be necessary under the Act and this chapter.

G. As an alternative to transfers under subsection F of this section, any certification of nutrient credits may be automatically transferred if:

1. The current holder of the certification of nutrient credits notifies the department at least 30 days in advance of the proposed transfer date in subdivision 2 of this subsection;

2. The notice includes a written agreement between the existing and new owners containing a specific date for transfer of responsibility, coverage, and liability for the nutrient credit-generating project between them; and

3. If the department does not notify the existing holder of the certification of nutrient credits and the proposed holder of its intent to modify or revoke and reissue the nutrient credit certification within the 30 days of receipt of the holder's notification of transfer, the transfer is effective on the date specified in the agreement mentioned in subdivision 2 of this subsection.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

Part V Fees

9VAC25-900-190 Purpose and applicability of fees

A. The purpose of this part is to establish a schedule of fees collected by the department in the support of its programs under this chapter and as permitted under the Act.

B. This part applies to all persons who submit an application for a certification of nutrient credits in accordance with 9VAC25-900-80. The fees shall be assessed in accordance with this part.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-200 Determination of application fee amount

A. Each nutrient credit-generating project application and each nutrient credit-generating project modification application is a separate action and shall be assessed a separate fee. The amount of such fees is determined on the basis of this section.

B. Perpetual nutrient credit certifications.

1. An applicant for certification of perpetual nutrient credits is assessed a base fee as shown in Table 1 of 9VAC25-900-220 A.

2. An applicant is assessed a supplementary fee based on the number of potential nutrient credits of phosphorus generated in addition to the base fee specified in subdivision 1 of this subsection. The supplementary fees are shown in Table 1 of 9VAC25-900-220 A.

3. Modifications of approved perpetual nutrient credit certifications will be assessed the base fee only unless the modifications generate additional perpetual credits then a supplementary fee based on the number of additional potential nutrient credits of phosphorus will be assessed in addition to the base fee as specified in subdivision 2 of this subsection.

4. The total fee (base fee plus supplementary fee) shall not exceed $10,000. If the calculated fee is greater than $10,000 then the applicant shall only pay $10,000.

C. Term nutrient credit certifications.

1. An applicant for certification of term nutrient credits is assessed a base fee plus a supplementary fee based on the number of potential term credits and the requested term of those credits as shown in Table 2 of 9VAC25-900-220 A.

2. A modification of an approved term nutrient credit certification is assessed a base fee plus a supplementary fee based on the number of term credits and the requested term of those credits as shown in Table 2 of 9VAC25-900-220 A.

3. A renewal will be assessed a base fee plus a supplementary fee based on the number of renewing term credits as shown in Table 3 of 9VAC25-900-220 A if there are (i) no changes to the site or practices that were submitted with the previously approved nutrient credit certification application; (ii) the renewal application submitted does not contain any new practices and is substantial the same as the previously approved nutrient credit certification; and (iii) the application is submitted at least 60 days prior to the end date of the term credits for which renewal is sought. If the renewal application includes changes to the site, changes to practices, or new practices or is submitted less than 60 days prior to the end date of the term credits, the application shall be deemed a new application and shall be assessed a fee as provided in subdivision 1 of this subsection.

4. The total fee (base fee plus supplementary fee) shall not exceed $10,000. If the calculated fee is greater than $10,000 then the applicant shall only pay $10,000.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-210 Payment of application fees

A. Due date. All application fees are due on the day of application and must accompany the application.

B. Method of payment. Fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218. When the department is able to accept electronic payments, payments may be submitted electronically.

C. Incomplete payments. All incomplete payments will be deemed nonpayments.

D. Late payment. Pursuant to 9VAC25-900-80, no applications will be deemed to be complete until the department receives the fee paid in full.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-220 Application fee schedule

A. Fees.

| Table 1. Perpetual Nutrient Credits Certification Application Fees | | | --- | --- | | Base Fee | $3,000 | | Supplementary Fees – Total Number of Perpetual Phosphorus Credits (X) | | | X ≤ 30 | $1,000 | | 30 < X ≤ 60 | $3,000 | | 60 < X ≤ 90 | $5,000 | | X > 90 | $7,000 | | Table 2. Term Nutrient Credits Certification Application Fees | | | Base Fee | $3,000 | | Supplementary Fees | $/(CreditTerm Years) | | 1st 100 term nutrient credits (1 to 100) | $4.00 | | 2nd 100 term nutrient credits (101 to 200) | $3.00 | | 3rd 100 term nutrient credits (201 to 300) | $2.00 | | 4th 100 term nutrient credits (> 300) | $1.00 | | Table 3. Renewal Term Nutrient Credits Certification Application Fees | | | Base Fee | $1,000 | | Supplementary Fees | $/(CreditTerm Years) | | 1st 100 term nutrient credits (1 to 100) | $4.00 | | 2nd 100 term nutrient credits (101 to 200) | $3.00 | | 3rd 100 term nutrient credits (201 to 300) | $2.00 | | 4th 100 term nutrient credits (> 300) | $1.00 |

B. Illustrative examples.

1. Example 1. The applicant is submitting an application for nutrient credit certification of a nutrient credit-generating project that will generate perpetual credits. The number of potential perpetual credits calculated is 150. The required fee is calculated as follows:

| Base fee | $3,000 | | --- | --- | | Supplementary fee for 150 perpetual P credits | +$7,000 | | Total fee | = $10,000 |

2. Example 2. The applicant is submitting an application for nutrient credit certification of a nutrient credit-generating project that generated credits with a five-year term. The number of potential nutrient credits calculated is 275. The required fee is calculated as follows:

| Base fee | $3,000 | | --- | --- | | Supplementary fee for 1 to 100 credits | +(1005$4)=$2,000 | | Supplementary fee for 101 to 200 credits | +(1005$3)=$1,500 | | Supplementary fee for 201 to 275 credits | + (755$2)= $750 | | Total fee | = $7,250 |

3. Example 3. The applicant is submitting a renewal application for annual credits generated at a nutrient credit-generating project for a five-year term. The number of annual credits being renewed for another term is 165. The required fee is calculated as follows:

| Base fee | $1,000 | | --- | --- | | Supplementary fee for 1 to 100 credits | +(1005$4)=$2,000 | | Supplementary fee for 101 to 200 credits | +(655$3)=$975 | | Total fee | = $3,975 |

4. Example 4. The applicant is submitting an application for nutrient credit certification of a nutrient credit-generating project that generates credits with a five-year term. The number of potential nutrient credits calculated is 1000. The required fee is calculated as follows:

| Base fee | $3,000 | | --- | --- | | Supplementary fee for 1 to 100 credits | +(1005$4)=$2,000 | | Supplementary fee for 101 to 200 credits | +(1005$3)=$1,500 | | Supplementary fee for 201 to 300 credits | +(1005$2)=$1,000 | | Supplementary fee for 301 to 1000 credits | +(7005$1)=$3,500 | | Total Total fee | = $11,000 = $10,000 (fee cannot exceed $10,000) |

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

Part VI Financial Assurance

9VAC25-900-230 Financial assurance applicability

A. An owner of a nutrient credit-generating project that utilizes structural BMPs for the generation of perpetual credits shall submit and maintain financial assurance in accordance with this part. The financial assurance mechanism shall be submitted to and approved by the department prior to the release of credits.

B. An owner of a nutrient credit-generating project that utilizes structural BMPs for the generation of term credits with terms that exceed one year shall submit and maintain financial assurance in accordance with this part. However, an owner of a nutrient credit-generating project that utilizes structural BMPs for the generation of term credits with terms that exceed one year shall not be required to submit and maintain financial assurance in accordance with this part, provided that the department annually approves the generation of the term nutrient credits prior to release of the credits. In accordance with 9VAC25-900-90 B, the financial assurance mechanism shall be submitted to and approved by the department prior to the release of credits. For the purposes of this part, term credit shall refer to credit with a term greater than one year but not perpetual.

C. An owner of a nutrient credit-generating project using proposed new wetland or stream restoration practices not subject to 33 CFR 332.8 and § 62.1-44.15:23 of the Code of Virginia for the generation of perpetual credits shall be required to submit and maintain financial assurance in accordance with this chapter. In accordance with 9VAC25-900-90 B, the financial assurance mechanism shall be submitted to and approved by the department prior to the release of credits. The following financial assurances shall be provided for these new wetland or stream restoration projects:

1. A monitoring plan financial assurance mechanism shall be established to ensure implementation of the monitoring plan pursuant to 9VAC25-900-120 for any nutrient credits generated from wetland or stream restoration. When the owner conducts the required monitoring and submits a complete monitoring report as specified in the monitoring plan and report requirements, then the owner may request a reduction of the required financial assurance amount equivalent to the cost of one year of monitoring, subject to department approval. If any funds remain in the financial assurance mechanism after the monitoring period, the mechanism shall be maintained until the final monitoring report is submitted and approved, at which point the mechanism shall be released by the department;

2. A long-term management fund financial assurance mechanism shall be established in support of required long-term management plan tasks pursuant to 9VAC25-900-120 for any nutrient credits generated from wetland or stream restoration. Long-term management funds shall be placed in a separate interest bearing trust account in an appropriate financial institution and may be funded from a sufficient percentage of all credit sale proceeds, a single lump sum payment, or an approved schedule of payments, subject to department approval. No long-term management funds shall be used to finance any expense or activity other than those specified in the long-term management plan unless approved by the department. Responsibility for and access to the long-term management fund is given to the owner or long-term steward and may be transferred to any new long-term steward that is designated by the owner and approved by the department; and

3. In lieu of the long-term management fund trust account for stream restoration projects established in subdivision 2 of this subsection, a third-party long-term steward approved by the department, such as a public agency, nongovernmental organization, or private land manager, may hold long-term management funds in a separate interest-bearing account to be used only for the long-term management of the stream restoration project.

D. When the nutrient credits are generated or used by a locality, authority, utility, sanitation district, or owner operating an MS4 or a point source permitted under 9VAC25-875, the existence of tax or rate authority may be used by such entity at its option in satisfaction of the financial assurance required pursuant to this part.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022; Volume 41, Issue 1, eff. September 25, 2024.

9VAC25-900-240 Suspension of nutrient credit exchange

Failure to provide or maintain adequate evidence of financial assurance in accordance with this part shall be cause for the department to suspend the exchange of credits in accordance with 9VAC25-900-170 or terminate the nutrient credit certification in accordance with 9VAC25-900-180.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-250 Cost estimates for perpetual and term credit nutrient credit-generating projects

A. The owner of a nutrient credit-generating project shall prepare for approval by the department a detailed written cost estimate providing the cost of repairing or restoring, as appropriate, and operating and maintaining any structural BMPs required to submit and maintain financial assurance pursuant to 9VAC25-900-230. This written cost estimate shall be submitted as part of the application in accordance with 9VAC25-900-80 and shall include:

1. For structural BMPs generating perpetual nutrient credits, the cost estimate shall equal the full cost for repairing or restoring, as appropriate, the structural BMPs plus the cost for fifty years of operation and maintenance of the structural BMPs in accordance with the implementation plan.

2. For structural BMPs generating term nutrient credits, the cost estimate shall equal the full cost for repairing or restoring, as appropriate, the structural BMPs plus the cost for the operation and maintenance of the structural BMPs in accordance with the implementation plan for the term of the credits or for five years, whichever is less.

3. The cost estimate shall be based on and include the costs of hiring a third party to either repair or restore and operate and maintain the structural BMPs generating nutrient credits. The third party may not be either a parent corporation or subsidiary of the owner.

B. The owner of the nutrient credit-generating project utilizing proposed new wetland or stream restoration practices not subject to 33 CFR 332.8 and § 62.1-44.15:23 of the Code of Virginia will develop a separate written cost estimate for each of the applicable financial assurance requirements provided in 9VAC25-900-230 D. All cost estimates shall be submitted as part of the application in accordance with 9VAC25-900-80.

1. Monitoring plan financial assurance cost estimates shall be sufficient to hire another qualified entity to monitor and report on performance standards for the nutrient credit-generating project in the event of noncompliance with this chapter.

2. Long-term management fund financial assurance cost estimates shall be based on the size and complexity of the implementation plan, long-term management plan tasks, and any other factors that the department deems appropriate and will state the total dollar amount required to fund this financial assurance.

C. For a nutrient credit-generating project generating perpetual credit, the cost estimate shall be updated by the owner and submitted to the department for its review for sufficiency at least once every five years.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-260 Financial assurance requirements for term credits

A. For a nutrient credit-generating project generating term credits and required to submit and maintain financial assurance pursuant to 9VAC25-900-230, the owner shall demonstrate financial assurance using any one or a combination of the mechanisms specified in 9VAC25-900-290 through 9VAC25-900-330.

B. The financial assurance mechanism shall provide funding for the full amount of the cost estimate at all times.

C. The financial assurance mechanism used to provide evidence of the financial assurance shall ensure that the funds necessary will be available whenever they are needed.

D. The owner shall provide continuous financial assurance coverage for the term credit nutrient credit-generating project in accordance with this part until released by the department.

E. After submittal of a complete financial assurance mechanism, the department shall notify the owner of the tentative decision to approve or reject the financial assurance mechanism.

F. A financial assurance mechanism must be in a form that ensures that the department will receive proper notification in advance of any termination or revocation. The owner may, at their discretion and with prior approval of the department, replace the financial assurance or financial institution that issued the financial assurance. The owner shall provide the department with prior notice of its desire to replace the issuing institution and a draft of the new mechanism for review. The provisions of the new mechanism shall conform to the provisions of the former mechanism and this part.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-270 Financial assurance requirements for perpetual credits

A. Subject to the requirements and limitations outlined in this section, the owner shall demonstrate financial assurance for the nutrient credit-generating project generating perpetual nutrient credits using any one or combination of the mechanisms specified in 9VAC25-900-290 through 9VAC25-900-330. However, for restoration projects, the owner may only use a trust fund as provided in 9VAC25-900-290 to demonstrate financial assurance for the long-term management fund as described in 9VAC25-900-230 C 2, unless a third-party long-term steward is approved by the department in accordance with 9VAC25-900-230 C 3.

B. The financial assurance mechanism used shall provide funding for the full amount of the cost estimate or of the sum of all cost estimates at all times.

C. The owner may only establish or continue to use insurance, as outlined in 9VAC25-900-330, to demonstrate financial assurance for that portion of the total cost estimate that does not include credits that have been exchanged. On an annual basis, the owner shall either establish or increase the noninsurance mechanism outlined in 9VAC25-900-290 through 9VAC25-900-320 in an amount to be determined in accordance with the following formula:

CE/TCIAS * CEDAAP

where:

CE = Cost Estimate

TCIAS = Total Number of Credits Initially Available for Exchange

CEDAAP = Number of Credits Exchanged During the Applicable Annual Period

D. The owner shall establish or increase the mechanism as required by subsection C of this section no later than 30 days after the current anniversary date of the nutrient credit certification. The applicable annual period for credits exchanged is the one culminating on the anniversary date of the nutrient credit certification.

E. The financial assurance mechanisms used to provide evidence of the financial assurance shall ensure that the funds necessary will be available whenever they are needed.

F. After submittal of a complete financial assurance mechanism, the department shall notify the owner of the tentative decision to approve or reject the financial assurance mechanism.

G. A financial assurance mechanism must be in a form that ensures that the department will receive proper notification in advance of any termination or revocation. The owner may, at its discretion and with prior approval of the department, replace the financial assurance or financial institution that issued the financial assurance. The owner shall provide the department with prior notice of its desire to replace the issuing institution and a draft of the new mechanism for review. The provisions of the new mechanism shall conform to the provisions of the former mechanism and this part.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022.

9VAC25-900-280 Allowable financial mechanisms

A. Subject to the limitations and requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, an owner of nutrient credit-generating project using structural BMPs to generate term or perpetual nutrient credits and required to submit financial assurance pursuant to 9VAC25-900-230 may use any one or combination of mechanisms listed in 9VAC25-900-290 through 9VAC25-900-330 to meet the financial assurance requirements of this chapter.

B. Subject to the limitation and requirements outlined in 9VAC25-900-270, an owner of a nutrient credit-generating project utilizing wetland or stream restoration practices to generate perpetual credits and required to submit financial assurance pursuant to 9VAC25-900-230, may use any one or combination of mechanisms listed in 9VAC25-900-290 through 9VAC25-900-330 to meet the financial assurance requirements for the monitoring plan; however, only a trust fund may be used to meet the financial assurance requirements for the long-term management fund, unless a third-party long-term steward is approved by the department in accordance with 9VAC25-230 C 3.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022.

9VAC25-900-290 Trust

A. An owner may satisfy the requirements of this part by establishing a trust fund that conforms to the requirements of this section and by submitting an originally signed triplicate of the trust agreement to the director. The owner shall also place a copy of the trust agreement into the nutrient credit-generating project's operating record. The trustee for the trust fund shall be a bank or financial institution that has the authority to act as a trustee and whose trust operations are regulated and examined by a state or federal agency.

B. Payments into the trust fund shall be made by the owner whenever necessary under the requirements of 9VAC25-900-260 or 9VAC25-900-270.

C. During any annual period when a payment into the fund is necessary under the applicable requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, the owner must submit the following information to the director no later than the anniversary date of the initial approval by the department of the release of credits for exchange:

1. The calculation for determining the appropriate payment amount into the trust; and

2. A statement from the trustee indicating the amount of the currently required deposit into the trust fund and the subsequent balance of the fund.

D. The owner shall compare the cost estimate with the trustee's most recent annual valuation of the trust fund:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the value of the fund is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner may submit a written request to the director for release of the amount that is in excess of the cost estimate; and

2. Whenever the cost estimate changes. If the value of the fund is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the new estimate, or obtain other financial assurance as specified in this part to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner may submit a written request to the director for release of the amount that is in excess of the cost estimate.

E. The department shall withdraw funds from the trust when the owner has failed to monitor, operate and maintain, perform long-term maintenance for, or repair or replace, as applicable, the practices utilized by the nutrient credit-generating project in accordance with this chapter and the nutrient credit certification. The department shall use the funds to pay for the performance of monitoring, operation, and maintenance, or the performance of long-term maintenance, or repair and replacement, as applicable, of the practices utilized by the nutrient credit-generating project.

F. Subject to the limitations and requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, if the owner substitutes other financial assurance as specified in this part for all or part of the trust fund, the owner may submit a written request to the director for release of the amount in excess of the current cost estimate covered by the trust fund.

G. Within 60 days after receiving a request from the owner for release of funds as described in subsections F and H of this section, the director shall instruct the trustee to release to the owner such funds as the director deems appropriate, if any, in writing.

H. The director shall agree to terminate the trust when:

1. The owner substitutes alternate financial assurance as specified in this part; or

2. The director notifies the owner that the owner is no longer required by this part to maintain financial assurance for the nutrient credit-generating project.

I. The trust agreement shall be worded as described in 9VAC25-900-350, except that instructions in parentheses are to be replaced with the appropriate information and the parentheses deleted, and the trust agreement shall be accompanied by a formal certification of acknowledgment and Schedules A and B.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-300 Surety bond

A. An owner may satisfy the requirements of this part by obtaining a surety bond that conforms to the requirements of this section and by submitting an originally signed duplicate of the bond to the department. The surety company issuing the bond shall be licensed to operate as a surety in the Commonwealth of Virginia and be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.

B. Under the terms of the bond, the surety shall become liable on the bond obligation when the owner fails to perform as guaranteed by the bond.

C. The bond shall guarantee that the owner or any other authorized person shall perform all or any of the following activities for which the bond is used to satisfy the requirements of this part:

1. Operate and maintain, monitor, repair, or replace any practices for achieving nutrient reductions at the nutrient credit-generating project in question and in accordance with the nutrient credit certification; or,

2. Operate and maintain, monitor, repair, or replace any practices following an order to do so that has been issued by the department or by a court.

D. The owner shall compare the cost estimate with the penal sum of the bond:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the penal sum of the bond is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, increase the penal sum of the bond so that its value at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the penal sum of the bond is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the penal sum of the bond to the amount of the cost estimate; and

2. Whenever the cost estimate changes. If the penal sum of the bond is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, increase the penal sum of the bond so that its value at least equals the amount of the new estimate, or obtain other financial assurance as specified in this part to cover the difference. If the penal sum of the bond is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the penal sum of the bond to the amount of the cost estimate.

E. The surety bond shall guarantee that the owner shall provide alternate evidence of financial assurance as specified in this part within 60 days after receipt by the department of a notice of cancellation of the bond from the surety.

F. The bond shall remain in force for its term unless the surety sends written notice of cancellation by certified mail to the owner and to the department. Cancellation cannot occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by the department as shown on the signed return receipt. The surety shall provide written notification to the department by certified mail no less than 120 days prior to the expiration date of the bond that the bond will expire and the date the bond will expire.

G. The department shall cash the surety bond:

1. When it is not replaced 60 days prior to expiration with alternate evidence of financial assurance acceptable to the department; or

2. If the owner has failed to monitor, operate and maintain, or repair or replace, as applicable, the practices utilized by the nutrient credit-generating project in accordance with this chapter and the nutrient credit certification. The department shall use the funds from the surety bond to pay for the performance of monitoring, operation, and maintenance or repair and replacement, as applicable, of the practices utilized by the nutrient credit-generating project.

H. The department shall return the original surety bond to the surety for termination when:

1. The owner substitutes acceptable alternate evidence of financial assurance; or

2. The director notifies the owner that the owner is no longer required by this part to maintain evidence of financial assurance for nutrient credit-generating project.

I. The surety bond shall be worded as described in 9VAC25-900-350, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-310 Letter of credit

A. An owner may satisfy the requirements of this part by obtaining an irrevocable standby letter of credit that conforms to the requirements of this section and by submitting an originally signed duplicate of the letter of credit to the department. The issuing institution shall be an entity that has the authority to issue letters of credit in the Commonwealth of Virginia and whose letter-of-credit operations are regulated and examined by a federal agency or the Virginia State Corporation Commission.

B. The letter of credit shall be irrevocable and issued for a period of at least one year. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the issuing institution decides not to extend the letter of credit beyond the current expiration date, it shall, at least 120 days before the expiration date, notify both the owner and the department by certified mail of that decision. The 120-day period will begin on the date of receipt of letter of credit's notice of cancellation by the department as shown on the signed return receipt. If the letter of credit is canceled by the issuing institution, the owner shall obtain alternate evidence of financial assurance to be in effect prior to the expiration date of the letter of credit.

C. The owner shall compare the cost estimate with the face amount of the letter of credit:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the face amount of the letter of credit is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, increase the face amount of the letter of credit so that its value at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the face amount of the letter of credit is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the face amount of the letter of credit to the amount of the cost estimate; and

2. Whenever the cost estimate changes. If the face amount of the letter of credit is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, increase the face amount of the letter of credit so that its value at least equals the amount of the new estimate or obtain other financial assurance as specified in this part to cover the difference. If the face amount of the letter of credit is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to reduce the face amount of the letter of credit to the amount of the cost estimate.

D. The issuing institution may cancel the letter of credit only if alternate evidence of financial assurance acceptable to the department is substituted as specified in this part or if the owner is released by the department from the requirements of financial assurance.

E. The department shall cash the letter of credit when:

1. The issuing institution has provided proper notification, as outlined in subsection B of this section, of its intent not to renew the letter of credit, and the owner has not, within 30 days prior to expiration, replaced the letter of credit with alternate evidence of financial assurance acceptable to the department; or

2. The owner has failed to monitor, operate, and maintain or repair or replace, as applicable, the practices utilized by the nutrient credit-generating project in accordance with this chapter and the nutrient credit certification. The department shall use the funds from the letter of credit to pay for the performance of monitoring, operation, and maintenance or repair and replacement, as applicable, of the practices utilized by the nutrient credit-generating project.

F. The department shall return the original letter of credit to the issuing institution for termination when:

1. The owner substitutes acceptable alternate evidence of financial assurance; or

2. The department notifies the owner that the owner is no longer required by this part to maintain evidence of financial assurance for the nutrient credit-generating project.

G. The letter of credit shall be worded as described in 9VAC25-900-350, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-320 Certificate of deposit

A. An owner may satisfy the requirements of this chapter, wholly or in part, by obtaining a certificate of deposit and assigning all rights, title, and interest in the certificate of deposit to the department, conditioned so that the owner shall perform the applicable monitoring, operation, and maintenance or repair or replacement for the practices utilized by the nutrient credit-generating project. The issuing institution shall be an entity that has the authority to issue certificates of deposit in the Commonwealth of Virginia and whose operations are regulated and examined by a federal agency or the Virginia State Corporation Commission. The owner must submit the originally signed assignment and the originally signed certificate of deposit, if applicable, to the department.

B. The owner shall compare the cost estimate with the amount of the certificate of deposit:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the amount of the certificate of deposit is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, increase the amount of the certificate of deposit so that its value at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the amount of the certificate of deposit is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to withdraw funds from the certificate of deposit to the amount of the cost estimate; and

2. Whenever the cost estimate changes. If the amount of the certificate of deposit is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, increase the amount of certificate of deposit so that its value at least equals the amount of the new estimate or obtain other financial assurance as specified in this part to cover the difference. If the amount of the certificate of deposit is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to withdraw funds from the certificate of deposit to the amount of the cost estimate.

C. The owner shall be entitled to demand, receive, and recover the interest and income from the certificate of deposit as it becomes due and payable as long as the market value of the certificate of deposit used continues to at least equal the amount of the current approved cost estimate.

D. The department shall cash the certificate of deposit if the owner has failed to monitor, operate, and maintain or repair or replace, as applicable, the practices utilized by the nutrient credit-generating project in accordance with this chapter and the nutrient credit certification. The department shall use the funds from the certificate of deposit to pay for the performance of monitoring, operation, and maintenance or repair and replacement, as applicable, of the practices utilized by the nutrient credit-generating project.

E. The department shall return the original assignment and certificate of deposit, if applicable, to the issuing institution for termination when:

1. The owner substitutes acceptable alternate evidence of financial assurance as specified in this part; or

2. The department notifies the owner that the owner is no longer required by this part to maintain evidence of financial assurance.

F. The assignment shall be worded as described in 9VAC25-900-350, except that instructions in parentheses shall be replaced with the relevant information and the parentheses deleted.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-330 Insurance

A. An owner may demonstrate financial assurance for applicable costs for monitoring, repair, or replacement or operation and maintenance by obtaining insurance that conforms to the requirements of this section. The insurance shall be effective before the credits are released by the department for exchange. The insurer must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia. The owner shall provide the department with a signed copy of the insurance policy. The department shall be listed as an additional insured on the policy, but the department shall not be obligated for payment of the premium in any manner.

B. The insurance policy shall guarantee that funds will be available to fund (i) for projects using wetland or stream restoration, the cost for fulfilling the requirements of the monitoring plan or (ii) for projects using structural BMPs, the reasonable and necessary cost of repair, replacement, or operation and maintenance or any combination of these activities.

C. The owner shall compare the cost estimate with the liability limit of the insurance policy:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the liability limit of the insurance policy is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, increase the liability limit of the insurance policy so that it at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the liability limit of the insurance policy is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to lower the liability limit of the insurance policy to the amount of the cost estimate; and

2. Whenever the cost estimate changes. If the liability limit of the insurance policy is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, increase the liability limit of the insurance policy so that it at least equals the amount of the new estimate or obtain other financial assurance as specified in this part to cover the difference. If the liability limit of the insurance policy is greater than the total amount of the cost estimate, the owner may submit a written request to the director for permission to lower the liability limit of the insurance policy to the amount of the cost estimate.

D. The insurance policy shall be issued and maintained for an overall liability limit at least equal to the current cost estimate for applicable activities covered under the policy (i.e., monitoring, repair, and replacement or operation and maintenance). The term "overall liability limit" means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the overall liability limit although the insurer's future liability will be lowered by the amount of the payments.

E. The insurance policy shall provide that the insurer shall pay, as applicable, for the monitoring, repair, or replacement or operation and maintenance of the nutrient credit-generating project's practices. Justification and documentation of the expenditures must be submitted to and approved by the director. Requests for payment will be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of monitoring, repair, or replacement or operation and maintenance of the nutrient credit-generating project's practices, or if the director approves the payment. The insurer shall notify the director when a payment has been made.

F. Each policy shall contain a provision allowing assignment of the policy to a successor owner. Such assignment may be conditional upon consent of the insurer, provided that such consent is not unreasonably refused.

G. The insurance policy shall provide that the insurer may not cancel, except for failure to pay the premium. In addition, the policy shall provide that, subject to payment of premium, it will automatically renew on an annual basis for a period of up to 10 years. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may cancel or terminate the policy by sending notice of cancellation or termination by certified mail to the owner and to the department 120 days in advance of cancellation or termination. Within 60 days of receipt of notice from the insurer that it intends either to cancel or terminate the policy, the owner shall obtain alternate financial assurance and submit it to the department.

H. The owner may cancel the insurance policy only if alternate financial assurance is substituted as specified in this part, or if the owner is no longer required to demonstrate financial responsibility.

I. Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy) of the United States Code, naming an owner as debtor, the owner shall notify the director by certified mail of such commencement.

J. The wording of the insurance endorsement shall be identical to the wording specified in 9VAC25-900-350. ACORD Certificates of Insurance are not valid proof of insurance.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-340 Incapacity of financial providers or owner

A. An owner that fulfills the requirements of this part by obtaining a trust fund, a letter of credit, a surety bond, or an insurance policy shall be deemed to be without the required financial assurance in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing a surety bond, letter of credit, or insurance policy to issue such mechanisms. The owner or operator shall establish other financial assurance within 60 days of such event.

B. An owner shall notify the director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy) of the United States Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding.

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

9VAC25-900-350 Wording of the financial assurance mechanism

A. The wording of the financial assurance mechanisms shall be as provided in this section.

B. Wording of trust agreements.

(NOTE: Instructions in parentheses are to be replaced with the applicable information for the nutrient credit-generating project's practices (i.e., structural BMPs or wetland/stream restoration) and the non-relevant information and parentheses deleted.)

TRUST AGREEMENT

Trust agreement, the "Agreement," entered into as of (date) by and between (name of the owner), a (State) (corporation, partnership, association, proprietorship), the "Grantor," and (name of corporate trustee), a (State corporation) (national bank), the "Trustee."

Whereas, the State Water Control Board has established certain regulations applicable to the Grantor, requiring that the owner of a nutrient credit-generating project must provide assurance that funds will be available when needed for (operation and maintenance and/or repair or replacement of the project's structural BMPs) (monitoring and/or long-term maintenance of the project's wetland/stream restoration),

Whereas, the Grantor has elected to establish a trust to provide (all or part of) such financial assurance for the project identified herein,

Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee,

Now, therefore, the Grantor and the Trustee agree as follows:

Section 1. Definitions. As used in this Agreement:

A. The term "fiduciary" means any person who exercises any power of control, management, or disposition or renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of this trust fund, or has any authority or responsibility to do so, or who has any authority or responsibility in the administration of this trust fund.

B. The term "Grantor" means the owner who enters into this Agreement and any successors or assigns of the Grantor.

C. The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.

Section 2. Identification of Project and Cost Estimates. This Agreement pertains to project(s) and cost estimates identified on attached Schedule A.

(NOTE: On Schedule A, for each project, list, as applicable, name, address, and the current cost estimates for operation and maintenance and/or repair or replacement for the project's structural BMPs; or the current cost estimates for the monitoring and/or long-term maintenance of the project's wetland/stream restoration, or portions thereof, for which financial assurance is demonstrated by this Agreement.)

Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of the Department of Environmental Quality, Commonwealth of Virginia. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as property consisting of cash or securities, which are acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund will be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee undertakes no responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments to discharge any liabilities of the Grantor established by the Commonwealth of Virginia's Department of Environmental Quality.

Section 4. Payment for (operation and maintenance and/or repair or replacement for the project's structural BMPs) (monitoring and/or long-term maintenance for the project's wetland/stream restoration). The Trustee will make such payments from the Fund as the Department of Environmental Quality, Commonwealth of Virginia will direct, in writing, to provide for the payment of the costs of (operation and maintenance and/or repair or replacement for the project's structural BMPs) (monitoring and/or long-term maintenance for the project's wetland/stream restoration) of the project covered by this Agreement. The Trustee will reimburse the Grantor or other persons as specified by the Department of Environmental Quality, Commonwealth of Virginia, from the Fund for (operation and maintenance and/or repair or replacement for the project's structural BMPs) (monitoring and/or long-term maintenance for the project's wetland/stream restoration) expenditures in such amounts as the Department of Environmental Quality will direct, in writing. In addition, the Trustee will refund to the Grantor such amounts as the Department of Environmental Quality specifies in writing. Upon refund, such funds will no longer constitute part of the Fund as defined herein.

Section 5. Payments Comprising the Fund. Payments made to the Trustee for the fund will consist of cash or securities acceptable to the Trustee.

Section 6. Trustee Management. The Trustee will invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with investment guidelines and objectives communicated in writing to the Trustee from time to time by the Grantor, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling and managing the Fund, the Trustee or any other fiduciary will discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of any enterprise of a like character and with like aims; except that:

A. Securities or other obligations of the Grantor, or any other owner of the project, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 USC § 80a-2(a), will not be acquired or held, unless they are securities or other obligations of the federal or a state government;

B. The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or state government; and

C. The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:

A. To transfer from time to time any or all of the assets of the Fund to any common, commingled or collective trust fund created by the Trustee in which the Fund is eligible to participate subject to all of the provisions thereof, to be commingled with the assets of other trusts participating herein. To the extent of the equitable share of the Fund in any such commingled trust, such commingled trust will be part of the Fund; and

B. To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 USC § 80a-1 et seq., or one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustees may vote such shares in its discretion.

Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:

A. To sell, exchange, convey, transfer or otherwise dispose of any property held by it, by private contract or at public auction. No person dealing with the Trustee will be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other dispositions;

B. To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

C. To register any securities held in the fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States government, or any agency or instrumentality thereof with a Federal Reserve Bank, but the books and records of the Trustee will at all times show that all such securities are part of the Fund;

D. To deposit any cash in the fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or State government; and

E. To compromise or otherwise adjust all claims in favor of or against the Fund.

Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund will be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee will be paid from the Fund.

Section 10. Annual Valuation. The Trustee will annually, at the end of the month coincident with or preceding the anniversary date of establishment of the Fund, furnish the Grantor and to the director of the Department of Environmental Quality, Commonwealth of Virginia, a statement confirming the value of the Trust. Any securities in the Fund will be valued at market value as of no more than 30 days prior to the date of the statement. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the director of the Department of Environmental Quality, Commonwealth of Virginia will constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.

Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee will be fully protected, to the extent permitted by law, in acting upon the advice of counsel.

Section 12. Trustee Compensation. The Trustee will be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.

Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon acceptance of the appointment by the successor trustee, the Trustee will assign, transfer and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee and the date on which he assumes administration of the trust will be specified in writing and sent to the Grantor, the director of the Department of Environmental Quality, Commonwealth of Virginia, and the present trustees by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section will be paid as provided in Section 9.

Section 14. Instructions to the Trustee. All orders, requests and instructions by the Grantor to the Trustee will be in writing, signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendment to Exhibit A. The Trustee will be fully protected in acting without inquiry in accordance with the Grantor's orders, requests and instructions. All orders, requests, and instructions by the Director of the Department of Environmental Quality, Commonwealth of Virginia, to the Trustee will be in writing, signed by the Director and the Trustee will act and will be fully protected in acting in accordance with such orders, requests and instructions. The Trustee will have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or the Commonwealth of Virginia's Department of Environmental Quality hereunder has occurred. The Trustee will have no duty to act in the absence of such orders, requests and instructions from the Grantor and/or the Commonwealth of Virginia's Department of Environmental Quality, except as provided for herein.

Section 15. Notice of Nonpayment. The Trustee will notify the Grantor and the Director of the Department of Environmental Quality, Commonwealth of Virginia, by certified mail within 10 days following the expiration of the 30-day period after the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period. After the pay-in period is completed, the Trustee is not required to send a notice of nonpayment.

Section 16. Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director of the Department of Environmental Quality, Commonwealth of Virginia, if the Grantor ceases to exist.

Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust will be irrevocable and will continue until terminated at the written agreement of the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, will be delivered to the Grantor.

Section 18. Immunity and Indemnification. The Trustee will not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the Director of the Department of Environmental Quality, Commonwealth of Virginia, issued in accordance with this Agreement. The Trustee will be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.

Section 19. Choice of Law. This Agreement will be administered, construed and enforced according to the laws of the Commonwealth of Virginia.

Section 20. Interpretation. As used in the Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement will not affect the interpretation of the legal efficacy of this Agreement.

In witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is substantively identical to the wording specified in 9VAC25-900-350 B, as such regulations were constituted on the date shown immediately below.

| (Signature of Grantor) | | | --- | --- | | By: (Title) | (Date) | | Attest: | | | (Title) | (Date) | | (Seal) | | | (Signature of Trustee) | | | By | | | Attest: | | | (Title) | | | (Seal) | (Date) |

Certification of Acknowledgment:

COMMONWEALTH OF VIRGINIA

STATE OF __________

CITY/COUNTY OF __________

On this date, before me personally came (owner) to me known, who being by me duly sworn, did depose and say that she/he resides at (address), that she/he is (title) of (corporation), the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she/he signed her/his name thereto by like order.

(Signature of Notary Public)

C. Wording of surety bond guaranteeing performance or payment.

(NOTE: Instructions in parentheses are to be replaced with the applicable information for the nutrient credit-generating project's practices (i.e., structural BMPs or wetland/stream restoration) and the non-relevant information and parentheses deleted.)

PERFORMANCE OR PAYMENT BOND

Date bond executed: __________

Effective date: __________

Principal: (legal name and business address) _____________

Type of organization: (insert "individual," "joint venture," "partnership," or "corporation") _____________

State of incorporation: __________

Surety: (name and business address) _____________

Name, address, and cost estimate or estimates for the project: _____________

Penal sum of bond: $________

Surety's bond number: __________

Know all men by these present, That we, the Principal and Surety hereto are firmly bound to the Department of Environmental Quality, Commonwealth of Virginia, (hereinafter called the Department) in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of each sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas, said Principal is required to have from the Department of Environmental Quality, Commonwealth of Virginia, in order to own or operate the, nutrient credit-generating project identified above, and

Whereas, said Principal is required to provide financial assurance for (operation and maintenance and/or repair or replacement for the project's structural BMPs) (monitoring and/or long-term maintenance for the project's wetland/stream restoration) of the project as a condition of an order issued by the department,

Now, therefore the conditions of this obligation are such that if the Principal shall faithfully perform (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration), whenever required to do so, of the project identified above in accordance with the order or the (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) submitted to receive and other requirements of as such plan and may be amended or renewed pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended,

Or, if the Principal shall faithfully perform (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) following an order to begin (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) issued by the Commonwealth of Virginia's Department of Environmental Quality or by a court, or following a notice of termination of the permit,

Or, if the Principal shall provide alternate financial assurance as specified in the Department's regulations and obtain the director's written approval of such assurance, within 90 days of the date notice of cancellation is received by the Director of the Department of Environmental Quality from the Surety, then this obligation will be null and void, otherwise it is to remain in full force and effect for the life of the nutrient credit-generating project identified above.

The Surety shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the Director of the Department of Environmental Quality, Commonwealth of Virginia, that the Principal has been found in violation of the requirements of the Department's regulations, the Surety must either perform (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) in accordance with the approved plan and other requirements or forfeit the (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) amount guaranteed for the nutrient credit-generating project to the Commonwealth of Virginia.

Upon notification by the Director of the Department of Environmental Quality, Commonwealth of Virginia, that the Principal has been found in violation of an order to begin operation and maintenance and/or replacement) the Surety must either perform (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) in accordance with the order or forfeit the amount of the (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) guaranteed for the nutrient credit-generating project to the Commonwealth of Virginia.

The Surety hereby waives notification of amendments to the operation and maintenance and/or replacement, orders, applicable laws, statutes, rules, and regulations and agrees that such amendments shall in no way alleviate its obligation on this bond.

For purposes of this bond, (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) shall be deemed to have been completed when the Director of the Department of Environmental Quality, Commonwealth of Virginia, determines that the conditions of the approved plan have been met.

The liability of the Surety shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but the obligation of the Surety hereunder shall not exceed the amount of said penal sum unless the Director of the Department of Environmental Quality, Commonwealth of Virginia, should prevail in an action to enforce the terms of this bond. In this event, the Surety shall pay, in addition to the penal sum due under the terms of the bond, all interest accrued from the date the Director of the Department of Environmental Quality, Commonwealth of Virginia, first ordered the Surety to perform. The accrued interest shall be calculated at the judgment rate of interest pursuant to § 6.2-302 of the Code of Virginia.

The Surety may cancel the bond by sending written notice of cancellation to the owner and to the Director of the Department of Environmental Quality, Commonwealth of Virginia, provided, however, that cancellation cannot occur (1) during the 120 days beginning on the date of receipt of the notice of cancellation by the director as shown on the signed return receipt; or (2) while an enforcement action is pending.

The Principal may terminate this bond by sending written notice to the Surety, provided, however, that no such notice shall become effective until the Surety receives written authorization for termination of the bond by the Director of the Department of Environmental Quality, Commonwealth of Virginia.

In witness whereof, the Principal and Surety have executed this Performance Bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety and I hereby certify that the wording of this surety bond is substantively identical to the wording specified in 9VAC25-900-350 C as such regulations were constituted on the date shown immediately below.

Principal

Signature(s): __________

Name(s) and Title(s): (typed)__________

Corporate Surety

Name and Address: __________

State of Incorporation: __________

Liability Limit: $___

Signature(s): __________

Name(s) and Title(s): (typed)__________

Corporate Seal:

D. Wording of irrevocable standby letter of credit.

(NOTE: Instructions in parentheses are to be replaced with the applicable information for the nutrient credit-generating project's practices (i.e., structural BMPs or wetland/stream restoration) and the non-relevant information and parentheses deleted.)

IRREVOCABLE STANDBY LETTER OF CREDIT

Director

Department of Environmental Quality

P.O. Box 1105

Richmond, Virginia 23218

Dear (Sir or Madam):

We hereby establish our Irrevocable Letter of Credit No...... in your favor at the request and for the account of (owner's name and address) up to the aggregate amount of (in words) U.S. dollars $____, available upon presentation of

1. Your sight draft, bearing reference to this letter of credit No ____ together with

2. Your signed statement declaring that the amount of the draft is payable pursuant to regulations issued under the authority of the Department of Environmental Quality, Commonwealth of Virginia.

The following amounts are included in the amount of this letter of credit: (Insert the nutrient credit-generating project name and address, and the appropriate cost estimate or estimates, or portions thereof, for which financial assurance is demonstrated by this letter of credit.)

This letter of credit is effective as of (date) and will expire on (date at least one year later), but such expiration date will be automatically extended for a period of (at least one year) on (date) and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify you and (owner or operator's name) by certified mail that we decide not to extend the Letter of Credit beyond the current expiration date. In the event you are so notified, unused portion of the credit will be available upon presentation of your sight draft for 120 days after the date of receipt by you as shown on the signed return receipt or while a compliance procedure is pending, whichever is later.

Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we will duly honor such draft upon presentation to us, and we will pay to you the amount of the draft promptly and directly.

I hereby certify that I am authorized to execute this letter of credit on behalf of (issuing institution) and I hereby certify that the wording of this letter of credit is substantively identical to the wording specified in 9VAC25-900-350 D as such regulations were constituted on the date shown immediately below.

Attest:

(Print name and title of official of issuing institution) (Date)

| | | | --- | --- | | (Signature) | (Date) |

This credit is subject to the most recent edition of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600, and any subsequent revisions thereof approved by a congress of the International Chamber of Commerce and adhered to by us. If this credit expires during an interruption of business as described in Article 36 of said Publication 600, the bank hereby specifically agrees to effect payment if this credit is drawn against within thirty (30) days after resumption of our business.

E. Assignment of certificate of deposit account.

City _______________________ _________, 20

FOR VALUE RECEIVED, the undersigned assigns all right, title and interest to the Virginia Department of Environmental Quality, Commonwealth of Virginia, and its successors and assigns the Virginia Department of Environmental Quality the principal amount of the instrument, including all moneys deposited now or in the future to that instrument, indicated below:

This assignment includes all interest now and hereafter accrued.

Certificate of Deposit Account No. _____________________

This assignment is given as security to the Virginia Department of Environmental Quality in the amount of _______________________ Dollars ($_____________).

Continuing Assignment. This assignment shall continue to remain in effect for all subsequent terms of the automatically renewable certificate of deposit.

Assignment of Document. The undersigned also assigns any certificate or other document evidencing ownership to the Virginia Department of Environmental Quality.

Additional Security. This assignment shall secure the payment of any financial obligation of the (name of owner) to the Virginia Department of Environmental Quality for (operation and maintenance and/or repair or replacement of structural BMPs) (monitoring wetland/stream restoration) at the (project name) located (physical address).

Application of Funds. The undersigned agrees that all or any part of the funds of the indicated account or instrument may be applied to the payment of any and all financial assurance obligations of (name of owner) to the Virginia Department of Environmental Quality for (operation and maintenance and/or repair or replacement) (monitoring) at the (project name and address). The undersigned authorizes the Virginia Department of Environmental Quality to withdraw any principal amount on deposit in the indicated account or instrument including any interest, if indicated, and to apply it in the Virginia Department of Environmental Quality's discretion to fund (operation and maintenance and/or repair or replacement) (monitoring) at the (project name) or in the event of (owner) failure to comply with the 9VAC25-900. The undersigned agrees that the Virginia Department of Environmental Quality may withdraw any principal and/or interest from the indicated account or instrument without demand or notice. (The undersigned) agrees to assume any and all loss of penalty due to federal regulations concerning the early withdrawal of funds. Any partial withdrawal of principal or interest shall not release this assignment.

The party or parties to this Assignment set their hand or seals, or if corporate, has caused this assignment to be signed in its corporate name by its duly authorized officers and its seal to be affixed by authority of its Board of Directors the day and year above written.

| | SEAL | | --- | --- | | (Owner) | | | | | | (print owner's name) | | | | SEAL | | (Owner) | | | | | | (print owner's name) | |

THE FOLLOWING SECTION IS TO BE COMPLETED BY THE BRANCH OR LENDING OFFICE:

The signature(s) as shown above compare correctly with the name(s) as shown on record as owner(s) of the Certificate of Deposit indicated above. The above assignment has been properly recorded by placing a hold in the amount of $ _______________________ for the benefit of the Department of Environmental Quality.

The accrued interest on the Certificate of Deposit indicated above shall be maintained to capitalize versus being mailed by check or transferred to a deposit account.

| | | | --- | --- | | (Signature) | (Date) | | | | | (print name) | | | | | | (Title) | |

F. Wording of insurance endorsement.

ENDORSEMENT.

(NOTE: Instructions in parentheses are to be replaced with the applicable information for the nutrient credit-generating project's practices (i.e., structural BMPs or restoration) and the non-relevant information and parentheses deleted.)

Name: (name of each covered location )

Address: (address of each covered location )

Policy number:

Period of coverage: (current policy period )

Name of Insurer:

Address of Insurer:

Name of insured:

Address of insured:

Endorsement:

1. This endorsement certifies that the policy to which the endorsement is attached provides insurance covering the (operation and maintenance and/or repair or replacement of the nutrient credit-generating project's structural BMPs) (monitoring of the nutrient credit-generating project's wetland/stream restoration) in connection with the insured's obligation to demonstrate financial responsibility under the 9VAC25-900).

(List the name(s) and address(es) of the nutrient credit-generating project(s)) for (the operation and maintenance and/or repair or replacement of the nutrient credit-generating project's structural BMPs) (monitoring of the nutrient credit-generating project's wetland/stream restoration) in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy;

The limits of liability are (provide the dollar amount of the operation and maintenance, monitoring, and/or repair or replacement), exclusive of legal defense costs, which, if applicable, are subject to a separate limit under the policy. This coverage is provided under (provide the policy number). The effective date of said policy is (insert the effective date).

2. The insurance afforded with respect to such occurrences is subject to all of the terms and conditions of the policy; provided, however, that any provisions inconsistent with subsections (a) through (d) for occurrence policies and (a) through (e) for claims-made policies of this paragraph 2 are hereby amended to conform with subsections (a) through (e):

a. Bankruptcy or insolvency of the insured shall not relieve the insurer of its obligations under the policy to which this endorsement is attached.

b. The insurer is liable for the payment of amounts within any deductible applicable to the policy to the provider of monitoring, operation and maintenance and/or repair or replacement, with a right of reimbursement by the insured for any such payment made by the insurer. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated under another mechanism or combination of mechanisms as specified in 9VAC25-900.

c. Whenever requested by the Department of Environmental Quality, Commonwealth of Virginia, the insurer agrees to furnish to the Department of Environmental Quality, Commonwealth of Virginia, a signed duplicate original of the policy and all endorsements.

d. The insurer may not cancel or terminate the policy during the policy period except for failure to pay the premium. The policy shall automatically renew at the department's discretion on an annual basis for a period of up to ten years. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy.

e. The insured may cancel the insurance policy only if alternate financial assurance is substituted as specified in 9VAC25-900, or if the owner is no longer required to demonstrate financial responsibility in accordance with 9VAC25-900.

f. Cancellation for nonpayment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of 120 days after a copy of such written notice is received by the insured and the Department of Environmental Quality, Commonwealth of Virginia.

(Insert for claims made policies: )

g. The insurance covers claims otherwise covered by the policy that are reported to the insurer within six months of the effective date of cancellation or nonrenewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy.

I hereby certify that the wording of this endorsement is in no respect less favorable than the coverage specified in 9VAC25-900. I further certify that the insurer is licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in the Commonwealth of Virginia.

(Signature of authorized representative of insurer)

(Name of the person signing)

(Title of the person signing), authorized representative of (name of the insurer)

(Address of the representative)

(Title of person signing)

Signature of witness or notary:

(Date)

History

• Statutory Authority: § 62.1-44.19:20 of the Code of Virginia.
• Historical Notes: Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020; amended, Virginia Register Volume 38, Issue 26, eff. September 14, 2022.